Summary
concluding that chief of police is final policy maker for the Odessa Police Department
Summary of this case from Kovacic v. Larry Brown Enterprises, L.L.C.Opinion
MO-99-CA-073.
March 6, 2001
ORDER GRANTING DEFENDANT CITY OF ODESSA'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant's Motion for Summary Judgment, filed by the City of Odessa on August 30, 2000. A response to the Motion for Summary Judgment was filed by the Plaintiff Georgia Redd on October 5, 2000. In addition, a hearing was held on the Motion on November 2, 2000. After due consideration of the arguments and submissions of the parties, the Court is of the opinion that the Motion should be GRANTED.
STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Summary judgment is proper "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 material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). The moving party has the burden of showing that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Once the movant carries this burden, the burden shifts to the nonmovant to show the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-26 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., 475 U.S. at 587. If the record, viewed in that light, could not lead a rational trier of fact to find for the nonmovant, summary judgment is proper. Kelley v. Price Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993), cert. denied, 510 U.S. 1043 (1994) (citing Matsushita Elec. Indus. Co., 475 U.S. at 577-78).
FACTUAL BACKGROUND
The tragic events giving rise to this lawsuit occurred on July 8, 1997. A few minutes before 11:00 a.m. on that day, Officers Pete Marquez and Terry Vanlandingham of the Odessa Police Department (OPD) were dispatched to a house at 411 E. 44th Street in Odessa, Texas. (Marquez Aff. at 1.) The officers were advised that an individual at the residence was threatening to kill his mother and himself. (Marquez Aff. at 1.) They were to meet a case worker from the Mental Health Mental Retardation (MHMR) center in Odessa at the house. (Marquez Aff. at 1.) The officers arrived at the location in separate marked police cars, with Officer Vanlandingham arriving shortly before Officer Marquez. (Marquez Aff. at 1-2.)
When the officers arrived, no one from MHMR was present. (Marquez Aff. at 2.) Vanlandingham and Marquez proceeded to the front door of the house and attempted to speak to the resident, Mr. Randy Redd. (Marquez Aff. at 2.) Mr. Redd would neither let the officers in nor come outside. (Marquez Aff. at 2.) From their conversation with Mr. Redd, Officers Vanlandingham and Marquez learned that Mr. Redd's mother was no longer inside the house. (Marquez Aff. at 2.)
Shortly thereafter, two individuals from MHMR arrived at the house, Ms. Chila Ybarra and Mr. Ervin Fisher. (Marquez Aff. at 2; App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 4.) Mr. Redd was not familiar with either of these individuals. (App. Pl.'s Resp. Mot. Summ. J. Ex. 3 at 7.) One of the MHMR workers knocked on the front door of the house. (Marquez Aff. at 2.) Officer Marquez heard Mr. Redd walk toward the door and shout something, and he thought he heard a gun being loaded. (Marquez Aff. at 2.) The officers and MHMR workers then rapidly moved off the front porch of the house. (Marquez Aff. at 2.) Officer Marquez took cover near a residence next door, and both officers proceeded to call their supervisor, Sergeant Charles Moad. (Marquez Aff. at 2-3.)
While he was en route to the house at 411 East 44th Street, Sergeant Moad spoke by radio with Officer Vanlandingham and learned that an MHMR patient named Randy Redd was allegedly threatening suicide. (Moad Aff. at 2.) After arriving at the house, Moad set up a perimeter, with officers positioned so as to control traffic around the house and to prevent Mr. Redd from running out of the house and into the neighborhood. (Moad Aff. at 2.) Sergeant Moad then contacted Mr. Fisher, one of the MHMR caseworkers present at the scene. (Moad Aff. at 2.) Mr. Fisher identified the man in the house as Randy Redd, a tall, large man who had been diagnosed as a paranoid schizophrenic (Moad Aff. at 2; App. Pl.'s Resp. Mot. Summ. J. Ex. 1 at 2; Shepherd Aff. at 11; App. Pl.'s Resp. Mot. Summ. J. Ex. 3 at 5; Martz Dep. at 101.) He had also filed his teeth down to points. (App. Pl.'s Resp. Mot. Summ. J. Ex. 3 at 6.) Mr. Redd was supporting himself and his mother through social security. (App. Pl.'s Resp. Mot. Summ. J. Ex. 3 at 2, 5.) Mr. Fisher advised Sergeant Moad that Randy Redd had not been taking his prescribed medication. (Moad Aff. at 2.) Redd was thirty-seven years old on the day in question. (App. Pl.'s Resp. Mot. Summ. J. Ex. 1 at 2, Ex. 2 at 1.)
Sergeant Moad managed to obtain the phone number for the house at 411 East 44th Street. (Moad Aff. at 3.) With Mr. Fisher sitting in his police car, Moad then attempted to call Randy Redd using his cell phone. (Moad Aff. at 3.) Mr. Redd answered the phone and spoke with Sergeant Moad for a few minutes. (Moad Aff. at 3.) Mr. Redd stated that he was no longer taking his medications and had given up on them. (Moad Aff. at 3.) Shortly thereafter, he hung up the phone. (Moad Aff. at 3.) Sergeant Moad tried to call back, but it appeared that the phone had been taken off the hook. (Moad Aff. at 3.)
Sergeant Moad next contacted the dispatcher at the police station and requested that either negotiators or the Crisis Intervention team be notified. (Moad Aff. at 3.) Mr. Fisher advised Moad that one of Mr. Redd's previous MHMR caseworkers, who was more familiar with his case, might be able to establish communication with Mr. Redd. (Moad Aff. at 3.) A short time later, the prior caseworker, Ms. Carron Shellenberger, arrived at the scene. (Moad Aff. at 3.) Ms. Shellenberger had first started working with Randy Redd through MHMR in January of 1994. (App. Pl.'s Resp. Mot. Summ. J. Ex. 3 at 1.) At about the same time that she appeared, Sergeant Charles Burns and Sergeant Paul Shepherd, members of the Crisis Intervention team, arrived. (Moad Aff. at 3.) Burns and Shepherd were trained negotiators on the Crisis Intervention team. (Shepherd Aff. at 2; Burns Aff. at 2.) Sergeant Moad briefed Sergeants Burns and Shepherd. (Moad Aff. at 3.) Burns and Shepherd also spoke with Ms. Shellenberger, Mr. Fisher, and Randy Redd's mother, Georgia Redd, who arrived at the house around 12:15 p.m. (Moad Aff. at 3-4; Shepherd Aff. at 3.)
Sergeants Moad, Burns, and Shepherd learned from speaking with Mrs. Redd and the various MHMR caseworkers at the scene that Mr. Redd had been involved in a similar incident in the past in which it took many police officers to subdue him and transport him to the state hospital in Big Spring, Texas. (Moad Aff. at 4; Shepherd Aff. at 3; Tomlinson Dep. at 38.) Moad also understood that Mr. Redd liked knives and that there were a variety of knives available to him in the house, as well as two pistols hidden in the Mrs. Redd's bedroom. (Moad Aff. at 4, 5; Shepherd Aff. at 3.) In addition, Mrs. Redd explained that there was a large bull mastiff dog inside the house who did not like males. (Shepherd Aff. at 3.) Finally, an officer at the police station had run a criminal history check on Mr. Redd and discovered several previous arrests. (Moad Aff. at 4.)
Officers Terry Barnhart and Dean McCann of the SWAT team were the next to arrive, at about 1:00 p.m. (Moad Aff. at 4; Shepherd Aff. at 6.) Barnhart was the most senior of the SWAT team members present and was therefore in charge of the team. (Nayola Dep. at 26.) Sergeant Moad briefed the officers on the situation, giving them all the facts he had up to that point. (Moad Aff. at 4-5.) Shortly after 1:00 p.m., members of the SWAT team replaced the officers that Sergeant Moad had positioned along the perimeter of the house. (Moad Aff. at 5.) Sergeants Burns and Shepherd decided to put Ms. Shellenberger in touch with Mr. Redd, and three calls were made to the residence. (Shepherd Aff. at 4.) On the third call, Mr. Redd answered the phone and spoke briefly to Ms. Shellenberger. (Shepherd Aff. at 4-5; Burns Aff. at 5.) Redd's voice was calm, but he hung up after exchanging very few words and would not answer the phone on subsequent attempts to communicate. (Shepherd Aff. at 5; Burns Aff. at 5; App. Pl.'s Resp. Mot. Summ. J. Ex. 3 at 6.)
Around this time, Mickey Tomlinson, a supervisor with MHMR, arrived at the scene. (App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 6.) Shortly afterwards, Ervin Fisher resumed with an emergency apprehension and detention warrant, issued by a justice of the peace for Ector County, ordering Mr. Redd to be transported to the state hospital in Big Spring. (App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 6; Bums Aff. at 12-14.) Due to concern about the media finding out about the situation at 411 East 44th Street and thereby further complicating the situation, Mr. Redd's phone number was changed to an unlisted number. (Moad Aff. at 5.) It was also "locked down" to prevent Mr. Redd from making any outgoing calls. (App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 6.)
Sometime before 4:00 p.m., Sergeant Bums advised Sergeant Moad that he wanted Moad to use the public address system of his patrol car in an attempt to communicate with Mr. Redd. (Moad Aff. at 5.) Moad and Burns drove to the front of the house, where Moad spoke through the p.a. system in an attempt to get Mr. Redd to replace his phone on the hook. (Moad Aff. at 5.) At first Mr. Redd seemed responsive to Sergeant Moad's statements; however, he refused to hang up the phone and allow the officers to call him. (Moad Aff. at 6.)
At approximately 4:45 p.m., some members of the SWAT team disconnected Mr. Redd's electricity. (Moad Aff. at 6.) Just before 5:00 p.m., Mr. Redd appeared at the living room of the house. (Moad Aff. at 6.) Sergeant Moad again used the p.a. system to ask Mr. Redd to hang up his phone. (Moad Aff. at 6.) When Moad asked if the phone had been replaced on its receiver, Redd nodded his head. (Moad Aff. at 6.) Nevertheless, Mr. Redd refused to answer. (Moad Aff. at 6.)
Slightly after 5:00 p.m., Sergeant Burns and Sergeant Moad, who had driven a short distance down the street, were advised that Mr. Redd had emerged from the house and had been standing on the porch for a brief time before he returned inside. (Moad Aff. at 6.) Around 5:30 p.m., Sergeant Moad was informed that Mr. Redd's uncle had arrived on the scene. (Moad Aff. at 6.) At this point, Moad drove his police car to the front of the house and asked Mr. Redd through the p.a. system to pick up his phone so that he could speak with his uncle. (Moad Aff. at 6.) Redd would not speak with either the police or his uncle. (Moad Aff. at 6.)
A command post for the Crisis Intervention team had been set up in a patrol car down the street from the house, and a decision was made there to cut off the water supply to the house. (Moad Aff. at 7; Shepherd Aff. at 2; Burns Aff. at 2.) The water, along with the gas, was turned off just before 6:00 p.m. (App. Pl.'s Resp. Mot. Summ. J. Ex. 5 at 1.) After this had been done, Sergeant Burns continued to dial Mr. Redd's phone number in an effort to make contact with him. (Moad Aff. at 7.) In addition, Sergeant Burns and Sergeant Moad "tweaked" the siren and air horn on Moad's car several times in order to get Mr. Redd's attention. (Moad Aff. at 7.)
At about 6:30 p.m., Commander James Dodson, acting chief of police for the Odessa Police Department, arrived at the command post. (Blanco Aff. at 3-4; App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 8.) Because none of the efforts to communicate had produced results, a brainstorming session was held in which several further options were discussed. (Blanco Aff. at 4; App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 8.) One suggestion was for the police to simply withdraw from the area, but Mickey Tomlinson, who was also involved in the discussion, advised that Mr. Redd still posed a threat to himself or to others at that point. (Blanco Aff. at 4; Burns Aff. at 6; Shepherd Aff. at 6; App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 9.) Another option considered was to breach the doors of the house without making an entry, but this possibility was rejected because it was thought it might encourage Redd to further barricade himself by placing furniture against the doors. (Shepherd Aff. at 6.) This rearranging, in turn, could lead to Redd's discovery of the pistols that were kept somewhere in the house. (Shepherd Aff. at 7.)
The officers also ruled out sending a police dog into the house on the belief that Mr. Redd's alleged bull mastiff might distract the canine. (Shepherd Aff. at 7; Blanco Aff. at 4.) The possibility of the SWAT team making a forced entry into the residence was not thought feasible because of the likelihood of a confrontation with Mr. Redd. (Shepherd Aff. at 7; Blanco Aff. at 4.) It was not known what weapons he had either discovered in the house or fashioned himself, and Mr. Redd's dog was another potential problem. (Shepherd Aff. at 7; Blanco Aff. at 4.) The use of tear gas was rejected, thought not dismissed entirely, due to a number of uncertainties about the effect it could have on the situation at that point in time. (Shepherd Aff. at 7; Blanco Aff. at 4.)
These options having been eliminated, a decision was made to continue attempts to communicate with Mr. Redd. (Shepherd Aff. at 8; Blanco Aff. at 5.) To this end, it was agreed that a special type of telephone, a "negotiator phone," would be thrown through the front living room window. (Moad Aff. at 7; Blanco Aff. at 5.) Mr. Tomlinson suggested that this might encourage Randy Redd to communicate by disrupting his sense of security. (Shepherd Aff. at 8; Blanco Aff. at 5.) At approximately 8:30 p.m., Officer Nayola (also of the SWAT team) broke out the window and Officer McCann threw the phone into the house. (Nayola Dep. at 16; Mariz Dep. at 54.) Sergeants Burns and Moad then asked Mr. Redd over the p.a. system to pick up the phone. (Moad Aff. at 7; Shepherd Aff. at 8.)
At about 8:45 p.m., Mr. Redd appeared at the living room window and looked outside. (Moad Aff. at 7.) He appeared to be unhappy. (Moad Aff. at 7.) The phone cord became taut, and Sergeant Shepherd advised Sergeant Moad that the line was dead. (Moad Aff. at 7; Shepherd Aff. at 9.) The officers continued to call the house using Sergeant Moad's cell phone, and Sergeant Burns used the p.a. system to advise Mr. Redd that no one wanted to hurt him and they just wanted to talk to him in order to resolve the situation. (Moad Aff. at 7; Burns Aff. at 7.) These efforts gained no results. (Moad Aff. at 7; Burns Aff. at 7-8.)
Just before 9:00 p.m., Mr. Redd appeared again at the living room window. (Moad Aff. at 7.) He appeared to be agitated and was wielding a club-like instrument with a dark handle and a silver-colored body. (Moad Aff. at 7-8.) Mr. Redd then yelled and struck the window sill several times with the club-like device. (Moad Aff. at 8.) Redd threatened to kill Sergeant Burns, then backed away from the window and stopped talking. (Moad Aff. at 8.)
With darkness descending, the house was illuminated by means of two patrol cars with their lights and spotlights pointing toward the front of the residence. (Moad Aff. at 8.) The officers continued trying to use the cell phone and p.a. system in order to communicate with Mr. Redd. (Moad Aff. at 8.) They heard occasional sounds of ransacking and destructiveness emanating from the house, and were concerned that Mr. Redd might either be searching for the two hidden pistols or further barricading himself. (Moad Aff. at 8.)
At about 10:00 p.m., Mr. Redd stepped out onto the front porch. (Moad Aff. at 8.) Sergeant Burns and Sergeant Moad were seated in Moad's patrol car, with Burns still attempting to communicate through the p.a. system. (Moad Aff. at 8.) When they saw Mr. Redd come out of the house, both Moad and Burns exited the vehicle and approached the sidewalk in front of the house. (Moad Aff. at 8; Burns Aff. at 8.) Burns began talking to Redd in an attempt to reason with him. (Moad Aff. at 8; Burns Aff. at 8.) However, Mr. Redd continued to yell at the officers and again threatened to kill Sergeant Burns. (Moad Aff. at 8; Shepherd Aff. at 9; Martz Dep. at 64.) Redd sat down on the front edge of the porch and continued to yell while Burns continued to talk. (Moad Aff. at 8.) Redd then began hitting the sidewalk in front of the porch with his club-like instrument. (Moad Aff. at 8; Burns Aff. at 8; Martz Dep. at 100.)
During this time, Officer Barnhart requested permission from the command post to allow the SWAT team to rush Mr. Redd and tackle him. (App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 11.) His request was denied. (App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 11.) In addition, Corporal Robin Smith, who was positioned in front of the house with a "bean bag" shotgun — that is, a shotgun loaded with small canvas bags containing lead shot — announced that he had a clear shot of Mr. Redd, who was standing on the porch. (Moad Aff. at 9; Shepherd Aff. at 10; Martz Dep. at 30; App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 11.) The bean bag gun was to be used to administer non-lethal force and stun Mr. Redd from a distance. (Smith Dep. at 13, 24; Nayola Dep. at 22; Martz Dep. at 77, 102; App. Pl.'s Resp. Mot. Summ. J. Ex. 7 at 1.) Smith's request to take the shot was denied by Barnhart. (App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 11.)
Redd then stood up and turned around as if he were going back into the house. (Moad Aff. at 8.) Sergeant Moad noticed something shiny in Redd's left rear pocket that could not be identified. (Moad Aff. at 8.) It would later be determined to be a dinner knife that had been altered. (App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 10.) Before retreating into the house, Mr. Redd turned to face the officers, and he hit the side of the house a few times with the club-like instrument. (Moad Aff. at 9; Martz Dep. at 100.) It was not made of wood and did not break. (Moad Aff at 9.) Redd then went back inside. (Moad Aff. at 9.)
Sergeant Shepherd suggested that they coax Mr. Redd out of the house one more time, so that members of the SWAT team could try to tackle him and take him into custody. (Moad Aff. at 9; Burns Aff. at 9; Martz Dep. at 72.) The hope was that Mr. Redd would once again come out of the house and sit down on his porch, thereby allowing the SWAT team to rush him and safely apprehend him. (Nayola Dep. at 42.) In accordance with the plan, a bullet-proof vest was placed on Sergeant Burns. (Moad Aff. at 9; Burns Aff. at 9.) Burns and Moad got back into the patrol car and drove it up to the curb facing the house. (Moad Aff. at 9.) Officers Freddie Martz and Ronald Nayola, members of the SWAT team, were stationed at the east side of the house. (Moad Aff. at 9.) Other members of the SWAT team — Officers Barnhart, McCann, and Chavez — were supposed to respond as needed by coming from the west side of the house. (App. Pl.'s Resp. Mot. Summ. J. Ex. 5 at 1; App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 12.)
At about 10:30 p.m., Sergeant Burns once again began using the p.a. system in an attempt to get Randy Redd out of the house. (Moad Aff. at 9; Shepherd Aff. at 10.) In particular, Burns made comments to Mr. Redd that John Wayne would not hide in the house but would come outside and talk, while Jerry Lewis might stay inside the house and hide. (Moad Aff. at 9; Burns Aff. at 9; Shepherd Aff. at 10-11.) The officers had learned that Mr. Redd was a fan of John Wayne through their conversations with Ms. Shellenberger. (Shepherd Aff. at 4; Burns Aff. at 5; Tomlinson Dep. at 25-26.) Mr. Tomlinson apprised the officers that such a statement could likely make Mr. Redd angry and bring him out of the house in an aggressive manner. (App. Pl.'s Resp. Mot. Summ. J. Ex. 3 at 8; Tomlinson Dep. at 25-26.)
Shortly after this comment was made, Mr. Redd emerged from the house and moved quickly toward Sergeant Burns. (Moad Aff. at 9; Burns Aff. at 9; Smith Dep. at 24.) He had the same club or pipe in his hands. (Moad Aff. at 9; Burns Aff. at 9.) Sergeant Moad and Sergeant Burns proceeded to quickly back up in the patrol car to the curb on the opposite side of the street, farther away from the house. (Moad Aff. at 9; Shepherd Aff. at 11.) As they backed up, Corporal Smith stepped forward to prevent Mr. Redd from leaving the front yard of the house. (Moad Aff. at 9.) Smith shouted, "Police. Get down," but did not fire the bean bag gun because Redd's close proximity created the risk of inflicting a fatal injury. (Smith Dep. at 12-13; Shepherd Aff. at 11; Burns Aff. at 9; Martz Dep. at 75, 77, 102-03.)
At about the same time that Mr. Redd came out of the house, Captain Terry Lange of the Odessa Police Department gave the "go" signal to the SWAT team over the radio. (Nayola Dep. at 18-19; Martz Dep. at 88.) Even though he did not recognize the voice on the radio as that of Officer Terry Barnhart, the man in charge of the SWAT team, Officer Nayola decided to proceed towards Mr. Redd. (Nayola Dep. at 42.) Mr. Redd, still standing, looked at Corporal Smith but did not swing the pipe he was carrying. (Smith Dep. at 13, 25-26.) Redd then noticed Officers Martz and Nayola slowly approaching him from the east side of the house. (Moad Aff. at 9; Burns Aff. at 9-10; Nayola Dep. at 20, 22.) Nayola and Martz continued to advance towards Redd even though the rest of the SWAT team had not yet responded from the west side of the house. (Nayola Dep. at 20; Martz Dep. at 72.) The west team was apparently delayed in getting past a door on the west side that posed a danger of allowing Mr. Redd to sneak up on that part of the SWAT team from behind. (Nayola Dep. at 30; App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 12.) Redd moved quickly toward Martz and Nayola and swung at them with the club but missed. (Moad Aff. at 10; Shepherd Aff. at 11; Burns Aff. at 10; Martz Dep. at 79, 103.) As they retreated, Officers Nayola and Martz both ordered Redd to get on the ground. (Pl.'s Resp. Mot. Summ. J. Ex. 8 at 14.) In spite of their commands, Mr. Redd continued to advance towards them. (Pl.'s Resp. Mot. Summ. J. Ex. 8 at 14.) Officer Nayola then sprayed Mr. Redd's face using a large canister of pepper spray. (Nayola Aff. at 2; Moad Aff. at 10; Shepherd Aff. at 11; Burns Aff. at 10.) This had no visible effect on Redd, but it did affect other police officers in the vicinity, including Sergeant Moad. (Nayola Aff. at 2; Moad Aff. at 10; Shepherd Aff. at 11; Burns Aff. at 10; Martz Dep. at 79.) Mr. Redd kept advancing towards Officers Martz and Nayola, and they rapidly retreated backwards across the yard. (Nayola Aff. at 2; Martz Dep. at 80; Moad Aff. at 10; Shepherd Aff. at 11; Burns Aff. at 10.) At this point, Sergeant Moad got out of his patrol car and started to move towards Officers Martz and Nayola. (Moad Aff. at 10.) When they had retreated all the way to the fence, Martz fired a shot that struck Mr. Redd in the upper abdomen. (Martz Aff. at 2; App. Pl.'s Resp. Mot. Summ. J. Ex. 8 at 14.) Mr. Redd kept advancing towards Officers Martz and Nayola. (Martz Aff. at 2; Nayola Aff. at 2.) Just after firing the shot, Officer Martz tripped on the edge of a flower bed located next to the fence and fell backwards. (Martz Aff. at 2; Martz Dep. at 82-84.) A few seconds later, Nayola fired a shot that struck Mr. Redd in the right dorsal shoulder area. (Nayola Aff. at 2; Martz Dep. at 85; App. Pl.'s Resp. Mot. Summ. 3. Ex. 8 at 14.) Mr. Redd fell to the ground face-first. (Moad Aff. at 10; Shepherd Aff. at 11.) Officer Nayola then approached Mr. Redd, rolled him over onto his back, handcuffed him, and rolled him back over. (Nayola Dep. at 34.) He was immediately taken to the hospital and was pronounced dead a short while later.
DISCUSSION
The Plaintiff alleges two causes of action against the Defendant. The first is a wrongful death cause of action under Texas law; the second is a compound claim under 42 U.S.C. § 1983 for the use of excessive and unreasonable force in the attempt to apprehend Mr. Redd. See Pl.'s Resp. Mot. Summ. 3. at 6-12. The Court first addresses Plaintiff's § 1983 claims and then deals with the wrongful death cause of action.
A. Section 1983 Claims
The Plaintiff attempts to establish municipal liability by several methods. First, she alleges that the Defendant City of Odessa ( i.e., the Odessa Police Department) collectively used excessive and unreasonable force against Randy Redd in violation of 42 U.S.C. § 1983. Second, the Plaintiff claims that the City of Odessa tried to train, discipline, or properly equip its SWAT team. In particular, she argues that the City of Odessa failed to arm members of the SWAT team with various equipment that "can be used in a non-deadly manner to subdue alleged violent citizens," that it failed to train them in the use of non-deadly force, and that it failed to discipline them for the use of deadly force against Mr. Redd. See Pl.'s Original Compl. at 5. Finally, the Plaintiff alleges that the City of Odessa had no meaningful policy regarding the use of the SWAT team.
1. Excessive Force Claim
Municipalities are liable for excessive force claims under § 1983 only if the individual officer or officers who committed the violation acted according to a municipal policy or custom. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell v. Dep't of Soc. Serv.s, 436 U.S. 658, 690-91 (1978). A municipal policy is defined as a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690. A custom, on the other hand, is not authorized by written law. As explained by the Supreme Court in Monell, "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials. . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to consitute a `custom or usage' with the force of law." Id. at 691 (quoting Adickes v. S. H. Kress Co., 398 U.S. 144, 167-68 (1970)).
The Fifth Circuit has explained that "[a]llegations of an isolated incident are not sufficient to show the existence of a custom or policy. `Isolated violations are not the persistent, often repeated, constant violations that constitute custom and policy.'" Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (quoting Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984)). Rather, "[t]o demonstrate a municipal policy or custom under § 1983, a plaintiff must at least allege: a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent policy misconduct and/or that serious incompetence or misbehavior was general or widespread throughout the police force." Id. In this case, the Plaintiff produced no summary judgment evidence of a city policy or custom that led to the use of excessive force against Mr. Redd. Nor did she produce any evidence of prior instances in which the City of Odessa had sanctioned the use of excessive force. In fact, at a hearing held on November 2, 2000, the Plaintiff admitted that she was unable to find any policy or custom authorizing the unjustified use of deadly force by the Odessa Police Department.
In contrast, there is affirmative summary judgment evidence showing that the City of Odessa had a policy or custom disallowing the unjustified use of excessive force. For example, Odessa Police Department General Order 3700 — which was in effect on July 8, 1997 — specifies that "[t]he primary responsibility of police officers in all instances is to protect life and property." See Moersch Aff. Ex. A at 5. The Plaintiff made no attempt to counter this policy that was in effect at the time of Mr. Redd's shooting. Thus, the Court is of the opinion that, viewing the summary judgment evidence in the light most favorable to the Plaintiff, no rational trier of fact could find that the City of Odessa had a policy or custom of depriving people in Mr. Redd's position of their constitutional rights through the use of excessive force by the Odessa Police Department. Moreover, municipalities cannot be held liable for § 1983 violations based on a theory of respondeat superior. Monell, 436 U.S. at 691-92. In other words, the City of Odessa cannot be held vicariously liable for the torts of its employees — in this case, OPD Officers Nayola and Martz.
2. Failure to Train, Discipline, and Equip Claims
Another theory relied upon by the Plaintiff to prove municipal liability is the alleged failure of the City of Odessa to train, discipline, or properly equip the SWAT team with respect to the use of deadly force. To succeed on this variety of a § 1983 claim, the plaintiff must demonstrate that the failure to train or discipline amounts to a " deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989) (emphasis added). The plaintiff must also establish a causal link between the alleged inadequate training and the plaintiff's injuries. Id. at 391. In the words of the Supreme Court:
[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy makers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.Id. at 390 (footnotes omitted). For example, the Court explained, there is an obvious need to train officers in the constitutional limitations on the use of deadly force, such that the failure to properly train them in that regard would be so likely to result in constitutional violations that it would amount to deliberate indifference. Id. at 390 n. 10.
Deliberate indifference is an objective standard in the context of a municipal liability case. See Farmer v. Brennan, 511 U.S. 825, 84 1 (1994) (stating that "[i]t would be hard to describe the Canton understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective.").
Once again, however, more than a single use of excessive force by an officer is generally necessary to warrant the inference that the use of force was attributable to inadequate training amounting to deliberate indifference by city officials. See City of Oklahoma v. Tuttle, 471 U.S. 808, 813 (1985). That a particular officer was unsatisfactorily trained, that an adequate training program was negligently administered, or that the injury could have been avoided with better or simply more training is likewise insufficient to establish deliberate indifference. City of Canton, 489 U.S. at 390-91. Rather, the plaintiff must identify a particular deficiency in the training program itself and prove that that deficiency was "closely related to the ultimate injury." Id. at 391. Similarly, in the context of a failure to discipline allegation, a municipality's decision not to discipline a single officer for a single incident of illegality will not justify an inference that the municipality had a policy or custom authorizing or encouraging police misconduct. See Fraire v. City of Arlington, 957 F.2d 1268, 1278-79 (5th Cir. 1992).
Under the "single incident exception," a single violation of federal rights may be sufficient to prove deliberate indifference if there is proof of the possibility of recurring situations that present an obvious potential for violation of constitutional rights and the need for additional or different police training. See Bd. of County Comm'rs v. Brown, 520 U.S. 397, 409 (1997). The Fifth Circuit has consistently rejected application of the single incident exception and has noted that "proof of a single violent incident ordinarily is insufficient to hold a municipality liable for inadequate training." Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000) (quoting Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998)). Here, the single incident exception may be quickly dispensed with because the Plaintiff failed to produce any evidence suggesting the possibility of recurring situations that present an obvious potential for violation of constitutional rights by OPD or the need for additional or different training of its officers.
In this case, the Plaintiff produced no summary judgment evidence that identified a particular deficiency in OPD's deadly force training program, nor did she demonstrate the necessary causal connection between the deficiency and Mr. Redd's death. See City of Canton, 489 U.S. at 391. Instead, she chose to rely merely upon the single acts of Officers Nayola and Martz as the basis for an inference that the City was deliberately indifferent to its officers' proper training in the use of deadly force. As previously explained, such an inference on behalf of the Plaintiff is neither justifiable nor permissible. See Tuttle, 471 U.S. at 813.
Indeed, the Plaintiff made no effort to counter the summary judgment evidence presented by the Defendant that describes the City's training programs in effect at the time of the shooting. Specifically, the Defendant submitted affidavits that list various types of training in the use of deadly force received by members of the Odessa Police Department. See Moersch Aff. at 2-3; Moad Aff. at 2-3. The affidavits allege, for example, that OPD officers are required to complete a state-mandated "use of force intermediate training program" in order to receive intermediate certification. (Moersch Aff. at 2; Moad Aff. at 2.) The affidavits also allege that officers who are members of the SWAT team receive further training in the use of deadly force, including a minimum of eight hours of training sessions each month in which use of force options are discussed. (Moersch Aff. at 2-3; Moad Aff. at 2-3.) Finally, the affidavits specify that Officers Nayola and Martz had both received the training described, including the use of force intermediate training program. (Moersch Aff. at 3; Moad Aff. at 3.)
Looking at the summary judgment evidence as a whole, the Court is of the opinion that there is no genuine issue of material fact with respect to the Plaintiff's failure to train claim, and that no rational trier of fact could find in favor of the Plaintiff on this claim against the City of Odessa. By way of comparison, in Baker v. Putnal, 75 F.3d 190 (5th Cir. 1996), the Fifth Circuit upheld the trial court's grant of summary judgment for the defendant when the only evidence the plaintiffs produced was the affidavit of a criminal justice expert in support of a claim of inadequate police training by the city of Galveston. The court found that the expert's statement was full of unsubstantiated conclusions and was "more aspersion than evidence." Id. at 199-200. Here, Plaintiff has not even done this much. She offers no summary judgment evidence in the form of depositions, answers to interrogatories, admissions, or affidavits as support for her failure to train claim. If the plaintiffs did not meet their burden in Putnal, then, a fortiori, the Plaintiff here did not meet her burden to show the existence of a genuine issue for trial.
In the same vein as her failure to train argument, Plaintiff contends that the City's failure to discipline Officers Nayola and Martz for their use of deadly force against Mr. Redd justifies an inference that the City had a policy or custom authorizing the use of excessive force by police officers. The Plaintiff produced no other summary judgment evidence of instances in which the City failed to discipline its officers for their use of excessive force. In contrast, the Defendant submitted the affidavit of Captain Zearl Clark, the officer currently in charge of OPD's Inspectional Services Department. The affidavit explains that the Inspectional Services Department undertakes an investigation any time an OPD officer discharges a firearm except while at a training facility or on a firing range. (Clark Aff at 2.) The affidavit further alleges that disciplinary measures, while not undertaken by the Inspectional Services Department, have been and are administered in appropriate cases by either a bureau commander, the chief of police, or the city manager. (Clark Aff. at 2.) Finally, the Defendant submitted a copy of Odessa Police Department General Order 1200 along with its summary judgment evidence. See Clark Aff. Ex. A. General Order 1200, which was in effect on July 8, 1997, deals with various formal and informal disciplinary actions that can be taken by OPD, including verbal warnings, written warnings, written reprimands, suspensions, demotions, and dismissals. (Clark Aff. Ex.A at 9-10.)
When stacked up against this summary judgment evidence, the Plaintiff's failure to discipline claim is nothing more than an assertion that the City of Odessa's decision not to discipline Officers Nayola and Martz for the single incident involving Mr. Redd should justify an inference that the City had a policy or custom authorizing or encouraging police misconduct. That argument is clearly foreclosed by Fraire, 957 F.2d at 1278-79; accordingly, the Court is of the opinion that there is no genuine issue of material fact with respect to the Plaintiff's failure to discipline claim, and the Defendant is entitled to summary judgment on this part of the Plaintiff's case.
Lastly, the Plaintiff alleges that the Defendant failed to properly equip OPD officers so that they might have been able to avoid using deadly force against Mr. Redd. Specifically, the Plaintiff claims that the SWAT team has helmets, shields, body armor, batons, and possibly other non-lethal devices available to it "which can be used in a non-deadly manner to subdue alleged violent citizens." Pl.'s Original Compl. at 5. Again, Plaintiff produced no summary judgment evidence that the City of Odessa's failure to properly equip the SWAT team would be so likely to result in constitutional violations that it amounts to deliberate indifference. On the other hand, it is undisputed that Officers Nayola and Martz turned to the viable non-deadly alternative of pepper spray before using deadly force against Mr. Redd.
Plaintiff's failure to properly equip claim seems to be focused more on the particular decision not to arm the SWAT team with various non-lethal equipment (such as shields, helmets, body armor, etc.) on the fateful day that Mr. Redd lost his life. Clearly, the only manner in which the Plaintiff can recover against the City on this theory is by showing that an officer empowered to make policy decided not to equip the SWAT team with appropriate non-deadly devices. A single decision by such an officer can subject a municipality to liability. See Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).
The Court infers this argument from the Plaintiff's Response to the Motion for Summary Judgment; the argument is not explicitly advanced by the Plaintiff in either the Complaint or her summary judgment filings.
The chief of police is the principal policy-maker for the Odessa Police Department. See, e.g., Fraire, 957 F.2d at 1279 n. 45. On July 8, 1997, OPD's chief of police, James Jenkins, was out of town. (Blanco Aff. at 3.) In his place, Commander James Dodson was acting police chief. But regardless whether Dodson or a lower ranking officer made the actual decision on how to equip the SWAT team on July 8, that decision cannot subject the City of Odessa to liability. As explained by the Supreme Court, imposing Pembaur liability for a single decision by an officer requires differentiating between authority to make final policy and authority to make discretionary decisions only. See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). For a subordinate's decision to be attributed to the municipality, "the authorized policy makers [must] approve [the] decision and the basis for it. . . . Simply going along with discretionary decisions made by one's subordinates . . . is not a delegation to them of authority to make policy." Id. at 129-30. Nor can delegation be inferred by a failure to investigate a subordinate's discretionary actions. Id. In this case, Chief Jenkins, because he was out of town, could at most be said to have "gone along" with the discretionary decision made by one of his subordinates, either Dodson or someone else, on how to equip the SWAT team to deal with Mr. Redd's situation. There is no allegation and no proof that Jenkins or the City delegated to Dodson or any other officer present at the scene on July 8, 1997 the authority to make final policy. Therefore, the City is not liable.
3. No Meaningful Policy Claim
The Plaintiff claims that the SWAT team is only to be used in hostage situations and, since Mr. Redd did not have a hostage, the SWAT team was misused on July 8, 1997. Therefore, the Plaintiff alleges, the City of Odessa had no meaningful policy regarding the use of its SWAT team.
In some cases, having no policy on a particular matter may serve as the basis for § 1983 liability when the omission amounts to an intentional choice as opposed to an unintentional, negligent oversight. See Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 217 (5th Cir. 1998). The standard used to determine when a city intentionally has no policy is, once again, deliberate indifference. Id. (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989)); see also Evans v. City of Marlin, 986 F.2d 104, 108 (5th Cir. 1993). Thus, having no policy gives rise to municipal liability when it is obvious that the likely consequences of not adopting a policy will be a deprivation of constitutional rights. See Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992).
In this case, the Odessa Police Department does in fact have policies in place for the appropriate use of the SWAT team. General Order 3700 specifies that:
The purpose of this General Order is to establish policy and procedures concerning critical incidents including, but not limited to, sniper assaults, barricaded subjects, suicidal individuals and hostage situations. The Special Weapons And Tactical Unit (SWAT), the Crisis Intervention Unit (CIU), and the K-9 Unit shall be considered Tactical Units. Additional policies and procedures for the K-9 Unit shall be established in a separate General Order.See Blanco Aff. Ex. A at 1. The Order further clarifies that "[t]he Tactical Units shall provide the Department [ i.e.], OPD with 24 hour coverage necessary for immediate response to critical incidents." Id. The situation at the Redd residence on July 8, 1997 was a critical incident because Mr. Redd had barricaded himself in the house and because he was thought to be suicidal. Therefore, it was appropriate for the SWAT team to respond to the situation. The Plaintiff presented no evidence that the policies detailed above were implemented with deliberate indifference towards the plight of barricaded or possibly suicidal subjects. Cf. Evans, 986 F.2d at 108. Accordingly, the Defendant is entitled to summary judgment on the Plaintiff's no meaningful policy claim.
Finally, the Plaintiff argues that because the SWAT team was given the "go" command by Captain Lange, who was not a member of the SWAT team, instead of Officer Barnhart, the man in charge of the SWAT team, OPD violated General Order 3700, which states that "[u]nder no circumstances will any person, other than a SWAT Team member, assume tactical command of the SWAT Team and its operation." See Blanco Aff. Ex. A at 2. The Plaintiff implies that this alleged violation of the SWAT team's standard operating procedure directly led to Mr. Redd's death. Assuming arguendo that Lange violated OPD's General Order by issuing a tactical command over the radio, this conduct would at most be characterized as negligent operation under the outlined SWAT team procedures. But, as mentioned before, the negligent administration of an adequate policy is not sufficient to give rise to municipal liability. Put differently, "[t]he failure to follow procedural guidelines, standing alone, does not implicate constitutional liability." Evans, 986 F.2d at 108 n. 6 (citation omitted). The Defendant is therefore entitled to summary judgment on the Plaintiff's SWAT team procedure claim.
B. Wrongful Death Claim
Because the Court is of the opinion that the Defendant's Motion for Summary Judgment should be granted with respect to all of the Plaintiff's § 1983 claims, the Court is consequently left without an independent basis for jurisdiction over the Plaintiff's cause of action under the Texas Wrongful Death Act. As such, the Court need not decide the merits of the Plaintiff's wrongful death claim. Rather, the Court deems it appropriate to dismiss the cause of action without prejudice to the Plaintiff's re-pleading the wrongful death claim in state court.
CONCLUSION
For the above-mentioned reasons, it is ORDERED that the Defendants' Motion for Summary Judgment is hereby GRANTED with respect to the Plaintiff's 42 U.S.C. § 1983 claims.
It is FURTHER ORDERED that the Plaintiff's state law claim under the Texas Wrongful Death Act is hereby DISMISSED WITHOUT PREJUDICE.