United States District Court, N.D. Texas, Fort Worth Division
DAVID B. COLLIE, Plaintiff,
HUGO BARRON, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
for consideration the motion of defendant Hugo Barron
("Barron"} for summary judgment. The court, having
considered the motion, the response of plaintiff, David B.
Collie, the reply, the record, the summary judgment evidence,
and applicable authorities, finds that the motion should be
operative pleading is plaintiff's first amended complaint
filed April 18, 2017. Doc. 30. Pertinent to Barron, Plaintiff
27, 2016, at approximately 11:55 p.m., the City of Fort Worth
received a 911 call regarding a robbery committed by two
black males. The first suspect was in his teens or early
20's, 6'l" tall and weighed approximately 180
pounds, having a small "afro." The second suspect
was 6'4" tall and also in his teens or early
20's. Doc. 30 at 4-5, ¶ 19. Barron, an off-duty Fort
Worth Police Officer wearing his uniform and driving a police
car, searched apartment complexes in the area. Doc. 30 at 5,
¶ 20. Upon seeing plaintiff, who was 33 years old,
5'6" and 150 pounds, Barron got out of his police
car and shot plaintiff in the back seven seconds later.
Barron did not use cover, did not give clear commands, did
not call or wait for additional law enforcement personnel,
did not use additional illumination, did not warn plaintiff
he would shoot, and did not determine whether plaintiff posed
a threat to safety before shooting plaintiff. Doc. 30 at 5,
¶ 20. The bullet struck plaintiff in the back, punctured
a lung, and severed his spine. Doc. 3 0 at 6, ¶ 20.
According to internal affairs interviews, Barron and another
officer accompanying him, Vanesa Plores ("Flores"},
were yelling potentially conflicting commands at plaintiff.
Doc. 30 at 6, f 21. Plaintiff was charged with aggravated
assault on a public servant, which was ultimately resolved in
plaintiff's favor. Doc. 30 at 7, ¶ 23.
only remaining claim against Barron is for use of excessive
force. Doc, 46.
of the Motion
asserts that he is entitled to qualified immunity from the
claim asserted by plaintiff.
56(a) of the Federal Rules of Civil Procedure provides that
the court shall grant summary judgment on a claim or defense
if 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); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (198 6). The movant bears the initial
burden of pointing out to the court that there is no genuine
dispute as to any material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 325 (1986). The movant can
discharge this burden by pointing out the absence of evidence
supporting one or more essential elements of the nonmoving
party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial."
Id. at 323. Once the movant has carried its burden
under Rule 56(a), the nonmoving party must identify evidence
in the record that creates a genuine dispute as to each of
the challenged elements of its case. Id. at 324; see
also Fed.R.Civ.P. 56(c) ("A party asserting that a fact
... is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record
...."}. If the evidence identified could not lead a
rational trier of fact to find in favor of the nonmoving
party as to each essential element of the nonmoving
party's case, there is no genuine dispute for trial and
summary judgment is appropriate. Matsushita Elec.
Indus. Co. v. Zenith Radio., Corp., 475 U.S. 574,
587, 597 (1986). In Mississippi Prot. & Advocacy
Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits, interrogatories,
admissions, and depositions could not, as a whole, lead a
rational trier of fact to find for the nonmoving ...