Glenn v. City of Tyler

• Decision Date: 22 February 2001
• Docket Number: No. 00-40133,00-40133
• Citation: 242 F.3d 307
• Parties: (5th Cir. 2001) DEBORAH ANN GLENN, Plaintiff-Appellee, v. CITY OF TYLER; KYLE RHODES, Tyler Police Officer in his individual capacity; BRIAN TOMLIN, Tyler Police Officer in his individual capacity, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 307

242 F.3d 307 (5th Cir. 2001)

DEBORAH ANN GLENN, Plaintiff-Appellee, v. CITY OF TYLER; KYLE RHODES, Tyler Police Officer in his individual capacity; BRIAN TOMLIN, Tyler Police Officer in his individual capacity, Defendants-Appellants.

No. 00-40133

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 22, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court For the Eastern District of Texas.

Before JONES and DeMOSS, Circuit Judges, and BARZILAY^*, District Judge.

EDITH H. JONES, Circuit Judge:

Deborah Ann Glenn ("Glenn") sued the city of Tyler, Texas ("the city") and two police officers, Kyle Rhodes ("Rhodes") and Brian Tomlin ("Tomlin"), pursuant to 42 U.S.C. 1983, under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101, et. seq., and for state law claims. The defendants moved for summary judgment on the issue of the officers' qualified immunity. The district court granted summary judgment on the ADA claim but not on the other claims. The officers and the city timely filed a notice of interlocutory appeal. As to the officers, this court reverses and remands.¹

I. BACKGROUND

Glenn's lawsuit is based on the activities surrounding her arrest for family violence assault. Glenn alleges that: (1) Officers Rhodes and Tomlin unlawfully arrested her without probable cause for allegedly assaulting her daughter; (2) she was subjected to an unlawful search and seizure; (3) Officer Rhodes used excessive force by intentionally handcuffing her hands too tightly; and (4) Officers Rhodes and Tomlin violated the ADA. Glenn also presents state law claims of negligent use of tangible objects and malicious prosecution.

The defendants moved for summary judgment, arguing that the officers are entitled to qualified immunity and that the city is thus entitled to summary judgment.² Glenn retorted that genuine issues of material fact precluded summary judgment.

The district court granted the defendants' summary judgment motion in part and denied it in part. The court found that there were fact issues as to: (1) whether the officers' actions in arresting Glenn were objectively reasonable; (2) the circumstances surrounding Glenn's "seizure"; and (3) the excessive force claim. However, the district court granted summary judgment in favor of the officers for the ADA claim. The district court did not address the defendants' claims of immunity for the state law claims. The court subsequently denied the defendants' motion to alter, amend, or rehear the court's order denying its summary judgment motion. The individual defendants and the city filed a timely notice of appeal.

The district court found that there was no dispute over the following facts. On the day before the incident, Glenn went to her daughter Jennifer Clark's ("Clark") apartment after several unsuccessful attempts to contact her. They got into an argument and the police were called. On the following day, September 29, 1998, Clark went to her mother's home to retrieve some of her clothes. Clark and Glenn again began fighting and Clark called the police. Both the officers and an ambulance were dispatched to Glenn's home. As the officers approached the house, they encountered Glenn, Clark and a family friend, Mr. Rodriguez. Officer Tomlin spoke with Clark and Rodriguez while Officer Rhodes went inside the house to speak to Glenn.

Glenn was upset and crying. She told Officer Rhodes that she did not want her daughter to be arrested. At some point, Officer Rhodes was told that Glenn has multiple sclerosis. After speaking to Glenn, the two officers conferred. Shortly thereafter, Glenn was placed under arrest for "assault family violence," handcuffed and taken to the police station. Glenn was charged with assault, although the charges were later dismissed.

The plaintiff's own summary judgment evidence establishes at least the following facts. On the previous day, when Glenn went to her daughter's house, it was a security guard who called the police. After the police arrived, they told Clark not to contact Glenn but to call them the next day so that they could escort Clark to pick up her clothes at Glenn's house. The next day, Clark called the police from her apartment but they did not come. Then, she went to her mother's apartment and "got into an argument that resulted in some physical contact." Clark called the police and told the dispatcher "something to the effect that that [sic] my mother and I had just gotten into a big fight and that we had beaten the shit out of each other." The police dispatcher asked if they needed an ambulance and Clark said "yes."

When questioned about marks on her body, Clark told the police that the red splotches on her neck were "hickeys" and not bruises or bite marks caused by Glenn. In her initial affidavit, she states that she told the police that her mother pushed her and pulled her earring out. In a supplemental affidavit, Clark later averred that she never told the officers that Glenn had bitten her, assaulted her, or "intentionally" pulled her earring out of her ear, but that she had "said that it was an accident." She states that she was "trying to explain to the officers that my earrings got pulled out while my mother was holding my face in her hands trying to get me to look at her while I was jerking my head back and forth."

Glenn confirms that the two had a "heated argument." During her deposition, she stated that her daughter pushed shelves "over on me" while the two were on the ground. When Officer Rhodes came into the house to speak with her, she was "hysterically crying." Officer Tomlin was outside with Clark and Rodriguez. Glenn stated that she told Officer Rhodes the "entire story," including the fact that another police officer previously told them to call the police before Clark went to Glenn's house to pick up her things. Officer Rhodes informed Glenn that Clark had said that she had blood on her shirt. When Officer Rhodes asked Glenn if she had torn Clark's earring out, she "told him that whenever I put my hand on [Clark's] face and she was fighting me that an earring fell out and it made her ear bleed."

In response to a question from Officer Rhodes about whether Glenn had any blood on her, Glenn told him: "I don't see any. I've got this scratch." Glenn also acknowledged that she informed Officer Rhodes that she and Clark had "got[ten] into it." However, she denied telling Officer Rhodes that she had grabbed Clark by the hair.

Glenn also contends that, once arrested, she was mistreated. In support of her excessive force claim, Glenn asserts that Officer Rhodes handcuffed her so tightly that her right hand became swollen. She claims that she complained that the handcuffs were too tight. She also asserts that she was left in an unventilated vehicle which was placed in the "baking sun" for almost an hour before she was taken to jail, despite her pleas that she could not take the heat because of her multiple sclerosis. This, she contends, was an unreasonable search and seizure. The affidavit of Nancy Francis, a friend who saw Glenn in the police car, states that the police car windows were closed, the engine and air conditioner were off, the doors were shut and that the car was in the sun and it was extremely hot. She also states that both policemen were "consoling" Clark but not paying attention to Glenn.

Francis opened the door of the police car and saw that Glenn was crying softly. Glenn allegedly told her that she was very hot, could not breathe, and was getting sick. Francis further states that she asked the officer to help her, but that one of the policemen told her to step away from the car and then slammed the door shut. Francis avers that she told the officer that Glenn had multiple sclerosis, was very ill and that Glenn looked like she was going to faint and could not take the heat of the police car. In response, France states that the officer told her to stay out of it. According to Francis, another neighbor shouted to the policeman that Glenn was sick. That neighbor ran over to Glenn's door and Officer Rhodes also went to the door and "someone" opened it. Glenn, according to Francis, began to dry heave. When Francis tried to tell Officer Rhodes again that Glenn had multiple sclerosis, the officer continued to yell at her.

Glenn admits that the air conditioner was on in the car from the time that they left the house to their arrival at the police station. She also states that when Francis told Officer Rhodes that Glenn was sick, Officer Rhodes asked if she wanted to go to the hospital. She told him that she did not need to go to the hospital. She also did not ask the paramedics who had arrived by ambulance to check on her. In addition, Glenn admits that Officer Rhodes "never yelled at me" and that he did not physically touch her other than placing the handcuffs on her. However, she asserts that "[h]e showed no concern." She claims that Officer Rhodes "taunted" her by telling her that she would have to spend the night in jail.

II. DISCUSSION

A.JURISDICTION

Glenn contends that this court does not have jurisdiction over this interlocutory appeal because the order denying summary judgment finds that there are disputed fact issues. This court has jurisdiction to review the district court's decision to the extent that it turns on an issue of law. See Lemoine v. New Horizons Ranch & Center, Inc., 174 F.3d 629, 633 (5th Cir. 1999). The materiality of factual disputes may be reviewed but not their genuineness. Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). After accepting all of Glenn's factual allegations as true, this court may determine as a matter of law whether the defendants are entitled to qualified immunity. See Colston v. Barnhart, 130 F.3d 96, 98 (5th Cir. 1997), cert. denied, 525 U.S. 1054 (1998). "If those facts do not materially affect the outcome-i.e., if even under such a factual scenario the officers' actions may be deemed as a matter of law...