Johnson v. Waters

• Decision Date: 11 May 2004
• Docket Number: No. 6:03-CV-318.,6:03-CV-318.
• Citation: 317 F.Supp.2d 726
• Parties: Shanikwa JOHNSON, Plaintiff, v. Mark WATERS, Deputy Constable, et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

317 F.Supp.2d 726

Shanikwa JOHNSON, Plaintiff, v. Mark WATERS, Deputy Constable, et al., Defendants.

No. 6:03-CV-318.

United States District Court, E.D. Texas, Tyler Division.

May 11, 2004.

Curtis Bradley Stuckey, Stuckey, Garrigan & Castetter, Nacogdoches, TX, for Plaintiff.

Robert Scott Davis, Flowers Davis, Tyler, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVIS, District Judge.

Before the Court is Defendants Mark Waters, Dennis Taylor, J.B. Smith, and Smith County, Texas' Amended Motion for Summary Judgment (Document No. 65) and Plaintiff's Response (Document No. 56). Based on the parties' filings and the applicable law, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.

Background and Procedural History

On or about October 17, 2002, between approximately 5:00 p.m. and 5:30 p.m., the Smith County Special Crimes Unit of the Smith County Sheriff's Department executed a drug-buy-bust¹ at 4513 Edinburgh, Tyler, Texas. Constable Mark Waters, a licensed Texas Peace Officer, assisted in the operation under the supervision of the sheriff's department. Pre-drug-buy-bust operation briefing revealed the suspect to be Donald Ray Johnson. Further briefing revealed that a black female was suspected of being involved in the illegal drug activity and noted that 4513 Edinburgh was the residence of Johnson's girlfriend. At the time of the drug-buy-bust, Johnson changed the location of the transaction and directed a confidential source and undercover police officer to the residence at 4513 Edinburgh, which had been earlier identified in the briefing as the suspect's girlfriend's house. When the confidential informant and Undercover Officer Suell arrived at the new location, an unanticipated suspect, later identified as Edward C. Neal, was also at the residence with suspect Donald Johnson. The drug-buy-bust involved the sale of 12 ounces of crack cocaine for $5,000.00. The arrest and apprehension of Edward Neal and Donald Johnson occurred in the front yard/driveway area of the residence.

During the operation, Constable Waters was assigned to protect the front entrance of the house. Immediately after the two suspects were arrested in the front yard, Constable Waters entered the residence and conducted a "protective sweep" of the house. Constable Waters testified that he had observed a small child standing between him and an open front door, and that he believed that a suspect or suspects had possibly fled back into the house. Upon entering the residence, Constable Waters announced "POLICE." He entered a hallway and proceeded to a doorway of a bedroom off the hallway. At the bedroom door, Constable Waters observed a large object, which he determined was an adult person, on a bed. Constable Waters yelled "TYLER PD FREEZE," and fired a shot, which struck Plaintiff Johnson in the arm. Constable Waters claimed that he had seen a movement, either "the hands, a hand, or the upper torso," which caused him to "fear for his life" before he shot. He claimed the natural lighting in the bedroom was dim and stated that he turned on the lights in the room 30 to 45 seconds after the shooting.

Plaintiff Johnson was employed as a jailer by Defendant Smith County at the time she was shot. She testified that she had gotten off of work and had just finished cooking dinner for her children and others before laying down in the bedroom. She testified that she was sleeping when she heard a loud bang from a door hitting the wall. Plaintiff Johnson denies making any sudden movements but concedes that she turned her head to see where the bang came from. Though Johnson admits the lights were not on and that it was dim, she claims it was not dark inside the house and that she could see clearly in the room. Plaintiff Johnson stated that she saw Constable Waters standing in the doorway and saw sparks as the bullet fired from the gun. She testified that she did not get off the bed or start to get off the bed before she was shot. Plaintiff Johnson was not armed and asked Constable Waters why he shot her. She testified that she heard the other officers asking Defendant Waters why he shot her and inquiring as to what he was doing in the house. It is undisputed that Plaintiff Johnson was injured and that she has undergone several operations as a result.

Plaintiff Johnson filed suit under 42 U.S.C. § 1983 against Deputy Constable Mark Waters, Constable Dennis Taylor, Smith County Sheriff J.B. Smith, Tyler Police Chief Gary Swindle, Smith County, Texas, City of Tyler, Texas, and Unknown John Does of Smith County and City of Tyler Law Enforcement Officers,² claiming that the unlawful warrantless entry into her home amounted to an unlawful search in contravention of the Fourth Amendment; that the subsequent search of her home was conducted in an objectively unreasonable manner in violation of the Fourth Amendment; and that the shooting of Plaintiff Johnson amounted to an unreasonable seizure in violation of the Fourth Amendment. In addition, Plaintiff Johnson asserts municipal/supervisory liability claims against Defendants Smith County, Sheriff Smith, and Constable Taylor based on alleged deficient actual policies, procedures and customs, as well as the alleged retention and hiring of Defendant Constable Waters with actual knowledge of his propensity for misconduct and failure to supervise. Plaintiff Johnson also asserts a claim under the Texas Tort Claims Act against Defendant Smith County, Texas arising out of Constable Waters' alleged negligent use of his weapons. Defendants deny that Plaintiff's constitutional rights were violated and move for summary judgment on all claims; however, in the event that the Court finds such violations occurred, Defendants seek the affirmative defense of qualified immunity.

Summary Judgment Standard

A motion for summary judgment should be granted if the record, taken as a whole, "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 judgment as a matter of law." FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). The Supreme Court has interpreted the plain language of Rule 56 as mandating "the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The party moving for summary judgment, the movant, "must `demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (quoting Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548). A fact is material if it might affect the outcome of the suit under the governing law. Merritt-Campbell, Inc. v. RxP Products, Inc., 164 F.3d 957, 961 (5th Cir.1999). Issues of material fact are "genuine" only if they require resolution by a trier of fact and if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Merritt-Campbell, Inc., 164 F.3d at 961. If the moving party "fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Little, 37 F.3d at 1075.

If the movant meets this burden, Rule 56 requires the opposing party to go beyond the pleadings and to show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1180 (5th Cir.1996); Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1046-47 (5th Cir.1996). The nonmovant's burden may not be satisfied by argument, conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a mere scintilla of evidence. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075.

When ruling on a motion for summary judgment, the Court is required to view all justifiable inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Merritt-Campbell, Inc., 164 F.3d at 961. However, the Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.), as modified, 70 F.3d 26 (5th Cir.1995). Unless there is sufficient evidence for a reasonable jury to return a verdict in the opposing party's favor, there is no genuine issue for trial, and summary judgment must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 249-51, 106 S.Ct. 2505; Texas Instruments, 100 F.3d at 1179.

42 U.S.C. § 1983 and Qualified Immunity

Section 1983 provides redress for those who have been injured or deprived of their rights under color of state law.³ In order to state a valid claim under section 1983, plaintiffs must: (1) allege a violation of rights secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person [or entity] acting under color of state law. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994) (citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). It is undisputed that Constable Waters was acting within the scope of his employment at the time of the alleged violations.

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