The opinion of the court was delivered by: Lee H. Rosenthal United States District Judge
This suit against the City of Baytown and individuals alleged to be policymakers for the City and its police department arises out of the use of a taser.*fn1 Plaintiff, Teresa Sandra Constant, alleges that the use of a taser by police officers on January 25, 2002 constituted excessive force that violated her Fourth Amendment rights. Constant asserts municipal and supervisory liability under 42 U.S.C. § 1983 and state-law causes of action for assault, battery, and violations of the Texas Tort Claims Act. The defendants have moved for summary judgment as to all claims. (Docket Entry Nos. 33, 34). Constant has filed a response. (Docket Entry No. 35). Based on a careful review of the pleadings, the motion and response, the parties' submissions, and the applicable law, this court grants the motion for summary judgment and, by separate order, enters final judgment. The reasons are set out below.
Constant sued the City of Baytown and a number of individual defendants on December 2, 2003. (Docket Entry No. 1). She alleged that on December 2 or 3, 2001, she was tasered without justification by Baytown police officers during the course of an arrest. Constant named two police officers, Bert Dillow and Micah Aldred, as among those who used the taser. She named one other police officer, David Alford, as a defendant, but did not allege that he used a taser or provide specifics about his involvement. Constant also named as defendants the City of Baytown; the mayor, Pete Alfaro; the city manager, Gary Jackson; the chief of police, Byron Jones; and city council members Scott Sheley, Mercedes Renteria, Calvin Mundinger, Don Murray, Ronnie Anderson, and Coleman Godwin.
In June 2004, Constant sought leave from this court to amend her complaint to allege that the tasering had not occurred in December 2001, but on January 25, 2002. She also sought to add the police officers involved in the January 2002 incident as defendants. (Docket Entry No. 12). The causes of action were the same as those asserted in the original complaint: excessive force and unlawful search under 42 U.S.C. § 1983 as to the individual officers, supervisory and municipal liability based on an unconstitutional custom or practice against the City and the individual policymakers, and related state-law claims. The officers allegedly involved in the January 2002 incident, Christopher Felder, Mark Wilburn, Shawn Fischer, and Michael Holden, had not been named or identified in the original complaint.
(Docket Entry Nos. 12, 13).
In March 2005, this court granted Constant leave to amend the complaint to add the January 2002 incident to the case, but denied her leave to name new party defendants because limitations had run and relation back did not apply. This court also granted defendants' motions for summary judgment as to the allegations arising from the December 2001 incident and the state-law claims arising from the January 2002 incident. (Docket No. 26). Constant also filed a notice of non-suit as to Officers Dillow and Aldred, which was granted. (Docket Nos. 20, 23). The remaining defendants are the City of Baytown, Lieutenant David Alford, Police Chief Byron Jones, Mayor Pete Alfaro, City Manager Gary Jackson, and City Council members Mercedes Renteria, Scott Sheley, Don Murray, Calvin Mundinger, Ronnie Anderson, and Coleman Godwin. The remaining claims are that the City and the individual policymakers are liable under section 1983 for the January 2002 use of a taser by City police officers.
B. The Summary Judgment Evidence
The summary judgment evidence consists of excerpts from Constant's deposition;*fn2 depositions of Police Chief Jones,*fn3 police officers Felder and Fisher, and Sergeant Holden;*fn4 affidavits by Mayor Alfaro, Officers Alford and Wilburn,*fn5 Police Chief Jones, City Manager Jackson, and City Council members Anderson, Godwin, Mundinger, Murray, Renteria, Sheley; an affidavit from the City record custodian;*fn6 Constant's medical records;*fn7 personnel records for Officers Felder, Fischer, Wilburn, and Sergeant Holden;*fn8 a preliminary expert report by Alan Baxter on Constant's behalf;*fn9 the City of Baytown's Advanced Taser Deployment Procedure and Use of Force General Order;*fn10 and the January 2002 Baytown Police Department incident report.*fn11
In January 2002, Constant was 37 years old and was approximately 5'5" or 5'6" tall. (Docket Entry No. 7, Ex. E; Docket Entry No. 35, Ex. E at 9). Constant testified that in early January 2002, she had injured her leg and was in an "immobilizer" cast that required her to use crutches to walk. (Docket Entry No. 34, Ex. A). However, the police testified that they did not see any cast or crutches and did not see any evidence that her leg was injured. The medical records do not show that in January 2002, Constant had an injured leg. (Docket Entry No. 34, Ex. C at 34-36; Docket Entry No. 34, Ex. Q).
Constant testified that she may have snorted some cocaine around lunchtime on January 24, 2002. (Docket Entry No. 34, Ex. A at 34). That night, she went to a local bar and had three beers. (Id. at 33). She then went to the trailer of a person named Richard, whose last name she did not know, where she also had "a few beers." (Id. at 33, 37). She testified that she did not feel intoxicated. (Id. at 33). Constant testified that she became afraid when Richard refused to let her leave the trailer. She used her cell phone to telephone the police around 1:00 or 1:30 a.m. on January 25, 2002 and asked for help. (Id. at 35, 38).
After Constant called the police, Richard left the trailer, leaving her alone. (Id. at 38). Constant stayed inside the trailer and was there when police arrived.
Constant testified that when the police arrived, they asked if she had been drinking. (Id. at 47). Constant told the police officers that she had a few beers. (Id.). The police asked her to leave the trailer. Constant refused. She testified that she did not understand the reason for their request. (Id.). When she refused, according to Constant, two police officers grabbed her arms and pulled her from the trailer, leaving her crutches behind. Constant alleges that when she asked for her crutches, the police began tasering her. (Id.). Constant testified that she was on the ground, trying to scoot away from the police, who continued to apply the taser while yelling at her to stand up and to shut up. (Id. at 50-51). Constant testified that she was in excruciating pain and thought the police were going to kill her. (Id. at 51-52). As a result of her fear and pain, she does not remember much of what happened that night. (Id. at 54-57). Constant testified that she received 22 burn marks from the tasering, on her groin, breasts, neck, back, buttocks, and legs. (Id. at 51). She claims that the tasering left permanent scars on her groin, breast, and stomach.
(Docket Entry No. 35, Ex. B at 76).
The officers provided detailed testimony as to the circumstances of the taser use. Officers Fischer and Felder were the first to respond to a call that a woman was screaming for help. (Docket Entry No. 34, Ex. B at 1; Docket Entry No. 34, Ex. C at 29). The officers entered the trailer and found Constant alone, screaming that people were coming into the trailer through the floors. No one else was in the trailer. The officers left the trailer to call EMS. (Docket Entry No. 34, Ex. B at 99-100). Constant followed them out of the trailer, moving erratically around the yard and muttering to herself. (Docket Entry No. 34, Ex. C at 34-35). Constant chased Officer Fischer out of the yard to his patrol car, where he called for a taser unit and EMS. (Id. at 36-37). Constant ripped the plastic bug guard off a nearby car's windshield and chased Officer Felder around his patrol car with it, threatening to hit him. (Docket Entry No. 34, Ex. B at 65; Docket Entry No. 34, Ex. C at 39). Officer Wilburn arrived, warned Constant to put the bug guard down, and told her to sit down. (Docket Entry No. 35, Ex. J at 7). Constant approached him aggressively, waving her arms wildly. Officer Wilburn used his taser from a distance of ten feet. (Id.;Docket Entry No. 34, Ex. C at 42-43). The tasering seemed to have no effect on Constant. (Id.). Wilburn applied two more five-second cycles, again from a distance. Constant began to crawl under a vehicle. (Docket Entry No. 35, Ex. J at 7). The officers tried to restrain her manually so that she could be taken to a hospital, but she continued to struggle and thrash about. Wilburn used the taser once more, this time applying direct contact. (Id.; Docket Entry No. 34, Ex. B at 35-36).
When Sergeant Holden arrived, he found Officer Wilburn behind Constant, attempting to apply handcuffs. Constant was struggling and Wilburn could not hold Constant's arms still long enough to apply the handcuffs. Wilburn put his taser in its holster to try to handcuff Constant. Holden used his taser to try to immobilize Constant so that Wilburn could apply the handcuffs. (Docket Entry No. 34, Ex. C at 50-51). Despite the taser's application, Constant continued to kick the officers. Sergeant Holden used the taser again to try to enable the officers to restrain her feet. (Id. at 43; Docket Entry No. 34, Ex. D at 52-53). Sergeant Holden applied five contact taserings within a minute. (Docket Entry No. 34, Ex. D at 92). The emergency medical personnel called by the police who initially responded to the call took Constant to the hospital as soon as she was sufficiently subdued. Constant was screaming and cursing through the entire ...