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Escobar v. Montee

United States District Court, N.D. Texas, Dallas Division

March 30, 2017

ISRAEL ESCOBAR, Plaintiff,
v.
LANCE MONTEE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE

         This is an action by plaintiff Israel Escobar (“Escobar”) against defendant Lance Montee (“Officer Montee”), a Grand Prairie Police Department canine officer, seeking to recover under 42 U.S.C. § 1983 on a Fourth Amendment excessive force claim and on other claims. Officer Montee moves for summary judgment based on qualified immunity. Because the summary judgment record reflects that there is a genuine issue of material fact, the court denies Officer Montee's motion as to Escobar's Fourth Amendment excessive force claim. The court otherwise dismisses Escobar's claims against Officer Montee.

         I

         Because this case is the subject of a prior memorandum opinion and order, see Escobar v. Montee, 2016 WL 397087 (N.D. Tex. Feb. 2, 2016) (Fitzwater, J.) (“Escobar I”), the court will recount only the background facts and procedural history necessary to understand the present decision.

         On or about February 22, 2014, shortly after 9:00 p.m., Escobar had an argument and physical altercation[1] with his wife in a restaurant parking lot.[2] After the altercation ended, Escobar drove his wife to a Walmart parking lot, where she exited the vehicle, and he then returned to his residence located in Grand Prairie, Texas. After spending a few minutes at his residence, Escobar decided to return to the Walmart to pick up his wife. As he was about to depart, he observed a police vehicle at his residence.

         Escobar decided to exit his residence through the back door because he feared the consequences of a run-in with the police. He took refuge near the back porch of a house a few blocks away. While he was hiding, a helicopter dispatched from the Texas Department of Public Safety (“DPS”), Garland Office, arrived at the scene and notified the officers on the ground that someone was in the backyard two houses to the west of the officers' location. According to the Incident History Detail transcribed from statements over the police radio, it was determined that Escobar was lying on the ground “in [a] fetal position.” D. App. 6.

         After Escobar's location was determined, Officer Montee and the other officers at the scene formulated a plan. They had been informed that Escobar was armed with a knife, and that his mother had told the police that Escobar told her that the police would have to kill him to catch him. After several unsuccessful attempts to contact the owner of the residence where Escobar was hiding, Officer Montee threw his canine, a German Shepherd named “Bullet, ” over the fence. According to Escobar, when he heard a police officer with a dog rounding the corner of the house, he dropped the knife in his possession and lay flat on the ground with his face down, because he feared what the dog might do to him.

         Police then entered the yard where Escobar was hiding and ordered him to get down on the ground. Without warning, Bullet attacked Escobar, biting him in the middle upper calf area of his leg while Bullet shook his head violently. After approximately 30 seconds had elapsed, Bullet let go of the middle upper calf area of Escobar's leg and took a second bite, this time of Escobar's outside upper calf area.[3] During both dog bites, Escobar continually yelled for the dog to be taken off of him. After approximately 30 more seconds of the second dog bite, one of the police officers yelled a command to Bullet, causing the dog to stop biting immediately.

         Escobar brought this suit under 42 U.S.C. § 1983 against Officer Montee and “John Does 1-10, ”[4] alleging that Officer Montee violated these constitutional rights: to be free from unreasonable seizure; to be free from the use of unreasonable, unnecessary, and excessive force; and to have medical care for injuries received while in custody.[5] Officer Montee moved to dismiss Escobar's Fourth Amendment claims asserted against him on the basis of qualified immunity. In Escobar I the court granted Officer Montee's motion in part, dismissing Escobar's claim that Officer Montee used excessive and unreasonable force, in violation of the Fourth Amendment, when he initially released Bullet over the fence to bite and hold Escobar, and when he failed to provide a warning before releasing Bullet. Escobar I, 2016 WL 397087, at *5-7. The court denied Officer Montee's motion to dismiss Escobar's § 1983 claim, however, to the extent that Escobar alleged that Officer Montee delayed in removing Bullet after it was clear that Escobar had surrendered his weapon and was not resisting arrest:

Accepting the well-pleaded facts as true and viewing them favorably to Escobar, the complaint alleges that Officer Montee permitted Bullet to bite and hold Escobar for at least 60 seconds, even though Escobar was lying on the ground with his hands extended “like a parachute man, ” was not actively resisting arrest, was calling out for the dog to be removed, and, at some point during the 60 seconds, dropped his knife. In sum, according to Escobar's complaint, at the time Bullet attacked him, he was neither resisting nor fleeing, and any rational cause to fear resistance or flight had dissipated. Any reasonable officer would have understood that the Fourth Amendment prohibits continued force, particularly such extreme force as allowing a dog to bite Escobar's leg for over one minute, causing injuries of the severity alleged[.]

Id. at *10.

         Officer Montee now moves for summary judgment on the remaining claims asserted against him based on qualified immunity. Escobar opposes the motion.

         II

         When a summary judgment movant will not have the burden of proof on a claim at trial, he can obtain summary judgment by pointing the court to the absence of evidence on any essential element of the nonmovant's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once he does so, the nonmovant must go beyond his pleadings and designate specific facts demonstrating that there is a genuine issue for trial. See Id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant's failure to produce proof as to any essential element renders all other facts immaterial. See TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little, 37 F.3d at 1076.

         When qualified immunity has been raised, “[t]he moving party is not required to meet [his] summary judgment burden for a claim of immunity.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (citation omitted). Rather, the movant need only plead his good-faith entitlement to qualified immunity, whereupon “the burden shifts to the plaintiff to rebut it.” Id. (citation and emphasis omitted); see also Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008) (noting that when government official pleads qualified immunity, plaintiff must “rebut the defense by establishing that the official's allegedly wrongful conduct violated clearly established law and that genuine issues of material fact exist regarding the reasonableness of the official's conduct”). Once qualified immunity is asserted, the burden shifts to the plaintiff to demonstrate the inapplicability of the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam).

         III

         Qualified immunity jurisprudence is well settled. “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar 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 (1982). Qualified immunity applies to state officials sued for constitutional violations under § 1983. See Id. at 818 n.30 (citing Butz v. Economou, 438 U.S. 478, 504 (1978)); Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). “‘Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, ' and ‘protects all but the plainly incompetent or those who knowingly violate the law.'” Thompson v. Mercer, 762 F.3d 433, 437 (5th Cir. 2014) (some internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).

         “To decide whether defendant[] [is] entitled to qualified immunity, the court must first answer the threshold question whether, taken in the light most favorable to plaintiff[] as the part[y] asserting the injuries, the facts [he has] alleged show that defendant['s] conduct violated a constitutional right.” Ellis v. Crawford, 2005 WL 525406, at *3 (N.D. Tex. Mar. 3, 2005) (Fitzwater, J.) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry.”)).[6] “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201. “[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established.” Id. Finally, “[e]ven if the government official's conduct violates a clearly established right, the official is nonetheless entitled to qualified immunity if his conduct was objectively reasonable.” Wallace v. Cnty. of Comal, 400 F.3d 284, 289 (5th Cir. 2005) (citing Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998) (en banc)). “The objective reasonableness of allegedly illegal conduct is assessed in light of the legal rules clearly established at the time it was taken.” Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992) (citing Anderson v. Creighton, 483 U.S. 635, 639 (1987)). ...


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