Graniczny v. City of El Paso

• Decision Date: 07 March 2011
• Docket Number: No. EP–10–CV–156–PRM.,EP–10–CV–156–PRM.
• Citation: 809 F.Supp.2d 597
• Parties: Michael Joseph GRANICZNY, Individually, and as Representative of the Estate Nalan M. Graniczny, and on behalf of all of the heirs at law of Nalan M. Graniczny; and Deanna McSwain, Individually, Plaintiffs, v. The CITY OF EL PASO, TEXAS, a municipal corporation, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

809 F.Supp.2d 597

Michael Joseph GRANICZNY, Individually, and as Representative of the Estate Nalan M. Graniczny, and on behalf of all of the heirs at law of Nalan M. Graniczny; and Deanna McSwain, Individually, Plaintiffs,

v.The CITY OF EL PASO, TEXAS, a municipal corporation, et al., Defendants.

No. EP–10–CV–156–PRM.

United States District Court,W.D. Texas,El Paso Division.

March 7, 2011.

William A. Elias, El Paso, TX, for Plaintiffs.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

PHILIP R. MARTINEZ, District Judge.

On this day, the Court considered Defendants Steven Smith and Michael Balderrama's “Motion for Summary Judgment” (Docket No. 30), filed on July 27, 2010 and Defendant Adrian Gonzalez's “Motion for Summary Judgment” (Docket No. 56), filed on September 9, 2010.¹ The Court also considered Michael Joseph Graniczny and Deanna McSwain's (Plaintiffs) “Response to Steven Smith, Michael Balderrama and Adrian Gonzalez' Motions for Summary Judgment” (Docket No. 74) [hereinafter Plaintiffs' Response], filed on November 19, 2010 and Defendants' “Reply to Plaintiffs' Response to Defendants Smith, Balderrama and Gonzalez [sic] Motions for Summary Judgment” (Docket No. 83) [hereinafter Defendants' Reply], filed on December 21, 2010 in the above-captioned cause.

Finally, the Court reviewed Defendants' “Written Objection and Motion to Exclude the Affidavit and Testimony of Dr. Richeson” (Docket No. 81) [hereinafter Defendants' Motion to Exclude Dr. Richeson], filed on December 21, 2010 and Defendants' “Objections to Plaintiffs' Factual Background and Motion to Exclude Evidence Submitted in Plaintiffs' Response to Smith, Balderrama and Gonzalez [sic] Motions for Summary Judgment” (Docket No. 82) [Defendants' Motion to Exclude Evidence], filed on December 21, 2010, along with the responses and replies to each.

After due consideration, the Court is of the opinion that Defendants' Motions for Summary Judgment should be granted for the reasons set forth below.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 2010, Plaintiffs Michael Joseph Graniczny—as representative of the estate of Nalan M. Graniczny (Graniczny)—and Deanna McSwain (Plaintiffs) filed their “Complaint and Jury Demand.” Docket No. 1. On November 19, 2010, Plaintiffs then filed their “Second Amended Complaint” (Docket No. 72), which acts as the active complaint for the purpose of determining summary judgment.

Plaintiffs claims result from an incident that occurred during an arrest in El Paso County, at approximately 8:00 p.m. on November 5, 2008.² That night, 20–year–old Graniczny and another male, Nicholas Meacham (Meacham), were spray painting graffiti on and around private property outside of the El Paso School of Excellence at 1605 George Dieter Drive, when El Paso Police Officer Michael Balderrama (Officer Balderrama) observed them. Second Am. Compl. ¶¶ 14–15; Mot. for Summ. J. Ex. A ¶ 5.

Graniczny and Meacham made their way onto the roof of the school by climbing a pole connected to rooftop satellite dishes. Mot. for Summ. J. Ex. A, ¶ 14; Pls.' Resp. Ex. 13, at 1. Meacham jumped off the roof safely while Graniczny stayed on. Officer Balderrama, along with Officers Steven Smith (Officer Smith) and Adrian Gonzalez (Officer Gonzalez) then made their way onto the roof to pursue Graniczny. Second Am. Compl. ¶¶ 15–16; Mot. for Summ. J. Ex. A ¶¶ 19–20. Once on the roof, Officer Gonzalez found Graniczny behind an air conditioning unit and notified the other two officers. Second Am. Compl. ¶ 15; Mot. for Summ. J. Ex. A ¶ 21.

Officers Smith and Balderrama searched and physically restrained Graniczny as the Officers waited for an El Paso Fire Department ladder to arrive. Second Am. Compl. ¶ 15; Mot. for Summ. J. Ex. A ¶¶ 21–31. Once the ladder was in place, the Officers removed Graniczny's handcuffs in preparation to descend from the rooftop. Second Am. Compl. ¶ 15; Mot. for Summ. J. Ex. A ¶ 32. Graniczny was standing between Officer Smith—the closest officer in proximity—and the edge of the building. Second Am. Compl. ¶ 15; Mot. for Summ. J. Ex. A ¶ 33. It was then that Graniczny went off the side of the building, and suffered fatal injuries. Id.

A. Disputed Facts

On December 21, 2010, the Officers filed objections to Plaintiffs' factual background and a motion to exclude evidence submitted in Plaintiffs' response to the Motion for Summary Judgment. See Mot. to Exclude Evidence. The parties differ in their characterization of the aforementioned events and on a number of details. However, there are only a few differences that are notable for determining summary judgment.

First, the parties disagree on the reason Graniczny decided to climb onto the roof of the building. The Officers, rely on Meacham's deposition, among others, to contend that Graniczny and Meacham “climbed up onto the roof by using a pole for the satellite dishes .... While on the roof, they spray painted their initials in various locations .... When they completed the graffiti and as they were starting to get down, the police were there and they shined a light.” Defs.' Mot. to Exclude Evidence ¶ 1. Plaintiffs, however, claim that Officers Smith, Balderrama, and Gonzalez “chased” Graniczny “onto the rooftop ... after Officer Balderrama observed [him] spray[ing] graffiti, or ‘tagging’, a trashcan.” Second Am. Compl. ¶ 15. They alternatively argue that the Officers “did not give Graniczny the opportunity to come off of the roof voluntarily (as Meacham safely did[,] without consequence[,] before the [O]fficers got onto the rooftop), in fact, they did not consider any alternatives to giving chase at all.” Pls.' Resp. to Mot. to Exclude ¶ 2.

Second, Plaintiffs claim that, once Graniczny was located, one of the officers struck him with a closed fist at least once. Second Am. Compl. ¶ 15. They also contend that Graniczny may have been handcuffed at the time. Pls.' Resp. ¶ 37. The Officers make no mention of alleged strikes, but do claim that Graniczny was resistant to following their orders—a contention that Plaintiffs do not address. Mot. for Summ. J. Ex. A ¶¶ 21, 25, 27. The Officers claim that Graniczny, in addition to running from them, refused, initially, to sit down when ordered and would not immediately give them one of his hands when they attempted to handcuff him.³ Id. ¶ 27.

Finally, the description of the moments leading up to Graniczny's death also differ. As previously stated, officers of the El Paso Fire Department placed an extension ladder up against the building and the handcuffs were removed from Graniczny. The Officers claim that Graniczny then unexpectedly shoved Officer Smith, “took a few steps across the roof and jumped head first off of the building's rooftop to his death.” Mot. for Summ. J. ¶ 2. A number of witnesses claim that the manner that Graniczny went off the side of the roof was odd, explaining that it looked like Graniczny was “doing a belly flop into a swimming pool,” without “us[ing] his hands or feet to brace for the impact,” and that he went “head first, almost parallel to the ground.” See Mot. for Summ. J. Ex. C, at 6; Ex. D, at 9; see also Defs.' Reply Ex. B, at 22; Ex. C, at 23. Plaintiffs, however, temper the events by claiming that the Officers failed to maintain eye contact with Graniczny who “jumped or fell off the rooftop to his death.” Second Am. Compl. ¶ 15.

B. Claims

Plaintiffs Second Amended Complaint lacks the clarity the Court expects, but therein, Plaintiffs seem to allege that Officers Smith, Balderrama, and Gonzalez violated Graniczny's constitutional rights under the Fourth and Fourteenth Amendments ⁴ to the U.S. Constitution, allowing them to bring a cause of action pursuant to 42 U.S.C. § 1983 (2006). They also allege that the Officers committed a § 1983 violation of Graniczny's Fourteenth Amendment rights when they knowingly created a dangerous condition that directly led to Graniczny's death, presumably under the theory of “state-created danger.” Id. ¶¶ 26, 30.

The Officers claim that they are entitled to summary judgment as a matter of law because they are shielded by qualified immunity against all of Plaintiffs' claims. Mot. for Summ. J. ¶¶ 5, 26.

C. Challenged Summary Judgment Evidence

To support their claims, Plaintiffs submit an “Appendix of Material in Support of Plaintiffs' Response to [the Officer's] Motion for Summary Judgment.” Docket No. 74–1. Among other things, Plaintiffs provide information regarding prior incidents involving Officer Smith, including printouts of local news broadcasts reporting on one such incident. Id. Ex. 4. These printouts contain a video link, which Plaintiffs contend is the video taken from Officer Smith's police cruiser on the night he was involved in that particular incident.

Plaintiffs also include an affidavit of Graniczny's childhood psychologist, Dr. Elizabeth Richeson, Ph.D. (Dr. Richeson), in order to show that Graniczny “suffered from ... Attention Deficit Hyperactivity Disorder (ADHD) disorganized type” and as a result, he would more likely than not have “act[ed] in a way to facilitate escape, ... feared additional abuse ... by the police, ... and ... translated [his] impulsivity into a need for escape.” Pls.' Resp. ¶ 48. According to Dr. Richeson, Graniczny's history of asthma would have also contributed to his “desire to escape.” Id.

The Officers object to the inclusion of this evidence. They argue that this evidence is not relevant, reliable, or otherwise admissible. Defs.' Mot. to Exclude Evidence ¶ 6; Defs.' Mot. to Exclude Dr. Richeson ¶ 3.

II. LEGAL STANDARDA. Summary Judgment

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a court should grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).⁵ A genuine dispute of material fact exists only if there are “any genuine factual issues that properly can be resolved only by a...