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Hoke v. Anderson

United States District Court, W.D. Texas, Austin Division

June 6, 2019

SARA HOKE and AMANDA HOKE, Plaintiffs,
v.
ROBERT ANDERSON, et al., Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for summary judgment by Defendants Robert Anderson, Lewis Holland, Seth Model, Jon Bundick, Quint Sebek, and Celestin Adam (collectively, “Defendants”), (Dkt. 47), and responsive briefing, (Dkts. 54, 56). Having considered the parties' submissions, the record, and the applicable law, the Court will grant Defendants' motion.

         I. BACKGROUND

         This case concerns the use of pepper spray during a street brawl. Plaintiffs Sara and Amanda Hoke (collectively, “the Hokes”) are twin sisters who went out one evening on 6th Street during the 2016 South by Southwest festival. (1st Am. Compl., Dkt. 2, ¶ 9). At 2:00 a.m., the bars on 6th Street closed, and thousands of patrons poured into the street. As she and her sister left a bar, Sara Hoke bumped into another woman, and a fight ensued. (Id. ¶ 10; Resp., Dkt. 54, at 14). Amanda Hoke joined in the fight. (1st Am. Compl., Dkt. 2, ¶ 10).

         The Hokes allege that 17 officers responded to the fight, eight of whom surrounded the women fighting, and at least seven of whom deployed pepper spray. (Id. ¶¶ 11-13; Resp., Dkt. 54, at 15-16). Defendants sprayed the Hokes with pepper spray for several seconds. (1st Am. Compl., Dkt. 2, ¶ 13; Mot., Dkt. 47, at 3). After the fight ended, Defendants arrested the Hokes for disorderly conduct and took them to a building they were using as a staging area that night. (1st Am. Compl., Dkt. 2, ¶ 17; Mot., Dkt. 47, at 4). There, the Hokes were given water to wash off the pepper spray. (Mot., Dkt. 47, at 4; Resp., Dkt. 54, at 17). They claim that both before and after they were given the water, they experienced intense pain from the pepper spray on several parts of their bodies. (1st Am. Compl., Dkt. 2, ¶¶ 17-18).

         Based on these facts, the Hokes bring this action under 42 U.S.C. § 1983 against Defendants for violation of their Fourth and Eighth Amendment rights. They claim that Defendants used excessive force against and unreasonably arrested them. (Id. ¶¶ 28-31). Defendants assert that they are entitled to qualified immunity and that the evidence raises no genuine issue as to whether they used excessive force or wrongfully arrested the Hokes. (Mot., Dkt. 47, at 1). Defendants seek summary judgment on all of the Hokes' claims. (Id.).

         II. LEGAL STANDARDS

         Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “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) (quotations and footnote omitted). When reviewing a summary judgment motion, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. That said, courts “give greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)). A court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Furthermore, the nonmovant is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant's opposition to the motion for summary judgment. Id. After the nonmovant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000).

         “A qualified immunity defense alters the usual summary judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official's allegedly wrongful conduct violated clearly established law.” Id. Even when considering a qualified immunity defense, however, the court must view the evidence in the light most favorable to the nonmovant and draw all inferences in the nonmovant's favor, Rosado v. Deters, 5 F.3d 119, 122-23 (5th Cir. 1993), and cannot make credibility determinations or weigh the evidence, Reeves, 530 U.S. at 150.

         III. DISCUSSION

         The Hokes make three claims that Defendants used excessive force against them in violation of the Fourth Amendment: they (1) used “far more than a reasonable quantity of a chemical agent”; (2) deployed the chemical agent “without prior verbal command, or after the person was subdued and compliant;” and (3) “withheld irrigation and appropriate medical attention pre- and post-arrest.” (1st Am. Compl., Dkt. 2, ¶¶ 29-31). The Hokes also claim that Defendants unreasonably arrested them in violation of the Fourth Amendment and that Defendants' decision to withhold irrigation also constitutes a violation of the Eighth Amendment. (Id. ¶¶ 28, 31).

         Defendants assert that they are entitled to qualified immunity with respect to each of these claims. Whether an official is entitled to qualified immunity is a two-step inquiry. In the context of a motion for summary judgment, the Court must determine (1) whether the plaintiff has shown a violation of a constitutional right, and (2) whether that right was “clearly established” at the time of the defendant's alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court has discretion to decide which of the two steps to address first. Id. at 236. If there is no constitutional violation, the officer is entitled to qualified immunity from suit. Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003). As explained below, Defendants are entitled to summary judgment on each of the Hokes' claims.

         A. Amount of ...


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