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Washington ex rel. J.W. v. Katy Independent School District

United States District Court, S.D. Texas, Houston Division

June 5, 2019

LORI WASHINGTON, ex rel. J.W. Plaintiffs,
v.
KATY INDEPENDENT SCHOOL DISTRICT and ELVIN PALEY, Defendants.

          MEMORANDUM AND OPINION

          LEE H. ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE

         A public school officer in the Katy Independent School District's police department tased and handcuffed J.W., a 17-year-old special-education student. His mother, Lori Washington, sued the Katy Independent School District and School Resource Officer Elvin Paley for violating of J.W.'s federally protected rights. (Docket Entry Nos. 1, 12). After discovery, the Katy School District and Officer Paley moved for summary judgment, Ms. Washington responded, and the Katy School District and Officer Paley replied. (Docket Entry Nos. 28, 29, 31).

         Based on the motion, response, and reply; the summary judgment record; the parties' arguments at the motion hearing; and the applicable law, the court grants the defendants' summary judgment motion for all claims except the § 1983 claim against Officer Paley. (Docket Entry No. 28). That claim remains.

         The reasons for these rulings are detailed below.

         I. Background

         In November 2016, J.W. was enrolled at the Mayde Creek High School in the Katy Independent School District. He was diagnosed as emotionally disturbed and intellectually disabled in ways that impacted “his daily functioning, including his ability to communicate, control his emotions, and access regular educational services without accommodations.” (Docket Entry No. 12 at ¶¶ 31-32). According to the police incident report, J.W. was around 6'2” and weighed 250 pounds. (See Docket Entry No. 28-4 at 3, 11).

         On November 30, 2016, J.W. was in a classroom playing a card game with another student. They started bickering, which developed into what J.W. described as “being bullied and harassed.” (Docket Entry No. 29-2 at ¶ 6; see Docket Entry No. 28-6 at 2; Docket Entry No. 12 at ¶ 34). According to an unsworn statement by Ashley Lucas, a school staff member, J.W. cursed and yelled, then punched the other student in the chest and knocked him out of his chair. (Docket Entry No. 28-6 at 2). J.W. left the classroom and went down the hallway, continuing to yell and curse. (Id.). J.W.'s teacher emailed Assistant Principal Denise Majewski, who was responsible for the school's special-education students, to alert her of the situation. (Docket Entry No. 28-8 at 2, 6).

         J.W. took himself to a “chill out” classroom that he used when he was upset. He found a student already there. (Docket Entry No. 29-2 at ¶¶ 8-9). Coach Larry Hamilton was standing outside that classroom talking with a student and saw J.W. throw a desk across the room, shouting that he “hated” the school. (Docket Entry No. 28-7). Hamilton saw J.W. kick the door, leave the occupied “chill” classroom, and continue down the hallway toward a door leading out of the school building. (Id.). School officials blocked him from leaving the building, and events escalated from there. (See Docket Entry No. 28-8 at 2-3; Docket Entry No. 28-9 at 2).

         J.W.'s description of this first stage of the events is different. (Docket Entry No. 29-2). He did not mention in his declaration throwing a desk or cursing. He stated that after leaving the “chill-out” classroom, he walked “towards a door leading to a breeze way between buildings on the campus, ” where he was stopped by a staff member who “loosely block[ed] the doors.” (Id. at ¶¶ 9-11). A female Katy Independent School District police officer arrived soon after. (Id. at ¶ 11). J.W. stated that he told the staff member blocking the doors that keeping him inside was just making him more upset. He asked to leave so that he could “cool down.” (Id. at ¶¶ 13, 14). Minutes later, he “calmly walk[ed] toward the door nearest [him] and attempt[ed] to go outside, ” not touching anyone. (Id. at ¶ 16).

         Assistant Principal Majewski learned of the situation when J.W. left the “chill out room” and was in the hallway. (Docket Entry No. 28-8 at 2). Officer Elvin Paley, a school resource officer, stated in his declaration that Assistant Principal Majewski radioed for assistance to come help keep J.W. inside the school building. (Docket Entry No. 28-1 at ¶ 3). When Assistant Principal Majewski arrived at the scene, a school security guard, John Oglesby, and Coach Hamilton were trying to talk J.W. out of leaving the building. Security guard Oglesby was blocking the door. (Docket Entry No. 28-8 at 2; see Docket Entry No. 28-9 at 2). Assistant Principal Majewski stated in her declaration that J.W. was “direct[ing] profanity toward the staff, ” and that she was concerned about J.W. leaving because the staff “would lose all control over him, and he might get injured.” (Docket Entry No. 28-8 at 2).

         Officer Paley's body camera recorded J.W.'s interactions with the officers and school staff after that point. The recording shows J.W. pacing in front of the door leading outside the school building and complaining to the school staff member blocking the door that he wants to leave so he could walk home and calm down. He is not yelling at the staff members, but the video recording shows him looking agitated and occasionally raising his voice. The recording then shows J.W. starting to push the door open. (Docket Entry No. 28-10 at 12:45:54). The staff member pushes back on the door to keep J.W. inside, but it does not appear that J.W. pushes the staff member, as the Katy School District contends. Within about five seconds of J.W. pushing on the door, Officer Paley moves toward J.W. and the staff member. Officer Paley's body camera then becomes dark as he pushes up against J.W.'s body. Both Officer Paley and the staff member tell J.W. to “calm down” several times. A male voice threatens J.W. with tasing. About 20 seconds later, the male voice says, “You are not going to get through this door, just relax.” (Id. at 12:46:05, 12:46:26). J.W. then begins screaming.

         The video becomes clear again as Officer Paley moves away from J.W. The recording shows two individuals holding J.W. Approximately 10 seconds after Officer Paley tells J.W. to relax, Officer Paley tells the individuals holding J.W. to “let him go, ” and fires the taser. (Id. at 12:46:37). J.W. immediately screams and falls to his knees. About 5 seconds later, the video recording shows Officer Paley beginning to “drive stun” J.W. near his bottom right torso, and then on J.W.'s upper back. (Id. at 12:46:41).[1] “Drive stun” means to hold the taser against the body without deploying the prongs. J.W., still on his knees, then falls to the ground completely. The taser is used on J.W. for approximately 15 seconds. (Id. at 12:46:56). This use of the taser on J.W.'s upper back continues after J.W. is lying face down on the ground and not struggling.

         After Officer Paley stops tasing J.W., Officer Angela Molina, another school resource officer, places handcuffs on J.W.'s wrists, behind his back. (Id. at 12:47:11). Less than a minute later, while J.W. lies panting on the ground, Officer Paley points the taser at J.W.'s head, yelling, “I did not want to tase you, but you do not run shit around here, you understand?” (Id. at 12:47:50).

         According to Officer Paley, he used the taser the second time to drive stun J.W. because the first time did not have enough effect. This second use of the taser brought J.W. to a prone position on the floor with his hands under his chest. (Docket Entry No. 28-1 at ¶ 7).

         J.W. stated that he began to scream and cry as Officer Paley tased him, and that Officer Paley kept tasing him “approximately six to eight times” even after he was on the ground. (Docket Entry No. 29-2 at ¶¶ 24, 26). According to J.W., when paramedics arrived, they had to remove a taser prong “embedded . . . near [his] right rib cage.” (Id. at ¶ 47).

         J.W. thought he was under arrest. He urinated and defecated on himself after being tased. (Id. at ¶¶ 29, 34). J.W. stated that as he was being handcuffed, he began having difficulty breathing and, even after being moved to his side, he felt like he was going to die. (Id. at ¶¶ 36, 37). It was only when he was allowed to sit upright that he was able to “take a big gulp of air.” (Id. at ¶ 38).

         Officer Paley stated that he called dispatch and asked for emergency medical services. (Docket Entry No. 28-1 at ¶ 9). Officer Paley also told security guard Oglesby to get the school nurse. (Id. at ¶ 8; Docket Entry No. 28-8 at 3, ¶ 5). Officer Paley's body camera video recording shows school nurse Shirley Willett treating J.W. The recording also shows the school officers and staff responding to J.W.'s reports of difficulty breathing. (Docket Entry No. 28-10; see also Docket Entry No. 28-1 at ¶ 9; Docket Entry No. 28-8 at 3).

         EMS arrived around 1:00 p.m., about 15 minutes after the tasing. (Docket Entry No. 28-4 at 4, 14, 23; Docket Entry No. 28-1 at ¶ 10; Docket Entry No. 28-8 at ¶ 5). J.W. was taken back to the school's security office around 1:30 p.m. (Docket Entry No. 28-1 at ¶ 10; Docket Entry No. 28-8 at 3). According to Vice-Principal Majewski, she tried to contact Ms. Washington shortly after that. (Docket Entry No. 28-8 at 3). J.W. stated that the school did not contact his mother until “the female paramedic inform[ed] the school officials that they should have contacted [his] mother immediately.” (Docket Entry No. 29-2 at ¶ 46; id. at ¶¶ 43, 49). Vice-Principal Majewski stated that when she called Ms. Washington's phone, it would not accept new messages, J.W.'s emergency-contact number did not work, and emails to Ms. Washington went unanswered. (Docket Entry No. 28-8 at 3). At 2:00 p.m., Ms. Washington called Vice-Principal Majewski and said that she was on her way to the school. (Id.).

         Before Ms. Washington arrived, Vice-Principal Majewski received a call from the Westlake Emergency Medical Services explaining that another ambulance was going to the school, at Ms. Washington's request. (Docket Entry No. 28-8 at 3). Ms. Washington had contacted EMS because Vice-Principal Majewski had not informed her that another ambulance had already been to the school and EMS had assessed J.W. (Docket Entry No. 12 at ¶¶ 86-87; Docket Entry No. 29-1 at ¶¶ 24-25). The second ambulance left the campus to take J.W. to the hospital at 3:05 p.m. (Docket Entry No. 28-8 at 3). Neither party describes the treatment J.W. received at the hospital.

         Ms. Washington alleges that J.W. was not a danger to himself or others when he was tased. She alleges that local school board policies allowed for detention only in limited circumstances and required no more than a disciplinary-infraction citation-not physical detention-for students who leave campus without permission. (Docket Entry No. 12 at ¶¶ 4, 30). She alleges that the Katy School District staff who worked with J.W. were aware that he was being bullied, and that they understood that “walking it off” was the best way for J.W. to cope with stressful situations. (Id. at ¶¶ 35-37).

         J.W. missed school for several months after the tasing. Ms. Washington explained that she kept J.W. home “due to fear for his safety while at school, ” and that J.W.'s “private medical providers supported [that] decision.” (Docket Entry No. 29-1 at ¶ 34). She stated that “J.W. suffer[ed] from intense anxiety and PTSD” because of the tasing, “has lost his trust for police officers, ” and was “traumatized by the experience, ” asserting that the video recording showed that “the taser touched J.W. seven times.” (Id. at ¶¶ 35, 43, 45). She stated that school and Katy School District staff would not talk to her about the incident, but she was able to watch a video recording provided by the superintendent's office. (Id. at ¶ 35).

         Ms. Washington and Vice-Principal Majewski agree that the staff and Ms. Washington were unable to schedule a meeting until April 2017. (Id. at ¶ 36; Docket Entry No. 28-8 at 3-4). Ms. Washington stated that the staff abruptly cancelled that meeting when she arrived with an attorney. (Docket Entry No. 29-1 at ¶ 37). According to Vice-Principal Majewski, she and other staff then tried to contact Ms. Washington, but Ms. Washington did not reliably or promptly respond. (Docket Entry No. 28-8 at 3-4).

         Vice-Principal Majewski stated that the scheduled April 2017 meeting was an Admission, Review, and Dismissal meeting, convened primarily to discuss J.W.'s absences, not to discuss the tasing. (Id. at 4). She explained that the school rescheduled the April meeting after deciding that the school's attorney should attend if Ms. Washington was going to have counsel present. (Id.). The rescheduled meeting occurred on May 22, 2017, approximately six months after the tasing. (Id.). The amended complaint alleged that the school staff “never scheduled the promised meeting to discuss the incident and continued to refuse Ms. Washington's requests to do so.” (Docket Entry No. 12 at ¶ 101).

         Ms. Washington sues Officer Paley under §§ 1983 and 1988 for discriminating against J.W. in violation of the Equal Protection Clause of the Fourteenth Amendment; for violating J.W.'s substantive and procedural due process rights to dignity, privacy, and bodily integrity; for using excessive force against J.W.; and for depriving J.W. of his right to an education under Article I of the Texas Constitution and the Fourteenth Amendment of the U.S. Constitution. (Docket Entry No. 12 at ¶¶ 124-52). Ms. Washington alleges that the Katy School District is liable for unconstitutional policies, procedures, practices, and customs, including failing to train and supervise staff, in violation of the Fourteenth Amendment; violating § 504 of the Rehabilitation Act of 1973; and failing to provide reasonable accommodations under Title II of the ADA. (Id. at ¶¶ 119-23, 153-72). Ms. Washington also alleges that the Katy School District is liable for Officer Paley's and other Katy School District employees' actions under a ratification theory. (Id. at ¶¶ 173-76).

         Each claim is analyzed below in light of the record and the applicable law.

         II. The Summary Judgment Standard

         “Summary judgment is required when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of material fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.'” Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         “Where the non-movant bears the burden of proof at trial, the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Id. (quotation marks omitted); see also Celotex, 477 U.S. at 325. Although the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). “A fact is ‘material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response.” United States v. $92, 203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

         “Once the moving party [meets her or his initial burden], the non-moving party must ‘go beyond the pleadings and by her [or his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.'” Nola Spice, 783 F.3d at 536 (quoting LHC Grp., 773 F.3d at 694). The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008); see also Nola Spice, 783 F.3d at 536.

         III. Analysis

         A. The Summary Judgment Evidence

         The defendants submitted the following summary judgment evidence:

• Officer Paley's declaration;
• Katy Independent School District Police Department Captain Kevin Tabor's declaration;
• Officer Paley's training and education record;
• Katy Independent School District Police Department's taser training materials and slideshow;
• The police report for J.W.'s tasing;
• Katy Independent School District Police Department's use of force and investigation into Officer Paley's use of the taser on J.W.;
• Katy Independent School District Police Department's report on Officer Paley's use of the taser on another student in 2017;
• Katy Independent School District Police Department's policies on the use of force and the use of tasers;
• Ashley Lucas's statement;
• Coach Larry Hamilton's sworn ...

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