Nitsch v. City of El Paso

• Citation: 482 F.Supp.2d 820
• Decision Date: 26 February 2007
• Docket Number: No. EP-06-CA-0042 KC.,EP-06-CA-0042 KC.
• Parties: Billy Ray NITSCH, Plaintiff, v. The CITY OF EL PASO, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

482 F.Supp.2d 820

Billy Ray NITSCH, Plaintiff, v. The CITY OF EL PASO, et al., Defendants.

No. EP-06-CA-0042 KC.

United States District Court, W.D. Texas, El Paso Division.

February 26, 2007.

COPYRIGHT MATERIAL OMITTED

Sam Snoddy, Law Office, El Paso, TX, for Plaintiff.

Jennifer F. Callan, El Paso City Attorney's Office, Duane A. Baker, Attorney At Law, John Lomax Anderson, Paso City Attorney's Office, El Paso, TX, for Defendants.

ORDER

CARDONE, District Judge.

On this day, the Court considered Defendant police officers William Hooks', Eric. Watts', Roberto Concha's, Saul Villalobos', Eloy Serna's, John Wasmuth's, Clinton Nelms', and Raul Perez' Motion for Summary Judgment as well as the City of El Paso's Motion for Summary Judgment. For the reasons set forth herein, the police officers' Motion is GRANTED in part and denied in part and the City's Motion is GRANTED.

I. BACKGROUND

On January 30, 2004, Plaintiff Billy Ray Nitsch ("Nitsch"), a member of the Marine Corps, and his friend Brendon Campbell ("Campbell") were arrested for public intoxication outside of Capone's Bar in El Paso, Texas. Pl.'s Resp. to Officers' Mot. for Summ. J. 1-2 ("Response to Officers' Motion"). Prior to the arrest, Officers Clinton Nelms ("Nelms") and Eric Watts ("Watts"), members of the El Paso Police Department Vice Unit conducting an undercover operation at Capone's, observed Nitsch and Campbell ordering drinks inside the bar and exhibiting signs of intoxication.¹ Def. Officers' Proposed Undisputed Facts ¶¶ 2-4 ("Officers' Facts"). Officer William Hooks and another officer asked Nitsch and Campbell to step outside the bar where other officers, led by Sergeant Raul Perez, had converged to conduct an enforcement action in conjunction with the Texas Alcohol Beverage Commission ("TABC"). Id. ¶¶ 4-5. Once outside, one of the TABC agents administered a field sobriety test on the two men. Id. ¶¶ 5-6. Based upon the outcome of the field sobriety test, the odor of Nitsch's breath, his bloodshot eyes, and his unsteady balance the Officers determined that Nitsch was intoxicated. Id. ¶ 6. Nitsch denies having bloodshot eyes and an unsteady balance, though he fails to cite to any evidence in support of his claim. Nitsch's Resp. to Def. Officers' Proposed Undisputed Facts ("Response to Officers' Facts") ¶ 6. According to the officers, Nitsch became belligerent and uncooperative. Officers' Facts ¶ 7. Nitsch denies being in such a state though again he fails to cite to any evidence in support of his denial. Resp. to Officers' Facts ¶ 7. The officers state that they asked Nitsch for the name of a responsible third party to whom he could be turned over and if he wanted to be taken to the Provost Marshall's Office at Fort Bliss. Officers' Facts ¶ 7. According to the officers, Nitsch responded by stating that he wanted to go back into the bar to get the other marines and "kick the officers [sic] asses." Id. Nitsch denies that he was asked for the name of a responsible third party and that he was given the option of being taken to the Provost Marshall's house. Resp. to Officers' Facts ¶ 7.

Nitsch was then placed under arrest for public intoxication and an El Paso Police patrol car transported him to the Central Regional Command Center. Officers' Facts ¶ 8. Prior to being booked into the detention center, a jail nurse examined Nitsch and found that he had no injuries. Id. ¶ 10. Thereafter, Nitsch claims that an officer struck him on the back of his head while he was handcuffed and facing the wall in the jail holding cell. Nitsch's App of Material Opposing Defs.' Mot. for Summ. J. Ex. 2, at 4. Nitsch asked the officers around him for the name of the person who struck him. Id. Nitsch says that the officers denied seeing anything. Id. According to each of the officers, they never hit Nitsch nor did they see a fellow officer hit Nitsch either. Defs.' Ex. K.2, Witness Statements of Officer Saul Villalobos ¶ 33, Officer Robert Concha ¶ 32, Officer Paul Armendariz ¶ 33, Officer William Hooks ¶ 33, Officer Clinton Nelms ¶ 32, Officer Eric Watts ¶ 32, Officer Eloy Serna ¶ 33, Officer John Wasmuth ¶ 11. On three separate occasions, Nitsch reviewed photo arrays in an attempt to identify the officer who hit him. Officers' Mot. for Summ. J. 5. He has not been able to do so. However, Nitsch has identified an individual who witnessed the event. Pl.'s App. of Material Opposing City's Mot. for Summ. J. Ex. 1, at 86. After being released, Nitsch was diagnosed as suffering from concussion syndrome. Nitsch's App. of Material Opposing Defs.' Mot. for Summ. J. Ex. 1, at 6.

Nitsch and Campbell were taken into custody and booked into jail without appearing before a magistrate. Resp. to Officers' Mot. 2. Nitsch has never appeared before a magistrate regarding this matter. Id. Pursuant to the District Attorney's Information Management System ("DIMS"), Officer Villalobos reviewed a "bond schedule" to determine the amount of bond to be set for public intoxication, the offense with which Nitsch was charged. Id. The Field Officer taught Villalobos and the other police officers to use the bond schedule to set bond. Id. at 3. Nitsch was in custody for five hours before being released on bail of $93.00, which was later refunded after the charges were dropped. Pl.'s App. of Material Opposing Officers' Mot. for Summ. J. Ex. 2, at 5.

Nitsch sued Officers William Hooks, Eric Watts, Roberto Concha, Saul Villalobos, Eloy Serna, John Wasmuth, Clinton Nelms, and Raul Perez ("Officers") as well as the City of El Paso alleging violations of his constitutional rights under 42 U.S.C. § 1983 and as well as violations of state law.

II. DISCUSSION

In this Order, the Court addresses seriatim the Officers' and the City's Motions for Summary Judgment.

A. Standard

A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagara Machine & Tool. Works, Inc., 910 F.2d 167, 178 (5th Cir.1990). Once the movant carries the initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir.1991).

Summary judgment is required if the pleadings, depositions, answers to, interrogatories, and admissions on file, 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 a . judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. The Officers' Motion for Summary Judgment

The Officers move for summary judgment arguing that they are shielded from qualified immunity on Nitsch's constitutional claims, his claims under 42 U.S.C. § 1983, as well as his claims under state law.

1. Preliminary matters

The Officers have included a defense to a First Amendment claim in their Motion for Summary Judgment and Nitsch's counsel has responded to that defense. The Court has gone to great lengths to decipher Nitsch's Amended Complaint as well as his Summary Judgment pleadings. Even with the liberal construction that the Court has given to the Amended Complaint, the Court can find absolutely no reference to a First Amendment claim. The Court assumes that the Officers have included the arguments against a First Amendment claim in their Motions out of an abundance of precaution. Nevertheless, as Nitsch has failed to include a First Amendment claim in his complaint, and, as the time for amending the pleadings has long passed, the Court will not consider this issue.²

Nitsch also asserts a claim of cruel and unusual punishment under the Eighth Amendment. The cruel and unusual punishment clause of the Eighth Amendment is implicated only after a formal adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 523, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); see Nerren v. Livingston Police Dep't, 86 F.3d 469, 474 (5th Cir.1996). There has never been a formal adjudication of guilt in this case. Nitsch admits as much. Therefore, Nitsch's Eighth Amendment cruel and unusual punishment claim must fail.

Nitsch raises a claim of excessive bail under the Eighth Amendment in his Response to the City's Motion for Summary Judgment. However, as this issue was not mentioned in his Amended Complaint and since the time for amending the pleading has long passed, the Court will not consider this claim.

2. Qualified immunity

The Officers argue that they are shielded by qualified immunity from Nitsch's § 1983 claims. The doctrine of qualified immunity serves to shield government officials from liability based on the performance of discretionary functions. Beltran v. City of El Paso, 367 F.3d 299, 302-03 (5th Cir.2004); Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001). To establish an entitlement to qualified immunity, a government official must first show that the conduct occurred while he was acting in his official capacity and within the scope of his discretionary authority. Cronen v. Tex. Dep't of...