King v. Chide ( 1992 )


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  •                                     United States Court of Appeals,
    
                                                  Fifth Circuit.
    
                                                  No. 91–2562.
    
                                       William KING, Plaintiff–Appellee,
    
                                                        v.
    
                          Jason CHIDE and Mark Gonzales, Defendants–Appellants.
    
                                                 Oct. 13, 1992.
    
    Appeals from the United States District Court for the Southern District of Texas.
    
    Before JOLLY and DUHÉ, Circuit Judges, and PARKER1, District Judge.
    
              ROBERT M. PARKER, District Judge:
    
              Plaintiff, William King (King) filed this action against the City of Galveston, Police Chief
    
    Robert Steen, and Police Officers Jason Chide (Chide) and Mark Gonzales (Gonzales) alleging
    
    violations of 42 U.S.C. § 1983 and various state tort claims. The District Court granted summary
    
    judgment dismissing all claims against Police Chief Steen, and dismissing all of Plaintiff's state tort
    
    claims. Chide and Gonzales moved for summary judgment on the basis of qualified immunity. The
    
    District Court denied their motion, and they are before this court on interlocutory appeal of that order
    
    as is their right under Mitchell v. Forsyth, 
    472 U.S. 511
    , 
    105 S. Ct. 2806
    , 
    86 L. Ed. 2d 411
     (1985).
    
    For the reasons set out below, we REVERSE.
    
    
    
                                                     FACTS
    
              The facts, taken in the light most favorable to King, the non-moving party on the summary
    
    judgment motion at issue in this appeal, are as follows.
    
    
    
              On Halloween night 1987, officers Chide and Gonzales responded to a disturbance call at
    
    King's residence. When they arrived a yellow cab was parked outside the residence, and Martha
    
    Fergison was on the front porch yelling at King who was inside the house. Both Fergison and King
    
       1
           Chief Judge of the Eastern District of Texas, sitting by designation.
    were intoxicated, very belligerent and uncooperative with the officers. A twelve year old boy,
    
    Fergison's nephew and ward, was with the cab driver outside the residence. The officers recorded
    
    in their police repo rt that Fergison and King were common law married, and that Fergison was
    
    attempting to get into the house that she shared with King to get her belongings so she and the boy
    
    could leave. King contends that Fergison rented part of the house from him, but agrees that she lived
    
    there, and had a right to enter the house. The officers separated and talked to King and Fergison
    
    individually. The officers tried to persuade King to allow Fergison to come in and get her belongings,
    
    but King refused. Eventually, King opened the door. Fergison started up the steps towards King and
    
    the officers intervened. King was told that he was under arrest for public intoxication, but he refused
    
    to be arrested. The officers and King struggled in the doorway. They took him down to the ground
    
    and hand cuffed his hands behind his back. Both King and Fergison were arrested and were taken
    
    into custody.
    
    
    
           After booking, King was taken to a local emergency room complaining of abrasions on his
    
    face, a sore neck and an injury to his foot. He was checked by a physician and discharged, with a
    
    notation that a plastic surgeon should look at his foot. King had been in a motorcycle wreck some
    
    years before and had suffered an injury to his heel. The heel had been reconstructed by plastic
    
    surgery. During the scuffle with the police officers, King's boot was pulled off and the heel was
    
    punctured. The puncture later resulted in infection and ulceration. King, who was a self employed
    
    laborer, has been unable to work since 1987 because of recurring problems with the heel.
    
    
    
                                        STANDARD OF REVIEW
    
           Review of a district court's ruling on a motion for summary judgment is plenary. Lodge Hall
    
    Music, Inc. v. Waco Wrangler Club, Inc., 
    831 F.2d 77
    , 79 (5th Cir.1987). The court of appeals
    
    applies the same standards as those that govern the district court's determination. Id. at 79.
    
    Summary judgment must be granted if the court determines that "there is no genuine issue as to any
    
    material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.
    56(c). To determine whether there are any genuine issues of material fact, the court must first consult
    
    the applicable substantive law to ascertain what factual issues are material. The court must then
    
    review the evidence bearing on those issues, viewing the facts and inferences in the light most
    
    favorable to the nonmoving party. Lavespere v. Niagara Mach. & Tool Works, Inc., 
    910 F.2d 167
    
    (5th Cir.1990).
    
    
    
                                  SUFFICIENCY OF THE COMPLAINT
    
             In their first point of error, Chide and Gonzales contend that the district court erred in
    
    denying the officers' summary judgment because King's complaint was deficient in specific facts. The
    
    Fifth Circuit has adopted the heightened pleading requirement for cases against state actors in their
    
    individual capacities. Elliott v. Perez, 
    751 F.2d 1472
     (5th Cir.1985). Because the doctrine of
    
    immunity should accord the defendant-official not only immunity from liability, but also immunity
    
    from defending against a lawsuit, a plaintiff's complaint must state with factual detail and particularity
    
    the basis for the claim, including why the defendant-official cannot successfully maintain the defense
    
    of immunity. Id. at 1473. See also Leatherman v. Tarrant County Narcotics Intelligence &
    
    Coordination Unit, 
    954 F.2d 1054
     (5th Cir.1992). Appellants complain that the lower Court erred
    
    by failing to grant their summary judgment because King's complaint was deficient. However, when
    
    reviewing a summary judgment order this court may not limit its consideration to the facts alleged
    
    in the complaint. Rather we must examine the record as a whole to determine whether there are
    
    genuine issues of material fact and whether the movant is entitled to a judgment as a matter of law.
    
    Fed.R.Civ.P. 56. The procedural posture of the case before us precludes an analysis of whether
    
    King's complaint, by itself, could withstand scrutiny under the Fifth Circuit's heightened pleading
    
    requirement. Morales v. Department of Army, 
    947 F.2d 766
    , 768 (5th Cir.1991).
    
    
    
           NONMOVANT'S BURDEN OF PROOF ON SUMMARY JUDGMENT MOTION
    
            Appellants' second point of error alleges that because King did not properly oppose their
    
    motion for summary judgment, they are entitled to reversal of the trial court's order denying it. As
    Appellants correctly point out, a nonmoving party is not entitled to rest on his pleadings, but must
    
    carry his burden of providing evidence of a genuine issue of material fact. Reese v. Anderson, 
    926 F.2d 494
    , 499 (5th Cir.1991). That burden can be met by depositions, answers to interrogatories and
    
    admissions on file and affidavits. Fed.R.Civ.P. 56(c). The reco rd before us includes Plaintiff's
    
    medical records, a portion of Plaintiff's deposition, the arrest record and incident report from the
    
    fracas in question, and affidavits as well as the summary judgment motion, brief and response. We
    
    find the record before us adequate to the determination of the necessary fact questions.
    
    
    
                                           QUALIFIED IMMUNITY
    
            Finally, the Appellants contend that the district court erred in denying their summary judgment
    
    because they were entitled to qualified immunity as a matter of law.
    
    
    
             Our first inquiry in the examination of a defendant's claim of qualified immunity is whether
    
    the Plaintiff has "alleg[ed] the violation of a clearly established constitutional right." Siegert v. Gilley,
    
    ––– U.S. ––––, 
    111 S. Ct. 1789
    , 
    114 L. Ed. 2d 277
     (1991). King's complaint alleges that Chide and
    
    Gonzales used excessive force to unlawfully arrest him. It is well settled that if a law enforcement
    
    officer uses excessive force in the course of making an arrest, the Fourth Amendment guarantee
    
    against unreasonable seizure is implicated. Graham v. Connor, 
    490 U.S. 386
    , 394–95, 
    109 S. Ct. 1865
    , 1870–71, 
    104 L. Ed. 2d 443
     (1989); Tennessee v. Garner, 
    471 U.S. 1
    , 
    105 S. Ct. 1694
    , 
    85 L. Ed. 2d 1
     (1985); Reese v. Anderson, 
    926 F.2d 494
    , 500 (5th Cir.1991). A police officer may arrest
    
    a person if he has probable cause to believe that person committed a crime. However, the Fourth
    
    Amendment requires that we examine not only whether probable cause existed, but also the
    
    reasonableness of the manner in which such a seizure is conducted. Tennessee v. Garner, 
    471 U.S. 1
    , 
    105 S. Ct. 1694
    , 
    85 L. Ed. 2d 1
     (1985).
    
    
    
            King's Amended Complaint identifies his Constitutional claims as the "abridgement of rights
    
    and immunities secured by the U.S. Constitution, Amendments V, VIII, and XIV, under 42 U.S.C.
    § 1983," and refers to the unlawfulness of the underlying arrest. However, both parties in the briefs
    
    before this Court and the opinion of the Court below have treated King's case as a Fourth
    
    Amendment claim, concerning the reasonableness of the officers' conduct while arresting King. We
    
    therefore make no determination of whether King has constitutional claims concerning the existence
    
    of probable cause for the arrest.
    
    
    
            The next step in a qualified immunity analysis is to determine the standard by which to judge
    
    the reasonableness of the officers' behavior. Qualified immunity cloaks a police officer from liability
    
    if a reasonably competent law enforcement agent would not have known that his actions violated
    
    clearly established law. Jackson v. Beaumont Police Dept., 
    958 F.2d 616
    , 620 (5th Cir.1992) (citing
    
    James v. Sadler, 
    909 F.2d 834
    , 838 (5th Cir.1990). Although the standard for determining
    
    reasonableness in excessive use of force cases has evolved considerably since October of 19872, "the
    
    objective reasonableness of an officer's conduct must be measured with reference to the law as it
    
    existed at the time of the conduct in question." Pfannstiel v. Marion, 
    918 F.2d 1178
    , 1185 (5th
    
    Cir.1990). Shillingford v. Holmes, 
    634 F.2d 263
     (5th Cir.1981) the controlling authority in October
    
    1987, recognized that an injury inflicted by an officer must rise above a minor tort claim to occasion
    
    a constitutional violation. Id. at 265. In Shillingford some policemen were apprehending a boy,
    
    when they noticed Mr. Shillingford, a tourist, photographing the incident. Shillingford was holding
    
    a camera up to his face. An officer struck the camera and Shillingford with his nightstick, destroying
    
    the camera, smashing it into Shillingford's face and lacerating his forehead. Shillingford was not
    
    involved in the arrest incident and did not interfere with the police in any fashion. The Fifth Circuit
    
    applied a three prong test to the facts of Shillingford to determine the reasonableness of the officer's
    
    action: one, did the action cause severe injury; two, was the action grossly disproportionate to the
    
       2
        See Johnson v. Morel, 
    876 F.2d 477
    , 480 (5th Cir.1989) (en banc) (changing the standard for
    Fourth Amendment excessive use of force claims by reformulating the "severe injury" prong to
    "significant injury.")
    
                   See also, Hudson v. McMillian, ––– U.S. ––––, 
    112 S. Ct. 995
    , 
    117 L. Ed. 2d 156
           (1992) (overruling the "significant injury" prong, in an Eighth Amendment excessive use
           of force context.)
    need for action under the circumstances; and three, was it inspired by malice rather than merely
    
    careless or unwise excess of zeal? The test requires that all three questions be answered in the
    
    affirmative in order for a Plaintiff to establish a deprivation of constitutional rights. This test was the
    
    clearly established law in October 1987 that would have guided a reasonably competent law
    
    enforcement agent in making decisions about how to effect an arrest.
    
    
    
            Finally, then, we must apply the Shillingford test to King's facts. The trial Court's written
    
    order merely recites the nature of the motions pending before the Court and the rulings. However,
    
    in a supporting opinion, delivered orally, the Court says,
    
    
    
                    "The dispute, it seems to me on the 1983 claim centers on two critical factors: one
            the severity of [King's] injury. The definition legally as to what is quote "a significant' end
            quote injury, I think is open to question, and you have stated sufficient claim to get to the trier
            of fact on that particular issue.
    
                    "The next one is malice, and with regard to that aspect of the case, I think you
            probably ought to get to the trier of fact on the 1983 case, but I've got to tell you, reviewing
            this case, I think that's a relatively slender reed. By not granting the motion for summary
            judgment, I am not saying that I think this is a completely viable case, and I'm not saying that
            I would not consider taking it away from the jury if you do not state a sufficient prima facie
            case in your opening case in chief to demonstrate that you satisfy those prima facie
            requirements."
    
            The District Court's reference to "significant injury" indicates that the Court applied the wrong
    
    test in making the Summary Judgment determination. Johnson v. Morel, 
    876 F.2d 477
     (5th Cir.1989)
    
    changed the standard for Fourth Amendment excessive force claims, and among other things,
    
    reformulated Shillingford 's "severe injury" prong to "significant injury". Jackson v. Beaumont Police
    
    Dept., 
    958 F.2d 616
    , 621, n. 6 (5th Cir.1992). However, because the standard was revised at a point
    
    in time after Officers Chide and Gonzales arrested King, we must reevaluate their conduct under the
    
    earlier Shillingford standard.
    
    
    
            The Plaintiff conceded that his injury was not medically intensive. He contends, instead, that
    
    the wound to his heel resulted in severe injury because the doctors were unable to correct the
    
    ulceration and breakdown of the heel and the only cure they could offer was to advise him to stay off
    of it. The heart of his injury allegation is that he has subsequently been unable to work at his trade
    
    because of problems with his heel and has thereby suffered economic loss. Appellants, on the other
    
    hand, characterize the injury as minor, relying on the medical records admitted into evidence, which
    
    reflect minimal medical care connected with King's injuries. In order for King to recover in this case,
    
    a severe injury must have been caused by the alleged excessive force. King is asking this court to
    
    hold a police officer liable for unforeseeable complications which resulted from a minor injury. The
    
    analytical framework of qualified immunity rests on the objective foundation of t he judgment of a
    
    reasonably competent officer. Pfannstiel v. Marion, 
    918 F.2d 1178
     (5th Cir.1990). We find that a
    
    reasonably competent officer could not have anticipated that the brief struggle to arrest and hand cuff
    
    King would cause the injury King now complains of. Therefore, we hold that facts established in the
    
    record do not support a finding that King met the severe injury prong of Shillingford.
    
    
    
           King's case also fails under the second prong of the test. The officers' conduct was not
    
    grossly disproportionate to the need for action under the circumstances. There is no evidence in the
    
    record that the officers harbored ill-will toward King. King does not dispute that he resisted arrest
    
    after he had been told that he was under arrest and what the charge was, or that he was intoxicated
    
    and belligerent, or that the officers believed they had been summoned to intervene in a domestic
    
    altercation. All of these facts have been held relevant to the inquiry of whether an officer's conduct
    
    is grossly disproportionate to the need for action under the circumstances. Brown v. Glossip, 
    878 F.2d 871
     (5th Cir.1989.) King's strongest argument is that he was in his own home, alone, with the
    
    door locked when the police arrived, and was entitled to be left alone unless the police had a warrant
    
    or legally adequate probable cause to disturb him. The problem with King's position is that the
    
    officers did not arbitrarily enter his property to disturb him. They answered a disturbance call, and
    
    were faced with what appeared to be a domestic fight. An angry, drunken woman and a child were
    
    locked out of their own residence in t he middle of the night. The need for action under these
    
    circumstances was not clearly outweighed by the fact that King wanted to be left alone behind his
    
    locked door. There is no mention of this prong of the test in the District Court's written order or oral
    opinion, although the order denying summary judgment implicitly finds, at the least, a fact dispute
    
    concerning the disproportionality of the officers' actions. We find no such dispute.
    
    
    
           The third prong, whether the action was inspired by malice, rather than carelessness or unwise
    
    excess of zeal, was addressed by the District Court in its oral opinion supporting its order. The Court
    
    apparently found a fact issue on this prong. It is unnecessary for us to reach the question of the
    
    correctness of that finding. Since we find that King fails to meet the first two prongs of the test,
    
    Appellants were entitled to summary judgment based on qualified immunity.
    
    
    
                                               CONCLUSION
    
           The District Court's Order denying the Motion for Summary Judgment filed by Officers Chide
    
    and Gonzales is REVERSED.