United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
MARK L. HORNSBY, Magistrate Judge.
Kevin Boyd ("Plaintiff") alleges that a Homer policeman used a Taser on him multiple times while Plaintiff was handcuffed and there was no justification for the use of force. Plaintiff named as defendants the officer who used the Taser on him, a supervisory officer who allegedly stood by and did nothing, and the Town of Homer. The three defendants have filed a Motion for Summary Judgment (Doc. 54) that attacks all of Plaintiff's federal claims. For the reasons that follow, it is recommended the motion be denied.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(a). A fact is "material" if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc. , 106 S.Ct. 2505, 2510 (1986). A dispute is "genuine" if there is sufficient evidence so that a reasonable jury could return a verdict for either party. Anderson, supra; Hamilton v. Segue Software Inc. , 232 F.3d 473, 477 (5th Cir. 2000).
The court will consider all of the evidence in the record but must "refrain from making credibility determinations or weighing the evidence." Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir. 2007). All reasonable inferences must be drawn in favor of the party opposing the motion. Martin v. Spring Break '83 Productions, L.L.C. , 688 F.3d 247 (5th Cir. 2012).
Qualified Immunity Defense
The two police officers also assert qualified immunity, which "protects public officials from suit unless their conduct violates a clearly established constitutional right." Mace v. City of Palestine , 333 F.3d 621, 623 (5th Cir. 2003). It is an affirmative defense, but the burden is on a plaintiff to negate the defense once it has been properly raised. Brumfield v. Hollins , 551 F.3d 322, 326 (5th Cir. 2008). To overcome an officer's qualified immunity defense, a plaintiff must show that the evidence, viewed in the light most favorable to him, is sufficient to establish a genuine dispute "(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd , 131 S.Ct. 2074, 2080 (2011); Cutler v. Stephen F. Austin State University, ___ F.3d ___, 2014 WL 4548549, *4 (5th Cir. 2014).
The Claims Against McDaniel and Smith
A. Undisputed Facts
Plaintiff did not advance past the eighth grade and survives on social security disability benefits, supplemented by income from shoplifting and an occasional odd job such as washing a car or yard work. He has multiple arrests and convictions in several north Louisiana parishes related to shoplifting, theft, and other crimes. He is well known to the Homer police, including Sgt. Elvan McDaniel, who was in a Fred's Dollar Store when a store clerk alerted him that Plaintiff was attempting to shoplift items.
Plaintiff fled the store into a nearby wooded area. McDaniel gave chase, but he lost sight of Plaintiff and quit looking after he encountered a water moccasin. McDaniel applied for and obtained arrest warrants for Plaintiff for theft and resisting an officer. About a month passed before McDaniel again saw Plaintiff, who was walking down the street. Plaintiff also saw McDaniel, and he admits that he hid behind a house and then ran from the officer.
Lt. Roger Smith, the other defendant officer, joined McDaniel in searching the area. Plaintiff saw the officers and started running through a wooded area. McDaniel got in his car and parked on the shoulder of the highway in an area where he thought Plaintiff might emerge. Smith approached the area where Plaintiff was seen heading. Smith and Plaintiff soon made eye contact, and Plaintiff ran into an overgrown area. The facts are not in significant dispute to this point, but the testimony from Plaintiff and the officers differs tremendously about how the next events unfolded.
B. Plaintiff's Evidence
Plaintiff testified at his deposition that he tried to go through bushes in the overgrown area but could not push through because there were too many stickers. Lt. Smith then pulled a gun on Plaintiff and told him to get down, which Plaintiff did. Plaintiff said that Smith handcuffed him and radioed Sgt. McDaniel. Smith then searched Plaintiff and confiscated from him a pocket knife, crack pipe, and a lighter.
Plaintiff testified that Sgt. McDaniel arrived within two or three minutes and approached Plaintiff, who was standing with his hands cuffed behind his back. McDaniel told Plaintiff to walk to his police car, and Plaintiff began to do so, with Lt. Smith nearby. Plaintiff then felt something (the Taser prongs) hit him in his back and his arm and began "shaking, shaking, shaking." Plaintiff went to the ground, and McDaniel told him, "Get up." Plaintiff stood up and McDaniel "kept on tasing me, tasing me, tasing me." Plaintiff said that ...