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Harz v. Denton County

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

June 29, 2017

STEPHEN L. HARZ
v.
DENTON COUNTY, TEXAS, DAVID E. LINNEL, BRYCE A. HICKS, SR., CHARLES H. CRAFT, JESSE D. WYMAN, JOHN DOE No. 4

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Pending before the Court are Plaintiff's Opposed Motion to Extend Deadline to Respond to Defendant's Motion for Summary Judgment (Dkt. #26) and Defendants' Motion for Summary Judgment (Dkt. #25). After reviewing the relevant pleadings and motion, the Court finds Plaintiff's motion should be denied and Defendants' motion should be granted.

         BACKGROUND

         On April 16, 2014, Denton County Sheriff's Deputy David Linnell (“Linnell”)[1]responded to a 911 call in Providence Village, Texas. The complainant reported a harassing phone call by an unknown male caller who threatened to kill the homeowners if they did not give him money. The caller knew the homeowners' address and their daughter's name, address, and her ex-husband's name. Linnell investigated the phone number but could only determine that it was a California number. Linnell continued the investigation by canvassing the neighborhood and checking license plates on suspicious vehicles. After leaving the complainant's house, Linnell noticed a white Dodge truck driven by Plaintiff Stephen Harz outside of the complainant's house. Linnell recognized Plaintiff, knew that he lived nearby, and knew that Plaintiff was capable of knowing the information used for threats. Plaintiff followed Linnell around the block several times before Linnell reported the suspicious activity to other officers.

         Deputy Brice Hicks (“Hicks”) responded and stopped Plaintiff shortly thereafter. Hicks commanded Plaintiff multiple times to show his hands. After what Hicks claims were furtive movements by Plaintiff, Hicks drew his weapon and ordered Plaintiff to comply. Plaintiff urges both his hands were visible with his right hand on top of the steering wheel and his left holding a cell phone to his ear. Plaintiff requested a supervisor, rolled up his window, and refused to communicate further with Hicks.

         Corporal Charles Craft (“Craft”) arrived within a minute, approached from the passenger's side of the truck, and identified himself to Plaintiff as a supervisor. Craft demanded Plaintiff show him his hands. After Plaintiff failed to comply with several requests, Hicks opened the driver's side door and ordered Plaintiff out of the truck. Plaintiff did not comply. Moments later, Craft ordered Hicks to get Plaintiff out of the truck. Hicks reached across Plaintiff's body then dragged him from the vehicle.

         Once Plaintiff was out of the vehicle, he continued to resist orders. Three officers lifted Plaintiff to his feet and coerced his hands into handcuffs. Hicks then took Plaintiff away from the truck and patted him down in front of Hicks's squad car. Hicks then placed Plaintiff in the back of the squad car.

         Linnell recognized Plaintiff on April 16 because of a previous encounter. On March 31, 2014, Linnell issued Plaintiff a ticket for an oversized trailer illegally parked in a residential neighborhood. The next day, Plaintiff filed a complaint with the Town of Providence Village (the “Town”) and a grievance with the Denton County Sheriff's Office (“County” or “Sheriff's Office”) alleging that Linnell was harassing him. Plaintiff was scheduled to appear in court for his ticket on April 16, the same day as this incident. At the time of the incident, Linnell knew about the complaint with the Town, but did not know of the grievance with the County. Deputy Timothy Goodwin (“Goodwin”) investigated the grievance and asserts that the grievance was closed without Linnell ever being informed.

         On January 26, 2017, Defendants filed their motion for summary judgment, which included videos of the incident (Dkt. #25). On February 3, 2017, Plaintiff filed an opposed motion for extension of time to file response (Dkt. #26). On February 9, 2017, Plaintiff filed a response to the motion for summary judgment (Dkt. #27). On February 13, 2017, Defendants filed a response to the motion to extend time (Dkt. #28). On February 15, 2017, Defendants filed a reply to the motion for summary judgment (Dkt. #29).

         LEGAL STANDARD

         The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court “must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).

         The party seeking summary judgment bears the initial burden of informing the court of its motion and identifying “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden of proof on a claim or defense for which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge the burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49). A nonmovant must present affirmative evidence to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257. Mere denials of material facts, unsworn allegations, or arguments and assertions in briefs or legal memoranda will not suffice to carry this burden. Rather, the Court requires “significant probative evidence” from the nonmovant to dismiss a request for summary judgment. In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) (quoting Ferguson v. Nat'l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider all of the evidence but must “refrain from making any credibility determinations or weighing the evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

         ANALYSIS

          Evidentiary Objections

         Plaintiff objects to paragraphs 5-7 of Exhibits 1-5 to Defendants' Motion for Summary Judgment. Plaintiff argues that the respective affiants do not have personal knowledge of the events described because each specifically states that he reviewed the event report and makes reference to specific times in the recordings (Dkt. #27 at p. 2-3). Plaintiff's objection is overruled.

         A party may submit affidavits in support of a motion for summary judgment so long as they are based on personal knowledge. Fed.R.Civ.P. 56(c)(4). Here, the affiants only reference the event reports and videos as a means of refreshing their memories. Each affiant, except for Goodwin, is clearly shown in the videos and only testifies to his involvement. Contrary to Plaintiff's assertion, their recitation of information is not verbatim across all five affidavits. Rather, each testifies to his own involvement while making reference to the time that it happened, which the video serves as an aid. This is permissible. Plaintiff's objection is overruled.

         Plaintiff next objects to Defendants' Motion for Summary Judgment as a whole (Dkt. #27 at p. 3). Plaintiff claims that the case has been bifurcated at the present time and the sole issue before the Court is qualified immunity as to the individual officers. Plaintiff does not cite an order requiring such bifurcation. In a separate motion, Plaintiff requests additional time to respond to Defendants' motion (Dkt. #26). In the motion, Plaintiff also claims that discovery has been limited to matters directly affecting qualified immunity.

         Plaintiff's motion is really a motion for continuance under Rule 56(d). Rule 56(d) allows the nonmovant on a summary judgment motion to ask the court for additional time to obtain affidavits or declarations or to take discovery before the Court rules on summary judgment. Fed.R.Civ.P. 56(d). However, Rule 56 does not require any discovery to take place before summary judgment can be granted. Id.; Baker v. Am. Airlines, Inc., 430 F.3d 750, 756 (5th Cir. 2005). Thus, the rule permits more time to respond to summary judgment only when the party cannot present facts essential to justify its opposition to the motion for summary judgment. Id. The trial court has wide latitude in granting extra time. Johnson v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 308 (5th Cir. 2004). To support a request for continuance, Plaintiff must show: “(1) why he needs additional discovery and (2) how that discovery will create a genuine issue of material fact.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 (5th Cir. 2006). Further, a party must exercise due diligence in discovery. Baker, 430 F.3d 750, 756 (5th Cir. 2005) (citing Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992)).

         Plaintiff demonstrates several unfortunate events that caused his inability to participate in discovery. However, Plaintiff does not demonstrate how he has attempted discovery or how any anticipated discovery will create a genuine issue of material fact. Plaintiff's own participation is not necessary for his attorney to conduct basic discovery. Defendants represent that Plaintiff has not complied with his Rule 26 disclosure requirements, has not conducted any written discovery, and has not designated any expert witnesses-the deadline for which passed on October 17, 2016 (Dkt. #17). Plaintiff's failure to designate any expert witnesses is especially problematic for his burden to overcome Defendants' entitlement to qualified immunity and to prove his back injuries as alleged. Further, while Plaintiff may have been limited in his ability to depose witnesses and advance his case, he has not been so limited in his filing of a response. Part of Plaintiff's allegations from the very beginning has been that he filed a number of complaints with the Town and County regarding Linnell. Plaintiff has also alleged from the beginning that he suffered back pain and saw a doctor for treatment shortly after the event. It has now been three years since Plaintiff filed his grievances with the Town and County and since he allegedly visited the doctor. Nevertheless, Plaintiff has not provided records to support either of those allegations as part of his response to summary judgment. Besides vague assertions, Plaintiff has not shown how any further discovery will create a genuine issue of material fact or what form that discovery would take. Further, he has not been diligent in discovery.

         Contrary to Plaintiff's claim, Defendants would be prejudiced by an extension of time to respond. On June 30, 2016, Defendants produced to Plaintiff a flash drive of voluminous documents, including the videos of Plaintiff's encounter with police (Dkt. #13). Defendants expended a substantial amount of time complying with discovery obligations and filing for summary judgment. Although the Court abated pretrial deadlines on April 20, 2017, Defendants would still be prejudiced by being required to participate in additional discovery and refile summary judgment because of Plaintiff's inability to prosecute for nearly year. Therefore, Plaintiff's objection to summary judgment is overruled and motion for extension of time to respond is denied.

         Further, as discussed below, the Court finds that the evidence presented by Defendants shows a clear entitlement to qualified immunity, thus making discovery as to policies or practices of the County moot ...


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