Hatcher v. Bement

• Decision Date: 03 April 2015
• Docket Number: No. 3:14-cv-432-M-BN,3:14-cv-432-M-BN
• Parties: JEFF HATCHER and MICHELLE HANSFORD, Plaintiffs, v. WESLEY BEMENT, Defendant.
• Court: U.S. District Court — Northern District of Texas

JEFF HATCHER and MICHELLE HANSFORD, Plaintiffs, v. WESLEY BEMENT, Defendant.

No. 3:14-cv-432-M-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

April 3, 2015

MEMORANDUM OPINION AND ORDER ON MOTION FOR LEAVE TO CONDUCT DISCOVERY AND REQUIRING CONFERENCE AND JOINT STATUS REPORT

Plaintiffs Jeff Hatcher and Michelle Hansford ("Plainitffs") have filed a motion for leave to conduct discovery, see Dkt. No. 44, in response to Defendant Wesley Bement's motion for summary judgment on his affirmative defense of qualified immunity, see Dkt. No. 40. For the reasons set forth below, Plaintiffs' motion is GRANTED in part.

Background

On February 4, 2014, Plaintiffs, individually and as the heirs of the estate of Jordan Ross Hatcher ("Hatcher"), filed this civil rights action against the City of Grand Prairie, Texas ("Grand Prairie") and Officer Wesley Bement of the Grand Prairie Police Department ("Officer Bement"). See Dkt. No. 1. Plaintiffs alleged that Officer Bement used excessive force against Hatcher in violation of 42 U.S.C. § 1983 and that Grand Prairie is liable for Officer Bement's use of excessive force because it failed to properlytrain and supervise its officers, provided excessive discretion to officers, and permitted and encouraged improper uses of force. Plaintiffs further claimed violations of Texas tort law against Grand Prairie because Officer Bement was acting within the course and scope of his employment when he injured Hatcher, and Plaintiffs sought punitive damages against both defendants.

On August 6, 2014, United States District Judge Barbara M.G. Lynn adopted the undersigned United States magistrate judge's Findings, Conclusions, and Recommendation, denied Officer Bement's motion to dismiss, granted in part and denied in part the City's motion to dismiss, and granted Officer Bement's request for a Federal Rule of Civil Procedure 7(a) reply to his qualified immunity defense. See Dkt. Nos. 21 & 22. Specifically, the Court (1) concluded that Plaintiffs alleged sufficient facts to state a claim for the use of force that was excessive and unreasonable under the circumstances that Officer Bement faced; (2) concluded that Plaintiffs' complaint was deficient in failing to identify any particular policy or custom that led to the constitutional violations alleged in their complaint; (3) determined that Plaintiffs failed to state a claim for relief of deliberate indifference; and (4) concluded that Plaintiffs' tort claims brought under Texas law were barred by sovereign immunity. See id. But the Court granted Officer Bement's request for a Rule 7(a) reply and ordered Plaintiffs to file a pleading that provides more detail about the totality of circumstances that Officer Bement faced and about Hatcher's own conduct when confronted by the officer, in order to comply with the heightened pleading required when the defense of qualified immunity is raised. See id.

On August 27, 2014, Plaintiffs filed a First Amended Complaint and a Rule 7(a) reply. See Dkt. Nos. 25 & 26. In their amended complaint, Plaintiffs alleged that, on or about January 24, 2013, officers with the Grand Prairie Police Department were dispatched to a Target retail store to investigate an allegation of attempted theft of a video game controller. Plaintiffs allege that Hatcher, unarmed, briefly struggled with an officer and then fled the Target property. Hatcher was discovered nearby a short time later and was surrounded by at least five Tarrant County College ("TCC") Police Officers and Officer Bement. Although Hatcher was unarmed and surrounded by six officers, Officer Bement allegedly attempted to shoot Hatcher with his taser but missed. According to Plaintiffs, Officer Bement then tried to shock Hatcher directly with the taser, and two TCC police officers simultaneously sprayed Hatcher in the face with mace or pepper spray. Plaintiffs explain:

16. .... While Hatcher was being sprayed in the face by TCC Police Officer[s], Bement retreated and left his taser lodged under the arm of Hatcher.

17. The TCC Officers, without ever drawing their guns, were effective with their mace/pepper spray. Hatcher began to walk slowly away, still holding Bement's unloaded taser, and rubbing his eyes and face.

18. Without warning, while a TCC Officer was going in to spray Hatcher again, and while Hatcher did not pose a threat, Bement drew his gun and fired four hollow point bullets into the body of Hatcher.

19. The person closest to Hatcher when he was shot, a TCC Police Officer, was nearly shot by Bement, did not have her gun drawn, was not being attacked, was attempting to spray Hatcher with her mace/pepper spray, and did not understand why Bement was shooting.

20. As Hatcher rubbed his eyes, Bement shot Hatcher repeatedly until he was dead.

Dkt. No. 25 at 3-4.

Plaintiffs contended that this conduct constitutes excessive, unreasonable, and unnecessary force under the Fourth Amendment. See id. at 4-5. They urged that Officer Bement's unconstitutional actions were the direct result of Grand Prairie's "customs, practices, and policies" that permit or do not prohibit officers from shooting and/or tasering suspects simply for non-compliance with officer commands and that the City is liable for the conduct of Officer Bement. Id. at 5-6. In their Rule 7(a) reply, Plaintiffs added further detail to their description of the totality of circumstances faced by Officer Bement and Hatcher's own conduct when confronted by the officer. See Dkt. No. 26. They explained that:

• Six armed officers surrounded Hatcher at the time of the shooting, some as close as three feet away;

• The other five officers did not have their weapons drawn;

• The other officers did not find it necessary to threaten or utilize lethal force;

• The officer closest to Hatcher was about to approach him to administer pepper spray when Officer Bement shot Hatcher;

• Hatcher was wiping his eyes and backing away when Officer Bement shot him;

• The officer closest to Hatcher did not indicate that he was threatening her or anyone else when the shots were fired;

• Hatcher was shot without warning or notice;

• Hatcher was shot three additional times despite the fact that he was falling backwards after the first gunshot;• Hatcher never used or threatened anyone with a knife;

• Hatcher never presented a knife at any time during the entire incident, nor was a knife recovered from his body;

• No other officer reported that Hatcher actually possessed a knife at any time during the incident; and

• There is no indication by any officer that Hatcher threatened any student, ever made an attempt to enter any building on the campus, or that any students were in the general vicinity at the time.

Id. at 2-6.

Officer Bement again filed an answer invoking the affirmative defense of qualified immunity. See Dkt. No. 30. He alleged:

3.03 Decedent Hatcher's actions at the Target Store were a felony - he stole property and committed at least three assaults in the course of that theft. He was observed using a knife or bladed instrument to commit the theft. He overpowered two Target employees and a uniformed Grand Prairie Police Officer. A Grand Prairie Police Officer attempted to use a Taser on Hatcher at the Target Store and such use of the Taser was ineffective. His own conduct caused the law enforcement action involved in this incident.

3.04 Information made available to Law Enforcement Officers responding to this matter, indicated that Hatcher might have been armed with at least a knife. Officer Bement was aware that Hatcher might be armed with a knife.

3.05 Prior to the encounter with Officer Bement, Hatcher had already exhibited violent conduct as he escaped, and it was reported he would fight, information communicated by Police dispatchers to responding Law Enforcement Officers.

3.06 Hatcher entered the TCC campus at a time when students were present and occupying classroom facilities. Law Enforcement Officers, including TCC Police Officers, attempted to intercept Hatcher to keep this violent and possibly armed person from entering facilities occupied by students.

3.07 When a number of Law Enforcement Officers, which included Bement, attempted to cause Hatcher to surrender at the TCC campus, Hatcher refused to do so.

3.08 When Defendant Officer Bement lawfully deployed his Taser device against Hatcher, it was not effective. When Defendant Officer Bement next tried to use the Taser to make direct contact on Hatcher (a "drive stun") in accordance with his training, Hatcher was not affected by the device in a drive stun mode. Hatcher struggled with Bement and Hatcher tried to seize the Taser device from Bement.

3.09 Law Enforcement Officers lawfully used pepper spray on Hatcher and it appeared to have no effect on Hatcher. Bement was struck by pepper spray administered by other Law Enforcement Officers aimed at Hatcher because of Bement's close proximity to Hatcher. The pepper spray striking Bement did have an effect on Bement.

3.10 When the pepper spray struck Officer Bement, Hatcher then gained possession of the Taser. Bement reasonably believed the Taser device was functional and could deliver painful and disabling electric shock and potentially could cause serious bodily injury if Hatcher used the Taser in the "drive stun mode." Hatcher was holding the Taser in his hand in a ready for use position and pointed the Taser at Law Enforcement Officers.

3.11 Hatcher refused to surrender, would not give up the Taser device, and had advanced on a Law Enforcement Officer with the device in his hand when Defendant Officer Bement lawfully fired shots at Hatcher.

Dkt. No. 30 at 6-8.

Simultaneous with filing answers, Officer Bement - as well as, separately, Grand Prairie - again moved to dismiss. See Dkt. Nos. 27 & 28. The undersigned construed the post-answer Federal Rule of Civil Procedure 12(b)(6) motions as motions seeking dismissal on the basis of the pleadings under Federal Rule of Civil Procedure 12(c), and recommended that Pla...