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Sipe v. Norris

United States District Court, N.D. Texas, Dallas Division

March 6, 2019

SCOTT SIPE, Plaintiff,
v.
MICHAEL NORRIS et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.

         Before 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 Defendants' Motion.

         Background

         Plaintiff 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).

         In his 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.

         Then, 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 evicted. Id.

         Based 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 Matters

         As a 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.”).

         Plaintiff 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 extraordinary circumstances.

Lacher v. West, 147 F.Supp.2d 538, 539 (N.D. Tex. 2001).

         Plaintiff, 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 reason.

         Legal Standard

         “Qualified 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).

         A court 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 ...


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