Rich v. Palko et al

Filing 79

MEMORANDUM OPINION AND ORDER. Defendant Officers' Motion for Summary Judgment on Qualified Immunity (Dkt. # 60 ) is DENIED. Further, Defendant Officers' Motion for Oral Hearing (Dkt. # 73 ) is DENIED. Signed by District Judge Amos L. Mazzant, III on 3/13/2018. (rlf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JERI LYNN RICH, AS REPRESENTATIVE,
FOR GAVRILA COVACI DUPUIS-MAYS,
AN INCAPACITATED PERSON,
Plaintiff,
V.
MICHAEL PALKO, KEITH HUDGENS, and
THE CITY OF MCKINNEY,
Defendants.

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CASE NO. 4:16CV870
Judge Mazzant/Judge Johnson

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28
U.S.C. § 636. On January 8, 2018, the report of the Magistrate Judge was entered containing
proposed findings of fact and recommendations (the “Report”) (see Dkt. #70) that Defendants
Michael Palko (“Palko” or “Defendant Palko”) and Keith Hudgens’s (“Hudgens” or “Defendant
Hudgens”) (collectively, “Defendant Officers”) Motion for Summary Judgment on Qualified
Immunity (Dkt. #60) be DENIED.
I.

PROCEDURAL BACKGROUND

On January 12, 2018, Defendant Officers filed objections to the Report (see Dkt. #71). On
January 17, 2018, Defendant Officers filed a Motion for Hearing on Defendant Officers’ objections
(see Dkt. #73). Upon order of the Court, Plaintiff filed a response to Defendant Officers’ objections
(see Dkt. #75). Defendant Officers filed a supplemental reply to Plaintiff’s response (see Dkt. #76).
The Court has made a de novo review of the objections, Plaintiff’s response, and Defendant
Officers’ supplemental reply, and is of the opinion that the findings and conclusions of the

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Magistrate Judge are correct and the objections are without merit as to the ultimate findings of the
Magistrate Judge.1 The Court hereby adopts the findings and conclusions of the Magistrate Judge
as the findings and conclusions of the Court.
II.

DISCUSSION

A. GENERAL OBJECTIONS TO THE REPORT
1. Unlawful Detention
Defendant Officers first object to the Magistrate Judge’s finding that there is a genuine
issue of material fact as to whether Defendant Officers understood Gavrila Covaci Dupuis-Mays
(“Dupuis-Mays”) was a danger to himself or others as required for detention under Texas law. See
Dkt. #71 at 2-3. In support of this objection, Defendant Officers contend the Report “disregards
other evidence” demonstrating there is no genuine issue of material fact. As Plaintiff notes,
however, Defendant Officers have never provided sworn testimony in support of this argument or
their Motion at all. Additionally, Defendant Officers cannot dispute that the record includes
conflicting internal reports from Sergeant Randy Agan regarding whether the seizure of DupuisMays was lawful. Moreover, the Magistrate Judge correctly noted that the audio and video
evidence, internal investigation documentation, and conflicting internal reports all provide
evidence that there is a genuine issue of material fact on this issue. See Dkt. #70 at 13-14. For these
reasons, the Court finds no error in the Magistrate Judge’s finding that there is a genuine issue of
material fact as to whether the seizure of Dupuis-Mays’s was unlawful, and thus, Defendant
Officers’ objection is overruled.
Defendant Officers next object that “the right [to be free from detention under the
circumstances] was not clearly established,” arguing that based on Dupuis-Mays’s psychiatric

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The Court also considered Defendant Officers’ Motion for Hearing on their objections (Dkt. #73).

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history, Defendant Officers reasonably concluded he was a danger to himself and/or others. See
Dkt. #71 at 3-4. First, the Court notes that Defendant Officers have not made this argument prior
to their objections to the Report. The Fifth Circuit has held that issues raised for the first time in
objections to the report of a magistrate judge are not properly before the Court. See Finley v.
Johnson, 243 F.3d 215, 218 n. 3 (5th Cir. 2001) (citing United States v. Armstrong, 951 F.2d 626,
630 (5th Cir. 1992)). Even considering Defendant Officers’ argument, the Court finds two fatal
flaws: first, Defendant Officers, pursuant to the record before the Court, did not have DupuisMays’s “psychiatric history” at any time during the incident. The record contains Dupuis-Mays’s
Medical Records from Medical City Dallas Hospital (Dkt. #65-1 at 8-10); however, such records
were obtained during the subsequent investigation after the incident. Second, Defendant Officers
have admitted that Dupuis-Mays was not violent when they arrived at the scene and throughout
the extended period of time prior to being detained. See Dkt. #71 at 3-4. Furthermore, Defendant
Officers cite no case law for the proposition that, based on a person’s behavioral and psychiatric
history, police officers may lawfully detain a non-violent person.
As the Magistrate Judge noted, case law discussing emergency detention clearly establishes
there must be a substantial risk of serious harm for a person to be lawfully detained under the
provisions of the Texas Health and Safety Code. See Dkt. #70 at 14. Defendant Officers’
contentions as to their decision to detain Dupuis-Mays based on his personal history is a question
of fact best left for a jury. Thus, the Court finds no error in the Magistrate Judge’s conclusion, and
this objection is likewise overruled.
2. Excessive Force
Defendant Officers next object to the Magistrate Judge’s finding that Defendant Officers’
use of force against Dupuis-Mays was objectively unreasonable and met the standard of excessive

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force. See Dkt. #71 at 4-5. In support, Defendant Officers offer a new and different interpretation
of the video evidence before the Court, now arguing that “Dupuis-Mays’s own movement and
momentum result[ed] in his accidentally striking the filing cabinet.” See id. at 5. The Court again
notes that Defendant Officers have not made this argument prior to their objections, and thus, the
issue is not properly before the Court. See Finley, 243 F.3d at 218 n. 3 (citing Armstrong, 951 F.2d
at 630). Even considering Defendant Officers’ argument, however, the Magistrate Judge found a
jury could find Defendant Officers’ videotaped use of force was unreasonable, especially when
viewed in conjunction with Sergeant Agan’s report. See Dkt. # 70 at 17-18. Although Defendant
Officers now offer a different description of the events seen on the video, this does not change the
objective video evidence: a seated, handcuffed, and disabled person was forcibly brought to the
ground by two police officers and suffered a serious laceration to the head. Accordingly, the Court
finds no error in the Magistrate Judge’s conclusion, and this objection is likewise overruled.
Defendant Officers also object to the Magistrate Judge’s finding that the right to be free
from excessive force was clearly established. See Dkt. #71 at 5-6. Defendant Officers first rely on
three cases in making this objection: one from Pennsylvania, one from Missouri, and one from
Arkansas. See id. at 5. The Court does not find any of these cases persuasive in this matter.
Defendant Officers next argue that the Magistrate Judge’s reliance on Fifth Circuit case
law was misplaced because the force described therein was different than the force used in the
instant matter. See id. at 5-6. Defendant Officers appear to have misinterpreted the basis for the
Magistrate Judge’s reliance on Brady v. Louisiana, 1993 WL 277008 (5th Cir. 1993). As noted in
the Report, Brady, along with several other cases in this Circuit, provide clearly established law
that lesser levels of force are excessive against restrained, non-threatening persons. Indeed, the
Magistrate Judge found that the “clearly excessive” force threshold is less in situations where, as

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in this case, the person is restrained and not physically threatening. See Dkt. #70 at 18. Thus, the
Court finds no error in the Magistrate Judge’s conclusion, and this objection is likewise overruled.
3. False Reporting
Defendant Officers next object to the Magistrate Judge’s finding that their reporting
falsities were consequential to Dupuis-Mays’s unlawful detention and excessive force claims. See
Dkt. # 71 at 6-7. Defendant Officers rely on the timing of the submitted reports to argue they could
not have possibly contributed to any deprivation of Dupuis-Mays’s constitutional rights. See id.
Namely, Defendant Officers state they submitted their reports “long after Dupuis-Mays was
tak[en] into custody. . . .” See id. at 7. As the Magistrate Judge stated, however, these reporting
falsities obstructed the investigation regarding the incident and continue to serve as a potential
basis for the justification of the alleged unlawful detention and use of excessive force. See Dkt.
#71 at 20-21. For this reason, they are proper matters for a jury to review. Thus, the Court finds
no error in the Magistrate Judge’s conclusion, and this objection is likewise overruled.
B. OBJECTIONS TO DISCOVERY ORDERS
Defendant Officers object that the Court improperly limited qualified immunity discovery
in previous orders (Dkts. #53, #59). Defendant Officers argue that information from the discovery
requests they proposed would have supported the reasonableness of both the detention and the use
of force. See Dkt. #71 at 8. Additionally, Defendant Officers rely on case law stating that “limited
discovery may be undertaken by both parties, tailored to the issue of qualified immunity.” Geter
v. Fortenberry, 882 F.2d 167, 170 (5th Cir. 1989).
First, the Court finds that Defendant Officers’ argument regarding the value of the
information from the proposed discovery is entirely speculative. The voluminous record before the
Court provided adequate basis for the Magistrate Judge’s findings. Moreover, Defendant Officers

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incorrectly argue the Court’s orders regarding discovery were improperly narrow. As noted in
Geter, a Court has discretion regarding the scope of discovery when addressing the issue of
qualified immunity. See Geter, 882 F.2d at 170. Although Defendant Officers may not agree with
the Magistrate Judge’s denial of certain discovery requests (like the request for Plaintiff’s
deposition), such decisions were made within the Court’s sound discretion. Thus, the Court finds
no error in the Magistrate Judge’s discovery orders (Dkts. #53, #59), and Defendant Officers’
objection is overruled.
C. REQUEST FOR ORAL HEARING
Defendant Officers also submitted a Motion for Oral Hearing on their objections (the
“Motion for Oral Hearing”) (Dkt. #73). Upon consideration, the Court DENIES Defendant
Officers’ Motion for Oral Hearing (Dkt. #73).
III.
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CONCLUSION

Based on the foregoing, Defendant Officers’ Motion for Summary Judgment on Qualified
Immunity (Dkt. #60) is DENIED.
Further, Defendant Officers’ Motion for Oral Hearing (Dkt. #73) is DENIED.
IT IS SO ORDERED.
SIGNED this 13th day of March, 2018.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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