United States District Court, E.D. Texas, Sherman Division
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 United States Magistrate Judge pursuant to 28
U.S.C. § 636. On September 8, 2017, the report of the
Magistrate Judge was entered containing proposed findings of
fact and recommendations (see Dkt. #75) that
Defendant David Eric Casebolt's (“Casebolt”)
Motion for Summary Judgment (the “Motion”) (Dkt.
#53) be GRANTED IN PART and DENIED
IN PART. The Court recommended that Defendant
Casebolt's motion for summary judgment be granted as to
Plaintiff's state law claims and denied as to
Plaintiff's unlawful arrest and excessive force claims
pursuant to 42 U.S.C. § 1983.
Casebolt filed objections to the report (Dkt. # 83). The
Court has made a de novo review of the objections
raised by Defendant Casebolt and is of the opinion that the
findings and conclusions of the Magistrate Judge are correct
and the objections are without merit as to the ultimate
findings of the Magistrate Judge. The Court hereby adopts the
findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court.
lawsuit arises out of the McKinney Police Department's
(“MPD”) investigation of a reported disturbance
and/or potential fight at a neighborhood pool party on June
5, 2015 (Dkt. #50 at 4). D.B. (“D.B.” or
“Plaintiff”) was a minor on this date and had
allegedly been invited by a resident to attend the pool
party. (Dkt #50 at 7). Defendant Casebolt is an
officer for the MPD and was at the scene. See Dkt.
#50. Plaintiff alleges that Defendant Casebolt
unlawfully detained her and used excessive force in so doing
(see generally Dkt. #50). Plaintiff filed this
lawsuit against Defendant Casebolt, alleging a Section 1983
claim for false arrest and excessive force, as well as state
law claims. Id.
22, 2017, Casebolt filed the present Motion, arguing: (1)
Plaintiff's Section 1983 claims for false arrest and
excessive force are subject to qualified immunity; and (2)
Plaintiff's claims under Texas law are barred by
statutory immunity. See Dkt. #53. The Magistrate
Judge found there were a number of genuine issues of material
fact related to whether a reasonable officer would believe
D.B. committed or was suspected of a crime; whether D.B.
resisted or struggled when Casebolt attempted to detain or
arrest her; and whether the force used was excessive to the
need; and concluded that Casebolt is not entitled to
qualified immunity at this stage of litigation. Casebolt does
not object to the Magistrate Judge's finding that
Plaintiff's state law claims are barred by the Texas Tort
Claims Act. See Dkt. #75 at 11.
THE MAGISTRATE JUDGE'S RELIANCE ON THE EVIDENCE
first objects that the Magistrate Judge improperly relied on
his and Plaintiff's “subjective intentions or state
of mind” to determine that Casebolt was not entitled to
qualified immunity on Plaintiff's claim for wrongful
detention and/or wrongful arrest under Fourth Amendment
standards. See Dkt. #83 at 1-5. However, the Court
finds that Casebolt misconstrues the summary judgment
evidence and the Magistrate Judge's reliance on that
evidence to support her conclusions.
the federal rules, declarations may be cited as support for a
factual assertion. Fed.R.Civ.P. 56(c)(1)(A), (c)(4).
Generally, a declarant is competent to testify when her
testimony is grounded in observation or other personal
experience and is not based on speculation, intuition, or
rumors about matters remote from that personal experience.
See Visser v. Packer Eng'g Assocs., 924 F.2d
655, 659 (7th Cir. 1991). Contrary to Casebolt's flawed
interpretations, Plaintiff's statements in her
declaration (“D.B. Declaration”) (Dkt. 64-1) that
she did not disobey Defendant Casebolt's orders to leave
but rather was trying to comply (id. at ¶¶
11-12) are factual statements about the events in question
from Plaintiff's perspective, not “subjective
intentions” as Casebolt argues.
similarly complains that the Magistrate Judge should not have
considered “subjective and immaterial” statements
in Casebolt's own declaration (“Casebolt
Declaration”) (Dkt. 53-1), specifically statements that
he ordered people to leave if they were not running or acting
suspicious and then later detained D.B. because he thought
she may have been involved in the disturbance and had
disobeyed his orders (id. at ¶¶ 14,
20-21). See Dkt. #83 at 1-2. Although the report
mentions the statements about which Casebolt complains, the
report specifically states the Magistrate Judge's
conclusion-that there was a factual issue surrounding
D.B.'s actions as they related to reasonable suspicion to
detain, or probable cause to arrest, D.B.-was based on the
YouTube Video and Casebolt's Dashcam video. See
Dkt. #75 at 17. Thus, the Court finds the Magistrate
Judge's finding is properly based on evidence of the
objective reasonableness of the actions in question and not
the subjective intent of either Plaintiff or Defendant.
Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir.
1994). Accordingly, Defendant Casebolt's objections are
Casebolt also objects to the Magistrate Judge's reliance
on D.B.'s assertions that she was not resisting or
struggling while at the same time stating she was
“writhing in pain” (Dkt. 64-1, D.B. Decl. at
¶ 17). See Dkt. #83 at 5-6. Casebolt argues it
was erroneous for the Magistrate Judge to rely on and accept
D.B.'s assertion that she was not struggling or
resisting. However, the report indicates the conclusion was
not based on just one piece of evidence. See Dkt.
#75 at 20. The report makes clear that the Magistrate
Judge's finding was based not only on the D.B.
Declaration and the Casebolt Declaration, but also on the
YouTube Video and Casebolt's Dashcam video. Id.
the Magistrate Judge was required to view the facts in the
light most favorable to the non-moving party and draw all
reasonable inferences in her favor. Griggs v.
Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing
Devilee v. Marcantel, 567 F.3d 156, 163-64 (5th Cir.
2007)). “[A] judge's function at summary judgment
is not to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Tolan v. Cotton, 134 S.Ct. 1861, 1866
(2014) (citations and quotations omitted). Although a