Surratt v. McClaran

• Decision Date: 03 March 2016
• Docket Number: CASE NO. 4:14–CV–338
• Citation: 234 F.Supp.3d 815
• Court: U.S. District Court — Eastern District of Texas
• Parties: Linda SURRATT, Individually and as Heir and Legal Representative of the Estate of Lesa Ann Surratt v. Officers Brian MCCLARAN, Tom Caver, Trevor Stevens & City of Sherman

234 F.Supp.3d 815

Linda SURRATT, Individually and as Heir and Legal Representative of the Estate of Lesa Ann Surratt

v.Officers Brian MCCLARAN, Tom Caver, Trevor Stevens & City of Sherman

CASE NO. 4:14–CV–338

United States District Court, E.D. Texas, Sherman Division.

Signed March 3, 2016

Roger D. Sanders, Sanders O'Hanlon, Motley & Young, David M. Kennedy, Law office of David M. Kennedy, PC, Donald Lee Bailey, Micah Shawn Belden, Micah Belden, Sherman, TX, for Plaintiff.

Darrell G–M Noga, David V. Denny, Michael Jason Merrick, Cantey Hanger LLP, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

Pending before the Court are Defendants' Motion for Summary Judgment (Dkt. # 29), Plaintiff's Motion to Conflict Counsel (Dkt. # 66), Plaintiff's Motion to Defer Ruling on Summary Judgment (Dkt. # 67, # 68), and Defendants' Objections to and Motion to Strike Plaintiff's Summary Judgment Evidence (Dkt. # 76). After reviewing the motions and the relevant pleadings, the Court finds that Defendants' motion to strike is denied as moot, Plaintiff's motions to defer and to conflict counsel are denied, and Defendants' motion for summary judgment is granted.

BACKGROUND

On August 20, 2013, Sherman Police Officer Tom Caver ("Caver") effected a traffic stop of Lesa Ann Surratt ("Surratt") (Dkt. # 16 at p. 4). According to Defendants, Caver conducted a pretext traffic stop of Surratt for a traffic violation (signaling one direction but then turning the other) pursuant to information that Sergeant Jason Jeffcoat received that Surratt was in possession of narcotics (Dkt. # 29 at p. 3). Officer Trevor Stevens ("Stevens") arrived as backup during the stop, and the officers arrested Surratt for the traffic violation and her passenger Monica Garza ("Garza") for outstanding traffic warrants, handcuffed both individuals, and placed each of them into the back seat of Caver's vehicle (Dkt. # 16 at p. 5; Dkt. # 29 at p. 4).

Defendants and Plaintiff argue different interpretations of the following series of events. It is, however, undisputed that Caver and Stevens walked to, and Caver searched, Surratt's vehicle while Surratt and Garza sat in the back of Caver's vehicle (Dkt. # 28 at p. 4; Dkt. # 29 at p. 4). While unattended and unsupervised, Surratt freed a hand from her handcuffs, removed a small plastic bag of cocaine from her groin area, and placed the bag in her mouth (Dkt. # 28 at p. 5; Dkt. # 29 at p. 4).

At nearly the same time that Surratt was placing the bag in her mouth, Caver said to Stevens, "Might want to watch them; they're supposed to be hiding stuff in their bra." (Dkt. #33, Ex. 2(a), 2(b) at 14:09).¹ Stevens returned to the left side of Caver's vehicle, nearest to Surratt, and opened the back door. Stevens, apparently hearing the sound of an item hitting the floor, asked Surratt, "What did you do? What did you drop?" (Dkt. # 33, Ex. 2(a), 2(b) at 14:23; Dkt. # 32, Ex. 1(a) at 3:32). Surratt denied dropping anything, and Stevens then used his radio to tell Caver to come to the vehicle, and subsequently ordered Surratt not to move (Dkt. # 33, Ex. 2(a), 2(b) at 14:31). Caver walked to and opened the back right door, and Stevens directed Caver, stating, "Get 'em out one by one. They were trying to hide something." (Dkt. # 33, Ex. 2(b) at 14:44). Garza stated that she was not trying to hide anything and did not drop anything (Dkt. # 33, Ex. 2(b) at 14:51). Stevens assessed, "She's got her britches pulled up, it's in her, it's in her pants." (Dkt. # 33, Ex. 2(b) at 14:53).

Caver reached across Garza to grab Surratt's right hand and stated, "Yeah she's got it behind her back here." (Dkt. # 33, Ex. 2(b) at 14:57). As he reached in, Caver shined his flashlight in Surratt's face and then directed Surratt, stating, "Open your mouth up." (Dkt. # 33, Ex. 2(b) at 15:00). Surratt did not comply, and Caver pushed his flashlight against Surratt's face, but she continued to keep her mouth closed, and the officers again told her to open her mouth (Dkt. # 33, Ex. 2(b) at 15:03). Stevens then pressed his right forearm against Surratt's left jawline and the left side of Surratt's neck, and at the same time, Caver pressed his left thumb into the back of Surratt's right jaw area, employing what Defendants have described as a "pressure point technique" (Dkt. # 33, Ex. 2(b) at 15:05; Dkt. # 29 at p. 1). Surratt then pulled her hands, free from the handcuffs, out from behind her back and attempted to pull Caver's hand from her neck, and a struggle ensued in which Surratt pulled away from Caver toward the left side of the vehicle and into Stevens' forearm, still positioned into Surratt's neck, while Caver reapplied and continued to apply force to the right side of Surratt's jaw (Dkt. # 33, Ex. 2(b) at 15:08–15:17).

One of the officers then noted, "She swallowed it. She got her handcuff off and swallowed it." (Dkt. # 33, Ex. 2(b) at 15:17). Caver was able to get ahold of Surratt's right hand, and pulled Surratt's body across Garza's and out of the car while Stevens struggled to free Surratt, who was still buckled in, and whose leg was then twisted in the seat belt (Dkt. # 33, Ex. 2(b) at 15:27). It is not immediately apparent from the video to what degree Surratt actively resisted being pulled out of the car, whether her reactions were an involuntary response to choking, or whether she was unconscious and limp, but by the time Surratt was pulled halfway out of the car, her loose arm fell limp (Dkt. # 32, Ex. 1(a) at 5:30). While they were removing Surratt from the vehicle, Caver radioed for more units to be sent and for an ambulance to be dispatched (Dkt. # 33, Ex. 2(b) at 15:45, 16:07). Sergeant Jeffcoat approached and stated either, "Here, Taser" or, alternatively, "Here, tase her" (Dkt. # 33, Ex. 2(b) at 16:20). Caver immediately responded in the negative, "Nah, nah, nah, she might be seizing, she ate a bunch of dope. She got her handcuff out, she ate a bunch. She ate a bunch." (Dkt. # 33, Ex. 2(b) at 16:23). The officers noted that Surratt was not breathing and that she was probably choking, and told additional officers coming to the scene that they had an ambulance on the way (Dkt. # 33, Ex. 2(b) at 16:45, 16:52; Dkt. # 32, Ex. 1(a) at 5:59).

Caver told another officer to tell the emergency responders that the ambulance needs to hurry because Surratt is not breathing. Detective Brian McClaran ("McClaran") approached during this time and repeatedly instructed Surratt to open her mouth until one of the officers suggested the Heimlich Maneuver, after which McClaran began pushing on Surratt's chest and stomach area. (Dkt. # 32, Ex. 1(a) at 6:29). The officers then rolled Surratt onto her side and Caver pushed on Surratt's back, instructing Surratt to breathe (Dkt. # 32, Ex. 1(a) at 6:34). For the next several minutes, multiple officers made attempts to get Surratt to breathe. A Sherman Fire Department Fire Truck arrived a few minutes later and took over life-saving measures, removing with larygo blade and forceps a plastic bag from Surratt's throat (Dkt. # 32, Ex. 1(a) at 11:00; Dkt. # 36, Ex. 3 at p. 79; Dkt. # 34 at p. 83). The ambulance arrived two minutes later and Surratt was loaded and driven away (Dkt. # 32, Ex. 1(a) at 13:00).

Surratt was taken to a local hospital and placed on life support, and on September 2, 2013, Surratt died in the hospital (Dkt. # 36 at p. 79). The autopsy report listed Surratt's cause of death to be "as a result of complications of asphyxia

due to airway obstruction by plastic bag." (Dkt. # 16 at p. 6) (quoting Dkt. # 36, Ex. 3, p. 72).

On May 25, 2014, Plaintiff Linda Surratt, decedent Surratt's sister, brought claims in her individual capacity and her capacity as heir and legal representative of the Estate of Lesa Ann Surratt, against the City of Sherman ("the City"), "Brian McClarin" [sic], and several unidentified "John Doe" officers, demanding money damages pursuant to 42 U.S.C. § 1983 and § 1985 for "violations of civil rights, and conspiracy to violate civil rights, and privileges guaranteed Plaintiff by the United States Constitution and under the common law of the State of Texas." (Dkt. # 1). Defendants filed an answer on July 8, 2014 (Dkt. # 16). On September 25, 2014, Plaintiff filed a first amended complaint (Dkt. # 19) and on January 13, 2015, a second amended complaint (Dkt. # 28). On October 22, 2014, Defendants filed an answer to the first amended complaint (Dkt. # 25). On January 27, 2015, Defendants filed an amended answer (Dkt. # 37) and the present motion for summary judgment (Dkt. # 29).

In addition, Plaintiff filed a motion to conflict counsel (Dkt. # 66) on May 26, 2015, and a motion to defer ruling on summary judgment pending adequate discovery (Dkt. # 67, # 68) on May 27, 2015. Defendants responded to the motion to conflict on June 5, 2015 (Dkt. # 74). On June 9, 2015, Defendants filed a motion to strike Plaintiff's summary judgment evidence (Dkt. # 76), and on June 16, 2015, Plaintiff filed a response (Dkt. # 81).

In her second amended complaint, Plaintiff asserts claims for excessive force, unreasonable search and seizure, violation of right of due process—duty to protect pretrial detainees, conspiracy to deprive Surratt of her constitutional rights, a cause of action against the City of Sherman, and Texas state law claims for wrongful death, assault and battery, and breach of fiduciary duty.

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits "[show] that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return...