Graham v. Dall. Area Rapid Transit

• Decision Date: 28 December 2017
• Docket Number: Civil Action No. 3:14–CV–4401–L
• Parties: Terry GRAHAM, Jr., Plaintiff, v. DALLAS AREA RAPID TRANSIT, Jeanne Jones, and Fernando Ibarra, Jr., Defendants.
• Court: U.S. District Court — Northern District of Texas

288 F.Supp.3d 711

Terry GRAHAM, Jr., Plaintiff,

v.DALLAS AREA RAPID TRANSIT, Jeanne Jones, and Fernando Ibarra, Jr., Defendants.

Civil Action No. 3:14–CV–4401–L

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

Signed December 28, 2017

Daryoush Toofanian, Rad Law Firm, Dallas, TX, for Plaintiff.

Higinio Gamez, Legal Dept., Dallas, TX, for Defendants.

Sam A. Lindsay, United States District Judge

MEMORANDUM OPINION AND ORDER

Before the court is Defendants' Motion for Summary Judgment (Doc. 15), filed January 19, 2016. After considering the motion, response, reply, appendixes, record, and applicable law, and for the reasons that follow, the court grants in part and denies in part Defendants' Motion for Summary Judgment (Doc. 15).

I. Factual and Procedural Background¹

This is a civil rights action arising out of an encounter between Plaintiff Terry Graham, Jr. ("Plaintiff" or "Graham") and two Dallas Area Rapid Transit ("DART") officers, Defendants Fernando Ibarra, Jr. ("Ibarra") and Jeanne Jones ("Jones") (sometimes collectively, the "Officers"). On the afternoon of May 11, 2013, Graham left a shopping mall and boarded a DART bus in downtown Dallas, Texas. Graham had not consumed any alcohol that day. While on the bus, he witnessed a man in a gray shirt strike a woman at a bus stop and then run away from the bus toward a McDonald's restaurant near the federal building in downtown Dallas.

At approximately 4:30 p.m. that same afternoon, Ibarra and Jones responded to a DART police dispatch regarding the assault Graham had witnessed. The dispatch reported that a black male had hit a female with an unknown object and thereafter may have boarded a DART bus. The dispatch described the suspect as wearing a gray shirt and blue jeans, although a later dispatch stated that the suspect may have changed his shirt. As Ibarra and Jones boarded the bus, they walked toward the back where Graham, wearing blue jeans and a light-colored shirt, was sitting. As the Officers approached Graham, Ibarra unholstered his department approved firearm and kept it at his side. He asked Graham for identification. In response, Graham stated: "I am not the guy you are looking for." Pl.'s Summ. J. App. 71. Graham did not use any profanities in response to Ibarra's questions. Id.² Other passengers on the bus also informed the Officers that Graham was not the individual who had committed the assault. Id.

Ibarra states that at this point in the encounter he noticed that Graham smelled like alcohol and observed that he had bloodshot eyes and slurred speech. Defs.' Summ. J. App. 26. Ibarra directed Graham to place his hands behind his back, and Jones handcuffed him. Id. at 18, 26. Ibarra removed Graham from the bus for further questioning. Officer Ibarra then advised Graham he was not a suspect in the assault but was "being arrested for public intoxication due to him being an obvious danger to himself and others." Id. at 19. Ibarra and Jones then escorted a handcuffed Graham toward a DART patrol car.

With respect to the ensuing events, the parties have provided the court with a videotape that appears to have been taken by a dash-mounted camera on another patrol car. See id. at 33; Pl.'s Summ. J. App. 70.³ Each party represents to the court that the videotape supports his or her version of the facts. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In Scott v. Harris, the Supreme Court reversed an Eleventh Circuit decision to uphold a denial of summary judgment where a videotape captured the events in dispute and the deposition testimony contradicted the videotape. "Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape." Id.

The court has viewed the videotape numerous times. Unlike the videotape in Scott v. Harris , unless the parties have an enhanced version of the videotape or specialized equipment for viewing the videotape that the court does not have, the court is unable to substantiate either party's version of the events that unfolded as the Officers led Graham toward the patrol car, except as herein described. The videotape is grainy, unclear, and an extremely bright glare on the lens obscures what transpires between the Officers and Graham. The audio portion is garbled and incomprehensible. The videotape, however, shows that Jones did not participate in the use of force as Graham was about to be put into the patrol car and during the ensuing struggle between him and Ibarra. The videotape clearly shows Jones standing by as Ibarra used force. Other than Jones's lack of participation, as the disputed events are too obfuscated to provide support for either the Officers' or Graham's version of the events, the videotape is of little utility to the court. Accordingly, the court will consider it only in assessing the lack of Jones's use of force during the struggle between Ibarra and Graham that occurred near the back door of the patrol car. Further, and as set out more fully below in its discussion of the parties' evidence, to the extent Defendants' retained and nonretained experts rely on their viewing of the videotape to support their opinions, the court will not consider this testimony, as it is inherently unreliable.

According to Defendants' version of the ensuing events, as Ibarra escorted Graham toward the back seat of the patrol car, Graham stepped onto the door sill and pushed back with force, causing him and Ibarra to lose balance and fall onto the concrete sidewalk. Graham kept kicking while on the sidewalk, striking Jones with his legs and injuring her, and biting Ibarra on the hand. Ibarra, believing Graham to be a danger to himself and others, deployed his Oleoresin Capsicum Spray ("OC Spray"). See Defs.' Summ. J. Br. 2. In support of their version, the Officers rely on their statements and incident reports, their deposition testimony, the report of Officer Roy Wilt with the Office of Professional Standards ("OPS"), the Affidavit of DART's Chief of Police James D. Spiller, the report of Defendants' retained expert, Albert Ortiz, and Graham's own deposition testimony admitting to repeatedly kicking his legs while he was on the sidewalk. Defs.' Summ. J. App. 3–17, 19, 21–22, 27–32, 34–36, 69–70, 124–25, 150, 193–204.

According to Graham's version, once near the patrol car, the Officers, without justification, slammed him to the ground, and severely beat, struck and injured him, even though he did not resist, hit, strike, attempt to flee, bite, or in any way pose a threat to the Officers. While Graham concedes he was kicking his legs after he was on the ground, he contends that Ibarra had his knee on Graham's neck, and provides evidence that his kicking "stem[s] from [him] flailing his legs as Ibarra choked the life out of him." Pl.'s Summ. J. Resp. Br. 9. In support of his version, Graham relies on the emergency room records from Parkland Hospital showing extensive facial injuries (Pl.'s Summ. J. App. 1–65), his own affidavit submitted in support of his response to the motion for summary judgment (id. at 71), as well as his deposition testimony where he states that Ibarra had his knee on his neck and he was kicking his legs because Ibarra "was choking the hell out of [him]." Id. at 75–76. In support of his contention that he never bit Ibarra, Graham points out that the incident report completed by Ibarra at 4:32 p.m. on May 11, 2013, shortly after the incident, does not list Ibarra as a victim or contain any reference to him being injured during the encounter with Graham. Id. at 68–69.

Dallas Emergency Medical Services ("EMS") was called to treat Graham for injuries at the scene, including for the effects of the OC Spray. Graham was then transported to the Dallas County Jail, but his injuries were severe enough that it would not accept him. Graham was then transported to Parkland Hospital for medical treatment of his injuries. The emergency room records show that in addition to burning eyes caused by the OC Spray, Graham suffered a two-centimeter laceration under his left eye, swelling of the left cheek, a left medial nasal fracture

, bruising all over his face, and a small laceration to his inner lower lip. Id. at 7, 10. The emergency room records make no mention of alcohol, the smell of alcohol, or Graham's alleged intoxication. Once discharged the following day, May 12, 2014, Graham was transported back to the Dallas County Jail where he was booked for assault of a public servant under cause number F13–16626. Defs.' Summ. J. App. 31–32.

On May 20, 2013, Graham filed a complaint with the DART Police Department's OPS against Ibarra for using excessive force during his arrest. Roy Wilt, who was assigned to the OPS, conducted an Internal Affairs investigation and found that DART Police policy violations were not committed and concluded that "Officer Ibarra used only the amount of force necessary." Id. at 8.

On November 1, 2013, a Dallas County Grand Jury indicted Graham for assault of a public servant in cause number F13–16626. Ultimately, cause number F13–16626 was dismissed by the Dallas County District Attorney's Office. The Officers did not testify before the grand jury on the felony charge against Graham.

On December 16, 2014, Graham brought this lawsuit against DART, Ibarra, and Jones, pursuant to 42 U.S.C. § 1983 for alleged violations of his First, Fourth, and Fifth Amendment rights.⁴ Specifically, he brings claims against the Officers under the Fourth Amendment for "false arrest and/or false imprisonment," unlawful detention or seizure, and malicious p...