Bookman v. Shubzda

• Decision Date: 07 November 1996
• Docket Number: Civil Action No. 3:95-CV-1825-D.
• Citation: 945 F.Supp. 999
• Parties: Angela Lashone BOOKMAN, Plaintiff, v. Dallas Police Officers Sgt. James J. SHUBZDA, John Morris, Ron Brown, Eddie Fuller, David Potts, and Doug Thigpen, Defendants.
• Court: U.S. District Court — Northern District of Texas

945 F.Supp. 999

Angela Lashone BOOKMAN, Plaintiff, v. Dallas Police Officers Sgt. James J. SHUBZDA, John Morris, Ron Brown, Eddie Fuller, David Potts, and Doug Thigpen, Defendants.

Civil Action No. 3:95-CV-1825-D.

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

November 7, 1996.

As Amended November 21, 1996.

COPYRIGHT MATERIAL OMITTED

Angela Lashone Bookman, pro se.

Edwin P. Voss, Jr. and Sandra C. Camacho, Ass't City Attys., Dallas, TX, for defendants.

FITZWATER, District Judge:

This pro se lawsuit filed by a prisoner who was permitted to proceed in forma pauperis presents questions concerning the use of Spears¹ materials in deciding a motion for summary judgment, and the court's obligation to search the record for genuine issues of material fact.

I

Plaintiff Angela Lashone Bookman ("Bookman") alleges that six Dallas Police Department ("DPD") officers used excessive force and otherwise violated her constitutional rights during the execution of a narcotics search and arrest warrant at the apartment of her fiancé, Leon Travis Hurd ("Hurd").² Bookman brings this action pursuant to 42 U.S.C. § 1983. To the extent she alleges violations of the United States Constitution, it is maintained as a § 1983 action. Her assertion that the officers violated the Texas Constitution alleges a pendent state-law claim.³

In response to written questions from the magistrate judge posed during the in forma pauperis screening process, Bookman maintains that the officers entered the apartment illegally because they did not identify themselves as police officers. She also contends that during the course of executing the warrant and arresting her and her fiancé, defendants used excessive force by firing automatic weapons. She complains that defendant Corporal Eddie Fuller ("Corporal Fuller") dragged her across concrete, although she was pregnant, and that defendant Officer Doug Thigpen ("Officer Thigpen") pushed her behind a couch. She avers that she did not resist defendants' attempt to detain her. Bookman also asserts that because of defendants' use of force, she suffered a gash in her side, holes in her foot, bruised knees, and a cut hand. She contends defendants denied her medical care and did not read her rights to her and ensure that she understood them. In particular, she alleges that each officer violated her rights by failing to identify himself as a police officer.

Read liberally, Bookman's complaint appears to state the following constitutional claims: (1) violation of her constitutional right to be free from the use of excessive force in the course of an arrest; (2) unreasonable search; (3) denial of reasonable medical care; and (4) denial of the right to be warned according to the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and to have these rights explained to her.

Defendants Dallas police officers Sergeant James J. Shubzda ("Sgt. Shubzda"), Officer John Morris ("Officer Morris"),⁴ Officer Ron Brown ("Officer Brown"), Corporal Fuller, Officer David Potts ("Officer Potts"), and Officer Thigpen move for summary judgment. They contend they are entitled to summary judgment because Bookman cannot establish that her constitutional rights were violated, and because they are entitled to qualified immunity. Bookman has not responded to the motion.

II

Before reaching the merits of defendants' motion, the court addresses a threshold procedural question.

A

As noted, Bookman has not responded to defendants' motion for summary judgment. Under the usual jurisprudence, her failure to respond does not permit the court to enter a "default" summary judgment. The court would be permitted, however, to accept defendants' evidence as undisputed. Tutton v. Garland Indep. Sch. Dist., 733 F.Supp. 1113, 1117 (N.D.Tex.1990) (Fitzwater, J.). A summary judgment nonmovant who does not respond to the motion is relegated to her unsworn pleadings, which do not constitute summary judgment evidence. See, e.g., Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir.1991).

This case presents a different twist. Bookman sought leave to proceed in forma pauperis. This required the court to determine that her lawsuit was not frivolous within the meaning of 28 U.S.C. § 1915(d).⁵ In evaluating whether she should be permitted to proceed in forma pauperis, the magistrate judge submitted a questionnaire for the purpose, among others, of enabling her to set out in greater detail the grounds for her claims. The question presented is whether her responses to these questions, which she made under the penalties of perjury, see 28 U.S.C. § 1746, and which are included in the court file in this case, are proper summary judgment evidence. If so, the court must decide whether it is required to consider them despite Bookman's failure to respond to defendants' summary judgment motion.

In Albritton v. Pittman, Civil Action No. 3:91-CV-1709-D, 1995 WL 907893 (N.D.Tex. Apr. 7, 1995) (Fitzwater, J.), and McGriff v. King, Civil Action No. 3:93-CV-1386-D, 1995 WL 907892 (N.D.Tex. Apr. 28, 1995) (Fitzwater, J.), both in forma pauperis cases in which prisoner-plaintiffs failed to respond to summary judgment motions, the court assumed that Spears materials were competent summary judgment evidence. As the court explained in Albritton,

The purpose of a Spears hearing is to determine whether a prisoner alleging a constitutional deprivation should be permitted to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(d). Spears, 766 F.2d at 181-82. The evidentiary hearing is "in the nature of a motion for more definite statement." Id. The court ascertains at this procedural stage whether the complaint is adequate to permit the prisoner to litigate his claims pursuant to § 1915(d). Id. at 182. The prisoner's testimony at the hearing is a more elaborate form of response to questionnaires that courts submit to prisoners so that they may set out in greater detail the bases for their claims. Id. at 181 (questionnaire answers "elaborate on the allegations contained in their complaints under Fed.R.Civ.P. 15(a), and do not constitute an independent pleading"). It would appear that the Spears testimony is more akin to a pleading than to the summary judgment evidence contemplated by Fed.R.Civ.P. 56(e). Nevertheless, the court will assume that the hearing evidence must be consulted, and that if it otherwise satisfies the requirements of Rule 56(e), it will be deemed adequate to present a genuine issue of material fact.

Slip op. at 3.

Fed.R.Civ.P. 56(c) provides, in relevant part, that summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

(Emphasis added). Questionnaire answers given in response to a directive of the magistrate judge are unquestionably "on file." Because the responses are made under penalty of perjury, they are at least the equivalent of affidavits, which Rule 56(c) explicitly makes part of the summary judgment record. It is therefore arguable that these responses constitute competent evidence that is part of the summary judgment record.

A potential impediment to interpreting Rule 56(c) in this manner is presented by the fact that summary judgment movants may not be aware of the existence of these responses unless they check the court file. Spears-type inquiries are conducted as part of the in forma pauperis screening process, so that the court can determine whether suit should be permitted in the first place. These proceedings involve the court and the plaintiff, not the potential defendant. If in forma pauperis status is granted, a summons is then issued. Although at this point the defendant knows that he has been sued, unless he examines the court file, he will not be aware of the nature and extent, if any, of the in forma pauperis screening process. The court is persuaded that this circumstance is insufficient to exclude Spears materials from the Rule 56(c) definition of the summary judgment record. It is also an inadequate reason to construe the Rule's evidentiary gatekeeping function other than according to the materials listed in the Rule and that are "on file" at the time a motion is decided.

The better view is that these materials can be relied on as summary judgment evidence. Any prejudice to a summary judgment movant who is unaware of such materials is ameliorated by enforcing the requirement that the nonmovant designate specific facts from these materials in order to warrant their consideration in deciding the motion. This approach promotes the interests of justice. First, a nonmovant is obligated to cite specific facts in response to a summary judgment motion. If Spears materials are not cited, the court and the movant need not address them. Second, if facts from these materials are cited, the summary judgment movant has the right to show entitlement to summary judgment notwithstanding these facts. This is no different than the burden that would apply if the nonmovant had filed new affidavits that reiterated the contents of her questionnaire responses or Spears hearing testimony. Third, by including these materials in the record, when the nonmovant properly brings them to the court's attention, summary judgment will not be unjustly granted based on the false premise that the evidence does not exist, thus promoting confidence in the fairness of the administration of justice.

Accordingly, the court holds that Bookman's responses to the magistrate judge's questionnaire are part of the summary judgment record.

B

Notwithstanding this conclusion, the court holds that it need not consider Bookman's questionnaire responses in deciding defendants' motion.

Where, as here, defendants do not have the burden of proof at trial, they may carry...