Rodgers v. City of Lancaster Police
| Decision Date | 06 January 2017 |
| Docket Number | No. 3:13-CV-2031-M-BH,3:13-CV-2031-M-BH |
| Parties | CHAZ Z. RODGERS, Plaintiff, v. CITY OF LANCASTER POLICE et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
CHAZ Z. RODGERS, Plaintiff,
v.
CITY OF LANCASTER POLICE et al., Defendants.
No. 3:13-CV-2031-M-BH
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
January 6, 2017
Referred to U.S. Magistrate Judge
FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Special Order No. 3-251, this case has been automatically referred for pretrial management. Based on the relevant filings and applicable law, the complaint should be DISMISSED, and Methodist Hospital of Dallas' Motion to Dismiss or Alternatively Quash Service and Brief in Support, filed July 18, 2016 (doc. 53) and Methodist Hospitals of Dallas' Second Motion to Dismiss or Alternatively Quash Service and Brief in Support, filed August 15, 2016 (doc. 55) should be DENIED AS MOOT.
On May 30, 2013, Chaz Z. Rodgers (Plaintiff) filed this action under 42 U.S.C. § 1983 against several defendants based on their response to the shooting of her son, Anthony D. Hudson. (See doc. 3 at 1.)1 She sues on behalf of herself and her son's estate. (See docs. 3, 22, 30, 52.)
A. Factual Background2
At 11:06 PM on July 23, 2011, during a birthday party attended by 200 to 300 people in
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Lancaster, Texas, more than 20 shots were fired into the crowd, and Plaintiff's son was hit in the head. (See docs. 30 at 8, 13; 52 at 12.) Several people made 911 calls reporting both major and minor disturbances, and a shooting. (doc. 30 at 8.) The Lancaster Police Department (LPD) dispatched Lieutenant Bryan Dorsey and Officers Michael Smith, Erick Alexander, James Skach, Michael Adams, Jason Tap Scott, Delta Graf, and James Grimes. (Id. at 4.) The Lancaster Fire Department (LFD) was also notified that shots were fired, and EMT-Paramedics Jeremy Stuckey and Daniel Bufe were dispatched to the scene at 11:29 PM.3 (Id. at 13.)
Plaintiff appears to allege that the responding officers initially concluded that the shots fired were "fireworks," and that no immediate action was needed. (doc. 30 at at 4.) When they did understand the seriousness of the situation, instead of immediately rendering medical assistance to her son and transporting him to an appropriate medical facility, the officers either thought he was "dead on arrival" or ignored him to render aid to others. (docs. 30 at 4-5, 8; 52 at 6-7.) The officers' actions caused her son to be alone for approximately 26 minutes before any aid was given to him. (docs. 30 at 4-5, 8; 52 at 6-7.) Plaintiff also alleges that the officers failed to properly preserve evidence, identify witnesses, document and protect the integrity of the crime scene, and they caused the destruction or loss of evidence, in part by directing six eyewitnesses to leave the scene without questioning them. (See doc. 30 at 21-31; doc. 5 at 6.) She also seems to contend that the officers gave her less notice and attention than what they gave the parents of other children who were also injured or killed. (Id. at 5.) For example, she alleges that other parents were given courtesy calls and transported to the medical facility, while she was not. (See id.)
Plaintiff alleges that when the EMTs arrived at the scene, they were instructed not to go into
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the compound for 20 to 30 minutes because of the continuous firing of weapons. (docs. 30 at 14; 52 at 8.) When they did locate her son, the EMTs found that he was alive but had an exit wound to the back of his head, had lost a large amount of blood, was immobilized, suffered from a distracting injury and neurologic deficit, and had an altered mental state, and they inserted a nasal trumpet. (doc. 30 at 13-14.)
The EMTs transferred Plaintiff's son to Methodist Hospitals of Dallas (Hospital), a Level II trauma center,4 where he was admitted at 11:58 PM. (Id. at 14, 17.) According to Plaintiff, the EMTs discriminated against her son by taking him in an "old" and "inadequate" ambulance to an "unequipped level II facility," rather than by air transport to a Level I trauma center. (doc. 52 at 8-9.) She alleges that once her son arrived at Hospital, he was treated differently from other trauma patients because of his ethnicity and indigent status because he was not sent to the Intensive Care Unit or the Coronary Care Unit, did not receive CPR, and was segregated in an "unequipped healthcare room." (Id. at 8-10.) Additionally, Hospital did not notify Plaintiff when Doctor removed a bullet or update her regarding his condition, and there was no consent to remove her son from life support. (docs. 30 at 33; 52 at 2, 11.)
Abi Mikkel Finberg-Provence, R.N. (Nurse), was a nurse on the trauma team, and David P. Bryant, D.O. (Doctor), was the ER staff physician when her son arrived at Hospital. (doc 30 at 14.) No neurosurgeon was present, and "[b]efore initiating neurosurgeon assistance," Doctor "verbally order[ed] . . . Propofol to sedate/euthanize [her son] not once but twice or three times." (docs. 30 at 17; 52 at 10.) Plaintiff alleges that "[t]hese steps caused a significant delay in treatment of critical patient with gunshot wound to face/head and commencement of therapy; resulted in their desire [to]
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assure he died." (Id.) Plaintiff's son died of his wounds, and an autopsy was performed. (See id. at 18.)
On December 14, 2012, Devon O'Brien Candler was convicted of second degree manslaughter for the shooting of Plaintiff's son. (Id. at 7.)
B. Procedural History
On May 30, 2013, Plaintiff filed her complaint and moved for leave to proceed in forma pauperis. (See docs. 3, 5.) She was advised by Notice of Deficiency and Order, dated June 3, 2013, that she could not represent her son's estate pro se, and that she must obtain legal counsel within 14 days to proceed on behalf of the estate. (See doc. 10.) Plaintiff subsequently sought and was granted permission to file an amended complaint asserting only her own claims. (See doc. 20, 21.) She filed her first amended complaint on July 10, 2013. (See doc. 22.)
On July 30, 2013, all claims on behalf of Plaintiff's son's estate were dismissed without prejudice in a partial judgment because an "individual pro se plaintiff may not prosecute [a] complaint on behalf of her son's estate without legal counsel." (doc. 27 at 1.) After receiving leave, Plaintiff filed her second amended complaint on August 7, 2013. (See docs. 23-25, 29-30.)
On March 13, 2014, Plaintiff's claims in her second amended complaint were sua sponte dismissed without prejudice for lack of jurisdiction in part because her "claims on behalf of her son's estate [were] already . . . dismissed without prejudice, and she [could] not reassert them . . . pro se" in her second amended complaint. (docs. 33 at 3, 35.) Additionally, Plaintiff's personal claims were dismissed without prejudice for lack of subject-matter jurisdiction because her "wrongful death action and her claims of gross negligence [arose] solely under state law." (Id. at 4.) That same day, a final judgment was issued dismissing Plaintiff's second amended complaint
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without prejudice for lack of subject-matter jurisdiction. (doc. 36.)
On April 1, 2014, Plaintiff appealed to the United States Court of Appeals for the Fifth Circuit from the order dismissing her case without prejudice. (doc. 37.) The Fifth Circuit found that "although [Plaintiff] appeared to assert only a wrongful-death claim, [she] pleaded a claim under the federal civil-rights laws, so there is federal-question jurisdiction." Rodgers v. Lancaster Police & Fire Dep't, 819 F.3d 205, 208 (5th Cir. 2016), cert. denied, 137 S. Ct. 304 (2016).5 It also found as a matter of first impression that "[a] person with capacity under state law to represent an estate in a survival action may proceed pro se if that person is the only beneficiary and the estate has no creditors." Id. at 211. Accordingly, it reversed and remanded.6 Id. at 213. The Fifth Circuit issued its mandate on May 26, 2016 (doc. 46), and the Supreme Court of the United States denied Plaintiff's petition for a writ of certiorari on October 11, 2016 (doc. 63).
On remand, the Court ordered Plaintiff to file a third amended complaint within thirty days that included allegations sufficient for a determination of whether she was her son's sole heir. (doc. 48 at 2.) On June 17, 2016, she moved for leave to file an affidavit in response to the district court's order. (doc. 49.) A magistrate judge's questionnaire was sent to her "in order to obtain the information requested by the order as well as additional necessary information about her claims."
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(docs. 50 at 1; 51.) Plaintiff filed her answers to the questionnaire on June 15, 2016.7 (See doc. 52.)
According to the answers, Plaintiff's son was 15 years old at the time of his death, did not have a will, was not married, and had no biological nor adopted children. (doc. 52 at 14.) Plaintiff alleges that she is her son's "surviving single parent" and "the primary beneficiary in this action for wrongful death." (doc. 30 at 19.) She has "no knowledge of" her son's father being deceased, however. (doc. 52 at 14.) She initially stated that her son had no whole or half siblings but later stated that she had "no interest to know what father may or may not have for children." (Id.)
Plaintiff's answers specify that she is suing all of the individual defendants in their official capacities and clarify that she is bringing a survival action on behalf of her son's estate. (Id. at 1-13, 15.) She now appears to also sue the City of Lancaster (the City), Hospital, Doctor, the Shooter, and the law firm of Nicholas, Jackson, Dillard, Hager & Smith, LLP (Law Firm) (Defendants), which she appears to contend represented some of the police officers. (See id. at 4-9.) In addition to the gross negligence claim and survival action alleged in her second amended complaint, Plaintiff now also alleges violations of her son's civil rights and wrongful death under 42 U.S.C. §§ 1983-85; medical malpractice under the Federal Tort Claims Act; violations of the Emergency Medical...
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