Bailey v. Ramos

657 F.Supp.3d 927

David BAILEY, Plaintiff v. Oscar RAMOS, City of San Antonio, a Political Subdivision of the State of Texas, Defendants.

SA-20-CV-00466-XR

United States District Court, W.D. Texas, San Antonio Division

Signed February 17, 2023

Brandon J. Grable, Steven Andrew Stromberg, Grable Grimshaw PLLC, San Antonio, TX, for Plaintiff.

Mark Kosanovich, Fitzpatrick & Kosanovich, PC, San Antonio, TX, for Defendant Oscar Ramos.

ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

On this date, the Court considered Plaintiff David Bailey's motion for partial summary judgment as to liability (ECF No. 78), Defendant Oscar Ramos's motion for judgment on the pleadings or summary judgment in the alternative (ECF No. 81), Defendant City of San Antonio's motion for summary judgment (ECF No. 65), and the briefing filed in response to the parties' motions. After careful consideration, the Court issues the following order.

BACKGROUND¹

Plaintiff David Bailey filed this action under 42 U.S.C. § 1983 against the City of San Antonio (the "City") and San Antonio Police Department ("SAPD") Officer Oscar Ramos for damages arising from his arrest in the early hours of April 28, 2018.

At 1:51 a.m., several SAPD officers, including Defendant Ramos and Christopher Dech were called to the scene of an assault. One victim sustained a brain injury and was left bloody and unconscious near Moses Roses Bar and Grill, located at 516 E. Houston Street in San Antonio, Texas. An ambulance arrived, and Ramos and Dech positioned themselves near the EMS unit at the scene in order to interview witnesses and protect the victim, who was being treated inside. After Officer Dech checked on the victim, he took witness statements and tried to locate the suspect. Police body cameras and witness video footage captured the events that followed from multiple angles.²

Plaintiff began recording Defendant Ramos, who was waiting for Officer Christopher Dech to return to the scene. While Plaintiff was filming, another individual, Jack Miller, approached and began speaking with Ramos. Ramos directed Miller to "go over there"—gesturing behind Miller—and informed Miller that he would not speak to him. ECF No. 81 (Ramos MSJ), Exh. C at 1:43-45. Miller backed up but asked Ramos to clarify where he should stand. Id. at 1:46-54. Dech then approached, asked Plaintiff and Miller to "just listen," and explained that the area was an active crime scene. ECF No. 78 (Plaintiff MSJ), Exh. J (Dech body camera footage) at 23:02-07. Miller asked, "Where would you like us to stand?" Id. at 23:08-09. Pointing to a line in the pavement behind Miller and Plaintiff, Dech responded, "Stand back behind the line." Id. at 23:10-11. Plaintiff and Miller both immediately stepped back and turned to look around them, presumably to locate the line to which Dech was referring. Id. at 23:10-12. As Dech continued to give instructions ("Behind that line, film all you want—you're good."), Miller waived other witnesses who were recording the scene toward the line and said, "Let's go," directing everyone to move behind the line. Id. at 23:10-12.

The parties disagree about what happened next. According to Plaintiff, he began moving backwards in compliance with Dech's instructions, but Ramos nonetheless shoved him backward several feet so that he was behind the relevant line. ECF No. 78 at 8. Ramos asserts that he placed his hand on Plaintiff's chest to guide him backward, and that Plaintiff responded with some form of offensive contact with him—variously describing Plaintiff as having "swatted," "struck," "hit," or "pushed" him, causing Ramos to "stagger." See, e.g., ECF No. 81 at 4-5, 12, 17; ECF No. 90 at 5, 11-12, 18. Ramos further states that he "fear[ed] he was going to get struck by Bailey after he saw him beginning to clench his fist" and his chest beginning to tighten. ECF No. 90 at 18. Plaintiff insists that he never initiated contact with Ramos.

See, e.g., ECF No. 78 at 7-8 ECF No. 89 at 11, 17.

It is undisputed that Ramos then pushed Plaintiff back several feet and threw him to the ground, where he was handcuffed. Once Plaintiff was handcuffed, he alleges that Dech and Ramos picked him up in a painful manner, using his shoulder as leverage, and then put him up against a wall. Ramos then ordered Plaintiff to sit down, and then—without giving Plaintiff any warning or an opportunity to comply—swept Plaintiff's feet out from under him, causing him to fall down hard on his buttocks, injuring his spine. Plaintiff told the Officers that he had a heart problem, but declined EMS treatment at the scene. ECF No. 65-1 at 7. The day after his arrest, Plaintiff sought treatment for acute neck pain and abrasions on his wrist and knee at Northeast Baptist Hospital. See ECF No. 78-1 at 290 (hospital visit summary). In addition to the abrasions and neck pain, Plaintiff was diagnosed with a concussion, prescribed medications for pain and spasms, and ordered to follow up with his primary care physician. Id. at 290-93.

Plaintiff was charged with interfering with the duties of a public servant. ECF No. 78-1 at 5. After he appeared before the magistrate, he was released on bond. Id. When he returned to court on July 28, 2018, the Bexar County Prosecutor's Office dismissed the charge for lack of evidence. ECF No. 78-1 at 3.

Plaintiff filed his original complaint on April 14, 2020, asserting claims against the City of San Antonio and Officers Ramos and Dech under 42 U.S.C. § 1983 for violations of his constitutional rights. See ECF No. 1. The parties have since stipulated to dismiss the claims against Dech. See ECF No. 57. Plaintiff alleges that Ramos interfered with his First Amendment right to record the SAPD Officers in the course of their duties and retaliated against him for seeking to exercise this right. ECF No. 1 at 5-7. He further alleges that Ramos violated his rights under the Fourth Amendment by conducting an unlawful seizure and arrest, using excessive force, and initiating a malicious prosecution. Id. at 7-11. Finally, he asserts that the City of San Antonio is subject to municipal liability for his injuries because of its unwritten policy of arresting individuals who record police officers even when they have not committed a crime and because of its inadequate training of SAPD Officers on the established rights of citizens. Id. at 11.

All three parties have filed motions for summary judgment. See ECF No. 78 (Plaintiff MSJ); ECF No. 81 (Ramos MSJ); ECF No. 65 (City MSJ). Plaintiff seeks partial summary judgment as to liability on his claims for wrongful arrest, wrongful seizure, excessive force, and municipal liability. See ECF No. 78. Ramos argues that the claims against him should be dismissed because he is entitled to qualified immunity. See ECF No. 81. The City asserts that Plaintiff has failed as a matter of law to establish the requirements for municipal liability set forth in Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See ECF No. 65. The Court will briefly address several evidentiary objections before reaching their motions for summary judgment. Although the parties filed separate motions for summary judgment, there is significant overlap among the arguments made in the motions and accompanying responses. Accordingly, the Court will address the motions together.

DISCUSSION

I. Evidentiary Objections

All three parties have raised evidentiary objections in their summary judgment briefing. See ECF No. 88 (City MSJ) at 1-2; ECF No. 91 (Ramos's objections); ECF No. 94 (Plaintiff's evidentiary objections).

The City seeks to strike the edited video footage attached as exhibits to Plaintiff's motion for summary judgment—including Dech's body camera footage—because they "were not presented in a complete or authenticated format." See ECF No. 88 at 1-2. Summary judgment evidence, however, need not be in admissible form as long as it can be presented in admissible form at trial. FED. R. CIV. P. 56(c)(2); Maurer v. Independence Town, 870 F.3d 380, 384 (5th Cir. 2017) ("At the summary judgment stage, evidence need not be authenticated or otherwise presented in an admissible form."). The video footage can be produced in a complete and authenticated format at trial.

Ramos objects to Plaintiff's medical records and the affidavit of scene witness Brian Howd as untimely disclosed. ECF No. 91 at 1-3 (citing ECF No. 78-1, Exh. F (medical records) and Exh. Q (Howd Aff.) (authenticating video footage of the incident taken on his cell phone)).³ Whether these items should be excluded depends on whether the failure to disclose the evidence was harmless. FED. R. CIV. P. 37(c)(1). In determining whether failure to disclose is harmless, courts look to four factors: (1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to disclose. Tex. A&M Rsch. Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003). Because neither party has addressed any of these factors in their briefing, however, the Court will defer ruling on these objections until trial.⁴

Finally, Plaintiff objects to Ramos's signed and dated statement (ECF No. 81-1), arguing that it is deficient under 28 U.S.C. § 1746, which requires unsworn declarations made in the United States to be supported with a written statement in substantially the following form:

"I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

(Signature)".

28 U.S.C. § 1746. Specifically, Plaintiff urges the Court to disregard the statement because Ramos's signature appears before the statement: "I declare under penalty of perjury that the foregoing is true and correct. Executed on July 11, 2022." See ECF No. 89 at 3; ECF No. 94. Thus, according to Plaintiff, it is unclear if the...