United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.
the Court in this pro se civil rights action is
Defendants' Motion for Summary Judgment (ECF No. 14). For
the reasons stated, the District Court should GRANT
Scott Sipe filed this lawsuit in the 196th District Court of
Hunt County, Texas, on March 14, 2018, naming Sergeant
Michael Norris, Deputy Jon Knudson, and the Hunt County
Sheriff's Department as Defendants. Ex. 3 (ECF No. 1-3).
Defendants later removed the case to federal court under 28
U.S.C. § 1331. Notice of Removal (ECF No. 1). Pursuant
to the Court's June 27, 2018 Order (ECF No. 7), Plaintiff
timely filed an Amended Complaint, adding Hunt County Sheriff
Randy Meeks as a defendant. Am. Compl. (ECF No. 8).
live pleading, Plaintiff alleges that on March 14, 2016, he
had been drinking but stopped after he was “dropped
off.” Am. Compl. Ex. 1. Once home, Plaintiff looked for
his gun to protect himself and his family because he had
received “death threats from some males that [he] had
problems with before.” Id. When he did not
find it, he called 9-1-1 to report it as stolen, but,
Plaintiff claims, the dispatcher told him that no officers
were available to respond. Id. Plaintiff maintains
that he called 9-1-1 two more times but “was frustrated
because no one would take a report.” Id.
Plaintiff alleges, Defendants Sergeant Norris and Deputy
Knudson arrived at his home “and approached him in an
aggressive manner with tazers [sic] already drawn.”
Id. Defendants spoke to his fiancée, Kerrie
Keeling, and then told Plaintiff that they were arresting him
for abuse of 9-1-1. Id. Plaintiff contends that,
because he “failed to comply with an unlawful order,
” Defendant Norris shot him. Id. Plaintiff
further alleges that as a result of the gunshot wound to his
upper right abdomen, he suffered injury to his kidney and
large and small intestines. Id. Plaintiff contends
that because of this incident he lost his vehicle and was
on this incident, Plaintiff asserts claims against Defendants
under the First, Fourth, and Fourteenth Amendments.
Defendants answered Plaintiff's Amended Complaint and
later filed their Motion for Summary Judgment. Def. Meeks
Answer (ECF No. 10); Defs.' Answer (Defendants Norris and
Knudson) (ECF No. 11). Defendants argue that they are
entitled to summary judgment because (1) they did not violate
Plaintiff's First, Fourth, or Fourteenth Amendment
rights, and (2) they are entitled to qualified immunity.
Defs.' Br. 10 (ECF No. 15). Plaintiff responded to
Defendants' Motion, and Defendants subsequently filed a
reply. Pl.'s Resp. (ECF No. 18); Defs.' Reply (ECF
No. 22). Accordingly, the issues are fully briefed, and the
Motion is ripe for determination.
preliminary matter, Defendants object to Plaintiff's
summary judgment evidence, which consists of what appears to
be copies of medical records for Defendant Norris; affidavits
from other law enforcement officers, including a Caddo Mills
police officer and a Hunt County Sheriff's deputy; and
copies of various Texas penal statutes. Defendants argue that
this evidence is unauthenticated hearsay, and, as such, is
not competent summary judgment evidence. The Court agrees.
See Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.
1995) (citations omitted) (“Evidence on summary
judgment may be considered to the extent not based on hearsay
or other information excludable at trial.”).
also filed a surreply (ECF No. 23) consisting of three typed
pages that purport to be a letter from Plaintiff's
mother, Lori Dunham. Defendants request that the Court strike
this evidence as an improper surreply and because the
purported letter is not competent summary judgment evidence.
(ECF No. 24). Defendants' request is granted.
Once a motion is filed, the Local Civil Rules permit a
response by the nonmovant and a reply by the movant.
See Local Civil Rule 7.1. Thus, the movant is
entitled to file the last pleading. Surreplies, and any other
filing that serves the purpose or has the effect of a
surreply, are highly disfavored, as they usually are a
strategic effort by the nonmovant to have the last word on a
matter. The court has found that surreplies usually are not
that helpful in resolving pending matters, and only permits
pleadings beyond Local Civil Rule 7.1 in exceptional or
Lacher v. West, 147 F.Supp.2d 538, 539 (N.D. Tex.
as the nonmovant with respect to Defendants' summary
judgment motion, filed (1) an objection to Defendants'
motion and (2) additional evidence in support of his
objection, on September 17 and 19, 2018, respectively. These
filings constitute Plaintiff's response. Defendants filed
their reply on October 11, 2018, at which point the motion
was fully briefed. Plaintiff filed the purported letter on
October 16, 2018. Plaintiff did not obtain leave of court to
file the letter and has not shown that exceptional or
extraordinary circumstances exist to justify the filing of a
surreply. Additionally, the letter is unauthenticated hearsay
and is not competent summary judgment evidence. Accordingly,
Plaintiff's surreply will not be considered for any
immunity attaches when an official's conduct ‘does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have
known.'” White v. Pauly, 137 S.Ct. 548,
551 (2017) (per curiam) (quoting Mullenix v. Luna,
136 S.Ct. 305, 308 (2015) (per curiam)); accord Pearson
v. Callahan, 555 U.S. 223, 231 (2009); Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “A clearly
established right is one that is ‘sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.'”
Mullenix, 136 S.Ct. at 308 (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). “A right may
be clearly established without ‘a case directly on
point,' but ‘existing precedent must have placed
the statutory or constitutional question beyond
debate.'” Hanks v. Rogers, 853 F.3d
738, 746-47 (5th Cir. 2017) (emphasis added) (citing
White, 137 S.Ct. at 551). The doctrine of qualified
immunity “gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but
the plainly incompetent or those who knowingly violate the
law.” Stanton v. Sims, 571 U.S. 3, 6 (2013)
(per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 743 (2011)) (internal quotation marks omitted);
accord City & Cty. of San Francisco v. Sheehan,
135 S.Ct. 1765, 1774 (2015).
reviews a motion for summary judgment based on qualified
immunity in two steps; it must first decide “whether
the plaintiff has alleged a violation of a constitutional
right.” Charles v. Grief, 522 F.3d 508, 511
(5th Cir. 2008); see also Luna v. Mullenix, 773 F.3d
712, 718 (5th Cir. 2014), rev'd on other
grounds, 136 S.Ct. 305 (2015) (citing Tolan v.
Cotton, 134 S.Ct. 1861, 1865 (2014) (per curiam);
Flores v. City of Palacios, 381 F.3d 391, 395 (5th
Cir. 2004)). Second, the court must decide “whether the
defendant's actions violated clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Flores, 381 F.3d at
395 (citation and internal quotation marks omitted). This
requires determining “whether the defendant's
conduct was objectively reasonable in light of the clearly
established law at the time of the incident.”
Charles, 522 F.3d at 511 (citation and quotation
marks omitted). In other words, “whether it would have
been clear to a reasonable officer in the [defendants']
position that their conduct was unlawful in the situation
they confronted.” Wood v. Moss, 134 S.Ct.
2056, 2067 (2014) (quoting Sauc ...