Rich v. Palko

• Decision Date: 03 April 2019
• Docket Number: No. 18-40415,18-40415
• Citation: 920 F.3d 288
• Parties: Jeri Lynn RICH, as representative for Gavrila Covaci Dupuis-Mays, an incapacitated person, Plaintiff-Appellee, v. Michael PALKO; Keith Duane Hudgens, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

920 F.3d 288

Jeri Lynn RICH, as representative for Gavrila Covaci Dupuis-Mays, an incapacitated person, Plaintiff-Appellee,

v.Michael PALKO; Keith Duane Hudgens, Defendants-Appellants.

No. 18-40415

United States Court of Appeals, Fifth Circuit.

FILED April 3, 2019

John Edward Wall, Jr., Law Offices of John E. Wall, Jr., Dallas, TX, Clay A. Hartmann, Hartmann Firm, P.C., Dallas, TX, for Plaintiff-Appellee.

William Wayne Krueger, III, Esq., Christopher Michael Lowry, McKamie Krueger, L.L.P., Richardson, TX, Benjamin Gibbs, Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Fort Worth, TX, for Defendants-Appellants.

Before KING, SMITH, and WILLETT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jeri Rich sued Michael Palko and Keith Hudgens of the McKinney Police Department ("MPD") on behalf of her adopted son, Gavrila Dupuis-Mays, who has been declared an incapacitated person by the State of Texas. Rich sought damages under 42 U.S.C. § 1983, alleging that the officers had violated Dupuis-Mays’s Fourth and Fourteenth Amendment rights. The district court denied the officers’ motion for summary judgment based on qualified immunity ("QI"). We reverse and render a judgment of dismissal with prejudice.

I.

Dupuis-Mays sustained a brain injury

as an infant and has cerebral palsy, mental retardation, bipolar disorder, depression, ADHD, and epilepsy. On July 2, 2015, he was admitted for inpatient psychiatric evaluation for depressed ideation. He was released on July 10, 2015, and returned to a group home in McKinney, Texas, where he had been living.

Between July 10 and 11, MPD was called to the group home four times because Dupuis-Mays kept trying to run away. The final of those visits stemmed from a 911 call made by Dupuis-Mays’s caseworker, Rhonda Holley, on Saturday July 11 at 2:01 a.m.¹ Holley asked police to transport Dupuis-Mays to Green Oaks Hospital, explaining that Dupuis-Mays needed inpatient care because he was "in a psychotic phase, where he is verbally and physically aggressive towards staff." Holley confirmed that Dupuis-Mays had not hit anyone that night but was "covered in feces and refusing to bathe." Holley told the 911 operator that she had initially called Green Oaks, and they recommended that she call 911.

Palko and Hudgens responded. When they arrived at the group home, they briefly conversed with one of Dupuis-Mays’s caretakers, who reported that Dupuis-Mays was becoming increasingly psychotic and that Green Oaks directed the group home staff to bring him in for care. She further explained that neither she nor other staff members felt safe transporting Dupuis-Mays to Green Oaks: He was "threatening" Holley, and "he just threatened our children," who were present that night.

The officers approached Dupuis-Mays, who was covered in feces, and dialogued with him at length. At the officers’ urging, Dupuis-Mays eventually agreed to shower and change clothes. Holley told the officers what had precipitated her 911 call. Dupuis-Mays had defecated on himself and had removed his clothes and put them on the porch. He had scattered tables in the home’s backyard and refused to follow staff instructions. Staff members also reported that Dupuis-Mays’s aggression had been increasing and that his psychiatrist told the staff that their only option until Monday was to transport Dupuis-Mays back to Green Oaks for an assessment. Dupuis-Mays’s doctors had called Dupuis-Mays "unstable."

Once Dupuis-Mays had showered and dressed, he voluntarily approached the officers and smoked a cigarette while talking with them. After about ten minutes, the officers told Dupuis-Mays that he would be going for a ride in the police car; they handcuffed and led him to the police car. The three talked casually during the ride to Green Oaks and arrived without incident.

The officers led Dupuis-Mays, still handcuffed, into the Green Oaks waiting room and seated him in a chair near the door to the triage room. Dupuis-Mays eventually stood up from the chair and began talking to the officers, saying, among other things, "I’ll be glad you go to hell [sic ]," and "I hate police officers." At least two other patients were in the waiting room. After Dupuis-Mays refused to sit down, the officers retuned him to his chair. A few seconds later, Dupuis-Mays spat toward Palko’s face. The officers turned away from the spitting before approaching Dupuis-Mays, moving his head between his legs, and holding him in that position for about five minutes. The video and audio indicate that Dupuis-Mays continued spitting at and berating the officers, even with his head between his legs.

Dupuis-Mays was called back to the triage room, where quarters were tight: He was seated in a chair in one corner of the room with a small file cabinet directly to his right and the triage nurse’s desk to the right of the cabinet. A second file cabinet was in the corner opposite Dupuis-Mays, about three to four feet in front of him. The officers stood by a door catty-corner from Dupuis-Mays. Because of the file cabinets’ positioning, the corridor from the officers to Dupuis-Mays was narrow.

After a couple of minutes, Dupuis-Mays grew agitated and began saying, "I hate police officers! I hate ‘em!" The triage nurse urged him to "stay calm," but Dupuis-Mays retorted, "Hell no!" The officers tried to pacify him, encouraging him that they were being nice. Dupuis-Mays continued, however, in escalating volume, "I hate police officers! F*** them police officers! I hope cops die!" "Do you really mean what you say?" Palko queried, to which Dupuis-Mays responded, "I hope you die!" "That’s really mean of you to say," Palko answered calmly.

The nurse left the room, leaving the officers with Dupuis-Mays. About twenty seconds later, Dupuis-Mays spat toward Detective Palko, who stepped back, and told him, "Don’t spit on me, Bud." Dupuis-Mays then leaned forward, stared at Palko, and spat directly at his face.

Palko stepped across the room toward Dupuis-Mays through the opening left by the two file cabinets. Palko placed both of his hands on Dupuis-Mays’s head and began moving him down and diagonally from his chair to the middle of the room. Palko stood with his body in front of the corner filing cabinet, his left foot in front of and parallel with the cabinet’s side. Palko’s eyes were consistently directed downward—not toward the file cabinet. Hudgens also approached and placed his right hand on Dupuis-Mays’s shoulder blade and his left hand on Dupuis-Mays’s handcuffed hands. Midway to the ground, Dupuis-Mays’s torso began to turn toward the corner cabinet, his foot apparently caught behind the file cabinet directly to the right of his chair. Palko was still in front of the corner cabinet. As Dupuis-Mays twisted, Palko’s left elbow bumped the corner cabinet, his hand fell off Dupuis-May’s head, and Dupuis-Mays’s head fell into the corner cabinet. Notably, Palko did not have a hand on Dupuis-Mays’s head as Dupuis-Mays fell into the cabinet.

The officers promptly helped Dupuis-Mays up and carefully moved him to a seated position on the floor. They did not apply additional force. Dupuis-Mays’s head was bleeding significantly, and he sustained a five-inch gash.

Hudgens filed a post-incident report with MPD. That report did not comport with the video from the triage room, so MPD began an internal affairs investigation, during which MPD Sergeant Agan spoke to Palko, who accurately recalled and recounted the events. Hudgens later watched the video, listened to the audio, and corrected his report.

Rich sued Palko and Hudgens under § 1983, claiming that they had violated Dupuis-Mays’s Fourth, Eighth, and Fourteenth Amendment rights.² The officers moved to dismiss for failure to state a claim, and the district court granted the motion respecting Rich’s Eighth Amendment claim. But the court deferred the remaining claims for disposition after discovery on whether the officers were entitled to QI. Following discovery, the officers moved for summary judgment on grounds of QI. The district court, adopting the report and recommendation of the magistrate judge, denied QI, and the officers appealed.

II.

We have jurisdiction to consider this interlocutory appeal because the "general rule" that "[a]n order denying a motion for summary judgment is generally not a final decision within the meaning of § 1291 and is thus generally not immediately appealable ... does not apply when the summary judgment motion is based on a claim of [QI]." Plumhoff v. Rickard , 572 U.S. 765, 771, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (citations omitted). But "we have jurisdiction only to decide whether the district court erred in concluding as a matter of law that officials are not entitled to [QI] on a given set of facts." Cantrell v. City of Murphy , 666 F.3d 911, 921 (5th Cir. 2012) (internal quotation marks and citation omitted).

We review de novo the legal issue whether the district court erred in denying a motion for summary judgment based on QI. Escobar v. Montee , 895 F.3d 387, 393 (5th Cir. 2018). Although we "review the materiality of any factual disputes," we do not review "their genuineness ." Curran v. Aleshire , 800 F.3d 656, 660 (5th Cir. 2015) (quoting Wagner v. Bay City , 227 F.3d 316, 320 (5th Cir. 2000) ). If there are factual disputes, "we view the facts in the light most favorable to the nonmoving party." Plumhoff , 572 U.S. at 768, 134 S.Ct. 2012.³

III.

A plaintiff makes out a § 1983 claim if he "show[s] a violation of the Constitution or of federal law, and then show[s] that the violation was committed by someone acting under color of state law." Brown v. Miller , 519 F.3d 231, 236 (5th Cir. 2008) (internal quotation marks and citation omitted). But government officials performing discretionary duties can assert QI. See, e.g. , Haverda v. Hays Cty. , 723 F.3d 586, 598 (5th Cir. 2013). Once an officer invokes the defense, the plaintiff must rebut it by establishing (1) that the officer violated a federal statutory or constitutional right...