Keaton v. Fairchild et al

Filing 57

MEMORANDUM ORDER overruling objections and adopting 46 Report and Recommendation re 26 Motion for Summary Judgment. Defts' motion is denied as to pltfs claims of unlawful entry and detention and excessive use of force under the Fourth Amendment, in addition to defts motion as to qualified immunity. Defts motion is granted as to the official capacity claims against defendants and the claims against the John Doe defendants. Signed by Judge Ron Clark on 3/22/13. (tkd, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
BRAD WAYNE KEATON

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VS.

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PHILLIP FAIRCHILD, ET AL.

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CIVIL ACTION NO. 1:11-CV-410

MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Brad Wayne Keaton, a prisoner confined at the U.S. Penitentiary in Jonesville,
Virginia, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42
U.S.C. § 1983 against defendants Detective Phillip Fairchild with the Liberty Police Department,
Detective Doug O’Quinn with the Dayton Police Department, and John Doe Patrol Officers with
the Liberty Police Department.
The Court referred this matter to the Honorable Keith Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge recommends defendants’ motion for summary judgment be denied
in part and granted in part.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings.
Defendants filed objections to the Magistrate Judge’s Report and Recommendation. This
requires a de novo review of the objections in relation to the pleadings and applicable law. See
FED . R. CIV . P. 72(b).
After careful consideration, the Court finds defendants’ objections lacking in merit. As
the Magistrate Judge correctly concluded, plaintiff’s allegations in his verified complaint can
serve as competent summary judgment evidence and a pro se litigant should be afforded some
leeway and his pleadings are to be liberally construed. Mitchell v. Cervantes, 453 F. App’x 475,

2011 WL 6156876, *2 (5th Cir. 2001); Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976).
With respect to the aspect of plaintiff’s alleged physical injury, there is some dispute as to
whether the de minimis injury standard is still good law. See Wilkins v. Gaddy, 559 U.S. 34, 130
S.Ct. 1175, 175 L.Ed.2d 995 (2010) (Supreme Court ruled the district court “erred in dismissing
Wilkins’ complaint based on the supposedly de minimis nature of his injuries.”). Regardless, the
absence of an injury does not preclude an award for nominal or punitive damages if plaintiff can
prove a Fourth Amendment violation. Holmes v. Stalder, 254 F.3d 71, 2001 WL 502795, * 1
(5th Cir. 2001); see also Hutchins v. McDaniels, 512 F.3d 193, 197 (5th Cir. 2007) (district court
erred in dismissing plaintiff’s § 1983 claim in its entirety as even in the absence of physical
injury, a pro se prisoner may recover nominal or punitive damages despite § 1997e(e) if he can
successfully prove his Fourth Amendment rights were violated). Furthermore, with respect to
plaintiff’s claims for psychological injury, the Fifth Circuit has rejected the argument that
“psychological injures alone are never sufficient to sustain a Fourth Amendment claim.” Flores
v. City of Palacios, 381 F.3d 391, 398 (5th Cir. 2004).
Concerning plaintiff’s claim of unlawful entry, it is defendants burden to prove that the
person who gave consent had the actual or apparent authority to do so. Illinois v. Rodriguez, 497
U.S. 177, 181, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990). That burden cannot be met if
officers, faced with an ambiguous situation, nevertheless proceed without making further inquiry.
If the officers do not learn enough, and if the circumstances make it unclear whether the property
is subject to “common authority” by the person giving consent, “then warrantless entry is
unlawful without further inquiry. Id. at 188-89. As stated by the Magistrate Judge, on the
present record, it would appear Mr. Stokes did not have the ability to let the officers in the home
as he had to knock on the door to gain entry. This, in conjunction with the lack of evidence as to
how the defendants actually entered the home once Mr. Stokes knocked on the door, and the

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contradictory evidence as to where plaintiff was actually found in the home, cannot be considered
sufficient evidence to establish lawful consent as a matter of law.
As to the defense of qualified immunity, as stated by the Magistrate Judge, summary
judgment on qualified immunity is not appropriate when there are facts in dispute that are
material to a determination of reasonableness. Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir.
1999).
ORDER
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is
ADOPTED. Defendants’ motion for summary judgment as to plaintiff’s claims of unlawful
entry and detention and excessive use of force under the Fourth Amendment are denied in
addition to defendant’s motion for summary judgment as to qualified immunity. Defendants’
motion for summary judgment as to the official capacity claims against defendants and the claims
against the John Doe defendants, however, is granted.
So ORDERED and SIGNED this 22 day of March, 2013.

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Ron Clark, United States District Judge

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