Rogge v. City of Richmond

• Decision Date: 31 January 2014
• Docket Number: Civil Action No. H–11–4201.
• Citation: Rogge v. City of Richmond, 995 F.Supp.2d 657 (S.D. Tex. 2014)
• Parties: Richard ROGGE and Connie Rogge, Individually and as Next Friends of Richard Hollas Rogge, Plaintiffs, v. The CITY OF RICHMOND, TEXAS, Todd Ganey, and Danell Gaydos, Defendants.
• Court: U.S. District Court — Southern District of Texas

995 F.Supp.2d 657

Richard ROGGE and Connie Rogge, Individually and as Next Friends of Richard Hollas Rogge, Plaintiffs,

v.The CITY OF RICHMOND, TEXAS, Todd Ganey, and Danell Gaydos, Defendants.

Civil Action No. H–11–4201.

United States District Court,

S.D. Texas,

Houston Division.

Jan. 31, 2014.

Christopher L. Tritico, Lloyd James Krell, Ron S. Rainey, Tritico Rainey PLLC, Houston, TX, for Plaintiffs.

Norman Ray Giles, William Scott Helfand, Chamberlain Hrdlicka et al., Houston, TX, for Defendants.

ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATION

SIM LAKE, District Judge.

Having reviewed the Magistrate Judge's Memorandum and Recommendation and Plaintiffs' objections thereto, the court is of the opinion that said Memorandum and Recommendation should be adopted by this court.

It is, therefore, ORDERED that the Memorandum and Recommendation is hereby ADOPTED by this court.

The Clerk shall send copies of this Order to the respective parties.

MEMORANDUM AND RECOMMENDATION

NANCY K. JOHNSON, United States Magistrate Judge.

Pending before the court ¹ are Defendants' Motion for Summary Judgment (Doc. 28) and Defendants' Objections and Motion to Exclude, or Alternatively Limit, the Testimony of Plaintiffs' Expert Witnesses (Doc. 32). The court has considered the motions, the responses, all other relevant filings, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Defendants' summary judgment motion be GRANTED. Defendants' motion to exclude is DENIED AS MOOT.

I. Case Background

Plaintiffs filed this civil rights action against Defendants The City of Richmond, Texas, (“City”), Todd Ganey (“Ganey”), and Danell Gaydos (“Gaydos”), ² alleging that Defendants violated Plaintiffs' son's constitutional rights and Texas state law while he was detained at Defendant City's jail.

A. Factual Background

On February 27, 2011, Plaintiffs' son, Richard Hollas Rogge (“Rogge”), was traveling home from playing golf at Fort Bend Country Club when he was involved in a motor vehicle accident at approximately 5:15 in the evening.³ Rogge did not stop after the collision but continued for approximately one-half mile where he was stopped by an off-duty Defendant City police officer who witnessed the accident and gave chase.⁴ The husband of the other driver had been following her in a separate vehicle, witnessed the accident, and chased after Rogge as well.⁵

The off-duty officer radioed Defendant City Police Department because the accident and the stop occurred within the limits of Defendant City. ⁶ After making the call, he approached Rogge who remained in his vehicle.⁷ At that point, the officer smelled alcohol and noticed that Rogge's eyes were bloodshot.⁸ The off-duty officer directed Rogge to get out of the vehicle and to stand at its rear with his hands on the back window.⁹

Defendant Ganey arrived on scene and assumed control of the scene and investigation.¹⁰ He consulted the off-duty officer and questioned the husband of the other driver, who stated that he wished to file charges against Rogge for failing to stop and give information.¹¹

Defendant Ganey then turned his attention to Rogge.¹² Rogge answered all of Defendant Ganey's questions and complied with all of his requests. ¹³ Rogge informed Defendant Ganey that he had been terminated from his job.¹⁴ Rogge admitted that he consumed beer while at the golf course. ¹⁵ He also informed Defendant Ganey that he was prescribed Klonopin in a dosage of .5 milligram four times per day.¹⁶ Rogge described Klonopin as a “weak valium,” which had been prescribed for “anti-anxiety,” and stated that he had ingested his last prescribed dose for the day about 2:00 p.m.¹⁷ Defendant Ganey conducted the Standardized Field Sobriety Test, after which he took Rogge into custody for suspicion of driving while intoxicated (“DWI”).¹⁸ Rogge refused to submit to a breath analysis.¹⁹

Defendant Ganey radioed a request to Defendant Gaydos to check Rogge's DWI criminal history, and she found one prior conviction for DWI, which she reported to Defendant Ganey.²⁰ While completing an inventory slip for Rogge's vehicle in preparationfor it being towed, Defendant Ganey found an open sixteen-ounce beer can in a brown paper bag, an unopened sixteen-ounce beer can in a brown paper bag, and an open bottle of whiskey.²¹

At Defendant Ganey's request, Officer D. Childs (“Officer Childs”) transported Rogge back to Defendant City's police department, rather than to Fort Bend County Jail.²² During the two-minute journey, Rogge did not say anything.²³ Officer Childs noticed that Rogge was unsteady on his feet as he got out of the patrol car.²⁴ After escorting Rogge into the booking area of the police station, the officer checked all of Rogge's pockets for contraband, removed his baseball hat, removed the handcuffs, and asked Rogge to remove his belt, watch, shoes, and necklace.²⁵ Officer Childs escorted Rogge to a holding cell at approximately 6:18 p.m.²⁶ Rogge was cooperative throughout the process.²⁷

The cell had two benches, one along each of two of the walls, and a partition that partially blocked the view of a toilet and sink area from a window in the cell door.²⁸ The entire cell was visible by camera, which transmitted a live feed to the dispatch center that displayed on a monitor located above Defendant Gaydos, who was answering and dispatching calls.²⁹

Upon his return to the station, Defendant Ganey began reviewing Rogge's criminal history and determining the appropriate charges.³⁰ He was interrupted when Defendant Gaydos dispatched several disturbance calls. ³¹ Officer Childs was dispatched to one of the calls about 6:20 p.m. and glanced into Rogge's cell on his way out a few minutes later.³² Defendant Ganey also left the police station to answer another one of the disturbance calls and asked Defendant Gaydos “to keep an eye on” Rogge while Defendant Ganey was gone.³³ Before Defendant Ganey returned to the station, Defendant Gaydos dispatched another call to which Defendant Ganey initially was en route but disregarded and returned to the station when other officers responded to the call.³⁴ Throughout the duration of Defendant Ganey's absence,Rogge was lying down and sleeping.³⁵

Defendant Ganey immediately returned to his review of Rogge's criminal history when he arrived back at the station.³⁶ Defendant Ganey decided to charge Rogge with “Driving While Intoxicated 2nd—open container (M–A) and Failure to Stop and Give Information.” ³⁷ Defendant Ganey then began working on a probable cause statement for the charges.³⁸ He returned to his patrol unit to review the video and uploaded the video to the police department's server.³⁹

At 7:31 p.m., Defendant Gaydos answered a call from Rogge's father, who asked if Rogge was in custody.⁴⁰ She confirmed that he was.⁴¹ Approximately thirty to forty-five minutes later, Rogge's father appeared in person; he was advised of the charges against Rogge and was provided with the wrecker information.⁴² Rogge's father asked to see and talk to Rogge, but the request was denied.⁴³ Rogge's father told Defendant Gaydos that he and his wife were “very concerned about this” and “very worried about this deal.” ⁴⁴ He asked Defendant Gaydos to tell Rogge that his father had been by “to check on him and [that his father would] get him out at Fort Bend County.” ⁴⁵ Defendant Gaydos relayed the message to Defendant Ganey.⁴⁶

Later, while working on the paperwork, Defendant Ganey called Defendant Gaydos via telephone, asking that she look at the monitor to confirm what Rogge was wearing.⁴⁷ Defendant Gaydos responded that she could not tell the color of his clothing from the black-and-white monitor but remembered that he was wearing an orange polo-style shirt and a white undershirt.⁴⁸ Defendant Ganey also asked Defendant Gaydos if she could see Rogge, and Defendant Gaydos responded affirmatively and reported that Rogge was sleeping on the bench.⁴⁹

Rogge remained asleep on a bench until 8:25 p.m., when he went to the toilet to urinate.⁵⁰ A few minutes later, he was lying back down on the bench.⁵¹ At 8:54, Rogge arose again, took off his outer shirt and left it on the bench.⁵² He moved to the toilet/sink area, took off a long-sleeve undershirt, and stepped first onto the toilet bowl and then onto the sink at the back of the toilet.⁵³ Rogge reached up, out of the view of the camera, to tie his undershirt onto a grate covering a vent and then wrapped and tied another portion of the shirt around his neck.⁵⁴ At 8:57 p.m., Rogge hesitantly stepped off the back of the toilet, hanging himself.⁵⁵

When the night shift arrived at 9:00 p.m., Defendant Ganey asked one of the officers if he could transport Rogge to Fort Bend County Jail.⁵⁶ Defendant Ganey then went to the booking area and looked into Rogge's cell for the first time; it was approximately 9:20 p.m.⁵⁷ He did not see Rogge but saw his orange shirt on the bench.⁵⁸ He retrieved the keys, opened the holding cell door, and called out to Rogge.⁵⁹ When Rogge did not respond, Defendant Ganey entered the cell and found Rogge hanging from the grate above the toilet.⁶⁰ Defendant Ganey immediately requested emergency medical services via radio.⁶¹ Defendant Ganey cut Rogge's shirt, laid him on the floor of the cell, and untied the shirt from around his neck.⁶²

Upon hearing Defendant Ganey's request, Defendant Gaydos later recalled, she looked up at the monitor and saw Rogge lying on the cell floor with Defendant Ganey standing over him.⁶³ Defendant Ganey and another officer pulled Rogge out of the cell, and a third officer administered cardiopulmonary resuscitation (CPR) until the emergency medical technicians arrived.⁶⁴ Rogge was transported to the OakBend Medical Center Emergency Room where he was pronounced dead a few minutes before 10:00 p.m.⁶⁵

B. Procedural Background

On November 9, 2011, Plaintiffs filed this action in the 268th Judicial District of Fort Bend County.⁶⁶ On December 5, 2011, Defendants timely...