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Ortega v. Pean

Court of Appeals of Texas, First District

April 11, 2019

ALAN PEAN, Appellee

          On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2016-43519

          Panel consists of Justices Lloyd, Kelly, and Hightower.



         While working off-duty as security officers at St. Joseph Medical Center[1]("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.[2]

         In this interlocutory appeal, [3] 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.[4]

         We reverse and render in part and affirm in part.


         The Incident

         On 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.

         Hospital 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 hospital building.

         Pean 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.

         Nurse 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.

         HPD 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."

         Pean's 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 consciousness.

         Officers 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 reports.

         According 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.

         Pean 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.

         Officer 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.

         Both 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.

         Hospital 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.

         Nurses 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.

         Dr. 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.

         The 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 choking him."

         In 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."

         The Investigation

         Sergeant 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.

         Later 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.

         The 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 wall.

         Sergeant 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.

         The aggravated assault charges were ultimately no-billed by a Harris County grand jury.

         We turn 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.

         On the 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 case."

         Officer 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.

         Officer Egdorf's deposition testimony reflects that for the next three months, he was in contact with corporate executives of IASIS Healthcare Corporation ("IASIS")[5] 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 ...

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