Marshall v. Russell
| Decision Date | 20 September 2018 |
| Docket Number | CIVIL ACTION NO. 4:16-CV-01881 |
| Parties | Maite MARSHALL, et al., Plaintiffs, v. Ben RUSSELL, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
ORDER SUSTAINING THE REPORT AND RECOMMENDATION
On this day came to be considered the plaintiffs', Maite Marshall and Dylan Marshall, response to the defendant, Ben Russell's Objections to the Report and Recommendation on Defendants' Motion for Summary Judgment (Dkt. No. 68). Having considered the facts, the law, and the argument of counsel, the Court DENIES the Objections and SUSTAINS the Report and Recommendation of this Court to deny Defendant Ben Russell's summary judgment in favor of the plaintiffs', Maite Marshall and Dylan Marshall as to all claims. The Court has reviewed the papers submitted in connection with this motion.
It is ORDERED that the defendant, Ben Russell's Motion for Summary Judgment is DENIED for all claims and the Report and Recommendation of this Court is SUSTAINED for further proceedings.
It is so ORDERED.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
August 28, 2018
Before the Court are Defendant Ben Russell's Amended Motion for Summary Judgment, ECF No. 55,1 and Defendant Harris County's Motion for Summary Judgment, ECF No. 53.2 Having considered the filings and the record, which contain both factual evidence and applicable legal authorities, the Court recommends that Defendant Ben Russell's motion should be granted in part and denied in part, and Defendant Harris County's motion should be granted.3
Plaintiffs Maite Marshall and Dylan Marshall ("Plaintiffs") filed this suit against Defendants Sergeant Ben Russell ("Sgt. Russell") and Harris County ("County") (collectively "Defendants") on June 28, 2016. ECF No. 1. This civil rights suit arises out of the shooting death of Charles Marshall ("Mr. Marshall" or "Decedent") on June 21, 2015. Maite Marshall is the Decedent's wife, and Dylan Marshall is Decedent's and Maite Marshall's son. The operative complaint, Plaintiffs' Third Amended Complaint, alleges the following causes of action under federal and state law:
Most of the facts are undisputed, except for some details in the moments leading up to the shooting. Construing the record in the light most favorable to Plaintiffs, as the Court must on a motion for summary judgment, the following are the pertinent facts in evidence:
A. Facts Leading Up To The Shooting.
Mr. Marshall had a history of depression and bipolar disorder
and was previously hospitalized for one or both of those conditions. D. Marshall Dep. 7:18-8:6, ECF No. 52-5; M. Marshall Dep. 9:6-25, 10:5-24, ECF No. 52-6. This incident occurred on June 21, 2015, at Mr. Marshall's apartment in Houston, Texas. D. Marshall Dep. 9:2-7, ECF No. 52-5; Russell Aff. ¶ 5, ECF No. 52-2. Dylan Marshall was at home with his father. D. Marshall Dep. 9:2-7, 12:2-16, ECF No. 52-5. When Mr. Marshall arrived home, he was under the influence of alcohol, sad, and depressed. Id. 12:2-13. Dylan and his father were having a verbal argument. Id. 12:19-13:23. Dylan called his mother to help alleviate his father's intoxicated and depressed state. Id. 12:2-18.
Mr. Marshall cut his wrist
with a razor and was bleeding. Id. 6:3-7:17. After Mrs. Marshall arrived at the apartment, she called 911 to request an ambulance at 4:17 p.m. M. Marshall Dep. 9:1-6, ECF No. 57-6; Coons Aff. ¶ 6, ECF No. 52-3. While Mrs. Marshall only called 911 to request an ambulance, M. Marshall Dep. 9:1-6, ECF No. 57-6, and did not request law enforcement, "ambulance dispatchers routinely request police officers to first stabilize scenes such as this prior to entry by the crew and, second, to maintain security while the crew performs their task," Coons Aff. ¶ 25, ECF No. 52-3.
At 4:24 p.m., after speaking with Mrs. Marshall, the dispatcher entered the following text into Call Slip #SA150621170:
CREP ADV HER 49 YO HUSBAND SLIT HIS WRISTS AND IS BLEEDING / NOT A SUICIDE ATTEMPT / REP IS ARGUING WITH HER HUSBAND .. UNK CLOTHING DESC / CYPRESS CREEK EMS ENRT / EMS REQ SO / EMS ADV WILL STAGE / ADV HUSBAND IS INTOX .. ADV HUSBAND IS VIOLENT / NO WEAPONS
Id. ¶ 6. The Cypress Creek Ambulance Service also called the Harris County Sheriff's Office ("HCSO") at 4:22 p.m. requesting a deputy to support them. Id. This HCSO call slip, #SA150621171, advised:
EMS STAGED // REQ. S.O. TO CHECK BY FOR POSS DISTB // ADV ML WAS INTOX AND DIDN'T WANT TO ANSWER ANY MORE QUESTIONS
Id. Call slip #SA150621171 was combined with Call Slip #150621170 at 4:24 p.m., and was broadcast to patrol units two minutes later at 4:26 p.m. Id. Sgt. Russell responded to the call at 4:26 p.m., and arrived alone at the apartment at 4:29 p.m. Id.
Upon arriving, Sgt. Russell saw Mrs. Marshall on the second floor landing, outside the apartment. Russell Aff. ¶ 7, ECF No. 52-2. Sgt. Russell walked up the stairs and asked Mrs. Marshall what was going on. Id. She spoke with the officer briefly. Id. ; M. Marshall Dep. 12:5-13:24, ECF No. 57-6.
B. The Shooting.
Sgt. Russell moved to the middle of the second floor landing outside the apartment doorway, where he could see into the apartment. Russell Aff. ¶ 7, ECF No. 52-2. Mr. Marshall was standing with no shirt on, visibly bleeding from his left wrist, and holding a cordless drill. Id. Mr. Marshall initially did not appear to realize Sgt. Russell was present and focused his attention on Mrs. Marshall. Id. ¶ 8. Mr. Marshall turned toward the wall to his left and appeared to press the drill against his left wrist. Id. ; M. Marshall Dep. 13:5-14:13, ECF No. 57-6. The parties dispute whether the drill had a drill bit on it, and likewise dispute whether the drill caused any injury to Mr. Marshall or penetrated his skin. Russell Aff. ¶¶ 8-10, ECF No. 52-2; M. Marshall Dep. at 13:5-15:13, ECF No. 57-6. Sgt. Russell removed his firearm from his holster and ordered Mr. Marshall to put down the drill. Russell Aff. ¶ 10, ECF No. 52-2; M. Marshall Dep. 13:2-14:20, ECF No. 57-6. Mr. Marshall asked whether Sgt. Russell was going to kill him. Russell Aff. ¶ 10, ECF No. 52-2; M. Marshall Dep. 14:14-16, ECF No. 57-6. Sgt. Russell then fired one shot into Mr. Marshall's chest, causing Mr. Marshall to fall to his side. Russell Aff. ¶ 10, ECF No. 52-2; M. Marshall Dep. 14:17-20, ECF No. 57-6. One minute and fifty seconds (01:50) after Sgt. Russell arrived on scene, at 4:31:36 p.m., Call Slip #SA150621170 indicated shots had been fired. Coons Aff. ¶ 6, ECF No. 52-3.
Fifty-one seconds (00:51) later, at 4:32:00 p.m., Sgt. Russell radioed for the ambulance to "move up" and come to the scene of the shooting. Id. Paramedics arrived on scene at 4:37 p.m. Zwickey Aff. at 11, ECF No. 52-4. They pronounced Mr. Marshall deceased at 4:38 p.m. Id. It is undisputed the gunshot wound
caused Mr. Marshall's death. Id. at 12; M. Marshall Dep. 14:17-22, ECF No. 57-6.
During the time Sgt. Russell was on scene and leading up to the shooting, Dylan Marshall was in the bathroom taking a shower. D. Marshall Dep. 9:2-11, ECF No. 52-5. Before Dylan heard the gunshot, he heard his mother say "in a loud voice," "Charlie, just please put down the drill," and then he heard the gunshot. Id. 9:12-10:8.
The parties dispute various details in the moments leading up to the shooting. They dispute what Mrs. Marshall said to Sgt. Russell when he arrived. Mrs. Marshall testified that she told the officer "I'm waiting for the ambulance because my husband needs medical attention because he's bleeding from his left arm." M. Marshall Dep. 12:23-13:24, ECF No. 57-6. The officer allegedly asked if Mr. Marshall was being bothersome, and Mrs. Marshall testified she said "No." Id. Mrs. Marshall also testified she told Sgt. Russell that Mr. Marshall was drunk. Id. 11:20-22. The parties dispute where Mr. Marshall was standing throughout the encounter and whether he made a threatening movement toward Sgt. Russell. Mrs. Marshall testified that after Sgt. Russell climbed the stairs to the second floor landing outside of the apartment, Mr. Marshall was standing inside the doorway, and Mrs. Marshall stood in between Sgt. Russell and Mr. Marshall by the side of the landing. Id. 15:3-16:18. Plaintiffs claimed Mr. Marshall never moved from this position, never made any threatening movement toward Sgt. Russell, and did not present any danger to anyone. Mrs. Marshall's testimony supports these assertions. Id. 14:11-25, 15:1-16:8. She testified that just before Mr. Marshall was shot, he said Id. 14. She further testified Sgt. Russell shot Mr. Marshall suddenly and for no reason. Id. Mrs. Marshall testified that after the shooting she and her son were directed to clear the scene, and then Sgt. Russell returned to the apartment alone, tampered with evidence, took a drill bit from the drill case on the kitchen counter, and attached the drill bit to the drill. Id. 4:3-7:6, 5:23-6:11.
Sgt. Russell stated after he climbed the stairs to the second floor landing outside of the apartment, Mrs. Marshall was on the landing pointing at a person in the apartment and yelling to get Mr. Marshall out of the apartment. Russell Aff. ¶ 7, ECF No. 52-2. Sgt. Russell stated, when he approached the apartment, he was standing about three feet from the doorway on the landing, and Mr. Marshall was standing approximately four feet inside the apartment. Id. ¶¶ 7-8. Seeing Mr. Marshall press the drill against his arm caused Sgt. Russell to fear for his own safety and Mrs. Marshall's...
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