Opinion
CIV. NO. 3:99-CV-0310-P.
April 11, 2000.
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration is the Motion for Summary Judgment of Defendant City of Irving filed January 31, 2000. After considering the motion, the Plaintiff's response, and the relevant law, the Court hereby GRANTS the motion.
I. BACKGROUND
Maria Rivera ("Rivera" or "Plaintiff") has sued the City of Irving ("City" or "Defendant"), for claims arising out of her arrest on January 29, 1997, at 1330 Rock Island, Irving, Texas 75060. First Amended Complaint ("Complaint") ¶ 8. On that date, Officer Jonathan Plunkett ("Plunkett") and Officer Keith McCain ("McCain") were on patrol for the City of Irving Police Department. While on patrol, the Officers responded to a call at Plaintiff's apartment complex to investigate suspected drug activity. Plunkett Depo., Def's App. at 41, 62; McCain Depo., Def's App. at 90-95. At approximately 11:00 p.m., the Officers arrived at the apartment complex and saw a group of about fifteen juveniles quickly disburse and run away. The Officers witnessed three or four of these juveniles run into what turned out to be Plaintiff's apartment. Plunkett Depo. at 42-43; McCain Depo. at 95. At this point, the parties' stories about the rest of the evening's events widely diverge.
The Officers testified at their depositions that they went to Plaintiff's apartment to investigate suspected drug activity and found her apartment door open. Plunkett Depo. at 44-45; McCain Depo. at 95-96. Officer McCain knocked on the doorframe and requested permission to enter and search for the juveniles who he had seen run into her apartment. Plunkett Depo. at 44-45; McCain Depo. at 95-98. The Officers contend that with Plaintiff's permission, they entered the apartment, McCain found the suspects, and ordered them outside. McCain Depo. at 98-101. While McCain was inside, Officer Plunkett returned to the doorway in order to prevent anyone else from entering the apartment. He told Vanessa, the Plaintiff's daughter, that she could not enter the apartment. Despite his order, Vanessa pushed him in the chest and tried to enter. Plunkett Depo. at 50-51. In order to control her aggressive behavior, Plunkett placed Vanessa in a restraint hold and began to place her under arrest. Plunkett Depo. at 49-50.
At this point, Plunkett claims that Rivera entered the fray. She allegedly charged out of the apartment towards him, intentionally ran into him, and pushed him in the chest. Plunkett Depo. at 49, 52-53. When Rivera charged him, Plunkett released Vanessa and pushed the Plaintiff aside, causing her to fall on the ground. Plunkett Depo. at 49, 53, 73. With the Plaintiff on the ground screaming at him, Plunkett returned his attention to restraining and arresting Vanessa. Plunkett Depo. at 53-54; McCain Depo. at 102-03. Upon hearing all of the commotion, Officer McCain went outside to investigate. He thought Rivera was interfering with Officer Plunkett's discharge of his duties, so McCain picked the Plaintiff up and escorted her to the patrol car. Plunkett Depo. at 54-55; McCain Depo. at 105-07. The Officers arrested Rivera for assault and Vanessa for interfering with the duties of a Police Officer. Plunkett Depo. at 56-57, 61-62.
Plaintiff relates a much more violent rendition of the night's events. First of all, she alleges that the Officer forcibly broke the door open to her apartment when no one immediately answered their knock. Complaint ¶ 8. Once inside the apartment, the Officers ordered everyone outside. Rivera asked the officers for their names and the reason that they were in the apartment. Complaint ¶ 9. Rather than answering her, one of the officers allegedly pushed Rivera's daughter to the side, while the other officer grabbed Rivera and started beating her with his nightstick. Complaint ¶ 9. The officer then threw Rivera to the ground, using the nightstick to beat her back, legs, and thighs. Complaint ¶ 10. Following the beating, he allegedly picked her up and choked her before throwing her into the police car. Complaint ¶¶ 10-11.
Officer Plunkett maintains that his only contact with the Plaintiff was brushing or pushing her aside after she intentionally ran into him. Plunkett Depo. at 73. Officer McCain states that he never touched her except for escorting her to the patrol car. McCain Depo. at 112-13. Both of the Officers deny ever striking or hitting Plaintiff with a baton or using mace on her. The only injury McCain noticed on Plaintiff was a scratch on her ankle. McCain Depo. at 113, 118-19. Plaintiff contends that she was arrested on the "trumped up" charge of assault and denies striking, attempting to strike, or otherwise threatening the officers in any way. Complaint ¶¶ 12, 14. However, on January 29, 1997, Maria Guadalupe Rivera pled nolo contendre to assault on a public servant for which she received a fine of $532.00. Def's App. 1-2, Rivera Depo. at 11.
Rivera has sued the City under 42 U.S.C. § 1983 (1994) alleging warrantless arrest and excessive use of force in violation of the Fourteenth Amendment. Complaint ¶¶ 27-28. She also alleges causes of action under the Texas Tort Clams Act for the Officers' wrongful and negligent acts committed within the scope of their employment and for the wrongful acts of the Officers in their use of a motor-driven vehicle. Complaint ¶¶ 29-32. The City advances nine separate theories in seeking summary judgment on all of these claims; however, the Court need only address three of them. First, the City argues that the warrantless arrest and excessive use of force claims are barred by Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996); second, that Plaintiff has failed to allege a City policy that teaches or condones excessive use of force; and third, that the state claims are barred by sovereign or governmental immunity.
II. ANALYSIS A. Summary Judgment Standard
Summary Judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Anderson, 477 U.S. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex Corp., 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of the submitted documents to which the nonmoving party directs the Court. Id.
B. Rivera's Warrantless Arrest and Excessive Use of Force Claims 1. Analysis Under Heck v. Humphrey and Hudson v. Hughes
The City moves for summary judgment on Plaintiff's claims for warrantless arrest and excessive use of force, arguing that the claims are barred as a matter of law. In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held that a prisoner cannot bring a suit for damages under 42 U.S.C. § 1983 that challenges the constitutionality of a criminal conviction. In doing so, the Court declared that a previously developed theory of law making "civil tort actions [in]appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement." Id. at 486. Thus, when someone convicted of a crime seeks damages in a § 1983 suit, "the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at 487. However, if the plaintiff can demonstrate that even if successful, the action will not necessarily imply the invalidity of the criminal judgment, then the action should be allowed to proceed unless there is some other bar to the suit. Id.
The Fifth Circuit has had two opportunities to apply the principle announced in Heck. In Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996), the plaintiff had been arrested and convicted on charges of felon in possession of a firearm and for battery of a police officer. He subsequently filed a § 1983 charge against various officials asserting claims of false arrest and excessive use of force. Id. at 872. The Court of Appeals found that because the firearm was found only after the arrest, a finding of false arrest for burglary would result in the suppression of the firearm under the Fourth Amendment as the "fruit" of an illegal arrest. Id. The suppression of the firearm would necessarily call into question the conviction the firearm charge. Therefore, the Fifth Circuit dismissed the plaintiff's claim for false arrest as barred under Heck. Id.
Applying the same principles, the Hudson Court also dismissed plaintiff's claim for excessive use of force. In Louisiana, where the plaintiff was arrested and convicted, self-defense is a justification defense to the crime of battery of an officer. Id. at 873. Under this defense, the criminal defendant must show that his use of force against the officer was both reasonable and necessary to prevent a forcible offense against himself Id. Therefore, if plaintiff successfully proved his claim for excessive use of force, it would necessarily demonstrate his justification for battery of an officer and undermine his conviction for that crime. Heck barred the plaintiff's § 1983 claim because it would call into question the validity of his criminal conviction.
The Fifth Circuit once again applied Heck in barring another plaintiff's claims under § 1983 for false arrest and excessive use of force. In Sappington v. Bartee, 195 F.3d 234 (5th Cir. 1999), the plaintiff alleged that he and his wife were parked on the side of the road when police officers approached and took him to jail where the officers then sprayed him with pepper spray, and beat him. Id. at 235, In connection with this incident, a jury convicted the plaintiff of aggravated assault of a police officer and sentenced to 99 years in prison. The Fifth Circuit held that the conviction necessarily implied that there was probable cause for the arrest; therefore, a successful claim for false arrest would undermine the conviction. Id. at 237.
The plaintiff in Sappington argued that the excessive force charge did not necessarily undermine the validity of conviction for aggravated assault of an officer. He argued that under Texas law, the use of force to resist arrest is justified only if the arresting peace officer uses unnecessary force before the actor offers any resistance. Id. at 236 (citing Tex. Pen. Code § 9.31(c)(1)). Therefore, it was possible for the officer to have used excessive force alter the plaintiff offered some resistance. He argued that under such circumstances he would have a viable civil rights claim because Texas law does not afford him the defense of self-defense to the criminal charge. Id. The plaintiff did not persuade the Court, however, with this theory. The Fifth Circuit noted the numerous inconsistencies between his legal theory and the summary judgment record. Id. at 236-37. The plaintiff had previously testified that the officers assault on him began without any provocation on his part at all. In light of his testimony, his § 1983 claim necessarily undermined his criminal conviction. Id. at 237.
The Court also recognized that his criminal conviction for aggravated assault negated the finding of excessive force by the officer. An aggravated assault justifies the use of any force up to and including deadly force to protect against the harm. Id. at 237 (citing Tex. Pen. Code 22.02(a)(1)).
In the instant case, Rivera concedes that Fifth Circuit's rulings in light of Heck bar her claim for warrantless or false arrest. Pl's Resp. at 9. She disputes the application of Heck as barring her claim for excessive use of force. Therefore, the Court must determine whether her § 1983 claim for excessive use of force, if successful, would undermine Plaintiff conviction for assault on a public servant. The complaint filed by Officer Plunkett alleged that Rivera knowingly caused physical contact with him that she should have known was offensive when she pushed him in the chest and ran into him. Def's App. at 1. The Texas Penal Code defines assault as intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Pen. Code § 22.01(3) (West Supp. 2000). Following her arrest, Plaintiff pled nolo contendre to assaulting a public servant.
Plaintiff does not allege that her actions were justified by self-defense or by any other theory. Rather, she argues that even if she assaulted a police officer, the officers then responded with unreasonable force to subdue her by choking her and striking her with a baton numerous times. According to her argument, the facts presented in her case present a claim for excessive use of force that is conceptually distinct from the conviction for assault so that success on her claim would not necessarily imply the invalidity of her conviction. The Court agrees.
A plea of nolo contendre or a conviction for assault of a police officer does not automatically absolve police officers or the City from liability for damages caused by excessive use of force. The Fifth Circuit assumed without deciding that a situation could arise where an excessive use of force claim would not undermine a conviction for resisting a search. See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). In Smithart v. Towery, the Ninth Circuit faced a scenario similar to the one now before the Court. 79 F.3d 951 (5th Cir. 1996). There, the plaintiff had tried to run down the police with his vehicle. He alleged that once he got out of his car and his attack on them ended, the officers beat him to the point of breaking one arm and both legs.Id. at 952. The Court held that under those circumstances, a successful claim for excessive use of force would not necessarily invalidate plaintiff's conviction for assault with a deadly weapon. Id. at 952-53.
Under the current set of facts, it is undisputed that Rivera did not attack either of the officers once they began to place her under arrest. This case differs from the facts of Sappington in that here, all of the alleged excessive force happened after she had already committed the offense of assault. In Sappington, it seems as though the plaintiff continued to physically struggle with the arresting officers throughout the altercation. Although Rivera denies ever attacking Plunkett, at most she pushed Officer Plunkett in the chest and ran into him prior to her alleged beating. Parties do not dispute that after her initial contact with Plunkett, she did not use any other physical force against the officers. Therefore, she has no self-defense claim that would undermine her conviction for assault. Her current § 1983 claim only asserts that after she assaulted the officers, they used an unreasonable amount of force in subduing and arresting her. Rivera's claim for excessive use of force, even if successful, will not necessarily undermine her conviction for assault of a public servant.
2. Analysis Under § 1983
Although Plaintiff's claim for excessive use of force is not barred by the doctrines announced in Heck and Hudson, Plaintiff's claims fail as a matter of law because she has failed to identify a policy promulgated by the city that caused the alleged constitutional violation.
Municipalities are "persons" subject to liability under 42 U.S.C. § 1983. However, a municipality cannot be held liable for merely employing a tortfeasor. Monell v. New York City Dep't of Social Serv., 436 U.S. 658 (1978). The Supreme Court stated that Congress intended to hold cities liable for the actions of its officials only when an "action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 692. Therefore, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.
The parties do not dispute that the City maintains a policy of training its police officers in the use of the nightstick or "asp baton." Plaintiff directed the Court to deposition testimony of McCain stating that he carries a baton while on patrol. Pl's Resp. at 4. He also testified to receiving continual training with the baton teaching him to strike suspects who resist arrest on the back of the leg and calf until the resistance stops. Pl's Resp. at 5. Contrary to Plaintiff's assertions, this testimony does not establish the City's liability.
The Fifth Circuit has defined `policy' as:
(1) A policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy making authority; or
(2) A persistent and widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that thirty represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy making authority.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984).
Rivera offered no evidence that the City has an official policy authorizing or condoning excessive use of force in making arrests or in using the batons. According to the Plaintiff, the City adopted a policy condoning the use of the baton, when necessary, to subdue suspects who are resisting arrest. Plaintiff's evidence describes how the policy condones such force until the resistance stops. By its terms, the policy does not condone the use of excessive force. As police officers are entitled to use force when arresting suspects who react violently, the policy itself does not violate any constitutional provision. Therefore, she must demonstrate that the City maintains an unofficial policy condoning its officers' excessive use of force when making arrests. City of Oklahoma City v. Tuttle, 471 U.S. 808, 822 (1985) (distinguishing the burden on a plaintiff in a case where the policy is unconstitutional on its face so that a single instance will suffice from a case where the policy is not unconstitutional and therefore requires a greater showing by the plaintiff to establish a municipality's liability). Where a challenged policy is by its terms constitutional, "considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the "policy" and the constitutional deprivation." Id. at 824.
Rivera has failed to illustrate a persistent practice or custom of an excessive use of force by the City's police officers. Absent such a showing, the City cannot be held liable. See Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992) (affirming summary judgment where plaintiff failed to demonstrate that the City's use of force policy condoned the unnecessary or unjustifiable use of force). Accordingly, the Court hereby GRANTS summary judgment as to Plaintiff's § 1983 claims.
C. Rivera's State Law Claims Against the City
The City seeks summary judgment on Rivera's claims brought under the Texas Tort Claims Act ("TTCA"). Defendant argues, and Plaintiff did not refute, that the City has not waived immunity from suit for intentional acts taken by its agents or officials. Defendant's argument is well-taken.
Tex. Civ. Prac. Rem. Code § 101.001, et seq.
The doctrine of sovereign immunity insulates governmental units from liability for the torts of its officers and agents in the absence of a constitutional or statutory provision creating such liability. The Texas Tort Claims Act provides for a limited waiver of governmental immunity for some torts committed by its officers and agents; however, the TTCA expressly reserves immunity in the suit arises from an intentional tort. Tex. Civ. Prac. Rem. Code § 101.057(2) (West 1997). In cases where the plaintiff alleges that the tort involved the use of a motor vehicle, the governmental unity will still enjoy sovereign immunity from suit if the act was committed intentionally. City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex.App. — San Antonio 1990, writ denied). False arrest and excessive use of force are both intentional torts for which the City cannot be held liable under for damages under the TTCA. Id. Therefore, the Court GRANTS summary judgment on Plaintiff's state law claims.
Plaintiff claims that some of the injury arose out of the use of a motor vehicle; however, the use of the motor vehicle was limited to allegedly throwing Rivera against the police car. This action constitutes an element of her excessive use of force claim and does not involve the use of a motor vehicle as contemplated by the statute. Regardless, as stated herein, it was an intentional act for which the motor vehicle exception would not apply.
CONCLUSION
For the reasons stated herein, the Court finds that Plaintiff has not raised any genuine issue of material fact as to her claims under § 1983 or the Texas Tort Claims Act. Therefore, the Court hereby GRANTS the Motion for Summary Judgment of Defendant City of Irving and dismisses with prejudice all claims brought by Rivera against the City in this matter.
SO ORDERED, this 11th day of April 2000.