OSCAR ORTEGA, ROGGIE LAW, STEVEN MURDOCK, AND DON EGDORF, Appellants
ALAN PEAN, Appellee
Appeal from the 127th District Court Harris County, Texas
Trial Court Case No. 2016-43519
consists of Justices Lloyd, Kelly, and Hightower.
working off-duty as security officers at St. Joseph Medical
Center("SJMC"), two City of Houston
Police Department ("HPD") officers tasered and shot
Alan Pean in his hospital room while he was in the throes of
a mental health episode. Pean sued the two officers for the
use of excessive force under 42 U.S.C. § 1983
("section 1983"). He also brought claims against
two additional HPD officers for fabrication of evidence under
section 1983 and for malicious prosecution and civil
conspiracy under Texas common law, alleging the officers
worked with SJMC to file charges against him to exonerate
their colleagues, HPD, and SJMC.
interlocutory appeal,  we consider whether the trial court erred
in denying the four individual police officers' motion
for summary judgment based on qualified immunity from
Pean's excessive force and fabrication of evidence
claims, and official immunity from his malicious prosecution
and civil conspiracy claims.
reverse and render in part and affirm in part.
August 26, 2015, Pean, who is bipolar, began experiencing
what he described as "a psychotic episode,"
including delusional thoughts and mania. As the episode
escalated, Pean began to believe that there were people after
him, and he was about to be captured. He decided he needed to
escape his apartment, so he got into his car and began
driving. In a moment of clarity, Pean decided he needed his
medication, so he began driving to SJMC.
security video of the street outside of SJMC captured Pean
driving up onto a sidewalk and hitting several cars near
pedestrians before coming to a stop by crashing into the
was taken into SJMC, where he was examined and then admitted
for overnight observation. The next morning, SJMC ordered
Pean discharged, and a nurse informed him that he should take
a shower and get dressed. Pean was still experiencing
symptoms of his psychotic episode, including mania and
anxiety. According to his testimony, he showered, and
although he had come to SJMC with only jeans and a shirt,
began looking for a suit to wear because he believed he was
going to be on television. When he could not find a suit, he
left his room, naked, to ask for help finding one.
N. Sitompul told him to go back into his room, and he
complied. But shortly thereafter, he came out of his room
naked again, which he did "about three or four more
times," each time returning to his room when told to do
so. Although she did not feel threatened by his behavior,
Nurse Sitompul called hospital security.
Officers R. Law and O. Ortega received the call asking them
to report to Pean's room because he was naked and walking
in and out of his room. Willie Jones, a retired pastor and
hospital volunteer, accompanied them to Pean's room but
stayed outside. When they arrived on Pean's floor, Law
and Ortega told Nurse S. Contreras that they had come in
response to a call, and she directed them to Pean's room,
asking them "to let [Pean] know that it's not
appropriate to come out of the room naked."
narrative is contained in his deposition testimony. According
to Pean, Officers Law and Ortega entered the room and began
"loudly" asking for things, and
"screaming" things that were unintelligible to him.
He did not understand that they were security officers. When
Pean did not respond, Ortega started clapping his hands
together loudly and continued shouting commands at Pean. Law
walked out of the room to ask the nurses what Pean's name
was, and he returned telling Ortega that it was
"Alan." Ortega continued shouting commands at Pean,
and after "a certain amount of time," charged at
Pean. Pean then "pushed him to the side," and as he
began to turn toward the door, Law shot him with a taser.
Pean felt "excruciating pain" and roared and
screamed. He stumbled, and as he was falling to his left
knee, while the taser was still administering shock, Ortega
stood up, drew his gun, and shot Pean in the chest. Pean felt
a "force jolt [his] body to the right," and the
next thing he remembered was coughing up blood and losing
Law and Ortega presented evidence describing a markedly
different version of what happened in Pean's hospital
room. They rely primarily on their accounts of the incident,
as reflected in their deposition testimony and sworn police
to Officer Ortega, when he and Officer Law entered Pean's
hospital room, Pean was "playing with the oxygen
valves." Ortega asked him to step away from the valves,
put his clothes on, and get in bed, but Pean did not pay
attention or even look at Ortega. Law went out of the room to
ask Pean's name, which Law shouted from the hall to
Ortega. Ortega then clapped his hands together and told Pean
to stay in the room and get dressed because someone was
coming to pick him up. Pean then said to Ortega,
"I'm going to get you." Pean clapped his hands
and pointed at Ortega. He then charged at Ortega and punched
him in the chest. Ortega grabbed Pean by the shoulder and
called to Law. According to Ortega, he and Law pushed Pean
away from Ortega. Pean then tried to leave the room, but they
told him to relax and stop resisting. They tried to grab him
but he was too slippery with sweat.
then started punching Officer Ortega, and Ortega punched
back. Ortega testified that this happened near the bed, but
that they were never on the bed. When Pean hit Ortega in the
head, Ortega felt his "skin just pop" and
"started blacking out," but he never fell to the
floor. When he turned around, Ortega saw that Pean had
Officer Law in a headlock and was hitting him. Ortega ran and
jumped on Pean's back, and Pean said to him, "Now
I'm really going to hurt you. I'm going to hurt you
bad." Law walked toward the door, and Pean
"bucked" Ortega off of his back. Law called to
Ortega to get out of the way and discharged his taser into
Pean's chest. Pean "stumbled,"
"roared," and started pulling on the tasers and
"launching" toward Law. While the taser was still
administering shock, Ortega shot Pean in the chest with his
pistol. Ortega walked out of the room and fainted.
Law testified that when he and Officer Ortega arrived at
Pean's room, Pean was "just standing there . . .
facing the wall." Ortega asked Law to get Pean's
first name, so he left the room and asked a nurse for
Pean's first name. When he returned to Pean's room,
he saw Pean on Ortega's back, striking his upper body
with his fists from behind. Law tried to pull him off of
Ortega, but Pean was too slippery with sweat. Pean then hit
Law in the face, knocking him to the ground. Ten to fifteen
seconds later, Pean began hitting Law in the head from
behind. Law then saw Pean and Ortega "tussle" and
fall to the bed, where both men were punching. Law stood and
told Ortega to get up. Ortega pushed Pean off of him and
stood up, then fell to one knee. Pean then got off of the bed
and ran toward them, at which point Law shot his taser. Pean
"screamed," "roared," and
"stumbled," but kept moving toward them. While the
taser was still firing into Pean, Ortega shot Pean.
Officer Law and Officer Ortega testified that Jones remained
in the hallway the entire time they were in Pean's room.
Ortega testified that the door to Pean's room was always
open, but Law could not recall. Both Law and Ortega also
testified that Pean used only his fists in the attack;
neither officer was struck with a wall fixture, tray table,
or piece of furniture.
security video of the hallway outside of Pean's room
captured Officer Ortega crawling on the floor out of
Pean's room. Both Law and Ortega were taken to the
emergency room, where Ortega was given stitches for the cut
on his head, and both Ortega and Law were diagnosed with
concussions and discharged that same day.
Contreras and Sitompul testified that upon seeing Officer
Ortega leave Pean's room, they rushed to attend to Pean,
who was on the floor with blood coming out of his mouth,
taser wires still connected to him. Law handcuffed Pean.
Nurse Contreras asked, "Did y'all shoot him,"
and Law responded that they had not. But the nurses saw the
gunshot wound, and rushed Pean into emergency surgery.
Lawrence Root testified that he visited Pean in SJMC's
intensive care unit three days after the incident. He stated
that, at that time, Pean did not remember fighting with
Officers Law and Ortega, and he was surprised to learn that
he had been shot. He also stated that Pean had amnesia and
that his memory could return over time.
summary judgment evidence also included the affidavit of
Willie Jones, the SJMC volunteer minister who accompanied
Officers Law and Ortega to Pean's hospital room. Jones
stated, among other things, that Pean "was picking up
pieces of wood, stuff from the walls, swinging and hitting
Officer Ortega," and "Officer Ortega did not shoot
[Pean] until the guy was getting the best of him and was
response to Jones's affidavit, Pean presented evidence
that Jones suffered from dementia at the time of the
incident. Mary Jones, Willie Jones's wife, testified that
Jones was diagnosed with dementia in 2010. Pean also pointed
out that Nurse Contreras testified that "once the fight
broke out," Jones closed the door, and stayed outside
the room for the rest of the encounter, "[h]olding on to
the door handle."
Murdock was the homicide detective in charge of HPD's
criminal investigation of the tasering and shooting. Murdock
testified that he visited SJMC shortly after the incident
occurred. He went to Pean's hospital room, where he
observed "articles scattered everywhere," and
"a lot of debris." He stated that it "looked
like a tornado had gone through" the room. Murdock also
went to the emergency room, were Officers Law and Ortega were
being treated for their injuries. He spoke with his partner,
his lieutenant, and "a nurse or two" "to get
the official diagnosis behind the injuries to the
officers." Although Ortega testified that he did not
speak with Murdock at the hospital, and Law could not recall,
Murdock stated that he asked both Law and Ortega "if
they were okay, if they were injured." He did not ask
them what had happened. As a result of this investigation,
Murdock determined that Pean had assaulted Law and Ortega.
that day, Sergeant Murdock received Officer Law's
"use of force" statement "detail[ing] exactly
what had happened." Law's statement did not state
that Pean had hit him or Ortega with objects.
following day, August 28, 2015, Sergeant Murdock telephoned
Willie Jones, but he did not record the call. According to
Murdock, Jones stated that Pean had assaulted Officers Law
and Ortega with tray tables and things he ripped off the
Murdock then contacted the Harris County District
Attorney's ("DA") Office to inquire whether an
Assistant District Attorney ("ADA") would accept
charges for two first-degree aggravated assault of a public
servant felony charges against Pean. That same day, August
28, 2015, the ADA filed charges against Pean, alleging that
he attacked Officers Law and Ortega with deadly weapons,
including "a piece of furniture," "his
hands," "a wall fixture," and "a tray
table." Law and Ortega later signed sworn statements,
neither of which stated that Pean had hit them with tray
tables, wall fixtures, or other foreign objects.
aggravated assault charges were ultimately no-billed by a
Harris County grand jury.
next to the reckless driving charges Officer Egdorf
recommended and the district attorney ultimately filed on
December 15, 2015. Originally, Sergeant Murdock had
considered charging Pean with DWI.
night of the incident, HPD Officer K. Roy, a drug recognition
expert, noted that Pean "[s]howed no signs of
intoxication." Approximately one week later, Sergeant
Murdock asked Officer Egdorf, who is a drug recognition
expert, to "look at this case as a possible DWI
Egdorf asked C. Cornelius, an investigator with the DA's
Office, to "run a prescription history" for Pean.
Cornelius informed Egdorf that Pean had no prescription
history. In response, Egdorf emailed Cornelius,
"Good.·It makes it hard to explain the Xanax he
had in him." Testing on Pean's biological specimens
had not been completed when Egdorf sent this email. Egdorf
explained that his email chain with Cornelius involved two
cases, Pean's and that of another person, and that the
comment pertained to the other person.
Egdorf's deposition testimony reflects that for the next
three months, he was in contact with corporate executives of
IASIS Healthcare Corporation
("IASIS") and HPD homicide investigators. In one
email to his captain, M. May, he stated, "I spoke to Tim
Davidson [IASIS executive] numerous times, explained why we
cannot file a case without tox results . . . . He feels the
DWI case will save the hospital from having to close or lose
funding, so ...