Opinion
No. 3:19-cv-00233
2021-10-21
Zane SWEETIN, et al., Plaintiffs, v. CITY OF TEXAS CITY, TEXAS, et al., Defendants.
Alexander Charles Johnson, Kallinen Law, PLLC, Randall Lee Kallinen, Attorney at Law, Houston, TX, for Plaintiffs. Susan L. Bickley, Emery Gullickson Richards, Zachary J. Wyatte, Blank Rome LLP, Houston, TX, for Defendants.
Alexander Charles Johnson, Kallinen Law, PLLC, Randall Lee Kallinen, Attorney at Law, Houston, TX, for Plaintiffs.
Susan L. Bickley, Emery Gullickson Richards, Zachary J. Wyatte, Blank Rome LLP, Houston, TX, for Defendants.
MEMORANDUM OPINION AND ORDER
Jeffrey Vincent Brown, United States District Judge: In the years immediately following the Civil War, the Constitution was amended to recognize a host of civil rights long denied to African Americans. The Thirteenth Amendment abolished slavery. The Fourteenth "made citizens of the newly freed slaves and required the states to provide each new citizen due process and equal protection of the laws." And the Fifteenth gave them the right to vote. But recognizing rights was one thing; guaranteeing them was something else. "The problem for Congress was how to make the new rights effective."
Alan W. Clarke , The Ku Klux Klan Act and the Civil Rights Revolution: How Civil Rights Litigation Came to Regulate Police and Correctional Officer Conduct , 7 SCHOLAR 151, 154 (2005).
Id. at 155.
The trouble was that groups such as the Ku Klux Klan and the Knights of the White Camelia, "often acting under color of state law, and often with the complicity of state and local government, terrorized and murdered, with impunity, the newly freed slaves and any who supported them." The Civil Rights Act of 1871, also known as the Ku Klux Klan Act, was Congress’ answer. It lives on today as 42 U.S.C. § 1983.
Id. at 154–55.
See id. at 155.
Id.
Thankfully, no one was terrorized or murdered in this case. Instead, two private-sector ambulance drivers allege they were briefly detained by a municipal permit officer and ticketed for operating their ambulance without a permit. They have sued—under § 1983—for violations of their constitutional rights.
I. Background
Zane Sweetin and Michael Stefek sued Texas City and Captain Wendell Wylie, in his individual capacity, for violations of the Fourth and Fourteenth Amendments and false imprisonment. Dkt. 15 at 1, 5–6. The court dismissed the false-imprisonment claims. Dkt. 25. The defendants have now moved for summary judgment on the constitutional claims. Dkt. 35.
Wylie is a captain in the Texas City Fire Department. Dkt. 39-1 at 104:3–4. He has also been named by the Texas City Fire Marshal as the city's "EMS Administrator," or permit officer. Id. at 64, 88:23. In this role, Wylie oversees the permitting of non-emergency ambulances in Texas City. He is authorized to investigate whether applicants meet state and local requirements for permits and "[d]evelop such reasonable regulations subject to the approval of the City Commission as may be necessary for the proper enforcement and implementation" of the city's rules for EMS services. See City of Texas City, Tex., Code of Ordinances ch. 35 § 10(A-H) (2021); Dkt. 39-1 at 49–50.
In 2017, when the incident in this suit arose, Texas City allowed only four for-profit permitted ambulance services within its city limits. Dkt. 39-1 at 91:1. Sweetin and Stefek worked as EMTs for Windsor EMS, LLC, providing non-emergency transportation services. Dkt. 39 at 2. It is undisputed that Windsor did not have a permit to operate in Texas City in 2017. Dkt. 35 at 3.
Nevertheless, on July 14, 2017, Windsor dispatched Sweetin and Stefek to transport a patient from a nursing home in Texas City to a dialysis clinic in La Marque. Dkt. 35-4 at 70–71; Dkt. 35-5 at 77:23 to 78:2. The plaintiffs arrived at the nursing home to retrieve their patient, parking the ambulance under an awning protruding from the side of the building. Id. at 77:3–14. When the plaintiffs came out of the nursing home about ten minutes later, they noticed Captain Wylie parked outside the awning, parallel to the ambulance. Dkt. 35-4 at 82. While driving that day, Wylie happened to spot the ambulance at the nursing home. Dkt. 39-1 at 74. He knew that Windsor did not have a permit, so he "pulled in to conduct an investigation," which included taking photographs of the ambulance. Dkt. 39-1 at 75:2–20.
After the plaintiffs loaded their patient, Wylie pulled up closer to "briefly" question them. Id. at 82:2–22. Wylie asked where they were headed. Id. 79:3–16. When the plaintiffs refused to answer, citing patient confidentiality, Wylie said he would follow them to their destination so as not to interrupt patient care. Id. at 89:3–12. While he followed them, Wylie called the fire marshal to inform him of the situation and ask that he come issue citations to the plaintiffs. Dkt. 39-1 at 100:5–17.
The plaintiffs drove to a dialysis clinic in La Marque where they again parked underneath an awning. Dkt. 35-4 at 89:3–12. Wylie followed the ambulance into the parking lot and backed up into a parking spot towards the front of the ambulance. Id. ; Dkt. 39-1 at 99:16–17. Wylie told the plaintiffs that he would talk to them after they completed the patient transfer. Id.
Once the two men completed the transfer, Wylie approached and told them that they were "detained" and could not leave until the fire marshal arrived and ticketed them for operating without a permit. Dkt. 35-4 at 90:18 to 91:2; Dkt. 35-5 at 97:16–22. While waiting in the ambulance, Stefek and Sweetin discussed whether they could simply leave. Id. at 91:3–7; 103:16–18. Sweetin spent part of this waiting period completing routine paperwork for the patient transfer and writing his report. Dkt. 35-5 at 105:4–5. Stefek said that they "were not sure of the consequences of just driving off and leaving" after having been instructed to stay. Id. 93:18–23. The men knew that Wylie was not a police officer because he wore a paramedic's uniform and drove a fire-department vehicle, but they were still unsure of his authority. Id. at 102:10–18. Stefek also said they called their supervisor to talk to Wylie, but Wylie refused to do so and told the plaintiffs to wait in their ambulance for the fire marshal. Id. at 93. Sweetin says that Wylie was "rude" and told them to "get the F back into the vehicle." Dkt. 35-5 at 98:10–14, 109:2. In the end, because they were unsure of the consequences, Stefek said, "[W]e allowed ourselves to be detained." Id. 93:22–23.
Wylie testified that though he did not believe he had the authority to detain anyone, he also did not believe he detained the plaintiffs. Dkt. 39-1 at 107. According to Wylie, "They could have left if they chose to." Id. Wylie also did not believe he had the authority to issue citations, which is why he summoned the fire marshal. Dkt. 39-1 at 66:2–6.
The whole incident lasted from fifteen to thirty minutes. Dkt. 35-4 at 96:20–21; Dkt. 35-5 at 97:23–25. It is undisputed that Wylie sat in his vehicle while they all waited for the fire marshal to arrive. Dkt. 35-4 at 104:6–11. Wylie did not use physical force or display a weapon. Dkt. 35-4 at 94:23 to 95:9. Once the fire marshal arrived, he asked the plaintiffs for their licenses and permits. Dkt. 35-4 at 104:1–5. Both Stefek and Sweetin were cited for operating an ambulance without a permit. Id. at 107:9–15; Dkt. 35-6 at 3. A ticket was also later issued to Jeffery Lynn, Windsor's "administrator of record." Dkt. 39-1 at 71:17–24. As a result of the incident, the plaintiffs claim they experienced anxiety, loss of sleep, and mental anguish. Id. at 103:12–22.
II. Summary-Judgment Standard
"Summary judgment is appropriate only if ‘the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.’ " Tolan v. Cotton , 572 U.S. 650, 656–57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (quoting Fed. R. Civ. P. 56(a) ). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see Triple Tee Golf, Inc. v. Nike, Inc. , 485 F.3d 253, 261 (5th Cir. 2007). Indeed, "there can be ‘no genuine issue as to any material fact,’ [where] a complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex , 477 U.S. at 323, 106 S.Ct. 2548.
If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). If the movant makes the required showing, the burden shifts to the nonmovant to identify specific evidence in the record and explain how that evidence supports that party's claim. Johnson v. Deep East Tex. Reg'l Narcotics Trafficking Task Force , 379 F.3d 293, 305 (5th Cir. 2004).
When ruling on a motion for summary judgment, the court views all facts and inferences in the light most favorable to the nonmoving party and resolves all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 540 (5th Cir. 2005). The court "may not make credibility determinations or weigh the evidence" in ruling on a summary-judgment motion. Reeves , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, when the nonmoving party has failed "to address or respond to a fact raised by the moving party and supported by evidence, then the court may consider the fact as undisputed." Broadcast Music, Inc. v. Bentley , No. SA-16-cv-394-VR, 2017 WL 782932, at *2 (W.D. Tex. Feb. 28, 2017) (citing Fed. R. Civ. P. 56(e)(2) ). And "[s]uch undisputed facts may form the basis for summary judgment." Id.
III. Defendants’ Evidentiary Objection
As an initial matter, the defendants object to the plaintiffs’ use of an unauthenticated copy of Wylie's deposition as summary-judgment evidence. Dkt. 36 at 3.
To satisfy the requirements of Rules 56 and 901, deposition transcripts are properly authenticated if accompanied by a signed certificate from the court reporter. See Xerox Corp. v. Genmoora Corp. , 888 F.2d 345, 357 (5th Cir. 1989) ; Reyes v. Weslaco Indep. Sch. Dist. , No. CV M-06-372, 2008 WL 11452112, at *5 (S.D. Tex. Dec. 11, 2008), aff'd , 354 F. App'x 904 (5th Cir. 2009) ; see also Orr v. Bank of Am. , 285 F.3d 764, 774 (9th Cir. 2002) (citing Fed. R. Evid. 901(b) ; Fed. R. Civ. P. 56(e) & 30(f)(1) ) ("A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent.").
Here, the plaintiffs attached Wylie's deposition transcript as an exhibit to their summary-judgment response. The last page of the transcript includes a signed certificate by the court reporter stating that it is a true record of the testimony of the deponent. Because we have no reason to doubt the validity of the court reporter's certificate, the transcript is properly authenticated. The defendants’ objection is overruled.
IV. The Fourth Amendment
The plaintiffs have alleged a violation of their Fourth Amendment rights against unreasonable search and seizure against both Texas City and Captain Wylie. Section 1983 does not grant substantive rights but provides a vehicle for a plaintiff to vindicate rights protected by the United States Constitution and other federal laws. Albright v. Oliver , 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).
A. Texas City
Municipal liability under § 1983 requires proof of three elements: (1) an official policy or custom; (2) promulgated by a municipal policymaker; (3) which was the "moving force" behind the violation of a constitutional right. Webb v. Town of Saint Joseph , 925 F.3d 209, 214 (5th Cir. 2019) ; Piotrowski v. City of Houston , 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell v. Dep't of Social Servs. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). Municipal liability under § 1983 cannot be predicated on respondeat superior. Piotrowski , 237 F.3d at 578 (citing Bd. Of Comm'rs of Bryan Cnty. v. Brown , 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). Instead, "it is when the execution of a government's policy of custom ... inflicts the injury that the government as an entity is responsible under section 1983." Monell , 436 U.S. at 694, 98 S.Ct. 2018. Therefore, "isolated unconstitutional actions by municipal employees will almost never trigger liability." Piotrowski , 237 F.3d at 578 (citing Bennett v. City of Slidell , 728 F.2d 762, 768 n.3 (5th Cir. 1984) ; McKee v. City of Rockwall , 877 F.2d 409, 415 (5th Cir. 1989) ).
There are three ways of establishing a municipal policy for purposes of Monell liability. Webb , 925 F.3d at 215. First, a plaintiff can show "written policy statements, ordinances, or regulations." Id. (quoting Alvarez v. City of Brownsville , 904 F.3d 382, 389 (5th Cir. 2018) ). Second, a plaintiff can show "a widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy." Id. (quoting Alvarez , 904 F.3d at 390 ). Third, a single decision may constitute municipal policy in "rare circumstances" when the official or entity possessing "final policymaking authority" for an action "performs the specific act that forms the basis of the section 1983 claim." Id. (quoting Davidson v. City of Stafford, Texas , 848 F.3d 384, 395 (5th Cir. 2017) ).
The plaintiffs do not argue that any written municipal policy or widespread practice caused their injuries. Instead, they argue that Wylie, as an official with "final policymaking authority," undertook the actions that form the basis of their § 1983 claim. Dkt. 39 at 6. The defendants deny that Wylie is a final policymaker. Dkt. 35 at 18–19.
The "critical question" is generally "to decide who is the final policymaker, which is an issue of state law." Webb , 925 F.3d at 215 (quoting Advanced Tech. Bldg. Solutions, L.L.C. v. City of Jackson, Miss. , 817 F.3d 163, 166 (5th Cir. 2016) ). The plaintiffs point the court to no state law indicating that a permit officer, like Wylie, amounts to a final policymaker. Nevertheless, a municipal employee may possess final policymaking authority where the final policymaker has delegated that authority, either expressly or impliedly, to the employee. Webb , 925 F.3d at 215. Here, the plaintiffs rely on § 35.10 of the Texas City ordinances, entitled "Duties of Permit Officer." Texas City Ordinances § 35.10. In relevant part, § 35.10(H) provides that the permit officer shall "[d]evelop such reasonable regulations subject to the approval of the City Commission as may be necessary for the proper enforcement and implementation of the provisions of this subchapter." Id. This ordinance, the plaintiffs argue, in conjunction with Wylie's deposition testimony that he is "responsible for the everyday operations of the EMS Department," shows a clear grant of policymaking authority by the city and the fire chief. Dkt. 39 at 9–10.
But this argument "conflates policymaking authority with decision-making authority." Webb , 925 F.3d at 217. A true policymaker "decide[s] the goals for a particular city function and devise[s] the means of achieving these goals." Bennett v. City of Slidell , 728 F.2d 762, 769 (5th Cir. 1984). Although the ordinance here confers decision-making or "operational command authority" on Wylie, "it does not follow that [Wylie] acts in a policymaking capacity." Valle v. City of Houston , 613 F.3d 536, 543 (5th Cir. 2010). In fact, the plain text of the ordinance and the Texas City charter counsel against finding that Wylie is a final policymaker.
Texas City is a home-rule municipality of the State of Texas. See Tex. Local Gov't Code § 1.005 ; City of Texas City, Texas Charter art. 1. § 1. Texas City's charter establishes the City Commission as the governing body. Texas City Charter art. II, § 1. The charter entrusts the commission with the authority "to exercise, or cause to be exercised, all powers conferred upon the city by this Charter or by applicable law." Id. Article III of the charter gives the commission sole authority to enact city ordinances. See Id. art. III, § 6. The ordinance at issue here, § 35.10(H), allows the permit officer to make reasonable regulations "subject to the approval of the City Commission. " Texas City Ordinances § 35.10(H). Whatever authority Wylie may have in permitting ambulances in Texas City, the plain text of the charter shows that the city commission retains final authority to enact ordinances and approve any reasonable regulations he suggests. See City of St. Louis v. Praprotnik , 485 U.S. 112, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality op.) ("If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability."); see also Advanced Tech. Bldg. Solutions , 817 F.3d at 166–67.
Moreover, the Fifth Circuit has rejected § 1983 claims based on a single incident. See Sanchez v. Young Cty., Texas , 866 F.3d 274, 280 (5th Cir. 2017) ("Plaintiffs’ claim fails on several fronts. First, the principal evidence of the alleged ‘policy or custom’ arises from ... this single case. To be unconstitutional, however, a municipal entity's policy that derives from custom or practice must be ‘so common and well settled as to constitute a custom that fairly represents municipal policy.’ " (quoting Webster v. City of Houston , 735 F.2d 838, 841 (5th Cir. 1984) )). Accordingly, the plaintiffs have not shown an official policy or custom on which municipal liability could rest. Their Fourth Amendment claims against the city are dismissed.
B. Wylie
The doctrine of qualified immunity protects government officials sued in their personal capacity for performing discretionary functions so long as 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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Once a defendant asserts qualified immunity on summary judgment, the court's task is to examine the summary-judgment record and determine whether the plaintiff has adduced sufficient evidence to raise a genuine issue of material fact suggesting that (1) the defendant's conduct violated a constitutional right and (2) the right was clearly established at the time of the challenged conduct. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Either prong may be addressed first. Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Here, because the court's resolution of this motion turns principally on its conclusion that the right asserted by the plaintiffs was not clearly established, the court addresses the second prong first.
A right is clearly established when "the contours of the right [are] sufficiently clear [such] that a reasonable official would understand that what he is doing violated that right." Wernecke v. Garcia 591 F.3d 386, 392 (5th Cir. 2009) (internal citations omitted). Courts should not "define clearly established law at a high level of generality." Ashcroft v. al-Kidd , 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Rather, the dispositive question is "whether the violative nature of particular conduct is clearly established." Mullenix v. Luna , 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (citation omitted). This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. (citing Brosseau v. Haugen , 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) ); see City of Tahlequah, Okla. v. Bond , ––– U.S. ––––, ––––, 142 S.Ct. 9, 211 L.Ed.2d 170 (2021).
Although the Supreme Court has repeatedly admonished courts "not to define clearly established law at a high level of generality," this does not mean that "a case directly on point" is required. Id. (quoting al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074 ). The Court has explained that an official "can still be on notice that [his] conduct violates established law even in novel factual circumstances." Hope v. Pelzer , 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). "[T]he salient question ... is whether the state of the law [at the time of the alleged violation] gave [that official] fair warning that [his conduct] was unconstitutional." Id.
The protection of qualified immunity applies regardless of whether the government official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Pearson , 555 U.S. at 231, 129 S.Ct. 808 (internal citations omitted). Officials who act reasonably but mistakenly are entitled to qualified immunity because the defense protects all government employees but "the plainly incompetent or those who knowingly violate the law." Anderson v. Creighton , 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
Even if the plaintiffs could raise a genuine issue of material fact as to whether a seizure occurred, for a right to be clearly established, a court "must be able to point to controlling authority—or a ‘robust consensus of persuasive authority’—that defines the contours of the right in question with a high degree of particularity." Morgan v. Swanson , 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (quoting al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074 ). Here, no such controlling authority exists.
The plaintiffs assert that Wylie's conduct violated their Fourth Amendment right to be free from unreasonable seizure because "a government official with no law enforcement authority whatsoever has never been able to detain members of the public for any reason." Dkt. 39 at 12. But aside from their conclusory insistence that Wylie's conduct was unconstitutional, the plaintiffs cite no cases, and this court's own research revealed none, showing that the contours of the purported principle at issue are "so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ " District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 590, 199 L.Ed.2d 453 (2018) (quoting Saucier v. Katz , 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ), quoted in City of Tahlequah , 142 S.Ct. at ––––, 2021 WL 4822664, at *2. In this case, a municipal permit officer observed the violation of a local ordinance, verified the violation by questioning the alleged violators, and then instructed them to wait so that they could be ticketed. The plaintiffs have not shown that it is "beyond debate" that this conduct infringed on their Fourth Amendment rights. al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074.
The plaintiffs also rely on Texas Penal Code § 39.03 to establish that Wylie's conduct violated clearly established law. Section 39.03, entitled "Official Oppression," prohibits a public servant "acting under color of his office" from "intentionally subject[ing] another to mistreatment or to arrest, detention, search, [or] seizure, ... that he knows is unlawful." Tex. Penal Code § 39.03 (2019). It seems the plaintiffs hope to bring a claim under § 1983 for violation of the state penal code. But whether Wylie ran afoul of § 39.03 is irrelevant, without more, to whether his particular conduct amounted to a violation of a clearly established federal constitutional right. See Gagne v. City of Galveston , 805 F.2d 558, 560 (5th Cir. 1986) (citing Davis v. Scherer , 468 U.S. 183, 194 n.12, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) ).
The dearth of precedent applying Fourth Amendment protections to incidents like the one at issue here shows that it was not clearly established that Wylie's conduct violated the plaintiffs’ constitutional rights. Without such a showing, Wylie is entitled to qualified immunity. The plaintiffs’ Fourth Amendment claims against Wylie are dismissed.
V. The Fourteenth Amendment
While the plaintiffs’ pleadings include allegations that the city and Wylie violated their Fourteenth Amendment rights, see Dkt. 15 at 5, their response to the defendants’ motion for summary judgment fails to address the defendants’ arguments on these claims. So the court considers the claims abandoned and dismisses them. See Black v. N. Panola Sch. Dist. , 461 F.3d 584, 588 n.1 (5th Cir. 2006) (finding plaintiff abandoned claim when she failed to defend it in a response to a motion to dismiss).
* * *
The defendants’ motion for summary judgment, Dkt. 35, is granted. Final judgment will come in a separate order.