Florence v. Galveston Police Officer Clemente Garcia III et al

Filing 280

OPINION AND ORDER denying 253 Motion for Summary Judgment; denying 271 Motion for Summary Judgment; denying 275 Cross Motion for Summary Judgment.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
THOMAS FLORENCE, #1729344
VS.
OFFICER CLEMENTE GARCIA III
and SGT. CHAPMAN

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CIVIL ACTION NO. G-11-134

OPINION AND ORDER
Before the Court is the Motion for Summary Judgment of Defendants, Archie
Chapman and Clemente Garcia, III; the Motion seeks the dismissal of the last remaining
claims of Plaintiff, Thomas Florence. Also before the Court are Florence’s “Motion for
Summary Judgment” and “Cross Motion for Summary Judgment.” Accordingly, the
Court now issues this Opinion and Order.
RELEVANT FACTS
On March 27, 2010, under the belief that an active warrant existed for Florence’s
arrest, Defendant Garcia and another Galveston police officer, Alnasir Mohammud, set up
surveillance in an unmarked vehicle near Florence’s residence. During their surveillance,
Garcia received a call from Florence’s wife informing him that Florence had called a
friend to come pick him up and that Florence would be wearing a wig to disguise himself
when he left the house to get in his friend’s car. Shortly after the call the officers saw a
maroon Kia vehicle arrive and Florence, who was wearing a wig, exit his home and get

into the passenger side of the car. When the Kia drove away, the officers followed it and
while in pursuit called Defendant, Sergeant Archie Chapman, who was on patrol in a
marked police car, and told him to execute a stop of the Kia for traffic violations they
claimed to have witnessed.
Chapman then began to follow the Kia. He activated his emergency lights and his
video recorder, but the Kia did not stop. Instead, after a short time, Florence jumped from
the Kia and ran into the front yard of a residence. Chapman steered his car towards the
fleeing Florence. After a few steps, Florence slipped and fell to the ground. As he was
getting up Chapman’s car jumped the curb and drove into the front yard toward Florence.
The front headlight area of the patrol car struck Florence in the right elbow and side, but
Florence continued to flee. Chapman then discharged his taser in an attempt to stop him.
The taser dart missed Florence, but after hearing the discharge, Florence stopped and
dropped to the ground. Chapman then handcuffed Florence without any resistence. While
Florence was still lying face down on the ground, Garcia and Mohammud came over.
Garcia looked down at Florence and said “Remember me, mother fucker.” As Florence
lifted his head a few inches to look toward Garcia, Garcia “kneed” him in the right side
of the face. Garcia’s knee caused a cut just above Florence’s right eye. Florence was then
taken to the Galveston County Jail.

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On March 3, 2011, Florence sued a host of people alleging various claims,
including a claim for the use of excessive force by Garcia and Chapman at the scene of his
arrest.

On November 18, 2013, then District Judge Gregg Costa dismissed all of

Florence’s claims except the use of force claims against Garcia and Chapman. Garcia and
Chapman now seek summary judgment as to those remaining claims.
The Court will not recite the well-known summary judgment standard except to note
that the evidence of the non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); the
Court may not make credibility determinations, weigh evidence, or draw from the facts
legitimate inferences for the movant. Dibidale of La., Inc. v. American Bank & Trust
Co., 916 F.2d 300, 307-08 (5th Cir. 1990)
Citing Scott v. Harris, 550 U.S. 372 (2007), the Defendants argue that the video
recording shows to an undeniable certainty that it was Florence who ran into the police car
and that Chapman, obviously, had no intent to run the car into him. Having now viewed
the video a number of times, this Court disagrees. After Florence slipped and fell, he got
up and continued to flee. It also appears that the car jumped the curb and was steered
toward his path. Whether Chapman simply intended to block Florence’s way cannot be
determined, but it appears that Florence was struck by the front of the car within seconds
after it was driven across the front lawn. It also appears that Florence was not struck in

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the face or the head by the car. Consequently, whether Chapman intended to hit Florence
with the car presents a question of fact.
After being hit by the car, the remainder of Florence’s apprehension is not depicted
on the video recording. According, whether Garcia maliciously kneed Florence in the face
cannot be conclusively determined; therefore, it presents a swearing match between
Florence and the officers present at the scene, a quintessential fact question.
Because Chapman’s intent and actions are unclear, the Court cannot excuse the
striking of Florence with the police car as an “unfortunate result(s) of the use of necessary
force” or an objectively reasonable method of perfecting an apprehension.
Insofar as Garcia argues that his medical evidence proves to a certainty that Garcia’s
alleged “kneeing” of Florence could not have caused his eye injury, the Court is unable
to concur. However questionable Florence’s allegations may seem to the Defendants, the
Court believes the issue presents a fact question.
Having determined that genuine issues of material fact exist, the Court is precluded
from granting the Defendants’ Motion for Summary Judgment (Instrument no. 253) and
it is, therefore, DENIED.
PLAINTIFF’S CROSS MOTIONS FOR SUMMARY JUDGMENT
As to Florence’s Motion, the Court will not address any claims urged by Florence
that have previously been dismissed. Turning to the use of force claims, the Court is now
compelled to accept the Defendants’ factual allegations as true. By doing so, there is a
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genuine issue of material fact as to whether hitting Florence with the car was an accident,
in which case there can be no liability. Brower v. City of Inyo, 489 U.S. 593, 596-97
(1989)

There is also a question of material fact as to whether the alleged kneeing by

Garcia ever happened at all. These fact issues preclude granting Florence’s Motions
(Instrument no. 271 and 275) and they, likewise, are DENIED.
DONE at Galveston, Texas, this

30th

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day of December, 2014.