United States District Court, N.D. Texas, Dallas Division
JAMES E. PRICE, Plaintiff,
DALLAS AREA RAPID TRANSPORTATION POLICE DEPARTMENT and D. DAVIS #509, R. CRAIG #411, J. MORRIS #182, M. McCRAE #97, Defendants.
to U.S. Magistrate Judge 
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
the Court for recommendation is Defendants' Motion
for Summary Judgment, filed October 29, 2018 (doc. 14).
Based on the relevant filings, evidence, and applicable law,
the motion should be GRANTED, and the Court
should sua sponte GRANT summary
judgment in favor of the defendants on the plaintiff's
on platform duty at a Dallas Area Rapid Transit (DART) Union
Station in Dallas on September 10, 2016, Officer Dakari Davis
asked James E. Price (Plaintiff) if he was utilizing DART
services, and Plaintiff became verbally aggressive toward him
and responded with profanity. (doc. 16-1 at 1-2,
DART's code of conduct policy prohibits individuals from
engaging in “disruptive, disturbing behavior including:
loud conversation, profanity or rude insults.”
(Id. at 2, 6.) As Officer Davis walked away from
Plaintiff and called police dispatch, Plaintiff walked toward
him and began yelling profane and derogatory statements.
(Id. at 2, 19-20, 37.) Officer Davis called fellow
Officers Robert Craig, Joe Morris, and Maurice McCrae for
assistance as Plaintiff “continued to yell profane/hate
statements” toward Officer Davis and DART patrons.
Davis told Plaintiff that he could not use profanity and hate
statements on DART property, and that he would have to leave
if he continued to use such language, but Plaintiff continued
to use profanity and replied that he was trying to catch the
train. (Id. at 2, 18.) Officer Davis instructed
Plaintiff to “come here, ” but Plaintiff ignored
the instruction and boarded the DART train. (Id. at
2, 18-20, 37.) Officers Davis, Craig, Morris, and McCrae
(collectively, DART Officers) followed Plaintiff to the
second floor of the train and instructed him to remove
himself from the train multiple times, but Plaintiff refused.
(Id. at 2, 20-23, 37.) Officer Davis then asked
Plaintiff for proof of his fare to ride the train, but
Plaintiff did not have proof and instead unsuccessfully
attempted to purchase a DART pass on his cell phone.
(Id. at 2-3, 22-23, 37.) Officer Davis again
instructed Plaintiff to leave the train, but Plaintiff again
refused and stated in an aggressive and threatening manner
that he was not going to leave the train, which gave Officer
Davis the impression that Plaintiff was preparing to
physically resist and/or assault him or the other DART
Officers. (Id. at 3, 22-24, 37.)
on Plaintiff's non-compliance and passive resistance, the
DART Officers determined that it was not safe to attempt to
physically remove Plaintiff from the train. (Id. at
3, 37.) Officer Davis sprayed Plaintiff's face with
Oleoresin Capsicum (OC) spray and then placed him in
handcuffs. (Id.) As he was being escorted off of the
train, Plaintiff stumbled while walking down the stairs, but
Officers McRae and Davis held him up, keeping him from making
contact with the ground. (Id.) In accordance with
DART General Order 6.06 II(B) regarding the use of OC spray,
Officer Davis poured water on Plaintiff's face to wash
the spray from his eyes, but Officer Davis stopped and waited
for Dallas Fire Rescue to arrive after Plaintiff began to
yell that Officer Davis was “water boarding” him.
(Id. at 4, 28-29; doc. 16-3 at 8-9.) As they awaited
Dallas Fire Rescue, Plaintiff “remained in an upright
position, sitting on the curb and was kept in ‘fresh
air['] as recommended in DART General Order 6.06
III(B).” (doc. 16-1 at 4, 29-30.)
was arrested for criminal trespass, and in a subsequent
search incident to his arrest, Officer Davis located a clear
plastic bag of marijuana. (Id. at 4, 37-38.)
Plaintiff continuously asserted that he had done nothing
wrong and that he was only waiting for the train so that he
could go to work. (doc. 16-3 at 9-14.) He was ultimately
charged with criminal trespass under § 30.05 of the
Texas Penal Code and intentionally or knowingly possessing
marijuana under § 481.121 of the Texas Health &
Safety Code. (docs. 16-1 at 4, 37-38; 16-5 at 3-5; 16-6 at
3-4, 7-8.) Officers Morris and McRae transported Plaintiff to
the Dallas County Jail while Plaintiff continued to use
profane language, and he was eventually booked into the jail
along with all of his property except for the marijuana.
(doc. 16-1 at 4, 38.) Officer Davis subsequently completed a
Use of Force report in accordance with DART Police procedure
and a Texas Incident Report. (Id. at 4, 33-34, 38.)
On September 16, 2016, Plaintiff was formally charged by the
Dallas County District Attorney's Office with criminal
trespass and possession of marijuana, less than two ounces.
(docs. 16-5 at 3-5; 16-6 at 3-4, 7-8.)
September 21, 2016, Plaintiff filed a written complaint with
the DART Police Internal Affairs Division complaining about
his treatment by Officer Davis on the day of his arrest.
(doc. 16-7 at 2, 5, 12-15.) An investigation revealed
“no indication of policy violation or wrongdoing by
Officer Davis” in his use of force during
Plaintiff's arrest. (Id. at 2, 5-6.)
August 21, 2017, Plaintiff entered into an agreement with the
Dallas County District Attorney's Office under which his
criminal charges would be dismissed if he successfully
completed six hours of anger management classes and a mental
health evaluation. (docs. 16-5 at 6; 16-6 at 9.) Plaintiff
completed both requirements, and the charges against him were
dismissed on September 21, 2017. (docs. 16-5 at 7; 16-6 at
September 19, 2017, Plaintiff filed this pro se
lawsuit in state court against DART and the DART Officers
(collectively, Defendants) generally alleging violations of
his civil rights based on his allegedly false arrest, as well
as apparent state law claims for defamation and assault.
(doc. 1-2 at 1, 3-4.) He seeks actual damages, exemplary
damages, injunctive relief, attorney's fees, court costs,
and pre-judgment and post-judgment interest. (See
id. at 2-5.) On October 16, 2017, Defendants removed
this case to federal court pursuant to 28 U.S.C. §
1446(b). (doc. 1 at 1.)
October 29, 2018, Defendants moved for summary judgment on
all of Plaintiff's claims. (docs. 14-16.) On November 20,
2018, Plaintiff filed his sworn response, and Defendant filed
its reply on November 29, 2018. (docs. 22; 25.) The motion is now
ripe for recommendation.
SUMMARY JUDGMENT STANDARDS
judgment is appropriate when the pleadings and evidence on
file show that no genuine issue exists as to any material
fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). “[T]he substantive
law will identify which facts are material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine issue of material fact exists “if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Id. The
movant makes a showing that there is no genuine issue of
material fact by informing the court of the basis of its
motion and by identifying the portions of the record that
reveal there are no genuine material fact issues. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving
party can also meet its summary judgment burden by
“pointing out to the district court that there is an
absence of evidence to support the nonmoving party's
case.” Id. at 325 (internal quotation
the movant makes this showing, the non-movant must then
direct the court's attention to evidence in the record
sufficient to establish that there is a genuine issue of
material fact for trial. Id. at 324. To carry this
burden, the non-movant “must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The non-movant
must show that the evidence is sufficient to support a
resolution of the factual issue in her favor.
Anderson, 477 U.S. at 249. “If the [nonmoving
party's] theory is . . . senseless [where] no reasonable
jury could find in its favor, [then] summary judgment should
be granted.” Lottinger v. Shell Oil Co., 143
F.Supp.2d 743, 751 (S.D. Tex. 2001) (quoting Eastman
Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451,
qualified immunity context, however, governmental employees
asserting the defense in a summary judgment motion need only
assert it in good faith. See Gates v. Tex. Dep't of
Protective & Regulatory Servs., 537 F.3d 404, 419
(5th Cir. 2008); Hathaway v. Bazany, 507 F.3d 312,
319 (5th Cir. 2007). They have no burden to put forth
evidence. Beck v. Tex. State Bd. of Dental
Exam'rs, 204 F.3d 629, 633-34 (5th Cir. 2000). The
burden then shifts to the non-movant to show that the defense
does not apply by identifying specific evidence in the record
to show how it presents a genuine issue of material fact for
trial. See Club Retro, L.L.C. v. Hilton, 568 F.3d
181, 194 (5th Cir. 2009); McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc);
see Celotex, 477 U.S. at 324; see also RSR Corp.
v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir.
parties may satisfy their respective burdens by ‘citing
to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . admissions,
interrogatory answers, or other materials.'”
Rooters v. State Farm Lloyds, 428 Fed.Appx. 441, 445
(5th Cir. 2011) (citing Fed.R.Civ.P. 56(c)(1)). While all of
the evidence must be viewed in a light most favorable to the
motion's opponent, Anderson, 477 U.S. at 255
(citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970)), neither conclusory allegations nor
unsubstantiated assertions satisfy the non-movant's
summary judgment burden, Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). There is
also “no genuine issue as to any material fact [if] a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323.
Summary judgment in favor of the movant is proper if, after
adequate time for discovery, the motion's opponent fails
to establish the existence of an element essential to his
case and as to which he will bear the burden of proof at
trial. Celotex, 477 U.S. at 322-23.
the courts liberally construe the pleadings of a pro
se plaintiff. See, e.g., Haines v. Kerner, 404
U.S. 519, 520-21 (1972) (per curiam); Miller v.
Stanmore, 636 F.2d 986, 988 (5th Cir. 1981); Martin
v. United States Post Office, 752 F.Supp. 213, 218 (N.D.
Tex. 1990). However, the courts have no obligation under
Fed.R.Civ.P. 56 “to sift through the record in search
of evidence to support a party's opposition to summary
judgment.” Adams v. Travelers Indem. Co., 465
F.3d 156, 164 (5th Cir. 2006) (quoting Ragas v. Tenn. Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).
Instead, a party opposing summary judgment must
“identify specific evidence in the record” that
supports the challenged claims and “articulate the
precise manner in which that evidence supports [a challenged]
claim.” Ragas, 136 F.3d at 458 (citing
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.
42 U.S.C. § 1983
move for summary judgment on Plaintiff's constitutional
claims under 42 U.S.C. § 1983. (doc. 15 at 15.)
1983 “provides a federal cause of action for the
deprivation, under color of law, of a citizen's
‘rights, privileges, or immunities secured by the
Constitution and laws' of the United States.”
Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It
“afford[s] redress for violations of federal statutes,
as well as of constitutional norms.” Id. To
state a claim under § 1983, Plaintiff must allege facts
that show (1) he has been deprived of a right secured by the
Constitution and the laws of the United States and (2) the
deprivation occurred under color of state law. See Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978);
Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549
(5th Cir. 2005).
Heck v. Humphrey
initially move for summary judgment on grounds that any
§ 1983 claims are barred by Heck v. Humphrey,
512 U.S. 477 (1994). (doc. 15 at 13-15.)
provides that a § 1983 plaintiff who seeks to recover
damages for an allegedly unconstitutional conviction,
imprisonment, or unlawful action that would render a
conviction or sentence invalid must first prove that the
conviction or sentence has been reversed, expunged,
invalidated, or otherwise called into question.
Heck, 512 U.S. at 486-87. Here, the evidence shows
that Plaintiff was never convicted or sentenced for any
crime; the charges against him were dismissed after he
successfully completed his requirements under an agreement
with the Dallas County District Attorney's Office.
(See docs. 16-5 at 6-7; 16-6 at 9-10.) Heck
does not apply.
move for summary judgment on Plaintiff's § 1983
claims against the DART Officers in their individual
capacities on grounds that they are barred by qualified
immunity. (doc. 15 at 21-22.)
governmental employee who is sued under § 1983 may
assert the affirmative defense of qualified immunity.
White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992).
Qualified immunity protects government officials performing
discretionary functions from suit and liability for civil
damages to the extent their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine
protects “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986). Because an official is entitled to
immunity from suit, not merely from liability, immunity
questions should be resolved as early as possible in the
litigation. See Hunter v. Bryant, 502 U.S. 224, 227
deciding whether a defendant is entitled to qualified
immunity, courts conduct a two-prong inquiry. Under the first
prong, courts consider whether the facts alleged, taken in
the light most favorable to the plaintiff, show a violation
of a constitutional right. Saucier v. Katz, 533 U.S.
194, 200 (2001), overruled in part by Pearson v.
Callahan, 555 U.S. 223 (2009). Under the second prong,
courts determine whether the violated constitutional right
was clearly established within the specific context of the
case. Id. at 201. “The relevant, dispositive
inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.”
Id. at 202. It is within the discretion of the court
to decide which of the two prongs to address first in light
of the circumstances particular to each case.
Pearson, 555 U.S. at 236; Lytle v. Bexar
Cty., 560 F.3d 404, 409 (5th Cir. 2009). If the court
answers both the constitutional violation and clearly
established questions in the affirmative, the officer is not
entitled to qualified immunity. Lytle, 560 F.3d at
Plaintiff alleges a violation of his rights under the Fourth
Amendment of the United States Constitution, which prohibits
unreasonable searches and seizures. Generally, a search or
seizure without probable cause or warrant is a violation of
the Fourth Amendment. See United States v. Jones,
234 F.3d 234, 239 (5th Cir. 2000); Mangieri v.
Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (“The
right to be free from arrest without probable cause is a
clearly established constitutional right.”).
“Where an arrest is made under authority of a properly
issued warrant, the arrest is simply not a false arrest. Such
an arrest is not unconstitutional, and a complaint based on
such an arrest is subject to dismissal for failure to state a
claim.” Thomas v. Sams, 734 F.2d 185, 191 (5th
Cir. 1984) (citing Rodriguez v. Ritchey, 556 F.2d
1185, 1191 (5th Cir. 1977) (en banc)). Where there is no
facially valid warrant, probable cause to arrest exists when
there is a fair probability that an offense occurred.
Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000).
This occurs where the totality of the facts and circumstances
within an officer's knowledge at the time of the arrest
were sufficient for a reasonable person to conclude that a
suspect had committed or was committing an offense. Mesa
v. Prejean, 543 F.3d 264, 269 (5th Cir. 2008) (citing
United States v. McCowan, 469 F.3d 386, 390 (5th
Cir. 2006)). A fair probability that an offense is being
committed or was committed requires more than a bare
suspicion, but less than a preponderance of the evidence.
United States v. Watson, 273 F.3d 599, 602 (5th Cir.
2001). A mistake made as to probable cause, so long as it is
reasonably made, justifies qualified immunity. Tarver v.
City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).
the DART Officers met their burden simply by asserting the
qualified immunity defense, they have also submitted evidence
to show that Plaintiff's warrantless arrest was supported
by probable cause, including affidavits from each of the
Officers, transcripts of audio recordings, police reports,
and an investigation report from the DART Police Office of
Professional Standards. (See docs. 16-1-16-7.) It
shows that Plaintiff was on DART property when Officer Davis
initially made contact with him, that he responded to Officer
Davis with profanity and continued to use profanity while on
DART property in violation of DART's code of conduct,
that Officer Davis informed him that he would have to leave
DART property if he continued to violate the code of conduct,
and that Plaintiff continued to use profanity regardless of
Officer Davis's warning. (doc. 16-1 at 1-2, 18-20, 37.)
It also shows that Officer Davis instructed Plaintiff to
“come here, ” Plaintiff ignored the instruction
and boarded the DART train without a valid train ticket, the
DART Officers followed him onto the train and instructed him
to depart from the train multiple times, and he continually
refused. (Id.) The DART Officers were forced to