Selman v. Scoggins
REPORT AND RECOMMENDATION: that the District Court GRANT Defendant's 11 Motion for Summary Judgment. Signed by Judge Andrew W. Austin. (kkc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
RUSSELL SELMAN #1649450
DEPUTY BRYAN SCOGGINS
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates Judges, as amended, effective December 1, 2002.
Before the Court are Plaintiff’s complaint brought pursuant to 42 U.S.C. § 1983 (Document
No. 1); Defendant’s Motion for Summary Judgment (Document No. 11); and Plaintiff’s response
thereto (Document No. 16). Plaintiff, proceeding pro se, has been granted leave to proceed in forma
At the time he filed his complaint, Plaintiff was confined in the Hutchins State Jail. Plaintiff
was subsequently transferred to the Dawson State Jail. Plaintiff complains of actions taken during
his arrest in Llano County, Texas.
Plaintiff accuses Deputy Bryan Scoggins of using excessive force during Plaintiff’s arrest.
According to Plaintiff, he was already in handcuffs when Deputy Scoggins detained him. Plaintiff
alleges he was following officers’ orders when he was knocked unconscious. Plaintiff asserts he has
no memory of being transported to the Llano County Hospital. Plaintiff indicates he had a fracture
near his left eye socket and a fractured clavicle. Plaintiff alleges he still suffers from unbearable
headaches, blurry vision, and sharp pains in the neck and collar area. Plaintiff sues Deputy Scoggins
and seeks an unspecified amount of monetary damages.
According to Defendant Scoggins, Plaintiff was arrested on September 20, 2009, after Llano
County Sheriff’s deputies found a substantial amount of methamphetamine and methamphetamine
production equipment and materials in Plaintiff’s house. Defendant Scoggins indicates Plaintiff
escaped his arrest and fled custody with his hands cuffed behind his back. Defendant Scoggins
indicates he found Plaintiff over 30 hours later. Defendant Scoggins alleges Plaintiff once again
resisted arrest and attempted to flee. Defendant Scoggins asserts he deployed his Taser to prevent
Plaintiff from fleeing.
Defendant Scoggins moves for summary judgment. He argues Plaintiff’s claims are timebarred. Defendant further argues Plaintiff’s claims are without merit and Defendant is protected by
qualified immunity. Defendant contends Plaintiff’s injuries were caused by his decision to escape
from and evade custody. Defendant also contends he acted in good faith during Plaintiff’s arrest.
To the extent Plaintiff is suing Defendant Scoggins in his official capacity, Defendant argues
Plaintiff has not alleged a policy, practice or custom that caused his injuries.
Summary Judgment Standard
A court will, on a motion for summary judgment, render judgment if the evidence shows that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Int’l Shortstop, Inc. v.
Rally Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502 U.S. 1059, 112 S. Ct. 936 (1992).
When a motion for summary judgment is made and supported, an adverse party may not rest upon
mere allegations or denials but must set forth specific facts showing there is a genuine issue for trial.
Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995); FED . R. CIV . P. 56.1
Both movants and non-movants bear burdens of proof in the summary judgment process.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986). The movant with the burden of
proof at trial must establish every essential element of its claim or affirmative defense. Id. at 322,
106 S. Ct. at 2552. In so doing, the moving party without the burden of proof need only point to the
absence of evidence on an essential element of the non-movant’s claims or affirmative defenses. Id.
at 323-24, 106 S. Ct. at 2554. At that point, the burden shifts to the non-moving party to “produce
evidence in support of its claims or affirmative defenses . . . designating specific facts showing that
there is a genuine issue for trial.” Id. at 324, 106 S. Ct. at 2553. The non-moving party must
produce “specific facts” showing a genuine issue for trial, not mere general allegations. Tubacex
v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
In deciding whether to grant summary judgment, the Court should view the evidence in the
light most favorable to the party opposing summary judgment and indulge all reasonable inferences
in favor of that party. The Fifth Circuit has concluded “[t]he standard of review is not merely
whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational
Effective December 1, 2010, Rule 56 was amended. Although there is a slight language change
and a change in the designation of subsections, the legal standard remains the same. See FED . R. CIV .
P. 56(a) (eff. Dec.1, 2010) (“The 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 matter of
trier of fact could find for the non-moving party based upon the evidence before the court.” James
v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990) (citing Matsushita, 475 U.S. at 586, 106 S. Ct. 1356)).
To the extent facts are undisputed, a Court may resolve the case as a matter of law. Blackwell v.
Barton, 34 F.3d 298, 301 (5th Cir. 1994).
Statute of Limitations
Defendant Scoggins argues Plaintiff’s claims are time-barred. There is no federal statute of
limitations for § 1983 actions. Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th Cir. 1995);
Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir. 1991), cert. denied, 501 U.S. 1235 (1991).
Therefore, the Supreme Court has directed federal courts to borrow the forum state’s general
personal injury limitations period. Owens v. Okure, 488 U.S. 235, 249-50, 109 S. Ct. 573, 582
(1989). In Texas, the applicable limitations period is two years. Moore v. McDonald, 30 F.3d 616,
620 (5th Cir. 1994) (citing TEX . CIV . PRAC. & REM . CODE ANN . § 16.003(a) (Vernon 1986)).
Defendant Scoggins arrested Plaintiff on September 22, 2009. Plaintiff alleges his injuries
were sustained during this arrest. Although Plaintiff indicates he executed his complaint on
September 20, 2011, two days before the limitations period expired, the Court did not receive the
complaint until November 14, 2011.
In his response to Defendant’s Motion for Summary Judgment Plaintiff states he mailed his
complaint to the wrong address. Plaintiff attaches to his response his envelope post-marked
September 21, 2011, addressed to “United State[s] District Clerk Attn. Office of Joyce Gillow, P.O.
Box 877, Llano, TX. 78643.” According to Plaintiff, this was the address provided to him by the
law library at the state jail. Plaintiff also attaches Ms. Gillow’s letter returning his mail to him and
explaining he mailed it to the wrong court. On October 28, 2011, Ms. Gillow’s letter was received
at TDCJ, placed with general correspondence and mistakenly opened outside Plaintiff’s presence.
Even if the limitations period was equitably tolled from the date Plaintiff mailed his
complaint to the wrong address until his complaint was returned to him, his complaint would still
be time-barred. When Plaintiff executed his complaint on September 20, 2009, only two days
remained of the one-year limitations period. Plaintiff’s complaint was returned on October 28, 2011.
Plaintiff waited more than two days after his complaint was returned to mail his complaint to this
Court. Plaintiff’s complaint was received by the Court on November 14, 2011. It was accompanied
by Plaintiff’s application to proceed in forma pauperis, which was executed on November 8, 2011.
This is the earliest Plaintiff could have placed his complaint in the prison mail system, which is after
the limitations period expired. Accordingly, Plaintiff’s complaint is time-barred.
Alternatively, Defendant Scoggins is entitled to qualified immunity. The doctrine of
qualified immunity affords protection against individual liability for civil damages to officials
“insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727 (1982). Immunity in this sense means immunity from suit, not merely from liability. Jackson
v. City of Beaumont, 958 F.2d 616 (5th Cir. 1992). “Qualified immunity is designed to shield from
civil liability all but the plainly incompetent or those who violate the law.” Brady v. Fort Bend
County, 58 F.3d 173, 174 (5th Cir. 1995). To rebut the qualified immunity defense, the plaintiff
must show: (1) that he has alleged a violation of a clearly established constitutional right, and (2) that
the defendant's conduct was objectively unreasonable in light of clearly established law at the time
of the incident. Waltman v. Payne, 535 F.3d 342, 346 (5th Cir. 2008) (footnote omitted). To negate
a defense of qualified immunity and avoid summary judgment, the plaintiff need not present
“absolute proof,” but must offer more than “mere allegations.” Reese v. Anderson, 926 F.2d 494,
499 (5th Cir. 1991).
For several years, the Supreme Court required that the first of these criteria—whether
plaintiffs’ facts allege a constitutional violation—must be decided at the outset. Saucier v. Katz, 533
U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). More recently, the Court has held that lower courts
“should be permitted to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the particular
case at hand.” Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009).
Claims of excessive force in the course of a seizure are analyzed under the Fourth
Amendment. Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865 (1989). “To succeed on an
excessive force claim [under 42 U.S.C. § 1983], a plaintiff bears the burden of showing (1) an injury
(2) which resulted directly and only from the use of force that was excessive to the need and (3) the
force used was objectively unreasonable.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001)
(internal quotation marks omitted). “In gauging the objective reasonableness of the force used,” the
court “must balance the amount of force used against the need for that force.” Ikerd v. Blair, 101
F.3d 430, 434 (5th Cir. 1996). Construing the facts most favorably to Plaintiff, the evidence reflects
that Deputy Scoggins did not engage in excessive use of force against Plaintiff or did not act in an
objectively unreasonable manner.
According to Defendant Scoggins, at approximately 3:23 a.m. on September 22, 2011, he
received a call from the Llano County Sheriff’s Office dispatch directing him to the intersection of
County Road 302 and Ranch Road 1431 in reference to a man in a trash can. See Defendant’s Exh.
1-A, Affidavit of Bryan Scoggins, at ¶ 5. Scoggins arrived at approximately 3:29 a.m. and noticed
a person laying on the ground under some finger cactus. Id. at ¶ 6-7. Scoggins drew his service
weapon and told the subject to come out and show his hands. Id. at ¶ 7. The subject stood up with
his hands already cuffed behind his back. Id. Scoggins identified the subject as the plaintiff, who
had escaped custody 30 hours earlier. Id.
While Scoggins was holstering his weapon, he told Plaintiff he was under arrest and to
remain where he was laying on the ground. Id. at ¶ 9. As Scoggins was stepping toward Plaintiff,
Plaintiff said, ‘f**k this’ and took off running toward County Road 302 and Scoggins patrol car. Id.
at ¶ 9-10. Scoggins gave chase, telling Plaintiff to stop, but Plaintiff continued to run. Id. at ¶ 9.
Scoggins deployed his Taser, making contact with Plaintiff. Id. at ¶ 10. Plaintiff fell to the ground
near Scoggin’s patrol car. Id. Deputy Clay Kleen arrived on the scene to assist. Id. at ¶ 11.
However, Plaintiff was unable to stand. Id. Scoggins believed Plaintiff was not doing well after his
escape from custody. Id. at ¶ 12. Plaintiff was not wearing shoes, his socks were worn down, his
body was covered in scrapes, and his hands appeared to have the circulation cut off. Id. Scoggins
called dispatch and advised Emergency Medical Services were needed. Id. at ¶ 13.
Defendant Scoggins also provides the Court with the affidavit of Clay Kleen. See
Defendant’s Exh. 1-C, Affidavit of Clay Kleen. Kleen attests on September 22, 2009, he arrived on
the scene to assist Scoggins. Id. at ¶ 4. When Kleen arrived, he observed Plaintiff running toward
County Road 302, a heavily wooded area. Id. He observed Scoggins deploy his Taser. Id. at ¶ 5.
Plaintiff fell to the ground and began moaning. Id. Kleen helped Plaintiff sit up, because he had
fallen face down in a mud puddle. Id. Kleen noticed colored liquid oozing from Plaintiff’s eyes.
Id. at ¶ 6. Kleen indicated it looked like Plaintiff had an extremely bad case of pink eye. Id. EMS
was called. Id. Kleen attests, prior to the arrival of EMS, deputies attempted to remove the
handcuffs from Plaintiff but were unable due to the swelling in Plaintiff’s wrists. Id. at ¶ 7. Kleen
asserts they were unable to unlock the handcuffs, because they had been packed with dirt, sand and
debris during Plaintiff’s time on the run. Id. However, EMS was able to cut the links between the
handcuffs which allowed Plaintiff to separate his hands. Id.
In his response to Defendant’s Motion for Summary Judgment Plaintiff states he had no
memory of what had happened during his arrest. After viewing the video of his arrest, Plaintiff states
it is now obvious his injuries were caused when he was knocked unconscious after striking the
ground after he had been tased. Plaintiff asserts that because his hands were handcuffed behind his
back at the time he was tased, he was prevented from using his arms to brace his fall.
Plaintiff fails to present any evidence to address the issue of Defendant Scoggins’s qualified
The summary judgment evidence offered by Defendant Scoggins affirmatively
demonstrates that Defendant Scoggins did not violate Plaintiff’s constitutional rights to be free from
excessive force, and that he is entitled to qualified immunity. Further, even if Defendant Scoggins
had violated any of Plaintiff’s clearly established constitutional rights, the undisputed evidence
shows that Defendant Scoggins’s behavior was objectively reasonable under the circumstances.
Specifically, Plaintiff fails to refute the fact he ran from Scoggins after Scoggins told him he was
under arrest and to stay where he was laying on the ground. Although the video evidence did not
capture the entire incident, it does support the officer’s affidavit and shows Plaintiff running from
Scoggins toward Scoggins’s patrol car when he was tased. Accordingly, Defendant Scoggins is
entitled to qualified immunity.
Plaintiff’s claims brought Defendant Scoggins in his official capacity also fail. As explained
by Defendant, a political subdivision cannot be held responsible for a deprivation of a constitutional
right merely because it employs a tortfeasor; in other words a local government unit cannot be held
responsible for civil rights violations under the theory of respondeat superior. Johnson v. Moore,
958 F.2d 92, 94 (5th Cir. 1992). The standard for holding a local government unit responsible under
§ 1983 requires that there be a custom or policy that caused the plaintiff to be subjected to the
deprivation of a constitutional right. Id; Collins v. City of Harker Heights, Tex., 916 F.2d 284, 286
(5th Cir. 1990), aff’d, 503 U.S. 115, 112 S. Ct. 1061 (1992). Thus, Llano County can violate an
individual’s rights only through implementation of a formally declared policy, such as direct orders
or promulgations or through informal acceptance of a course of action by its employees based upon
custom or usage. Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984), cert. denied, 472 U.S.
1016, 105 S. Ct. 3476 (1985). A single decision made by an authorized governmental decisionmaker
to implement a particular course of action can represent an act of official government “policy.”
Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299 (1986). Plaintiff has failed to
identify a policy, practice or custom of Llano County that caused a deprivation of his constitutional
The undersigned recommends that the District Court GRANT Defendant’s Motion for
Summary Judgment [#11].
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within 14 days after the party is served with a copy of the Report shall bar
that party from de novo review by the district court of the proposed findings and recommendations
in the Report and, except upon grounds of plain error, shall bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct. 466, 472-74 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415, 1428-29 (5th Cir. en banc, 1996).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 31st day of May, 2012.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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