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Bernard v. City of Houston

United States District Court, S.D. Texas, Houston Division

March 2, 2017

GEORGE BERNARD, Plaintiff,
v.
CITY OF HOUSTON, et al., Defendants.

          MEMORANDUM AND RECOMMENDATION

         Pending before the court[1] is Defendants' Motion for Summary Judgment (Doc. 34). The court has considered the motion, Plaintiffs' response, [2] the summary judgment evidence, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Defendants' motion be GRANTED IN PART AND DENIED IN PART.

         I. Case Background

         Plaintiffs George Bernard (“Bernard”) and Elizabeth Gonsoulin (“Gonsoulin”) filed this civil rights action against multiple defendants, alleging violations of constitutional rights and state tort law during the execution of a warrant.

         A. Factual Background

         On March 18, 2013, a confidential informant advised HPD officers that he had observed Dominick Benard[3] (“Dominick”) selling marijuana at a residence on Sherwood Drive in Houston and had also observed a semi-automatic hand gun on the premises.[4] The following day, HPD officers obtained a search and arrest warrant for the seizure of the marijuana and Dominick.[5] The warrant allowed the officers to enter the residence without knocking and announcing their purpose and to arrest any other occupants who were found to be in possession of marijuana.[6]

         In the evening of March 19, 2013, a squad of HPD officers executed the warrant at the residence.[7] Defendant Ferdinand Rodriguez, Jr., (“Rodriguez”) was the first officer through the front door after it had been breached with a battering ram.[8] In a witness statement provided on March 20, 2013, Defendant Rodriguez described what occurred in the next twenty to thirty seconds:

As the front door opened, I stepped in the threshold and observed two elderly people sitting in chairs along the left side of the living room. Just to the left of the elderly persons, I observed the suspect immediately move away from the elderly people. The suspect was initially facing me. As the officers in my squad announced our presence by yelling police, police, I ordered the suspect to show his hands. The suspect then turned to the right and began to move towards the kitchen which was towards the back of the house. As he turned towards the kitchen, he kept his hands in his waist band [sic] and looked over his left shoulder. While running towards the kitchen, I advanced forward towards the suspect as he continued to move away ignoring my commands. As I came through the living room and made my way towards the kitchen, I used the lighting system on my AR-15 to illuminate the suspect. The suspect then reached the threshold of the kitchen and quickly moved to the left out of my view. At this point fearing for my life and the lives of my squad members, I quickly moved my safety switch from “safe” to the “fire” position. I began to look for my first point of cover and concealment along the left side of the dining room. As I moved forward, the suspect then quickly came back out into my view turning towards me which was to his left as if he was going to engage me. He started to move his hands from his waistband in a very fast movement as if pulling a weapon. Fearing for my life, I immediately raised my AR-15 from the low ready to the ready position and immediately engaged the suspect. I shot my AR-15 one time and the suspect immediately fell to the ground back behind the wall on the other side of the threshold. I posted up on the opposite side of the wall and all I could see were the suspect's legs moving around on the ground.[9]

         After confirming that Plaintiff Bernard had been shot, Defendant Rodriguez stood over Plaintiff and “covered down on the room” while the other members of the squad cleared the rest of the house.[10]When the squad cleared the house, Defendant Rodriguez moved Plaintiff Bernard and checked his waistband but did not find a weapon.[11] Other officers administered first aid to Plaintiff Bernard, and Defendant Rodriguez left the house.[12]

         Plaintiff Bernard testified that, at the time the officers came through the front door, he was already walking toward the kitchen and turned around as the officers entered.[13] He did not possess a weapon.[14] In his words, “When they said ‘freeze, ' I threw my hands up and that's when I got shot, so I really couldn't see too much, because soon as I turned around, they said ‘freeze, ' I turned around and I threw my hands up and they shot me.”[15] The shot threw Plaintiff Bernard backwards into a door between the dining room and the kitchen and breaking it.[16] Plaintiff Bernard could only remember that, after being shot, he was turned over by an officer in an attempt to put on handcuffs.[17] Plaintiff Bernard lost consciousness and did not recall anything that transpired after that for the next two and one-half months.[18]

         Plaintiff Gonsoulin, who is Plaintiff Bernard's mother, said that she and her husband were sitting in chairs in the living room and her granddaughter was in a bedroom when the officers entered the front door.[19] She heard a shot “almost instantly” but could not see Plaintiff Bernard at the time.[20] She jumped up and said, “They shot Dunner, ” referring to Plaintiff Bernard by a nickname.[21] An officer “put the gun in [her] face and told [her] to shut up and sit down.”[22]

         The officers then escorted Plaintiff Gonsoulin, her husband, and her granddaughter outside where uniformed officers separated them.[23] Plaintiff Gonsoulin was later place in a police vehicle where she remained for “quite a long time.”[24] Plaintiff Gonsoulin told the officers that she needed to use a restroom but was told that she could not and was asked to wait until she arrived at the police station downtown.[25] Plaintiff Gonsoulin was not able to wait and urinated and defecated on herself while in the back of the police vehicle.[26] The officers took Plaintiff Gonsoulin out of the vehicle.[27] One officer told Plaintiff Gonsoulin that she would need to wait to clean up until she arrived downtown, but, after Plaintiff Gonsoulin refused to sit back down in the police vehicle, another officer went into the residence and retrieved clothes for Plaintiff Gonsoulin.[28] That officer escorted Plaintiff Gonsoulin to a neighbor's house to change clothes.[29]

         Plaintiff Gonsoulin was taken downtown where she provided a statement.[30] At the police station, Plaintiff Gonsoulin was given her medication and was examined by paramedics who recommended transportation to a hospital.[31] Plaintiff Gonsoulin refused.[32]

         Meanwhile, the warrant squad turned the scene over to Narcotics Squad 15, which performed the narcotics search.[33] The search of the residence recovered 122.42 grams of phencyclidine (PCP), 1.02 grams of marijuana, a shotgun, and a semi-automatic handgun.[34] Plaintiff Bernard was charged with possession with intent to deliver a controlled substance.[35]

         B. Procedural Background

         On March 19, 2015, Plaintiffs filed this action against the City of Houston (“City”), the Houston Police Department (“HPD”), and multiple unidentified police officers, asserting violations of the Fourth and Fourteenth Amendment freedoms from excessive force and failure to protect and raising state claims of assault and battery, intentional infliction of emotional distress (“IIED”), negligence, and malicious prosecution.[36] On June 3, 2015, the City answered, listing many affirmative defenses, and HPD filed a motion to dismiss.[37] On June 24, 2015, Plaintiffs amended their complaint and omitted HPD from the list of defendants.[38]

         On January 7, 2015, Plaintiffs amended their complaint and named HPD Officers Rodriguez, Eduardo Medrano, Gerald Goines, Jr., (“Goines”), Ciro Olivares, William Davis, Shanta Morton, and Steven Bryant (collectively “Defendant Officers”) in their individual capacities as defendants.[39] Plaintiffs indicated that they expected to discover the names of other police officers who were involved in the incident and intended to seek leave to amend to add those individuals as defendants.[40]

         Against Defendant Officers, Plaintiff Bernard alleged violations of the constitutional rights to be free from excessive force, false arrest, denial of due process, and failure to intervene.[41] Plaintiff Bernard also alleged that Defendant Officers conspired to violate his constitutional rights.[42] In addition to the federal claims, Plaintiff Bernard alleged state claims of false imprisonment, malicious prosecution, assault and battery, IIED, and negligence against Defendant Officers.[43] Plaintiff Gonsoulin alleged state law claims of false imprisonment, assault and battery, IIED, and negligence against Defendant Officers.[44]

         Plaintiffs pled Defendant City's direct liability for the state claim of negligent hiring, retention, supervision, and control and indirect liability for Defendant Officers' negligent actions in violation of state law.[45] Plaintiffs sought compensatory and punitive damages as well as attorneys' fees and court costs.[46]On February 12, 2016, and March 29, 2016, respectively, Defendants City and Officers filed their answers to Plaintiffs' third amended complaint and raised numerous defenses.[47]

         On July 21, 2016, Defendants filed the pending motion for summary judgment.[48] Plaintiffs timely filed a response.[49]

         II. Summary Judgment Standard

         Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014). A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). To be genuine, the dispute regarding a material fact must be supported by evidence such that a reasonable jury could resolve the issue in favor of either party. See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at 248).

         The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. Celotex Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5thCir. 1992). The movant may meet this burden by demonstrating an absence of evidence in support of one or more elements of the case for which the nonmovant bears the burden of proof. See Celotex Corp., 477 U.S. at 322; Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir. 1997).

         If the movant carries its burden, the nonmovant may not rest on the allegations or denials in the pleading but must respond with evidence showing a genuine factual dispute. Stauffer, 741 F.3d at 581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)). Conclusory allegations, unsubstantiated assertions, improbable inferences, unsupported speculation, or only a scintilla of evidence will not carry this burden. Brown v. City of Houston, Tex., 337 F.3d 539, 540-41 (5th Cir. 2003).

         III. Analysis

         Defendants moved for summary judgment in their favor on all of Plaintiffs' claims. In their response, Plaintiffs agreed to dismiss as moot the following claims: conspiracy to violate constitutional rights, failure to intervene, and assault and battery.[50] Plaintiffs also agreed to dismiss any remaining John Doe defendants.[51]

         The court addresses the parties' arguments by claim, beginning with the remaining constitutional claims of excessive force, false arrest, and denial of due process. The court then addresses the remaining state claims of false imprisonment, malicious prosecution, IIED, negligence, and negligent hiring, retention, supervision, and control.

         A. Constitutional Claims

         A plaintiff can establish a prima-facie case under 42 U.S.C. § 1983 (“Section 1983”)[52] for the deprivation of civil rights by establishing: (1) a violation of a federal constitutional or statutory right; and (2) that the violation was committed by an individual acting under the color of state law. Doe v. Rains Cty. Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995). The statute creates no substantive rights but only provides remedies for deprivations of rights created under federal law. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

         Government officials are entitled to qualified immunity from liability for civil damages “unless [(1)] the official violated a statutory or constitutional right [(2)] that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093 (2012)(citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). Courts have discretion to determine in which order the two prongs are considered. al-Kidd, 563 U.S. at 735. Qualified immunity protects an officer regardless of whether the error was “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)). By pleading qualified immunity in good faith, a summary judgment movant shifts the burden to the nonmovant to rebut the movant's assertion. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

         Plaintiffs alleged violations of the following constitutional rights: (1) Fourth/Fourteenth Amendment protection against excessive force; (2) Fourth/Fourteenth Amendment protection against false arrest; and (3) Fifth/Fourteenth Amendment protection against the denial of due process.

         1. Excessive Force

         The Fourth Amendment, applied to state actors through the Fourteenth Amendment, protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. In order to establish an excessive-force claim, a plaintiff must show: (1) an injury; (2) that resulted directly and only from the use of force that was excessive; and (3) the force used was unreasonable. Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)(citing Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).

         The particular context factors into whether the officer acted reasonably in terms of the amount of force deployed. See Tarver v. City of Edna, 410 F.3d 745, 751-53 (5th Cir. 2005). “The objective reasonableness of the force . . . depends on the facts and circumstances of the particular case, such that the need for force determines how much force is constitutionally permissible.” Collier v. Montgomery, 569 F.3d 214, 218-19 (5th Cir. 2009)(quoting Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008)). An officer may use deadly force if he “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Tenn. v. Garner, 471 U.S. 1, 11 (1985).

         Reasonableness considerations regarding the need for and the amount of force necessary include whether the suspect posed an immediate threat to the officer or to the public and whether the suspect was actively resisting arrest or attempting to evade arrest. Collier, 569 F.3d at 219. Reasonableness is judged from the perspective of a reasonable officer on the scene, not in hindsight. Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008). In judging an officer's actions, the court must recognize the difficulty of making split-second judgment calls under high pressure conditions and accord the officer appropriate latitude. Graham, 490 U.S. at 396-97.

         Defendants contend that the force used against Plaintiff Bernard was not excessive under the circumstances, relying on the testimony of Defendant Rodriguez. Plaintiffs' live pleading collectively accused Defendant Officers of using excessive force, but their response to Defendants' motion clarifies that the force they assert was excessive was that used by Defendant Rodriguez in shooting Plaintiff Bernard.

         To begin with, the contours of the right to be free from excessive force were well defined by pre-existing law on the date of Plaintiff Bernard's shooting. See, e.g., Graham, 490 U.S. at 392-99; Garner, 471 U.S. at 7-12. In the absence of any question as to the state of the law, Defendant Rodriguez is not entitled to qualified immunity if his actions were not objectively reasonable.

         Plaintiff Bernard and Defendant Rodriguez's accounts of the incident at issue lend themselves to two significantly different fact scenarios, either of which is supported by sufficient evidence to convince a reasonable jury of that version's veracity. According to Defendant Rodriguez, Plaintiff Bernard took off running when the officers entered the residence, kept his hands in the vicinity of his waistband, continued to move out of view, and suddenly turned back quickly moving his hands from his waistband as if pulling out a weapon.[53] According to Plaintiff Bernard, he was moving toward the other room as the officers entered the residence, stopped, raised his hands in the air, turned around to face Defendant Rodriguez, and possessed no weapon.

         Only under the circumstances described by Defendant Rodriguez's account would the use of deadly force be reasonable. No reasonable officer faced with conduct described by Plaintiff Bernard would perceive a threat of serious physical harm; whereas, an officer pursuing an individual who was evading the officer and who quickly turned around while pulling his hands from his waistband reasonably could perceive a threat that the individual possessed a weapon that might be used against the officer. This significant difference in the evidentiary accounts is not susceptible to resolution on summary judgment. Plaintiffs presented sufficient evidence to raise a fact dispute on the constitutionality of Defendant Rodriguez's action. Therefore, he is not entitled to qualified immunity on summary judgment. The credibility of the witnesses, the combination of facts believed by the jury, and the inferences draw from the testimony necessarily will all factor into the jury's conclusions.

         Summary judgment should not be granted on Plaintiff Bernard's excessive-force claim.

         2. False Arrest

         When bringing a claim for false arrest in violation of the Fourth Amendment, a plaintiff must show that the officer did not have probable cause to arrest him. See Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001) (stating that the constitutional tort of false arrest requires “a showing of no probable cause”). Probable cause exists “when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person ...


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