Carter v. Diamond Urs Huntsville, LLC

• Decision Date: 30 September 2016
• Docket Number: Civ. A. H-14-2776
• Parties: MELISA CARTER and CHRIS SMITH, Plaintiffs, v. DIAMOND URS HUNTSVILLE, LLC, ASSET CAMPUS HOUSING, INC., THE CITY OF HUNTSVILLE, TEXAS, OFFICER STACEY SMITH-GALLAR, and OFFICER CHRISTOPHER MYERS, Defendants.
• Court: U.S. District Court — Southern District of Texas

MELISA CARTER and CHRIS SMITH, Plaintiffs, v. DIAMOND URS HUNTSVILLE, LLC, ASSET CAMPUS HOUSING, INC.,THE CITY OF HUNTSVILLE, TEXAS, OFFICER STACEY SMITH-GALLAR,and OFFICER CHRISTOPHER MYERS, Defendants.

Civ. A. H-14-2776

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: October 3, 2016

September 30, 2016

OPINION AND ORDER

Pending before the Court in the above referenced cause, grounded in 42 U.S.C. § 1983 and the Fourth Amendment of the United States Constitution and seeking damages for alleged excessive force and unreasonable search and seizure against Police Officer Stacey Smith and former Police Officer Christopher Myers in their individual capacities only,¹ are (1) Defendants' motion for summary judgment (instrument #38) and (2) Defendants' objections to Plaintiffs' exhibits submitted in opposition to #38 (#41).

Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, 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." A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where the nonmovant bears the burden of proof at trial, the movant must offer evidence that undermines the nonmovant's claim or point out the absence of evidence supporting essential elements of the nonmovant's claim; the movant may, but does not have to, negate the elements of the nonmovant's case to prevail on summary judgment." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5^th Cir. 1998). "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.

If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstratethat there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5^th Cir. 1994). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc,, 144 F.3d 377, 380 (5^th Cir. 1998).

Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d 1322, 1325 (5^th Cir. 1996). "'[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .'" State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5^th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "Nor is the 'mere scintilla of evidence' sufficient; 'there must be evidence on which the jury could reasonably find for the plaintiff.'" Id., quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires the nonmovant to submit "'significant probative evidence.'" Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5^th Cir. 1978), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5^th Cir. 1986). "If the evidence is merely colorable,or is not significantly probative, summary judgment may be granted." Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5^th Cir. 1999), citing Celotex, 477 U.S. at 322, and Liberty Lobby, 477 U.S. at 249-50.

Allegations in a plaintiff's complaint are not evidence. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5^th Cir. 1996)("[P]leadings are not summary judgment evidence."); Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5^th Cir. 1995)(for the party opposing the motion for summary judgment, "only evidence--not argument, not facts in the complaint--will satisfy' the burden."), citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5^th Cir. 1991). The nonmovant must "go beyond the pleadings and by [his] own affidavits, or by depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial." Giles v. General Elec. Co., 245 F.3d 474, 493 (5^th Cir. 2001), citing Celotex, 477 U.S. at 324.

"A party cannot defeat a motion for summary judgment with an affidavit that contradicts, without explanation, his sworn testimony." S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5^th Cir. 1996); see also Thurman v. Sears Roebuck & Co., 952 F.2d 128, 137 n. 23 (5^th Cir. 1992)("[N]onmovant cannot defeat summary judgment by submitting an affidavit which contradicts, without explanation, the nonmovant's previous testimony in an attempt to manufacture a disputed material fact issue.").

The court must consider all evidence and draw all inferences from the factual record in the light most favorable tothe nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13.

The Court may not make credibility determinations. Deville v. Marcantel, 567 F.3d 156, 164 (5^th Cir. 2009), citing Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5^th Cir. 2007).

The Court has no obligation to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). Rather the nonmovant must identify evidence in the record and demonstrate how it supports his claim. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

Qualified Immunity

Qualified immunity, an affirmative defense, protects government officials in their personal capacity performing discretionary functions not only from suit,² but from "liabilityfor civil damages insofar as 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); Pearson v. Callahan, 555 U.S. 223, ___, 129 S. Ct. 808, 815 (2009). To demonstrate that he is entitled to qualified immunity, a governmental official must first show that the conduct occurred while he was acting in his official capacity and within the scope of his discretionary authority. Beltran v. City of El Paso, 367 F.3d 299, 303 (5^th Cir. 2004). After he does so, in a two-step inquiry, the Court examines (1) whether the "officer's conduct violated a constitutional right," and (2) "whether the right was clearly established" at the time of the conduct and whether the defendant's conduct was objectively reasonable. Saucier v. Katz, 533 U.S. 194, 201 (2001), on remand, 262 F.3d 897 (2001); Hale v. Townley, 45 F.3d 914, 917 (5^th Cir. 1995). Either step may be addressed first. Pearson, 129 S. Ct. at 808. The court applies an objective standard, "based on the viewpoint of a reasonable official in light of the information available to the defendant and the law that was clearly established at the time of defendant's actions." Freeman v. Gore, 483 F.3d 404, 411 (5^th Cir. 2007). To be clearly established, "'[t]he contours of the right must be sufficiently clear that areasonable official would understand what he is doing violates that right.'" Kinney v. Weaver, 367 F.3d 337, 349-50 (5^th Cir. 2004), quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "The 'clearly established' standard does not mean that official's conduct is protected by qualified immunity unless 'the very action in question has previously been held unlawful.'" Id. at 350, quoting Anderson, 483 U.S. at 640. The "clearly established" test is one of "'fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.'" Flores, 381 F.3d at 400, quoting Kinney v. Weaver, 367 F.3d 337, 350 (5^th Cir. 2004), cert. denied, 543 U.S. 872 (2004). "Where no controlling authority specifically prohibits a defendant's conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established." Morgan v. Swanson, 659 F.3d 359, 372 (5^th Cir. 2011), cert. denied, 132 S. Ct. 2740 (2012).

Officials who act reasonably, but mistakenly, are entitled to qualified immunity; indeed the qualified immunity defense protects all government employees but "the plainly incompetent or those who knowingly violate the law." Anderson, 483 U.S. at 641; Hunter v. Bryant, 502 U.S. 224, (1991)("Even law enforcement officials who 'reasonably but mistakenly conclude that probable cause is present' are entitled to immunity.")(citing Anderson, 483 U.S. at 641); Malley v. Briggs, 475 U.S. 335, 341 (1986). "[A] defendant's acts are held to be objectivelyreasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the United States Constitution or the federal statute as alleged by the plaintiff...