April 1, 2005
MEMORANDUM OPINION and ORDER
Came on for consideration the motions of defendants, City of Mineral Wells, Texas, ("City") and Officer Patrick Bradford ("Bradford") for summary judgment. The court, having considered the motions, the responses of plaintiffs, Danny Woolery and Sally Woolery, the record, the summary judgment evidence, and applicable authorities, finds that the motions should be granted.
I. Plaintiffs' Claims
On June 1, 2004, plaintiffs filed their original complaint; on September 28, 2004, their first amended complaint; and, on February 23, 2005, their second amended complaint in this action. Plaintiffs are the parents and sole heirs of Toby Joe Woolery, Deceased ("Woolery"), who was shot and killed by Bradford. Plaintiffs allege that Bradford used excessive force, acting with deliberate indifference, in causing the death of Woolery. They further allege that City is liable for Bradford's actions.
II. Grounds of the MotionsBradford asserts that he did not violate the Fourth Amendment, but even if he did, he is entitled to qualified immunity. City maintains that it is entitled to judgment as a matter of law because (1) there was no civil rights violation under federal law; (2) there is no evidence of any policy of the City that caused any civil rights violation; (3) City cannot be held liable for exemplary damages under § 1983; (4) City is entitled to the defense of sovereign immunity as to plaintiff's state law claims and its immunity has not been waived under the Texas Tort Claims Act or any other statute; and (5) to the extent Bradford is entitled to official immunity, City is entitled to sovereign immunity.
III. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact.Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for rendering judgment as a matter of law. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597. See also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc) (explaining the standard to be applied in determining whether the court should enter judgment on motions for directed verdict or for judgment notwithstanding the verdict).
IV. Undisputed Evidence
The following is an overview of evidence pertinent to the motions for summary judgment that is undisputed in the summary judgment record:
The events giving rise to plaintiffs' claims occurred in a bad neighborhood of City known as Country Club Estates. At 9:00 p.m., on April 16, 2003, Mitchell Cohron ("Cohron") called police to report that his girlfriend had been kidnapped. Bradford heard the call when it went out over the police radio. Officers Jordan and Johnson went to investigate. When they spoke with him in person, Cohron could not, or would not, provide sufficient information to proceed with a case. Jordan and Johnson went back to their patrol duties. Bradford heard another call providing information about the location of the alleged kidnap victim. He went to investigate, but was unable to obtain any information. Bradford went back to the police station to work on another matter.
Later, officers received another call from the neighborhood, this time reporting that Cohron had kicked in the door to a neighbor's home, demanding to know if his girlfriend was in the house. Officers Jordan and phipps answered the call. Officer Jordan was told that Cohron was a dangerous person, that he was known to have had weapons on a previous occasion, and that he was crazy. Later that evening Officer Jordan met Bradford at a Whataburger for dinner and told Bradford that Cohron was possibly armed.
At approximately 11:30 p.m., police received another call about a prowler in the neighborhood. Bradford and Officer Johnson responded to the call. They spoke with several people who told them that Cohron had been using dope and that he was possibly armed. They were also told that Cohron was driving a red car and that residents were scared of him. As the officers were walking down the street, they saw a red car coming down an alleyway. The officers approached the car on the passenger side. When the vehicle stopped, officers shined their flashlights into the interior of the car. Officer Johnson identified the driver as Cohron, although it was actually Woolery. Bradford walked around the back of the car toward the driver's side, tapping on the windows as he went. The car started moving and Bradford ran and grabbed onto the luggage rack on top of the car. The car accelerated and Bradford was dragged before being able to pull himself up onto the bumper. The driver swerved from side to side, attempting to throw Bradford from the car. Bradford believed that he would be killed or seriously injured. Officer Johnson ran after the car, likewise believing that Bradford would be killed or seriously injured. Other witnesses believed Bradford was in danger and that the driver was trying to throw him from the car. Bradford yelled for the driver to stop and banged on the window with his flashlight, ultimately breaking the rear driver-side window. He then took his service revolver and fired into the trunk area of the car. The car still did not stop, so he aimed closer to the driver. The car skidded for a distance. Officer Johnson heard the car screeching and when the screeching stopped, he did not hear anymore gunshots. Bradford fired three final shots, one of which hit Woolery in the neck, killing him. Bradford could not have fired those shots while the vehicle was skidding, although he did not believe he had fired after the vehicle came to a stop. Bradford ceased firing as soon as he felt that he was no longer facing the immediate risk of death or serious bodily injury from the moving car. He had fired a total of fifteen shots.
Throughout the events described above, officers, including Bradford, were wearing their dark blue police uniforms with badges and patches. Bradford and Johnson were approached several times by citizens who recognized the two as police officers. Bradford believed that Woolery recognized him as a police officer.
Woolery was a drug addict and dealer. He was under supervision of the Parker County Probation Department at the time of his death. Officers found a baggy of methamphetamine in Woolery's sock. His blood contained amphetamine and methamphetamine.
V. Law Pertinent to the Case
Qualified immunity insulates government officials from civil damages liability when the official's actions do 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). For a right to be "clearly established," the right's contours must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Individual liability thus turns on the objective legal reasonableness of the defendant's actions assessed in light of clearly established law at the time. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Anderson, 483 U.S. at 639-40. In Harlow, the court explained that a key question is "whether that law was clearly established at the time an action occurred" because "[i]f the law at the time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to `know' that the law forbade conduct not previously identified as unlawful. . . ." 457 U.S. at 818. If public officials of reasonable competence could differ on the lawfulness of defendant's actions, the defendant is entitled to qualified immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.), cert. denied, 506 U.S. 973 (1992). [A]n allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner." Malley, 475 U.S. at 341.
In analyzing whether an individual defendant is entitled to qualified immunity, the court considers whether plaintiff has alleged any violation of a clearly established right, and, if so, whether the individual defendant's conduct was objectively reasonable. Siegert v. Gilley, 500 U.S. 226, 231 (1991);Duckett v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992). In so doing, the court should not assume that plaintiff has stated a claim, i.e., asserted a violation of a constitutional right. Siegert, 500 U.S. at 232. Rather, the court must be certain that, if the facts alleged by plaintiff are true, a violation has clearly occurred. Connelly v. Comptroller, 876 F.2d 1209, 1212 (5th Cir. 1989). A mistake in judgment does not cause the municipal employee to lose his qualified immunity defense. InHunter, the Supreme Court explained:
The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Malley [475 U.S.] at 343. . . . This accommodation for reasonable error exists because "officials should not err always on the side of caution" because they fear being sued. . . .502 U.S. at 229.
The law with regard to the use of deadly force is clearly established: "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Tennessee v. Garner, 471 U.S. 1, 11 (1985). Moreover:
Because "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation," [Graham v. Connor, 490 U.S. 386,] 397 [(1989)], the reasonableness of the officer's belief as to the appropriate level of force should be judged from that on-scene perspective, id., at 396. We . . . cautioned against the "20/20 vision of hindsight" in favor of deference to the judgment of reasonable officers on the scene.Saucier v. Katz, 533 U.S. 194, 205 (2001). Use of deadly force is authorized if the officer is firing to prevent his own death or serious bodily injury. Fraire v. City of Arlington, 957 F.2d 1268, 1276-77 (5th Cir. 1992). "If an officer reasonably, but mistakenly, believe[s] that a suspect [is] likely to fight back, for instance, the officer would be justified in using more force than in fact was needed." Saucier, 533 U.S. at 205. The fact that a claim arises out of the use of deadly force does not affect the qualified immunity analysis. Id. at 205-06.
With regard to the liability of City, the law is clearly established that the doctrine of respondeat superior does not apply to § 1983 actions. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990). Neither a supervisory official nor a governmental entity can be held liable for failing to adopt policies to prevent constitutional violations. See, e.g., Vela v. White, 703 F.2d 147, 153 (5th Cir. 1983); Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981); Wanger v. Bonner, 621 F.2d 675, 680 (5th Cir. 1980). Moreover, a plaintiff must allege more than an isolated incident of purported harm to establish a claim against such person or entity. Fraire, 957 F.2d at 1278;McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989); Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983). Without a pattern or practice of recurring constitutional violations, neither negligence nor gross negligence suffices as a basis for liability. Stokes v. Bullins, 844 F.2d 269, 274 (5th Cir. 1988). There must be a link between the policy and the particular constitutional violation alleged. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). And, where a defendant establishes as a matter of law that no constitutional deprivation occurred, it does not matter that a policy would have authorized the conduct about which the plaintiff complains. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Riggs v. City of Pearland, 177 F.R.D. 395, 408 (S.D. Tex. 19997).
Municipalities are absolutely immune from liability under § 1983 for punitive damage awards. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).
There is no state constitutional tort under Texas law for which damages may be awarded. Gillium v. City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993); Bagg v. University of Texas Medical Branch, 726 S.W.2d 582, 584 n. 1 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.). And, a governmental entity is not liable for the negligence of its agents or officers unless there is a clear constitutional or statutory waiver of immunity.City of San Antonio v. Winkenhower, 875 S.W.2d 388, 390 (Tex.App.-San Antonio 1994, writ denied).
Under Texas law, official immunity provides a shield from liability for public employees acting in the course and scope of their employment. City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994). To be entitled to official immunity, a defendant must be performing discretionary duties in good faith and acting within the scope of his authority. Id. at 653. An act is discretionary if it involves personal deliberation, decision and judgment. Id. at 654. One acts in "good faith" if a reasonably prudent officer, under the same or similar circumstances, could have believed that his actions were justified. Id. at 656. To rebut a showing of good faith, a plaintiff must show that no reasonable person in the defendant's position could have thought that the facts were such as to justify the defendant's acts.Id. at 657. If an employee is immune from suit under the shield of official immunity, his employer likewise cannot be held liable. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995).
VI. Law Applied to the Facts
Here, there is a total absence of summary judgment evidence that Bradford violated Woolery's constitutional rights. Even if the court were to assume, arguendo, that there had been such a violation of a right guaranteed to Woolery by the United States Constitution, the court, nevertheless, would conclude that Bradford is protected by the doctrine of qualified immunity.
The first matter to consider is whether use of deadly force was authorized. Plaintiffs concede that Bradford was in fear of serious physical harm while riding on the bumper of Woolery's moving vehicle. Pls.' Br. in Supp. of Resp. to Bradford's Mot. at 6; Pls.' Br. in Resp. to City's Mot. at 7. They argue that once Bradford perceived the vehicle to be stopping, he was no longer justified in using deadly force. The problem with plaintiffs' theory is that the entire episode took place in a matter of seconds and there is no summary judgment evidence that Bradford fired the fatal shots after he reasonably believed that the danger had passed. To prevail, plaintiffs must show that no reasonable officer would have fired the fatal shot. They simply cannot meet that burden.
Whatever happened before that time is not relevant to the analysis. Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992).
Plaintiffs point to expert testimony that it takes 0.6886 seconds for an officer to stop shooting once he perceives a threat has ceased and that the time elapsed from beginning of the skid until the vehicle came to a complete stop was 1.8 seconds. They argue, in hindsight, that Bradford had sufficient time to perceive that any threat of immediate bodily harm had passed and should have stopped shooting prior to the vehicle coming to a complete stop. There is no evidence to show, however, at what point during the skid Bradford would have known that the car was coming to a complete stop. Rather, the evidence is that the car, up to the point of the skid, had been swerving as Woolery attempted to throw Bradford from the car. There is no reason to believe that Bradford perceived the vehicle to be stopped,i.e., that he was out of danger, at the time he fired the last shots. More importantly, there is no evidence that the vehicle was stopped for any particular length of time before the final shots were fired. Judged from the on-scene perspective of Bradford, his actions were reasonable as a matter of law and use of deadly force was authorized. Saucier, 553 U.S. at 205.
The court does not need to reach the issue of qualified immunity. Yet, even if plaintiffs had adduced credible summary judgment evidence that Bradford violated Woolery's constitutional rights, Bradford would still be entitled to immunity, because, at worst, Bradford would have exercised poor judgment. He acted in an objectively reasonable manner. See Brosseau v. Haugen, 125 S. Ct. 596 (2004); Scott v. Clay County, 205 F.3d 867 (6th Cir. 2000); Fraire, 957 F.2d at 1275-76; Smith v. Freland, 954 F.2d 343, 346-47 (6th Cir. 1992).
On the matter of qualified immunity, plaintiffs rely on the testimony of Dr. George L. Kirkham ("Kirkham") to raise a fact issue. See Pls.' Br. in Resp. to Bradford's Mot. at 9-10. His testimony, however, is not sufficient to raise a genuine fact issue for trial, because it is built inference upon inference, taking into account matters wholly irrelevant to the ultimate issue. See Fraire, 957 F.2d at 1276 (whatever happened prior to the event in question is not relevant). Kirkham's statement that "an officer who provokes a dangerous situation has no right to use deadly force for self-defense simply because he is frightened" is, at best, highly misleading. Pls.' App. in Resp. to City's Mot. at 407. The facts of this case show, and plaintiffs have conceded, that Bradford was in fear of serious physical harm while clinging to Woolery's vehicle. Kirkham then chides Bradford for not immediately aiming to kill Woolery. Id. In other words, he opines that if Bradford had killed Woolery straightaway, his action would have been justified; but, because Bradford chose not to inflict immediate death, he cannot have acted reasonably. And, in hindsight, he opines that Bradford would have had sufficient perception reaction time to know as the car was skidding that he no longer had justification for the use of deadly force. There is no evidence to establish that Bradford, much less any other reasonable officer, would have known at the time that the car was skidding to a halt, especially in light of the fact that the car had veered and fishtailed before the skid, attempting to throw Bradford. Kirkham's opinions simply do not constitute credible evidence on the issue of reasonableness of Bradford's conduct.
Because there is no evidence of a constitutional violation, there is no basis for municipal liability, no matter what City's policy would have authorized. Heller, 475 U.S. at 799. In any event, plaintiffs have not come forward with any evidence to show that City had any policy that caused harm to Woolery. Nor can they point to any particular decision made to violate his rights.See Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). They rely on two remote incidents, arguing that the failure to adequately discipline Bradford led him to shoot Woolery. The argument is too far-fetched. An isolated decision not to discipline a single officer for an incident of illegality does not establish a custom or policy of encouraging police misconduct. Fraire, 957 F.2d at 1278-79. And, unlike the facts of the case upon which plaintiffs rely, City immediately initiated an investigation after the incident and did not in any way indicate indifference to what had transpired. See Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985). Plaintiffs would need "considerably more proof" for a jury to impose liability on City on the basis of an alleged policy.Tuttle, 471 U.S. at 824.
In July of 2001, Bradford received a suspension of three days without pay for failing to follow procedure for tagging property. Pls.' App. in Resp. to City's Mot. at 508. In April 2002, Bradford received a letter of reprimand for offering to fight a teenager. Id. at 506. Neither incident involved use of excessive force.
The court notes that plaintiffs cite to Kirkham's opinion as support for this argument. Pls.' Br. in Supp. of Resp. to City's Mot. at 11. However, Kirkham did not opine on this subject. Pls.' App. in Resp. to City's Mot. at 406. His brief discussion is not based on facts, but is a conclusionary diatribe against City and would not withstand a Daubert challenge.
Plaintiffs' state law claims do not fair any better than the federal claims. Plaintiffs attempt to argue that sovereign immunity has been waived under Tex. Civ. Prac. Rem. Code Ann. § 101.021 (Vernon 1997). That section, which states that a governmental unit is liable for personal injury and death caused by a condition or use of tangible personal property, is limited by ¶ 101.057(2), which states that the waiver of immunity does not apply to a claim arising out of assault, battery, false imprisonment, or any other intentional tort. See Kellough v. Bertrand, 22 F. Supp. 2d 602, 612 (S.D. Tex. 1998) (there is no waiver of sovereign immunity for intentional torts, including false arrest and excessive force). Although plaintiffs plead that Bradford acted negligently when shooting Woolery, merely claiming that an act is negligent does not change its nature. Eastland County Co-op Dispatch v. Poyner, 64 S.W.3d 182, 199 (Tex.App. — Eastland 2001, pet. denied). Because plaintiffs have pleaded facts that amount to an intentional tort, such claim is for an intentional tort and is barred by the Texas Tort Claims Act.Johnson v. Waters, 317 F. Supp. 2d 726, 739 (E.D. Tex. 2004);Texas Dep't of Pub. Safety v. Petta, 44 F.3d 575, 580 (Tex. 2001). The court further notes that, in any event, City could only be held liable to the extent that liability would exist were it a private person. Because summary judgment evidence establishes that Bradford is entitled to official immunity, City of Lancaster, 883 S.W.2d 650, City is entitled to sovereign immunity. DeWitt, 904 S.W.2d at 653.
VII. OrderFor the reasons discussed herein,
The court ORDERS that defendants' motions for summary judgment be, and are hereby, granted; that plaintiffs take nothing on their claims against defendants; and, that such claims be, and are hereby, dismissed with prejudice.