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Dean v. Phatak

United States Court of Appeals, Fifth Circuit

December 20, 2018

NOEL T. DEAN, Plaintiff - Appellee
DARSHAN R. PHATAK, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.


         A state medical examiner appeals the denial of his motion for summary judgment based on qualified immunity on claims arising from the failed prosecution of a husband for the death of his wife. We vacate the district court's denial and remand for reconsideration of the motion confined to the summary judgment evidence, and further proceedings consistent with this opinion.


         In the early hours of July 30, 2010, Shannon Dean died of a gunshot to the head, fired while she was lying on the floor of her master bathroom. Her husband, Noel Dean ("Dean"), was present during the shooting, and described to the police that, following an argument, his wife shot herself using his handgun, a 40-caliber Smith & Wesson Model 410 pistol. Dean also described Shannon's previous suicide attempts, including one that left a scar on her arm. During the course of police interviews, pressed by officers as to how Shannon shot herself, Dean demonstrated that Shannon held the gun to the right side of her head with the handle oriented toward her feet.

         The following day, July 31, 2007, Harris County Assistant Medical Examiner, Dr. Darshan Phatak, conducted Shannon's autopsy. Phatak had passed his board-certification exam in forensic pathology and joined the Medical Examiner's office in the previous year. As was customary, the investigating officer, Millard Waters of the Houston Police Department, attended the autopsy. There, Waters shared his theory with Phatak that Dean was the shooter, and expressed his hope that the autopsy would confirm his suspicions. He stressed that the position of the gun would be important: if the gun was fired with the handle upward it was likely a murder; if it faced downward, as Dean had recounted, it was likely a suicide. During the autopsy, Waters pointed out what appeared to be an imprint of the pistol's front sight in the five o'clock position with respect to the entrance wound, and another mark at about the eleven o'clock position apparently corresponding to the weapon's ejector rod. Waters observed that these impressions were inconsistent with Dean's description of the shooting. Waters also brought to Phatak's attention a dark line on Shannon's arm. Phatak examined it, and concluded it was not the result of a suicide attempt. Phatak later conceded that he could not rule out the possibility that the mark resulted from Shannon's self-cutting with a razor blade. The draft report indicated the cause and manner of death were pending.

         A week later, on August 6, 2007, Phatak met to discuss the case with Waters and other officials. Such meetings were a normal practice for medical examiners. In this meeting, Phatak examined the gun used in the shooting. He also examined photos of the wound. Holding the gun, Phatak lay down on the floor and demonstrated the manner in which Dean described Shannon shooting herself. He explained that he had observed abrasions around the entrance wound: a crescentic abrasion in the 11 o'clock position, and linear abrasions at the 4 and 5 o'clock positions. He observed that the crescentic abrasions corresponded to the gun's ejector rod, and the linear abrasions to the gun's front sight-meaning that the gun was fired in a "handle up" position, the opposite from the gun position in Dean's description. Phatak assured Waters that his final report would not conclude the manner of death was undetermined-it would designate the manner of death as either suicide or homicide.

         Following the meeting, Phatak viewed part of Dean's videotaped interview, the less than five minutes during which Dean described how Shannon had shot herself. He found that during this part of the video Dean was never instructed to place the gun against his head in exactly the way it was positioned during the shooting. Phatak also considered toxicology analysis conducted as part of the autopsy, which indicated that alcohol concentrations had been 0.15 g/dL in Shannon's blood, and 0.19 g/dL in her vitreous humor (fluid from within the eyeball). Considering these alcohol levels and the presence of vomit in the bathroom, Phatak concluded that Shannon had been unconscious at the time of the shooting. He later testified that a person with a 0.15 g/dL blood alcohol concentration could engage in conscious physical movements like running. Phatak also reviewed information regarding Shannon's past suicide attempts and suicidal ideation. He reviewed a Word document recovered from Shannon's PDA in which she described cutting herself and thoughts about taking her own life. Phatak also read a letter from a pastor or former counselor expressing the belief that Shannon did not commit suicide. During his analysis, Phatak did not directly compare the weapon to the wound. Phatak's expert, his colleagues, and Phatak himself stated that such weapons-to-wounds comparisons are neither required nor routine practice among medical examiners. Dean's own witness at his murder trial, former Harris County Medical Examiner, Dr. Joye Carter, appears not to have conducted such a comparison in connection with Dean's defense.

         On August 27, 2007, Phatak submitted his determination that Shannon's cause of death was homicide. Central to this determination was Phatak's finding that the gun was fired with its handle facing up, contradicting Dean's indication that the gun's handle had pointed downward. The report was finalized when Phatak's senior colleagues, Dr. Arturo Sanchez and Dr. Dwayne Wolf reviewed and approved its conclusions.

         Waters used the report's homicide determination to support a warrant for Dean's arrest. Dean was charged and tried twice for Shannon's murder. The first trial in October 2009 ended with a deadlocked jury. A second trial was held in January 2011. At this second trial Phatak testified regarding his determination that Shannon's wound was consistent with the gun being fired with the front sight oriented toward her feet, the ejector rod and handle oriented toward her head. Dr. Wolf was also asked to testify during the second trial. In his deposition and affidavit, Dr. Wolf describes that in preparation for his testimony he created a photographic overlay, comparing the muzzle of a Smith & Wesson Model 410 pistol with Shannon's head wound in order to demonstrate the gun's orientation. Once completed, the photographic overlay indicated that the weapon had been held with the handle down, as Dean maintained. As a result, Wolf and his colleagues amended the autopsy report to list Shannon's manner of death as "undetermined." The state dismissed the charges against Dean in the middle of the second trial.

         Dean sued Phatak under 42 U.S.C. § 1983, alleging that Phatak violated his rights under the Fourth, Sixth, and Fourteenth amendments by intentionally fabricating the autopsy report. Asserting qualified immunity, Phatak moved for summary judgment. Phatak now appeals its denial.


         The denial of summary judgment on the basis of qualified immunity is a collateral order capable of immediate review.[1] On appeal, we ask "the purely legal question whether the defendants are entitled to qualified immunity on the facts that the district court found sufficiently supported in the summary judgment record."[2] Where the district court finds that the summary judgment record presents a genuine dispute of material fact, we do not challenge its determination of "whether there is enough evidence in the record for a jury to conclude that certain facts are true."[3]

         Here, the district court concluded that "a genuine issue of material fact exists as to whether Phatak falsified evidence," and that "Dean has put forth sufficient evidence to show intentional fabrication of evidence." On appeal, Phatak argues that these are conclusory statements, not findings, because the district court relied entirely on Dean's allegations, not summary judgment evidence. The district court's order states that it relied upon the parties' briefs with accompanying exhibits, as well as other evidence such as the police interrogation of Dean. However, the district court's analysis cites allegations in the pleadings, without reference to record evidence. In the absence of an identification of summary judgment evidence relied upon, we cannot affirm the denial of qualified immunity, and, in deference to the district court, we decline to search the record further. That effort must be undertaken by the district court in the first instance-mindful that unless a rational juror could find that Phatak intentionally misstated his finding, he is entitled to qualified immunity. Negligence, even gross negligence, is not sufficient.

         We vacate and remand for the district court to reconsider Phatak's motion for summary judgment, setting out its determination as to whether there is a genuine dispute as to material facts. The district court should cite summary judgment evidence-the depositions, documents, affidavits or declarations, stipulations, admissions, or other materials in the record-upon which the dispute rests. If the record fails of facts upon which a reasonable jury could conclude that Phatak intentionally fabricated the report, the district court should grant Phatak's motion for summary judgment.


         So, we VACATE the district court's order and REMAND for the district court to reconsider the motion for summary judgment, issue a determination confined to the summary judgment evidence with relevant citations to that ...

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