Malone v. City of Fort Worth

• Decision Date: 06 November 2014
• Docket Number: CIVIL ACTION NO.4:09-CV-634-Y
• Parties: MICHAEL L. MALONE v. CITY OF FORT WORTH, TEXAS, et al.
• Court: U.S. District Court — Northern District of Texas

MICHAEL L. MALONE
v.
CITY OF FORT WORTH, TEXAS, et al.

CIVIL ACTION NO.4:09-CV-634-Y

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

November 6, 2014

OPINION AND ORDER RESOLVING MOTIONS FOR SUMMARY JUDGMENT ON THE BASIS OF QUALIFIED IMMUNITY

In this case, plaintiff Michael L. Malone has claims remaining against eleven police officers of the City of Fort Worth, Texas, individually, and against the City of Fort Worth, Texas.¹ Now pending are five motions for summary judgment based on qualified immunity. Defendants Adrian Tidwell and Samuel Davidsaver each filed their own motions; defendants Justin L. Stroud, Mark Ball, Christopher H. Watts, and Nathan S. Lehman ("the Stroud group") filed a collective summary judgment motion; so did defendants John T. Davis, James S. Fields, and Jason L. Gipson ("the Davis group"); likewise, defendants Deena Evans and Jaimy Faigan ("the Evans Group"). Each motion was supported by a brief in support and an extensive appendix. As a result of a Court order resolving objections and providing plaintiff Malone a chance to file an amended brief, Malone filed an amended brief in response to all of the summary judgment motions, along with a 367-page appendix. Also before the Court are the reply briefs filed by the defendants, and

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a supplemental reply and objections to the amended brief.

I. Background

Plaintiff's claims arise from a July 23, 2009, incident in which he was forcibly arrested after fleeing from Fort Worth police officers in a stolen truck for seven to eight minutes, only to be stopped on a dead-end street. All eleven of the individual officers arrived at the location either immediately or soon after Malone brought the truck to a stop. The issues to be resolved in this case arise primarily from what happened over the course of the first two minutes or so after Malone pulled the stolen pick-up truck to a stop. But what took place during Malone's pre-stop flight is also relevant to the Court's determination.

Officer Tidwell, accompanied by a police dog, was the first officer to pull his police unit up behind Malone's truck. He was followed closely by Officer Davis, and then the other officers. What ensued was Malone's forcible removal through the driver's-side window of the truck, blows upon him by Tidwell, and a pre-and post-handcuffing attack upon him by the dog, which injured him.

Malone has causes of action remaining against the individual defendants for the use of excessive force by Officer Tidwell personally and through the use of his dog, violation of the Fourth Amendment by Officer Stroud in directing medical personnel on positioning Malone for an ambulance ride, and bystander liability

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claims under the Fourth Amendment against each officer other than Tidwell. (Plaintiff's Fourth Amended Complaint (4AC), at 56-57.)

After review of all relevant materials on file, the Court concludes that although genuine disputes of material fact remain as to Plaintiff's Fourth Amendment excessive-force claim against Tidwell, and as to the bystander claims against defendants Davis, Fields, Gipson, Stroud, and Lehman, no such material-fact disputes exist as to the direct Fourth Amendment claim against Stroud, and as to the bystander-liability claims against defendants Ball, Watts, Evans, Faigin, and Davidsaver. Thus, some defendants are entitled to summary judgment and will be dismissed.

II. Summary-Judgment Evidence

A. Evidence Submitted by the Parties

The first summary-judgment motion filed was that of the Stroud group. In support of that motion, these defendants filed an appendix containing over 500 pages of exhibits. (Electronic Case File (ECF) doc. 190.) That appendix includes the following items, with a corresponding reference to each item's identifying letter: a DVD recording of the dashboard camera video stream from Officer Davis's patrol vehicle ("Dash cam DVD")(A); a DVD recording of the camera video stream from a City of Fort Worth police helicopter hovering over the scene ("Aerial DVD")(B); a DVD recording of portions of the radio communications between officers pursuing

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Malone in flight (C); a DVD compilation of both the aerial and dash-camera video angles onto one screen ("Compilation DVD")(D); a map of the pursuit route (F); photographs from the scene of the arrest (G); Malone's criminal records (H); a Fort Worth Police Department Incident Report (I); Malone's response to Request for Admission (J); deposition excerpts of Malone (K), Tidwell (L), Jaime Johnson (M), Davis (N), Greg Abernathy (O), Davidsaver (P), Fields (Q), Carlson B. Thompson (R)², Stroud (S), Ball (T), Lehman (U), and Watts; the November 21, 2013 Affidavit of Adrian W. Tidwell, with exhibit (W); the November 22, 2013 Affidavit of Justin Stroud (X); the November 22, 2013 Affidavit of Mark Ball (Y); the November 21, 2013 Affidavit of Nathan Lehman (Z); the November 22, 2013 Affidavit of Christopher Watts (AA); the November 25, 2013 Affidavit of Samuel C. Davidsaver (BB); the November 23, 2013 Affidavit of John T. Davis with exhibits (CC); and the November 23, 2013 Affidavit of James Fields (DD).

The Davis group also filed an appendix to their motion. (ECF doc. 196.) That appendix included the following evidentiary items not provided by the Stroud group: the November 23, 2013 Affidavit of Jason Gipson (FF); Medstar Records for the July 23, 2009 treatment of Malone (R)³; the November 19, 2013 Affidavit of City of Fort Worth detective Kathleen Westfall, with as an exhibit

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thereto a DVD recording of an interview she conducted with Malone in the early morning hours of July 24, 2009 (S and T).

Davidsaver then provided complete transcripts of numerous depositions taken in this case in his appendix, which is found at ECF number 208. The Evans group also filed an appendix at ECF number 203, containing the complete deposition of most of the parties to this suit, and new evidence: the November 25, 2013 Affidavit of Jaimy Faigin (Tab 12), and the November 25, 2013 Affidavit of Deena Evans (Tab 13.)

In compliance with this Court's order, Malone submitted, at ECF number 238, an appendix in support of his amended brief. That appendix contains the following: a "still-image chronology" of still-frame, side-by-side images from both the aerial camera and the dash-cam video (Plaintiff's Appendix (PApp.), 2-40); a City of Fort Worth Internal Investigation File (PApp. 41-96); photographs of the arrest scene and Officer Tidwell's gun (PApp. 97-121); Fort Worth Police Department Canine Unit Standard Operating Procedures (excerpts) (PApp. 122-28); Fort Worth Police Department General Orders (excerpts)(PApp. 129-66); excerpts of the depositions of several representatives of the City of Fort Worth (PApp. 287-316); a Fort Worth K-9 video (PApp. 359); the July 23, 2009, K-9 Officer's Daily Activity Report for Tidwell (PApp. 360); and the January 9, 2014 Declaration of Michael D. Malone (PApp. 362.)

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B. Evidence on the Video and Audio Tapes

The Supreme Court, in Scott v. Harris, 550 U.S. 372 (2007), held that where a videotape exists that discredits the nonmoving party's version of events so that no reasonable jury could believe it, the Court is required to view the facts in the light depicted by the videotape. Although that is not the case in the instant suit, the Court does have before it several videos in this case that provide objective facts that dramatically assist this Court, and that the Court has relied upon extensively in resolving these summary-judgment motions.

Included are two different video-camera angles of the relevant events, an audio recording of some radio transmissions, and a compilation DVD of the two camera viewpoint recordings on one image, side-by-side. The compilation DVD was created by Malone's counsel. It includes identification numbers that assist the Court in determining the location of each defendant and what each was doing throughout the events at issue. The defendants all agree that the compilation DVD accurately depicts the events and the two camera angles together, and they also have agreed to the identification numbers added to the compilation DVD to denote the ongoing location of the police dog and each party: Malone(P), Dog (D), Tidwell (1), Davis (2), Fields (3), Gipson (4), Ball (5), Watts (6), Evans (7), Faigin (8), Stroud (9), Lehman (10), and Davidsaver (11). Thus, the Court will rely extensively upon its visual review of these recordings in resolving the motions and in

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considering the other summary-judgment evidence.

(i)- Officer Davis's Dashboard Camera--Malone Flight

Officer Davis began to pursue Malone, with his lights activated, after Davis checked the truck's license plates on his in-car computer and learned that the truck had been reported stolen. Davis called out on the radio that a vehicle pursuit had begun and gave a code indicating a stolen vehicle. Although Davis initially lost sight of Malone, he soon relocated the truck and re-activated his lights. It was at this point that the dash-camera video began recording (7:55:43 p.m.). (PApp. at 308, Randolph Depo. at 78.)

Over the course of the next several minutes, Davis pursued Malone across major and side streets throughout the west side of Fort Worth. Davis remained directly behind Malone, at times exceeding the speed limit, running stop signs, and narrowly missing other traffic. (Dash Cam Video 7:56:00-8:02:00). At one point, Malone turned the truck into a car wash and stopped the truck for a few seconds, at which point Davis was no longer immediately behind Malone. (Dash Cam Video 8:02:30). Davis then backed his vehicle up, and when he returned to the chase, his dash-camera captured Officer Tidwell, who had also pulled his police vehicle into the car-wash area, braking as Malone drove out, across the car-wash bay in front of Tidwell. (Dash Cam Video 8:02:35). Malone then lead Davis southbound into northbound traffic on Alta Mere Drive, causing Davis to have to slow...