Matthews v. Harris County, Texas et al
Filing
51
MEMORANDUM OPINION granting in part 45 MOTION for Summary Judgment , granting 44 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BENJAMIN MATTHEWS,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
HARRIS COUNTY, et al.,
Defendants.
July 02, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. H-18-0014
MEMORANDUM OPINION
Pending before the court1 is Defendant KFGF Enterprises, Inc.,
d/b/a Carrington’s,
Carrington’s
Sports
Bar,
and
Carrington’s
Billiards’ (“Defendant KFGF”) Motion for Summary Judgment (Doc. 44)
and Defendant Eric McCartney’s (“Defendant McCartney”) Motion for
Summary Judgment (Doc. 45).
The court has considered the motions,
the responses, the replies, all other relevant filings, and the
applicable law.
For the reasons set forth below, Defendant KFGF’s
Motion for Summary Judgment is GRANTED and Defendant McCartney’s
Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.
I.
Case Background
Benjamin Matthews (“Plaintiff”) filed this action against
multiple defendants, alleging violations of 42 U.S.C. § 1983
(“Section 1983") against Harris County and Defendant McCartney for
excessive force, unlawful seizure and false arrest.2 Additionally,
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 38, Ord. Dated
July 11, 2018.
2
See Doc. 14, Pl.’s 2 nd Am. Compl. pp. 6-20.
Plaintiff
brought
causes
of
action
for
assault
and
battery,
negligence, false imprisonment, and negligent hiring, retention,
training, and supervision against Defendant KFGF.3
A.
Factual Background4
On June 14, 2016, Defendant McCartney and Harris County Deputy
Sheriff
private
Torrance
Johnson
security
(“Carrington’s”).5
(“Deputy
guards
at
Johnson”)
were
Carrington’s
employed
Sports
as
Bar
Defendant McCartney and Deputy Johnson were
both wearing their Harris County Sheriff’s Office uniforms and
badges.6 After Carrington’s closed, Defendant McCartney and Deputy
Johnson walked to a nearby restaurant.7
Defendant McCartney and
Deputy Johnson were returning to the Carrington’s parking lot when
Defendant McCartney observed a group of people observing a verbal
confrontation between a man and a woman.8
Defendant McCartney and
Deputy Johnson approached the couple and advised them to leave the
parking lot.9
3
See id.
4
For the purposes of these motions, the court will only consider the
following evidence: Plaintiff’s Sworn Statement (Doc. 44-1); Defendant
McCartney’s Affidavit (Doc. 44-4); and Plaintiff’s Medical Record (Doc. 46).
5
See Doc. 44-4, Ex. D to Def. KFGF’s Mot. for Summ. J., Def.
McCartney’s Aff. p. 2.
6
See id.
7
See id.
8
See id. pp. 3, 6.
p. 3.
9
See id. p. 6. According to Defendant McCartney, the arguing couple
left the parking lot. Id.
On the other hand, Plaintiff admits that he was the
man arguing with the unknown woman. See Doc. 44-1, Ex. A to Def. KFGF’s Mot. for
2
According
to
Plaintiff,
Defendant
McCartney,
without
any
provocation, approached Plaintiff and said, “Do you want to go to
jail?”10 Plaintiff told Defendant McCartney, “No, I’m leaving now,”
and made repeated attempts to shut his car door, but was unable to
do so because Defendant McCartney had wedged his nightstick in the
car door.11
Defendant McCartney told Plaintiff, “You’re just
damaging your car,” and instructed Plaintiff to step out of his
car.12
Plaintiff further related that he complied with Defendant
McCartney’s demand to leave his vehicle, but voiced his displeasure
at doing so.13
ground.14
Defendant McCartney tased Plaintiff who fell to the
Plaintiff heard Defendant McCartney say, “I got him in
the head,” before receiving a kick in the head from Defendant
McCartney.15 Plaintiff was tased again in the upper back and neck.16
Plaintiff recounted that he was tased a third time after asking,
Summ. J., Pl.’s Sworn Statement p. 1.
dispute is not material.
For purposes of this motion, this factual
10
See Doc. 44-1, Ex. A to Def. KFGF’s Mot. for Summ. J., Pl.’s Sworn
Statement p. 1.
11
See id.
12
See id.
13
See id.
14
See id.
15
See id.
16
See id. p. 2.
3
“What
did
I
do?”17
instructed to stand.18
Plaintiff
remained
on
the
ground
until
Defendant McCartney commented, “This might
sting a little bit” when he
pulled the taser probes out of
Plaintiff’s skin.19
In Defendant McCartney’s version of the incident, he and
Deputy Johnson approached three men and advised them to leave the
parking lot, but Plaintiff refused.20
Deputy Johnson observed a
clear bag of marijuana inside Plaintiff’s vehicle.21
Defendant
McCartney ordered Plaintiff to exit the vehicle and to put his
hands behind his back, but Plaintiff refused.22 Defendant McCartney
then made several attempts to forcibly remove Plaintiff from his
vehicle.23
Defendant
McCartney
averred
he
deployed
his
taser
after
unsuccessfully attempting to remove Plaintiff from his vehicle.24
The taser malfunctioned, was dropped by Defendant McCartney, and a
17
See id.
18
See id.
19
See id.
20
See Doc. 44-4, Ex. D to Def. KFGF’s Mot. for Summ. J., Def.
McCartney’s Aff. p. 6.
21
See id.
22
See id.
23
See id.
24
See id.
4
struggle ensued between Plaintiff and Defendant McCartney.25 During
the struggle, both Plaintiff and Defendant McCartney fell to the
ground, the taser revived, and both men felt the effects of the
taser.26
and
Defendant McCartney was able to get on top of Plaintiff
deliver
strikes
to
Plaintiff’s
face
with
his
hands
and
additional strikes with his right knee, all while instructing
Plaintiff to stop resisting.27
Deputy Johnson secured Plaintiff in
handcuffs, and Defendant McCartney stopped striking Plaintiff.28
The Harris County District Attorney’s Office authorized an
arrest of Plaintiff for Interfering with a Public Servant, and one
of the officers called the Houston Police Department (“HPD”) for
transport.29
However,
upon
arrival
at
the
City
of
Houston
Inmate
Processing Center, the officers were told that Plaintiff was too
injured to be booked.30
The HPD officers took Plaintiff to the Ben
Taub Hospital emergency department.31
The HPD officers walked
Plaintiff into the hospital, signed him in, and left him there.32
25
See id.
26
See id.
27
See id.
28
See id.
29
See id.
30
See id.
31
See id. pp. 6-7.
32
See id. p. 7.
5
According to the Ben Taub Hospital records, Plaintiff suffered from
multiple abrasions to his face and chest with some bruising on his
back, face, and limbs.33 Plaintiff was never charged with any crime
relating to this incident.34
B.
Procedural Background
On December 12, 2017, Plaintiff filed this action in state
court against Harris County, an officer, “E. McKenny,” and the
sports bar, “Carrington’s”.35
Defendant Harris County removed the
lawsuit to this court on January 2, 2018.36
Plaintiff amended his
complaint to comply with federal pleading standards on February 19,
2018.37
Plaintiff filed a second amended complaint, with the
court’s leave, on February 22, 2018, only changing the misspelling
of Defendant McCartney’s name.38
On July 11, 2018, the court issued a memorandum opinion
dismissing Harris County from the case and dismissing claims
33
See Doc. 46, Ex. 2 to Def. McCartney’s Mot. for Summ. J., Pl.’s ED
Notes (Sealed).
34
See Doc. 49, Pl.’s Resp. to Def. McCartney’s Mot. for Summ. J. p. 3;
Doc. 50, Def. McCartney’s Reply in Support of Mot. for Summ. J. p. 4.
35
See Doc. 1-3, Pl.’s Orig. Pet.
36
See Doc. 1, Not. of Removal; Doc. 2, Def. Harris County’s Mot. To
Dismiss.
37
38
Pl.’s 2
nd
See Doc. 11, Pl.’s 1 st Am. Compl.
See Doc. 13, Pl.’s Mot. For Leave to File 2nd Am. Compl.; Doc 14,
Am. Compl.
6
against Defendant McCartney except for the Section 1983 claims for
false arrest, unlawful seizure, and excessive force.39
On August 20, 2018, Defendant McCartney filed an answer to
Plaintiff’s amended complaint and demanded a jury trial.40 Defendant
KFGF, filed its pending motion for summary judgment on February 7,
2019.41
Defendant McCartney filed his pending motion for summary
judgment on February 15, 2019.42
Plaintiff filed a response to
Defendant KFGF’s pending motion for summary judgment on February
28, 2019.43
Defendant KFGF filed a reply in support of its motion
for summary judgment on March 7, 2019.44 Plaintiff filed a response
to Defendant McCartney’s pending motion for summary judgment on
March 8, 2019.45 Defendant McCartney filed a reply in support of his
motion for summary judgment on March 15, 2019.46
II.
Summary Judgment Standard
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
moving party is entitled to judgment as a matter of law.
Fed. R.
39
See Doc. 39, Mem. Op. Dated Aug. 10, 2018 p. 23.
40
See Doc. 40, Def. McCartney’s Ans. to Pl.’s 2 nd Am. Compl.
41
See Doc. 44, Def. KFGF’s Mot. for Summ. J.
42
See Doc. 45, Def. McCartney’s Mot. for Summ. J.
43
See Doc. 47, Pl.’s Resp. to Def. KFGF’s Mot. for Summ. J.
44
See Doc. 48, Def. KFGF’s Reply in Support of Mot. for Summ. J.
45
See Doc. 49, Pl.’s Resp. to Def. McCartney’s Mot. for Summ. J.
46
See Doc. 50, Def. McCartney’s Reply in Support of Mot. For Summ. J.
7
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d
498, 504 (5th Cir. 2014).
A material fact is a fact that is
identified by applicable substantive law as critical to the outcome
of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271
F.3d 624, 626 (5th Cir. 2001).
“Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.”
Coastal Agricultural
Supply, Inc., 759 F.3d at 504 (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant must inform the court of the basis for the summary
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual issues. See id. at
505 (quoting Celotex Corp., 477 U.S. at 323).
If the movant
carries its burden, the nonmovant may not rest on the allegations
or denials in the pleading but must respond with evidence showing
a genuine factual dispute.
See id.
the
as
nonmovant’s
evidence
inferences in her favor.
Chase
Bank,
N.A.,
759
true
The court must accept all of
and
draw
all
justifiable
Coastal Agric. Supply, Inc. v. JP Morgan
F.3d
498,
Anderson, 477 U.S. at 255).
8
505
(5th
Cir.
2014)(quoting
III. Analysis
Currently
pending
against
Defendant
McCartney
are
claims
brought pursuant to Section 1983 for: (1) excessive force; (2)
unlawful seizure; and (3) false arrest.47
Defendant McCartney moves for summary judgment on the unlawful
seizure and false arrest claims, arguing that there was probable
cause
to
arrest
and
seize
Plaintiff.48
Defendant
McCartney
additionally argues that even if he reasonably but mistakenly
believed he had probable cause to arrest, he is still entitled to
qualified immunity.49
Finally, Defendant McCartney argues that
Plaintiff’s excessive force claim is not supported by Plaintiff’s
own
medical
records
and,
even
if
Plaintiff’s
injuries
were
considered more than de minimis, Defendant McCartney is entitled to
qualified immunity.50
Defendant KFGF has moved for summary judgment on two bases:
(1) Defendant KFGF argues that Defendant McCartney was acting in
his capacity as a sheriff’s deputy and not as an employee of
Carrington’s, and, therefore, it is not liable for Defendant
McCartney’s conduct; and (2) Defendant McCartney’s employment with
Carrington’s
was
not
a
proximate
cause
of
the
incident,
47
See Doc. 45, Def. McCartney’s Mot. For Summ. J. p. 9.
48
See id. pp. 8, 11.
49
See id. p. 11.
50
See id. pp. 19, 23.
9
and
Plaintiff
cannot
succeed
on
his
claim
of
negligent
hiring,
retention, training, supervision, or entrustment against Defendant
KFGF.51
A.
Plaintiff’s Section 1983 Claims Against Defendant McCartney
A plaintiff can establish a prima-facie case under Section
198352 for the deprivation of civil rights by establishing: (1) a
violation of a federal constitutional or statutory right; and (2)
the violation was committed by an individual acting under the color
of state law.
Doe v. Rains Cty. Indep. Sch. Dist., 66 F.3d 1402,
1406 (5th Cir. 1995).
Section 1983 creates no substantive rights,
but does provide remedies for deprivations of rights created under
federal law.
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
Government officials are entitled to qualified immunity from
liability for civil damages “unless [(1)] the official violated a
statutory
or
constitutional
right
[(2)]
that
was
established at the time of the challenged conduct.”
clearly
Reichle v.
Howards, 566 U.S. 658, 664 (2012) (citing Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)).
Courts have discretion to determine in
51
See Doc. 44, Def. KFGF’s Mot. for Summ. J. pp. 6, 11.
52
The provision reads, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . , subjects, or causes to be
subjected, any citizen of the United States or other person within
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C.
§ 1983.
10
which order the two prongs are considered.
735.
Al-Kidd, 563 U.S. at
Qualified immunity protects an officer regardless of whether
the error was “a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact.”
Pearson v. Callahan,
555 U.S. 223, 231 (2009) (internal quotations omitted) (quoting
Groh v. Ramirez, 540 U.S. 551, 567 (2004)).
By pleading qualified
immunity in good faith, a summary judgment movant shifts the burden
to the nonmovant to rebut the movant’s assertion.
Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
1.
Excessive Force
In order to establish a section 1983 excessive force claim, a
plaintiff must show: (1) an injury; (2) that resulted directly and
only from the use of force that was excessive to the need; and (3)
that the force used was objectively unreasonable.
Carnaby v. City
of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (citing Freeman v.
Gore, 483 F.3d 404, 416 (5th Cir. 2007)). The plaintiff’s resulting
injury need not be significant but must be more than de minimis.
Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
Considering the first element, Defendant McCartney admits that
the City of Houston Inmate Processing Center refused to accept
Plaintiff for booking due to his physical condition.53
Plaintiff’s
medical records show that he had complained of generalized pain and
53
See Doc. 44-4, Ex. D to Def. KFGF’s Mot. for Summ. J., Def.
McCartney’s Aff. pp. 6-7; Doc. 46, Ex. 2 to Def. McCartney’s Mot. for Summ. J.,
Pl.’s ED Notes & Ben Taub Aff. pp. 1-5 (sealed).
11
had lacerations and multiple abrasions to his face and chest with
some bruising on his back, face, and limbs.54 The Fifth Circuit has
ruled
that
injuries
such
as
abrasions,
head
injuries,
and
contusions are significant enough to satisfy the injury element of
an excessive force claim.
See Anderson v. McCaleb, 480 F. App’x
768, 772 (5th Cir. 2012)(unpublished).
Considering the second element of an excessive force claim,
Plaintiff’s injuries resulted directly from Defendant McCartney’s
use of force.
Defendant McCartney states that he was able to
deliver strikes to Plaintiff’s “face area,” and made multiple
strikes with his knee.55
taser on Plaintiff.56
Defendant McCartney also deployed his
Defendant McCartney does not contend that
Plaintiff or Deputy Johnson contributed in any way to Plaintiff’s
injuries.57
The third excessive force element is whether the officer acted
reasonably in terms of the amount of force deployed.
City of Edna, 410 F.3d 745, 751-53 (5th Cir. 2005).
See Tarver v.
“The objective
reasonableness of the force . . . depends on the facts and
circumstances of the particular case, such that the need for force
54
Doc. 46, Ex. 2 to Def. McCartney’s Mot. for Summ. J., Pl.’s ED Notes
& Ben Taub Aff. p. 3 (sealed).
55
See Doc. 44-4, Ex. D to Def. KFGF’s Mot. for Summ. J., Def.
McCartney’s Aff. p. 6.
56
See id.
57
See id.
12
determines how much force is constitutionally permissible.” Collier
v. Montgomery, 569 F.3d 214, 218-19 (5th Cir. 2009) (internal
quotations omitted) (quoting Bush v. Strain, 513 F.3d 492, 501 (5th
Cir. 2008)).
Reasonableness considerations regarding the need for and the
amount of force necessary include: 1) how severe the crime at issue
was; (2) if the suspect presented an immediate threat to the safety
of the officers or others; and (3) whether the suspect was actively
resisting arrest or attempting to escape.
490 U.S. 386, 396 (1989).
See Graham v. Connor,
Reasonableness is judged from the
perspective of a reasonable officer on the scene, not in hindsight.
Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008).
In judging
an officer’s actions, the court must recognize the difficulty of
making split-second judgment calls under high pressure conditions
and accord the officer appropriate latitude.
Graham, 490 U.S. at
396-97.
These standards were clearly established at the time of the
incident.
See Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir.
2012)(stating that an officer “should have known that he could not
continue to shock [an individual] with the taser after he was no
longer resisting arrest”); Bush v. Strain, 513 F.3d 492, 502 (5th
Cir. 2008)(determining a police officer should know he cannot
forcefully
slam
a
suspect
into
subdued).
13
a
vehicle
when
she
has
been
Turning to the facts of this case, the summary judgment
evidence
lends
itself
to
two
significantly
different
factual
scenarios, either of which is supported by sufficient evidence to
support a verdict.
If Plaintiff’s version of the incident is
believed, then Defendant McCartney violated clearly established law
when he continued to use force on an unresisting individual.
If
Defendant McCartney’s testimony is credited, jurors might agree
that
the
use
of
circumstances.
force
was
objectively
reasonable
under
the
See Anderson, 480 F. App’x at 773; Bush, 513 F.3d
at 502.
As
there
is
summary
judgment
evidence
to
support
both
versions, the court cannot decide as a matter of law whether
Defendant McCartney violated Plaintiff’s constitutional rights.
A
jury must decide whom to believe and must weigh the evidence as a
whole.
Because at least one version of the facts does not comply
with clearly established law at the time of the incident, Defendant
McCartney is not entitled to qualified immunity at this stage of
the lawsuit.
2.
Unlawful Seizure
"[W]henever
a
police
officer
accosts
an
individual
and
restrains his freedom to walk away, he has ‘seized’ that person."
Terry v. Ohio, 392 U.S. 1, 16 (1968).
Although probable cause is
required to support a warrantless arrest, police officers may
detain an individual for investigative purposes based on the less
14
demanding standard of a reasonable suspicion of criminal activity.
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000).
Reasonable suspicion is a less stringent standard than
probable cause and exists "when the detaining officer can point to
specific and articulable facts that, when taken together with
rational inferences from those facts, reasonably warrant the search
and seizure."
U.S. v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006).
In other words, investigative stops are constitutional when based
on
"a
particularized
and
objective
basis
for
particular person stopped of criminal activity."
suspecting
the
Navarette v.
California, 572 U.S. 393 (2014)(quoting United States v. Cortez,
449 U.S. 411, 417-18 (1981)).
Viewing the facts in Plaintiff’s favor, Defendant McCartney
initiated a stop of Plaintiff because: (1) Plaintiff was engaged in
a verbal confrontation with a female; (2) this verbal confrontation
took place at approximately 2:00 a.m. in a bar parking lot; and (3)
Plaintiff was present in the bar parking lot after the bar had
closed for the evening.58
Defendant McCartney avers that he
approached Plaintiff and other men with the intent of dispersing
them from the parking lot of a closed business and Deputy Johnson
observed marijuana in Plaintiff’s vehicle.59
58
See Doc. 44-1, Ex. A to Def. KFGF’s Mot. for Summ. J., Pl.’s Sworn
Statement pp. 1-3; Doc. 44-4, Ex. D to Def. KFGF’s Mot. For Summ. J., Def.
McCartney’s Aff. pp. 1-8.
59
See Doc. 44-4, Ex. D to Def. KFGF’s Mot. For Summ. J., Def.
McCartney’s Aff. p. 6.
15
Under either scenario, these “specific and articulable facts”
coupled with
the
rational
inferences
from
them
would
lead
a
reasonable person in Defendant McCartney’s position to form a
reasonable suspicion of criminal activity.
have
reasonable
suspicions
of
public
A peace officer could
intoxication,
possible
assault, and other offenses giving a police officer a reasonable
suspicion to investigate.
See Navarette, 572 U.S. at 369-97;
United States v. Gutierrez-Para, 711 F. App’x 752, 752-53 (5th Cir.
2017)(unpublished)(holding that police had reasonable suspicion to
investigate after seeing two vehicles pull into a vacant parking
lot around 2:00 a.m.); United States v. Wilson, 342 F. App’x. 46,
47
(5th
Cir.
2009)(unpublished)(holding
that
police
hired
as
security in a private parking lot at night had reasonable suspicion
to stop a person walking between cars and concealing an object
beneath his shirt).
Summary
judgment
is
therefore
appropriate
on
Plaintiff’s
unlawful seizure claim.
3.
False Arrest
When bringing a claim for false arrest in violation of the
Fourth Amendment, a plaintiff must show that the officer did not
have probable cause to arrest. See Evans v. City of Meridian Miss.,
630 F. App'x 312, 315 (5th Cir. 2015)(unpublished); Brown v. Lyford,
243 F.3d 185, 189 (5th Cir. 2001)(stating that the constitutional
tort of false arrest requires "a showing of no probable cause").
16
Probable
cause
exists
"when
the
totality
of
the
facts
and
circumstances within a police officer's knowledge at the moment of
arrest are sufficient for a reasonable person to conclude that the
suspect had committed or was committing an offense."
Turner v.
Driver, 848 F.3d 678, 694 (5th Cir. 2017). The officer's belief that
probable cause is present must be objectively reasonable; it is
irrelevant
what
his
subjective
beliefs
were.
Anderson
v.
Creighton, 483 U.S. 635, 641 (1987). “Probable cause requires only
a probability or substantial chance of criminal activity, not an
actual showing of such activity.” Illinois v. Gates, 462 U.S. 213,
245 (1983).
These standards were clearly established at the time of the
incident. See, e.g., United States v. Vasquez, 534 F.2d 1142, 1145
(5th Cir. 1976)(stating that flight alone from a law enforcement
officer is not enough to support a finding of probable cause, but
it can be an important component in certain situations for an
officer to take action).
According
to
the
summary
judgment
record,
Plaintiff
was
arrested for Interfering with a Public Servant.60 The court assumes
that this is Interference with Public Duties, found at Section
38.15 of the Texas Penal Code.
with
criminal
negligence
A person commits this offense if he
“interrupts,
disrupts,
impedes
or
otherwise interferes with[] a peace officer while the peace officer
60
See Doc. 44-4, Ex. D to Def. KFGF’s Mot. For Summ. J., Def.
McCartney’s Aff. p. 6.
17
is performing a duty or exercising authority imposed or granted by
law. . . .”61
Considering the facts in the non-movant’s favor, Plaintiff
recounts that he was approached by Defendant McCartney who asked,
“Do you want to go to jail?”62
Plaintiff responded, “No, I’m
leaving now,” and attempted to shut his car door, presumably in
order to leave.63
Plaintiff claims he was “doing everything the
deputy told me to do.”64
If
the
jury
credits
Plaintiff’s
version
of
the
event,
Plaintiff attempted to leave the parking lot as instructed but was
prevented
by
Defendant
McCartney.
Accordingly,
Defendant
McCartney’s actions would not comply with clearly established law
because Plaintiff did not interfere with Defendant McCartney’s
actions as a peace officer.
Because at least one version of the
incident does not comply with clearly established law, Defendant
McCartney is not entitled to qualified immunity at this time.
B. Claims Against Defendant KFGF
Defendant KFGF argues that it is entitled to summary judgment
because: (1) Defendant McCartney was acting in his capacity as a
police officer at the time of the incident, and not as an employee
61
See V.T.C.A. Texas Penal Code § 38.15(a)(1).
62
See Doc. 44-1, Ex. A to Def. KFGF’s Mot. for Summ. J., Pl.’s Sworn
Statement p. 1.
63
See id.
64
See id. p. 2.
18
of Carrington’s; and (2) Defendant McCartney’s employment with
Carrington’s was not a proximate cause of the incident.65
Peace officers keep their position as peace officers twentyfour hours a day and are not relieved of their duties merely
because they are off duty.
Blackwell v. Harris Cty., 909 S.W.2d
135, 139 (Tex. App.–Houston [14th Dist.] 1995, writ denied).
Therefore, an officer’s conduct falling within the scope of his
employment is not determined by whether an officer is officially on
or off duty.
See Harris Cty. v. Gibbons, 150 S.W.3d 877, 882 (Tex.
App.–Houston
[14th
Dist.
2004,
no
pet.).
The
more
important
question is: “[I]n what capacity was the officer acting at the time
he
committed
the
acts
for
which
the
complaint
was
made?”
Blackwell, 909 S.W.2d at 139; see also Kraidieh v. Nudelman, No.
01–15–01001–CV, 2016 WL 6277409, at *5 (Tex. App.–Houston [1st
Dist.] Oct. 27, 2016, no pet.)(unpublished)(citing Blackwell, 909
S.W.2d at 139).
matter
of
Westheimer
law
St.
“If an off-duty officer observes a crime, as a
he
becomes
Festival
an
on-duty
Corp.,
116
officer.”
S.W.3d
337,
Cherqui
344
v.
(Tex.
App.–Houston [14th Dist.] 2003, no pet.).
If the facts are viewed in the best possible light for
Plaintiff, the court cannot find any material dispute of fact that
Defendant McCartney was not acting as a peace officer.
It is
undisputed that Defendant McCartney and Deputy Johnson were working
65
See Doc. 44, Def. KFGF’s Mot. for Summ. J. pp. 6, 11.
19
an approved extra job for Defendant KFGF, and that Defendant
McCartney was wearing both his Harris County Sheriff’s Office
uniform and badge.
Importantly, Defendant McCartney was off-duty
because Carrington’s had closed.
As Defendant McCartney was
leaving the restaurant and walking to his vehicle, he became aware
of a disturbance in the Carrington’s parking lot and took actions
to address it.
These facts do not raise a material issue of fact that
Defendant McCartney was acting as an employee of Defendant KFGF.
The bar had closed and Defendant McCartney had left the premises
only to return to disperse individuals involved in an altercation.
As a matter of undisputed fact, Defendant McCartney was acting in
his official role as a peace officer, and therefore Defendant KFGF
cannot be vicariously liable for Defendant McCartney’s actions.
Accordingly, summary judgment is appropriate in favor of Defendant
KFGF on all of Plaintiff’s claims.
IV.
Conclusion
Based on the foregoing, Defendant KFGF’s motion for summary
judgment is GRANTED.
Defendant McCartney’s motion for summary
judgment is GRANTED on Plaintiff’s claim for unlawful seizure and
DENIED on Plaintiff’s claims of false arrest and excessive use of
force.
SIGNED in Houston, Texas, this 2nd day of July, 2019.
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?