UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SHERONDA DANIELS, ET AL., §

§

Plaintiffs, §

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V. § CIVIL ACTION NO. 3:05-CV-2460-B

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THE CITY OF DALLAS, ET AL., §

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Defendants. §

MEMORANDUM ORDER

This case comes to the Court on Plaintiffs’ objections to the Magistrate Judge’s May 10, 2007

Findings and Recommendation regarding three motions for summary judgment filed by the

Defendants in this civil rights action. The Magistrate Judge recommends that the Court: grant

Defendant Kent Wolverton’s motion for summary judgment on qualified and immunity; grant in part

the City of Dallas’s motion for summary judgment; and grant Wolverton’s motion for summary

judgment on Plaintiffs’ official capacity claims. The Magistrate Judge also recommends that all

federal claims lodged against the Defendants be dismissed with prejudice and that this Court should

decline to exercise supplemental jurisdiction over Plaintiffs’ state claims. Plaintiffs timely filed

objections to the Magistrate Judge’s recommendation. This Court will conduct a de novo review of

those portions of the Magistrate Judge’s findings and recommendation to which Plaintiffs have filed

objections. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). 

I. Background

 This case arises from a fatal collision between a police car and a pedestrian. The vehicle

was driven by Kent Wolverton, an officer of the Dallas Police Department. On the evening of

September 23, 2005, Wolverton was patrolling the area near Fair Park. (Def. Officer Wolverton’s

 

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 Plaintiffs claim that Wolverton achieved speeds in excess of 60 miles per hour while on Dixon. 1

(Objections at 5). Plaintiffs cite to no evidence substantiating this assertion, however.

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App. in Supp. Mot. Summ. J. [“Defs. App.”] 64). Around 8:00 p.m. he heard a fellow officer, Officer

Castro, radio for cover at the Larry Johnson Recreation Center. (Id.). According to Castro,

Wolverton, and other Dallas officers, the recreation center is located in a high crime area often

involving illegal drug and weapons activity. (Id. at 25-54, 64). Wolverton claims that he heard

screaming in the background of the call. (Id. at 64, 76). Though the call was dispatched as a “code

1", or non-emergency call, Wolverton raced to the scene at a high rate of speed, believing that Castro

was in a highly volatile and potentially dangerous situation. (Def. App. 66; Pls.’ App. in Supp. Resp.

to Def.’s Mot. Summ. J. [“Pl. App.”] 23-24, 116). But because Castro’s call for assistance was

dispatched as a “code 1", Wolverton did not engage his overhead lights or siren. (Def. App. 64).

As Wolverton was proceeding toward the recreation center, he traveled through a residential area

at speeds approximating 60 miles per hour. (Pl. App. 23-24, 166). As he neared a grocery store on

Dixon Avenue, Wolverton swerved around a vehicle stopped in the roadway and violently struck

L.V. Daniels Jr., who was crossing the street on foot. (Def. App. 18, 20, 64-65). Daniels was flung 1

from the point of impact, suffered severe injuries, and later died. 

On December 12, 2005, Daniels’s wife and parents filed this lawsuit against Wolverton (in

his individual and official capacities) and the City of Dallas for civil rights violations under federal

and state law. In their objections Plaintiffs do not challenge the Magistrate Judge’s finding that

Plaintiffs abandoned all federal claims against Wolverton save for their substantive due process claim.

The Magistrate Judge’s recommendation thus focuses on Plaintiffs’ complaint that Wolverton’s

reckless actions deprived Daniels of his right to substantive due process under the Fourteenth

 

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Amendment to the United States Constitution and that an unwritten policy of the City of Dallas

allowed Wolverton to operate his patrol car in a reckless manner. The Magistrate Judge concluded

that Plaintiffs failed to provide sufficient evidence of a substantive due process violation and

accordingly granted summary judgment in favor of Wolverton on his qualified immunity defense.

The Magistrate Judge also found that Plaintiffs’ claims against Wolverton in his official capacity were

duplicative of those brought against the City of Dallas. The Magistrate Judge determined that there

was no basis for municipal liability, however, because Plaintiffs failed to prove an underlying

constitutional violation. Finally, the Magistrate Judge concluded that Plaintiffs’ state-based claims

should be dismissed without prejudice under 28 U.S.C. § 1367(c)(3).

II. Objections

A. Plaintiffs Object That the Magistrate Judge Failed to Take the Facts in the Light Most

Favorable to Plaintiffs

Plaintiffs first complain that the Magistrate Judge adopted Defendants’ version of the facts

rather than his. It is axiomatic that, on summary judgment, courts are required to construe facts and

draw reasonable inferences in the light most favorable to the non-movant. See Scott v. Harris, 127

S.Ct. 1769, 1774-1775 (2007). The Court is not convinced that the Magistrate Judge failed to

adhere to these maxims, however. Plaintiffs first claim that the Magistrate Judge inappropriately

accepted at face value Defendants’ evidence that Wolverton heard a woman screaming in the

background of Officer Castro’s call for cover help. Wolverton testified that he heard yelling in the

background of the call and that he particularly noticed the sound of a woman screaming. (Def. App.

64, 76). Plaintiffs claim that the dispatch tape itself “wholly contradict[s]” Wolverton’s

characterization of what he heard. (Pls.’ Sur-Reply at 3). Having listened to the tape, however, the

 

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Court must disagree with Plaintiffs’ assessment. Though the background sounds on the tape are

somewhat indistinct, loud crowd notices can be heard, dominated by what appears to be a female

speaking in excited tones, to say the least. Nothing on the tape essentially discredits Wolverton’s

testimony that he subjectively believed that the background noises bespoke a volatile situation.

Plaintiffs also challenge the Magistrate Judge’s reliance on Defendants’ evidence that Officer

Castro’s call for assistance was precipitated by a hostile crowd that had gathered at the recreation

center. In their objections Plaintiffs simply assert that they dispute this evidence without specifically

referencing any rebuttal evidence of their own. (Objections at 11). Instead Plaintiffs refer back to

their sur-reply brief, in which they complain, in conclusory fashion, that Defendants’ position is

supported by “self-serving” internal officer statements that were made in bad faith and constitute

hearsay. (Pls.’ Sur-Reply at 3). Plaintiffs offer no evidence to substantiate their charge that the

statements were made in bad faith. Nor have they offered any argument in support of their claim

that the statements are hearsay. One of the internal statements relied upon by Defendants is from

Castro himself,who simply related his observation that a large and hostile crowd had gathered at the

recreation center on the evening of September 23, 2005. (Def. App. 27). In the absence of any

evidence tending to refute Castro’s testimony, the Court cannot find that the Magistrate Judge erred

in relying on it.

Finally, Plaintiffs take issue with Defendants’ evidence suggesting that the recreation center

was located in a high crime area. Wolverton testified that the recreation center is “a chronic

problem area and we receive many calls to that area regarding drugs and weapons.” (Id. at 64).

Again, although Plaintiffs strenuously dispute that the recreation area is a hotbed of crime, they

present no evidence to the contrary. Plaintiffs simply argue that Wolverton’s testimony is

 

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controverted by the fact that Castro informed the dispatcher that his call for help was a “code 1",

or non-emergency call. (Pls.’ Sur-Reply at 3). This is a non-sequitur. Simply because Castro

dispatched a non-emergency request for help does not necessarily mean that the area involved was

not crime-ridden. 

B. Substantive Due Process

Plaintiffs next object to the Magistrate Judge’s finding that the Wolverton’s conduct did not

violate Daniel’s substantive due process rights. To make out a substantive due process claim

Plaintiffs must show that “the behavior of [Wolverton was] so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833,

847 n. 8 (1998). In Lewis, the Supreme Court attempted to delineate the level of culpability

necessary to set forth a substantive due process violation. It explained that negligent conduct will

never shock a court’s conscience. Id. at 849. On the other hand, unjustified actions by executive

officials that are intended to cause injury are most likely to do so. Id. The difficulty comes when

conduct falls in the middle band – “something more than negligence but less than intentional

conduct, such as recklessness or gross negligence.” Id. (internal quotations omitted). In such a case

the court must conduct a searching inquiry into the facts and circumstances of the particular case

in light of the right asserted. Breen v. Texas A&M Univ., 485 F.3d 325, 333 (5 Cir. 2007). 

th

Under Lewis, the level of culpability to be applied depends in large measure upon whether

executive officials had time to reflect upon their actions. When “unforeseen circumstances demand

an officer’s instant judgment”, such as in Lewis, where an officer was involved in a high speed car

chase, consciences will be shocked only if the officer was motivated by an intent to harm. Lewis, 523

U.S. at 853-54. In circumstances where actual deliberation is practical, however, such as in custodial

 

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 The majority left open the question of “whether a different rule should apply if an official’s 2

claim of perceived emergency is so preposterous as to reflect bad faith.” Id. at 980 n.2.

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prison situations, an official’s mere deliberate indifference may rise to a conscience-shocking level.

Id. at 850-51. Courts must look to whether the occasion at hand called for an official to take fast

action and make decisions “in haste, under pressure, and [] without the luxury of a second chance.”

Id. at 853 (internal quotations and citation omitted).

The Magistrate Judge analogized the facts of this case to those involved in Terrell v. Larson,

296 F.3d 975 (8 Cir. 2005), a post-Lewis decision. In Terrell, two deputy sheriffs having dinner at th

a substation received a “very high priority” call concerning a domestic disturbance within their

assigned area. Id. at 977. While en route to the scene, with emergency lights flashing and siren

blaring, the deputies drove through a red light and collided with the car of Talena Terrell, killing her.

Id. At the time of the impact the officers were traveling around 60-64 miles per hour. Id. 

A majority of the Eighth Circuit, sitting en banc, held that the intent to harm standard

announced in Lewis should apply to the officers’ conduct because “police officers responding to this

type of emergency call do not have ‘the luxury . . . of having time to make unhurried judgments,

upon the chance for repeated reflection, largely uncomplicated by the pulls of competing

obligations.’” Id. at 979 (quoting Lewis, 523 U.S. at 853). The Terrell Court went on to hold that

an intent to harm standard would apply even if the situation to which the officers were responding

could not objectively be said to be a “true” emergency so long as the officers themselves subjectively

“believed they were responding to an emergency call.” Id. at 980. 

2

The Terrell Court alternatively concluded that, even if a deliberate indifference standard of

fault applied, the plaintiffs’ substantive due process claim would still fail because the officers’ conduct

 

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was not “so egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience.” Id. at 981 (quoting Lewis, 396 F.3d at 981). In other words, the Court found that even

deliberately indifferent conduct is not “conscience shocking in the constitutional sense” unless the

court finds it to be so. Id. According to the majority of the Eighth Circuit, traffic accidents such as

at issue in that case, while “tragic”, fail to “shock the modern-day conscience.” Id.

Here, the Magistrate Judge recognized that the officers in Terrell were responding to a “very

high priority call” while Wolverton was responding to a “non-emergency” call. The Magistrate Judge

nevertheless determined that this difference was not dispositive because Wolverton could have

reasonably believed that Officer Castro may have been in danger and in need of immediate

assistance. Under Terrell, Wolverton’s subjective belief that he was responding to an emergency is

alone sufficient for the intent-to-harm standard to apply. Terrell, 396 F.3d at 980. This Court

appreciates that Wolverton’s predicament placed him somewhere in between the poles recognized

by Lewis – calm deliberation surely was not a practical alternative if he was to be of any use, even if

the circumstances did not scream “emergency”. Whether Wolverton made the right call in

perceiving the situation as one necessitating a race to the scene is perhaps open for debate. The

point to be made, however, is that Wolverton was placed in a situation demanding instant judgment

without the ability to calmly and cooly ruminate about the steps he should take. See Tejada v. Knee,

228 F.3d 409 (Table), 2000 WL 1056124, at *2 (5 Cir. July 19, 2000) (concluding that officers’ th

actions were subject to an intent-to-harm standard as opposed to a deliberate indifference standard

because the “plaintiffs’ allegations indicate[d] that the officers were acting under tense circumstances

demanding their instant judgment, without the opportunity for repeated reflection.”). 

 

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 The facts of Smith are taken from the district court’s summary judgment order in Smith et al. v.

3

Walden et al., No. 2:97-CV-204-J (N.D. Tex. filed Oct. 14, 1999). 

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There is no evidence in the summary judgment record that Wolverton intended to harm

Daniels or that he acted maliciously. Even assuming that Wolverton’s behavior could be considered

negligent or even reckless, it is not so egregious or outrageous that this Court’s conscience is shocked

by it. See Lewis, 523 U.S. at 847 n. 8. Numerous courts, in circumstances such as these, have found

likewise. See Smith v. Walden, 228 F.3d 408 (Table), 2000 WL 1056091, at *1 (5 Cir. July 17, th

2000) (concluding that substantive due process rights were not violated where deputy, responding

to a call, drove at least 86 miles per hour on a wet city street without emergency lights on and

without a siren, striking and killing fellow motorist) ; Rooney v. Watson, 101 F.3d 1378, 1381 (11 3 th

Cir. 1996) (“Perhaps [deputy sheriff’s] driving at a high rate of speed in a non-emergency or nonpursuit situation reveals gross negligence rather than negligence, but it does not transform a state tort

claim into a constitutional deprivation[.]”); Hill v. Shobe, 93 F.3d 418, 421 (7 Cir. 1996) (no th

constitutional violation where officer – who was speeding, not responding to any police emergency,

and failed to engage emergency lights or siren – ran a red light, killing other driver); Leddy v.

Township of Lower Merion, 114 F.Supp.2d 372, 376 (E.D. Penn. 2000) (officer’s conduct found not

“constitutionally conscience shocking” where motorist was injured as a result of officer’s traveling

at an excessive rate of speed in response to a non-emergency call); Gillyard v. Stylios, 1998 WL

966010, at *5-6 (E.D. Pa. Dec. 23, 1998) (officers did not violate Lewis standard even if officers’

response to request for police van was “improvident”, where it was neither intentional nor malicious).

C. Claims Against the City of Dallas

 

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Plaintiffs continue to argue that the City of Dallas’s inadequate training and policies

permitted Wolverton to respond recklessly, and they seek to hold the City liable on that basis. The

Magistrate Judge correctly concluded, however, that such claims against a municipality cannot

survive in the absence of an underlying constitutional violation. See Smith, 2000 WL 1056091, at

*1 (finding that plaintiffs’ claims that county failed to adequately train officer or to have a policy

governing the use of high speeds was not viable where there was no constitutional injury); Leddy, 114

F.Supp.2d at 377 (finding that township could not be held liable because of an inadequate policy or

ineffective training program where the actions of the individual officer failed to reach the level of a

constitutional violation).

III. Conclusion

In sum, after a review of the Magistrate Judge’s findings and recommendation on the

Defendants’ motions for summary judgment and a de novo review of those portions to which Plaintiffs

filed objections, the Court OVERRULES Plaintiffs’ objections in all respects and ADOPTS the

findings and recommendation of the Magistrate Judge.

SO ORDERED.

July 18 , 2007 th

_________________________________

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

 

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