Opinion
3-00-CV-2377-M
August 9, 2002
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order of reference filed on January 22, 2002, came on to be considered Defendant Roger A. Rudloff's Motion to Dismiss and/or Motion for Summary Judgment filed on January 17, 2002. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
In addressing the issues raised in Defendant Rudloff's motion the magistrate judge has also considered Plaintiff's answers to the Magistrate Judge's Questionnaire filed on February 14, 2001, Plaintiff's response to Defendant's motion filed on March 25, 2002, Plaintiff's motion to amend his response to Defendant's motion filed on April 12, 2002, and Defendant's motion to strike Plaintiff's response and motion to amend response filed on April 29, 2002, which have been referred to the magistrate judge as well.
FINDINGS AND CONCLUSIONS:
Plaintiff has sued Defendant in Defendant's individual capacity claiming that Rudloff used excessive force in effecting his arrest on November 17, 1999. In his motion Defendant seeks an order of dismissal and/or an order granting summary judgment on Plaintiff's claims.
Insofar as Defendant seeks dismissal upon a claim that Plaintiff's pleadings do not satisfy the "heightened pleading" requirement, I am of the opinion that the viability of this requirement set out in Elliot v. Perez, 751 F.2d 1472 (5th Cir. 1985), is at best questionable in light of the United States Supreme Court's unanimous opinion in Swierkiewicz v. Sorema N.A., ___ U.S. ___, 122 S.Ct. 992 (2002). Although the Supreme Court reviewed a "heightened pleading" requirement adopted by the Second Circuit in Title VII cases, the Court held that "[F.R.Civ.P.] 8(a)'s simplified standard applies to all civil cases, with limited exception", none of which are applicable in the present case. "Thus, complaints . . . must satisfy only the simple requirements of Rule 8(a)." 122 S.Ct. at 998 (Emphasis added).
Moreover, under the liberal standard to be applied to prisoner pro se complaints, Plaintiff's complaint coupled with his answers to the magistrate judge's questionnaire, which were filed prior to the issuance of process satisfy the "heightened pleading" requirement in Elliot v. Perez. Therefore, Defendant's motion to dismiss should be denied.
In considering Defendant's motion as a motion for summary judgment it is pertinent to set out the standards which govern.
I. Standard of Review: To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catreet, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Once the moving party has made an initial showing, the party opposing the motion for summary judgment must come forward with competent evidentiary materials to establish genuine issues of fact. Id. at 256-257, 106 S.Ct. at 2514; see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986). The court must resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to Johnson, drawing all factual inferences therefrom and making all credibility determinations related therefrom in its favor.
II. Applicable Law: Section 1983 provides that, "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected, any . . . person within the jurisdiction [of the United States] to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983. Therefore, an actionable § 1983 claim must allege a deprivation of rights secured by the Constitution by a person acting under color of state law. Daniels v. Williams, 474 U.S. 327, 329-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986).
Qualified immunity shields government officials performing discretionary functions "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). When sued in his individual capacity, a governmental employee is entitled to a presumption of qualified immunity from suit. See Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). abrogated on other grounds by, Martin v. Thomas, 973 F.2d 449 (5th Cir. 1992). To overcome this presumption, the plaintiff has the burden to prove that no reasonable, similarly situated officer could have considered the conduct of the official to be lawful, under the circumstances known to him at the time. See Anderson, 483 U.S. at 640-41, 107 S.Ct. at 3039-40. The objective reasonableness of an official's conduct is measured with reference to the law as it existed at the time of the conduct in question. King v. Chide, 974 F.2d 653, 657 (5th Cir. 1992). Therefore, the right which the official is alleged to have violated must have been clearly established at the time of the occurrence. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.
The examination of a claim of qualified immunity is a two-step process. Preliminarily, a court must determine whether the plaintiff has alleged the violation of a constitutional right. Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). If the plaintiff has asserted the violation of a constitutional right, the court must then determine whether that right was so clearly established that a reasonable official in the defendant's situation would have understood that his conduct violated that right. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (qualified immunity turns on the "objective legal reasonableness" of the action assessed in light of rules that were "clearly established" at the time of the action); Brewer, 3 F.3d at 820. See also Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (when the court has a clear picture of what occurred during an incident giving rise to a qualified immunity defense, the "reasonableness" question becomes one of law). The Fifth Circuit has recognized that "the qualified immunity standard 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'" Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1994) (quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991)).
Established law clearly provides that plaintiff has a Fourteenth Amendment right to be free from the use of excessive force by police. "Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen . . . must be judged by reference to the Fourth Amendment's 'reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The Court, however, must take care not to substitute its judgment for that of the reasonable officer on the scene. See Id.. at 396, 109 S.Ct. at 1872. In considering "reasonableness," the court must include allowances for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation. Id. at 396-97, 109 S.Ct. at 1872. To that end, the Fifth Circuit has adopted the following three-prong test for excessive force cases: the plaintiff must show (1) at least some injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need, and the excessiveness of which was (3) objectively unreasonable. See Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996) (citing Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993)).
III. ANALYSIS: The parties' summary judgment evidence is wholly congruent up to a point. On the date in question Plaintiff was detained by Defendant who was in the process of handcuffing Plaintiff and had placed a handcuff on Plaintiff's right wrist. At this point in time Plaintiff broke free of the officer and began to flee on foot. See Affidavit of Roger Rudloff, Plaintiff's answer to Question 2 of magistrate judge's questionnaire; and Plaintiff's affidavit executed on December 29, 1999, attached to Plaintiff's motion to amend filed on April 12, 2002.
From the point that Plaintiff fled from Defendant until he was removed from the scene to Baylor Hospital for medical treatment the parties' versions of the events are in sharp contrast. For his part Defendant claims that in an effort to apprehend and subdue Plaintiff both fell several times and in one instance Plaintiff fell and struck his head on a raised portion of the sidewalk. Before back-up assistance arrived, Defendant concedes that he struck Plaintiff on his right arm and shoulder three times with his flashlight, but not on Plaintiff's head. Subsequently, with the assistance of Officer Smith, Plaintiff was handcuffed. Defendant has also presented the affidavit of Dorothy A. Tolliver, which related her observation of Plaintiff on top of Defendant and punching him. She denied seeing any officer strike Plaintiff after he was subdued. Defendant also presented the affidavit of James Curtis Russ, II, one of the paramedics who arrived at the scene. Russ related that Plaintiff confirmed the officer's story that he sustained the head wound when he fell and struck the sidewalk.
It appears that the affidavits of Plaintiff, Dorothy A. Tolliver and James Curtis Russ — all executed before Michael J. McCarthy, Notary Public — were part of an internal affairs investigation.
Plaintiff's summary judgment evidence, on the other hand, states that while lying prone on the ground, after deciding to give up, he was kneed in the back by Defendant and was struck in the head by the officer at least twice with either a gun or a flashlight. Plaintiff also related that Defendant beat him in the face with his hands.
A police officer's use of force, including striking a person fleeing from an attempted arrest with a flashlight or baton can neither be categorized as an excessive use of force, nor force which was objectively unreasonable. See also Saucier v. Katz, ___ U.S. ___, 121 S.Ct. 2151, 2156 (2001). On the other hand, repeated blows administered to a person, lying passively on the ground, which resulted in physical injury fall outside the outer bounds of qualified good faith immunity. In light of the requirement that the court must resolve any factual issues in favor of the non-moving party — in this case Plaintiff — Defendant's motion for summary judgment should be denied.
In Johnston v. City of Houston, 14 F.3d 1056, (5th Cir. 1994), the Fifth Circuit rejected the defendant's claim to summary judgment on the qualified immunity issue because "[d]ivergent versions of what happened" had been offered by the parties. Id. at 1058. In Johnston, the court held that because a genuine dispute as to the material and operative facts of the case existed ". . . . [s]ummary judgment is inappropriate unless plaintiff's version of the violations does not implicate clearly established law." Id. at 1061. Subsequently, in Goodson v. City of Corpus Christi, 202 F.3d 730 (5th Cir. 2000) (citing Johnston), the Fifth Circuit held that a court cannot draw a conclusion of law from disputed facts. Id. Moreover, a case which turns on the credibility of witnesses' testimony should not be resolved on summary judgment. See Bazan v. Hidalgo County, 243 F.3d 481, 492 (5th Cir. 2001).
RECOMMENDATION:
For the foregoing reasons it is recommended that Defendant Rudloff's Motion to Dismiss and/or Motion for Summary Judgment be denied.
A copy of this recommendation shall be transmitted to Plaintiff and to Defendant's counsel of record.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.