United States District Court, E.D. Texas, Sherman Division
JERI LYNN RICH, AS REPRESENTATIVE FOR GAVRILA COVACI DUPUIS-MAYS, AN INCAPACITATED PERSON;
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE.
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On April 11, 2017, the report of the Magistrate Judge
(Dkt. #34) was entered containing proposed findings of fact
and recommendations that Defendants Michael Palko
(“Detective Palko”), Keith Duane Hudgens
(“Officer Hudgens”) (collectively, the
“Individual Defendants”), and the City of
McKinney, Texas' (“McKinney's”) Motion to
Dismiss (Dkt. #11) be granted in part and deferred in part.
Magistrate Judge recommended Plaintiff's Eighth Amendment
claim be dismissed against Defendants; however, the
Magistrate Judge found that Plaintiff defeated the Individual
Defendants' qualified immunity defense as to the Fourth
Amendment claims at this stage of litigation, and that the
Court needs narrowly tailored discovery pursuant to Backe
v. LeBlanc, 692 F.3d 645 (5th Cir. 2012). Thus, the
Court should defer and carry the issue of qualified immunity
until it may be decided, including on summary judgment as
appropriate. Further, the Magistrate Judge found
Defendants' request for a Rule 7(a) Reply as to
Plaintiff's claim against McKinney should be granted.
Plaintiff filed a Rule 7(a) Reply on May 15, 2017 (Dkt. #41).
Having received the report of the Magistrate Judge (Dkt.
#34), having considered each of Defendants' timely filed
objections (Dkt. #38), having considered Plaintiff's
Response (Dkt. #40), having considered Plaintiff's Rule
7(a) Reply (Dkt. #41), and having conducted a de novo review,
the Court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct, and the Court hereby
adopts the Magistrate Judge's report (Dkt. #34) as the
findings and conclusions of the Court.
Covaci Dupuis-Mays (“Dupuis-Mays”) suffered a
brain injury as an infant, was diagnosed with cerebral palsy
and mental retardation, and declared an incapacitated person
by the State of Texas (Dkt. #1 at 2). Jeri Lynn Rich, his
adoptive mother, has been Dupuis-Mays' legal guardian
since December 2, 2011. Id. Dupuis-Mays resides at a
group home in McKinney, Texas, which is staffed and operated
by D&S Residential Service (“D&S”).
11, 2015, Dupuis-Mays' caseworker contacted the McKinney
Police Department and requested that police officers be sent
to the group home to transport him to Green Oaks Hospital
because Dupuis-Mays needed inpatient care. Id. at 3.
The Individual Defendants arrived at the group home.
Id. Plaintiff alleged the Individual Defendants
involuntarily committed and detained Dupuis-Mays and
transported him to Green Oaks Hospital in Dallas, Texas (the
“Hospital”). Id. At the Hospital,
Dupuis-Mays was forced to wait an extended amount of time to
be processed and was handcuffed for the entire duration of
the time. Id.
waiting for over two (2) hours at the Hospital and still
handcuffed, Dupuis-Mays became irritated and spat in the
direction of Detective Palko. Id. Plaintiff alleged
Detective Palko responded by aggressively approaching
Dupuis-Mays, and Detective Palko used excessive force on him.
Id. Plaintiff alleged that Dupuis-Mays suffered a
five (5) inch laceration to his head, which required seven
(7) staples, suffered abrasions to his knees and elbows, and
suffered bruises to his back. Id. at 4.
to Plaintiff, on July 13, 2015, Sergeant Randy Agan
(“Sergeant Agan”) was contacted concerning the
actions of the Individual Defendants at the Hospital.
Id. at 4-5. The Hospital allegedly informed Sergeant
Agan that the Individual Defendants reported false
information to the Hospital staff. Id. at 5. Thus,
Sergeant Agan conducted an Internal Affairs Investigation
(“IAI”) on both of the Individual Defendants.
See Id. When conducting the IAI, Sergeant Agan noted
that Officer Hudgens' report had discrepancies after
reviewing video footage, audio recordings, and interviews
conducted at the group home. Id. at 6.
to Plaintiff, Sergeant Agan found Detective Palko dealt with
the situation poorly. Id. Detective Palko could have
used a different method, such as a spit mask, surgical mask,
or pulling his shirt over his head in response to
Dupuis-Mays' conduct. Id. Sergeant Agan
concluded that Detective Palko did not use excessive force as
defined by McKinney Police Department's General Orders,
but did conclude that he failed to take proper care of
Dupuis-Mays and his behavior. Id.
addition to her claims against the Individual Defendants,
Plaintiff asserted McKinney employs a policy, practice, or
custom that permits police officers to use excessive force
and file false police reports. Id.
who files timely written objections to a magistrate
judge's report and recommendation is entitled to a de
novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. §
636(b)(1)(c); Fed.R.Civ.P. 72(b)(2)-(3). Defendants object
that the Magistrate Judge erred for the following reasons:
(1) the report failed to consider the video and audio
exhibits before the Court; (2) the report improperly relied
on Sergeant Agan's post-incident, hindsight-aided,
hearsay opinions; (3) the report improperly found that the
Individual Defendants were not entitled to qualified immunity
on Plaintiff's claim for unlawful detention; (4) the
report improperly found that the Individual Defendants were
not entitled to qualified immunity on Plaintiff's claim
for excessive force; (5) it was improper for the Magistrate
Judge to allow Plaintiff the opportunity to amend her claims
against McKinney; (6) the Magistrate Judge failed to rule on
Defendants' motion to dismiss; (7) the Magistrate Judge
failed to rule on Plaintiff's Fourteenth Amendment
claims; and (8) the report improperly relied on
Plaintiff's allegations of Officer Hudgens' reporting
1: The Report Failed to Consider the Video and Audio Exhibits
Before the Court
generally object to the Magistrate Judge's apparent
failure to consider the video and audio exhibits presented to
the Court when analyzing Defendants' motion to dismiss.
Defendants moved for dismissal under Rule 12(b)(6) of the
Federal Rules of Civil Procedure (Dkt. #11 at 10). In
considering a Rule 12(b)(6) motion to dismiss, a court
accepts all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff. In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007). A court will “not look beyond the face of the
pleadings to determine whether relief should be granted based
on the alleged facts.” Spivey v. Robertson,
197 F.3d 772, 774 (5th Cir. 1999).
the qualified immunity defense should be resolved at the
earliest possible stage in litigation, the video and audio
evidence cannot be properly considered at the motion to
dismiss stage. Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498-99 (5th Cir. 2000)). The Court's review is limited to
the complaint, any documents attached to the complaint, and
any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.
Id. The video and audio footage do not fall into any
of these categories and would be more appropriately
considered on a motion for summary judgment. Moreover, the
Magistrate Judge suggested that even with the audio and video
footage, the Court needed further discovery in order to
determine whether the Individual Defendants should be
afforded qualified immunity. Thus, Defendants' first
objection is overruled.
2: The Report Improperly Relied on Sergeant Agan's