Jones v. Unknown Party et al

Filing 115

MEMORANDUM AND OPINION and ORDER OF DISMISSAL re 1 Complaint filed by Michael Jones. ORDERED that the complaint is DISMISSED with prejudice and all motions not previously ruled on are DENIED. Signed by Magistrate Judge Judith K. Guthrie on 3/15/2010. (gsg)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS T Y LE R DIVISION

M IC H A E L JONES, #1456028 VS. C H E R O KE E COUNTY, TEXAS, ET AL.

§ § § C IV IL ACTION NO. 6:08cv293

M E M O R A N D U M OPINION AND O R D E R OF DISMISSAL P lain tiff Michael Jones, a Texas prison inmate, filed the above-styled and numbered civil rights law su it pursuant to 42 U.S.C. § 1983. The sole defendant remaining in the lawsuit is Cherokee County Lieu ten an t Deputy (now Captain) Chris White. The complaint was transferred to the undersigned with th e consent of the parties pursuant to 28 U.S.C. § 636(c). The present opinion concerns Defendant White's motion for summary judgment (docket entry # 1 0 9 ), the Plaintiff's response (docket entry #112) and White's reply (docket entry nos. 113 & 114). F acts of the Case T h e original complaint was filed on July 14, 2008. The complaint was filed pro se. On D ecem b er 9, 2008, the Court conducted an evidentiary hearing, in accordance with Spears v. M cC o tter, 766 F.2d 179 (5th Cir. 1985), to consider the Plaintiff's claims. The Plaintiff testified that h e was evading arrest from city police in Bullard on August 3, 2006. He ran out of the woods at a co n v en ien ce store near Troup. He observed a police car and went behind a dumpster to hide. An o fficer pulled him out from behind the dumpster. Various officers, including officers from the Texas p riso n system, restrained him, and he gave up.

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The Plaintiff's complaint focused on events that subsequently occurred. He alleged that an u n id en tified Cherokee County deputy drove up, ran towards him and kicked him in the face. He then lo st consciousness. He did not know the name of the deputy, although he described him as a young o fficer in his mid to upper twenties, 150 to 180 pounds, and approximately 5'8". He tried to find out th e name of the deputy, but his identity was kept confidential. Medical personnel were treating him w h en he regained consciousness. He was transported to a hospital. The Plaintiff testified that his in ju ries included broken teeth and swelling around his eyes. F o llo w in g the Spears hearing, on January 6, 2009, the Court issued an order (docket entry #24) fin d in g that the complexity of the case warranted the appointment of counsel. An attorney was ap p o in ted to represent counsel. It was also noted that counsel for the Defendants notified the Court that it was his belief that the unidentified Cherokee County Deputy who allegedly used excessive and u n n ecessary force was Chris White. Counsel subsequently revealed that White was identified because h e was the only Cherokee County deputy at the scene who fit the description of the person described b y the Plaintiff as the one who assaulted him. The Plaintiff thus proceeded in this case as if White had ad m itted that he used force against the Plaintiff. However, White has repeatedly asserted that there w as no such admission; instead, counsel identified him because he was the only deputy at the scene w h o fit the physical description provided by the Plaintiff. O n November 18, 2009, the Court issued an Order of Partial Dismissal (docket entry #94). The claims against Cherokee County were dismissed, but the motion for summary judgment as to W h ite was denied. The Court found that there was a disputed issue of material fact as to whether W h ite was the person who used force against the Plaintiff, thus the motion to dismiss was denied as to him.

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A status conference was conducted on December 15, 2009. The Plaintiff complained about d efen se counsel's submission of White's name as the person who used force against him. He all but co n ced ed that Chris White was not the person who used force against him. Defense counsel, however, reiterated that White's name was put forward because he was the only Cherokee County deputy at the scen e who fit the physical description provided by the Plaintiff. D efen d an t White's Motion for Summary Judgment D efen d an t White filed a second motion for summary judgment (docket entry #109) on F eb ru ary 18, 2010. He asserted that it is undisputed that he was not the unknown officer who allegedly k ick ed the Plaintiff while he was laying on the ground in restraints. He asserted that he is entitled to su m m ary judgment based on qualified immunity. In support of the motion, he submitted portions of th e transcript of the Plaintiff's testimony from the Spears hearing. He also provided portions of tran scripts from deposition testimony by the Plaintiff, Officer Bryan Richards, himself, Warden Steven S w ift, Sheriff James Campbell and Lt. Jimmy Evans. He finally submitted affidavits from himself, D ep u ty Michael Darby, Deputy Jeremy Pate, Sheriff James Campbell, former deputy Jamie Beene and D ep u ty Richard Gould. In discussing the facts, White noted that even though he fits the physical description of the p erso n who allegedly attacked the Plaintiff, he did not otherwise satisfy the description of the assailant. He noted that the Plaintiff described the individual who attacked him as wearing a uniform consisting o f brown pants and a tan shirt. The competent summary judgment evidence revealed, however, that h e was not in uniform at the time of the incident and that he was wearing civilian clothes. He further n o ted that the Plaintiff alleged that the person who attacked him arrived on the scene after he was alread y restrained and that the person got out of his car and started kicking him in the face. White

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asserted that the competent summary judgment evidence reveals that he was present on the scene well b efo re the Plaintiff was restrained. Among other things, he assisted TDCJ officers place restraints on th e Plaintiff. W h ite asserted that it is undisputed that the only officers who actually engaged in the struggle w ith the Plaintiff were TDCJ officers. Warden Swift specified that the Plaintiff's face was bloody b efo re he walked away from the scene and that he walked away only after the Plaintiff had been helped to his knees. Warden Swift admitted that he could have been the one who bloodied the Plaintiff's face. White noted that the only Cherokee County deputies that were on the scene were Michael Darby, Jerem y Pate and himself. He was the only deputy who fit the physical description of the assailant that w as provided by the Plaintiff. He again added, however, that he was not in uniform. The Court notes th at there has been speculation that Deputy Jamie Beene may have been the person who attacked the P lain tiff. Jamie Beene resembles Chris White, but Beene was fishing with his father at a bass to u rn am en t on Lake Jacksonville at the time of the incident. W h ite argued that he is entitled to qualified immunity. More specifically, he argued that he d id not violate the Plaintiff's constitutional rights and that his actions were objectively reasonable. He ad d ed that the Plaintiff, as opposed to himself, has the burden to show that he violated the Plaintiff's clearly established rights. See Salas v. Carpenter, 980 F.2d 299, 306 (1992). He argued that the m o tio n for summary judgment should be granted. The details of his legal arguments will be discussed m o re fully in the Discussion and Analysis section of this Memorandum Opinion. P lain tiff's Response T h e Plaintiff filed a response (docket entry #112) to the motion for summary judgment on M arch 3, 2010. His review of the facts reiterated that he was kicked until he was knocked unconscious b y an unknown Cherokee County deputy. The deputy knocked out six teeth, broke his nose and

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permanently damaged his good eye and ear. He alleged that the Defendants disingenuously identified D efen d an t White as the unknown deputy, confident they could exonerate him later, and thwart his effo rts to discover evidence concerning whether White or someone else was the unknown deputy. He argu ed that the Defendants abused various pre-trial proceedings, violated the rules governing discovery a n d disclosure, as well as Court orders, and thereby prevented him from developing the evidence n ecessary to prosecute his case and oppose summary judgment. In a footnote, the Plaintiff stated that he appreciates that the identification of White was made at the Court's informal request. But, as the case now demonstrates, the practice of informally id en tifyin g a defendant loses its utility and causes considerable havoc when defense counsel u n q u alified ly identifies somebody who apparently has a pat defense. T h e Plaintiff asserted that Defendant White's motion asserts a version of the facts that is both d isp u ted and includes immaterial matters. He disputed White's choice of words. For example, White ch aracteriz ed the beating as a fight. The distinction is important because the Plaintiff did not try to hit, k ick or strike any officer. He noted that White appears to claim that it was undisputed that he was still lyin g on the ground when he was kicked by an unknown deputy, however, the evidence was that he w a s kicked while lying down which does not conflict with the possibility that he could have been sittin g up sometime before he was kicked while lying down. The Plaintiff asserted that White's motion relies on self-serving testimony, which raises questions about his credibility. T h e Plaintiff summarized the evidence by asserting that it supports the description of the b eatin g described by him. He added that a photograph of him taken shortly after the incident supports th e fact that he was beaten. He argued that the record and evidence also supports that the Defendants h ad disingenuously identified White as the unknown office and frustrated discovery to thwart his

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attempts to discover evidence of the basis for their identification of White as the unknown deputy or th e true identity of the unknown deputy. T h e Plaintiff again argued that the Defendants disingenuously identified White as the unknown d ep u ty. He noted that he testified at the Spears hearing as to what he remembered from the beating. He referred to Cherokee County deputies wearing tan and brown uniforms, while other police officers w o re black. He asserted that defense counsel knew that the Cherokee County deputies wore brown an d tan uniforms at the time White was identified and further knew that White had a ready defense b ecau se he did not wear a uniform. He rejected defense counsel's claim of acting in good faith in id en tifyin g White as the unknown deputy. T h e Plaintiff asserted that the Defendants failed to initially disclose photographs of all C h ero k ee County deputies; failed to disclose the photographs when specifically requested to do so; refu sed to produce the photographs in the absence of a Court order compelling them to do so; and then ev en violated a Court order requiring production of the photographs - although misrepresenting that th ey had complied. At the deposition, the Defendants refused to let a witness answer questions on the su b ject of White being identified as the unknown deputy and had to be ordered to produce the testim o n y. The witness was unable to testify about the location of the other deputies. The Plaintiff also complained that defense counsel disrupted depositions by making improper objections when the su b jected turned to the identification of White as the unknown deputy. The Plaintiff complained that in granting summary judgment as to most Defendants, the Court ruled that the Defendants' advisory identifying White as the unknown deputy "was not evidence, not an admission against self-interest, and not a judicial admission, . . . not a stipulation, formal concession o r admission of any conduct." The Plaintiff argued that the rulings were erroneous. As a result of the

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rulings, there is no evidence that Defendants had identified White as the unknown deputy for a jury to consider at trial or to present in response to White's second summary judgment motion. T h e Plaintiff again asserted that the Defendants frustrated his discovery regarding the identity o f the unknown deputy. They resisted such discovery repeatedly and strenuously in violation of not o n ly the rules governing disclosures and discovery but in violation of Court orders. He again focused o n the initial failure to disclose the photographs of all Cherokee County deputies. He asserted that th ere has been a concerted effort on the part of the Sheriff's department to conceal the identity of the u n k n o w n deputy. He complained that the Court declined to sanction the Defendants. T h e Plaintiff closed his response by arguing that the Defendants' course of conduct rendered d isco v ery and pretrial proceedings ineffective. He asserted that while the Court had addressed some o f the discovery abuse, its orders have been violated by the Defendants and have been insufficient to co rrect the Defendants' actions or keep the playing field level. As a result, he has been prevented from o b tain in g the discovery and evidence necessary to prosecute the case and oppose summary judgment. He argued that there is no dispute that the unknown deputy acted unreasonably and unconstitutionally. The Plaintiff argued that White's liability turns on whether he is the unknown deputy, a fact issue. He fin ally argued that White is not entitled to summary judgment on the basis of qualified immunity. D efen d an t White's Reply D efen d an t White filed a reply to the Plaintiff's response (docket entry #113) on March 10, 2 0 1 0 . A second copy of the reply (docket entry #114) was filed on March 12, 2010. He asserted that th e response to his motion for summary judgment does not seem to contest his right to summary ju d gm en t, as much as it is an attack on his attorney. He stressed that the Plaintiff had once again p laced undue emphasis on the advisory filed on December 15, 2008, along with alleged discovery

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abuses. He noted that these arguments have been addressed repeatedly by the Defendants. He asserted th at the Plaintiff's response went one step further, however, in making arguments that are factually in accu rate and in making far-fetched accusations that are without merit. He argued that despite all of th is, summary judgment is proper because he did not hit or kick the Plaintiff and because the Plaintiff failed in his burden to defeat his defense of qualified immunity. T h e reply addressed the specific accusations of wrongdoing on the part of the Defendants. The C o u rt notes that accusations of wrongdoing were heretofore itemized in discussing the Plaintiff's resp o n se because he indicated at the status conference that he would likely present these matters in an ap p eal. The Court will not, however, address them point by point once again with respect to the reply b ecau se the accusations of wrongdoing actually are a separate issue from the focus of the motion for su m m ary judgment concerning whether Chris White is entitled to summary judgment. T h e reply presented additional exhibits in the form of excerpts from deposition testimony of A llen Patton, Stacy Halbert, and Kenneth Arnold, along with the entire deposition testimony of the P lain tiff. The reply asserted that the response is filled with inaccuracies. The reply, nonetheless, went o n to focus on whether White was the one who kicked the Plaintiff in the face. White reiterated that th e competent summary judgment does not show that he was that person. He argued that the Plaintiff d id not show that he is not entitled to summary judgment based on qualified immunity. D iscu ssio n and Analysis S u m m ary judgment is proper when the pleadings and evidence on file show that "there is no gen u in e issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ." Fed. R. Civ. P. 56(c). The moving party for summary judgment has the burden of proving the lack of a genuine issue as to all the material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Galindo v. Precision American Corp., 754 F.2d 1212, 1221-23 (5th Cir. 1985).

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In deciding a motion for summary judgment, the Court must make a threshold inquiry in d eterm in in g whether there is a need for a trial. "In other words, whether there are any genuine factual issu es that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[T]he mere e x is te n ce of some alleged factual dispute between the parties will not defeat an otherwise properly su p p o rted motion for summary judgment; the requirement is that there be no genuine issue of material fact." 477 U.S. at 247-48. In making this threshold inquiry, the Court must consider that "[s]ummary ju d gm en t is proper when, viewed in the light most favorable to the non-moving party, the pleadings, d ep o sitio n s, answers to interrogatories, and admissions on file, together with the affidavits, if any, sh o w that there is no genuine issue as to any material fact." Smith v. Xerox Corp., 866 F.2d 135, 137 (5 th Cir. 1989) (citations omitted); Fed. R. Civ. P. 56(c). O n ce the movants make a showing that there is no genuine material fact issue to support the n o n m o v an t's case, the nonmovant cannot survive a motion for summary judgment by resting on the allegatio n s in his pleadings. Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. d en ied , 488 U.S. 926 (1988); see also Celotex, 477 U.S. at 324. Rather, he must direct the court's atten tio n to evidence in the record sufficient to establish that there is a genuine issue of material fact fo r trial. Celotex, 477 U.S. at 324. To carry this burden, the nonmovant must present evidence su fficien t to support a resolution of the factual issues in his favor. Anderson, 477 U.S. at 257. Summary judgment is proper if the affidavits, depositions, answers, and admissions on file fail to estab lish the existence of an element essential to the plaintiff's case and as to which he will bear the b u rd en of proof at trial. Celotex, 477 U.S. at 322-23. The nonmovant must submit competent su m m ary judgment evidence sufficient to defeat a properly supported motion for summary judgment.

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See, e.g., Burleson v. Texas Dept. of Criminal Justice, 393 F.3d 577, 589-90 (5th Cir. 2004); Domino v. Texas Dept. of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001). T h e issue being considered in this Memorandum Opinion concerns whether White is the u n k n o w n deputy who allegedly used excessive force against the Plaintiff. The Court would note at th e outset that the Plaintiff's claims made at the Spears hearing led the Court to conclude that the P lain tiff had a potentially meritorious civil rights lawsuit based on a claim of excessive use of force. There is no question that he received severe injuries during the incident. His testimony alleged that an unidentified Cherokee County deputy was the person who used force against him. Based on the co m p lex ities of this case, particularly with respect to identifying the unknown deputy, counsel was ap p o in ted to represent the Plaintiff. Based on the evidence gathered during the discovery process, th er e is some question as to whether the Plaintiff's injuries were caused by an unknown Cherokee C o u n ty deputy or prison officials, particularly Warden Swift. N o n eth eless, the focus of this Memorandum Opinion is whether White was the person who u sed force against him. The competent summary judgement evidence, viewed in a light most favorable to the Plaintiff, yields a conclusion that White was not the person who used force against him. The Plaintiff testified that he concluded that the person who used force against him was a Cherokee County d ep u ty because he wore a brown and tan uniform and only Cherokee County deputies were wearing b ro w n and tan uniforms. White was not wearing a uniform at the time of the incident; instead, he wore civ ilian clothes. The person identified by the Plaintiff as the one who kicked him was a person who c a m e on the scene only after he was already restrained. White was there before the Plaintiff was restrain ed . Perhaps the most damning information is the Plaintiff's proclamation when he first saw W h ite during depositions that White was not the person who used force against him. The identity of

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the person who used force against the Plaintiff has not been positively determined by him, but it is clear that the person was not Chris White. There is some evidence that the person who used force again st him was not even a Cherokee County deputy, but the issue of who used fore is a disputed issue o f material fact. There is no dispute, however, that Chris White was not the person who used force again st the Plaintiff, thus he is entitled to summary judgment. T h e Plaintiff has criticized defense counsel's identification of Chris White as the unknown C h ero k ee County deputy. Defense counsel has repeatedly stated to the Court that Chris White was id en tified because he was the only Cherokee County deputy at the scene who fit the description p ro v id ed by the Plaintiff. The other two deputies were much larger. Defense counsel focused on the p h ysical description. The Plaintiff argued that the Defendants acted in bad faith because they knew th at the Plaintiff had testified at the Spears hearing that the unknown deputy wore a brown and tan u n ifo rm while White was not wearing a uniform. Nonetheless, defense counsel stressed that he fo cu sed on the physical description provided. The uniform factor was not an issue in the identification p ro cess. The Plaintiff obviously believes that whether White was wearing a uniform should have been a factor, but it was not a concern. Whether White was wearing a uniform perhaps should have been a factor, but it was not. The Court has no reason to believe that the Defendants acted in bad faith in id en tifyin g White as the unknown officer because he was the only Cherokee County deputy on the scen e who fit the physical description of the unknown Cherokee County deputy. T h e final issue raised by White concerns whether he is entitled to summary judgment based o n qualified immunity. The defense of qualified immunity shields government officials performing d iscretio n ary functions from liability for civil damages insofar as their conduct does not violate clearly estab lish ed rights which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800,

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818 (1982); Wilson v. Layne, 526 U.S. 603, 614 (1999). The doctrine of qualified immunity shields go v ern m en t officials "from civil damages liability as long as their actions could reasonably have been th o u gh t consistent with the rights they are alleged to have violated." Fraire v. Arlington, 957 F.2d 1 2 6 8 , 1273 (5th Cir. 1992), citing Anderson v. Creighton, 483 U.S. 635, 638 (1987). A two-step process has traditionally been employed in evaluating the defense of qualified im m u n ity. Saucier v. Katz, 533 U.S. 194 (2001). A court must first consider whether "the facts alleged show the officer's conduct violated a constitutional right." Id. at 201. Second, if the plaintiff h as satisfied the first step, courts are required to decide whether the right at issue was "clearly estab lish ed " at the time of the defendant's alleged misconduct. Id. The Fifth Circuit has accordingly h eld that "a state actor is entitled to qualified immunity if his or her conduct was objectively reasonable in light of the legal rules that were clearly established at the time of his or her actions." McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2004). More recently, the Supreme Court held that a case m ay be dismissed based on either step in the qualified immunity analysis: "The judges of the district co u rts and the courts of appeals should be permitted to exercise their sound discretion in deciding w h ich of the two prongs of the qualified immunity analysis should be addressed first in the light of the circu m stan ces in the particular case at hand." Pearson v. Callahan, 129 S.Ct. 808, 818 (2009). In the present case, the competent summary judgment evidence does not show that White v io lated the Plaintiff's constitutional rights. Perhaps someone unknown to the Court violated the P lain tiff's constitutional rights by subjecting him to excessive use of force, but White was not that p erso n . Secondly, the Plaintiff has not shown that White's actions were objectively unreasonable in ligh t of the legal rules that were clearly established at the time of his or her actions. Defendant White is entitled to summary judgment based on qualified immunity.

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One last matter should be noted. The incident which is the subject of the lawsuit occurred on A u gu st 3, 2006. The lawsuit was filed just before the expiration of the statute of limitations on July 1 4 , 2008. The Plaintiff alleged that unknown Cherokee County deputy used excessive force against h im while there is some evidence that TDCJ officers actually used force against him. The statute of lim itatio n s in Texas for § 1983 actions is two years. Burrell v. Newsome, 883 F.2d 416, 419 (5th Cir. 1 9 8 9 ); Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993). By the time counsel was appointed to rep resen t the Plaintiff, it was too late to add TDCJ personnel as defendants. For this reason, the law su it should be dismissed with prejudice. It is therefore O R D E R E D that Defendant Chris White's motion for summary judgment (docket entry #109) is GRANTED. It is further O R D E R E D that the complaint is DISMISSED with prejudice. It is finally O R D E R E D that all motions not previously ruled on are DENIED.

So ORDERED and SIGNED this 15 day of March, 2010.

____________________________ JUDITH K. GUTHRIE UNITED STATES MAGISTRATE JUDGE

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