Hutchison v. Brookshire Bros., Ltd.

Decision Date30 September 2003
Docket NumberNo. 1:01-CV-539.,1:01-CV-539.
PartiesRaymond Bernard HUTCHISON, v. BROOKSHIRE BROTHERS, LTD., The City of Dayton, Texas, Conoco Incorporated, Craig McCown, Thaketcha Hill and Dennis Shelton.
CourtU.S. District Court — Eastern District of Texas

Grantham Harlan Coleman, Houston, TX, for Plaintiffs.

William S. Helfand and Norman Ray Giles of Magenhein, Bateman & Helfand, Houston, TX, for City of Dayton, Richard Craig McCown, defendants.

Lipscomb Norvell, Jr. of Benckenstein, Norvell & Nathan, Beaumont, TX, Warren Reid Williams, Conco, Inc. Legal Dept., Houston, TX, for Conoco, Inc., defendant.

David L. Allen, Joseph Martin McElroy of Zeleskey, Cornelius, Hallmark, Roper & Hicks, Lufkin, TX, for Thaketcha Hill, Dennis Shelton, Brookshire Bros., defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SCHELL, District Judge.

This case originated in this court when Plaintiff Raymond Bernard Hutchinson filed various state and constitutional tort claims arising from injuries he allegedly sustained siphoning gasoline at a gas station owned by Brookshire Brothers, Ltd. Plaintiff filed suit against several defendants including Brookshire Brothers and two of its employees, Dennis Shelton and Thaketcha Hill; Conoco, Inc.; the City of Dayton, Texas; the Dayton Police Department; and Richard Craig McCown, one of the city's police officers. Plaintiff claims Defendants are jointly and severally liable for his injuries.

The court now considers "Defendants Brookshire Brothers, Ltd., Dennis Shelton and Thaketcha Hill's Motion for Summary Judgment" filed August 30, 2002. (Dkt.# 47).

I. JURISDICTION

Jurisdiction is proper in this court under 28 U.S.C. §§ 1331 & 1367 (2000). Plaintiff alleges that Officer McCown violated his Fourth and Fourteenth Amendment rights. Title 42 U.S.C. § 1983 (2000) extends federal question jurisdiction to Plaintiff's constitutional tort claims. Supplemental jurisdiction is available over the remainder of Plaintiff's tort claims. 28 U.S.C. § 1367(a); see, e.g., Raygor v. Regents of University of Minnesota, 534 U.S. 533, 539-40, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002).

II. FACTUAL BACKGROUND

Plaintiff has made the following allegations. Unless otherwise noted, the parties are advised not to construe the following as findings of fact made by the court.1

On August 3, 1999, Plaintiff stopped at a Conoco Gas Station managed by Brookshire Brothers, located in the City of Dayton, Texas. Plaintiff prepaid for $8.00 worth of gas and then asked Thaketcha Hill, an employee of Brookshire Brothers, to set the pump to shut off after $8.00 was pumped. Dep. of Raymond Bernard Hutchison at 48. It is undisputed that Plaintiff then pumped more than $8.00 worth of gas. According to Plaintiff, he set the pump handle to pump gas automatically and then attended to his vehicle. Id. When Plaintiff noticed the pump had not been turned off at $8.00, he alleges that he shut off the pump and asked Hill why she did not shut off the pump at $8.00 as requested. Id. Hill was indifferent, but insisted that Plaintiff pay the additional $10.63 that was pumped. Id. Plaintiff stated that he did not have the additional money, and Hill directed Plaintiff to take the matter up with her manager. Id.

Dennis Shelton, manager of the Brookshire Brothers store, reiterated Hill's position that Plaintiff had to pay for the extra gas pumped. Plaintiff then offered to leave his driver's license and several work tools with Shelton as proof that he would return later and pay the remaining amount. Dep. of Raymond Bernard Hutchison at 49, 51. Shelton refused and demanded immediate payment or else Plaintiff and his vehicle would not be allowed to leave the premises. Dep. of Raymond Bernard Hutchison at 49. When Plaintiff suggested Shelton retrieve the excess gas, Shelton refused and stated he would supply a water bucket and hose for Plaintiff to use to siphon the gas from the vehicle. Dep. of Raymond Bernard Hutchison at 50. Plaintiff refused to do so. Id.

At this point, Shelton called the Dayton Police Department. Id. When police officer Richard Craig McCown arrived, Shelton told him what had happened. Dep. of Raymond Bernard Hutchison at 51. Shelton allegedly insisted Plaintiff be forced to siphon the gas from his vehicle. Pl.'s Resp. to Defs.' Mot. for Summ. J. at unnumbered 3,4.2 According to Plaintiff, McCown agreed that Plaintiff had to suck and siphon at least $10.63 worth of gasoline from his vehicle or else "come go with him," as he adjusted his hand on his gun holster. Pl.'s Second Am. Original Compl., ¶ 10.

Allegedly knowing that such an activity was dangerous to his health, but fearing jail or worse from McCown, Plaintiff began to siphon the gas from his vehicle. Pl.'s Second Am. Original Compl., ¶ 10; Pl.'s Resp. to Defs.' Mot. for Summ. J. at 6. As Plaintiff sucked the gas from the vehicle with minimal success, McCown demanded Plaintiff try harder. Pl.'s Second Am. Original Compl., ¶ 11. After a longer hose was brought to Plaintiff, he proceeded to suck and siphon ten buckets of gas from his vehicle before he was allowed to stop. Pl.'s Second Am. Original Compl., ¶ 12. During this time, Plaintiff says he was forced to inhale the gasoline fumes and swallow gasoline down his throat. Pl.'s Second Am. Original Compl., ¶ 13. In addition, those passing by witnessed Plaintiff's humiliation. Pl.'s Second Am. Original Compl., ¶ 12.

The process of siphoning the gas from his vehicle left Plaintiff light headed and dizzy. Pl.'s Second Am. Original Compl., ¶ 13. In addition, Plaintiff claims that his eyes watered constantly, and his lips, mouth, tongue, and throat felt "as if they were being burned by fire." Id. Plaintiff further alleges that his "stomach began to burn as if a million needles were being pressed against the inside of his stomach." Id. Plaintiff complained to Shelton and McCown about these symptoms, but he says he was "forced" to continue siphoning. Id.

After Plaintiff was permitted to leave the premises, he claims that he could only drive a short distance before he allegedly began to pass out. Pl.'s Second Am. Original Compl., ¶ 14. He further claims that his symptoms intensified and he began to vomit uncontrollably. Id.

Plaintiff then drove himself to Memorial Hospital in Houston, Texas. Pl.'s Second Am. Original Compl., ¶ 15. After treatment, Plaintiff left the hospital but had to return one hour later when he "began to vomit repeatedly, suffered severe abdominal pain, hot and cold flashes, mouth dryness and intense burning sensation from efforts to urinate and belch." Pl.'s Second Am. Original Compl., ¶ 16.

III. PROCEDURAL POSTURE

On August 3, 2001, Plaintiff filed an original complaint alleging five counts against Defendants. Count I alleged that each of the individual defendants conspired to deprive Plaintiff of certain constitutional rights including the "rights to freedom from illegal search and seizure, illegal arrest and detention, from illegal abuse coercion and intimidation, from cruel and unusual punishment, and from violations of his civil rights under Section 1983 of the United States Constitution."3 Pl.'s Original Compl., ¶ 18. Count II alleged that the actions of Defendants jointly and severally amount to an "intentional infliction of physical and emotional distress." Pl.'s Original Compl., ¶¶ 20-22. Count III alleged that the "use of force by the Defendants" to force Plaintiff to ingest gasoline amounts to an assault and battery. Pl.'s Original Compl., ¶¶ 23-25. Count IV alleged that Defendants' actions constitute "malicious abuse of process, false arrest and false imprisonment." Pl.'s Original Compl., ¶¶ 26-29. Finally, Plaintiff's Count V alleged that, under the doctrine of respondeat superior, Defendants Brookshire Brothers and Conoco Inc. and the City of Dayton "are jointly responsible and liable ... for the actions of their employees." Pl.'s Original Compl., ¶¶ 30-32.

After ruling on a series of dispositive motions,4 the following claims remain before the court: (1) conspiracy to violate civil rights under the Fourth Amendment against McCown, Brookshire Brothers, Shelton and Hill, and under the Fourteenth Amendment against Brookshire Brothers, Shelton and Hill; (2) intentional infliction of emotional distress against Brookshire Brothers, Shelton and Hill; (3) assault and battery against Brookshire Brothers, Shelton and Hill; and (4) false imprisonment against Brookshire Brothers, Shelton and Hill. (Op. and Order Grant'g in Part Defs.' Mot. for Summ. J. at 18.) These are the claims relevant to the motion currently before the court, which is "Defendants Brookshire Brothers, Ltd., Dennis Shelton and Thaketcha Hill's Motion for Summary Judgment."

IV. SUMMARY JUDGMENT STANDARD

The purpose of summary judgment is to isolate and dispose of factually insufficient claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R.CIV.P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. See id. at 248, 106 S.Ct. 2505. The party moving for summary judgment has the burden to show that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. See id. at 247, 106 S.Ct. 2505. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it...

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