United States District Court, E.D. Texas, Sherman Division
STEPHEN L. HARZ
DENTON COUNTY, TEXAS, DAVID E. LINNEL, BRYCE A. HICKS, SR., CHARLES H. CRAFT, JESSE D. WYMAN, JOHN DOE No. 4
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE
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.
April 16, 2014, Denton County Sheriff's Deputy David
Linnell (“Linnell”)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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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
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.
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
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.
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 ...