Nickols v. Morris
| Decision Date | 08 April 2010 |
| Docket Number | Civil Action No. 4:08-CV-137-Y. |
| Citation | 705 F.Supp.2d 579 |
| Parties | Deanna Blair NICKOLS, aka DeAnna Nickols Territo, aka DeAnna Blair Territo, (TDCJ No. 842698)v.Gary MORRIS, et al. |
| Court | U.S. District Court — Northern District of Texas |
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Deanna Blair Nickols, Gatesville, TX, pro se.
William W. Krueger, III, Kevin M. Curley, McKamie Krueger LLP, Richardson, TX, for Defendants.
In this case, inmate/plaintiff DeAnna Blair Nickols has claims remaining against two individual defendants: Gary Morris and Patrick Dean Smith. 1 These defendants have now filed a motion for summary judgment, along with a brief in support and an appendix. By the combined motion for summary judgment, Morris and Smith assert a qualified-immunity defense to Nickols's claims that they subjected her to an unlawful seizure and excessive force in violation of her rights under the Fourth Amendment and were deliberately indifferent to her serious medical needs in violation of the Eighth Amendment. For the reasons set forth herein, the Court concludes that the motion for summary judgment must be granted as to each defendant.
Related motions
Although Nickols did not timely file a response to the motion for summary judgment, she filed several related motions, including a late-filed motion for extension of time to file a response to the summary-judgment motion, and eventually a response to that motion. The defendants have challenged Nickols's motions and her late-filed response. The Court will first resolve all motions related to the summary-judgment issues and clarify the matters that will be considered in ruling on the motion for summary judgment.
The motion for summary judgment was supported by an appendix containing a DVD showing approximately 25 minutes of video images from defendant Gary Morris's in-car camera recording of the events made the basis of this complaint. Nickols initially filed two motions, a motion to be bench warranted, and a request for a court order to obtain certain evidence. These motions were primarily focused on Nickols's request to view the DVD. As a result of counsel for co-defendant Bill Jones's arranging for Nickols to view the DVD at her institution of confinement, Nickols acknowledges in her February 1, 2010, response to the motion for summary judgment that she was able to view the DVD on two occassions. As a result, Nickols's motion to be bench warranted and her motion to obtain evidence will be denied as moot.2
Nickols also filed a motion for an extension of time to respond to the motion for summary judgment supported by her allegation that she had not yet had an opportunity to view the DVD. After she had a chance to review the DVD in late January, Nickols filed a nineteen-page (plus exhibits) response on February 1, 2010. Although the defendants have moved to strike the whole response, because the defendants rely extensively on the facts as shown on the DVD, and as it appears to the Court that the DVD is an accurate record of the events as they happened, the Court concludes that Nickols's motion for an extension should be granted and the Court will consider, in reviewing the summary judgment motion, Nickols's February 1, 2010, nineteen-page response.
Attached to Nickols's response, however, are six papers that she lists as exhibits. The defendants have filed a motion to strike objecting to these papers on the grounds that they contain inadmissible hearsay, are not properly authenticated, and are irrelevant to the issues in this case. The motion to strike is granted and the Court will not consider the exhibits attached to Nickols's February 1, 2020, response in ruling on the summary-judgment motion.
Nickols has also filed a “Motion to Amend Summary Judgment by Attaching pages 20, 21, 22, and 23.” Upon review, it is apparent that the motion is essentially a request by Nickols to supply an additional four pages of legal argument to her nineteen-page response. This time, however Nickols cites no reason why she could not have listed the arguments recited in these proposed “amended” pages at the time she filed the February 1, 2010, response. As such, the Court concludes that Nickols's motion to amend must be denied.
Nickols has also filed another motion for appointment of counsel. Nickols did not cite any authority for her request, but since she is proceeding under 28 U.S.C. § 1915, the Court construes her motion as seeking counsel pursuant to the provisions of 28 U.S.C. § 1915(e)(1).3 Section 1915(e)(1) authorizes the Court to appoint an attorney to represent a plaintiff proceeding in forma pauperis. There is no absolute right to an attorney in § 1983 cases, however, and a motion for appointment of an attorney under § 1915 should not be granted absent exceptional circumstances.4 Four factors are to be considered: “(1) the type and complexity of the case; (2) whether [Nickols] is capable of adequately presenting [her] case; (3) whether [Nickols] is in a position to investigate adequately the case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination.” 5
After consideration of the motion for appointment of counsel under the exceptional-circumstances standard and the enumerated factors, the Court concludes that the motion must be denied. The case is not complex and Nickols is capable of and has presented the facts as she alleges they took place. Furthermore, there is no need for extensive investigation and there is no need to resolve extensive conflicts in testimony, as the controlling and dispositive evidence in this case is presented through an objective video of the events made the basis of Nickols's complaint.
Thus, the Court will recap the materials reviewed in consideration of the motion for summary judgment. The appendix to the summary-judgment motion includes: the October 14, 2009, Affidavit of Gary Morris (exhibit 6), along with three pages of Palo Pinto County Sheriff's Office records (exhibit 1), three complaints charging Nickols with violations of law (exhibits 2-4), and a DVD containing a video recording from Gary Morris's in-car camera (exhibit 5); and the October 14, 2009, Affidavit of Patrick Dean Smith. As the exhibits attached to Nickols's response were stricken, they have not been considered in resolving the summary-judgment motion. Because Nickols expressly declared that her June 17, 2008, amended complaint; her August 13, 2008, more definite statement; and her September 21, 2009, Rule 7(a) replies, were true and correct under penalty of perjury, this Court is required to consider those documents as competent summary-judgment evidence.6
Summary judgment is appropriate when the record establishes “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.” 7 The party moving for summary judgment has the initial burden of informing the Court of the basis for his motion and producing evidence which tends to show that no genuine issue as to any material fact exists and that he is entitled to judgment as a matter of law.8 Once the moving party has made such a showing, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial.9 Whether an issue is “genuine” is a determination of whether it is “real and substantial, as opposed to merely formal, pretended, or a sham.” 10 A fact is “material” if its resolution in favor of one party might affect the outcome of the action under governing law.11 No genuine issue of material fact exists if no rational trier of fact could find for the nonmoving party based on the evidence presented.12 A Court must generally consider all evidence in the light most favorable to the nonmoving party.13 Nevertheless, the Supreme Court held that where a videotape exists that discredits the nonmoving party's version of events so that no reasonable jury could believe it, a court is required to view the facts in the light depicted by the videotape.14
Guided by the Supreme Court's recognition that the facts captured on a videotape can be dispositive when the underlying facts are in dispute, the Court has carefully reviewed and chronicled the events as shown on the DVD video recording. All images recorded on the DVD are from a single camera inside officer” Gary Morris's patrol vehicle looking towards the area where Nickols's pick-up truck is parked at the side of the road. Morris's car is facing the front of Nickols's vehicle. The angle of view is a wide-angle image inclusive of the truck on the left side of the frame and the roadway in the middle and right side of the frame. Officer Morris wears a microphone. Thus, all of his statements and exclamations are heard throughout the whole recording, even when he is not in the frame. The microphone sometimes picks up the audio of other persons and sounds.
The recording begins with an encoded time of 18:53:00 with an image of a pick-up truck pulled over, and Nickols sitting in the driver's side of the cab, moving her head and upper body constantly. Although it is nighttime, the lights of the truck are not turned on, but the wiper-blades are operational, even though it is not raining. (DVD 18:53-55.) The light shining from Morris's car towards the truck washes out with bright light some of the detail of Nickols's face. Audio indicates that a dispatcher identifies the woman as Deanna Blair Torrito.15 (18:55:53.) Officer Morris walks to the driver's side and asks Nickols to step out. (18:56:34) Morris then opens the door and says “come on out,” and an object falls out of the door and to the...
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... ... showing ) that the plaintiff cannot raise a genuine issue ... as to any material fact. [ 146 ] Nickols v ... Morris , 705 F.Supp.2d 579, 584-85 (N.D. Tex. 2010) ... (“The party moving for summary ... judgment has the initial burden ... ...
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... ... showing ) that the plaintiff cannot raise a genuine issue ... as to any material fact. [ 146 ] Nickols v. Morris , ... 705 F.Supp.2d 579, 584-85 (N.D. Tex. 2010) (“The party ... moving for summary ... judgment has the initial burden ... ...
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