Goodman v. Harris County

• Decision Date: 09 June 2009
• Docket Number: No. 07-20816.,07-20816.
• Citation: 571 F.3d 388
• Parties: Jeanette GOODMAN, Individually and as administratrix of the estate of Michael W. Goodman, Deceased, Plaintiff-Appellant-Cross-Appellee, v. HARRIS COUNTY; Robert Eckels, Harris County Judge; El Franco Lee, Harris County Commissioner; Steve Radack, Harris County Commissioner; Jerry Eversole, Harris County Commissioner; Sylvia Garcia, Harris County Commissioner; Ron Hickman, Harris County Precinct 4 Constable, Defendants-Appellees, Terry Ashabranner, Deputy Constable, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

571 F.3d 388

Jeanette GOODMAN, Individually and as administratrix of the estate of Michael W. Goodman, Deceased, Plaintiff-Appellant-Cross-Appellee, v.HARRIS COUNTY; Robert Eckels, Harris County Judge; El Franco Lee, Harris CountyCommissioner; Steve Radack, Harris CountyCommissioner; Jerry Eversole, Harris CountyCommissioner; Sylvia Garcia, Harris CountyCommissioner; Ron Hickman, Harris County Precinct 4Constable, Defendants-AppelleesTerry Ashabranner, DeputyConstable, Defendant-Appellee-Cross-Appellant.

No. 07-20816.

United States Court of Appeals, Fifth Circuit.

June 9, 2009.

Martina Esther Cartwright, Houston, TX, Newton Boris Schwartz, Sr., James A. Stegall, III, Law Offices of Newton B. Schwartz, Houston, TX, for Goodman.

Bruce S. Powers, Asst. Cty. Atty., Mary E. Baker, Houston, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before WIENER, DENNIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

This civil suit arises from the fatal shooting of Michael Goodman("Michael") by Harris County, Texas, Deputy Constable Terry Ashabranner("Ashabranner").Jeanette Goodman("Goodman"), Michael's mother, appeals from the district court's grant of summary judgment in favor of Harris County and Constable Ron Hickman("Hickman") on her Texas Tort Claims Act ("TTCA") causes of action, and her 42 U.S.C. § 1983 claims.Ashabranner appeals from the jury verdict which awarded $5 million to Michael's estate.For the reasons set forth below, we affirm.

FACTS AND PROCEEDINGS

During his patrol of a rural area of Harris County, Texas, Ashabranner attempted to stop Michael who was riding his bicycle on the roadway.The parties dispute what happened next.Ashabranner claims that Michael ignored him as he attempted to approach and warn him of the unsafe condition of riding on the wrong side of the road without a light.Then, Michael allegedly assaulted Ashabranner, and fled on his bicycle.What is not in dispute is that Ashabranner released his canine, Nero, who pursued Michael.Ashabranner asserts that he saw Michael reach for a shiny object¹ in his pant's pocket when he attempted to rescue Nero whom Michael was allegedly trying to drown in standing roadside water.Ashabranner ultimately shot Michael at close range, killing him.

Goodman, individually and as Administratrix of her son's estate, brought suit against eleven defendants alleging various federal and state law causes of action.Among these defendants, Goodman sued Harris County, Ashabranner's employer, and Hickman, Ashabranner's supervisor, seeking to hold them liable under the TTCA.The estate also raised several § 1983 claims against Harris County asserting deliberate indifference to formulating policies and training programs for its deputy constables in the use of deadly force, against Hickman for negligent supervision and training of Ashabranner, and against Ashabranner for excessive use of force.The defendants moved for summary judgment.The district court granted summary judgment on all but the § 1983 excessive use of force claim against Ashabranner.All other claims were dismissed.After an interlocutory appeal,²the case proceeded to trial on the sole individual-capacity claim against Ashabranner.The jury returned a verdict for Goodman, awarding $2 million in compensatory damages and $3 million in punitive damages.

Ashabranner appeals from the jury verdict and Goodman appeals from the grant of summary judgment.Goodman argues that: 1) Harris County and Hickman are liable under the TTCA, 2) Hickman was not entitled to qualified immunity for failing to train and supervise Ashabranner, and 3) Harris County is liable for its deliberate indifference to the need for training.Ashabranner appeals from the jury verdict, arguing that: 1) the evidence was insufficient to support the jury verdict and overcome his qualified immunity, 2) the punitive damages verdict should be reversed, 3) the district court clearly abused its discretion in admitting expert testimony regarding his mental condition, and 4) the district court clearly abused its discretion in refusing to submit Ashabranner's proposed interrogatory to the jury.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo.SeeRichardson v. Monitronics Int'l, Inc.,434 F.3d 327, 332(5th Cir.2005).Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."FED. R. CIV. P. 56(c)."We consider the evidence in a light most favorable to [Goodman], the non-movant, but she must point to evidence showing that there is a genuine fact issue for trial" to survive summary judgment.Richardson,434 F.3d at 332.

"In reviewing the sufficiency of the evidence to support a jury verdict in a civil action, we must affirm unless there is no legally sufficient evidentiary basis for the jury's verdict."Lane v. R.A. Sims, Jr., Inc.,241 F.3d 439, 445(5th Cir.2001)(internal quotation omitted).In this analysis, "the evidence, as well as all reasonable inferences from it, are viewed in the light most favorable to the verdict."Id.We reverse a district court's denial of a motion for a new trial only when "there is a clear showing of an abuse of discretion.To show an abuse of discretion in this respect, the defendant must show an absolute absence of evidence to support the jury's verdict."Foradori v. Harris,523 F.3d 477, 498(5th Cir.2008).

The "granting or denying of a motion for a physical examination rests in the sound discretion of the trial court."Coca-Cola Bottling Co. of P.R. v. Negron Torres,255 F.2d 149, 153(1st Cir.1958);accordBucher v. Krause,200 F.2d 576, 584(7th Cir.1953)."This court reviews evidentiary rulings for abuse of discretion and will reverse a district court's ruling only if it affects a substantial right of a party."Caparotta v. Entergy Corp.,168 F.3d 754, 755-56(5th Cir.1999).The party asserting error bears the burden of proving substantial prejudice.McDonald v. Steward,132 F.3d 225, 232(5th Cir.1998).Recently, we have underscored this rule, noting that, "[d]istrict courts enjoy wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous."Smith v. Goodyear Tire & Rubber Co.,495 F.3d 224, 227(5th Cir.2007)(citation omitted).

We review a district court's decision to submit a proposed interrogatory to the jury for abuse of discretion.Moody v. FMC Corp.,995 F.2d 63, 66(5th Cir.1993).

DISCUSSION

I.Texas Tort Claims Act

Goodman argues that the district court erred in granting summary judgment in favor of Harris County and Hickman on her TTCA claims because, Goodman asserts, these arise out of the negligent and/or grossly negligent training and supervision of constables.Goodman seeks to hold Harris County and Hickman liable for claimed failures in their own right, not vicariously for Ashabranner's conduct.

The TTCA"creates a limited waiver of sovereign immunity."Johnson v. Waters,317 F.Supp.2d 726, 738(E.D.Tex.2004).Under the TTCA, "[a] governmental unit in the state is liable for: ... personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law."TEX. CIV. PRAC. & REM.CODE § 101.021(2).Harris County is a governmental unit.Seeid.§ 101.001(3).The TTCA does not, however, include individuals under its definition of a governmental unit.Id.Individuals may not be sued under the TTCA as the act"does not govern suits brought directly against an employee of the State."Huntsberry v. Lynaugh,807 S.W.2d 16, 17(Tex.App.—Tyler 1991, no writ).

Furthermore, the TTCA does not apply to claims arising out of an intentional tort.TEX. CIV. PRAC. & REM.CODE § 101.057(2);Waters,317 F.Supp.2d at 739.Also excluded from the TTCA are allegations against a governmental unit arising out of the same conduct that formed the basis of the intentional tort claims against its employee.Tex. Dep't of Pub. Safety v. Petta,44 S.W.3d 575, 580(Tex.2001).

The TTCA is also not the appropriate vehicle for claims of negligent failure to train or supervise.Id. at 580-81.Such claims are not within the purview of the TTCA because "a plaintiff must allege an injury resulting from the `condition or use of tangible personal or real property'" and "information is not tangible personal property, since it is an abstract concept that lacks corporeal, physical, or palpable qualitites [sic]."Id. at 580.

Thus, the district court's dismissal of claims under the TTCA was proper because: 1) suits against individual state employees are not cognizable under the TTCA, Huntsberry, 807 S.W.2d at 17, and 2) failure to train or supervise is not a proper cause of action under the TTCA, Petta, 44 S.W.3d at 580.

II.Section 1983 failure to supervise and train

A. Hickman

Goodman renews her failure to supervise and train claim asserting that the district court erred in dismissing this cause of action against Hickman under 42 U.S.C. § 1983.Goodman argues that Hickman was liable for failing to train Ashabranner because it was this failure which resulted in the denial of Michael's constitutional rights.

Section 1983 provides a private cause of action against those who, under color of law, deprive a citizen of the United States of "any rights, privileges, or immunities secured by the Constitution and laws."42 U.S.C. § 1983.Claims under § 1983 may be brought against persons in their individual or official capacity, or against a governmental entity.SeeBoard of County Comm'rs of Bryan County v. Brown,520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d...