Lori Wash. ex rel. J.W. v. Katy Indep. Sch. Dist.

• Decision Date: 05 June 2019
• Docket Number: Civil Action No. H-18-1848
• Citation: 390 F.Supp.3d 822
• Parties: Lori WASHINGTON, EX REL. J.W., Plaintiffs, v. KATY INDEPENDENT SCHOOL DISTRICT and Elvin Paley, Defendants.
• Court: U.S. District Court — Southern District of Texas

390 F.Supp.3d 822

Lori WASHINGTON, EX REL. J.W., Plaintiffs,

v.KATY INDEPENDENT SCHOOL DISTRICT and Elvin Paley, Defendants.

Civil Action No. H-18-1848

United States District Court, S.D. Texas, Houston Division.

Signed June 5, 2019

Andrew Joseph Willey, Drew Willey Law, Houston, TX, Martin Jay Cirkiel, Cirkiel Assoc., Round Rock, TX, for Plaintiffs.

Christopher B. Gilbert, Hailey Renee Janecka, Thompson & Horton LLP, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

Lee H. Rosenthal, Chief United States District Judge

A public school officer in the Katy Independent School District's police department tased and handcuffed J.W., a 17-year-old special-education student. His mother, Lori Washington, sued the Katy Independent School District and School Resource Officer Elvin Paley for violating of J.W.'s federally protected rights. (Docket Entry Nos. 1, 12). After discovery, the Katy School District and Officer Paley moved for summary judgment, Ms. Washington responded, and the Katy School District and Officer Paley replied. (Docket Entry Nos. 28, 29, 31).

Based on the motion, response, and reply; the summary judgment record; the parties' arguments at the motion hearing; and the applicable law, the court grants the defendants' summary judgment motion for all claims except the § 1983 claim against Officer Paley. (Docket Entry No. 28). That claim remains.

The reasons for these rulings are detailed below.

I. Background

In November 2016, J.W. was enrolled at the Mayde Creek High School in the Katy Independent School District. He was diagnosed as emotionally disturbed and intellectually disabled in ways that impacted "his daily functioning, including his ability to communicate, control his emotions, and access regular educational services without accommodations." (Docket Entry No. 12 at ¶¶ 31–32). According to the police incident report, J.W. was around 6'2? and weighed 250 pounds. (see Docket Entry No. 28-4 at 3, 11).

On November 30, 2016, J.W. was in a classroom playing a card game with another student. They started bickering, which developed into what J.W. described as "being bullied and harassed." (Docket Entry No. 29-2 at ¶ 6; see Docket Entry No. 28-6 at 2; Docket Entry No. 12 at ¶ 34). According to an unsworn statement by Ashley Lucas, a school staff member, J.W. cursed and yelled, then punched the other student in the chest and knocked him out of his chair. (Docket Entry No. 28-6 at 2). J.W. left the classroom and went down the hallway, continuing to yell and curse. (Id. ). J.W.'s teacher emailed Assistant Principal Denise Majewski, who was responsible for the school's special-education students, to alert her of the situation. (Docket Entry No. 28-8 at 2, 6).

J.W. took himself to a "chill out" classroom that he used when he was upset. He found a student already there. (Docket Entry No. 29-2 at ¶¶ 8–9). Coach Larry Hamilton was standing outside that classroom talking with a student and saw J.W. throw a desk across the room, shouting that he "hated" the school. (Docket Entry No. 28-7). Hamilton saw J.W. kick the door, leave the occupied "chill" classroom, and continue down the hallway toward a door leading out of the school building. (Id. ). School officials blocked him from leaving the building, and events escalated from there. (see Docket Entry No. 28-8 at 2–3; Docket Entry No. 28-9 at 2).

J.W.'s description of this first stage of the events is different. (Docket Entry No. 29-2). He did not mention in his declaration throwing a desk or cursing. He stated that after leaving the "chill-out" classroom, he walked "towards a door leading to a breeze way between buildings on the campus," where he was stopped by a staff member who "loosely block[ed] the doors." (Id. at ¶¶ 9–11). A female Katy Independent School District police officer arrived soon after. (Id. at ¶ 11). J.W. stated that he told the staff member blocking the doors that keeping him inside was just making him more upset. He asked to leave so that he could "cool down." (Id. at ¶¶ 13, 14). Minutes later, he "calmly walk[ed] toward the door nearest [him] and attempt[ed] to go outside," not touching anyone. (Id. at ¶ 16).

Assistant Principal Majewski learned of the situation when J.W. left the "chill out room" and was in the hallway. (Docket Entry No. 28-8 at 2). Officer Elvin Paley, a school resource officer, stated in his declaration that Assistant Principal Majewski radioed for assistance to come help keep J.W. inside the school building. (Docket Entry No. 28-1 at ¶ 3). When Assistant Principal Majewski arrived at the scene, a school security guard, John Oglesby, and Coach Hamilton were trying to talk J.W. out of leaving the building. Security guard Oglesby was blocking the door. (Docket Entry No. 28-8 at 2; see Docket Entry No. 28-9 at 2). Assistant Principal Majewski stated in her declaration that J.W. was "direct[ing] profanity toward the staff," and that she was concerned about J.W. leaving because the staff "would lose all control over him, and he might get injured." (Docket Entry No. 28-8 at 2).

Officer Paley's body camera recorded J.W.'s interactions with the officers and school staff after that point. The recording shows J.W. pacing in front of the door leading outside the school building and complaining to the school staff member blocking the door that he wants to leave so he could walk home and calm down. He is not yelling at the staff members, but the video recording shows him looking agitated and occasionally raising his voice. The recording then shows J.W. starting to push the door open. (Docket Entry No. 28-10 at 12:45:54). The staff member pushes back on the door to keep J.W. inside, but it does not appear that J.W. pushes the staff member, as the Katy School District contends. Within about five seconds of J.W. pushing on the door, Officer Paley moves toward J.W. and the staff member. Officer Paley's body camera then becomes dark as he pushes up against J.W.'s body. Both Officer Paley and the staff member tell J.W. to "calm down" several times. A male voice threatens J.W. with tasing. About 20 seconds later, the male voice says, "You are not going to get through this door, just relax." (Id. at 12:46:05, 12:46:26). J.W. then begins screaming.

The video becomes clear again as Officer Paley moves away from J.W. The recording shows two individuals holding J.W. Approximately 10 seconds after Officer Paley tells J.W. to relax, Officer Paley tells the individuals holding J.W. to "let him go," and fires the taser. (Id. at 12:46:37). J.W. immediately screams and falls to his knees. About 5 seconds later, the video recording shows Officer Paley beginning to "drive stun" J.W. near his bottom right torso, and then on J.W.'s upper back. (Id. at 12:46:41).¹ "Drive stun" means to hold the taser against the body without deploying the prongs. J.W., still on his knees, then falls to the ground completely. The taser is used on J.W. for approximately 15 seconds. (Id. at 12:46:56). This use of the taser on J.W.'s upper back continues after J.W. is lying face down on the ground and not struggling.

After Officer Paley stops tasing J.W., Officer Angela Molina, another school resource officer, places handcuffs on J.W.'s wrists, behind his back. (Id. at 12:47:11). Less than a minute later, while J.W. lies panting on the ground, Officer Paley points the taser at J.W.'s head, yelling, "I did not want to tase you, but you do not run shit around here, you understand?" (Id. at 12:47:50).

According to Officer Paley, he used the taser the second time to drive stun J.W. because the first time did not have enough effect. This second use of the taser brought J.W. to a prone position on the floor with his hands under his chest. (Docket Entry No. 28-1 at ¶ 7).

J.W. stated that he began to scream and cry as Officer Paley tased him, and that Officer Paley kept tasing him "approximately six to eight times" even after he was on the ground. (Docket Entry No. 29-2 at ¶¶ 24, 26). According to J.W., when paramedics arrived, they had to remove a taser prong "embedded ... near [his] right rib cage." (Id. at ¶ 47).

J.W. thought he was under arrest. He urinated and defecated on himself after being tased. (Id. at ¶¶ 29, 34). J.W. stated that as he was being handcuffed, he began having difficulty breathing and, even after being moved to his side, he felt like he was going to die. (Id. at ¶¶ 36, 37). It was only when he was allowed to sit upright that he was able to "take a big gulp of air." (Id. at ¶ 38).

Officer Paley stated that he called dispatch and asked for emergency medical services. (Docket Entry No. 28-1 at ¶ 9). Officer Paley also told security guard Oglesby to get the school nurse. (Id. at ¶ 8; Docket Entry No. 28-8 at 3, ¶ 5). Officer Paley's body camera video recording shows school nurse Shirley Willett treating J.W. The recording also shows the school officers and staff responding to J.W.'s reports of difficulty breathing. (Docket Entry No. 28-10; see also Docket Entry No. 28-1 at ¶ 9; Docket Entry No. 28-8 at 3).

EMS arrived around 1:00 p.m., about 15 minutes after the tasing. (Docket Entry No. 28-4 at 4, 14, 23; Docket Entry No. 28-1 at ¶ 10; Docket Entry No. 28-8 at ¶ 5). J.W. was taken back to the school's security office around 1:30 p.m. (Docket Entry No. 28-1 at ¶ 10; Docket Entry No. 28-8 at 3). According to Vice-Principal Majewski, she tried to contact Ms. Washington shortly after that. (Docket Entry No. 28-8 at 3). J.W. stated that the school did not contact his mother until "the female paramedic inform[ed] the school officials that they should have contacted [his] mother immediately." (Docket Entry No. 29-2 at ¶ 46; id. at ¶¶ 43, 49). Vice-Principal Majewski stated that when she called Ms. Washington's phone, it would not accept new messages, J.W.'s emergency-contact number did not work, and emails to Ms. Washington went unanswered. (Docket Entry No. 28-8 at 3). At 2:00 p.m., Ms. Washington called Vice-Principal Majewski and said that she was on her way to the school. (Id. ).

Before...