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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION JULIE PERRY, et al. VS. DYLAN ECKSTROM

CIVIL ACTION NO. 4:12-CV-818-Y

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT Before the Court is Defendants Motion for Summary Judgment (doc. 16). After review of the motion, response, and reply, the Court GRANTS the motion. I. BACKGROUND

In August 2012, plaintiff Kelcey Perry attended a dance party at a nightclub located in Arlington, Texas. Kelceys older sister At the time,

and one of Kelceys friends were also in attendance.

Kelcey was fifteen years old. In her affidavit, Kelcey states that she left for the party around 10:00 p.m. Soon after arriving at the party, a group of teenaged girls, who had bullied Kelcey in the past, approached her and asked if she was planning to fight them [on] the first day of school. Pl.s App. at 1. Kelcey told the girls that

she was not worried about [them] and went back to enjoying the party with her friends. Id.

Around midnight, the crowd at the party became unruly. The club owners ultimately shut down the party and called the police. Defendant Dylan Eckstrom, an officer with the Arlington Police Department, was on duty that night and responded to the call. When Officer Eckstrom arrived at the nightclub, there were a number of officers already

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present.

According to Officer Eckstrom, there were at least 100

teenagers and young adults in the nightclubs parking lot when he arrived. Def.s App. at 12. This number grew as the remaining party attendees left the nightclub. Nearly thirty officers eventually arrived on the scene. The

officers began their efforts to disburse the crowd, but those efforts were impeded when several fights began to break out. Footage from

Officer Eckstroms dashboard video camera depicts what he aptly describes as swarms of teenagers rushing from one side of the parking lot to the other as each new fight or disturbance broke out. In the midst of the chaos, Kelcey and her friends were attempting to leave the party. In the parking lot, Kelcey encountered her bullies again. The girls indicated that they wanted to fight Kelcey. Kelcey claims that as she walked away from them, she felt someone pull her hair and was hit on the back of the head several times. Someone then pushed her from behind. Kelcey states in her affidavit that she became angry and felt that she needed to defend herself. Pls App. at 2.

Kelceys friend grabbed Kelcey by the arm and tried to lead her away from the bullies and back to the car. Around this time, Officer Eckstrom and other officers were headed in Kelceys direction. According to Officer Eckstrom, he had been As he

told by a party attendee that a girl fight had broken out.

approached, Officer Eckstrom states that he saw two females being pulled apart. One of the females was Kelcey.

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Kelcey admits that she broke away from her friends grasp and took two or three steps toward the girls who had been hitting her. Officer Eckstrom claims that Kelcey ran toward her opponent. Officer Eckstrom put up his left arm to stop Kelcey. He claims that Kelceys momentum caused her feet to lift off the ground when she made contact with his arm. When it appeared that Kelcey was going to fall, Officer Eckstrom claims that he put his right knee between her body and the ground to slow her fall. Kelcey landed on the ground on her back. According to Kelcey, Officer Eckstrom picked her up

and body slammed her on the ground. Once on the ground, Officer Eckstrom claims that Kelcey struggled with him as he tried to handcuff her. He claims that she was rapidly moving her hands and arms in front of her torso as he tried to grab her hands. Def.s Appx. at 17. Because Kelcey resisted, Officer He states that he gave her one Id. at 18. Kelcey

Eckstrom used his pepper spray.

application of pepper spray across the eyes.

claims that she was not resisting, and that there was no reason for Officer Eckstrom to use pepper spray to subdue her. After handcuffing Kelcey, Officer Eckstrom escorted her to his police vehicle for transport to the Arlington Police Department. Kelcey was examined by an Emergency Medical Service (EMS) ambulance crew already present at the police station. The crew washed Kelceys face and treated some minor scrapes and abrasions. According to

Officer Eckstrom, he continued to assist Kelcey in rinsing and blotting

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her face for 20-25 minutes until she could open her eyes.

EMS

personnel did not indicate that Kelcey required any further medical attention. Kelceys parents were called, and she was later released to their custody. Kelceys parents filed suit on behalf of their daughter under 42 U.S.C. 1983. They claim that Officer Eckstrom violated Kelceys constitutional rights by making an unreasonable seizure of her person, by using excessive force, and by denying her medical care for her injuries while she was in custody. Officer Eckstrom asserts the

defense of qualified immunity with respect to all claims and further asserts that he did not violate Kelceys constitutional rights. II. LEGAL STANDARD

When the record establishes that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, summary judgment is appropriate. Fed. R. Civ. P. 56(a). A dispute is genuine if it is real and substantial, as Bazan v. Hidalgo

opposed to merely formal, pretended, or a sham.

Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (citation omitted). A fact is material if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To demonstrate that a particular fact cannot be genuinely in dispute, a defendant movant must cite to particular parts of materials in the record (e.g., affidavits), or show either that (1) the materials

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cited by the plaintiff do not establish the presence of a genuine dispute as to that fact, or (2) the plaintiff cannot produce admissible evidence to support that particular fact. Fed. R. Civ. P. 56(c)(1). Although the Court need consider only the cited materials, . . . it may consider other materials in the record. 56(c)(3). In evaluating whether summary judgment is appropriate, the Court views the evidence in the light most favorable to the nonmovant, drawing all reasonable inferences in the nonmovants favor. SandersBurns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citation and internal quotation marks omitted). [I]f no reasonable juror Fed. R. Civ. P.

could find for the non-movant, summary judgment should be granted. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). III. ANALYSIS

Officer Eckstrom seeks summary judgment on the basis that he is entitled to qualified immunity. The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity balances two important intereststhe need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials

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from harassment, distraction, and liability when they perform their duties reasonably. Id. Although nominally an affirmative defense, the plaintiff has the burden to negate the defense once properly raised. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

Claims of qualified immunity are evaluated using a two-prong analysis. Id. Overcoming qualified immunity requires showing that (1) the officials conduct violated the plaintiffs constitutional right and (2) that right was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may

address these prongs in either order. Pearson v. Callahan, 555 U.S. 223, 242 (2009). A. Unreasonable Seizure

Kelceys parents claim that Officer Eckstrom violated Kelceys right to be free from unreasonable seizure. Although Plaintiffs list this as a separate claim, a fair reading of their amended complaint allows the Court to conclude that this claim is based only on the theory that Officer Eckstroms use of force was excessive.1 An

Even if Plaintiffs claim of unreasonable seizure was based on Officer Eckstroms taking Kelcey into custody, they appear to have abandoned that claim on summary judgment. Officer Eckstrom addressed the claim out of caution in his motion, but Plaintiffs provide no argument squarely addressing the point in their response. See Criner v. Tex.N.M. Power Co., 470 F. Appx 364 (5th Cir. 2012) (affirming district courts dismissal of a claim where plaintiff failed to defend it in her response to defendants motion for summary judgment); Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (explaining that plaintiff had abandoned claim where she failed to defend it in her response to defendants motion to dismiss) 6

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allegation that an officer used excessive force in the course of a seizure does not create a separate unconstitutional detention claim distinct from the excessive force claim. Tolan v. Cotton, 854 F.

Supp. 2d 444, 468 (S.D. Tex. 2012) (citing Flores v. City of Palacios, 381 F.3d 391, 403 (5th Cir. 2004)). As such, the Court proceeds to

Plaintiffs claim of excessive force. B. Excessive Force

To overcome Officer Eckstroms assertion of qualified immunity on their claim of excessive force, Plaintiffs must show 1) an injury, (2) which resulted directly from the use of excessive force, and (3) the excessiveness of which was clearly unreasonable. Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Reasonableness, which is determined under the totality of the circumstances, must be judged objectively from the perspective of a reasonable officer on the scene. Graham v. Connor, 490 U.S. 386, 396 (1989). Although the Court reviews the evidence in the light most favorable to the nonmoving party, it assigns greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene. Carnaby, 636 F.3d at 187 (citing

Scott v. Harris, 550 U.S. 372 (2007)). In other words, the Court need not rely on the plaintiffs description of the facts where the record discredits that description but should instead consider the facts in the light depicted by the videotape. Id. (quoting Scott, 550 U.S. at 381).

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Kelcey claims injuries in the form of cuts, bruises, disfiguring scabs, and prolonged discomfort from Officer Eckstroms use of pepper spray.2 A review of the circumstances facing Officer Eckstrom reveals, however, that his use of force was not excessive or unreasonable under the circumstances. No one disputes that the crowd at the nightclub became unruly, which resulted in the clubs owners shutting down the party and calling the police. Once the nightclub closed, the patrons spilled out into the parking lot. The video taken from Officer Eckstroms dashboard camera supports his estimate that at least 100 people were in the parking lot when he arrived on the scene. Officer Eckstrom can be

heard on the video telling the crowd to Go, go home, get out. Yet, many of the patrons can be seen milling about in the parking lot and not leaving. Fights began to break out, and the crowd can be seen

rapidly moving from one end of the parking lot to the other with each new disturbance. Officer Eckstrom estimates, and Plaintiffs do not dispute, that

Plaintiffs allege several other injuries in their response to Officer Eckstroms motion for summary judgment, including a disc bulge in Kelceys cervical spine. Officer Eckstrom objects to the evidence submitted in support of these injuries on various grounds, including hearsay and improper authentication. He also submits that some of the documents are irrelevant given that no qualified person links the injuries presented in them to any act or omission committed by him. The Court has already determined that Kelcey suffered an injury based on the injuries alleged in the amended complaint. Consideration of these materials would not change the Courts analysis of Plaintiffs claim of excessive force. Thus, Officer Eckstroms objections with respect to these exhibits are overruled. 8

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at the time he encountered Kelcey, there were at least 400 people in the parking lot. Officer Eckstrom and at least three other officers had moved in Kelceys direction in response to a report of a girl fight. Kelcey admits that she was in a fight, although she claims

to have been the victim. Kelcey also admits that she broke away from the friend who was leading her away from the fight and moved toward her opponent, intending to defend herself. Footage taken with a cell-phone camera shows officers separating two groups of females and shows Kelcey being led away by her friend. The video also shows Kelcey moving quickly toward her opponent after she shakes off her friends grasp. As Kelcey tries to re-engage her opponent, she is intercepted by Officer Eckstrom. Kelcey is quickly taken to the ground. Although Kelcey claims that Officer Eckstrom

grabbed her and body slammed her, that description appears overblown based on the Courts careful viewing of the video footage. Once Kelcey was on the ground, Officer Eckstrom claims that she struggled to keep him from handcuffing her. The video supports Officer Eckstroms description of the struggle, and Kelcey can be seen moving her arms and legs as Officer Eckstrom tries to handcuff her. Because Kelcey resisted, Officer Eckstrom applied pepper spray. Notably,

the video shows that Officer Eckstrom was surrounded by at least twenty people as he tried to control Kelcey and remove her from the scene. Based on the circumstances facing Officer Eckstrom, this Court cannot say that his actions were excessive or unreasonable. He had

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been called to a nightclub following reports of an unruly crowd of hundreds of people. Officer Eckstrom attempted to disburse the crowd, but his efforts were interrupted by numerous fights in the parking lot. Kelcy was involved in one of those fights, and Officer Eckstrom was forced to intervene. Officer Eckstrom attempted to control Kelcey and remove her from the scene in the midst of chaos and while surrounded by a crowd of people. Viewed objectively, the force used by Officer Eckstrom was neither excessive to the need nor unreasonable under the circumstances. Plaintiffs have failed to show that a genuine issue of material facts exists with respect to Officer Eckstroms alleged violation of Kelceys constitutional rights. C. Right to Medical Care

Plaintiffs also claim that Kelcey was denied medical care while in custody. To prevail on a claim for alleged deprivation of medical care, Plaintiffs must establish that Officer Eckstrom acted with subjective deliberate indifference to [Kelceys] need for medical care. Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (citation omitted). to meet. Deliberate indifference is an extremely high standard Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752,

756 (5th Cir. 2001). Plaintiffs must either show that Officer Eckstrom refused to treat Kelcey, ignored Kelceys complaints, intentionally treated Kelcey incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs. Id.

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Plaintiffs have alleged no facts demonstrating that Officer Eckstrom either denied Kelcey medical care or intentionally treated Kelcey incorrectly. Kelcey was examined by an EMS crew within 7-8

minutes of being pepper sprayed. Officer Eckstrom then spent 20-25 minutes rinsing and blotting Kelceys face with towels to help alleviate the effects of the pepper spray. Kelcey acknowledges that she was evaluated by an EMS crew in her affidavit and does not dispute that Officer Eckstrom assisted her. Pls. App. at 2. Plaintiffs

have failed to raise a material fact issue as to whether the above conduct constituted deliberate indifference or amounted to a violation of Kelceys constitutional rights. D. Objections to Plaintiffs Summary Judgment Evidence

The Court notes that Officer Eckstrom raises numerous objections to Plaintiffs summary judgment evidence in his reply. In particular, Officer Eckstrom claims that Plaintiffs entire appendix fails to comply with the Courts local civil rules. He also challenges various documents within the appendix because they are not properly

authenticated or contain hearsay.

The Court found it unnecessary

to consider the objectionable documents or portions of documents in the above analysis granting summary judgment. Even if the Court had considered these documents, the outcome would have been the same. Accordingly, Officer Eckstroms objections are OVERRULED.

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IV.

CONCLUSION

Plaintiffs have failed to raise an issue of material fact with respect to whether Officer Eckstrom violated Kelceys constitutional rights. Accordingly, Officer Eckstroms motion for summary judgment is GRANTED. All of Plaintiffs claims against Officer Eckstrom are hereby DISMISSED WITH PREJUDICE. SIGNED January 28, 2014. ____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE

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