Opinion
Civil Action No. 4:17-CV-1745
2021-08-31
Sheketha HOLMAN, et al., Plaintiffs, v. Leland A. FAIRCHILD, et al., Defendants.
Alexander Charles Johnson, Kallinen Law, PLLC, U.A. Lewis, The Lewis Law Group, Randall Lee Kallinen, Attorney at Law, Houston, TX, for Plaintiff Sheketha Holman. Brandon Marc Draper, Assistant County Attorney, Jennifer F. Callan, Amy Magness VanHoose, James Carroll Butt, Harris County Attorney's Office, Defensive Litigation, Houston, TX, for Defendants Leland A. Fairchild, Dinnie R. Calhoun, Texas Harris County.
Alexander Charles Johnson, Kallinen Law, PLLC, U.A. Lewis, The Lewis Law Group, Randall Lee Kallinen, Attorney at Law, Houston, TX, for Plaintiff Sheketha Holman.
Brandon Marc Draper, Assistant County Attorney, Jennifer F. Callan, Amy Magness VanHoose, James Carroll Butt, Harris County Attorney's Office, Defensive Litigation, Houston, TX, for Defendants Leland A. Fairchild, Dinnie R. Calhoun, Texas Harris County.
ORDER
VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE
Pending before the Court are the Motion for Summary Judgment and Motion to Strike filed by Defendants Leland Fairchild, Dinnie Calhoun, Rawltyn Hart, and Harris County. (Instruments No. 109; No. 126).
I.
A.
This case arises from an arrest at a Valero gas station ("Valero") in Houston, Texas. (Instrument No. 109 at 8). Plaintiff Sheketha Holman ("Plaintiff") filed this suit against Leland Fairchild ("Fairchild"), Dinnie Calhoun ("Calhoun"), Rawltyn Hart ("Hart"), in their individual capacities (collectively, the "Sheriffs Deputies"), and Harris County, Texas ("Harris County") (hereinafter, collectively referred to as "Defendants"). Id. The Defendants Fairfield, Calhoun, and Hart are officers employed by the Harris County Sheriff's Office and were assigned to the North Houston Task Force. (Instrument No. 109 at 9).
On November 16, 2016, Defendant Fairchild arrested Plaintiff at Valero for criminal trespass. (Instrument No. 109 at 11). At the time of this incident, Plaintiff was confined to a wheelchair. (Instrument No. 109 at 11). Prior to Plaintiff's arrest, Defendant Fairchild responded to a call from Deputy Jose Gonzalez ("Deputy Gonzalez") requesting backup at Valero for an unrelated incident. Id. at 8-9. Defendants assert that "it appeared that a riot was forming." Id. at 10. After arriving at Valero, Defendant Fairchild spoke with Valero manager, Aleish Solesta ("Solesta"). Id. According to Defendant Fairchild, Solesta wanted everyone on the Valero lot to leave immediately if they were not there for business or be arrested for trespassing. Id. Defendant Fairchild directed Plaintiff to leave Valero. (Instruments No. 109 at 11; No. 118 at 5). Plaintiff started complying with Defendant Fairchild's order to leave by rolling her wheelchair towards her car. Id.
Plaintiff contends that she tried to open her car door before stopping to photograph Defendant Fairchild and write down his comments. (Instrument No. 118 at 5). Defendant Fairchild contends that Plaintiff re-entered the scene. (Instrument No. 109 at 11). The video footage reveals that Plaintiff moved towards her car while simultaneously conversing with Defendant Fairchild. (Instrument No. 132 [7:31-7:40]). Plaintiff opened her car door and then stopped to write on her notepad and held up her cell phone as to take a photo or record Defendant Fairchild. (Instrument No. 132 [7:41-7:51]).
Defendants Fairchild and Calhoun, and Deputy Gonzalez attempted to effect Plaintiff's arrest while she was seated in her wheelchair at the door of her car. (Instrument No. 132 [8:04-23]). Defendant Fairchild first initiated the arrest by grabbing Plaintiff's arm. (Instrument No. 132 [7:52-7:54]) Defendants Fairchild, and Calhoun, and Deputy Gonzalez struggled to place Plaintiff's arms behind her back. (Instrument No. 132 [7:55-8:28]). Plaintiff requested to be handcuffed in the front because of her limited mobility in the wheelchair. (Instrument No. 119 at 4). At some point, Defendant Fairchild drew his taser, Defendant Calhoun and Deputy Gonzalez stepped away from Plaintiff, and Defendant Fairchild fired the taser at Plaintiff's back from afar and then dry tased her back. (Instrument No. 132 [8:24-35]). Plaintiff fell out of her wheelchair and onto the ground, and Defendants Calhoun and Deputy Gonzalez handcuffed Plaintiff using two sets of handcuffs. (Instrument No. 132 [8:33-9:20]).
Plaintiff stated that she sustained several injuries and was taken to the hospital. (Instrument No. 118 at 6).
B.
On June 8, 2017, Plaintiff filed her Original Complaint against Defendants Fairchild, Calhoun, and Hart, and Deputy Gonzalez. (Instrument No. 1). Among other claims pleaded, Plaintiff's Original Complaint included claims of excessive force, unreasonable seizure, false arrest, and false imprisonment. (Instrument No. 1 at 6-7). On April 19, 2018, the Court granted a Notice of Dismissal for Defendant Hart. (Instrument No. 49).
On November 16, 2018, Plaintiff filed her First Amended Complaint against Defendants Fairchild, Calhoun, Hart, Deputy Gonzalez, and Harris County. (Instrument No. 58). It does not appear that Deputy Gonzalez was ever served in this lawsuit.
On January 15, 2019, Plaintiff filed her Second Amended Complaint. (Instrument No. 68). In her Second Amended Complaint, Plaintiff asserted the following causes of action as to all Sheriff's Deputies: (1) excessive force under the Fourth Amendment; and (2) false arrest under the Fourth Amendment. (Instrument No. 68 at 11-14). Plaintiff additionally asserted a failure to intervene claim against Defendants Calhoun and Hart. (Instrument No. 68 at 12-14). Lastly, Plaintiff asserted a Monell liability claim of ratification and/or pattern and practice of excessive force, an Americans with Disabilities Act disability discrimination claim, and a Section 504 of the Rehabilitation Act claim against Harris County. (Instrument No. 68 at 15, 18).
On February 11, 2021, Defendants Fairchild, Calhoun, Hart, and Harris County filed their Motion for Summary Judgment. (Instrument No. 109). Defendants Fairchild, Calhoun, Hart, and Harris County assert that the following claims should be dismissed as a matter of law: (1) Fourth Amendment excessive force claim; (2) Fourth Amendment false arrest claim; (3) failure to intervene claim; (4) § 1983 claims; (5) Americans with Disabilities Act claim; and (6) Section 504 of the Rehabilitation Act claim. (Instrument No. 109 at 12-27). Defendants Fairchild, Calhoun, and Hart assert, as an affirmative defense, qualified immunity. (Instrument No. 109 at 15-17).
On March 30, 2021, Plaintiff filed her Response to Defendants Fairchild, Calhoun, Hart, and Harris County's Motion for Summary Judgment. (Instrument No. 118). On March 31, 2021, Plaintiff filed a Motion for Extension of Time to Respond to Defendants Fairchild, Calhoun, Hart, and Harris County's Motion for Summary Judgment. (Instrument No. 125). On April 5, 2021, Defendants Fairchild, Calhoun, Hart, and Harris County filed their Response to Plaintiff's Motion for Extension of Time, Motion to Strike Plaintiff's Response, and Reply in Support of their Consolidated Motion for Summary Judgment. (Instrument No. 126). On April 23, 2021, the Court entered an order granting Plaintiff's Motion for Extension of Time. (Instrument No. 128).
On April 19, 2021, Defendant Harris County filed its Motion for Leave to File Supplemental Authority. (Instrument No. 127). On May 11, 2021, the Court granted Defendant Harris County's Motion for Leave to File Supplemental Authority. (Instrument No. 129).
On May 13, 2021, Defendants Fairchild, Calhoun, Hart, and Harris County filed a Supplemental Brief in Support of Their Motion for Summary Judgment. (Instrument No. 131). On May 27, 2021 Plaintiff filed a Response to Defendants Fairchild, Calhoun, Hart, and Harris County's Supplemental Brief. (Instrument No. 134).
II.
As an initial matter, Defendants filed a Motion to Strike Plaintiff's Response because it was untimely. (Instrument No. 126). Prior to Defendants’ Motion, Plaintiff filed a Motion requesting an extension of a half day to respond to Defendants’ Motion for Summary Judgment. (Instrument No. 125). The Court granted Plaintiff's Motion and considered Plaintiff's Response timely. (Instrument No. 128).
Accordingly, Defendants’ Motion to Strike is DENIED. III.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Warfield v. Byron , 436 F.3d 551, 557 (5th Cir. 2006) ; see also Fed. R. Civ. P. 56(a).
The "movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc. , 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex , 477 U.S. at 322-25, 106 S.Ct. 2548 ). "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Fisk Elec. Co. v. DQSI, L.L.C. , 894 F.3d 645, 650 (5th Cir. 2018) (internal quotations omitted); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by "showing — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex , 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." United States v. $92,203.00 in U.S. Currency , 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
After the moving party has met its burden, in order to "avoid a summary judgment, the nonmoving party must adduce admissible evidence which creates a fact issue concerning the existence of every essential component of that party's case." Thomas v. Price , 975 F.2d 231, 235 (5th Cir. 1992). The party opposing summary judgment cannot merely rely on the contentions contained in the pleadings. Little , 37 F.3d at 1075. Rather, the "party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim." Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 457, 458 (5th Cir. 1998) ; see also Baranowski v. Hart , 486 F.3d 112, 119 (5th Cir. 2007). Although the court draws all reasonable inferences in the light most favorable to the nonmoving party, Connors v. Graves , 538 F.3d 373, 376 (5th Cir. 2008), the nonmovant's "burden will not be satisfied by some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Boudreaux , 402 F.3d at 540 (quoting Little , 37 F.3d at 1075 ). Similarly, "unsupported allegations or affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary judgment." Clark v. Am.’s Favorite Chicken , 110 F.3d 295, 297 (5th Cir. 1997).
In deciding a summary judgment motion, the district court does not make credibility determinations or weigh evidence. E.E.O.C. v. Chevron Phillips Chem.Co., LP , 570 F.3d 606, 612 n.3 (5th Cir. 2009). Nor does the court "sift through the record in search of evidence to support a party's opposition to summary judgment." Jackson v. Cal-Western Packaging Corp. , 602 F.3d 374, 379-80 (5th Cir. 2010) ; Malacara v. Garber , 353 F.3d 393, 405 (5th Cir. 2003) ; Ragas , 136 F.3d at 458 ; Nissho-Iwai Am. Corp. v. Kline , 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary "that the entire record in the case ... be searched and found bereft of a genuine issue of material fact before summary judgment may be properly entered"). Therefore, "[w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court." Malacara , 353 F.3d at 405.
IV.
Defendants Fairchild, Calhoun, Hart, and Harris County collectively filed a Motion for Summary Judgment. (Instrument No. 109). Harris County moves for summary judgment on Plaintiff's Monell liability claim, American with Disabilities Act claim, and Section 504 of the Rehabilitation Act claim. Id. Defendants Fairchild, Hart, and Calhoun move for summary judgment on Plaintiff's excessive force and false arrest claims. Id. Additionally, Defendants Hart and Calhoun move for summary judgment on Plaintiff's failure to intervene claim. Id.
A.
1.
Harris County moves for summary judgment on the Monell claims of excessive force and failure to train and/or supervise. (Instrument No. 109 at 18, 22). However, Plaintiff does not assert a failure to train and/or supervise claim. (Instrument No. 68). Plaintiff's Response does not address Harris County's failure to train and/ supervise arguments. Accordingly, the Court will address the excessive force claim.
For plaintiffs to prevail on their municipal liability claim, they must establish (1) a policymaker; (2) an official policy or custom; and (3) a violation of a constitutional right whose "moving force" is the policy or custom. Piotrowski v. City of Houston , 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). Harris County alleges that Plaintiff cannot establish the second and third elements. (Instrument No. 109 at 18-20).
Regarding the second element, Harris County contends that Plaintiff cannot prove that there is a policy or custom of inflicting excessive force. (Instrument No. 109 at 20-22). Here, Plaintiff contends that Harris County had a widespread practice of allowing the use of excessive force. (Instrument No. 118 at 15-16).
A custom or practice may support municipal liability, when there is:
a persistent, widespread practice of ... employees, which, 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. If actions of city employees are to be used to prove a custom for which the municipality is liable, those actions must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees.
Webster v. City of Houston , 735 F.2d 838, 841 (5th Cir. 1984). Plaintiff proffers two of Keith Howse's ("Expert's") reports to establish a practice. (Instrument No. 118 at 15-16). Plaintiff cites to the Expert's first report, which states:
[P]ast incidents of excessive force by the HCSO have been reported and previous
incidents of excessive force by HCSO deputies or jailers may indicate support or ratification of excessive force by HCSO personnel and management, particularly with regard to whether deputies are disciplined for use of force and policy violations.
(Instruments No. 118 at 15; No. 118-1 at 11). Further, the Expert's second report summarizes multiple excessive force incidents involving specific individuals, a 2009 U.S. Department of Justice report detailing the use of excessive force in Harris County's jail, and a 2015 Houston Chronicle report investigating the use of excessive force in Harris County's jail. (Instrument No. 120-2 at 11-13). Plaintiff's Expert's second report indicates that there are at least seven incidents of excessive force that occurred between 2014 and 2016. (Instrument No. 120-2 at 11-13). The methods of excessive force described in this report include tasing, punching, pushing, using a prone and hog-tied position, slapping, and kicking. Id. In its reply, Harris County argues that three of the cases cited by Plaintiff involve incidents at the Harris County Jail and one case involves the user of Taser. (Instrument No. 126 at 7). Additionally, Harris County argues that the U.S. Department of Justice report and Houston Chronicle article focused on incidents at the Harris County Jail and are therefore irrelevant. (Instrument No. 126 at 8). Harris County notably does not state that it lacked knowledge about its deputies’ use of excessive force. (Instrument No. 126 at 7-8). Given the nature of the excessive force in Plaintiff's case and the Expert's reports, the Court finds that a reasonable jury could find a custom and practice of using excessive force in the Sheriff's department.
Harris County also contends that Plaintiff cannot establish the third element of her Monell liability claim. (Instrument No. 109 at 21-22). To establish the third element, a plaintiff must show that the custom was the "moving force" of the constitutional deprivation." Piotrowski , 237 F.3d at 580 (citing Monell , 436 U.S. at 694, 98 S.Ct. 2018 ). "A plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of Comm'rs of Bryan Cnty. v. Brown , 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
Plaintiff asserts, "to the extent that the custom and practice of Harris County is for law enforcement officers to engage in excessive force, that custom was clearly the driving force behind the violation of [Plaintiff's] right here, as it is what led Deputy Fairchild to believe he was justified in tasing her." (Instrument No. 118 at 16). As discussed above, the Plaintiff proffered evidence that indicates that there was a custom and practice of allowing the use of excessive force by Harris County's deputies. Notably, Defendant Harris County does not respond to Plaintiff's assertions. (Instrument No. 126 at 7-8). Thus, the Court finds that Plaintiff has raised a material fact issue for the jury.
Accordingly, Harris County's Motion for Summary Judgment is DENIED as to this claim. (Instrument No. 109).
2.
Harris County also moves for summary judgment on Plaintiff's American with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Section 504") claims. (Instrument No. 109 at 24-26). The ADA and Section 504 use the same legal standards and make available the same legal remedies. See Kemp v. Holder , 610 F.3d 231, 234 (5th Cir. 2010) (using the ADA standard to determine both ADA and Section 504 claims). Because the jurisprudence interpreting either section is applicable to both, the Court will address Plaintiff's ADA claim. See Cadena v. El Paso County , 946 F.3d 717, 723-24 (5th Cir. 2020) ; Delano-Pyle v. Victoria County , 302 F.3d 567, 574 (5th Cir. 2002).
Title II of the ADA provides: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. It further defines "public entities" to include local governments. § 12131(1)(A). And it creates a private right of action against them for monetary and equitable relief. See § 12133. These provisions allow individuals to sue local governments for disability discrimination committed by police in non-exigent circumstances. See Delano-Pyle v. Victoria Cnty. , 302 F.3d 567, 570–71, 574–76 (5th Cir. 2002) ; Hainze v. Richards , 207 F.3d 795, 802 (5th Cir. 2000).
To make out a prima facie case under Title II, a plaintiff must show (1) that she is a qualified individual within the meaning of the ADA; (2) that she is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of her disability. Windham v. Harris Cnty. , 875 F.3d 229, 235 (5th Cir. 2017).
The Court notes that Harris County only addresses the third element in its analysis. Harris County argues that Plaintiff cannot establish the prima facie case because there is no evidence that Plaintiff requested that the Sheriff's Deputies or any other person accommodate her disability, or that she notified the Sheriff's Deputies that she was disabled. (Instrument No. 109 at 26). Additionally, Harris County argues that it would not be clear to a reasonable officer that Plaintiff was disabled. Id.
The third prong may also be satisfied by a public entity's failure to reasonably accommodate the known limitations of a person with disabilities. Windham v. Harris Cnty. , 875 F.3d 229, 235 (5th Cir. 2017). On a failure to accommodate claim, "the burden falls on the plaintiff ‘to specifically identify the disability and resulting limitations,’ and to request an accommodation in ‘direct and specific’ terms." Id. at 237 (citations omitted). "When a plaintiff fails to request an accommodation in this manner, he can prevail only by showing that ‘the disability, resulting limitation, and necessary reasonable accommodation’ were ‘open, obvious, and apparent’ to the entity's relevant agents." Id. (citations omitted). "A plaintiff asserting a private cause of action for violations of the ADA ... may only recover compensatory damages upon a showing of intentional discrimination." Delano-Pyle v. Victoria Cnty. , 302 F.3d 567, 574 (5th Cir. 2002).
Here, the Court finds that Plaintiff has raised a fact issue as to whether she notified the Sheriff's Deputies of her disability, requested an accommodation, and whether her disability was " ‘open, obvious, and apparent’ to the entity's relevant agents." In her Response, Plaintiff contends that she notified the Sheriff's Deputies of her disability and requested that she be handcuffed in the front of her body instead of behind her back. (Instrument No. 118 at 17). Plaintiff proffers as evidence her sworn statement provided in the Harris County Sheriff's Office Internal Affairs Case Summary Report. (Instrument No. 119 at 3-5). In her sworn statement, Plaintiff states:
Deputy Fairchild approached me and ordered me to put my hands behind my back however I advised him I have a back injury and am unable to put my hands behind my back or even walk ... I motioned to Deputy Fairchild to handcuff me in the front by putting both my hands up in front of me and telling them I was not trying to resist or not obey the commands given. I advised Deputy Fairchild that I was able to drag my legs, hold on to my car door then sit on my wheelchair.
(Instrument No. 119 at 4). This statement is a clear indication that Plaintiff notified Defendant Fairchild of her disability and limited mobility, and that she needed an accommodation. Defendants’ Reply fails to address Plaintiff's sworn statement and instead focuses on whether Plaintiff's claim is based on a proper or wrongful arrest. (Instrument No. 126 at 8). Plaintiff also argues that her disability should have been obvious to the Defendants. (Instrument No. 118 at 17). Plaintiff asserts that during the incident and prior to her being tased, she was either sitting in her car or in her wheelchair. Id. Additionally, Plaintiff contends and the evidence shows that she was not physically capable of putting her hands behind her back due to her position in the wheelchair. (Instrument No. 132 [7:50-8:28]). Harris County argues that even if Plaintiff had a valid claim, "the surveillance footage shows that she used her feet to drive, provide support to pull herself up and sit down, and take steps/push herself forward and backward, and that she has a wide range of motions with her arms." (Instrument No. 126 at 8).
Viewing the evidence in the light most favorable to the nonmovant, the video shows that Plaintiff was seated in a wheelchair and that her disability was open, obvious, and apparent to the deputies on the scene. Plaintiff used her wheelchair to move around Valero. (Instruments No. 109 at 11; No. 118 at 9). Plaintiff requested an accommodation. (Instrument No. 119 at 4).The Court finds that Plaintiff has raised a fact issue related to her claim under the ADA.
Because the analysis is the same for the Section 504 of the Rehabilitation Act, Plaintiff has also raised an issue of fact for her claim under Section 504 of the Rehabilitation Act.
Accordingly, Harris County's Motion for Summary Judgment on the ADA and Section 504 of the Rehabilitation Act claim is DENIED.
B.
Defendants Fairchild, Hart, and Calhoun each move for summary judgment on Plaintiffs excessive force, the failure to intervene, and false arrest claims. (Instrument No. 109 at 12-17). The Sheriff's Deputies assert they are entitled to qualified immunity on Plaintiff's claims. (Instrument No. 109 at 16). The Sheriff's Deputies contend that they are entitled to qualified immunity because there is no underlying constitutional violation. (Instrument No. 109 at 16).
Qualified immunity is an affirmative defense that shields government officials from liability "when their actions could reasonably have been believed to be legal." Morgan v. Swanson , 659 F.3d 359, 371 (5th Cir. 2011). The defense is available to government officials who perform discretionary functions "insofar as their conduct does not violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The plaintiff bears the burden of negating qualified immunity once it has been properly raised by the defendant. Collier v. Montgomery , 569 F.3d 214, 217 (5th Cir. 2009). The plaintiff must either show that the defendant committed an unreasonable violation of a clearly established law or demonstrate a fact issue for the fact finder. Thompson v. Mercer , 762 F.3d 433, 437, 441 (5th Cir. 2014) ; Michalik v. Hermann , 422 F.3d 252, 262 (5th Cir. 2005). The plaintiff cannot rest on conclusory allegations and assertions, but rather must demonstrate genuine issues of material fact regarding the reasonableness of the official conduct. Id.
Courts apply a two-prong test to determine whether a plaintiff has met this burden: (1) whether a constitutional right would have been violated on the facts alleged, and (2) whether the right at issue was "clearly established" at the time of the misconduct, rendering the conduct objectively unreasonable. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan , 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Courts are permitted to exercise their sound discretion in determining which of the two prongs to address first. Pearson , 555 U.S. at 236, 129 S.Ct. 808.
1.
Plaintiff sued the Sheriff's Deputies in their individual capacities, asserting excessive force, the failure to intervene, and false arrest by the Sheriff's Deputies. (Instrument No. 68 at 11). Defendants Fairchild, Hart, and Calhoun move for summary judgment and assert that qualified immunity bars these claims. (Instrument No. 109 at 12-17).
With the qualified immunity framework in mind, the Court turns to the first prong of the inquiry, which is whether a constitutional right would have been violated based on the facts alleged. As to Plaintiff's claim of excessive force, Plaintiff alleges that Defendants Fairchild, Hart, and Calhoun violated Plaintiff's Fourth Amendment right to be free of excessive force during the course of the Sheriff's Deputies’ arrest of Plaintiff. (Instrument No. 118 at 7-10). Specifically, Plaintiff alleges that the tasing of Plaintiff while she was at the gas station was unconstitutional. Id.
To establish a Fourth Amendment excessive force claim, Plaintiff must establish: "(1) an injury that (2) resulted directly and only from a use of force that was excessive to the need and that (3) the force used was objectively unreasonable." Flores v. City of Palacios , 381 F.3d 391, 396 (5th Cir. 2004) (internal citations omitted). This inquiry is "necessarily fact-intensive." Deville v. Marcantel , 567 F.3d 156, 167 (5th Cir. 2009). The Court must analyze whether the officer's actions were "objectively reasonable" in light of the circumstances confronted. Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whether the force used is excessive or unreasonable depends on the facts and circumstances of each particular case, and factors to consider include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Joseph on behalf of Est. of Joseph v. Bartlett , 981 F.3d 319, 332 (5th Cir. 2020).
As to the first element of excessive force, the video evidence demonstrates that Plaintiff was tased in her back and fell out of her wheelchair and onto the Valero parking lot. (Instrument No. 132 [8:24-35]). Being tased is an injury. See Barry E. Mangus et al., Taser and Taser Associated Injuries: A case series, 74 The American Surgeon 862–865 (2008). Plaintiff states, "[I]t is clear that Deputy Fairchild's actions were ‘clearly excessive and objectively unreasonable’ under the Fifth Circuit's factor analysis[.]" (Instrument No. 118 at 8). Plaintiff points to the evidence that determines whether there was a need for force. Id. Specifically, Plaintiff contends that she did not pose an immediate safety threat, the need for force was minimal in comparison to the force itself, and that the deputies failed to use any de-escalation measures. (Instrument No. 118 at 9). Additionally, Plaintiff asserts that she was not attempting to evade arrest. Id.
As to the third element, the force's objective reasonableness, the evidence proffered by Plaintiff shows that Plaintiff was tased when she pulled her arm away several times because she attempting to convey that she needed to be handcuffed in the front. (Instruments No. 132 [8:04-23]; No. 119 at 4). She emphasizes that she was pulling away because she asked to be handcuffed in the front due to her disability. (Instruments No. 118 at 9-10; No. 119 at 4). Defendants Fairchild, Hart, and Calhoun contend that their use of force is reasonable when a suspect demonstrates verbal and physical resistance. (Instrument No. 109 at 14 citing Joseph , 981 F.3d at 332 ). In Joseph on behalf of Est. of Joseph v. Bartlett , the Fifth Circuit stated, "To stay within constitutional bounds, an officer must use force with measured and ascending actions that correspond to a suspect's escalating verbal and physical resistance." 981 F.3d at 319, 332–33 (internal brackets omitted). Moreover, the Sheriff's Deputies stated that Plaintiff's conduct posed a security threat while they were trying to secure other detainees at the scene. (Instruments No. 126 at 4; No. 109-3 at 5; No. 109-5 at 4; No. 109-2 at 41; No. 109-4 at 6).
In her Response, Plaintiff demonstrates that there are material fact issues in the record. While the Fifth Circuit has found that tasing is not an excessive force when a suspect partially turns around to face an officer, this analysis does not consider a situation like the present one where the suspect is turning to request an accommodation because of an open, obvious, and apparent disability. See Cloud v. Stone , 993 F.3d 379, 386 (5th Cir. 2021). The evidence here reveals that Plaintiff moved her arms while requesting an accommodation and under those facts, the Court finds the use of the taser was excessive and not objectively reasonable. (Instrument No. 132 [8:04-23]). Thus, the Court finds that Plaintiff has raised a material fact issue and satisfied the first prong of the qualified immunity test.
The Court now turns to the second prong of the qualified immunity test. In the Fifth Circuit, it is clearly established that plaintiffs have right to be free from excessive force incidents involving tasers in minor, non-violent offenses. Pena v. City of Rio Grande City, Texas , 816 F. Appx 966, 976 (5th Cir. 2020) ; Autin v. City of Baytown , 174 F. Appx 183, 186 (5th Cir. 2005) (affirming the denial of qualified immunity to an officer who tased the suspect in the back, reasoning that the suspect "was at most committing the minor crime of criminal mischief," was holding a brick, but was "objectively unthreatening," and was not resisting arrest). Here, the video evidence shows that Defendant Fairchild tased Plaintiff twice as he was attempting to arrest Plaintiff while she was seated in her wheelchair. (Instrument No. 132 [8:24-35]). Plaintiff was arrested for trespassing. The Court finds that under the facts of this case, Defendants Fairchild, Hart, and Calhoun are not entitled to qualified immunity as to Plaintiff's excessive force claim. Accordingly, Defendants Fairchild, Hart, and Calhoun's Motion for Summary Judgment is DENIED as to Plaintiff's excessive force claim.
2.
Defendants Fairchild, Hart, and Calhoun move for summary judgment on Plaintiff's failure to intervene claim. (Instrument No. 109 at 14-15). Plaintiff asserts that Defendants Calhoun and Hart are liable under this claim because they had a reasonable opportunity to object to the use of excessive force caused when Defendant Fairchild tased her, but chose not to. (Instrument No. 118 at 11-12). Plaintiff does not assert that Defendant Fairchild failed to intervene. Id. Thus, the Court will only address this claim as to Defendants Calhoun and Hart.
An officer may be liable under § 1983 failure to intervene where the officer "(1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." Whitley v. Hanna , 726 F.3d 631, 646 (5th Cir. 2013) (quoting Randall v. Prince George's Cty. , 302 F.3d 188, 204 (4th Cir. 2002) ).
Here, Plaintiff asserts that Defendants Calhoun and Hart "knew that Deputy Fairchild's escalation of force was unreasonably fast." (Instrument No. 118 at 11). Plaintiff further contends that Defendants Calhoun and Hart could have prevented Defendant Fairchild from continuing to tase or told him not to tase Plaintiff. (Instrument No. 118 at 11). Plaintiff also asserts that when Defendant Calhoun moved out of the way, he "acquiesced" Defendant Fairchild's use of excessive force. (Instrument No. 118 at 12). Additionally, Defendants Calhoun and Hart argue that the evidence establishes that they did not unlawfully fail to intervene and that Plaintiff has provided no evidence to support her assertions. (Instruments No. 109 at; No. 126 at 6). Their claims are refuted by the video evidence. (Instrument No. 132). The evidence actually shows that they moved aside to allow Plaintiff to be tased. (Instrument No. 132 [8:24-35]). Furthermore, neither Defendants Calhoun or Hart intervened when Plaintiff was tased a second time. Id. The Court finds that Plaintiff has raised a material fact issue related to her failure to intervene claim. Thus, the Court finds that the Plaintiff has established the first prong of the qualified immunity test.
Having found that a reasonable jury could find that Defendants Calhoun and Hart failed to intervene, the Court now turns to the second prong of the qualified immunity test. In Carroll v. Ellington , the Fifth Circuit stated, "The law as of 2006 was clearly established that an officer who is present at the scene and does not take reasonable measures to protect a suspect from another officer's use of excessive force may be liable under section 1983." Carroll v. Ellington , 800 F.3d 154, 177 (5th Cir. 2015) (citing Hale v. Townley , 45 F.3d 914, 919 (5th Cir. 1995) ). Here the video evidence shows that Defendant Fairchild tased Plaintiff twice while she was sitting in her wheelchair. (Instrument No. 132 [8:24-35]). As discussed above under the Court's excessive force analysis, Plaintiff identified a material fact issue as to whether there was excessive acts of force against Plaintiff. Both Defendants Calhoun and Hart were present and standing close by when Plaintiff was tased. (Instrument No. 132 [8:24-35]). In fact, both Defendants Calhoun and Hart moved to the side when Defendant Fairfield tased Plaintiff the first time. (Instrument No. 132 [8:24-35]). Additionally, neither Defendants Calhoun and Hart took any measures to protect Plaintiff nor intervened when Defendant Fairfield tased Plaintiff a second time. (Instrument No. 132 [8:24-35]). Thus, the Court finds Defendants Calhoun and Hart are not entitled to qualified immunity.
Accordingly, Defendants Calhoun and Harf's Motion for Summary Judgment is DENIED as to Plaintiff's failure to intervene claim.
3.
As to her false arrest claim, Plaintiff contends that Defendants Fairchild, Hart, and Calhoun falsely arrested her because she committed no crime, posed no threat, was in a wheelchair, and followed the deputies’ commands. (Instrument No. 118 at 6-7).
To establish that an arrest was a violation of a plaintiff's constitutional rights, plaintiff must show that the officers lacked probable cause. Deville v. Marcantel , 567 F.3d 156, 165 (5th Cir. 2009). "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." Resendiz v. Miller , 203 F.3d 902, 903 (5th Cir. 2000). The arresting officer's state of mind is irrelevant to the existence of probable cause. See Devenpeck v. Alford , 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). "[T]he Fourth Amendment's concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent." Whren v. United States , 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Here, Plaintiff was arrested for criminal trespass. (Instruments No. 109 at 11; No. 109-1). Under Texas law, a person commits criminal trespass if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so. Texas Penal Code § 30.05.
The record indicates that there was probable cause to arrest plaintiff for trespassing. Additionally, Plaintiff does not dispute that she was told to leave the scene or be arrested for trespassing. (Instruments No. 109-6 at 5; No. 118 at 5). Plaintiff testified that Defendant Fairchild told her that if she did not leave, she would be arrested for criminal trespassing. (Instrument No. 109-6 at 5). Instead citing her Expert's report, Plaintiff argues that she was not given enough time to comply with the officer's request to leave the scene. (Instrument No. 118 at 10). Plaintiff contends that she was given about 70 seconds to comply with Defendant Fairchild's command to leave Valero. (Instrument No. 118 at 10).
Video evidence proffered by Plaintiff demonstrates that after Plaintiff received a notice from Defendant Fairchild to depart Valero, she and Defendant Fairchild continued to engage in a verbal interaction while Plaintiff complied and wheeled herself towards her car. (Instrument No. 132 [7:21-44]). After opening her car door and while continuing her verbal interaction with Defendant Fairchild, Plaintiff stopped to write something down. (Instrument No. 132 [7:41-7:51]). Next, Plaintiff appears to use her cellphone to record or take a photo of Defendant Fairchild. Defendant Fairchild then attempts to arrest Plaintiff. (Instrument No. 132 [7:45-52]). The video demonstrates that Plaintiff stopped complying with Defendant Fairchild's command to leave. Thus, Defendants Fairchild, Hart, and Calhoun are entitled to summary judgment as to Plaintiff's false arrest claim. Because Plaintiff failed to meet the burden to show a constitutional violation, the Court need not address the second prong for her false arrest claim.
Accordingly, Defendants Fairchild, Hart, and Calhoun's Motion for Summary Judgment is GRANTED as to Plaintiff's false arrest claim.
V.
For the foregoing reasons, IT IS HEREBY ORDERED that the Defendants’ Motion for Summary Judgment is GRANTED in PART and DENIED in PART. (Instrument No. 109).