HUTCHISON v. BROOKSHIRE BROS., LTD. No. 1:01-CV-539.
284 F.Supp.2d 459 (2003)
Raymond Bernard HUTCHISON, v. BROOKSHIRE BROTHERS, LTD., The City of Dayton, Texas, Conoco Incorporated, Craig McCown, Thaketcha Hill and Dennis Shelton.
United States District Court, E.D. Texas, Sherman Division.
September 30, 2003.
Grantham Harlan Coleman, Houston, TX, for Plaintiffs.
William S. Helfand and Norman Ray Giles of Magenhein, Bateman & Helfand, Houston, TX, for City of Dayton, Richard Craig McCown, defendants.
Lipscomb Norvell, Jr. of Benckenstein, Norvell & Nathan, Beaumont, TX, Warren Reid Williams, Conco, Inc. Legal Dept., Houston, TX, for Conoco, Inc., defendant.
David L. Allen, Joseph Martin McElroy of Zeleskey, Cornelius, Hallmark, Roper & Hicks, Lufkin, TX, for Thaketcha Hill, Dennis Shelton, Brookshire Bros., defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
SCHELL, District Judge.
This case originated in this court when Plaintiff Raymond Bernard Hutchinson filed various state and constitutional tort claims arising from injuries he allegedly sustained siphoning gasoline at a gas station owned by Brookshire Brothers, Ltd. Plaintiff filed suit against several defendants including Brookshire Brothers and two of its employees, Dennis Shelton and Thaketcha Hill; Conoco, Inc.; the City of Dayton, Texas; the Dayton Police Department; and Richard Craig McCown, one of the city's police officers. Plaintiff claims Defendants are jointly and severally liable for his injuries.
The court now considers "Defendants Brookshire Brothers, Ltd., Dennis Shelton and Thaketcha Hill's Motion for Summary Judgment" filed August 30, 2002. (Dkt.# 47).
Jurisdiction is proper in this court under 28 U.S.C. §§ 1331 & 1367 (2000). Plaintiff alleges that Officer McCown violated his Fourth and Fourteenth Amendment rights. Title 42 U.S.C. § 1983 (2000) extends federal question jurisdiction to Plaintiff's constitutional tort claims. Supplemental jurisdiction is available over the remainder of Plaintiff's tort claims. 28 U.S.C. § 1367(a); see, e.g., Raygor v. Regents of University of Minnesota,
II. FACTUAL BACKGROUND
Plaintiff has made the following allegations. Unless otherwise noted, the parties are advised not to construe the following as findings of fact made by the court.
Dennis Shelton, manager of the Brookshire Brothers store, reiterated Hill's position that Plaintiff had to pay for the extra gas pumped. Plaintiff then offered to leave his driver's license and several work tools with Shelton as proof that he would return later and pay the remaining amount. Dep. of Raymond Bernard Hutchison at 49, 51. Shelton refused and demanded immediate payment or else Plaintiff and his vehicle would not be allowed to leave the premises. Dep. of Raymond Bernard Hutchison at 49. When Plaintiff suggested Shelton retrieve the excess gas, Shelton refused and stated he would supply a water bucket and hose for Plaintiff to use to siphon the gas from the vehicle. Dep. of Raymond Bernard Hutchison at 50. Plaintiff refused to do so. Id.
At this point, Shelton called the Dayton Police Department. Id. When police officer Richard Craig McCown arrived, Shelton told him what had happened. Dep. of Raymond Bernard Hutchison at 51. Shelton allegedly insisted Plaintiff be forced to siphon the gas from his vehicle. Pl.'s Resp. to Defs.' Mot. for Summ. J. at unnumbered 3,4.
Allegedly knowing that such an activity was dangerous to his health, but fearing jail or worse from McCown, Plaintiff began to siphon the gas from his vehicle. Pl.'s Second Am. Original Compl., ¶ 10; Pl.'s Resp. to Defs.' Mot. for Summ. J. at 6. As Plaintiff sucked the gas from the vehicle with minimal success, McCown demanded Plaintiff try harder. Pl.'s Second Am. Original Compl., ¶ 11. After a longer hose was brought to Plaintiff, he proceeded to suck and siphon ten buckets of gas from his vehicle before he was allowed to stop. Pl.'s Second Am. Original Compl., ¶ 12. During this time, Plaintiff says he was forced to inhale the gasoline fumes and swallow gasoline down his throat. Pl.'s Second Am. Original Compl., ¶ 13. In addition, those passing by witnessed Plaintiff's
The process of siphoning the gas from his vehicle left Plaintiff light headed and dizzy. Pl.'s Second Am. Original Compl., ¶ 13. In addition, Plaintiff claims that his eyes watered constantly, and his lips, mouth, tongue, and throat felt "as if they were being burned by fire." Id. Plaintiff further alleges that his "stomach began to burn as if a million needles were being pressed against the inside of his stomach." Id. Plaintiff complained to Shelton and McCown about these symptoms, but he says he was "forced" to continue siphoning. Id.
After Plaintiff was permitted to leave the premises, he claims that he could only drive a short distance before he allegedly began to pass out. Pl.'s Second Am. Original Compl., ¶ 14. He further claims that his symptoms intensified and he began to vomit uncontrollably. Id.
Plaintiff then drove himself to Memorial Hospital in Houston, Texas. Pl.'s Second Am. Original Compl., ¶ 15. After treatment, Plaintiff left the hospital but had to return one hour later when he "began to vomit repeatedly, suffered severe abdominal pain, hot and cold flashes, mouth dryness and intense burning sensation from efforts to urinate and belch." Pl.'s Second Am. Original Compl., ¶ 16.
III. PROCEDURAL POSTURE
On August 3, 2001, Plaintiff filed an original complaint alleging five counts against Defendants. Count I alleged that each of the individual defendants conspired to deprive Plaintiff of certain constitutional rights including the "rights to freedom from illegal search and seizure, illegal arrest and detention, from illegal abuse coercion and intimidation, from cruel and unusual punishment, and from violations of his civil rights under Section 1983 of the United States Constitution."
After ruling on a series of dispositive motions,
IV. SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to isolate and dispose of factually insufficient claims or defenses. See Celotex Corp. v. Catrett,
Summary judgment evidence is subject to the same rules that govern admissibility of evidence at trial. Lavespere v. Niagara Mach. & Tool Works, Inc.,
A. Thaketcha Hill's Alleged Involvement
Having reviewed Plaintiff's summary judgment evidence,
It is undisputed that Thaketcha Hill was an attendant at the Brookshire Brothers station where the relevant events occurred. Plaintiff alleges that Hill failed "to perform her occupational duties by properly setting the pump as requested and paid for by Plaintiff." Pl.'s Resp. to Defs.' Mot. for Summ. J. at 2. Additionally, Plaintiff alleges that Hill "summoned her manager so that he could rectify the problem she caused," and that Hill further called the police department upon request from her manager, Shelton. Pl.'s Resp. to Defs.' Mot. for Summ. J. at 2. Finally, Plaintiff alleges that Hill "took no part of the blame for the situation that she caused." Pl.'s Resp. to Defs.' Mot. for Summ. J. at 2. Plaintiff supports the preceding allegations through his own deposition testimony. Pl.'s Resp. to Defs.' Mot. for Summ. J., Ex. 1; Pl.'s Dep. at 48-49.
Consistent with Plaintiff's allegations, Defendants allege that the "interaction between Defendant Hill and the Plaintiff is practically nothing." Defs. Brookshire Brothers, Ltd., Dennis Shelton and Thaketcha Hill's Mot. for Summ. J. at 4. The parties have thus agreed on the material facts regarding Thaketcha Hill, and this issue is therefore ripe for summary judgment.
While it is possible that, in another action at another time, Plaintiff could have succeeded against Thaketcha Hill on a breach of contract theory, the court finds no allegation or evidence supplied by Plaintiff upon which to conclude that Hill participated in or proximately caused any of the torts allegedly perpetrated by Shelton and McCown. Instead, Plaintiff succeeds only in stating that Hill went about her job with casual indifference, an attitude that, while disheartening, does not violate the Fourth Amendment and does
Hill's actions are so factually attenuated from the gravamen of Plaintiff's complaint that this court would be remiss in saddling her with liability. First, Plaintiff fails to allege facts indicating that Thaketcha Hill sought to accomplish any objective that runs afoul of the Fourth Amendment. See Pl.'s Dep at 48-54. Second, Plaintiff fails to allege facts that would allow the court or a jury to infer that Hill actually participated in any of the illegal actions. See Id. Indeed, Plaintiff did not even allege that Hill remained present during the siphoning. Id. Finally, Plaintiff fails to allege any facts that would allow the court or a jury to conclude that Hill's behavior was a proximate cause of Plaintiff's injury, which was inflicted, if at all, through the actions of other individuals over whom Hill had neither authority nor control.
For the foregoing reasons, Hill cannot be held to have either violated the Fourth or Fourteenth Amendments or to have conspired to do so. Neither has Plaintiff's proffered evidence created a fact issue on his allegation that Hill intentionally inflicted emotional distress upon Plaintiff, assaulted Plaintiff, battered Plaintiff or falsely imprisoned him. Defendants' motion for summary judgment is GRANTED with respect to Hill.
B. Plaintiff's Civil Rights Claims
Plaintiff contends that Defendants Brookshire Brothers and Shelton conspired with Officer McCown to violate Plaintiff's Fourth and Fourteenth Amendment Rights. Pl.'s Second Am. Original Compl., ¶ 18. In the alternative, Plaintiff claims that "each individual Defendant acted to deprive Plaintiff of his constitutional rights without justification or probable cause and is each individually liable." Id.
(1) The Fourteenth Amendment
The Fourteenth Amendment provides that no state shall "deprive a person of life, liberty or property without due process of law." U.S. CONST. AMEND. XIV. Though the plain language of the Amendment seems to protect only procedural rights, the Supreme Court has long held that the due process clause of the Fourteenth Amendment has a substantive component. See, e.g., Lawrence v. Texas, ___ U.S. ___, 123 S.Ct. 2472, 2476-77, 156 L.Ed.2d 508 (2003); Doe v. Taylor Indep. Sch. Dist.,
In the past, the Fifth Circuit has held that a significant injury intentionally inflicted by a police officer on a civilian could violate the substantive due process clause. See, e.g., Shillingford, 634 F.2d at 266 (holding that an officer who struck a civilian with his nightstick because he was annoyed that the civilian had taken his photograph had deprived the civilian of his Fourteenth Amendment rights). The rule in the Fifth Circuit has changed, however, See Brown v. Glossip,
Other theories of recovery exist under the Fourteenth Amendment, but none are applicable here.
(2) The Fourth Amendment
Plaintiff has alleged that Defendant Shelton conspired with Officer McCown to deprive Plaintiff of his Fourth Amendment rights. The Fourth Amendment ensures that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. CONST. AMEND. IV.
In order to state a claim under § 1983 for unreasonable seizure, Plaintiff must demonstrate that (1) he was seized within the meaning of the Fourth Amendment and (2) that such seizure was unreasonable. Brower v. County of Inyo,
The court has already ruled that Plaintiff's deposition testimony contains evidence supporting the conclusion that Plaintiff was unreasonably seized by Officer McCown when he was allegedly detained and coerced into siphoning gasoline. Op. and Order Grant'g in Part and Den. in Part Defs.' Mot. for Summ. J. at 13-14. In order to overcome Defendant Shelton's motion for summary judgment, however, Plaintiff will bear an additional burden. It is well established that the Fourth Amendment does not apply to private conduct. United States v. Jacobsen,
In their summary judgment motion, Defendants allege that "the only actions of Defendant Shelton were talking to the police and providing the implements for Plaintiff to suck out the gas." Defs.' Brookshire Brothers, Ltd., Dennis Shelton and Thaketcha Hill's Mot. for Summ. J. at 6. Defendants claim that after Shelton spoke with Officer McCown, "Officer McCown gave all instructions." Id. at 6. Defendants claim that the foregoing allegations are supported by evidence in the record, and that Defendants are entitled to summary judgment because the evidence supplied by Plaintiff does not lead to the conclusion that a conspiracy existed between McCown and Shelton. Id. at 7.
Plaintiff must now "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); see also Celotex, 477 U.S. at 325, 106 S.Ct. 2548,
Plaintiff has presented the following evidence. For the purposes of this motion, the court regards the content of Plaintiff's deposition statements as true.
Prior to McCown's arrival, Plaintiff and Shelton were engaged in an argument about who would pay for the excess gas. Pl.'s Dep. at 50-51. In this argument, Plaintiff states he told Shelton, "Man, you get a hose and a bucket and you can get your damn gas out of my car." Id. at 50. At that point, Shelton instructed an attendant to bring out a bucket and hose, but told Plaintiff, "you are going to suck it." Id. When Plaintiff said, "I'm not sucking a damn thing," Shelton called Officer McCown. Id.
When McCown arrived on the scene, Shelton told McCown that "this man's trying to steal my gas." Id. Shelton then told McCown his version of the facts giving rise to the dispute. Id. Thereafter, Plaintiff testifies that Officer McCown "come up to me and said, `if I was [Shelton], I wouldn't want the damn gas because its contaminated,' in my face pointing at me like I really did something." Id. Plaintiff tried to explain the situation to McCown, but every time Plaintiff offered a solution, McCown responded, "I ain't got time for this. What you going to do?" Id. at 52. After rebuffing Plaintiff's explanations, McCown asked Plaintiff, "Do you have money at home?" Id. Apparently, McCown was willing to drive Plaintiff to get money to pay his alleged debt to Shelton. Id. Plaintiff responded to McCown, "No, I don't have any money at home. That's why I'm trying to get to Houston."
After Plaintiff told McCown that he had no money at home, McCown continued "hollering" at Plaintiff, and finally said, "you are going to do one of three things: You are going to do, one, give that man his money; two, give that man his gas; or three, you're coming to go with me." Id. Plaintiff, now afraid of Officer McCown, said, "man, I'm not going nowhere with you," to which Officer McCown responded "well, too bad. Look like you get to suck some gas." Id. McCown then patted Plaintiff on his back, squeezed his shoulder and took Plaintiff to his automobile. Id.
At that point McCown forced Plaintiff to attempt to siphon the gasoline using implements that Shelton had supplied. Id. at 53. Those implements proving inadequate, McCown asked Shelton, "can you get that man some more hose?" Id. Shelton replied, "oh yeah, I got plenty of it," and he retrieved more hose. Id. Then McCown asked Shelton to get Plaintiff another bucket, which Shelton did. Id. at 54.
Next Shelton and McCown decided that the siphoned gasoline would be placed into the gas tank of Shelton's car, and Shelton thereafter backed his car up behind Plaintiff's truck. Id. at 54. Plaintiff testifies that "the whole time I'm sucking, they're pouring the gas. The manager — he's not doing nothing but just sitting around doing
Plaintiff's deposition testimony creates a genuine issue of material fact regarding whether Shelton "willfully participated in a joint activity" with Officer McCown in satisfaction of Price, and Jacobsen. Because Plaintiff's deposition presents evidence (1) that Plaintiff was seized by Officer McCown, (2) that the alleged seizure was unreasonable, and (3) that Defendant Shelton willfully participated with McCown in the unreasonable seizure, Plaintiff's Fourth Amendment claim is appropriate for trial. Defendants' Motion for summary judgment is hereby DENIED with respect to Plaintiff's Fourth Amendment claim against Defendant Shelton.
The court now turns to the question of Brookshire Brothers' liability. Defendants' argue that, even if Plaintiff succeeds in proving concert of action between McCown and Shelton, Plaintiff's Fourth Amendment claim against Brookshire Brothers ought to be dismissed because "[o]bviously there is no respondeat superior for § 1983 purposes." Defs.' Brookshire Brothers, Ltd., Dennis Shelton and Thaketcha Hill's Mot. for Summ. J. at 8.(citing Collins v. City of Harker Heights,
It is not so clear, however, that a private employer cannot be held vicariously liable under § 1983 when its employees act under color of law to deprive customers of constitutional rights. The court can find no case that supports this proposition, and the language of § 1983 does not lend itself to Defendants' reading. Section 1983 states:
42 U.S.C. § 1983. Though the Supreme Court has stated that § 1983 "cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor," Monell v. New York City Dept. of Social Services,
Additionally, the court finds no persuasive policy justification for shielding private employers from vicarious liability. While the Supreme Court has found that Congress did not want to create a "federal law of respondeat superior" imposing liability in municipalities in the § 1983 context because of "all the constitutional problems
For these reasons, the court holds that neither Monell nor its progeny can be read to shield private corporations from vicarious liability when their employees have committed a § 1983 violation while acting within the scope of their employment. If Plaintiff can demonstrate that Shelton committed a Fourth Amendment violation in the course of his employment, Brookshire Brothers may be held liable. Such a violation would be "within the scope of employment" if it were "`actuated, at least in part, by a purpose to serve the [employer],' even if it is forbidden by the employer." Burlington Industries, Inc. v. Ellerth,
C. Intentional Infliction of Emotional Distress
Plaintiff alleges that the actions of Defendants Brookshire Brothers and Shelton were "extreme and outrageous and performed with the intention of causing severe physical and emotional distress to the Plaintiff." Pl.'s Second Am. Original Compl., ¶ 20. Plaintiff further alleges that he suffered "extreme indignities and humiliation, severe [e]motional distress, mental anguish, loss of liberty, loss of standing in the community," and Plaintiff states that he "has been held up to public ridicule before his peers." Pl.'s Second Am. Original Compl., ¶ 20.
The Supreme Court has interpreted Erie Railroad Co. v. Tompkins,
The State of Texas has adopted the tort of intentional infliction of emotional distress as it is stated in § 46(1) of the RESTATEMENT (SECOND) OF TORTS. Twyman v. Twyman,
Assuming, arguendo, that Defendants' conduct was reckless and outrageous, the court can find no evidence in the record indicating that Plaintiff has actually suffered any emotional distress. In fact, the only evidence in the record on this subject is a statement in Plaintiff's deposition where Plaintiff admits that he never consulted a "psychologist, psychiatrist or any mental healthcare worker or counselor for any type of mental problems at all." Defs.' Brookshire Brothers, Ltd., Dennis Shelton and Thaketcha Hill's Mot. for Summ. J., Exhibit 1, Pl.'s Dep. at 42.
Plaintiff did manage to allege that he was emotionally distressed by the siphoning experience. Pl.'s Resp. to Defs.' Mot. for Summ. J. at 11 (stating that the reports from Plaintiff's alleged therapist "have not been completed but will certainly show that the Plaintiff has been severely emotionally harmed by the unlawful acts of Shelton and McCown"). Unfortunately for Plaintiff, however, mere unsupported allegations will not assist Plaintiff in defeating Defendants' motion for summary judgment. FED. R. CIV. P. 56(e); see also Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Lujan, 497 U.S. at 885-86, 110 S.Ct. 3177. There is nothing in the excerpts from Plaintiff's deposition testimony attached to his response to this motion for summary judgment that substantiates his allegation that he suffered emotional distress. Because Plaintiff has failed to provide evidence of facts giving rise to a genuine issue, Defendants' motion for summary judgment is GRANTED with respect to Plaintiff's intentional infliction of emotion distress claim.
D. Assault and Battery
Under Texas law, "an assault is ... an offense against the peace and dignity of the state, as well as an invasion of private rights." Texas Bus Lines v. Anderson,
Tex. Penal Code, § 22.01. The Texas definition of battery is identical to the portion of the Texas definition of assault found at Tex. Penal Code, § 22.01(a)(3). See Bailey v. C.S.,
Based on the court's reading of the foregoing case and statutory law, § 22.01(a)(1) & (2) are unavailing to Plaintiff. First, Texas Penal Code § 22.01(a)(1) requires proof that the Defendant actually caused bodily injury to the Plaintiff. Honeycutt v. State,
Plaintiff does, however, manage to support his claim under § 22.01(a)(3). Under § 22.01(a)(3), neither injury nor apprehension of injury are necessary to state a successful claim; yet a Defendant must, inter alia, cause an actual physical contact with a Plaintiff in order to be liable. Foye v. Montes,
Two facts alleged by Plaintiff would enable a reasonable jury to conclude that Shelton made the initial suggestion to McCown that Plaintiff should siphon the gasoline. First, prior to McCown's arrival, Shelton told Plaintiff that Plaintiff would have to siphon gasoline. Pl.'s Dep. at 50-51. Second, only after McCown listened to Shelton's account of the facts, did McCown mention siphoning gas. Id.
A reasonable jury could also conclude that Shelton facilitated the siphoning by eagerly supplying the implements requested by McCown. Pl.'s Dep. at 53-54. These facts, if proved, would indicate that Shelton not only intended to cause Plaintiff to siphon gasoline, but also took affirmative steps to effectuate that intent. Plaintiff's deposition testimony, therefore, creates an issue of material fact regarding whether Shelton caused Plaintiff to suffer an offensive physical touching.
Defendants' motion for summary judgment is therefore DENIED with respect to Plaintiff's assault and battery claim.
The court now turns to Brookshire Brothers' liability. In Texas, "an employer may be vicariously liable for an intentional tort when the act, although not specifically authorized by the employer, is closely connected with the employee's authorized
E. False Imprisonment
To prevail under a false imprisonment claim in Texas, Plaintiff must prove (1) willful detention, (2) without consent, and (3) without authority of law. Sears, Roebuck & Co. v. Castillo,
Defendants allege (1) that Shelton detained Plaintiff only until the arrival of Officer McCown, (2) that the detention "took no longer than necessary in time to investigate the ownership of the property," and (3) that Shelton was privileged to detain Plaintiff until the arrival of McCown. Defs.' Brookshire Brothers, Ltd., Dennis Shelton and Thaketcha Hill's Motion for Summary Judgment at 13-14. Such a privilege does exist. The Texas Civil Practice and Remedies Code § 124.001 states, "[a] person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property." TEX. CIV. PRAC. & REM. CODE ANN. § 124.001 (1997).
Plaintiff alleges, on the contrary, the privilege claimed by Shelton does not apply (1) because Shelton did not turn over the investigation to Officer McCown and (2) because Shelton, and not McCown, imprisoned Plaintiff for the three hours that Plaintiff remained at Brookshire Brothers. Pl.'s Resp. to Defs.' Mot. for Summ. J. at 12-13.
Plaintiff's allegation is unsupported by Plaintiff's evidence. As described above, Plaintiff's own deposition testimony indicates that, after McCown arrived on the scene, McCown conducted the investigation. Plaintiff has failed to offer any evidence that would allow the court or the fact finder to conclude to the contrary. Pl.'s Dep. at 48-54. Unfortunately again, Plaintiffs unsupported allegations do not satisfy Plaintiff's burden under Rule 56(e) of the Federal Rules of Civil Procedure. Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Lujan, 497 U.S. at 885-86, 110 S.Ct. 3177. Defendants' motion for summary judgment is therefore GRANTED with respect to Plaintiff's false imprisonment claim.
Upon consideration of the briefing and applicable law, the court concludes that the
It is so ORDERED.
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