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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EUGENE ERICKSON, §

 §

Plaintiff, §

 §

v. § Civil Action No. 3:04-CV-2069-K (BH)

 §

JERRY CHILDREE, §

 §

Defendant. § Pretrial Management

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS

Pursuant to Special Order No. 3-251, this case was referred by the District Court to this

Court for pretrial management, including the determination of non-dispositive motions and issuance

of findings of fact and recommendations to the District Court on dispositive motions. Before the

Court is Defendant’s Motion and Brief for Summary Judgment on the Defense of Qualified Immunity

(“Mot.”), filed on November 17, 2006. Having reviewed the pertinent filings above and the law

applicable to the issues raised, the Court finds that Defendant’s motion should be GRANTED.

I. BACKGROUND

On April 21, 2004, at approximately 1:30 P.M., Mr. Eugene Erickson (“Plaintiff”) entered

the Credit Union of Texas in Richardson, Texas, and attempted to cash a check. (Answers to

Magistrate Judge’s Questionnaire, Erickson v. Childree, No. 3:04-CV-2069-K, 10 (N.D. Tex. filed

Dec. 20, 2004) (hereinafter, “MJQ.”) The teller assisting him suspected that the check was forged

and notified the uniformed City of Richardson police officer on duty at the credit union, Mr. Jerry

Childree (“Defendant”). (Id.; Affidavit of Officer Jerry Childree, Erickson v. Childree, No. 3:04-

CV-2069-K, 1, ¶ 3 (N.D. Tex. filed Nov. 17, 2006) (hereinafter, “Affidavit.”)) When Defendant

 

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As a result of his actions at the Credit Union of Texas on April 21, 2004, Plaintiff later was convicted on

two counts of forgery by check. (Id. at 1.) On June 22, 2004, he was sentenced to two concurrent one year state jail

terms and was released on April 19, 2005. (Id. at 2.) 

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approached Plaintiff for questioning, Plaintiff fled and Defendant followed on foot. (Affidavit at

1, ¶ 3 .) Defendant intercepted Plaintiff and escorted him back to the credit union for questioning.

(Id.; MJQ at 10.) 

Upon their return to the credit union, Plaintiff refused to enter the building despite repeated

requests by Defendant that he do so. (Affidavit at 1-2, ¶ 4.) Defendant informed Plaintiff that he

was under arrest and secured Plaintiff’s hands behind his back. Id. Defendant avers that as he was

reaching for his handcuffs, Plaintiff attempted to break free and punch him. Id. Defendant

maintained his grip and heard a “snapping noise,” upon which Plaintiff ceased his struggle and

stated that his arm was broken. Id. Plaintiff maintains that the technique employed by Defendant

was unnecessary and that the constant pulling and jerking of his arms was an excessive use of force.

(See MJQ at 11.) Defendant avers that Plaintiff refused medical treatment while in his custody.

(Affidavit at 1-2, ¶ 4.) Plaintiff later sought treatment at Richardson Regional Medical Center for

the injuries he sustained during his encounter with Defendant. He was diagnosed with an acute

fracture on his lower left elbow, specifically a fracture of the coronoid process and a tiny chip

avulsion. (See MJQ at 4.) Plaintiff avers that he continues to experience severe pain and is unable

to completely straighten his arm. (Id. at 9.)1

On September 23, 2004, Plaintiff filed the instant action pursuant to 42 U.S.C. § 1983

seeking monetary damages. (Amended Complaint, Erickson v. Childree, No. 3:04-CV-2069-K

(N.D. Tex. filed Oct. 13, 2004.)) The Court granted Plaintiff permission to proceed in forma

pauperis. In an effort to flesh out his complaint, the Court sent him a Magistrate Judge’s

 

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Questionnaire, which he returned on December 20, 2004. (See MJQ). On May 30, 2006, the

District Court dismissed all claims against all defendants except Plaintiff’s claim of excessive force

against Defendant.

On November 17, 2006, Defendant filed the instant motion for summary judgment on the

issue of qualified immunity. Plaintiff did not file a response.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and evidence on file show that no

genuine issue exists as to any material fact and that the moving party is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(c). “[T]he substantive law will identify which facts are material.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists

“if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id.

The movant makes a showing that there is no genuine issue of material fact by informing the court

of the basis of its motion and by identifying the portions of the record which reveal there are no

genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The pleadings,

depositions, answers to interrogatories, admissions, and affidavits, if any, must demonstrate that no

genuine issue of material fact exists. FED. R. CIV. P. 56(c).

Once the movant makes this showing, the non-movant must then direct the court’s attention

to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.

Celotex, 477 U.S. at 324. To carry this burden, the non-movant “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-movant must show that the

evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S.

 

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at 249.

While all of the evidence must be viewed in a light most favorable to the motion’s opponent,

Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)), neither conclusory

allegations nor unsubstantiated assertions will satisfy the non-movant’s summary judgment burden.

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Topalian v. Ehrman, 954

F.2d 1125, 1131 (5th Cir. 1992). Summary judgment in favor of the movant is proper if, after

adequate time for discovery, the motion’s opponent fails to establish the existence of an element

essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at

322-23.

Generally, the pleadings of a plaintiff who is proceeding pro se must be liberally construed

in his favor. See Hurd v. Doe, 2003 WL 21640569, *3 (N.D. Tex. July 10, 2003). However, under

Rule 56 of the Federal Rules of Civil Procedure, the court does not have an obligation to ‘“sift

through the record in search of evidence’ to support the nonmovant’s opposition to the motion for

summary judgment.” Crane v. Bowles, 2004 WL 1057771, at *1 (N.D. Tex. May 6, 2004) (quoting

Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994)). Instead, “the party opposing summary

judgment is required to identify specific evidence in the record and to articulate the precise manner

in which that evidence supports his claim.” Id. (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d

455, 458 (5th Cir. 1998)). 

Where, as here, the nonmovant fails to respond to the motion for summary judgment, such

failure does not allow the court to enter a default summary judgment. Hibernia Nat’l Bank v. Admin.

Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985) (citing John v. La. (Bd. of Trs. for

State Colls. & Univs.), 757 F.2d 698, 709 (5th Cir. 1985)). However, “[a] summary judgment

 

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nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do

not constitute summary judgment evidence.” Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D.

Tex. 1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). In

addition, the movant’s evidence may be accepted as undisputed. Thompson v. Eason, 258 F.Supp.2d

508, 515 (N.D. Tex. 2003) (citing Eversly v. Mbank, 843 F.2d 172, 174 (5th Cir. 1988); Bookman,

945 F. Supp. at 1002).

III. ANALYSIS

Defendant moves for summary judgment on the defense of qualified immunity. (Mot. at 1.)

When a defendant seeks qualified immunity, “a ruling on that issue should be made early in the

proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.”

Saucier v. Katz, 533 U.S. 194, 200-01 (2001). This is because qualified immunity is an immunity

from suit, rather than a defense to liability, and the immunity is effectively lost if a case is

erroneously allowed to go to trial. Id. “Where it is not evident from the allegations of the complaint

alone that the defendants are entitled to qualified immunity, the case will proceed to the summary

judgment stage, the most typical juncture at which defendants entitled to qualified immunity are

released from the threat of liability and the burden of further litigation.” Sneed v. Dixon, 2007 WL

1202243, at *7 (N.D. Tex. Apr. 23, 2007) (Ramirez, J.) (citing Johnson v. Breeden, 280 F.3d 1308,

1317 (11th Cir. 2002)). If, after viewing the summary judgment evidence in the light most favorable

to the plaintiff, a court concludes that there is a genuine issue of material fact as to the issue of

qualified immunity, the case and the qualified immunity issue must proceed to trial. Id.

1. Standard

A state official who is sued for a constitutional violation pursuant to § 1983 may assert the

 

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affirmative defense of qualified immunity. White v. Taylor, 959 F.2d 539, 544 (5th Cir.1992).

Qualified immunity protects government officials performing discretionary functions from suit and

liability for civil damages to the extent their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The doctrine protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

To determine whether Defendant is entitled to qualified immunity, the threshold question is

whether, on the facts alleged by Plaintiff, a clearly established constitutional right would have been

violated. See Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (citing Saucier, 533 U.S. at 200).

Assuming the facts alleged by Plaintiff are true, if Defendant did not violate a constitutional right,

the Court need inquire no further. Saucier, 533 U.S. at 201. 

If, assuming the truth of the facts asserted, Plaintiff can show that his constitutional rights

were violated, the Court must then determine whether Defendant’s conduct was objectively

reasonable in light of clearly established law at the time of the challenged conduct. Id.; Glenn v.

City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). “Even if an official’s conduct violates a

constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable.”

McClendon v. City of Columbia, 258 F.3d 432, 438 (5th Cir. 2001). Qualified immunity ensures that

before officers are subjected to suit, they are on notice their conduct is unlawful. Saucier, 533 U.S.

at 206. “The law is deemed to be clearly established if the contours of a right asserted are

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” White, 959 F.2d at 544. Whether the conduct of which the plaintiff complains violated

clearly established law is essentially a legal question. Id. 

 

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Although Plaintiff did not file a response to Defendant’s motion, his Answers to the Magistrate Judge’s

Questionnaire constitute an amendment to the filed complaint. See Macias v. Raul A. (Unknown), Badge No. 153,

23 F.3d 94, 97 (5th Cir. 1994). Since the Answers were submitted under the penalty of perjury, they may be

considered as competent summary judgment evidence. See Barnes v. Johnson, 2006 WL 3102343, at *1 (5th Cir.

2006), slip copy (verified complaint may serve as competent summary judgment evidence). 

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2. Constitutional Violation

The threshold question to determine if Defendant is entitled to qualified immunity is

whether, on the facts alleged by Plaintiff, a clearly established constitutional right would have been

violated. See Brosseau, 543 U.S. at 197. Plaintiff’ sworn Answers to the Magistrate Judge’s

Questionnaire state that after attempting to cash a check that failed to clear, he exited Union Bank

of Texas but was escorted back inside by Defendant upon the bank teller’s suspicion of forgery.2

(MJQ at 10.) Plaintiff averred that Defendant “rapidly pulled [his] arm back and fractured [his]

elbow.” Id. According to Plaintiff, Defendant continued to pull and jerk his arms while restraining

him in handcuffs. (Id. at 11.) Plaintiff avers that as a result of the injuries caused by Defendant, he

was diagnosed at Richardson Medical Center with an “acute fracture, lower elbow (coronoid process

and tiny chip avulsion.)” (Id. at 4.) Defendant does not deny that Plaintiff received injuries on April

21, 2004. He avers that he heard a “snapping noise” when Plaintiff attempted to free himself from

Defendant’s grip. (Affidavit at 2.) Defendant further avers that Plaintiff said his arm was broken.

Id. 

Given the extent of Plaintiff’s injuries he allegedly received as a result of Defendant’s use

of force, he has alleged more than de minimus injuries. See Hudson v. McMillian, 503 U.S. 1, 10

(1992) (bruising, swelling, loosened teeth and broken dental plate were not de minimis injuries in

excessive force case). Assuming that the facts alleged by Plaintiff are true, he has met his burden

to allege a violation of his clearly established constitutional right to be free from unreasonable

 

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seizure and the use of excessive force under the Fourth Amendment. Graham v. Connor, 490 U.S.

386, 395 (1989). 

3. Clearly Established Constitutional Right

Having alleged a constitutional violation of excessive force on April 21, 2004, Plaintiff must,

under the second step of qualified immunity analysis, show that Defendant’s conduct was

objectively unreasonable in light of clearly established law at the time of the challenged conduct.

Saucier, 233 U.S. at 201. “[A]ll claims that law enforcement officers have used excessive force -

deadly or not - in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should

be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham, 490 U.S.

at 395. The issue of reasonableness centers on whether the officer’s actions were “objectively

reasonable” in light of the facts and circumstances with which he is faced, without regard to the

officer’s underlying intent or motivation. (Id. at 397). Whether the use of force is reasonable “must

be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” (Id. at 396.) “In applying Graham, the Fifth Circuit has used a three-part test for §

1983 excessive force claims, requiring a plaintiff to show (1) an injury, which (2) resulted directly

and only from the use of force that was clearly excessive to the need; and (3) the excessiveness of

which was objectively unreasonable.” Thomas v. Murray, 107 F.Supp.2d 748, 757 (N.D. Tex. 2000)

(citing Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992.))

Plaintiff satisfies the first step of establishing a claim of excessive force under § 1983 by

showing an injury. See Thomas, 107 F.Supp.2d at 757. An “injury” means “damage or harm to the

physical structure of the body.” Knight, 970 F.2d at 1433. Plaintiff avers that he was diagnosed

with a fractured left elbow at the Richardson Regional Medical Center after his encounter with

 

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Defendant. (MJQ at 4,11.)

Plaintiff next must show that his injuries resulted directly and only from Defendant’s use of

force that was clearly excessive to the need. See Thomas, 107 F.Supp.2d at 757. Plaintiff avers that

he received his injuries as a result of Defendant’s use of force. (See MJQ at 1-2.) Defendant does

not contest that Plaintiff’s fractured elbow occurred during his attempt to restrain him. (See

Affidavit at 1-2, ¶ 4) He avers that he heard a “snapping noise” when Plaintiff attempted to spin out

of his grip. Id. He also avers that immediately after the snapping noise, Plaintiff stated that his arm

was broken. Id. Thus, Plaintiff’s fractured elbow resulted directly and only from Defendant’s use

of force.

However, Plaintiff has not met his burden to show that Defendant’s use of force was

excessive to the need to restrain him. In order for Plaintiff to create a genuine issue of material fact,

he must show that a reasonable trier of fact could resolve the factual issue in his favor. Anderson,

477 U.S. at 249. Plaintiff’s conclusory, unsubstantiated statement that Defendant’s use of force was

unnecessary to apprehend him does not provide competent summary judgment evidence to

controvert Defendant’s sworn statement that Plaintiff attempted to break free to punch Defendant,

and that the use of force was necessary to restrain him. Little, 37 F.3d at 1075. Given Plaintiff’s

lack of evidence, a reasonable trier of fact could not conclude that Defendant’s use of force was

unnecessary. Plaintiff has therefore failed to show that a genuine issue of material fact exists as to

whether Defendant’s use of force was excessive to the need to restrain him. Celotex, 477 U.S. at

323-24.

Even if the Court were to find that a genuine issue of material fact existed as to whether

Defendant’s use of force was excessive, however, Defendant’s conduct was objectively reasonable

 

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in light of the facts and circumstances of the April 21, 2004 incident. Thomas, 107 F.Supp.2d at

757. “[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use

some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. Whether

the force used was objectively unreasonable depends on the facts and circumstances of the particular

case and includes the (1) the severity of the crime, (2) whether the suspect posed an immediate threat

to the safety of the officer or others, and (3) whether the plaintiff was actively resisting arrest or was

attempting to evade arrest. Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998)

(citing Graham, 490 U.S. at 396.) The reasonableness of a particular use of force is judged from

the perspective of a reasonable officer on the scene, rather than with the benefit of 20/20 hindsight.

Graham, 490 U.S. at 396. 

Given Defendant’s sworn affidavit and the lack of any responsive pleading by Plaintiff or

additional evidence in Plaintiff’s favor beyond his Answers to the Magistrate Judge’s Questionnaire,

the Court determines that Defendant’s conduct was objectively reasonable. After being notified by

a bank teller that Plaintiff might be attempting to cash a forged check, Defendant approached

Plaintiff for questioning. (Affidavit at 1, ¶ 3.) Plaintiff fled and exited the bank, and Defendant,

who was in his full police uniform, pursued on foot. Id. Defendant caught up to Plaintiff and

convinced him to return to the bank for questioning. Id. When the parties reached the bank doors,

Plaintiff refused to enter despite Defendant’s repeated requests. At this point, Defendant informed

Plaintiff that he was under arrest and was being detained. (Id. at 1-2, ¶ 4.) Defendant employed a

technique with which he was very familiar to secure Plaintiff’s hands. (Id. at 2, ¶ 5.) After

Plaintiff’s hands were secured behind his back, but before they were restrained with handcuffs,

Plaintiff attempted to spin out of Defendant’s grip and punch Defendant. (Id. at 1-2, ¶ 4.)

 

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Defendant maintained his grip so that Plaintiff could not break free, and at this point Plaintiff

fractured his elbow. Id. Based on the perceived immediate threat Plaintiff posed to the safety of

Defendant, and based on his active attempt to evade or resist arrest, Defendant’s use of physical

force to restrain Plaintiff was objectively reasonable. Gutierrez, 139 F.3d at 447. Because Plaintiff

lacks controverting summary judgment evidence, nothing in his pleadings indicates that Defendant’s

actions were objectively unreasonable. Since the perspective of a reasonable officer on the scene

controls, Defendants use of force was reasonable to respond to what he believed was a dangerous

situation and an imminent physical assault from Plaintiff. See Graham, 490 U.S. at 396. 

Accordingly, the Court finds that Defendant is entitled to the defense of qualified immunity

for Plaintiff’s claim of excessive force on April 21, 2004. McClendon, 258 F.3d at 438.

IV. CONCLUSION

For the reasons stated above, the Court recommends that Defendant’s Motion and Brief for

Summary Judgment on the Defense of Qualified Immunity be GRANTED.

SO RECOMMENDED on this 21st day of May, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify those

findings, conclusions or recommendation to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. A party’s failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from a

de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) days after being served

with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions

of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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