Opinion
CIVIL ACTION NO. 4:03-CV-142-BE
January 13, 2004
MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion for Summary Judgment filed by Defendant City of Watauga on November 19, 2003. Having considered the evidence and arguments offered by the parties, the court finds that the motion should be granted.
A. BACKGROUND
1. Timeliness
There is a threshold issue of timeliness concerning Plaintiff Nelson's response to the City's Motion for Summary Judgment. The City filed its motion on November 19, 2003. Under the Local Rules for the Northern District of Texas, Nelson's response was due December 9, 2003. His response bears a file-stamped date of December 15, 2003, and the City has objected to the untimeliness of that response. The City's objection is SUSTAINED and Nelson's response and attached exhibits are hereby stricken from the record as untimely. The court, however, notes that even if Nelson's response had been timely filed, his version of events creates no genuine issues of material fact appear that would preclude summary judgment in favor of the City.
The court notes that a similar situation was presented when Nelson failed to file a timely response to an earlier summary judgment motion filed by the individual police officers who are defendants in this civil action. In that instance, the court refused to accept Nelson's untimely response because the excuses given for the late filing were not reasonable under the Federal Rules of Civil Procedure or the local rules governing practice in this district.
2. Summary Judgment Facts
The following facts are set out in the summary judgment motion and supporting affidavits: On October 13, 2001, Thomas and Hickman were employed as police officers for the City of Watauga, Texas. At approximately 2:50 p.m., officers were dispatched to a medical emergency, a possible heart attack, at a residence in the city. Thomas was the first officer to arrive at the house, along with the local ambulance service. Thomas walked to the front door with one of the responding paramedics, and through the glass storm door saw a man (Nelson) running directly towards the door. Nelson ran out of the door, and with his left hand struck Thomas in the left shoulder and arm and pushed the paramedic with his right hand. Nelson yelled, "Get back!, " and using obscenities, told the men to leave and said, "We'll take her." Nelson continued to run toward the passenger side of a truck parked outside the house, but encountered Hickman who had arrived in the meantime and witnessed Nelson shoving or hitting Thomas and the paramedic. Hickman moved to intercept Nelson, who ran into Hickman. Nelson and Hickman struggled, and both men fell to the ground. Nelson continued to resist, swinging his hands and arms violently. Hickman struck Nelson two or three times in the shoulder and neck. Thomas then intervened and assisted Hickman by restraining Nelson's arms and fists. The officers turned Nelson onto his stomach and handcuffed him, then Thomas transported Nelson to the jail. The entire encounter was over in about thirty seconds.
Nelson filed this action on February 23, 2003 seeking damages against the City of Watauga and the police officers, individually, for violating 42 U.S.C. § 1983 and 1988, the First, Fourth and Fourteenth Amendments, comparable provisions in the state constitution, and Texas common law. Nelson alleges that the officers and the City violated his right to be free from the use of excessive force and unreasonable seizure, and his right to due process of law under the Fourteenth Amendment. He also complains of the City's deliberate indifference to his civil rights in failing to instruct, control, and discipline its police officers.
Nelson's complaint includes an assertion that the Defendants are jointly and severally liable for violating the First Amendment. U.S. CONST, amend. I. In order to establish infringement of First Amendment rights to support liability under § 1983, evidence must be offered that the plaintiff engaged in speech, expressive conduct, or association, and the identified speech, conduct, or association must be of the kind considered protected. See R.A.V. v. City of St. Paul, 505 U.S. 377, 384, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992); Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989). Nelson has not identified any protected expressive conduct or association that was allegedly infringed by his confrontation with the police officers and emergency response personnel.
In a memorandum opinion and order issued October 7, 2003, the court granted summary judgment on these claims in favor of the individual police officers on grounds of qualified immunity.
B. STANDARD OF REVIEW
Summary judgment is appropriate 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 any material fact and that 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, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The court views all of the evidence and inferences therefrom in the light most favorable to the nonmovant. Hibernia Nat 1 Bank v. Corner, 997 F.2d 94, 97 (5th Cir. 1993).
The movant bears the initial burden of showing that no genuine issue of material fact exists, but once the movant makes such a showing, the burden shifts to the nonmovant to produce competent summary judgment evidence of the existence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514, 91 L.Ed.2d 202. An issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmovant. Id. at 248, 106 S.Ct. at 2510. A fact is material if its resolution would affect the outcome of the suit under the governing law. Id.
C. DISCUSSION
1. Federal Claims
The City asserts that it is entitled to summary judgment on Nelson's federal civil rights claims because of the absence of evidence to support municipal liability. Section 1983 provides that any person who, under color of state law, deprives another of rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured. 42 U.S.C. § 1983. Section 1983 does not create substantive rights, but only provides a remedy for the rights that it designates. Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). Section 1983 does not provide for vicarious liability. See Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Henley v. Edlemon, 297 F.3d 427, 431 (5th Cir. 2002). A municipality is liable under 42 U.S.C. § 1983 only when injury results from execution of governmental policy or custom, whether made by its lawmakers or by those whose edicts and acts may fairly be said to represent official policy. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002), cert. denied, 537 U.S. 1110 (2003). Proof of municipal liability sufficient to satisfy Monell requires (1) an official policy or custom, (2) of which a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose moving force is that policy or custom. Pineda, 291 F.3d at 328. Existence of municipal policy or custom may be established in one of two ways:
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, 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 fairly represents municipal policy.Id. Although Nelson asserts in his complaint that the City failed to instruct, supervise, control and discipline its police officers, he has provided no evidence of the City's policies for training, supervising, or disciplining its police officers, nor is there summary judgment evidence that the City's policies are inadequate or not enforced. More generally, there is no summary judgment evidence of (1) any municipal policy statement, ordinance, regulation or decision that could be considered a moving force behind the civil rights violations alleged by Nelson, or (2) a persistent and widespread practice or custom regarding civil rights violations that could fairly be said to represent City policy. See Monell, 436 U.S. at 694-95, 98 S.Ct. at 2037-38. In addition, and as discussed in the memorandum opinion and order granting summary judgment to the individual officers, there are no genuine issues of material fact with regard to the lawfulness of Nelson's arrest or the degree of force used to secure his arrest.
Even if Nelson had timely responded, his response is not accompanied by any evidence raising a fact question on municipal liability.
In fact, Nelson's newest version of events (as presented in his untimely response to the City's motion) suggests even less participation by the named officers than the officers themselves have conceded.
The City is entitled to summary judgment as to Nelson's claims of federal civil rights violations under 42 U.S.C. § 1983.
2. State Law Tort Claims
Nelson alleges that the officers and City violated his right to be free from the use of excessive force and unreasonable seizure as guaranteed by Article 1, Sections 9 and 13, of the Texas Constitution, and subjected him to cruel, excessive, and unusual punishment. He has also accused both Hickman and Thomas of assault for striking him in the face. The City asserts that it is entitled to a finding of sovereign immunity because the court has previously found the individual officers entitled to official immunity from liability for Nelson's state law claims.
Article I, Section 9 reads:
The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
TEX. CONST, art. 1, § 9.
Article I, Section 13 reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.
TEX. CONST, art. 1, § 13.
Under Texas law, sovereign immunity shields a governmental employer from vicarious liability when official immunity shields the employee from liability. University of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). The court has already granted summary judgment to defendants Thomas and Hickman because there is no genuine fact issue to dispute their entitlement to official immunity.
Texas does not appear to recognize violations of its constitution as an independent tort. See, e.g., City of Beaumont v. Bouillion, 896 S.W 2d 143, 147(Tex. 1995); City of Robstown v. Ramirez, 178. W.3d 268, 276 (Tex.App.-Corpus Christi, pet. dism'd w.o.j.); Bagg v. University of Tex. Medical Branch at Galveston, 726 S.W.2d 582, 584 n. 1 (Tex.App.-Houston [14th Dist] 1987, writ ref'd n.r.e). But see Jones v. Memorial Hasp. Sys., 746 S.W.2d 891 (Tex.App.-Houston [1st Dist.] 1988, no writ). But the Fifth Circuit has found that even if such a cause of action exists, Texas courts would still recognize official immunity of government employees performing discretionary acts. See Eugene v. Alieflndep. School Dist., 65 F.3d 1299, 1306 (5th Cir. 1995). See also Gillum v. City of Kerrville, 3 F.3d 117, 122 (5th Cir. 1993).
Accordingly, the City is entitled to sovereign immunity under Texas law.
It is ORDERED that the City of Watauga's Motion for Summary Judgment is granted.