Opinion
Civil Action No. 3:01-CV-0969-N.
July 26, 2004
ORDER
Before the Court is Defendant Claude Paquet's ("Officer Paquet") Motion for Summary Judgment, filed June 1, 2004. Officer Paquet argues that Plaintiff Michael D. Rodgers, Sr. ("Rodgers") has failed to state a claim for excessive force in violation of Section 1983, and such claim is barred by the doctrine of qualified immunity. Because Rodgers fails to produce summary judgment evidence to rebut Officer Paquet's defense of qualified immunity, Defendant's motion is granted.
Michael Rodgers is no stranger to the Court. E.g., Rodgers v. Dallas Area Rapid Transit, No. 3:99-CV-2173-L; Rodgers v. Dallas Area Rapid Transit, No. 3:99-CV-2504-L; Rodgers v. Choice, No. 3:00-CV-1488-L; Rodgers v. Garland Housing Agency, No. 3:01-CV-0477-H; State of Texas v. Rodgers, No. 3:01-CV-0721-H; Rodgers v. Dallas Metrocare, No. 3:01-CV-1165-L; Rodgers v. State of Texas, No. 3:01-CV-1934-M; Rodgers v. Flying J Travel, No. 3:02-CV-1375-N; Rodgers v. Williams, No. 3:02-CV-1734-H; Rodgers v. Enterprise Rent-A-Car, No. 3:02-CV-1894-L; and Rodgers v. Duncanville ISD, No. 3:04-CV-0365-D. In the instant matter, Rodgers seeks $1 billion in damages for Officer Paquet's alleged violation of Rodgers' constitutional right to be free from use of excessive force during a January 2000 incident at the Dallas County Jail. Rodgers claims that when he was removal from his cell as a precaution while he was on "suicide watch," Officer Paquet, "kicked me in the testicles, called me nigger and threatened my life stating they would kill me, drug me."
Qualified immunity protects government officials performing discretionary functions "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987). Government officials such as police officers are entitled to qualified immunity if their conduct does not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding a motion for summary judgment that raises the defense of qualified immunity, the court must first decide "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999). Once a constitutional violation is properly alleged, the court must then determine "whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of `reasonable competence could disagree [on whether an action is legal], immunity should be recognized.'" Okonkwo v. Fernandez, No. 3:01-CV-1938-L, 2003 WL 22227858, at *7 (N.D. Tex. Sept. 26, 2003) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986); emphasis in original)).
"When a public official defendant in a § 1983 action has raised the defense of qualified immunity, the plaintiff must plead facts with particularity before she may subject the public official to trial." Wallace v. Dallas Indep. Sch. Dist., No. 3:97-CV-2820-L, 2000 WL 575219, at *6 (N.D. Tex. May 11, 2000) (citing Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985)). Where, as here, a defendant has pointed to the absence of evidence to support the plaintiff's claims, the "Plaintiff must go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial." Powell v. Starr, No. 3:02-CV-1258-D, 2003 WL 23095976, at *2 (N.D. Tex. Dec. 22, 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Here, Rodgers has failed to respond to Officer Paquet's motion for summary judgment. However, Rodgers was given the opportunity to elaborate on his eleven page complaint with a Magistrate Judge Questionnaire, the four page answer to which was filed on July 26, 2001. As the Fifth Circuit explained in Jackson v. City of Beaumont Police Department:
In Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986), this court noted that "[o]rdinarily, when a complaint does not establish a cause of action in a case raising the issue of immunity, a district court should provide the plaintiff an opportunity to satisfy the heightened pleading requirements." However, such a complaint may be dismissed even where only one opportunity has been afforded, if circumstances demonstrate that the plaintiff's best case has already been pleaded. Id. at 792-93. This holds true even for pro se complaints because, despite the latitude they generally receive, "once given adequate opportunity, even a pro se complaint must contain specific facts supporting its conclusions." Id. at 793.Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 621 (5th Cir. 1992); see also Hinds v. Slagel, No. 3:00-CV-2372-D, 2001 WL 1543844, at *4 (N.D. Tex. Nov. 29, 2001) ("A pro se litigant's pleadings are viewed liberally, but he is not permitted to disregard the rules").
Here, Rodgers has been given ample opportunity to set forth facts to rebut Officer Paquet's defense of qualified immunity by establishing that Defendant's allegedly wrongful conduct violated clearly established law. See Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997). He has not done so. The sole allegation against Officer Paquet contained in the complaint and questionnaire that would support an excessive force claim is that he kicked Rodgers. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) ("It is clear that verbal abuse by a prison guard does not give rise to a cause of action under § 1983."). Rodgers points to no evidence supporting this bare allegation of physical force. More importantly, the exhaustive medical records provided by Defendant show that Rodgers never sought treatment for any injury that resulted from Officer Paquet's alleged use of force, and no such injury was ever documented. It is well-settled that a claim of excessive force requires proof of an injury that is more than de minimus. Id. In the instant matter, there is no evidence of more than a de minimus injury to Rodgers. Without proof of physical injury, an excessive force claim does not lie. Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996). Accordingly, the summary judgment evidence does not raise a fact issue regarding the violation of a constitutional right, and Officer Paquet is entitled to qualified immunity.