Freeman v. City of Fort Worth, Texas et al
Filing
48
ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO DISMISS, AND GRANTING IN PART AND DENYING IN PART MOTIONS TO STRIKE granting in part and denying in part 43 Motion to Strike ; granting in part and denying in part 46 Motion to Strike ; granting 13 Motion for Summary Judgment. ; granting 21 Motion for Summary Judgment. ; granting 23 Motion for Summary Judgment. ; granting 29 Motion to Dismiss... the Court concludes that the individual defendants are entitled to qualified immunity as a matter of law and that section 101.106 of the Texas Civil Practice and Remedies Code mandates dismissal of any and all state-law tort claims against the individual defendants... All claims in the above-styled and -numbered cause against defendants Jefferson, Preston, and Rowell are DISMISSED WITH PREJUDICE. See Order for further specifics. (Ordered by Judge Terry R Means on 7/7/2011) (krg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ANTWONE FREEMAN
VS.
CITY OF FORT WORTH, TEXAS,
et al.
§
§
§
§
§
§
CIVIL ACTION NO. 4:10-CV-888-Y
ORDER GRANTING MOTIONS FOR
SUMMARY JUDGMENT AND MOTION TO DISMISS, AND
GRANTING IN PART AND DENYING IN PART MOTIONS TO STRIKE
Plaintiff Antwone Freeman filed the instant lawsuit under 42
U.S.C. § 1983 against the City of Fort Worth, Texas, and three of
its police officers, Yatashka Jefferson, J.D. Preston, and K.D.
Rowell.
The officers invoked the defense of qualified immunity,
and the Court entered a scheduling order (doc. 9) staying all
discovery in this case pending resolution of the qualified-immunity
issue.
The officers now move for summary judgment on their
qualified-immunity defenses (docs. 13, 21, 23) and the City moves
to dismiss all state-law claims against the individual defendants
(doc. 29). In addition, officers Preston and Rowell move to strike
(docs. 43, 46) certain portions of Freeman’s summary-judgment
evidence.
After review, the Court will grant the motions for
summary judgment, grant the motion to dismiss, and grant in part
and deny in part the motions to strike.
I.
Evidentiary Objections
A.
Freeman’s Objections
Before turning to the merits of the dispositive motions, the
Court will address the parties’ evidentiary objections, beginning
with Freeman’s.1
Freeman raises some twenty-seven objections to
the affidavits of Jefferson, Preston, Rowell, and Tammy Padmore,
the Wal-Mart manager who was on duty when the incident in question
occurred.
These objections can be divided into three classes.
In the first class, Freeman challenges numerous statements as
being
“overly
broad,”
“vague,”
“ambiguous,”
“speculative,”
“conclusory” or some combination thereof. Many of these objections
are without merit and can be summarily overruled.
And because of
the great number of these objections, the Court will not discuss
each one individually.
A few examples, however, will illustrate
the nature of the objections and demonstrate why they should be
overruled.
Freeman challenges Jefferson’s statement that “Freeman then
got in line and began complaining loudly about having to wait,” on
grounds that the phrase “complaining loudly” is “[o]verly broad,
vague, [and] ambiguous.”
(Jefferson Aff. 2; Pl.’s Resp. Br. to
Jefferson’s Mot. Summ. J. 7.)
Similarly, Freeman objects to
Preston’s statement that Freeman “tried to free the child who
appeared to be in danger due to the way Freeman was grabbing him,”
1
In supporting or responding to a motion for summary judgment, “[a] party
may object that the material cited [by the opposing party] to support or dispute
a fact cannot be presented in a form that would be admissible in evidence.” Fed.
R. Civ. P. 56(c)(2).
2
on grounds that “appeared to be in danger” is an “[o]verly broad”
and “vague” phrase.
Jefferson’s
Mot.
(Preston Aff. 2, at ¶ 4; Pl.’s Resp. to
Summ.
J.
13.)
But
in
the
Court’s
view,
“complaining loudly” and “appeared to be in danger” are commonlyused phrases that are sufficiently clear to enable a reasonable
factfinder to understand what the affiant means.
Therefore, these
objections--and those like them--are without merit and are easily
overruled.
The first class does contain one objection, however, that the
Court finds persuasive.
Freeman objects to Preston’s statement
that Freeman’s “actions clearly and intentionally put the child in
the middle of that situation for no reason but to use the child as
a shield,” on the ground that the statement is “speculative.”
(Preston Aff. 3, at ¶ 3; Pl.’s Resp. to Jefferson’s Mot. Summ. J.
13.) Certainly, Preston is without personal knowledge of Freeman’s
motivation in reaching for his nephew.
That is, Preston cannot
know whether Freeman acted “intentionally.”
Accordingly, this
statement is EXCLUDED, and Freeman’s objection to the statement is
SUSTAINED.
See Fed. R. Evid. 602; Fed. R. Civ. P. 56(c)(4).
But
for the reasons set forth above, all other objections in class one
are OVERRULED.
In the second class of objections, Freeman challenges the
admissibility of various statements on the ground that those
statements are “fact question[s] for the jury.”
3
(Pl.’s Resp. to
Jefferson’s Mot. Summ. J. 16.)
excluding evidence.
This, of course, is not a basis for
To the contrary, that a fact question exists
invites the production of testimonial evidence to aid the factfinder in making accurate findings on that issue.
Thus, the
objections in class two are OVERRULED.
In the third class of Freeman’s objections, he objects to a
number of statements on the ground that the affiant “knowingly
misstates” the facts.
Freeman contends that this is evident from
Wal-Mart security-camera footage (“the Wal-Mart video”).
(App. to
Jefferson’s Mot. Summ. J. Ex. A-2.; App. to Preston’s Mot. Summ. J.
Exs. A-B; App. to Rowell’s Mot. Summ. J. Exs. A-B.)
review the Court is unable to agree.
But after
Freeman’s objections on this
point simply reflect his characterization of the events captured on
the Wal-Mart video.
that
should
be
His objections, therefore, go to the weight
given
the
affiants’
admissibility of those statements.
statements,
not
the
Accordingly, all objections in
class three are OVERRULED.2
B.
Preston and Rowell’s Motions to Strike
Preston and Rowell initially object to a number of documents
cited by Freeman in his summary-judgment briefing because those
documents are not included in Freeman’s summary-judgment appendices
2
Even were the Court to sustain Freeman’s objections and thereby exclude
the defendants’ affidavits, the record would nevertheless contain evidence of
many of the facts sworn to in the defendants’ affidavits. See, e.g., App. to
Pl.’s Resp. to Jefferson’s Mot. Summ. J. Ex. 3.
4
and
have
not
been
provided
to
the
defendants
for
review.3
Obviously, if a document has not been filed with the Court, it is
not summary-judgment evidence.
See Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998) (“The party opposing summary
judgment is required to identify specific evidence in the record
and to articulate the precise manner in which that evidence
supports his or her claim.” (citing Forsyth v. Barr, 19 F.3d 1527,
1537 (5th Cir. 1994)) (emphasis added)).
For that reason, the
report of “Harold Warren” and the affidavits of “Adams” and
“Salazar” are EXCLUDED, and Preston and Rowell’s objections on this
point are SUSTAINED.4
Preston and Rowell also object to the admission of Freeman’s
original
state-court
petition,
which
Freeman
incorporate by reference into his response brief.
attempts
to
Unverified and
unsworn pleadings are not competent summary-judgment evidence. See
Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 544 n.13
(5th Cir. 2002), overruled on other grounds by Grand Isle Shipyard,
Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009).
Therefore, this objection is SUSTAINED, and Freeman’s state-court
3
Freeman did not file a response to the motions to strike.
4
Preston and Rowell also object to Freeman’s attempt at incorporating his
response to Jefferson’s summary-judgment motion into his response to their
motions.
But this objection is futile given that Freeman filed a virtually
identical response brief and appendix to each of their motions as well.
5
petition is EXCLUDED.5
In addition, Preston and Rowell object to the affidavit of Dan
G. Lewis, which is included in each of Freeman’s summary-judgmentresponse appendices.
Preston and Rowell contend that the Lewis
affidavit should be excluded under Federal Rules of Evidence 702
and 1002.
And after review, the Court agrees.
Rule 702 provides
that if “specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue,” a
qualified expert witness may testify “if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.”
Fed. R. Civ. P. 702.6
In his affidavit, Lewis offers opinion
testimony based on his “security training and experience.”
Aff. 1, at ¶ 1.)
(Lewis
But nowhere in his affidavit does Lewis identify
who he is or what his qualifications are.7
Moreover, even assuming
5
This, of course, does not mean that Freeman’s state-court petition is
removed from the docket. It simply means that the facts alleged in the statecourt petition will not be entered into evidence.
6
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
district judges are to act as “gate-keepers,” ensuring that only relevant and
reliable expert testimony is admitted into evidence. See Pipitone v. Biomatrix,
Inc., 288 F.3d 239, 243-44 (5th Cir. 2002).
“This gate-keeping obligation
applies to all types of expert testimony, not just scientific testimony.” Id.
(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)).
7
In paragraph two of his affidavit, Lewis states that his “qualifications
for presenting the requested opinions are reflected in [his] [c]urriculum
[v]itae.” (Lewis Aff. 1, at ¶ 2.) But no “curriculum vitae” is provided.
6
Lewis is qualified to give expert testimony on “security” matters,
he does not disclose his analysis or otherwise explain the methods
he used in arriving at his conclusions.
The Court is, therefore,
unable to evaluate the sufficiency of Lewis’s qualifications or the
reliability of his methods.
In view of these shortcomings, the
Court concludes that Lewis’s purported expert testimony must be
excluded under Rule 702.
Furthermore, even assuming Lewis’s testimony were compatible
with Rule 702, much of the Lewis affidavit would be inadmissible in
light of Rule 1002.
Also known as the “best-evidence rule,” Rule
1002 states that “[t]o prove the content of a writing, recording,
or photograph, the original writing, recording, or photograph is
required.”
Fed. R. Civ. P. 1002.
Thus, because much of Lewis’s
testimony seeks to describe the contents of the Wal-Mart video, it
is inadmissible under the best-evidence rule.8
Accordingly, in
light of Rules 702 and 1002, the Lewis affidavit is EXCLUDED in its
entirety.
Preston and Rowell’s final evidentiary challenge is to the
admissibility of Freeman’s own affidavit.
They contend that it
should be excluded as conclusory, self-serving, and internally
inconsistent.
But these contentions go to the weight that should
8
Preston and Rowell also contend that Lewis’s testimony implicates issues
of law and thus invades the province of the Court. Because the Court finds the
Lewis affidavit inadmissible on other grounds, the Court need not reach this
question.
7
be
given
Freeman’s
affidavit.
of
not
the
admissibility
of
the
Preston and Rowell’s objections on this point are,
thus, OVERRULED.
portions
affidavit,
the
The Court does conclude, however, that the
Freeman
affidavit
purporting
to
explain
the
contents of the Wal-Mart video should be excluded under the
best-evidence rule.
See Fed. R. Evid. 1002.
This objection is,
therefore, SUSTAINED and those statements are EXCLUDED.
And in
view of the foregoing, Preston and Rowell’s motions to strike are
GRANTED in part and DENIED in part.
That said, the Court also concludes, however, that it should
accord no probative value to the Freeman affidavit.
Preston
and
Rowell
point
out,
the
affidavit
is
First, as
internally
inconsistent, and Freeman has offered no explanation for his selfcontradiction.
For example, in paragraphs 4, 5, and 7 of his
affidavit, Freeman testifies that Jefferson, Preston, and Rowell
each informed him that he was “going to jail.”
at ¶¶ 4, 5, 7.)
(Freeman Aff. 2-4,
But elsewhere in paragraph 7, Freeman testifies
that he had not been told that he was going to be arrested.
(Id.
at 4-5, ¶ 7.) Additionally, in paragraph 4, Freeman testifies that
Jefferson told him to go outside. (Id. at 2-3, ¶ 4.) Subsequently,
however, in paragraph 7, Freeman testifies that Jefferson never
asked him to leave the store and never told him that he was free to
leave or that the Wal-Mart staff wanted him to leave.
¶ 7.)
(Id. at 5,
Therefore, Freeman’s affidavit is self-contradictory and
8
insufficient to create a dispute of fact as to any material issues.
See Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir.
1984) (“[T]he nonmovant cannot defeat a motion for summary judgment
by submitting an affidavit [that] directly contradicts, without
explanation, his previous testimony.” (citing Kennett-Murray Corp.
v. Bone, 622 F.2d 887, 894 (5th Cir. 1980))).
Second, in addition to being self-contradictory, the Freeman
affidavit is inconsistent with the Wal-Mart video and the audio
recording of Jefferson’s call to the dispatcher (“the Jefferson
audio clip”). (Jefferson’s App. Exs. A1-A2; Preston’s App. Exs. AC; Rowell’s App. Exs. A-B.) For example, in his affidavit, Freeman
states that he was “not yelling loudly or screaming” and that,
while waiting for a sergeant to arrive, he “calmly positioned
[him]self in the customer service area.”
4, 6.)
(Freeman Aff. 3-4, at ¶¶
But in the Wal-Mart video, Freeman can be seen walking to
the front of the line past other customers, pacing around the
customer-service area, and gesturing with his arms at persons offscreen.
(Jefferson’s App. Ex. A-2; Preston’s App. Exs. A-B;
Rowell’s App. Exs. A-B.)
And in the Jefferson audio clip, Freeman
can be heard in the background yelling incessantly.
(Jefferson’s
App. Ex. A-1; Preston’s App. Ex. C.)
Freeman also insists in his affidavit that he did not create
a disturbance at Wal-Mart. (Freeman Aff. 2, 4, at ¶¶ 3, 6.)
But
the Wal-Mart video reveals that a number of customers turned to
9
stare at Freeman during the incident in question and that Padmore,
the on-duty shift manager, came over to speak with Freeman.
(Jefferson’s App. Ex. A-2; Preston’s App. Exs. A-B; Rowell’s App.
Exs. A-B.) Moreover, the Jefferson audio clip reveals that Freeman
was shouting in the store.
App. Ex. C.)
(Jefferson’s App. Ex. A-1; Preston’s
Thus, Freeman’s affidavit testimony is at odds with
the video and audio evidence on the record and should be accorded
no probative value.
See Nickols v. Morris, 705 F. Supp. 2d 579,
585 (N.D. Tex. 2010) (“[W]here a videotape exists that discredits
the nonmoving party’s version of events so that no reasonable jury
could believe it, a court is required to view the facts in the
light depicted by the videotape.”).
II.
Background
This case arises out of an incident that occurred at a Wal-
Mart store in Fort Worth, Texas, on November 16, 2008, involving
Freeman and officers Jefferson, Preston, and Rowell.
Freeman had
come to Wal-Mart’s customer-service area purportedly to retrieve
his wallet, which he had left at the store on a prior occasion.
(Pl.’s Br. in Supp. of Resp. to Jefferson’s Mot. Summ. J. 1 (doc.
31).)
Freeman was accompanied by his two nephews, ages one and
four, whom he was pushing in a shopping cart.
(Id.; Jefferson’s
App. Ex. A-2; Preston’s App. Exs. A-B; Rowell’s App. Exs. A-B; App.
to Freeman’s Resp. to Jefferson’s Mot. Summ. J. Ex. 1.)
10
Upon his
arrival, Freeman went directly to the service desk, bypassing a
number of customers waiting in line.
(Jefferson’s App. Exs. A-2;
Preston’s App. Exs. A-B; Rowell’s App. Exs. A-B; Jefferson Aff. 2;
Freeman’s Resp. App. Ex. 1.)
After a member of Wal-Mart’s staff
directed Freeman to the end of the line, Freeman got in line and,
according to the Jefferson affidavit, began to complain about
having to wait. (Jefferson’s App. Exs. A-2; Preston’s App. Exs. AB; Rowell’s App. Exs. A-B; Freeman’s Resp. App. Ex. 1; Jefferson
Aff. 2.)
across
After some time, Freeman began to walk back and forth
the
service
area
while
speaking
in
a
loud
voice.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-B; Rowell’s App.
Exs. A-B; Jefferson Aff. 2; Freeman’s Resp. App. Ex. 1.)
Jefferson, who was working off-duty as a security guard at the
time,
approached
Freeman
and
instructed
him
to
calm
down.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-B; Rowell’s App.
Exs. A-B; Jefferson Aff. 2; Freeman’s Resp. App. Ex. 1.) According
to the Jefferson affidavit, after Freeman declined to abide by
Jefferson’s
instructions,
Jefferson
directed
outside to continue their discussion.
again,
apparently,
Freeman
refused.
to
step
(Jefferson Aff. 2.)
Once
(Id.)
Freeman
Following
this
confrontation, Freeman asked to speak with Jefferson’s superior.
(Jefferson Aff. 2; Padmore Aff. 2.)
In accordance with Freeman’s
wishes, Jefferson radioed his dispatcher for a sergeant and also
11
requested backup.9
(Jefferson Aff. 2; Jefferson’s App. Ex. A-1;
Preston’s App. Ex. C.) In addition, Freeman himself called “9-1-1”
to request a “ranking sergeant.”
(Preston’s App. Ex. D; Jefferson
Aff. 2.)
A short time later, Preston arrived to assist Jefferson.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-B; Rowell’s App.
Exs. A-B; Freeman’s Resp. App. Ex. 1; Jefferson Aff. 2.; Preston
Aff. 1-2; Padmore Aff. 2.)
Jefferson explained the situation to
Preston, and the two remained with Freeman while awaiting the
arrival of a sergeant.
(Jefferson’s App. Exs. A-2; Preston’s App.
Exs. A-B; Rowell’s App. Exs. A-B; Freeman’s Resp. App. Ex. 1;
Preston Aff. 2.)
Padmore, Walmart’s on-duty shift manager, also
came over to speak with Freeman during this time and attempted to
calm him down.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-
B; Rowell’s App. Exs. A-B; Freeman’s Resp. App. Ex. 1; Padmore Aff.
1-3.)
Rowell, a sergeant, eventually arrived and obtained from
Jefferson and Preston a description of what had so far occurred.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-B; Rowell’s App.
Exs. A-B; Freeman’s Resp. App. Ex. 1; Jefferson Aff. 2-3; Rowell
Aff. 2; Padmore Aff. 2.) Jefferson apparently informed Rowell that
he intended to arrest Freeman.
(Jefferson’s App. Exs. A-2;
9
An audio clip of Jefferson’s call to the dispatcher has been offered
into evidence. (Jefferson’s App. Ex. A-1; Preston’s App. Ex. C.) In the clip,
Freeman can be heard yelling in the background for the duration of the call.
(Jefferson’s App. Ex. A-1; Preston’s App. Ex. C.)
12
Preston’s App. Exs. A-B; Rowell’s App. Exs. A-B; Freeman’s Resp.
App. Ex. 1; Jefferson Aff. 2-3; Rowell Aff. 2; Padmore Aff. 2.)
Rowell then approached Freeman and attempted to speak with him
briefly.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-B;
Rowell’s App. Exs. A-B; Freeman’s Resp. App. Ex. 1; Rowell Aff. 2.)
According to the officers, Freeman refused to cooperate, so Rowell
instructed Preston and Jefferson to arrest him.10
(Rowell Aff. 2;
Jefferson Aff. 3; Preston Aff. 2; Padmore 2.)
As the officers approached Freeman to place him under arrest,
Freeman grabbed his one-year-old nephew from the shopping cart with
his free hand (the other was holding his phone) and held his nephew
in front of him.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs.
A-B; Rowell’s App. Exs. A-B; Freeman’s Resp. App. Ex. 1; Jefferson
Aff. 3; Preston Aff. 2; Rowell Aff. 2; Padmore Aff. 2-3.)
A
struggle thereafter ensued, and Freeman’s nephew was wrestled away
and removed from the tussle by Padmore.
(Jefferson’s App. Exs. A-
2; Preston’s App. Exs. A-B; Rowell’s App. Exs. A-B; Freeman’s Resp.
App. Ex. 1; Jefferson Aff. 3; Preston Aff. 3; Rowell Aff. 2-3;
Padmore Aff. 3.)
At some point during the struggle, Freeman head-
butted Preston.
(Preston’s App. Ex. N; Jefferson Aff. 3; Preston
10
Freeman denies that he was creating a disturbance when the officers
arrested him and insists that the officers had no reason to approach him at all.
As the Court has explained, however, this assertion is simply at odds with the
Wal-Mart video and the Jefferson audio clip, as well as the affidavit testimony
of Padmore, a relatively disinterested third party. And in light of the Court’s
decision to accord no probative value to the Freeman affidavit, there is no
evidence on the record to genuinely dispute the defendants’ evidence of Freeman’s
disruptive and uncooperative conduct, which is consistent with the Wal-Mart video
and the Jefferson audio clip.
13
Aff. 5; Rowell Aff. 3.)
ground.11
The officers then wrestled Freeman to the
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-B;
Rowell’s App. Exs. A-B; Freeman’s Resp. App. Ex. 1; Jefferson Aff.
3; Preston Aff. 3; Rowell Aff. 3; Padmore Aff. 3.)
When Freeman continued to resist the officers’ efforts at
arresting
him,
Rowell
called
for
the
use
of
a
taser
gun.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-B; Rowell’s App.
Exs. A-B; Freeman’s Resp. App. Ex. 1; Jefferson Aff. 3; Preston
Aff. 3; Rowell Aff. 3; Padmore Aff. 3.)
Preston, therefore, twice
delivered electric shocks from his taser gun to the back of
Freeman’s legs.12
3.)
(Jefferson Aff. 3; Preston Aff. 3; Rowell Aff.
Subsequently, Freeman was handcuffed and taken into custody.
(Jefferson’s App. Exs. A-2; Preston’s App. Exs. A-B; Rowell’s App.
Exs. A-B; Freeman’s Resp. App. Ex. 1; Padmore Aff. 3.)
Freeman was later charged with the offenses of “injury to a
child” and “assault of a public servant.”
K.)
(Preston’s App. Exs. J-
Those charges, however, were eventually dropped.
(App. to
11
Freeman contends that “[w]hile on the ground[,] his face was pushed
into the floor so hard [it] knocked out one of his permanent front teeth[,]
causing immediate pain and bleeding.” (Pl.’s Resp. Br. to Jefferson’s Mot. Summ.
J. 4.) But given the Court’s decision concerning the Freeman affidavit’s lack
of probative value, there is no evidence on the record that genuinely supports
this assertion. Moreover, a post-incident photo of Freeman offered by Preston
does not reveal the injuries of which Freeman complains. (Preston’s App. Ex. N.)
12
Preston used a “TASER X26" electronic control device (“ECD”) in “drivestun” mode. (Preston Aff. 3.) Apparently, when in drive-stun mode, the ECD does
not shoot projectiles or cause neuromuscular incapacitation, as it would in
“probe” mode. (Id. at 3-4.) Instead, it is a pain-compliance tool that causes
instant pain upon contact. (Id.)
14
Freeman’s Resp. to Jefferson’s Mot. Summ. J. Ex. 4.)
On November
15, 2010, Freeman filed the instant lawsuit against the defendants
under 42 U.S.C.A. § 1983 (West 2011).
The officers contend that
they are entitled to qualified immunity and now move for summary
judgment on that issue, and the City seeks dismissal of the statelaw claims against the individual defendants under Section 101.106
of the Texas Civil Practice and Remedies Code.
III.
Motions for Summary Judgment
A.
Legal Standard
When the record establishes “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law,” summary judgment is appropriate. Fed. R. Civ. P.
56(a). “[A dispute] is ‘genuine’ if it is real and substantial, as
opposed to merely formal, pretended, or a sham.”
Bazan v. Hidalgo
Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (citation omitted).
A
fact is “material” if it “might affect the outcome of the suit
under governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
To demonstrate that a particular fact is, or cannot be,
genuinely in dispute, a party must either (1) cite to particular
parts of materials on the record (e.g., affidavits), (2) show that
the materials cited by the adverse party do not establish the
presence or absence of a genuine dispute, or (3) show that the
adverse party cannot produce admissible evidence to support the
15
fact. Fed. R. Civ. P. 56(c)(1). Although the Court “need consider
only the cited materials, . . . it may consider other materials in
the record.”
Fed. R. Civ. P. 56(c)(3).
In evaluating whether
summary judgment is appropriate, the Court “views the evidence in
the light most favorable to the nonmovant, drawing all reasonable
inferences in the nonmovant’s favor.”
Sanders-Burns v. City of
Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citation omitted)
(internal quotation marks omitted).
"[I]f no reasonable juror
could find for the non-movant,” summary judgment should be granted.
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir.
2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
B.
Analysis
“The
doctrine
of
qualified
immunity
protects
government
officials ‘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.’”
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“The qualified
immunity inquiry thus involves two prongs that must be answered
affirmatively for an official to face liability: (1) whether the
defendant’s
conduct
violated
a
constitutional
right,
and
(2)
whether the defendant’s conduct was objectively unreasonable in
light of clearly established law at the time of the violation.”
Terry v. Hubert, 609 F.3d 757, 761 (5th Cir. 2010) (citing Pearson,
129 S. Ct. at 816).
The Court may begin its inquiry with either
16
prong.
Id. (citing Pearson, 129 S. Ct. at 818).
“When a defendant invokes qualified immunity, the burden
shifts to the plaintiff to demonstrate the inapplicability of the
defense.”
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th
Cir. 2009) (citing McClendon v. City of Columbia, 305 F.3d 314, 323
(5th Cir. 2002) (en banc)).
“Because qualified immunity is ‘an
immunity from suit rather than a mere defense to liability[,] it is
effectively lost if a case is erroneously permitted to go to
trial.’”
Pearson, 129 S. Ct. at 815 (quoting Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)).
“[t]he
plaintiff’s
allegations--are
taken
qualified immunity.”
Thus, at the summary-judgment stage,
evidentiary
as
true
in
assertions--but
the
court’s
not
mere
evaluation
of
Terry, 609 F.3d at 761 (citing Manis v.
Lawson, 585 F.3d 839, 842 (5th Cir. 2009); see also Pearson, 129 S.
Ct. at 815 (“[T]he ‘driving force’ behind creation of the qualified
immunity doctrine was a desire to ensure that ‘insubstantial claims
against government officials will be resolved prior to discovery.’”
(quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987))).
1.
Freeman
Whether Defendants Violated a Constitutional Right
contends
that
Jefferson,
Preston,
and
Rowell
unlawfully detained him and used excessive force in arresting him,
thereby violating his Fourth-Amendment right to be free from
17
unreasonable seizures.13
In addition, Freeman asserts bystander-
liability, due-process, and conspiracy claims.
“Both unlawful detention and excessive force implicate the
Fourth Amendment’s proscription against unreasonable seizures.”
Peterson v. City of Fort Worth, 588 F.3d 838, 845 (5th Cir. 2009).
With regard to Freeman’s unlawful-detention claim, it is not
apparent whether Freeman is challenging the initial decision to
detain
him
excessive.
as
unmerited
or
the
length
of
his
detainment
as
Based on the only credible summary-judgment evidence
before the Court, Jefferson had probable cause to detain Freeman
initially for disturbing the peace,14 and Preston and Rowell were
entitled to rely on Jefferson’s account of the events in providing
assistance.
See U.S. v. Armendariz-Mata, 949 F.2d 151, 153 (5th
Cir. 1991) (recognizing that “officers may base probable cause upon
information relayed to them by fellow officers”). Furthermore, the
officers did not detain Freeman any longer than was necessary to
effectuate his arrest.
The Wal-Mart video and the Jefferson audio
clip, along with the Padmore affidavit, make clear that Freeman had
13
In his state-court petition, Freeman appears to base his excessiveforce claims on both the Fourth and Fourteenth Amendments. (Pl.’s Original Pet.
9-10, at ¶ 24.)
His claim, however, is to be analyzed under the Fourth
Amendment--not the Fourteenth.
See Graham v. Connor, 490 U.S. 386 (1989)
(holding that “all claims that law enforcement officers have used excessive
force--deadly or not--in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard”).
14
Under Texas Penal Code § 42.01(5), “[a] person commits an offense if
he intentionally or knowingly . . . makes unreasonable noise in a public place.”
Tex. Penal Code § 42.01(5) (West 2011).
18
created a disturbance prior to being approached by any of the
officers and that he was uncooperative with the subsequent attempts
of the officers to resolve the situation peacefully.
(Jefferson’s
App. Exs. A-1, A-2; Preston’s App. Exs. A-C; Rowell’s App. Exs. AB; Jefferson Aff. 2; Freeman’s Resp. App. Ex. 1; Padmore Aff. 1-3.)
Moreover, Freeman was subsequently indicted for the offense of
injury to a child and aggravated assault of a public servant, and
a magistrate later determined that there was probable cause for
Freeman’s arrest.
(Preston’s App. Exs. H-K.)
This broke the
causal chain between the officers and the allegedly unlawful
detainment.
See Deville v. Marcantel, 567 F.3d 156, 170 (“It is
well settled that if facts supporting an arrest are placed before
an independent intermediary such as a magistrate or grand jury, the
intermediary’s decision breaks the chain of causation for false
arrest, insulating the initiating party.” (citations omitted)
(internal quotation marks omitted)). Because Freeman has presented
no credible evidence raising a dispute of material fact as to his
alleged unconstitutional detainment, the defendants are entitled to
judgment on that claim.
Moreover, Freeman’s excessive-force claims likewise fail. “To
prevail on [his] excessive force claim, the plaintiff[] must
establish ‘(1) [a significant] injury (2) [that] resulted directly
and only from a use of force that was clearly excessive, and (3)
the excessiveness of which was clearly unreasonable.’”
Ontiveros
v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009)
19
(quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).
“An
injury is generally legally cognizable when it results from a
degree of force that is constitutionally impermissible--that is,
objectively unreasonable under the circumstances.”
Collier v.
Montgomery, 569 F.3d 214, 218 (5th Cir. 2009) (quoting Bush v.
Strain, 513 F.3d 492, 501 (5th Cir. 2008)).
And “[t]he objective
reasonableness of the force, in turn, depends on the facts and
circumstances of the particular case, such that the need for force
determines how much force is constitutionally permissible.” Id. at
218-19 (quoting Bush, 513 F.3d at 218.) The reasonableness inquiry
involves considering “whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.”
Graham
v. Connor, 490 U.S. 386, 396 (1989).
According to Freeman, Preston’s use of the taser against him,
along with the officers’ collective effort in tackling him to the
ground, constituted excessive force.15
But in the Court’s view,
there is no material fact, disputed or undisputed, that would
support Freeman’s claim of excessive force, given the circumstances
surrounding his arrest.
The Wal-Mart video, the Jefferson audio
15
As previously noted,
Freeman contends that “[w]hile on the ground[,]
his face was pushed into the floor so hard [it] knocked out one of his permanent
front teeth[,] causing immediate pain and bleeding.”
(Pl.'s Resp. Br. to
Jefferson’s Mot. Summ. J. 4.)
But given the Court’s determination that the
Freeman affidavit should be accorded no probative value, there is no evidence on
the record that genuinely supports this assertion. And while the Wal-Mart video
is inconclusive on this point, a photo offered by Preston does not reveal the
injuries that Freeman complains of. (Preston's App. Ex. N.)
20
clip, the officers’ affidavits, and the Padmore affidavit all
indicate that Freeman created a disturbance in the store, that
Freeman refused to cooperate with the officers or to calm down,
that he vigorously resisted arrest even after being wrestled to the
ground, and that Preston ceased using the taser once Freeman was
successfully handcuffed.
(Jefferson’s App. Exs. A, A-1, A-2, B-D;
Preston’s App. Exs. A-C, E-G; Rowell’s App. Exs. A-B; Freeman’s
Resp. App. Ex. 1.)
In addition, there is undisputed evidence that
Freeman head-butted Preston and that Freeman placed his one-yearold nephew in harm’s way.
(Jefferson Aff. 3; Preston Aff. 2-3, 5;
Rowell Aff. 2-3; Padmore Aff. 2-3.)
And regardless of whether the
officers were accurate in all of their calculations concerning the
threat
that
Freeman
posed
to
others’
safety,
“[t]he
‘reasonableness’ of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396.
In view of these undisputed facts, the Court concludes that no
fact-finder could reasonably second-guess the officers’ actions in
detaining Freeman, wrestling him to the ground, and tasering him to
effect their arrest.
See Scott v. Harris, 550 U.S. 372, 380 (2007)
(“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.”)
Freeman has thus not placed before this Court a dispute of material
21
fact as to any element of his excessive-force claims, and they fail
as a matter of law.
Freeman also asserts claims for bystander liability against
each of the officers for failing to prevent use of the taser
against him.
Without a finding of excessive force, however, there
is nothing for which the bystander officers may be liable.
See
Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995) (observing that
an officer may be liable under § 1983 when the officer is “present
at the scene and does not take reasonable measures to protect a
suspect from another officer’s use of excessive force” (emphasis
added)).
Moreover, even assuming excessive force was applied,
Freeman’s bystander claim against Jefferson nevertheless fails
because
it
was
inopportune
and
unrealistic
for
Jefferson
to
intervene and prevent the application of the taser. See Vasquez v.
Chacon, No. 3:08-CV-2046-M, 2009 WL 2169017, at *6 (N.D. Tex. July
20, 2009) (“An officer must have had a reasonable opportunity to
realize
the
excessive
nature
of
the
force
and
a
realistic
opportunity to stop it in order for the duty to intervene arise.”
(citations omitted)).
at
all,
but
administered
rather
the
And Preston and Rowell were not bystanders
were
the
application
ones
of
who
the
actually
taser
gun.
ordered
and
Therefore,
Freeman’s bystander-liability claims fail as a matter of law.
Finally, Freeman asserts due-process and conspiracy claims.
However,
while
he
includes
those
claims
in
his
state-court
petition, he does not address those claims in his Rule 7 reply or
22
his response brief.
Because he has presented no evidence or
argument on these claims, they fail as a matter of law.
See Fed.
R. Civ. P. 56(c)(1)(e) (providing that a court may award summary
judgment
where
the
non-movant
“fails
to
properly
support
an
assertion of fact” so long as “the motion and supporting materials-including the facts considered undisputed--show that the movant is
entitled to it”).
2.
Whether Defendants Acted Unreasonably in Light of
Clearly Established Law
Even assuming that constitutional violations occurred, Freeman
has failed to show that the defendants acted unreasonably in light
of clearly established law at the time of his arrest.
Indeed, a
number of courts faced with facts involving similar uses of taser
guns by officers have concluded that no § 1983 violation occurred.
See, e.g., Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004)
(holding that use of a taser gun to effectuate plaintiff’s arrest
during a traffic stop did not constitute excessive force where
plaintiff was “hostile, belligerent, and uncooperative”); Gruver v.
Borough of Carlisle, No. 4:CV 05-1206, 2006 WL 1410816, at *4-5
(M.D. Pa. May 19, 2006) (holding that officers’ detention and use
of
taser
on
defendant
in
convenient
store
was
objectively
reasonable where plaintiff resisted the officers’ attempts to
restrain him).
IV. Motion to Dismiss
23
Section 101.106 of the Texas Civil Practice and Remedies Code
provides that “[t]he filing of a suit under [the Texas Tort Claims
Act
(“TTCA”)]
against
a
governmental
unit
constitutes
an
irrevocable election by the plaintiff and immediately and forever
bars any suit or recovery by the plaintiff against any individual
employee of the governmental unit regarding the same subject
matter.”
Tex. Civ. Prac. Rem. Code § 101.106(a) (West 2011).
Thus, “[i]f a suit is filed under [the TTCA] against both a
governmental unit and any of its employees, the employees shall
immediately
be
dismissed
governmental unit.”
on
the
filing
of
a
motion
by
the
Tex. Civ. Prac. Rem. Code. § 101.106(e).
The
phrase “‘under this chapter’ does not limit the statute’s reach to
tort claims for which the TTCA waives immunity.” Bustos v. Martini
Club Inc., 599 F.3d 458, 463 (5th Cir. 2010).
TTCA
is
the
only
avenue
for
common-law
Rather, because the
recovery
against
a
governmental unit, “if a plaintiff brings virtually any state
common law tort claim against both a governmental unit and its
employees, § 101.106(e) will allow the employee defendants to be
dismissed if the governmental unit so moves.”
Id.
Thus, because the City has so moved, any state-law tort claims
that Freeman is asserting against the individual defendants should
be dismissed.16
16
Freeman did not file a response to the City’s motion to dismiss.
24
V.
Conclusion
In light of the foregoing, the Court concludes that the
individual defendants are entitled to qualified immunity as a
matter of law and that section 101.106 of the Texas Civil Practice
and Remedies Code mandates dismissal of any and all state-law tort
claims
against
the
individual
defendants.
Accordingly,
the
officers’ motions for summary judgment (docs. 13, 21, 23) and the
City’s motion to dismiss (doc. 29) are GRANTED.
All claims in the
above-styled and -numbered cause against defendants Jefferson,
Preston, and Rowell are DISMISSED WITH PREJUDICE.
SIGNED July 7, 2011.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
25
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