Lewis v. Dallas County et al
Filing
98
MEMORANDUM OPINION AND ORDER: The court grants the Medical Providers' 60 motion for a Rule 7 reply; directs Lewis to file a Rule 7(a) reply as to the Medical Providers within 28 days of the date this memorandum opinion and order is filed, an d stays discovery as to the Medical Providers until further order of the court. The court denies Lewis' 88 motion for leave to supplement the summary judgment record; grants Officer Grant's 70 motion for summary judgment; and dismisses Lewis' action against Officer Grant by Rule 54(b) final judgment filed today. (Ordered by Senior Judge Sidney A Fitzwater on 10/23/2024) (cfk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SOPHIA LEWIS, Individually and
As Representative of the Estate
of Shamond Lewis, Deceased,
Plaintiff,
VS.
DALLAS COUNTY, et al.,
Defendants.
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Civil Action No. 3:23-CV-0381-D
MEMORANDUM OPINION
AND ORDER
Plaintiff Sophia Lewis (“Lewis”), individually and as representative of the estate of
Shamond Lewis, sues defendants Dallas County, Texas (the “County”), the Dallas County
Hospital District, d/b/a Parkland Health (“DCHD”), and various County detention officers
and medical providers under 42 U.S.C. § 1983, asserting claims for alleged deprivations of
her deceased son Shamond’s constitutional rights. Four County employees—defendants
Adaria Johnson, L.V.N (“Johnson”), Kelechi Nwazue, RN (“Nwazue”), Carmen Davis, RN
(“Davis”), and Yewande Wilson, NP (“Wilson”) (collectively, the “Medical Providers”
unless the context indicates otherwise)—move to compel Lewis to file a Fed. R. Civ. P. 7(a)
reply. Defendant Officer Annette Grant (“Officer Grant”) moves for summary judgment
based on the defense of qualified immunity. Lewis opposes both motions and moves under
Rule 56(d) to supplement the summary judgment record. For the reasons that follow, the
court grants the Medical Providers’ motion for a Rule 7 reply, denies Lewis’ motion to
supplement the summary judgment record, grants Officer Grant’s motion for summary
judgment, and dismisses Lewis’ claims against Officer Grant by Rule 54(b) final judgment
filed today.
I
Prior to the events giving rise to this lawsuit, Shamond lived alone, was physically
healthy, and took prescribed medication for his mental health condition: paranoid
schizophrenia.1 On September 22, 2022 Shamond was arrested for aggravated assault and
booked into the Dallas County Jail (“Jail”) without incident as a pretrial detainee. During
the booking process, Jail personnel noted Shamond’s mental illness on his Intake
Assessment, and initially placed him on suicide precaution to be monitored in an intake
single cell holding unit. Later that evening, at approximately 11:30 p.m., Shamond was
transferred to the second floor release section to be processed into a housing unit. Shamond
was again placed in a single cell holding unit.
At approximately 12:45 a.m., Shamond was escorted by defendants Sergeant
Christopher Loboda (“Sergeant Loboda”), Officer Javier Tavera-Luna (“Officer Tavera”),
and Officer James McDaniel to the changeout room to change into jail attire. According to
Sergeant Loboda, Shamond refused to change out of his clothes. When Sergeant Loboda
1
In the context of Officer Grant’s summary judgment motion, the court views the
evidence in the light most favorable to Lewis as the summary judgment nonmovant and
draws all reasonable inferences in her favor. See, e.g., Owens v. Mercedes-Benz USA, LLC,
541 F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n
v. Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
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attempted to restrain him, Shamond “pulled away from [him] and curled into a ball.” P. Br.
(ECF No. 84) at 4. Sergeant Loboda then gave Shamond several commands to “give us his
hands and quit resisting,” id., but Sergeant Loboda was unable to place both handcuffs on
Shamond.
During the struggle, one of the assisting officers placed an officer assist call, to which
Officer Grant and five other detention officers responded. When Officer Grant arrived in the
changeout room, she observed Shamond on the floor in a face-down position with his left
arm under his body, resisting the officers’ efforts to handcuff him. According to Lewis,
Officer Grant then stood on top of Shamond’s legs and “might have moved up from the legs
to the upper parts of [Shamond]’s body.” P. Br. (ECF No. 84) at 7 (citing P. App. (ECF No.
85) at 22-23). Officer Grant disputes this allegation, contending instead that she assisted the
detention officers who were trying to gain control of Shamond by using her hands on
Shamond’s thighs. It is undisputed that, after approximately 1-2 minutes, Shamond was
brought under control and handcuffed. Officer Grant then left the changeout room.
The remaining officers changed Shamond’s clothes and placed him in a six-point
restraint chair. Immediately afterward, as Jail officials were providing Shamond water, his
eyes rolled back, he became unresponsive, and he had difficulty breathing. At around 1:00
a.m., Shamond was taken to the nurses station where officers realized that Shamond was not
breathing and needed emergency care. Officer Tavera called twice for an automatic external
defribillator before it was brought to Shamond. According to Officer Tavera, “the medical
staff was not prepared to assist the inmate.”
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Shamond was eventually transported to Parkland Hospital (“Parkland”). When he
arrived, he was unresponsive and in critical condition. Shamond’s medical records from
Parkland note that he “likely suffered severe anoxic brain injury,” and that “[m]ulti-system
organ failure seems to be a result of shock state which is common following an arrest.” Id.
¶ 4.14. Shamond remained at Parkland in critical condition until his death on September 29,
2022. An autopsy followed, and in the custodial death report, the Medical Examiner
concluded that the cause and manner of death “remains undetermined.” Id. ¶ 4.19.
Lewis then brought this lawsuit. In her Fifth Amended Complaint (“Complaint”),
which is the operative pleading in this case, Lewis asserts claims under 42 U.S.C. § 1983
against the County for violating Shamond’s Fourth and Fourteenth Amendment rights;
against DCHD and “Unknown 1-7 Medical Providers”2 for violating Shamond’s Fourteenth
Amendment rights; and against Officer Grant and five other County detention officers for
using excessive force, in violation of Shamond’s Fourteenth Amendment rights and for
bystander liability.
2
Lewis alleges that she “does have the following partial names of Unknown medical
providers 1-7,” and lists the following:
1.
2.
3.
4.
5.
6.
7.
Nurse A. Johnson, LVN[;]
Y. Wilson, Provider;
C. Davis, Provider;
W. Patricia, RN;
K. Nmazue, RN;
M. Annah, LVN; and,
A. Ola, LVN
Compl. ¶ 3.05.
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The Medical Providers—i.e., Johnson, Nwazue, Davis, and Wilson, who are four of
the “Unknown 1-7 Medical Providers”—move the court to order Lewis to file a Rule 7 reply.
Officer Grant moves for summary judgment. Lewis opposes both motions and also moves
under Rule 56(d) for leave to supplement the summary judgment record. The court is
deciding the motions on the briefs, without oral argument.
II
The court turns first to the Medical Providers’ motion for a Rule 7(a) reply.
A
“[G]overnment officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982) (citation omitted). Qualified immunity likewise
applies to state officials sued for constitutional violations under § 1983. See id. at 818 n.30
(citing Butz v. Economou, 438 U.S. 478, 504 (1978)); Palmer v. Johnson, 193 F.3d 346, 351
(5th Cir. 1999). “The Supreme Court has characterized the doctrine as protecting ‘all but the
plainly incompetent or those who knowingly violate the law.’” Cozzo v. Tangipahoa Parish
Council–President Gov’t, 279 F.3d 273, 284 (5th Cir. 2002) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)).
“To decide whether defendants are entitled to qualified immunity, the court must first
answer the threshold question whether, taken in the light most favorable to plaintiff[] as the
part[y] asserting the injuries, the facts . . . alleged show that defendants’ conduct violated a
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constitutional right.” Ellis v. Crawford, 2005 WL 525406, at *3 (N.D. Tex. Mar. 3, 2005)
(Fitzwater, J.) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to rule
upon the qualified immunity issue must consider, then, this threshold question: Taken in the
light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right? This must be the initial inquiry.”)).3 “If no
constitutional right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201.
“[I]f a violation could be made out on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly established.” Id. “Even if the
government official’s conduct violates a clearly established right, the official is nonetheless
entitled to qualified immunity if his conduct was objectively reasonable.” Wallace v. Cnty.
of Comal, 400 F.3d 284, 289 (5th Cir. 2005). “The objective reasonableness of allegedly
illegal conduct is assessed in light of the legal rules clearly established at the time it was
taken.” Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992) (citing Anderson v. Creighton,
483 U.S. 635, 639 (1987)). “‘The defendant’s acts are held to be objectively reasonable
unless all reasonable officials in the defendant’s circumstances would have then known that
the defendant’s conduct violated the’ plaintiff’s asserted constitutional or federal statutory
3
Saucier’s two-step procedure for determining qualified immunity is no longer
mandatory. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). Courts are free to consider
Saucier’s second prong without first deciding whether the facts show a constitutional
violation. Id. The “decision does not prevent the lower courts from following the Saucier
procedure; it simply recognizes that those courts should have the discretion to decide whether
that procedure is worthwhile in particular cases.” Id. at 242.
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right.” Cozzo, 279 F.3d at 284 (quoting Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457
(5th Cir. 2001)).
“[W]hen a plaintiff sues a public official under § 1983, the district court must insist
on heightened pleading by the plaintiff.” Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996)
(citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc)). Although a plaintiff
may comply with ordinary pleading standards in his initial complaint, and need not anticipate
a qualified immunity defense, “[w]hen a public official pleads the affirmative defense of
qualified immunity in his answer, the district court may, on the official’s motion or on its
own, require the plaintiff to reply to that defense in detail” pursuant to Rule 7(a). Schultea,
47 F.3d at 1433. “[T]he reply must be tailored to the assertion of qualified immunity and
fairly engage its allegations.” Id. “Heightened pleading requires allegations of fact focusing
specifically on the conduct of the individual who caused the plaintiff[’s] injury.” Reyes v.
Sazan, 168 F.3d 158, 161 (5th Cir. 1999). The case should not be allowed to proceed unless
plaintiff can assert specific facts that, if true, would overcome the defense. See Morin, 77
F.3d at 120 (“Public officials are entitled to qualified immunity from suit under § 1983 unless
it is shown by specific allegations that the officials violated clearly established law.”);
Schultea, 47 F.3d at 1434 (“The district court need not allow any discovery unless it finds
that plaintiff has supported his claim with sufficient precision and factual specificity[.]”).
The “district court’s discretion not to [require a Rule 7(a) reply] is narrow indeed when
greater detail might assist.” Schultea, 47 F.3d at 1434; see also Reyes, 168 F.3d at 161
(“Faced with sparse details of claimed wrongdoing by officials, trial courts ought routinely
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require plaintiffs to file a reply under [Rule] 7(a) to qualified immunity defenses.”).
B
The court concludes that greater detail might assist in determining whether any of the
Medical Providers is entitled to qualified immunity.
In her complaint, Lewis has grouped all of the “unknown 1-7 Medical Providers”
together, alleging that
Defendants unknown 1-7 Medical Providers were legally
responsible to follow and implement the policies of the Dallas
County Sheriff’s Department and the United States Constitution
with respect to all matters concerning the medical care of
inmates in the Dallas County Jail. Defendants unknown 1-7
Medical Providers were responsible for ensuring that all medical
devices and equipment are available to immediately apply
medical care, and providing medical treatment to all inmates,
including Shamond Lewis, in compliance with federal and state
law, department and agency policies, and rules, regulations and
related standards of care, including the implementation of the
policies, procedures, practices, and customs and the acts and
omissions challenged by this suit.
Compl. ¶ 3.06 (bold font omitted). In setting out her cause of action against the Medical
Providers, Lewis alleges that the Medical Providers:
a. Fail[ed] to take reasonable or appropriate precautions to
prevent [Shamond]’s death;
b. Fail[ed] to provide appropriate medical evaluation and/or
treatment to [Shamond] to address his known, obvious medical
condition(s); and
c. Refus[ed] to treat [Shamond], ignoring his complaints,
intentionally treating him incorrectly, or engaging in similar
conduct that would evidence a wanton disregard for serious
medical needs.
Id. ¶ 6.04. And she pleads in the alternative that the Medical Providers “are liable for
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violating their applicable jail inmate standards of care and causing death and pre-death pain
and suffering of [Shamond].” Id. ¶ 6.05.
Lewis’ mostly conclusory allegations describe collective action not assigned to any
specific Medical Provider and fail to plead any conduct by any particular Medical Provider
that allegedly violated Shamond’s constitutional rights. Lewis’ “failure to attribute conduct
to any of the [Medical Providers] or to separate out the allegations against the various
[Medical Providers] makes it impossible to determine whether the defendant in question
acted in an objectively unreasonable manner in light of clearly established constitutional
standards.” Fisher v. Dallas Cnty., 299 F.R.D. 527, 532-33 (N.D. Tex. Apr. 18, 2014)
(Fitzwater, C.J.) (citing Waltman v. Payne, 535 F.3d 342, 346 (5th Cir. 2008)); see also
Bonham v. Winn, 2021 WL 1312634, at *2 (N.D. Tex. Apr. 8, 2021) (Fitzwater, J) (requiring
Rule 7(a) reply where “some allegations [in the complaint] describe collective action not
assigned to any particular officer” and plaintiff “has not pleaded specific facts demonstrating
a genuine issue as to the illegality of [one of the defendant officer’s] activity.”); Little v. Tex.
Att’y Gen., 2015 WL 1859457, at *4 (N.D. Tex. Apr. 23, 2015) (Fitzwater, J.) (requiring
Rule 7(a) reply where plaintiff referred to individual defendants “as undifferentiated
members of a collective group of ‘Defendants,’” and where, inter alia, “[t]here are several
. . . conclusory allegations in the amended complaint in which all the Individual Defendants
are lumped together.”).
Accordingly, under the authority granted in Schultea, 47 F.3d at 1433, the court orders
that, within 28 days of the date this memorandum opinion and order is filed, Lewis file a
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Rule 7(a) reply that alleges with particularity all material facts that she contends establish her
right to recover under § 1983 against each Medical Provider for violating a constitutional
right. See Reyes, 168 F.3d at 161. After Lewis files her Rule 7(a) reply, the Medical
Providers may move for judgment on the pleadings or for other relief available by motion,
if they have grounds to do so.
C
In the concluding sentence of her response to the Medical Providers’ motion, Lewis
states: “in the event the Court determines that a Rule 7(a) reply is necessary and that
discovery should also be limited, the Plaintiff would argue that discovery is necessary on the
issue of qualified immunity.” P. Resp. (ECF No. 78) at 9. To the extent that Lewis seeks
discovery on the issue of qualified immunity, the court denies her request at this time.
“One of the most salient benefits of qualified immunity is protection from pretrial
discovery, which is costly, time-consuming, and intrusive.” Backe v. LeBlanc, 691 F.3d 645,
648 (5th Cir. 2012) (citing Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986)). In this
circuit, it is established that “[d]iscovery . . . must not proceed until the district court first
finds that the plaintiff’s pleadings assert facts which, if true, would overcome the defense of
qualified immunity.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995);
Hutcheson v. Dall. Cnty., Tex., 994 F.3d 477, 481 (5th Cir. 2021).
[A] plaintiff seeking to overcome qualified immunity must plead
specific facts that both allow the court to draw the reasonable
inference that the defendant is liable for the harm he has alleged
and that defeat a qualified immunity defense with equal
specificity. After the district court finds a plaintiff has so pled,
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if the court remains “unable to rule on the immunity defense
without further clarification of the facts,” it may issue a
discovery order “narrowly tailored to uncover only those facts
needed to rule on the immunity claim.”
Backe, 691 F.3d at 648 (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.
1987)).
Because Lewis has not yet alleged sufficient facts to overcome the Medical Providers’
defense of qualified immunity, discovery in this case—even limited discovery—must be
stayed. See Vess v. City of Dallas, 2022 WL 1471432, at *2 (N.D. Tex. May 10, 2022)
(Fitzwater, J.) (citing cases); see also Hutcheson, 994 F.3d at 481 (“Before limited discovery
is permitted, a plaintiff seeking to overcome [qualified immunity] must assert facts that, if
true, would overcome that defense.”).
III
The court now considers Officer Grant’s motion for summary judgment.
A
When a summary judgment movant will not have the burden of proof on a claim at
trial, she can obtain summary judgment by pointing the court to the absence of evidence on
any essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). Once she does so, the nonmovant must go beyond her pleadings and designate
specific facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is
genuine if the evidence is such that a reasonable jury could return a verdict for the
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nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s
failure to produce proof as to any essential element renders all other facts immaterial. See
TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater,
J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little,
37 F.3d at 1076.
B
When qualified immunity has been raised, “[t]he moving party is not required to meet
[her] summary judgment burden for a claim of immunity.” Hathaway v. Bazany, 507 F.3d
312, 319 (5th Cir. 2007) (citation omitted). Rather, the movant need only plead her
good-faith entitlement to qualified immunity, whereupon “the burden shifts to the plaintiff
to rebut it.” Id. (emphasis and citation omitted); see also Gates v. Tex. Dep’t of Protective
& Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008) (noting that when government
official pleads qualified immunity, plaintiff must “rebut the defense by establishing that the
official’s allegedly wrongful conduct violated clearly established law and that genuine issues
of material fact exist regarding the reasonableness of the official’s conduct”). Once qualified
immunity is asserted, the burden shifts to the plaintiff to demonstrate the inapplicability of
the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)
(per curiam).
IV
Officer Grant asserts the defense of qualified immunity to Lewis’ Fourteenth
Amendment excessive force claim.
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A
Because Shamond was a pretrial detainee at the time of the alleged use of excessive
force, the Fourteenth Amendment’s Due Process Clause applies. Cope v. Cogdill, 3 F.4th
198, 206 (5th Cir. 2021) (“The constitutional rights of a pretrial detainee are found in the
procedural and substantive due process guarantees of the Fourteenth Amendment.” (citation
omitted)). Under the Fourteenth Amendment, pretrial detainees have a constitutional right
to be free from “the use of excessive force that amounts to punishment.” Kingsley v.
Hendrickson, 576 U.S. 389, 397 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10
(1989)). Use of force on a pretrial detainee is “excessive” if it is “objectively unreasonable.”
Id. at 392.
To determine whether an officer’s use of force was objectively reasonable, courts look
to the “facts and circumstances of each particular case.” Id. at 397 (quoting Graham, 490
U.S. at 396). The Supreme Court has emphasized that
A court must make this determination from the perspective of a
reasonable officer on the scene, including what the officer knew
at the time, not with the 20/20 vision of hindsight. A court must
also account for the legitimate interests that stem from the
government’s need to manage the facility in which the
individual is detained, appropriately deferring to policies and
practices that in the judgment of jail officials are needed to
preserve internal order and discipline and to maintain
institutional security.
Id. (quotation marks, brackets, and internal citations omitted). The Court also noted that the
following factors “may bear” on the reasonableness or unreasonableness of the force used:
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the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting.
Id. (“Kingsley factors”).
B
Officer Grant maintains that the pleadings and evidence do not establish constitutional
harm, contending, inter alia, that the complaint largely fails to allege that she, as opposed to
the group of jailers in the changeout room, used excessive force against Shamond; the “triple
hearsay” statement provided by a Tarrant County officer in an unofficial interview report4
is inconsistent with Officer Grant’s own testimony about her actual involvement with other
officers in their attempt to gain control of Shamond; the summary judgement evidence shows
that she responded to a call for assistance, saw Shamond on the floor resisting other officers’
attempts to handcuff him, assisted those officers by using her hands on Shamond’s legs, and
left the area and had no further involvement with Shamond after the other officers
handcuffed and gained control of Shamond; her use of force was only applied in the context
of responding to Shamond’s active resistance to being handcuffed and assisting other
detention officers in their use of force to handcuff him; and reviewing the incident from her
perspective and applying the Kingsley factors leads to the conclusion that her actions did not
4
The report states: “Officer Sawyer stated that Officer J. Tavera told her that Officer
A. Grant had stood on top of Shamond with both of her feet as officers were attempting to
gain control of him.” D. App. (ECF No. 72) at 14.
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amount to excessive force.5 She also argues that there is no clearly established law that
provided her with notice that the alleged use of force to gain control and enforce discipline
in order to handcuff Shamond was unconstitutional, or even objectively unreasonable under
the Fourteenth Amendment.
Lewis responds that Officer Grant’s use of force was unreasonable, unnecessary, and
excessive under the Kingsley factors. Based on evidence that Officer Grant stood on
Shamond’s legs while he was in a prone position, face down on the floor, and that Officer
Grant “might have moved up from the legs to the upper parts of [Shamond]’s body,” P. Br.
(ECF No. 84) at 7 (citing P. App. (ECF No. 85) at 22-23))6—Lewis contends that the amount
of force that Officer Grant used was disproportionate to the need for the use of force,
especially considering that Shamond only weighed 178 pounds, and there were as many as
nine other officers in the changeout room during the incident; there is no evidence that
Officer Grant made any effort to temper or limit the amount of force she used; that “one
mentally ill inmate’s resistance to having his clothes changed . . . did not create a ‘severe
security problem’ for the Jail that warranted such an immediate escalation of force,” id. at
16; and that, although Shamond was resisting officers’ attempts to change his clothes, he had
5
Officer Grant also argues that, to the extent that Lewis relies on a res ipsa loquitur
theory to establish a constitutional harm, that theory is inapplicable in the § 1983 qualified
immunity context. [D. Br. (ECF No. 71) at 13-14]
6
In her summary judgment reply, Officer Grant makes objections to Lewis’ summary
judgment evidence, including an objection to Officer Tavera’s statement under Fed. R. Evid.
801-803. Because the court is granting Officer Grant’s motion for summary judgment, it
overrules the objections without prejudice as moot.
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pulled away from Sergeant Loboda and “curled into a ball,” P. App. (ECF No. 85) at 6, and
there “is not a shred of evidence to suggest that [Shamond] affirmatively attacked the officers
to intentionally injure them,” P. Br. (ECF No. 84) at 17. Regarding the second prong of the
qualified immunity analysis, Lewis posits that the evidence shows “that [Officer] Grant stood
on [Shamond], using her entire body weight on him when he was on the floor, on his
stomach, surrounded by officers,” and that the Fifth Circuit has “long denied” qualified
immunity for jail officials in similar situations, citing Simpson v. Hines, 903 F.2d 400 (5th
Cir. 1990) as an example. P. Br. (ECF No. 84) at 18.
C
The court will assume arguendo that Lewis can produce admissible evidence that
Officer Grant stood with her entire body weight on Shamond while he was on the floor, on
his stomach, surrounded by officers. The court will further assume that this conduct violated
Shamond’s Fourteenth Amendment right as a pretrial detainee to be free from the objectively
unreasonable use of force. Even having made these assumptions, the court concludes that
Officer Grant is entitled to qualified immunity on Lewis’ § 1983 excessive force claim. This
is so because it was not clearly established at the time of the incident that Officer Grant’s
alleged use of such force under the circumstances—i.e., in the context of the detention
officers’ attempts to gain control of Shamond after he resisted being handcuffed—violated
the Fourteenth Amendment.
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1
Under the second prong of the qualified immunity analysis,7 courts consider “whether
the defendant’s conduct was objectively reasonable in light of the clearly established law at
the time of the incident.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008); see also Wood
v. Moss, 572 U.S. 744, 758 (2014) (“The ‘dispositive inquiry,’ we have said, ‘is whether it
would have been clear to a reasonable officer’ in the [defendant’s] position ‘that [her]
conduct was unlawful in the situation [she] confronted.’” (brackets omitted) (quoting
Saucier, 533 U.S. at 202)). To make this determination, the court must
ask whether the law so clearly and unambiguously prohibited
[the defendant’s] conduct that every reasonable official would
understand that what [she] is doing violates the law. To answer
that question in the affirmative, [the court] must be able to point
to controlling authority—or a robust consensus of persuasive
authority—that defines the contours of the right in question with
a high degree of particularity.
Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc) (brackets and internal
quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). While “a
case directly on point” is not required for the court to conclude that the law is clearly
established, “existing precedent must have placed the statutory or constitutional question
beyond debate.” al-Kidd, 563 U.S. at 741. Moreover, a court may not “define clearly
established law at a high level of generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular circumstances that he or she faced.”
7
Under Pearson, 555 U.S. at 236, the court may consider the second Saucier prong
first.
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Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (internal quotation marks and citation
omitted). The Fifth Circuit has explained that “[t]he central concept is that of ‘fair warning’:
The law can be clearly established ‘despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional rights.’” Kinney v.
Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730,
740 (2002)).
2
Lewis has failed to point to any controlling authority that would have put Officer
Grant on notice that standing on Shamond’s legs with her entire body weight while the other
officers in the changeout room attempted to control and handcuff him constituted an
objectively unreasonable use of force in violation of Shamond’s Fourteenth Amendment
rights. She cites just one case, Simpson, to support the assertion that “a reasonable officer
would have concluded that [Officer] Grant used excessive force on [Shamond] by placing
her entire body weight on him in violation of his Fourteenth Amendment rights.” P. Br.
(ECF No. 84) at 19. But Simpson is factually distinguishable.
In Simpson when Kenneth Simpson (“Simpson”), a pretrial detainee, resisted the
defendant officers’ efforts to search his pockets, one of the officers
put his arm around Simpson’s neck while the other officers
grabbed Simpson’s arms and legs. The officers forced Simpson
to the floor and attempted to handcuff him while [Officer]
Broussard, nicknamed “Beef” due to his large size, sat on
Simpson’s chest. Unable to restrain Simpson in this position,
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they rolled him on his stomach, cuffed his hands behind his
back, and cuffed his legs.
Simpson, 903 F.2d at 402. In an audio recording of the incident, Simpson can be heard
asking the officers to “lighten up,” and then begging for help and screaming. Id. Later that
morning, Simpson was discovered dead in his cell. Id. According to the medical examiner’s
report, he died “as a result of asphyxia due to trauma to [the] neck.” Id. (alteration in
original).
The plaintiff also produced evidence that Simpson “could have died of
asphyxiation resulting from the pressure exerted when Broussard sat on his chest.” Id. at
403. The Fifth Circuit affirmed the district court’s denial of the defendant officers’ motion
to dismiss or alternatively for summary judgment on qualified immunity, finding “ample
evidence that the defendant officers who entered Simpson’s cell reasonably should have
known that in subduing and searching Simpson they maliciously used force which was
grossly disproportionate to the need and was calculated to injure Simpson severely.” Id.
Unlike Simpson, however, there is no evidence in this case, or even an allegation, that
Officer Grant stood on, or put her entire weight on, Simpson’s chest, possibly causing
asphyxiation. Nor has Lewis cited any other case law that would have put Officer Grant on
notice that standing on, or putting her entire weight on, Simpson’s legs in an attempt to bring
him under control constituted an objectively unreasonable use of force. Cf. Brown v.
Coulston, 463 F.Supp.3d 762, 777 (E.D. Tex. 2020) (“[P]recedent within this circuit shows
. . . that there is no clearly established law that a police officer may not handcuff or otherwise
use his body weight to restrain a student, including a student who has special needs and is
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repeatedly disruptive, combative, noncompliant, and resisting the officer’s commands.”).
Accordingly, under the second step of the qualified immunity analysis, the court holds that
Officer Grant is entitled to qualified immunity as to Lewis’ § 1983 excessive force claim.
V
Lewis moves under Rule 56(d) to supplement the summary judgment record. In
support of her motion, she maintains that she should be permitted to conduct six depositions8
to obtain additional information to properly respond to Officer Grant’s motion.
A
“Rule 56(d) functions as a safe harbor that has been built into the rules so that
summary judgment is not granted prematurely.” State Farm Fire & Cas. Co. v. Whirlpool
Corp., 2011 WL 3567466, at *2 (N.D. Tex. Aug. 15, 2011) (Fitzwater, C.J.) (citing Union
City Barge Line v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987)). The Rule
states:
[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, [she] cannot present facts essential to justify
[her] opposition, the court may: (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or declarations or
to take discovery; or (3) issue any other appropriate order.
Rule 56(d).
In qualified immunity cases, the court “use[s] a two-step procedure ‘under which a
8
Lewis “asks for the following depositions” to obtain information regarding Officer
Grant’s assertion of qualified immunity: Detective Williams, Sergeant Shelton, Officer
Grant, Susan Marie Sawyer, Officer Tavera, and Sergeant Laboda. P. Br. (ECF No. 88) at
3.
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district court may defer its [qualified immunity] ruling if further factual development is
necessary to ascertain the availability of that defense.’” Hutcheson, 994 F.3d at 481 (quoting
Backe, 691 F.3d at 648).
First, the court determines whether the pleadings assert facts
which, if true, would overcome the defense of [qualified
immunity]. Second, if the pleadings assert such facts, the
district court issues a narrowly tailored discovery order to
uncover only those facts needed to rule on the immunity claim.
Id. (citations and internal quotation marks omitted).
B
Lewis maintains that a “main focus” of the discovery she seeks is on Officer Grant’s
“restraining techniques of standing on [Shamond]’s back that led to [Shamond]’s death.” P.
Br. (ECF No. 88) at 1. She contends that “there remains an identifiable fact issue on whether
[Officer] Grant was standing on Lewis during the restraint, whether there was a cover-up,
and whether members of the Dallas County Sheriff’s Office directed [Officer Tavera] to
change his report to hide the constitutional excessive force violations that led to [Shamond]’s
death.” Id. at 4. And she alleges that
Plaintiff’s claims, as well as Tarrant County’s investigation
revealed that [Officer] Grant stood on [Shamond]’s back, not his
legs. This is a restraint that can cause positional asphyxiation,
which explains how [Shamond] was essentially dead by the time
he reached the hospital. As shown in our Response, this type of
restraint by standing on the back of a person is not allowed. Our
medical expert will likely be able to relate the autopsy and
injuries to the unlawful restraint and death.
Id. at 5.
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“Before limited discovery is permitted, a plaintiff seeking to overcome [qualified
immunity] must assert facts that, if true, would overcome that defense.” Hutcheson, 994 F.3d
at 481 (citing Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014)). “It is not enough
broadly to seek information that might impeach the defendants’ version of events.” Id. Not
only has Lewis failed to plead that Officer Grant stood on Shamond’s back or that his death
was caused by positional asphyxiation, she has not shown how these facts, if true, would
overcome Officer Grant’s qualified immunity defense. This is because, even if Officer Grant
did stand on Shamond’s back, and even if Shamond did die as a result of positional
asphyxiation, Lewis has still failed to point to any controlling authority that would have put
Officer Grant on notice that standing on Shamond’s back, under the circumstances of this
case, constituted an objectively unreasonable use of force that violated Shamond’s
Fourteenth Amendment rights.9
Accordingly, the court denies Lewis’ motion for leave to supplement the discovery
record.
VI
Officer Grant also moves for summary judgment, on qualified immunity grounds, on
Lewis’ bystander liability claim. Lewis has not responded to this ground of Officer Grant’s
motion. Although this failure does not permit the court to enter a “default” summary
9
Nor does she explain how the other fact issues she identifies—whether there was a
cover-up and whether members of the Dallas County Sheriff’s Office directed Officer Tavera
to change his report to hide the constitutional excessive force violations—even relate to
Officer Grant’s assertion of qualified immunity.
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judgment on Lewis’ bystander liability claim, see, e.g., Tutton v. Garland Independent
School District, 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.), “[a] summary
judgment nonmovant who does not respond to the motion is relegated to her unsworn
pleadings, which do not constitute summary judgment evidence,” Bookman v. Shubzda, 945
F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne
Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). And
[i]f a party fails . . . to properly address another party’s assertion
of fact as required by Rule 56(c), the court may . . . (2) consider
the fact undisputed for purposes of the motion [and] (3) grant
summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the movant is entitled to it[.]
Rule 56(e)(2), (3).
Because Lewis has not responded to this ground of Officer Grant’s motion for
summary judgment with specific evidence that would raise a fact issue on the question of
Officer Grant’s entitlement to qualified immunity, the court grants Officer Grant’s motion
for summary judgment on Lewis’ § 1983 claim for bystander liability.
*
*
*
Accordingly, for the reasons explained, the court grants the Medical Providers’ motion
for a Rule 7 reply, directs Lewis to file a Rule 7(a) reply as to the Medical Providers within
28 days of the date this memorandum opinion and order is filed, and stays discovery as to the
Medical Providers until further order of the court. The court denies Lewis’ motion for leave
to supplement the summary judgment record, grants Officer Grant’s motion for summary
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judgment, and dismisses Lewis’ action against Officer Grant by Rule 54(b) final judgment
filed today.
SO ORDERED.
October 23, 2024.
_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
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