Holland ex rel. Holland v. City of Houston

• Decision Date: 07 January 1999
• Docket Number: Civil Action No. H-96-2951.
• Citation: 41 F.Supp.2d 678
• Parties: Vivian HOLLAND, Morse W. Holland, Individually and as Representatives of the Estate of Morse Wayne Holland, and Angela Scott, as Next Friend of Xavier Christopher Scott, Plaintiffs, v. CITY OF HOUSTON, David M. Boling, Individually and in his Official Capacity, and Lucious Carl James, Individually and d/b/a/ Cue Club and Disco, Defendants.
• Court: U.S. District Court — Southern District of Texas

41 F.Supp.2d 678

Vivian HOLLAND, Morse W. Holland, Individually and as Representatives of the Estate of Morse Wayne Holland, and Angela Scott, as Next Friend of Xavier Christopher Scott, Plaintiffs, v. CITY OF HOUSTON, David M. Boling, Individually and in his Official Capacity, and Lucious Carl James, Individually and d/b/a/ Cue Club and Disco, Defendants.

Civil Action No. H-96-2951.

United States District Court, S.D. Texas.

January 7, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Barry Milton Barnes, Barnes and Turner, Houston, TX, for Vivian Holland, Morse W. Holland, Angela Scott.

Murray Edward Malakoff, City of Houston, Judith D. Sanchez, City of Houston, Legal Dept., Houston, TX, for the City of Houston.

Richard H. Cobb, HPPU, General Counsel, Houston, TX, for David M. Boling.

William Carroll Book, Jr., Tekell Book Matthews and Limmer, Houston, TX, for L.D. Blackwell.

Sandra W. Robinson, Houston, TX, for M. Forte.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court are Defendant David Boling's ("Boling") Motion for Summary Judgment (# 66) and Defendant City of Houston's ("the City") Motion for Summary Judgment (# 90). Boling and the City seek summary judgment on the Plaintiffs' claims under 42 U.S.C. § 1983 and Texas state law. Having reviewed the pending motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that the City's motion for summary judgment should be granted and that Boling's motion for summary judgment should be granted in part and denied in part.

I. Background

On August 7, 1994, at approximately 1:23 a.m., a shooting occurred in the parking lot of Honey's Cue Club and Disco, also known as Palm's Cue Club and Disco ("Cue Club"), located at 5259 Griggs Road in Houston, Texas. The Cue Club was owned by Defendant Lucious Carl James ("James") and managed by James and his son, Richard Allen James ("Richard"). Approximately one year prior to the shooting, Richard employed Boling and David A. Dunning ("Dunning"), both officers with the Houston Police Department ("HPD"), to provide security for the club on the weekends.

The incident in dispute began when a fight broke out on the dance floor of the Cue Club between Morse Wayne Holland ("Holland"), age twenty, and several unknown patrons. Boling and Dunning, who were working authorized off-duty jobs in full uniform, separated the combatants and escorted them outside. Once outside, fighting erupted once again, and Boling and Dunning attempted to separate the participants. Boling was alerted that one of the men involved in the fight had a gun. From that point on, the parties' versions of the ensuing events differ widely. Boling contends that he proceeded to investigate and, at the south end of the parking lot, some distance from the club, discovered Holland holding a Mossberg 12 gauge pump-type shotgun while facing some of the combatants. According to Boling, although he ordered Holland to drop the weapon, Holland instead turned, assumed an aggressive stance, and aimed the shotgun at Boling. Boling maintains that, in response, he fired his .40 caliber service revolver at Holland to prevent injury to himself and other patrons. Boling asserts that Holland then dropped the shotgun, ran to the opposite side of the parking lot, and fell to the ground. In contrast, the plaintiffs allege that Holland either never held the shotgun or dropped the weapon when Boling instructed him to do so. Under either scenario, the plaintiffs contend that Holland was not armed with a weapon when he was shot by Boling. Holland died of his wounds prior to the arrival of an ambulance.

The plaintiffs — Holland's estate, parents, and son — instituted this action on August 1, 1996, seeking recovery of damages under 42 U.S.C. § 1983 and Texas law. On August 8, 1996, the City removed the case to federal court. The plaintiffs filed an amended complaint on September 16, 1998, asserting a wrongful death and survival action under Texas law, alleging negligence and gross negligence on the part of Boling and the City. The plaintiffs further assert that Boling and the City violated 42 U.S.C. § 1983 by depriving Holland of clearly established rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. They also allege that James violated the Texas Alcoholic Beverage Code by serving alcoholic beverages to Holland because he was a minor and was obviously intoxicated. Although James was served with the lawsuit on August 16, 1996, he has not filed an answer.

II. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for the motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir.1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). The moving party, however, need not negate the elements of the nonmovants' case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)).

Once a proper motion has been made, the nonmoving parties may not rest upon mere allegations or denials in the pleadings, but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993)); see Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir.1997), petition for cert. filed, ___ U.S. ___, 119 S.Ct. 794, 142 L.Ed.2d 657 (1998) (No. 98-535); Hart v. O'Brien, 127 F.3d 424, 435 (5th Cir.1997), petition for cert. filed, ___ U.S. ___, 119 S.Ct. 868, 142 L.Ed.2d 770 (1998) (No. 98-662). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505); see Marshall, 134 F.3d at 321.

Nevertheless, the nonmovants' burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, or "only a scintilla of evidence." Little, 37 F.3d at 1075; see Hart, 127 F.3d at 435; Wallace, 80 F.3d at 1047; Douglass v. United Serv. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)). Summary judgment is mandated if the nonmovants fail to make a showing sufficient to establish the existence of an element essential to their case on which they bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Wenner, 123 F.3d at 324. "In such a situation, there can be `no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23.

B. Section 1983 Claims

Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. See Migra v. Warren City School Dist. Board of Educ., 465 U.S. 75, 82, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); McIntosh v. Antonio, 71 F.3d 29, 33 (1st Cir. 1995). It provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ....

42 U.S.C. § 1983. "Section 1983 `is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights conferred elsewhere.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)); accord Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Young v. City of Killeen, 775 F.2d 1349, 1352 (5th Cir....