Opinion
No. 4:99-CV-236-Y
January 8, 2002
Now pending before the Court is the December 14, 2001 motion for summary judgment and brief in support thereof by defendant James Stokes and alternative motion for judgment on the pleadings. Plaintiff Jeffrey W. Alexander timely filed, on December 21, 2001, a response to the motion for summary judgment along with a motion to strike the motion for summary judgment. Alexander has also filed a supplemental response to the motion for summary judgment. For the reasons set forth below, the Court finds that the motion for summary judgment must be denied. Summary Judgment Evidence
Defendant also moved for judgment on the pleadings, but since he has supported the motion with matters outside the pleadings, the Court has addressed the motion only as a summary judgment motion and the motion for judgment on the pleadings [docket 86-1] is DENIED as moot. Defendant wrongly attached several "affidavits" to his First Amended Original Answer. Plaintiff has moved to strike these affidavits under Federal Rule of Civil Procedure 12(f). Defendant subsequently filed similar affidavits in support of the motion for summary judgment. Because the Court has considered the substance of the affidavits only in support of a summary judgment motion, and has not considered the affidavits as a part of Defendant's pleading, the motion to strike under Rule 12(f) [docket no. 89] is also DENIED as moot.
Defendant Stokes submitted several affidavits in support of the motion for summary judgment, which are properly before this Court. (December 14, 2001 Affidavit of Kenneth Wilkins("Wilkins"); December 13, 2001 Affidavit of Charles Sarver ("Sarver"); July 5, 2000 Affidavit of John Smedley ("Smedley"); December 14, 2001 Affidavit of James Stokes ("Stokes"); February 5, 1999 Affidavit/Declaration of Jennifer J. Manuskhani.) Plaintiff Alexander submitted an exhibit appendix, and, because no objections have been raised, the following evidence included therein is properly before the court: February 17, 1999 Sworn Statement of Stokes along with a four-page Tarrant County Sheriff's Department report dated November 8, 1998 ("Sheriff's Dept. Report") (Appendix pp. 4-10); February 1, 1999 Sworn Statement of Sarver (Appendix pp. 14-15); February 2, 1999 Sworn Statement of Wilkins (Appendix pp. 18-19); Defendant's Responses to Plaintiff's First Request for Admissions, Defendant's Response to Plaintiff's First Request for Interrogatories; Defendant's Response to Plaintiff's Request for Production of Documents (Appendix pp. 20-41); a Tarrant County Confinement Bureau Policy and procedure guideline on "Use of Force" (Appendix 42-45); and the February 1, 1999 Sworn Statement of John W. Leggett ("Leggett") (Appendix 46-47). In addition, Alexander submitted with his supplemental response two additional matters to be considered on summary judgment: Alexander's December 22, 2001 "affidavit," and a Tarrant County Confinement Bureau Policy and procedure guideline on "Medical Service Generally." In the preliminary stages of this case, plaintiff Alexander filed on February 14, 2000, what the Court then deemed a Federal Rule of Civil procedure Rule 7 Reply, including a January 9, 1999 Affidavit Alexander provided as a part of an Internal Affairs inquiry. This document too, has been considered as summary judgment evidence.
Although Plaintiff has filed a motion to strike some of the summary judgment affidavits based upon the allegation that such affidavits were made in bad faith, the Court has considered the discrepancies between the subject affidavits and previous statements as a part of the determination that summary judgment is not warranted in this case. Whether the apparent conflict between the subject affidavits and prior statements warrants sanction is still to be determined by the Court, in consideration of Plaintiff's motion for sanctions. Thus, Plaintiff's motion to strike Defendant's summary judgment affidavits [docket 90-1] be, and is hereby, DENIED.
Although many of these documents are not presented as certified copies or otherwise authenticated sufficiently to be considered as sufficient summary judgment evidence over objection, Defendant has not objected to or contested them. Thus, for the purposes of this motion, the Court will consider said documents.
Apparently for purposes of comparison between prior and recent statements of the defendant and key witnesses, plaintiff Alexander also included in his exhibit appendix copies of affidavits presented by Stokes in support of the motion for summary judgment.
Summary Judgment Standard
Summary judgment is appropriate when the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party moving for summary judgment has the initial burden of informing the Court of the basis for its motion and producing evidence which tends to show that no genuine issue as to any material fact exists and that it is entitled to judgment as a matter of law. Once the moving party has made such a showing, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Whether an issue is "genuine" is a determination of whether it is "real and substantial, as opposed to merely formal, pretended, or a sham." A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. The Court must consider all evidence in the light most favorable to the nonmoving party. Factual Overview
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)
Id., at 322-23; Anderson, 477 U.S. at 257.
Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (noting that only genuine and substantial issues may subject a defendant to the burden of trial) (quoting Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cri. 1945).
See Anderson, 477 U.S. at 248.
See National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712-13 (5th Cir. 1994).
See Id. at 713; see also Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998) ("Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists.")
This case arises out of an incident that occurred on November 7, 1998, while plaintiff Alexander was housed in the Tarrant County jail. While awaiting transfer from an older part of the jail to a newer part of the facility, Alexander alleges he experienced chest pains, and began pressing an emergency medical call button. Alexander alleges that rather than summon medical help, Corporal James Stokes, the defendant, warned Alexander not to press the call button and threatened that if he did, Stokes would have Alexander strapped to a restraint device. Alexander apparently continued to press the call button, and Stokes and another officer then transported him to a single-cell area at a different level of the facility.
Stokes alleges that even after Alexander was transported to a single-cell area, Alexander was still verbally abusive and was banging on the door, and thus, a Sergeant Sarver authorized the placement of Alexander in a restraint chair. Although Sarver ordered other officers to place Alexander into the restraint chair, Stokes alleges that he stayed around as back-up and stepped in to assist with the chest strap. Although Stokes acknowledges that Alexander provided no physical resistance, he contends that Alexander was verbally abusive and that as he turned to leave the room with Alexander in the restraint chair, Alexander spat on him.
Alexander contends that at that point Stokes choked him and struck him about the face with his hands. Alexander contends that this physical attack continued until Sarver and officer Leggett physically restrained Stokes by pulling him off of the top of Alexander and removed Stokes from the room. Alexander alleges that even as Stokes was being pulled away, Stokes reached for him and scraped his neck and face. Stokes's contentions are inconsistent and, although he now insists he was not physically restrained and that he left the room on his own volition, he acknowledges that he grabbed Alexander's chin and face and held it for several seconds. Alexander alleges that he suffered pain when he was choked, scratched, and bruised. A nurse called to the scene found scratches on Alexander's neck.
Analysis
Defendant Stokes seeks summary judgment on two grounds: that Alexander suffered no damages proximately caused by the conduct of Stokes, and that he is entitled to a qualified-immunity defense to Plaintiff's claims of excessive force. The first claim that Alexander suffered no damages is brought into question by Stokes's own evidence in support of his summary-judgment motion. Sergeant Sarver's most recent affidavit states that the nurse who examined Alexander's neck found two scratches. (Sarver Dec. 13, 2001 at ¶ 5.) Officer Smedley's affidavit also noted the scratches. (Smedley Aff. July 5, 2000.) The nurse who examined Alexander while he was still in the restraint chair observed two scratches on the left side of Alexander's neck, and was told by Alexander that the scratches were caused by an officer. (Mansukhani Aff. Feb. 5, 1999.) This is clear evidence that, coupled with Alexander's allegations of the harm he suffered, raises the material-fact question of whether Alexander suffered damages as a result of Stokes's conduct. The motion for summary judgment on the basis of no damages must be denied.
Stokes did not seek summary judgment based on Alexander's claims' being barred by 42 U.S.C. § 1997e(e). As a part of the Prison Litigation Reform Act (PLRA), Congress placed a restriction on a prisoner's ability to recover f or mental or emotional injury without a showing of physical injury: "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C.A. § 1997e(e) (West Supp. 2001). In the Fifth Circuit, it is now established that a plaintiff, to satisfy § 1997e(e)'s requirement, must allege and prove that he suffered more than a de minimis physical injury. See Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999) ("for purposes of Eighth Amendment excessive-force claims — as well as for purposes of section 1997e(e) — 'the injury must be more than de minimis, but need not be significant.'"), citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (noting that [the plaintiff's] alleged injury of a sore, bruised ear lasting for three days was de minimis); see also Luong v. Hatt, 979 F. Supp. 481, 486 N.D.Tex. 1997) (noting that a sore muscle, aching back, scratch, abrasion or bruise, which lasts up to two or three weeks, is not the kind of physical injury within the parameters of § 1997e(e)). The Court advises the parties that the presence of physical injury beyond de minimis is crucial to whether there are damages (and therefore a constitutional violation) and whether § 1997e(e) has been satisfied (thereby allowing damages for mental or emotional injury). The parties should present their evidence and arguments accordingly.
Even if Alexander can prove damages and, thus, perhaps, a constitutional violation, qualified immunity protects government officials performing discretionary functions from personal liability as long as their conduct violates no clearly established constitutional or federal statutory rights. To overcome such an official's immunity from suit, a plaintiff must allege violation of a right so apparent or so obvious that a reasonable official would understand that what he is doing violates that right. When a defendant pleads qualified immunity, as Stokes has done here, the Court must initially determine whether the plaintiff has asserted a violation of a constitutional or statutory right at all. This is the first prong of a two-prong test. The Court need go no further if the plaintiff has failed to produce evidence that the defendant violated a constitutional or federal statutory right. If a violation is shown, the Court must reach the second prong, which is essentially two separate inquiries: whether the allegedly violated right was "clearly established" at the time of the incident; and, if so, whether the defendant's conduct was objectively unreasonable in light of clearly established law.
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Sorenson v. Ferrie, 134 F.3d 325, 327 (5th Cir. 1998)
See Anderson v. Creighton, 483 U.S. 635, 640 (1987)
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156 (2001) ("Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry"), citing Siegert v. Gilley, 500 U.S. 226, 231-32 (1991).
See Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.), cert. denied, 516 U.S. 995 (1995).
See Saucier, 533 U.S. 194, 121 S.Ct. at 2156 ("[T]he right the official is alleged to have violated must have been clearly established in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right'") (quoting Anderson, 483 U.S. at 640).
See Id ("[W]ould it be clear to a reasonable officer that his conduct was unlawful in the situation he confronted"), citing Wilson v. Layne, 526 U.S. 603, 615 (1999); see also, Siegert, 500 U.S. at 231-32; see also Hare v. city of Corinth, 135 F.3d 320, 326 (5th Cir. 1998)
Although the pleadings and evidence before the Court do not inform whether, at the time of the incidents in question, Alexander was a pre-trial detainee protected by the due-process clause of the Fourteenth Amendment or a convicted prisoner protected by the Eight Amendment, the essential question in an excessive-force claim is the same. It is, "'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.'" Courts are to consider the following factors in answering that question: (1) the extent of the injury suffered; (2) the need for the application of force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Thus, in order to ultimately resolve Defendant's motion for summary judgment based on qualified immunity, this Court must determine whether there are genuine factual disputes as to such material facts as the injury suffered, the force needed, the threat Stokes and fellow officers perceived, and any effort Stokes made to temper his response.
Rankin v. Kievenhagen, 5 F.3d 103, 106-07 (5th Cir. 1993) (applying the same standard under the Due Process Clause of the Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment). The Court notes that Defendant's citation to the Court of a legal standard that required proof of "significant injury," long ago rejected by both the Supreme Court and numerous Fifth Circuit cases, is in error at best and possibly sanctionable. The Court will address this improper citation at the time it rules on Plaintiff's motion for sanctions, which will be heard at the time of the trial of this matter.
Gomez, 163 F.3d at 923 (quoting Hudson v. McMillan, 503 U.S. 1, 6 (1992); see also Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir.), cert den'd, 509 U.S. 905 (1993); Brothers v. Kievenhagen, 28 F.3d 452, 455-56 (5th Cir.), cert den'd, 513 U.S. 1045 (1994); Rankin, 5 F.3d at 106.
Gomez, 163 F.3d at 923; see also Valencia, 981 F.2d at 1446-47.
A review of the summary judgment evidence leads to the inescapable conclusion that genuine disputes over facts material to the resolution of Stokes's qualified-immunity defense exist. Alexander alleges that he repeatedly pushed the medical call button because he experienced chest pains, and alleges that Stokes responded by threatening to place Alexander in a restraint chair. (Compl. ¶¶ 13-16; Alexander's January 1999 Affidavit attached as Exhibit A to Rule 7 Reply ("Alexander's January 1999 Affidavit).) Stokes alleges that Alexander pushed the button only to complain about when he would be transferred. (Stokes Dec. 14, 2001 at ¶ 3; Stokes Feb. 17, 1999 at 1; Sheriff's Dept. Report Appendix 7.) Stokes acknowledges that he made the request to Sergeant Sarver that Alexander be moved from the tank to an individual cell. In a statement apparently given as a part of a Tarrant County Sheriff's Department Internal Affairs ("Internal Affairs") review, Stokes acknowledged that Sarver ordered officers Fairbanks, Legget and Castillo to place Alexander in a restraint chair, yet Stokes decided that he should be "back-up." (Stokes Aff. Feb. 17, 1999 at 2.) Alexander alleges that he was completely strapped down in the restraint chair and the officers were leaving the room when he made a "smart remark" to Stokes, whereupon Stokes "almost ran back over to me and swung like the force of a fist, clenching his right hand around my throat and started choking me with all his strength." (Alexander's January 1999 Affidavit.) Alexander alleges that Stokes physically choked him and struck him about the face and hands, and that Stokes had to be physically restrained and pulled away from Alexander. (Compl. ¶¶ 19-22.) Alexander alleges that he was choked and unable to breathe. (Alexander January 1999 Affidavit.) In his December 2001 affidavit Stokes acknowledges grabbing Alexander's chin and that he had fingers both below and above Alexander's jaw as he turned his head. (Stokes Aff. Dec. 14, 2001 ¶ 5.) In contrast, in his February 1999 statement to Internal Affairs, Stokes stated that he had his right hand on Alexander's chin and the left hand on the back of his head. (Stokes Aff. Feb. 17, 1999 at 2.) Alexander alleges that Segeant Sarver and Officer Leggett had to physically pull Stokes off of him, and that Stokes raked his hands across Alexnder's neck as he released his grip. (Alexander January 1999 Affidavit.) Stokes contends in the most recent affidavit that he immediately backed away from Alexander when ordered by Sarver, but in the November 1998 report of the incident he acknowledged having to be restrained by Sarver and Legget; and in the 1999 Internal Affairs statement, Stokes stated that officer Sarver and Leggett had to assist him out of the area, and that "he offered no resistance [to his fellow officers] in being removed from the holdover." (Stokes Aff. Dec. 14, 2001 ¶ 6; Stokes Aff. Feb. 17, 1999 at 2; Sheriff's Dept. Report at Appendix 9.)
Similar contradictions are revealed in the statements of others who were at the scene. In his 1999 statement to Internal Affairs, Sergeant Sarver stated that he and Leggett "grasped Stokes by the arms and removed him," and Sarver wrote in the November 1998 report that after Stokes grabbed at Alexander's neck area he "turned and grasped Stokes by the right arm and deputy Leggett took his left arm." (Sarver Aff. Feb. 1, 1999; Sheriff's Dept. Report at Appendix 10.) But in his recent affidavit, Sarver claims that he "never even saw Stokes touch Mr. Alexander . . . and did not have to pull Deputy Stokes off of Mr. Alexander." (Sarver Aff. Dec., 13, 2001 ¶ 4.) Deputy Kenneth Wilkins's recent affidavit failed to include the statement he provided to Internal Affairs that "Stokes told me he grabbed Alexander around the throat and he just lost it;" and Wilkins failed to include the statement that Stokes had said "'I'm not going to let any son of a bitch spit on me!'" (Wilkins Aff. Dec. 14, 2001 ¶¶ 3-4; Wilkins Aff. Feb. 2, 1999 at Appendix 18.)
Furthermore, deputy John W. Leggett's February 1999 statement directly contradicts the substance of much of Stokes's witnesses' recent statements. Leggett's February 1999 statement indicates that Alexander was already restrained and that everyone else had left the room before Stokes re-entered and approached the completely immobilized Alexander:
We placed Alexander in the chair which is located in Holdover #2 without incident. Due to the restraints, Alexander was, at this point, physically immobilized and could not move his arms, hands, legs, or body. The purpose of these restraints are to prevent the inmate from being able to injure himself or anyone else. We exited the holdover and Officer James Stokes entered the holdover, went across, was on the side of the chair furthest from the door and said something to the inmate. I don't know why Stokes entered the holdover at that point. Deputy James Stokes then exited the holdover, and as he passed out of the doorway, Alexander spit, striking him on the back. Stokes then turned around and rushed toward the inmate. I did hear Stokes say something to the effect of, "'Don't you ever spit on me again!" I grabbed Stokes' left shoulder as Sergeant Sarver grabbed his right shoulder and we had to physically remove Stokes from the holdover. Stokes was in between myself and Alexander and it was impossible for me to tell if any contact was made. . . Stokes lost it during this incident. I don't know if he was even aware of what he was doing. His anger was so high, it was unbelievable. I would have felt uncomfortable with him at that point.
(Leggett Aff. Feb. 1, 1999 at Appendix 46.)
A review of the facts as alleged by Alexander, along with consideration of the factual inconsistencies of the statement of Stokes's witnesses read in the light most favorable to Alexander, reveals that Officer Stokes's conduct violated Alexander's right to be free from force that was employed for the purpose of causing harm. Assuming the facts as alleged by Alexander, and resolving all inconsistent statements by Stokes's witnesses in Alexander's favor, one could conclude that Alexander sought medical attention, was refused medical attention, and was instead disciplined and strapped in a restraint chair, only to then be aggressively choked by an officer who was stopped only by the intervention of his fellow officers. On this favorable view of the parties' submissions, Alexander has made out a violation of a constitutional right.
The next step in the inquiry is to resolve whether, taking the facts in the light most favorable to Alexander, the constitutional right was clearly established in light of the specific context of this case. The context of this case is the appropriateness of Stokes's actions in employing force and whether that force was used to either maintain or restore discipline, or directly to cause harm. Plaintiff has presented copies of a Tarrant County policy statement on the provision of medical service for inmates, which includes the directive that "[a]n officer on the scene of a medical emergency shall contact Security Control." (Tarrant County Confinement Bureau Policy and procedure page 5 of 6.) Assuming the facts as alleged by Alexander, he sought medical attention for chest pains. But Stokes ignored him. Furthermore, once Alexander was completely immobilized in the restraint chair, Stokes's employment of physical force was arguably inconsistent with the Tarrant County policy statement on the use of force, and inconsistent with his responsibility not to employ force for the purpose of causing harm.
The summary judgment record of Alexander's allegations, Alexander's prior statement, the sworn statement of officer John W. Leggett, and the inconsistent statements of Stokes, Sarver and Wilkins reveal that there are genuine factual disputes which must be resolved that are material to the. resolution of whether it would be clear to a reasonable officer that Stokes's conduct was unlawful. The conflicting statements are sufficient to create genuine issues concerning the material facts of whether Plaintiff initially requested medical care or was merely disruptive, whether Stokes was actually involved in the placement of Alexander in the restraint chair or entered the room after Alexander was completely restrained, whether Stokes spoke to or provoked Alexander after he was immobilized, whether Alexander spat on Stokes, whether Stokes choked Alexander, whether Stokes scratched, bruised or otherwise left marks on Alexander, and whether Stokes had to be physically restrained and pulled away from Alexander. These issues of fact are genuine. If the factual disputes were resolved in Alexander's favor as to each of these questions, a reasonable factfinder could return a verdict for Alexander.
See White v. Balderama, 153 F.3d 237, 240 (5th Cir. 1998) (describing genuine issues as those issues of fact that would be sufficient to permit a factfinder to return a verdict for the nonmoving party).
Furthermore, this Court determines that these genuine disputes of fact are material to the resolution of the issues to be resolved under the governing law applicable to this case. In this regard, this Court must apply the factors recognized by the Fifth Circuit to resolve whether the force employed by Stokes was applied as a part of a good faith effort to restore discipline, or sadistically for the purpose to cause harm. This inquiry is often said to mandate a "highly fact-specific inquiry." Such fact-specific inquiry is necessitated in this case, and live testimony will permit the trier of fact to make informed credibility assessments where, especially in a case such as this, the witnesses' factual descriptions of what happened during the brief period in question, are so at variance with one another. Because this Court finds that there are genuine factual issues material to the resolution of whether Stokes employed force for the very purpose of causing harm, and whether it was clear to a reasonable officer that Stokes's use of force was unlawful in the situation he confronted, Stokes's motion for summary judgment must be denied.
See Fickes v. Jefferson county, 900 F. Supp. 84, 91 (E.D.Tex. 1995), citing Valencia v. Wiggins.
Id.
It is therefore ORDERED that the December 14, 2001 Motion for Summary Judgment of defendant James Stokes [document no. 86-2] be, and is hereby, DENIED.