Opinion
Civil Action No. SA-02-CA-0521 FB (NN).
February 21, 2006
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The matters before the Court are Defendant San Antonio Police Officers Jory Hamblen and Gary Grona's Second Motion for Summary Judgment (docket entry no. 67), Mayberry's Response (docket entry no. 72) and Defendants' Reply thereto (docket entry no. 73).
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order (docket entry no. 70) referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
I. Factual and Procedural Statement of the Case
Mayberry's initial complaint asserted that San Antonio Police Department Officers Wilson, Hamblen and Grona, San Antonio Police Chief Al Philippus, and the San Antonio Police Department (SAPD) used excessive force in connection with his arrest on May 1, 2001. In an effort to elicit the specific factual bases for Mayberry's claims, I ordered plaintiff to respond to a questionnaire, and advised him that his responses would serve as a supplemental complaint.
Docket entry no. 8.
Through his complaint, questionnaire responses, and responses to defendant's first motion to dismiss, plaintiff asserted (and admitted) the following: On May 1, 2001, Mayberry was driving with a suspended license. Mayberry failed to stop when a SAPD patrol car attempted to pull him over because he feared a charge of driving with a suspended license would result in the revocation of an unspecified probated sentence. A highspeed car chase ensued. When plaintiff Mayberry encountered a roadblock created by Officer Grona's patrol car, Mayberry applied his brakes and attempted to circumvent the roadblock. Officer Grona pulled in front of Mayberry's vehicle and Mayberry's vehicle hit Officer Grona's patrol car. Plaintiff Mayberry then exited his vehicle, and although prepared to run, he decided not to. Plaintiff threw his hands in the air when he saw ten to fifteen officers with their firearms aimed in his direction. Mayberry claimed at this moment he stopped resisting arrest and submitted. Plaintiff Mayberry further claimed that as he stood with his hands in the air, Officer Grona ran up behind him and elbowed Plaintiff in the head, and that after Officer Grona hit him in the back of the head, unidentified officers and Officer Hamblen began assaulting him. Plaintiff alleges they kicked and beat him in his face, stepped on his ankles and taunted him by asking: "Are you going to run you black rabbit." Mayberry claimed he was beaten unconscious, he blacked-out, and that he does not know how he got to the hospital. Mayberry claimed that he lost enough blood to require a blood transfusion, and sustained serious injuries, to wit, a broken nose, a sprained neck, a sprained and/or fractured ankle, a sprained shoulder, facial lacerations, and a "busted" left and right eye. According to Mayberry, when he awoke at the hospital, a doctor was adjusting his broken nose and his forehead skin was missing from where the officers had dragged him across the street on his face. Mayberry objected to Defendants' implication that he injured himself by thrashing on the pavement.
Docket entry nos. 1 8.
Docket entry no. 8 at attachment.
Docket entry no. 1.
Plaintiff's claims concerning the injury to his ankle are inconsistent. See docket entry no. 3 at attachment (fractured ankle) contra docket entry no. 8 at 11 (sprained ankle). Plaintiff's medical records indicate that x-rays taken of his ankle revealed "no definite evidence of acute injury" but that Plaintiff was discharged with crutches and his ankle wrapped in an ace bandage. See docket entry no. 8 at medical records attachment.
Docket entry nos. 3 and 8.
Id.
Id.
The unauthenticated medical records, which Mayberry submitted along with his responses, verified that Mayberry sustained facial lacerations, and a left nasal bone fracture. Although Mayberry's complaint described injuries to his shoulder, neck and right ankle, the unauthenticated medical records submitted by Mayberry revealed inconsistencies concerning these claimed injuries. For example, diagnostic test results of Mayberry's shoulder, neck and right ankle showed he had not sustained acute injury to these areas and it appeared that Mayberry had not received a blood transfusion. Furthermore, the same medical records showed Mayberry's toxicology screening tested positive for abnormally elevated levels of alcohol, cocaine and benzodiazepine.
Docket entry no. 8 at attachment.
Id. Benzodiazepine is a prescription sedative, with the common street names of "tranks" and "roofies."
I issued a Memorandum and Recommendation on June 13, 2003 (docket entry no. 32), recommending that the District Court dismiss Mayberry's claims against all Defendants in their official capacities, and permit Mayberry's claims against Defendants Grona and Hamblen to proceed in their individual capacities. I also recommended that Defendants' motion to dismiss be denied in part to the extent it sought dismissal of Mayberry's complaint on the basis that it was barred by Heck v. Humphrey and Sappington v. Bartee. The District Court accepted the Recommendation in its entirety on July 15, 2003 (docket entry no. 34).
512 U.S. 477 (1994).
195 F.3d 234 (5th Cir. 1999).
On October 1, 2003, Defendants Hamblen and Grona filed their first Motion for Summary Judgment (docket entry no. 39) re-arguing that Mayberry's claims against these two Defendants were barred as a matter of law pursuant to Heck v. Humphrey and Sappington v. Bartee because Mayberry was found guilty of assaulting Officer Grona on May 1, 2001, and that a finding of excessive force against Officers Grona and Hamblen would essentially undermine that conviction. They also argued that the officers acted reasonably and did not violate Mayberry's constitutional and civil rights during the course of his arrest on May 1, 2001. In support of their motion Defendants Grona and Hamblen included the affidavits of six officers who witnessed and/or participated in Mayberry's arrest (docket entry no. 39 at Exs. A-F); a copy of petitioner's state judgment of conviction for assaulting a public servant, repeat offender ( Id. at Ex. G); a copy of the indictment charging Mayberry with assaulting a public servant; the affidavit of an expert qualified in several areas including but not limited to police pursuits, arrest procedures, officer safety, and the uses of force and deadly force ( Id. at Ex. H); ten photographs of the scene of the arrest, including pictures of the damaged vehicles of Officer Grona and Mayberry ( Id. at Ex. I); the affidavit of a toxicologist who reviewed Mayberry's medical and toxicology records ( Id. at Ex. J); and the incident reports filed by officers on the scene ( Id. at Ex. K).
Mayberry filed two sworn declarations in opposition to Defendants' motion for summary judgment, wherein he vigorously challenged the Defendants' summary judgment evidence (docket entry nos. 42 44). Despite the affidavits of all the officers, Mayberry did not waiver in his version of events. He did not submit any new documentary summary judgment evidence. Mayberry's sworn declarations continued to attack the veracity of the statements made in each of the officers' affidavits and steadfastly asserted that Officer Grona initiated the use of excessive force when he came up behind Mayberry and elbowed Mayberry in the head. Mayberry also inferred that racial profiling motivated the officers' attempt to pull him over, and that their claim that they saw him "throw something out the car window" was bogus.
In contrast, Defendants' summary judgment evidence presented a very different version of events. Defendants claimed that on May 1, 2001, Officers Wilson and Hamblen were partnered in the same marked patrol car when they witnessed Mayberry commit a traffic violation and they activated the patrol car's lights. When the officers observed Mayberry toss an object out of his car window and accelerate to a speed of 70 m.p.h., Officer Hamblen activated the car's siren and a chase ensued over several blocks in a mixed residential and commercial neighborhood. At some point Officer Grona established a roadblock, not to block Mayberry but to prevent and protect other traffic from interfering in the chase. Mayberry drove directly toward Officer Grona's patrol car. When Officer Grona attempted to avoid Mayberry's vehicle, Mayberry "rammed" into the patrol car, which spun approximately 180 degrees. Mayberry attempted to drive away, but his vehicle stopped after crashing into a rod iron fence. Mayberry then exited the vehicle and ran about 100 feet, turned toward Officer Hamblen and assumed a boxer stance with raised closed fists. When Mayberry "prepared to take the offensive," Officer Hamblen stepped to Mayberry's left and hit Mayberry above the right eye with his elbow. The impact caused Mayberry to spin around and fall face first onto the pavement. When Hamblen attempted to handcuff Mayberry, Mayberry became combative — he screamed and thrashed his head and left arm to avoid being handcuffed. When Officers Fuller, Castellon and Molina arrived, they helped Officer Hamblen finally handcuff and subdue Mayberry, who continued to scream and hit his head against the pavement. Several officers' affidavits depicted Mayberry as a crazed intoxicated madman. Several officers' affidavits stated that Defendant Grona never left his damaged patrol car, never touched Mayberry, and never participated in subduing or arresting Mayberry. The affidavits of several officers also stated that at no time did any of the officers draw and point their firearms at Mayberry. In addition to the affidavits of officers participating in the stop and arrest, Defendants submitted the respective officers' police reports, which were less detailed but consistent with the affidavits discussed.
Docket entry no. 39 at Exs. A, B, D.
Id.
Docket entry no. 39 at Exs. A, B, C D.
Id.
Officer Castellon's affidavit claims Mayberry fell out of the passenger side door. Docket entry no 39 at Ex.F at 2. The EMS report form Mayberry submitted with his sworn responses indicates officers on the scene told EMS that Mayberry sustained injuries to his face as a result of his impact with the asphalt after he "escaped out of the window of his vehicle." Docket entry no. 8 at attachment, "San Antonio Fire Department Emergency Medical Service Hospital Report Form."
Docket entry no. 39 at Exs. A, B, C, D, E F.
Id.
Id.
Id.
Docket entry no. 39 at Exs. C, D, E F.
Docket entry no. 39 at Exs. A, C, D.
Docket entry no. 39 at Exs. A, B, D, E, F.
Docket entry no. 39 at Ex. K.
Mindful of Mayberry's pro se status at the time, I found the following facts to be undisputed.
(1) On May 1, 2001, SAPD officers attempted to pull over Mayberry and activated their patrol car's overhead lights and siren.
(2) Mayberry elected not to pull over. He evaded the officers and a high speed car chase ensued.
(3) Other SAPD officers, including Officer Grona, initiated a road block in the vicinity of the high speed car chase.
(4) Mayberry's vehicle collided with Officer Grona's patrol car.
(5) After the collision, Mayberry continued to drive his vehicle for approximately 100 feet, at which time his vehicle came to a stop.
(6) Mayberry exited his vehicle.
(7) SAPD officers arrested Mayberry.
(8) Mayberry was treated for injuries incurred on May 1, 2001.
The issues raised by Defendants Grona and Hamblen's First Motion for Summary Judgment were whether Mayberry's claims against Defendants Grona and Hamblem were barred as a matter of law pursuant to Heck v. Humphrey and Sappington v. Bartee; whether Defendants Grona and Hamblen subjected Mayberry to excessive force on May 1, 2001; and whether Defendants were entitled to qualified immunity. On February 18, 2004, I recommended Defendants' summary judgment motion be denied after finding Mayberry's claims were not barred by Heck and Sappington; and that a fact-finder might conclude the officers subjected Mayberry to an excessive use of force (docket entry no. 46). On May 25, 2004, the District Court accepted my recommendation and denied Defendants' First Motion for Summary Judgment (docket entry no. 50).
Anticipating that material facts in dispute would require resolution by a fact-finder at trial, counsel was appointed to represent Mayberry on June 29, 2004 (docket entry no. 53). On August 14, 2004, Mayberry filed a First Amended Complaint (docket entry no. 55) which reasserted the excessive force claim, added a claim of common law assault and requested various damages and reasonable attorney's fees. On August 25, 2004, Defendants filed a First Amended Original Answer (docket entry no. 56), invoking inter alia the defenses of qualified and government immunity and arguing Mayberry's own negligent behavior contributed to his injuries. The Defendants also request reasonable attorney's fees.
The amended complaint asserts that Mayberry sustained a broken ankle. Docket entry no. 55 at 2. This claim contradicts the medical records Mayberry submitted with his responses to the Court's interrogatories. See docket entry no. 8 docket entry no. 46 at 4 fn. 6. Counsel also claims for the first time that despite the advise of doctors, Officers Grona and Hamblen refused to let Mayberry remain at the hospital for evaluation. Additionally, the same medical records submitted by Mayberry show he received treatment at the hospital for over 15 hours and more significantly, the records make no mention that Mayberry was discharged against the advise of his attending physicians or that Officers Grona and Hamblen coerced the hospital into inappropriately discharging Mayberry. Id.
II. Defendants' Pending Second Motion for Final Summary Judgment
On August 10, 2005, and represented by new counsel, Defendants Grona and Hamblen filed a Second Motion for Final Summary Judgment, the motion now before the Court (docket entry no. 67). In support of their motion Defendants rely on both newly submitted evidence and on the documentary evidence and affidavits they previously submitted with their First Motion for Summary Judgment (docket entry no. 39). Defendants' new evidence consists of the following exhibits: a copy of the Reporter's Record of Mayberry's September 25, 2001, Plea Bargain Hearing in Mayberry's assault on Officer Grona's case, cause no. 2001-CR-3912 in the 187th Judicial District Court of Bexar County including copies of State's supporting evidence (docket entry no. 67 at Ex. A); the Reporter's Record of Mayberry's Sentencing Hearing in the assault of a public servant case (docket entry no. 67 at Ex. B); a certified copy of the Court's Admonishments and Mayberry's Waivers plus a copy of his Plea Bargain Agreement in the assault of a public servant case (docket entry no. 67 at Ex. C); a certified copy of Mayberry's Commitment Notice in said assault of a public servant case (docket entry no. 67 at Ex. D); a certified copy of records regarding Mayberry's time-credit dispute over the TDCJ's calculation of his time with respect to the assault case and another case (docket entry no. 67 at Ex. E); a certified copy of a Motion to Revoke Community Supervision, showing Mayberry's community supervision was revoked because of Mayberry's actions on May 1, 2001 (docket entry no. 67 at Ex. F); a certified copy of state court's dismissal of other charges Mayberry faced because of his actions of May 1, 2001, to wit, resisting arrest, evading arrest, and driving with a suspended license (docket entry no. 67 at Ex. G); and a copy of selected excerpts from Mayberry's July 13, 2005, deposition (docket entry no. 67 at Ex. H).
Defendants Grona and Hamblen's Second Motion for Final Summary Judgment relies heavily on the admissions Mayberry made during his nolo contendere plea proceeding. Following the events of May 1, 2001, Mayberry was charged by indictment and information with assaulting Officer Grona — a public officer, resisting arrest, evading arrest and driving with a suspended licence. According to the documentary evidence, Mayberry agreed to voluntarily enter a nolo contendere plea to third degree assault of a public servant, bodily injury, repeater in violation of Texas Penal Code § 22.01. In exchange for his voluntary plea the other charges were dismissed. Pursuant to his plea agreement to enter a nolo contendere plea to assault of a public servant, Mayberry waived his rights against self-incrimination and his right to confront and cross-examine witnesses. Mayberry further stipulated that the evidence of the assault and the accompanying facts, as provided in the State's evidentiary Exs. SX1-SX16 were true and correct, that the exhibits presented a factually accurate version of the events and his arrest on May 1, 2001; and that the exhibits presented a factual basis for his nolo contendere plea.
Docket entry no. 67 at Ex. A at682-685.
A close inspection of the State's evidentiary exhibits shows that by making these admissions Mayberry admitted to facts beyond the necessary elements required for securing his assault of a public servant conviction. In sum, Mayberry agreed that he refused to pull over and stop when alerted to do so by Officers Wilson and Hamblen; that he led officers on a high-speed chase where his speed exceeded 70 miles an hour in a mixed residential and commercial neighborhood; that he crashed his vehicle into Officer Grona's patrol car; that during the impact Officer Grona broke his left elbow; that Mayberry fled after the collision; that he assumed an "offensive" posture toward Officer Hamblen who chased after him, and that he continued to combatively scream, thrash and flail his head and left arm when Officer Hamblen and three other officers attempted to subdue and handcuff him. Mayberry also agreed that Officer Grona did not participate in subduing and handcuffing him.
Defendants' Second Motion for Final Summary Judgment argues Mayberry's claim of excessive force is barred as a matter of law pursuant to Heck v. Huphrey and Sappinton v. Bartee because "regardless of whether the State charged Mayberry with aggravated assault, the proven facts [from Mayberry's nolo contendere plea proceeding] indicate that Mayberry committed an aggravated assault thereby justifying all forms of force to stop Mayberry — up to and including deadly force," and given the proven facts from Mayberry's nolo contendere plea proceeding, "any different set of facts declared by this Court would directly and necessarily imply the invalidity of his sentence and conviction." Defendants also argue that with respect to Mayberry's newly asserted state law claim of common law assault, he is collaterally estopped from asserting facts which are in conflict with the factual admissions he made during his nolo contendere plea proceeding.
Docket entry no. 67 at 14-16.
On September 1, 2005, Mayberry filed a Response to Defendants' Second Motion for Final Summary Judgment (docket entry no. 72). In support of his Response Mayberry submitted the following documentary evidence: a copy of the Reporter's Record of Mayberry's September 25, 2001, Plea Bargain Hearing in Mayberry's assault on Officer Grona's case, cause no. 2001-CR-3912 in the 187th Judicial District Court of Bexar County including copies of State's supporting evidence (docket entry no. 72 at Ex. A); a copy of the State Court Judgment of Conviction regarding Mayberry's assault of a public servant case (docket entry no. 72 at Ex. B); a copy of the interrogatories Mayberry sent to Defendants Grona and Hamblen on September 17, 2004 (docket entry no. 72 at Ex. C); and copies of Defendants Grona and Hamblen's responses to said interrogatories (docket entry no. 72 at Ex. D).
Defendant Grona and Hamblen's individual interrogatory responses refer to exhibits "1" and "2," which were attached to their responses. I note Mayberry did not submit either of the two exhibits to the Court when he submitted a copy of Defendants' responses as an exhibit. See Docket entry no. 72 at Ex. D.
After questioning why Defendants had not previously presented the Court, or Mayberry, with a copy of Mayberry's plea agreement and the supporting exhibits, Mayberry's Response argues that Heck v. Huphrey and Sappinton v. Bartee do not bar plaintiff's claim. Plaintiff also argues that Federal Rule of Evidence 410 renders the stipulations Mayberry made when he entered his nolo contendere plea inadmissible in this proceeding. Mayberry further argues the doctrine of collateral estoppel is inapplicable because Mayberry's plea of nolo contendere and the admissions attached thereto are permitted to be challenged in a subsequent civil lawsuit.
Plaintiff's counsel's accusations that the Defendants withheld evidence and were sand-bagging Mayberry with late introduction of same are without merit. The record shows Defendants' counsel had recently "inherited" this case and presented the evidence to plaintiff's counsel within one week of receiving same. See Docket entry no. 74 at Ex. A.
Docket entry no. 72 at 1.
On September 7, 2005, Defendants Grona and Hamblen filed a Reply to Mayberry's Response to their Second Motion for Final Summary Judgment (docket entry no. 73). In support thereof they submitted: an affidavit of their counsel (docket entry no. 73 at Ex. A); copies of Defendants' responses and supplemental responses to Mayberry's Requests for Initial Disclosures sent to Plaintiff throughout 2005 but before Defendants' Second Motion for Final Summary Judgment (docket entry no. 73 at Exs. B-E); and a copy of an unpublished Fifth Circuit case cited by Mayberry in his Response to Defendants' Second Motion for Final Summary Judgment (docket entry no. 73 at Ex. F).
III. Law and Analysis and Discussion
A. Applicability of Heck v. Humphrey and Sappington v. Bartee
Defendants assert Mayberry's civil rights excessive force claims are barred as a matter of law pursuant to Heck v. Humphrey and Sappington v. Bartee because "regardless of whether the State charged Mayberry with aggravated assault, the stipulated facts from Mayberry's nolo contendere plea proceeding demonstrate that Mayberry committed an aggravated assault thereby justifying all forms of force to stop Mayberry — up to and including deadly force," and given the proven facts from Mayberry's nolo contendere plea proceeding, "anydifferent set of facts declared by this Court would directly and necessarily imply the invalidity of his sentence and conviction." I have twice before addressed the applicability of Heck and Sappington to the case at hand, and the newly submitted evidence and arguments do not change my previous conclusions.
Docket entry no. 67 at 14-16.
Pursuant to Heck, when a plaintiff asserts a § 1983 claim against the arresting officers the court must first examine "whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." If so, plaintiff's claim is barred unless the conviction has been reversed or declared invalid. Sappington, a progeny of Heck, specifically holds that an excessive force claim under § 1983 is barred as a matter of law if brought by an individual convicted of aggravated assault related to the same events. The Sappington Court also concluded that a criminal conviction for aggravated assault negated the finding of excessive force by the officer because under Texas Penal Code § 22.02(a)(1), an aggravated assault justifies the use of any force up to, and including, deadly force to protect against harm. Therefore, the question is whether Mayberry's § 1983 claim for excessive use of force, if successful, would undermine Mayberry's conviction for assault on a public servant.
Heck, 512 U.S. at 486.
Id.
Id. at 237.
Id.
On July 25, 2001, a Bexar County grand jury issued an indictment against Mayberry, charging him with assault on a public servant — bodily injury. The indictment read:
on or about the 1st day of MAY, A.D., 2001, HAROLD MAYBERRY, hereinafter referred to as defendant, did then and there knowingly and intentionally cause bodily injury to G. Grona, hereinafter referred to as complainant, and defendant knew complainant was a public servant, namely: a peace officer, while complainant was lawfully discharging an official duty as a public servant, and in retaliation and on account of complainant's exercise of official power and performance of an official duty as a public servant, by CAUSING THE MOTOR VEHICLE DEFENDANT WAS OPERATING TO STRIKE THE MOTOR VEHICLE OCCUPIED BY THE COMPLAINANT.
Docket entry no. 39 at Ex. G.
The indictment also charged Mayberry with being a repeat offender and gave notice of enhancement because Mayberry had previously been convicted of the felony of aggravated assault of a prison guard.
The Texas Penal Code defines assault as intentionally, knowingly, or recklessly causes bodily injury to another. An offense under Texas Penal Code § 22.01 (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant. Thus, the indictment charged Mayberry with the third degree felony offense of assaulting a public servant and causing bodily injury, repeat offender.
TEX. PEN. CODE ANN. § 22.01(a)(1) (Vernon 2000).
TEX. PEN. CODE ANN. § 22.01(b)(1) (Vernon 2000).
On October 16, 2001, Mayberry pleaded nolo contendere to third degree assault of a public servant, bodily injury, repeater in violation of Texas Penal Code § 22.01. The trial court then found him guilty and sentenced him to six years in the TDCJ-ID. Because Mayberry was not convicted of aggravated assault of a public officer, Sappington, under a strict legal analysis does not bar his excessive force claims.
The Court must nevertheless determine whether Heck bars Mayberry's excessive force claims. As noted above, pursuant to Heck, when a plaintiff, like Mayberry, asserts a § 1983 claim against the arresting officers the Court must first examine "whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." If so, plaintiff's claim is barred unless the conviction has been reversed or declared invalid. Nothing in Heck and its progeny support the proposition that a § 1983 excessive force claim is barred merely because the same set of events give rise to both the criminal conviction and the excessive force claim. Rather, a Heck determination focuses on the specific elements of the conviction and the specific facts alleged in the civil case. Generally Heck only bars a claim where the criminal conviction and the civil claim are inconsistent and a claim in favor of the plaintiff would undermine the conviction. In other words, with respect to the case at hand, if plaintiff Mayberry prevailed on his § 1983 excessive force claim, would it undermine or be inconsistent with his assault of a public officer conviction? It would not. Mayberry does not dispute his conviction. He does not dispute any of the specific offense elements comprising his conviction. In fact, Mayberry readily admits he assaulted Officer Grona by driving his vehicle into Officer Grona's patrol car. In keeping with Heck, Mayberry maintains that success on his excessive force claim would not necessarily invalidate his conviction for assaulting a public servant. Mayberry asserts his excessive force claim arose during the moments following his assault of Officer Grona. Mayberry argues his excessive use of force claim is conceptually and temporally distinct from his conviction for assault of a public servant because after he exited his vehicle, he placed his hands in the air and surrendered, that Officer Grona hit him in the back of the head ignoring his gesture of surrender, and that Officer Hamblen continued to beat him into a state of unconsciousness after he was handcuffed.
Heck, 512 U.S. at 486.
Id.
Given Mayberry's version of the events as presented in his complaint in this case, particularly his claim that his gesture of surrender separated the vehicular pursuit from the physical arrest, Mayberry's excessive force claim arises from an arguably conceptually and temporally distinct moment from the moment comprising his conviction. Thus, a finding for plaintiff on the excessive force claim would not necessarily imply the invalidity of Mayberry's assault of a public servant conviction. Accordingly, I find that Mayberry's excessive force claim is not barred by Heck and I recommend that Defendants' Second Motion for Final Summary Judgment be denied to the extent it relies on Heck and Sappington.
B. Mayberry's Section 1983 Excessive Force Claim
In all actions brought pursuant to 42 U.S.C. § 1983, "the plaintiff bears the burden of proving that the defendant, while acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. Thus, in a case where the alleged deprivation is the use of excessive force in the course of an arrest, the plaintiff must prove that the defendant used excessive force while arresting him." A claim of excessive force turns on whether the force used was "objectively reasonable." In particular, a plaintiff must show that he "suffered (1) an injury that (2) resulted directly and only from the use of force f041f041f041 and that (3) the force used was objectively unreasonable." The Court must judge the reasonableness of the force "from the perspective of a reasonable officer on the scene f041f041f041 [and allow] for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving." In evaluating reasonableness, a court "must balance the amount of force used against the need for force." Factors relevant to this evaluation 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 he is actively resisting arrest or attempting to evade arrest by flight." Thus, in order for Mayberry to recover for a constitutional claim of excessive force, he must allege (1) an injury, (2) resulting directly and only from a use of force that was clearly excessive to the need, and (3) the excessiveness of which was objectively unreasonable. Although not conclusive, the extent of the injury suffered by a plaintiff is one factor which a court may consider in determining whether the use of force was excessive in a particular situation.
Edwards v. City of Phila., 860 F.2d 568, 572 (3rd Cir. 1988) ( quoting Wing v. Britton, 748 F.2d 494, 497 (8th Cir. 1984).
Graham v. Connor, 490 U.S. 386, 394-95 (1989).
Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004); Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000).
Graham, 490 U.S. at 396-97.
See, e.g., Flores, 381 F.3d at 399; Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996).
Graham, 490 U.S. at 396.
See Hudson v. McMillian, 503 U.S. 1 (1992) (overruling the requirement that a plaintiff show a "significant injury" in order to establish an excessive force claim under § 1983); and Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) ( quoting Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993)).
Ikerd, 101 F.3d at 434 (citing Hudson, 503 U.S. at 7).
When I previously reviewed Mayberry's excessive force claim I found that Mayberry's sworn allegations and evidence sufficiently stated an actionable claim under § 1983. My finding was based on Mayberry's substantial injuries — facial lacerations and a left nasal bone fracture, and on the questions of material facts which Mayberry's sworn allegations raised regarding the reasonableness of the force used to subdue him and complete his arrest. I found that Mayberry's sworn complaint, sworn responses to the Court's interrogatories, and sworn responses to Defendants' various motions persuasively argued that the alleged use of excessive force was conceptually and temporally distinct from his conviction for assault of a public servant because he steadfastly claimed that after the collision he exited his vehicle, ran and raised his hands in surrender. I found Mayberry's sworn specific declarations that he surrendered before the alleged use of force and that after his surrender he did not resist stated a version of events that conflicted with the Defendants' version of events. Given the evidence before me at that time, I concluded that disputed questions of material fact required this case proceed to trial with a determination by the fact-finder as to whether the amount of force employed by the Defendants was reasonable under the circumstances.
However, new evidence from plaintiff's nolo plea proceeding has now been submitted which conflicts with plaintiff's sworn declarations made in support of his section 1983 claims. This evidence reveals that when Mayberry entered his nolo contendere plea he admitted that he refused to pull over and stop when alerted to do so by Officers Wilson and Hamblen; that he led SAPD officers on a high-speed chase where his speed exceeded 70 miles an hour in a mixed residential and commercial neighborhood; that he intentionally crashed his vehicle into Officer Grona's patrol car; that during the impact Officer Grona broke his left elbow; that Mayberry exited his vehicle and fled after the collision; that he turned and assumed an "offensive" posture toward Officer Hamblen who chased after him; that he combatively resisted arrest by screaming, thrashing and flailing his head and left arm when Officer Hamblen and three other officers attempted to subdue and handcuff him; and that his injuries resulted from his hitting his head on the pavement. Mayberry also agreed that Officer Grona did not participate in subduing and handcuffing him. Thus, Mayberry's current claims which form the basis of his § 1983 complaint are premised on facts which directly contradict the admissions he made when he entered his nolo contendere plea.
When confronted with the inherent contradictions between his prior admissions and his present civil rights claims, Mayberry argues Federal Rule of Evidence 410 renders inadmissible, in this proceeding, the stipulations and admissions he made during the course of entering his nolo contendere plea. I disagree.
Federal Rule of Evidence 410 states, in pertinent part, as follows:
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: . . .
(2) a plea of nolo contendere. . . .
Emphasis added.
Federal Rule of Evidence 410 has an extensive and complicated statutory history. The Rule places a premium on encouraging plea bargaining and disposing of criminal cases by "compromise." Federal Rule of Evidence 410 was written so as not to deter defendants from compromising their criminal liability because of their hesitancy to compromise all subsequent liability for the same act. The Rule affords the defendant entering the nolo plea greater protection in subsequent litigation than the party who pleads guilty. "This distinction rests on a premise that in some instances the government has a duty to truncate litigation by accepting a plea of nolo contendere at the expense of requiring some other party to re-litigate the issue of liability against the defendant at a subsequent hearing. However, Federal Rule of Evidence 410, does not bar admission of the existence of the nolo contendere plea. Rule 410 does not prohibit consideration of a conviction resulting from a nolo plea by a court conducting a Heck analysis. Additionally, Federal Rule of Evidence 609 permits use of plaintiff's conviction premised on his nolo plea for impeachment purposes.
Wright Graham, Federal Practice and Procedure: Evidence § 534- § 5350 (West Supp. 2005).
Advisory Committee Note to Rule 410, 10 Moore's Federal Practice § 410.01(6) at IV-189 (1979 ed.).
Santobello v. New York, 404 U.S. 257, 260 (1971).
Weissenberger's Federal Evidence § 410.1 at 159 citing Advisory Committee Note to Rule 410.
Cf. Alatraqchi v. City and County of San Francisco, 2001 WL 637429 at *2 (N.D.Cal. May 30, 2001) (Fed.R.Evid. 410 did not prevent application of Heck to § 1983 claims related to conviction after plea of no contest). Many federal courts have concluded that Heck appropriately applies and bars § 1983 claims where the successful prosecution would necessarily imply the invalidity of a conviction entered on the basis of a plea of nolo contendere. See Watson v. City of New Orleans, 2000 WL 354399 (E.D.La. Apr. 5, 2000) (applying Heck without specifically addressing the relevance of the nolo contendere plea); see also Nicholson v. City of Westlake, 20 Fed. Appx. 400, 2001WL 1178332 (6th Cir. Sept. 24, 2001); Small v. St. Tammany Parish Sheriff, 2002 WL 519804 at *2 (E.D.La. Apr. 2, 2002) (following Watson); Thompson v. City of Galveston, 979 F.Supp. 504 (S.D.Tex. 1997), aff'd, 158 F.3d 583 (5th Cir. 1998) (Table); Kennedy v. Sparacello, 1996 WL 648824 (E.D.La. Nov. 1, 1996); Moser v. Bascelli, 879 F.Supp. 489 (E.D.Pa. 1995). And other courts have applied Heck without addressing the impact of the nolo contendere plea. Ellis v. City of Pittsburgh, 2001 WL 1256441 (C.D.Cal. Oct. 10, 2001); Brayboy v. Wayne County Circuit Court, 2001 WL 902714 (E.D. Mich. June 4, 2001); Nobles v. Sonoma County, 1995 WL 225666 at *2 n. 2 (N.D.Cal. Mar. 8, 1995); Kevakian v. Kennedy, 1995 WL 7938 (N.D.Cal. Jan. 6, 1995).
See Brewer v. City of Napa, 210 F.3d 1093 (9th Cir. 2000); United States v. Williams, 642 F.2d 136 (5th Cir. Unit B April 1981) (holding evidence of nolo contendere conviction admissible); and United States v. Sonny Mitchell Ctr., 934 F.2d 77 (5th Cir. 1991) (per curiam) (following Williams and concluding that the Fifth Circuit's earlier rule prohibiting impeachment based on nolo contendere convictions did not survive adoption of the Federal Rules of Evidence).
Notably, the House and Senate debates on Rule 410 focused on promoting plea bargaining and protecting the pleading defendant from subsequent civil and criminal prosecutions where the defendant remained a defendant in the subsequent litigation. The debates did not address the situation before this Court: where the former criminal defendant becomes the plaintiff in a subsequent civil rights proceeding and seeks damages based on facts and circumstances arising from the same facts and circumstances surrounding his plea. There is a critical and significant legal difference between using a nolo contendere plea against a former criminal defendant in a subsequent civil proceeding where the criminal defendant remains the defendant in the civil proceeding, and allowing the criminal defendant to ignore his plea and admissions in a prior criminal proceeding and proceed as a plaintiff in a subsequent civil proceeding in which he seeks liability from persons or entities who arrested him or contributed, by virtue of their evidentiary statements, to secure his criminal conviction.
The Sixth Circuit addressed a situation similar to that presented in this case in Walker v. Schaeffer where plaintiffs alleged defendants falsely arrested them in violation of their constitutional rights. Because plaintiffs had earlier entered a "no contest" or nolo contendere plea to reckless driving charges, the Court held that they were estopped from asserting claims inconsistent with those pleas in a subsequent section 1983 action seeking damages from the arresting officers. The Court explained:
854 F.2d 138 (6th Cir. 1988).
We find a material difference between using the nolo contendere plea to subject a former criminal defendant to subsequent civil or criminal liability and using the plea as a defense against those submitting a plea interpreted to be an admission which would preclude liability. Rule 410 was intended to protect a criminal defendant's use of the nolo contendere plea to defend himself from future civil liability. We decline to interpret the rule so as to allow the former defendants to use the plea offensively, in order to obtain damages, after having admitted facts which would indicate no civil liability on the part of the arresting police.
Id. at 143.
For these same reasons I recommend that the Court reject plaintiff's construction of Rule 410 and his insistence that the statement of facts supporting his nolo plea are inadmissible in this civil proceeding.
Because Federal Rule of Evidence 410 does not bar the admission of Mayberry's stipulations made in support of his nolo plea, the Court now has before it conflicting versions of the significant events: one version which plaintiff admitted to support his nolo plea, and one which he presents to this Court in this case order to obtain civil damages. The stipulations to which plaintiff agreed as part of his 2001 nolo contendere proceeding are judicial admissions. The Fifth Circuit defines a judicial admission as "a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them." A judicial admission is conclusive and withdraws a fact from contention.
Martinez v. Bally's Louisiana, Inc., 244 F.3d 474, 476 (5th Cir. 2001).
See id.
In the Walker case discussed above the Court not only held that the nolo plea and findings were admissible, but that they would be given collateral estoppel effect to bar plaintiffs from asserting claims which were inconsistent with those findings. I recommend this Court do likewise. The interests of justice require that plaintiff be prohibited from presenting a version of facts to this Court inconsistent with the judicial admissions he made in his state criminal proceeding and from which he received a benefit. These prior admissions compel the conclusion that defendants' use of force to subdue and arrest plaintiff was reasonable. In support of his nolo plea plaintiff agreed that he remained resistive and combative until subdued, and that his injuries occurred during the course of defendants' attempts to effect his arrest. Given these admissions there are no material factual issues in dispute. Given these facts plaintiff cannot support his claim made to this Court that the force used by defendants in connection with his arrest was objectively unreasonable. Accordinly, I recommend that (1) Defendants' Second Motion for Summary Judgment be granted, and (2) Mayberry's excessive force claims against Defendants Grona and Hamblen be dismissed.
Title 28 U.S.C. § 1367(c)(3) states a federal court may decline to exercise supplemental jurisdiction over state law claims where the district court has dismissed all claims over which it has original jurisdiction. Because I recommend that Mayberry's federal claims against Defendants Hamblen and Grona are subject to dismissal, I recommend the District Court decline to exercise supplemental jurisdiction over Mayberry's state claim for assault.
IV. CONCLUSION and RECOMMENDATION
Having reviewed the arguments of the parties and the applicable law I recommend:
1. Defendants' Second Motion for Final Summary Judgment (docket entry no. 67)d be DENIED to the extent it requests dismissal of Mayberry's complaint on the basis that it is barred by Heck v. Humphrey and Sappington v. Bartee; and
2. Defendants' Second Motion for Final Summary Judgment be GRANTED (docket entry no 67) because no issues of material fact remain regarding whether or not Defendants Grona and Hamblen used excessive force against Mayberry on May 1, 2001.
3. The Court decline to exercise supplemental jurisdiction over plaintiff's state claim and dismiss same without prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL
The United States District Clerk shall serve a copy of this United States Magistrate Judge's Findings and Recommendation on all parties by either (1) mailing a copy to each of them by certified mail, return receipt requested, or (2) facsimile if authorization to do so is on file with the Clerk.Pursuant to Title 28 U.S.C. § 636(b)(1), and Rule 4(b) of the Local Rules for the Assignment of Duties to United States Magistrates (Appendix C to the Local Court Rules for the Western District of Texas), the parties are hereby notified that any party who desires to object to this report must file with the Clerk of this Court and serve the Magistrate Judge and all parties with written objections to the findings and recommendation included above within ten (10) days after being served with a copy of this Memorandum and Recommendation.
See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
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. A party's failure to file written objections to the proposed factual findings, legal conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Court of those proposed factual findings, legal conclusions, and recommendations.
See Battle v. U.S. Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).
See generally Thomas v. Arn, 474 U.S. 140, 150-55 (1985); United States v. Raddatz, 447 U.S. 667, 673-76 (1980); 28 U.S.C. § 636(b)(1).
Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within ten (10) days after being served with a copy, shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, unless the party validly alleges grounds of plain error.
See Acuna v. Brown Root Inc., 200 F.3d 335, 340 (5th Cir. 2000); and Douglass v. United Services Automobile Association, 79 F.3d 1415, 1428-29 (5th Cir. 1996).