Harmon v. Nguyen

EDWARD DERELL HARMON (TDCJ No. 1891908), Plaintiff, v. CHAU NGUYEN, ET AL., Defendants.

No. 3:14-cv-2038-D-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

February 4, 2016

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

This civil rights cases, resulting from the March 2013 arrest of Plaintiff Edward Derell Harmon by Dallas police officers, has been referred to the undersigned United States magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b) and an order of reference from United States District Judge Sidney A. Fitzwater. See Dkt. No. 107.

Harmon's claims that, during his arrest, the officers violated his Fourth Amendment right to be free from excessive force survived initial screening. All but one officer answered the complaint, and all answering officers asserted the affirmative defense of qualified immunity. Those officers have now moved for summary judgment as to that affirmative defense. See Dkt. Nos. 110, 111, 112, 113, 114, & 115. The undersigned issues the following findings of fact, conclusions of law, and recommendation that the Court should grant the Defendants' motions for summary judgment and dismiss Harmon's claims with prejudice.

Background

Harmon was arrested on March 26, 2013. As alleged in his pro se complaint, as amended by his answers to the Court's questionnaire, Harmon's Fourth Amendment excessive force claim is, in sum, that two Dallas police officers - Defendants Terrell McNeal and Chau Nguyen - kicked and punched him, slammed his head to the floor, and verbally threatened him, see Dkt. No. 3 at 4; Dkt. No. 16 at 4-5, and also "beat [him] up after putting handcuff[s] on" him, Dkt. No. 16 at 1; see also Dkt. No. 3 at 4 (asserting that Nguyen caused Harmon injury "after handcuff was on").

Harmon also has alleged that fifteen other Dallas police officers were "involve[d] and did nothing to stop it or act on it as public servant[s] of law." Dkt. No. 16 at 1. The Court liberally construed this allegation as asserting a claim of bystander liability/failure to intervene to intercede and prevent excessive force, also in violation of the Fourth Amendment, against Defendants Mario Cantu, Michael Coggins, Michael Conway, Thang Dinh, Daniel Fogle, James Fung, Greg Garcia, Jeff Garrett, T. Lewis, John Lising, Jennifer Logan, Norma Massu, Christopher Nilsen, Andrea Spiller, and Tyrone Wall.

After the summary judgment motions were filed, the Court gave Harmon an opportunity to request limited discovery to respond to the qualified immunity issues raised in motions. See Dkt. No. 116; see also Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. 1987); Webb v. Livingston, 618 F. App'x 201 (5th Cir. 2015) (per curiam). Because Harmon's response to the order failed to provide specific discovery requests, his motion was denied, and the Court ordered Harmon to respond to the summaryjudgment motions no later than October 12, 2015. See Dkt. No. 127. Even liberally construing the many pleadings that Harmon has filed, he has failed to file a substantive response to the summary judgment motions.

As such, the undisputed summary judgment evidence, submitted through the defendants' sworn affidavits, is that officers assigned to the Dallas Police Department's Narcotics Division executed a no-knock search warrant at a house located on Marjorie Street in Dallas, Texas on March 26, 2013. Upon entry by the officers, the door struck Harmon, who stumbled backward and caused crack cocaine located on a table to fall to the floor. Harmon then struggled with Officer McNeal and refused McNeal's commands to show his hands and to get on the floor. During this altercation, McNeal observed Harmon begin to reach for his waistband, and Officer Nguyen observed a handgun in Harmon's waistband. McNeal then pushed Harmon against the wall, and he and Nguyen forced Harmon to the floor and handcuffed him. A second handgun was then found hidden in Harmon's underwear.

Legal Standards

"The doctrine of qualified immunity shields officials from civil liability so long as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (in turn quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); some internal quotation marks omitted). This "gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those whoknowingly violate the law." Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011); internal quotation marks omitted); see also Mullenix, 136 S. Ct. at 308 ("[a] clearly established right is one that is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right'"(quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012))).

While review of a motion for summary judgment based on qualified immunity is accomplished in two steps, a court may conduct the required two-step examination in any order. See Pearson, 555 U.S. at 236; see also Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014) (there is "discretion to decide which of the two steps of qualified immunity to address first").

Regardless of which prong is addressed first, a court must decide "whether the facts, taken in the light most favorable to the plaintiff, show the officer's conduct violated a federal constitutional or statutory right." Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir. 2014) (citing Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam); Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004)), reversed on other grounds, 136 S. Ct. 305 (2015). Put differently, under the first prong, a court simply must decide "whether the plaintiff has alleged a violation of a constitutional right." Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008).

A court also must decide "whether the defendant's actions violated clearly established statutory or constitutional rights of which a reasonable person would have known." Flores, 381 F.3d at 395. This second prong of the analysis requires a court to determine "whether the defendant's conduct was objectively reasonable in light of theclearly established law at the time of the incident." Charles, 522 F.3d at 511. That is, even if a government official's conduct violates a clearly established right, the official remains entitled to immunity if his conduct was objectively reasonable. See Davis v. McKinney, 518 F.3d 304, 317 (5th Cir. 2008); see also Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) ("The dispositive inquiry, we have said, is whether it would have been clear to a reasonable officer in the [defendants'] position that their conduct was unlawful in the situation they confronted." (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001); internal quotation marks and brackets omitted from original)).

To determine whether the law at the time of an incident was clearly established, even if the Court assumes that each right that a plaintiff asserts did apply in his case, each right must be defined at the appropriate level of specificity. While "'a case directly on point'" is not necessarily required to "conclud[e] that the law is clearly established, '[ ] existing precedent must have placed the statutory or constitutional question beyond debate.'" Stanton, 134 S. Ct. at 5 (quoting al-Kidd, 131 S.Ct. at 2085). The Court also may not "'define clearly established law at a high level of generality,' since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting al-Kidd, 131 S. Ct. at 2084); accord Mullenix, 136 S. Ct. at 309 ("The dispositive question is whether the violative nature of particular conduct is clearly established." (citation and internal quotation marks omitted; emphasis in original)).

Essential to the "clearly-established inquiry is 'fair warning'"; thus, the Court is required to "ask 'not only whether courts have recognized the existence of aparticular constitutional right, but also ... whether that right has been defined with sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct.'" Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc) (respectively quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002); McClendon v. City of Columbia, 305 F.3d 314, 331 (5th Cir. 2002) (en banc) (per curiam)).

In sum,

[w]hen deciding whether the right allegedly violated was "clearly established," the court asks whether the law so clearly and unambiguously prohibited the conduct that every reasonable official would understand that what he is doing violates the law. Answering in the affirmative requires the court to be able to point to controlling authority - or a robust consensus of persuasive authority - that defines the contours of the right in question with a high degree of particularity. This requirement establishes a high bar. When there is no controlling authority specifically prohibiting a defendant's conduct, the law is not clearly established for the purposes of defeating qualified immunity.

Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013) (citing Morgan, 659 F.3d at 371-72; internal citations and quotation marks omitted).

Once a defendant invokes his entitlement to qualified immunity, "the burden is on the plaintiff to demonstrate the inapplicability of the defense." McClendon, 305 F.3d at 323; see Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997) ("We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs." (internal quotation marks omitted)); Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014) ("Once ...