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City of Tatum v. Clay Gossett

Court of Appeals of Texas, Twelfth District, Tyler

May 15, 2019

HON. J. CLAY GOSSETT, Respondent


          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          Greg Neeley Justice.

         Relator, the City of Tatum, Texas, filed this original proceeding to challenge an order authorizing pre-suit discovery under Texas Rule of Civil Procedure 202.[1] We deny the writ.


         In January 2019, Real Party in Interest, Linda C. Peterson, filed a verified amended petition to perpetuate testimony, in which she sought to take oral depositions and the production of documents to investigate a potential claim.[2] She specifically requested to take the depositions of the City's chief of police and the custodian of records for the City and/or the Tatum Police Department. Peterson alleged that, on May 7, 2018, she called for an ambulance on behalf of an ill friend. Peterson stated that when Tatum Police Officer Terry Dillon Loftis subsequently arrived, he forced himself into her apartment, kissed her, and sexually assault her. She alleged that (1) the City knew Loftis "exhibited indicators" of this type of behavior both before and after being hired by the City, (2) the City hired, trained, controlled, supervised, and monitored Loftis, and was negligent in doing so, (3) the City's actions were based on an official policy or custom, or lack thereof, the City actively or constructively knew that a policy or custom existed or did not exist and because of the policy or custom, or lack thereof, her constitutional rights were violated, (4) she anticipated being a party to a lawsuit involving the City, (5) she could not bring a lawsuit at the time because she did not have the requested information and documents, (6) the City was negligent in its background investigation before hiring Loftis and its failure to discover his "proclivity for this behavior" after his hiring, (7) the City failed to perform adequate screening and "reflected deliberate indifference to the risk posed by Loftis directly causing [Peterson's] injury," (8) the City's training or hiring procedures were inadequate and the City was "deliberately indifferent in adopting adequate hiring and training policies," which directly caused her injury, (9) the City failed to institute procedures to adequately monitor Loftis and its continued indifference directly caused her injury, (10) she has not brought or been a party to a suit arising out of the facts the subject of her petition, and (11) the City, the Tatum Police Department, and Loftis may have interests adverse to hers in the anticipated lawsuit.

         Peterson anticipated eliciting testimony regarding the Tatum Police Department's policies and procedures on the screening of applicants, background checks, qualifications for employment, the requirement that more than one officer be present when entering a residence, and body cameras and their availability, and the approximate number of qualified applicants per year. She alleged that the likely benefit of being allowed to take the depositions to investigate a potential claim outweighs the burden or expense of the procedure, and the information sought is essential to deciding the proper forum for further action. She requested that Respondent order the witnesses to produce discoverable information at the depositions, including any policy, procedure, or training manuals of the Tatum Police Department, and any personnel records and background checks regarding Loftis.

         At the hearing on Peterson's petition, her counsel testified that Loftis was indicted for sexually assaulting Peterson, and the trial court took judicial notice of the indictment against Loftis. During his testimony, counsel expressed that the primary reason for needing the depositions was to investigate a potential claim or suit because numerous causes of action may or may not be available, such as a Section 1983 claim in federal court. He explained that a Section 1983 claim requires that the officer acted under color of state law. Counsel testified as follows:

…before a 1983 action can be sustained, the plaintiff needs to know if there's any basis for it. Otherwise, it would be a waste of judicial resources and would be a burden on both sides and would prevent or delay justice if it was filed without a basis.
The taking of this deposition would allow a determination of whether or not there was a basis for a 1983 action. If there is no basis of jurisdiction and all the costs associated with the requirements of a 1983 litigation or at least the additional cost to prepare and litigate a Section 1983 action could be avoided. The way that these go, my experience in both prosecuting and defending these cases is, is that some of the bases for federal jurisdiction include areas such as training deficiencies, inadequate background checks, and other matters that are coupled with a pattern or patterns of activity that would lead to a federal jurisdiction under a sustainable Section 1983 action.
Because the federal courts tend to bifurcate discovery in Section 1983 actions involving state actors in due questions of first discovering the issue of qualified immunity. And so the federal courts, upon motion of defendant, which they always routinely file, will bifurcate the action and say, okay, well, first, discovery is going to be limited to the question of qualified immunity….

         Counsel explained that the parties then conduct discovery and depositions solely as to qualified immunity, which may include returning to court for resolution of whether a question relates to that particular issue. He testified that upon resolution of the qualified immunity question, the parties then conduct additional discovery and depositions. According to counsel, presuit depositions and production of documents would allow him to determine whether federal jurisdiction exists and avoid the "tens, if not hundreds, of thousands of dollars of expense on the defendant and all of that burden and prevent a potential denial or delay of justice."

         Regarding state law causes of action, counsel testified that the depositions are necessary to an election of remedies issue under Section 101.106 of the civil practice and remedies code.[3]Counsel testified that:

…And 101.106 says it is an election of remedies and that the filing of a suit under this chapter against a governmental unit constitutes an irrevocable decision by the plaintiff, and immediately and forever bars any suit of recovery by the plaintiff against any individual ...

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