Eiteman v. City of Rosenberg
Filing
49
MEMORANDUM AND ORDER granting 34 MOTION to Dismiss and for Summary Judgment (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROBERT STEVEN EITEMAN,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
CITY OF ROSENBERG,
Defendant.
CIVIL ACTION NO. H-11-4633
MEMORANDUM AND ORDER
pending is Defendant City of Rosenberg's (the "Cityll) Motion
to Dismiss and for Summary Judgment
(Document No.
34).
After
carefully considering the motion, response, and applicable law, the
Court concludes as follows.
I.
On December 9,
Steven Eiteman
2009,
Background
at about 1:50 a.m.,
("Plaintiff ll ),
a
Plaintiff Robert
63-years-old off-duty
City of
Richmond police officer who worked in Richmond's canine unit, was
pulled
over
("Pannell ll )
observed
by
of
Defendant's
employee,
the Rosenberg
Plaintiff
driving
Officer
Police Department,
without
a
front
Justin
who
license
Pannell
states he
plate
in
violation of Texas law. 1 Plaintiff testified in his oral deposition
1
Document No. 45, ex. A at I, 2; Document No. 34, ex. H at
50:16-18; id., ex. E at 1.
that he pulled over to the shoulder, stopped, opened his door, got
out of his car, put his hands up, and started walking slowly toward
Pannell. 2
Plaintiff,
who usually wears
two hearing aids,
was
wearing only one at the time because the battery in the second one
was
dead. 3
Pannell was not acquainted with Plaintiff and was
unaware at the time that Plaintiff is hard of hearing.4
Pannell
yelled at
Plaintiff
to
get
back
in his
car,
but
Plaintiff did not do so before hearing Pannell yell for Plaintiff
to "put your hands on the vehicle.
ff5
Pannell reports he repeatedly
told Plaintiff to come put his hands on the hood of Pannell's squad
car.6
Plaintiff, believing that Pannell was ordering him to put
his hands on Plaintiff's car, turned and walked back toward his car
to do
SO.7
Pannell interpreted Plaintiff's action as defying his
instructions and perceived Plaintiff's walking back toward his own
car as a potential risk of harm and/or flight.8
Pannell approached
Plaintiff from behind and threw him to the ground as Plaintiff
2
Document No. 34, ex. H at 58:13-18, 59:7-60:6, 63:24-64:12.
3
Id., ex. H at 61:11-16, 84:18-87:12.
4 Id., ex. H at 94:15-17; id., ex. E at 1; Document No. 46,
ex. D at 14:10-15.
5
Document No. 34, ex. H at 61:2-16, 64:15-25, 65:10-21.
6
Id., ex. E at 2.
7
Id., ex. H at 65:24-66:13; Document No. 45, ex. A at 3.
8
Id., ex. E at 2.
2
reached to put his hands on the roof of his car.9
Pannell pushed
Plaintiff forward on his stomach and attempted to bring Plaintiff's
hands behind his back to handcuff him.10
Pannell struck Plaintiff
once in the shoulder with his hand, telling him not to push up, and
then handcuffed Plaintiff.11
Pannell remained on top of Plaintiff,
with his knee on the back of Plaintiff's neck and head, while he
called for backup. 12
asphal t. 13
Pannell pushed Plaintiff's
face
into the
This was all recorded on Pannell's dashboard camera. 14
9 Document No. 34., ex. H at 67:13-25.
10
Id., ex H at 69:13-70:13, 71:1-21., ex. E at 2.
11 Id.,
ex. H at 77:20-78:10, ex. E at 2.
In his deposition,
Plaintiff testified that he was already handcuffed when Pannell
struck him. Id. at 74:18-21. This is clearly contradicted by the
video evidence, which unambiguously shows that Pannell's single
blow occurred before he had handcuffed either of Plaintiff's hands.
"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."
Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) (reversing decision
denying summary judgment when clear video evidence contradicted
plaintiff's testimony).
Document No. 34, ex. H at 77:2-19; id., ex. 1.
Pannell
testified in his affidavit that he used no further force after the
handcuffs were applied. Id., ex. E at 2. This is contradicted not
only by Plaintiff's testimony, but also by the video evidence,
which shows that Pannell did briefly get off Plaintiff after
handcuffing him, but when Plaintiff began to rise, Pannell again
pushed him down and held him with his knee while he called for
backup. Id., ex I.
12
13
Document No. 34, ex. H at 77:11-16.
14
The Court has reviewed the video recording,
Document No. 34, ex. I and at Document No. 46, ex. E.
3
found
at
Pannell then had Plaintiff stand up, brought him to Pannell's
car,
and
told him
to
get
in
the
back
seat. 15
difficulty getting his
legs into the vehicle .16
Pannell
"tase"
threatened
to
him
if
he
did
Plaintiff
had
At one point,
not
comply,
but
Plaintiff does not allege that Pannell used excessive force after
that
time. 17
After
Plaintiff
was
secured
in
the
backseat
of
Pannell's car, backup officers arrived at the scene. 18
Pannell transported Plaintiff to the Ford Bend County Jail,
where he was charged with driving while intoxicated and resisting
arrest .19
Both
charges
were
eventually
dismissed
by
the
prosecution, the former after the County Court found that there was
no probable cause for Plaintiff's detention and arrest. 20
On December 5, 2011, Plaintiff filed this lawsuit, which the
City of Rosenberg removed to this Court.21
alleges
that
the
City
wrongful detention,
has
a
pattern,
The Original Petition
policy
and practice
of
false arrest and use of excessive force in
violation of 42 U. s. C.
§
and conspiracy to violate civil
1983,
15 Document No. 34, ex.
H
at 83:2-7, 91:2-5; id. , ex. E at 2 .
16 rd. , ex.
H
at 90:23-91:9, 92:12-22; id. , ex. E at 2.
17 rd. , ex.
H
at 93:1-19, 94:3-5.
18 rd. , ex.
H
at 90:13-18, id. , ex. E at 2.
19 rd. , ex. E at 2 .
20 rd.
21 Document No. 1, ex. 1
~ A (Orig. Pet. )
4
rights
under
42
U.S.C.
§
1985,
which
resulted
in
Plaintiff's
"detention, arrest, prosecution, and use of force without probable
cause,
and for which Plaintiff seeks recovery of his damages. 22
II
II.
The
City
Evidentiary Objections
objects
to
portions
of
Plaintiff's
affidavit,23
alleging that they impermissibly contradict Plaintiff's earlier
sworn
testimony,
conclusions. 24
by
foundation,
or
improperly
state
legal
A party may not defeat a motion for summary judgment
introducing
testimony.
lack
an
affidavit
that
contradicts
his
prior
sworn
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495
(5th Cir. 1996).
Furthermore, "[a] witness may testify to a matter
only if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.
prove
personal
testimony.
II
knowledge
may
FED. R. EVID. 602.
also inadmissible.
consist
of
the
Evidence to
witness's
own
Legal conclusions by Plaintiff are
See Owen v. Kerr-McGee Corp., 698 F.2d 236, 240
(5th Cir. 1983).
The
City's
following
specific
statements
in
objections
Plaintiff's
22 Id.
23 Document No. 45, ex. A.
24 Document No. 48 at 1- 8.
5
are
SUSTAINED
Affidavit,
as
which
to
the
directly
"No sobriety test"; 25 "At no
contradict his deposition testimony:
time prior to arriving at the police station was there any type of
field sobriety test conducted.,,26
The
City's
specific
following statements,
objections
are
SUSTAINED
which lack foundation:
as
to
the
"Officer Pannell's
stop was pretext and in support of the City of Rosenberg's stated
policy of unconstitutional unfettered officer discretion,,;27 "It is
clear that discretion is the true policy of the Rosenberg Police
Department.,,;28 "At no time did officer Pannell even consider using
the
standard
violator
traffic
stop
contact/or proper
procedure,
police
called
procedure
'the
as
Seven
taught
by
Step
law
enforcement academies across the state.,,,29
The City additionally objects to Plaintiff's filing in the
summary judgment evidence the entire deposition transcript of Chief
of
Police Robert Gracia, 30 as
to which it argues
Plaintiff has
25 Document No. 45, ex. A at 6. Cf. Document No. 34, ex. H at
(testifying that Eiteman perceived Pannell to be
administering on Plaintiff a field sobriety test incorrectly).
88:4-89:15
26 Document No. 45, ex. A at 7. Cf. Document No. 34, ex. H at
(testifying that Eiteman perceived Pannell to be
administering a field sobriety test on Plaintiff incorrectly).
88:4-89:15
27 Id. at 8 .
28
Id. at 10.
29 Id. at 3.
30
Document No. 45, ex. B.
6
failed to show relevance. 31
It is incumbent upon Plaintiff to cite
to specific testimony from the transcript if it has pertinence to
the Motion for Summary Judgment.
See Jones v.
Sheehan, Young &
Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996).
Exclusion of the
transcript
and
itself
is
therefore
unnecessary,
the
City's
objection to its being filed is OVERRULED.
Finally, the City specifically objects to Deposition Exhibit
5 to Plaintiff's Exhibit B, which appears to be a timeline prepared
by Plaintiff's attorney purporting to describe the sequence of
events
displayed
in
the
dash
camera
recording. 32
The
City's
objection for lack of foundation is SUSTAINED.
All of these portions to which objections are sustained are
therefore STRICKEN, and the remaining objections are OVERRULED.
III.
A.
Motion for Summary Judgment
Legal Standard
Rule 56 (a)
provides that "[t] he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
31
Document No. 48 at 8-9.
32
Id. at 10.
Plaintiff's Exhibit B is located at Document
No. 45-19 at 10 of 11 to Document No. 45-20 at 1 of 11
7
-----------------
FED. R. CIV. P. 56 (a)
matter of law."
this
burden,
the
burden shifts
to
Once the movant carries
.33
the
summary judgment should not be granted.
nonmovant
to
show that
Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
A party opposing
a properly supported motion for summary judgment may not rest upon
mere allegations or denials in a pleading,
and unsubstantiated
assertions that a fact issue exists will not suffice.
Id.
~[TJhe
nonmoving party must set forth specific facts showing the existence
of a
'genuine' issue concerning every essential component of its
case."
~A
party asserting that
a
fact
cannot be or is
genuinely disputed must support the assertion by:
particular parts of materials in the record [.
.J
i
(A)
citing to
or (B) showing
that the materials cited do not establish the absence or presence
of a
genuine dispute,
or that an adverse party cannot produce
admissible evidence to support the fact."
~The
FED. R. CIV. P. 56 (c) (1).
court need consider only the cited materials,
consider other materials in the record./I
evidentiary burden."
~through
it may
Id. 56(c) (3)
In considering a motion for summary judgment,
court must view the evidence
but
the district
the prism of the substantive
Anderson v. Liberty Lobby, Inc., 106 S. Ct.
33
The City combines its Motion to Dismiss and Motion for
Summary Judgment in a single motion, which includes extensive
citations to evidence not contained in the pleadings. Plaintiff's
response is styled as a response only to a motion for summary
judgment, and also contains citations to evidence not contained in
the pleadings. The motion(s) are therefore analyzed as one under
the summary judgment standard. SEE FED. R. Crv. P. 12(d), 56.
8
2505, 2513 (1986).
All justifiable inferences to be drawn from the
underlying facts must be viewed in the light most favorable to the
nonmoving party.
Corp.,
Matsushi ta Elec.
106 S. Ct. 1348, 1356
Indus.
(1986).
Co.
v.
Zenith Radio
"If the record, viewed in
this light, could not lead a rational trier of fact to find" for
the nonmovant, then summary judgment is proper.
Kelley v. Price-
Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993).
On the other
hand, if "the factfinder could reasonably find in [the nonmovant' s]
favor,
then summary judgment is
standards of Rule 56 are met,
improper."
Even if
the
a court has discretion to deny a
motion for summary judgment if it believes that "the better course
would be to proceed to a full trial."
Anderson,
106 S.
Ct. at
2513.
B.
Analysis
1.
Section 1985 Claim
Section 1985 establishes a cause of action for victims of a
conspiracy by "two or more persons" to interfere with the victims'
civil rights.
42 U.S.C. § 1985.
The Fifth Circuit has identified
the necessary elements of the claim:
To state a claim under 42 U.S.C. § 1985(3), a plaintiff
must allege: (1) a conspiracy involving two or more
persons; (2) for the purpose of depriving, directly or
indirectly, a person or class of persons of the equal
9
protection of the laws; and (3) an act in furtherance of
the conspiracy; (4) which causes injury to a person or
property, or a deprivation of any right or privilege of
a citizen of the United States. In so doing, the
plaintiff must show that the conspiracy was motivated by
a class-based animus.
Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994).
Beyond
his conclusory allegations that there was a conspiracy, Plaintiff
does not identify the alleged conspirators or present any evidence
that any of the City's employees conspired with any person outside
the City.
He presents no evidence that anyone conspired for the
purpose of depriving him of civil rights.
Finally,
he has not
presented evidence of class-based animus or identified any class
against which the animus was supposedly directed.
The City is
therefore entitled to summary judgment on Plaintiff's Section 1985
claims as a matter of law.
2.
Section 1983 Claim
The Civil Rights Act of 1866 creates a private right of action
for redressing the violation of federal law by those acting under
color of state law.
42 U.S.C.
§
1983; Migra v. Warren City Sch.
Dist. Bd. of Educ., 104 S. Ct. 892, 896
(1984).
Section 1983 is
not itself a source of substantive rights but merely provides a
10
method
for
vindicating
federal
rights
conferred
elsewhere.
Albright v. Oliver, 114 S. Ct. 807, 811 (1994).
In his Original Petition,
violations under the Fourth,
Plaintiff alleges constitutional
Sixth,
and Fourteenth Amendments. 34
The City contends that each claim is unsupported by the evidence. 35
The City further contends that there is no actionable Section 1983
claim because, even if Pannell violated Plaintiff's constitutional
rights, there is no evidence that the violation was the result of
an official policy or custom. 36
A municipality can be held liable under § 1983 only when the
See City
municipality itself causes a constitutional deprivation.
of Canton v. Harris, 109 S. Ct. 1197, 1203 (1989)
i
Monell v. Dept.
of Soc. Servs., 98 S. Ct. 2018, 2037-38 (1978).
This requires the
execution of an official city policy or custom which results in the
injury made the basis of the
v.
Brown,
2035-36.
117 S.
Ct.
1382,
§
1983 claim.
1388
(1997)
i
Bd. of County Comm'rs
Monell,
98
S.
Ct.
at
Proof of municipal liability sufficient to satisfy Monell
requires:
(1)
an
official
policy
or
custom,
of
which
(2)
a
policymaker can be charged with actual or constructive knowledge,
and
(3)
34
a constitutional violation whose "moving force"
Document No.1, ex. 1
~~
is that
1,2,7,9,12,21,23-24.
35 Document No.
34 at 9 -13. The Original Petition also alleged
violations of the Eighth Amendment, but Plaintiff now concedes that
he has no Eighth Amendment claim. Document No.1, ex. 1 ~ 4.
36
Document No. 34 at 9-21.
11
policy or custom.
(5th Cir.
2002).
Pineda v.
City of Houston,
liable under
§
at
1394
requirements
of
[improperly]
("Where
a
court
fails
to
culpability and causation,
collapses
respondeat
into
See Snyder v.
1983.
Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998)
Ct.
see also Brown, 117
i
adhere
to
municipal
superior
rigorous
liability
liability")
Canton, 109 S. Ct. at 1208 (O'Connor, J., concurring)
§
328
A high standard of proof is required before a
municipali ty can be held
S.
291 F.3d 325,
i
(stating that
1983 liability should not be imposed absent a showing
of "a high
degree of fault on the part of city officials") .
For purposes of municipal liability, an official policy may be
(1)
a
policy
persistent,
which,
statement,
ordinance,
or
regulation,
or
(2)
"a
widespread practice of City officials or employees,
although
not
authorized
by
officially
adopted
and
promulgated policy, is so common and well-settled as to constitute
a custom that fairly represents municipal policy."
City of Houston, 237 F.3d 567, 579 (5th Cir. 2001)
Piotrowski v.
(quoting Webster
v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984)
(en bane)).
"The description of a policy or custom and its relationship to the
underlying
constitutional
violation,
moreover,
conclusorYi it must contain specific facts."
Texas City,
130 F.3d 162,
167
(5th Cir.
cannot
be
Spiller v. City of
1997).
Here,
Plaintiff
does not identify an official written policy sanctioning unlawful
arrests,
unreasonable
seizures,
or
12
excessive
force.
Nor does
Plaintiff provide specific facts or evidence supporting a custom or
ftpersistent, widespread practice" that was the moving force behind
the constitutional violations that Plaintiff alleges were committed
by Officer Pannell.
The City has produced its police department's written General
Orders that govern proper police conduct during traffic stops. 37
Plaintiff does not challenge any of the City's written policies as
being
unconstitutional
or
behavior by Officer Pannell,
the
cause
of
any
but instead argues that they were
either not complied with or were inapplicable. 38
that
ft [t] he
true
policy of
unconstitutional
the
City of
Plaintiff contends
Rosenberg
is
'officer
discretion' and it was, is, and will be, implemented indifferently
to
known
civil
evidentiary
rights."39
support
in
the
This
conclusory
summary
judgment
argument
has
no
record.
To
the
contrary, the record consists of uncontroverted evidence that the
37 Document No. 34-7 at 29-78 of 78.
38 Document No. 45 at 13. Plaintiff asserts that Chief Gracia
testified ft[n]o less than 30 times" that the City's written
policies were not complied with or inapplicable.
Id. at 13.
Plaintiff's citations to excerpts of the Chief's testimony do not
support this assertion.
Id. at 7-8.
39 Document No. 45 at 11.
Plaintiff further alleges a policy
of officer discretion ftto arrest citizens for traffic conditions
the officers cause, resulting in a 'catch 22' for the citizens of
the state of Texas."
Id. at 18.
The Court need not consider
whether this putative policy is unconstitutional as Plaintiff does
not contend, nor is there any summary judgment evidence to
establish that he was pulled over for a traffic violation caused by
a police officer.
13
City provides its written policies to all police officers, requires
its officers to be familiar with the policies,
and disciplines
officers who do not comply with the law or policies, which prohibit
unconstitutional
Although
the
actions
City's
such as
written
officer discretion within
the use
policies
the
bounds
of
excessive
necessarily
of
the
force.
expect
40
some
written policies,
Plaintiff presents no evidence to support his core claim that the
City
or
its
police
chief
had
given
or
allowed
its
officers
"unfettered" discretion to detain, arrest, and employ force against
persons in violation of their constitutional rights.
Moreover, Plaintiff neither alleges nor furnishes any summary
judgment
evidence
to prove
that
the
City's
alleged policy of
vesting its police officers with unfettered discretion to abuse
people's constitutional rights has ever resulted in any violation
of anyone's rights apart from the occasion in question.
Chief
Gracia
testified
that
after
serving
the
Indeed,
City
for
approximately 33 years, he is not aware of any information showing
that either he or the City's governing body was aware or even
informed of the existence of "any prior incident in which a police
officer has injured a detainee unnecessarily under circumstances
40 Document No.
34, ex. D at 3; see also, e.g., General Order
130, id., ex. P at 2 ("Treat your choices to use force with utmost
seriousness.
. Exceeding reasonable applications of force may
expose you to disciplinary action, civil liability and criminal
prosecution.") .
14
similar to those Eiteman alleges in his lawsuit."41
Hence, there
is no summary judgment evidence of any "persistent,
practice
of
City
officials
or
employees,
which,
widespread
although
authorized by officially adopted and promulgated policy,
common and well-settled as
represents
municipal
to constitute a
Piotrowski,
policy."
custom that
237
F.3d
not
is so
fairly
at
579.
Plaintiff argues, however, that municipal liability may be imposed
for a single decision, citing Brown v. Bryan Cnty., 219 F.3d 450,
462 (5th Cir. 2000), the Fifth Circuit's decision after remand from
the
Supreme
Court. 42
Brown
is
distinguished
by
dramatically
different facts from those established in this case. 43
The Fifth
41 Document No. 34, ex. D at 3.
42 Document No. 45 at 18-19.
43 In Brown, where a reserve deputy officer to whom the County
Sheriff had given no training, caused severe knee injuries to the
plaintiff by using excessive force while making an arrest without
probable cause, the Fifth Circuit observed that the County
Sheriff's "decision not to train [the reserve officer] constituted
a policy decision for which the County is liable." Brown, 219 F. 3d
at 453.
Furthermore, there was evidence that the County had not
even given to the offending officer written documentation
describing his duties as a reserve officer and did not supervise
the reserve officer even though it knew he had a recent criminal
record, including a misdemeanor assault and battery. The officer
himself admitted "taking down" to the ground one fourth or one
third of all twelve people he had arrested in his first weeks as a
reserve officer.
Id. at 462.
In stark contrast, in this case there is no summary judgment
evidence of any failure to train Officer Pannell. To the contrary,
the uncontroverted summary judgment evidence is that Officer
Pannell before the event in question had received over 1,500 hours
of training as a peace officer, including training focused on
correct arrest procedures and limitations on the use of force, that
15
Circuit's analysis on remand of the exceptional facts in Brown met
the exacting requirement set out by the Supreme Court:
extent that we have recognized a cause of action under
§
"To the
1983 based
on a single decision attributable to a municipality, we have done
so only where the evidence that the municipality had acted and that
the plaintiff had suffered a deprivation of federal rights also
proved fault and causation.
Ct. 1382,
1389
(1997).
Bd. of Cnty. Comm'rs v. Brown, 117 S.
II
Here,
unlike Brown,
there is no summary
judgment evidence that the City or its Police Chief as policymaker
made any "single decision" that was the "moving force" behind, or
the
direct
cause
of,
Officer
Pannell's
alleged
violations
of
Plaintiff's constitutional rights on the night Pannell arrested
Plaintiff.
The City makes a persuasive argument from the summary judgment
evidence that Officer Pannell did not violate any of Plaintiff's
constitutional rights when he detained and arrested him, and that
he
did
not
employ
force
that
was
objectively
unreasonable.
Regardless, because Plaintiff filed his case against only the City,
the determining factor here
summary
judgment
evidence
to
is
that
Plaintiff has produced no
support his
claim that
Pannell's
he was licensed by the Texas Commission on Law Enforcement
Standards and Education, that he had been informed of and received
copies of the City's General Orders for police conduct during an
arrest, and that he had almost two full years of experience as a
Rosenberg police officer, all without having been charged with any
meritorious claim of using excessive force.
Document No. 34, ex.
D, E, L, M.
16
allegedly unconstitutional actions in that isolated incident were
the
result
of
an unconstitutional
officially promulgated
City
policy or a policy adopted by virtue of a well-known practice or
custom.
Defendant
City
of
Rosenberg
is
entitled
to
summary
judgment as a matter of law.
IV.
Order
For the foregoing reasons, it is
ORDERED that Defendant's Motion to Dismiss and for Summary
Judgment (Document No. 34) is GRANTED, and Plaintiff Robert Steven
Eiteman's claims are DISMISSED with prejudice.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this
~~y of October,
2013.
.
WERLEIN, JR.
ES DISTRICT JUDGE
17
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