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Price v. Dallas Area Rapid Transportation Police Department

United States District Court, N.D. Texas, Dallas Division

July 8, 2019

JAMES E. PRICE, Plaintiff,

         Referred to U.S. Magistrate Judge [1]



         Before 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 remaining claims.

         I. BACKGROUND

         While 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, 37.)[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. (Id.)

         Officer 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.)

         Based 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.)

         Plaintiff 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.)

         On 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.)

         On 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 10.)

         On 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.)

         On 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.[3] (docs. 22; 25.)[4] The motion is now ripe for recommendation.


         Summary 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 omitted).

         Once 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, 468-69 (1992)).

         In the 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. 2010).

         “The 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.

         Generally, 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. 1994)).[5]

         III. 42 U.S.C. § 1983

         Defendants move for summary judgment on Plaintiff's constitutional claims under 42 U.S.C. § 1983.[6] (doc. 15 at 15.)

         Section 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).

         A. Heck v. Humphrey

         Defendants 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.)

         Heck 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.

         B. Qualified Immunity

         Defendants 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.)

         A 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 (1991).

         In 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 410.

         Here, 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).

         Although 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 ...

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