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Rich v. Palko

United States District Court, E.D. Texas, Sherman Division

June 6, 2017

JERI LYNN RICH, AS REPRESENTATIVE FOR GAVRILA COVACI DUPUIS-MAYS, AN INCAPACITATED PERSON;
v.
MICHAEL PALKO

          Johnson Judge

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Came on 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.

         The 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.

         BACKGROUND

         Gavrila 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”).

         On July 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.

         After 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.

         According 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.

         According 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.

         In 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.

         ANALYSIS

         A party 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 discrepancies.

         Objection 1: The Report Failed to Consider the Video and Audio Exhibits Before the Court

         Defendants 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).

         Although 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.

         Objection 2: The Report Improperly Relied on Sergeant Agan's ...


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