Jimerson v. Lewis

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KAREN JIMERSON, et al., §

§

Plaintiff, §

§

v. § Civil Action No. 3:20-CV-2826-L-BH

§

LT. MIKE LEWIS, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court is Named Defendants’ Motion for Summary Judgment (Doc. 167), filed

on June 23, 2021 (“Motion”). The case was referred to Magistrate Judge Irma Carrillo Ramirez,

who entered the Findings, Conclusions, and Recommendation of the United States Magistrate

Judge (Doc. 188) (“Report”) on February 28, 2022, recommending that the court grant in part and

deny in part the Motion. Specifically, the Report recommends that:

All claims for Fourth Amendment violations against Dunn, Glidewell, J.

Lewis, Taylor, and K9 Officer should be DISMISSED with prejudice on grounds

of qualified immunity under the constitutional violation prong, and [Plaintiffs’]

claims for unlawful entry and for unlawful search against Gonzales, Young, Fuller,

Koch, Leader, and Commander should be DISMISSED with prejudice on grounds

of qualified immunity under the objective reasonableness prong. Because no

Fourteenth Amendment claims were asserted against them, Defendants’ motion for

summary judgment on the Fourteenth Amendment claims should be DENIED as

moot. This action should be dismissed with prejudice as to Defendants.

Report 27.

On March 14, 2022, Plaintiffs filed objections to the Report (Doc. 192), contending that:

(1) they did not agree to transfer this case to the magistrate, nor did the court authorize such

transfer; (2) the magistrate judge erred by failing to follow summary judgment procedure under

Rule 56 of the Federal Rules of Civil Procedure; (3) the magistrate judge erred by improperly

conducting a “mini-trial” and acting as a “fact finder”; (4) the magistrate judge erred by failing to

view the summary judgment evidence in the light most favorable to Plaintiffs; and (5) the

magistrate judge improperly struck Plaintiffs’ expert, Mr. Gill. Id. Named Defendants filed their

response on March 24, 2022 (Doc. 193), agreeing with the findings, conclusions, and the

recommendation in the Report. The court addresses each objection in turn, and for the reasons

stated herein overrules Plaintiffs’ objections.

I. Procedural Background

On September 11, 2020, Karen Jimerson, James Parks, Jyden Jimerson, Xavien Parks, and

Jasamea Jimerson (“Plaintiffs”) sued Lt. Mike Lewis of the Waxahachie Police Department

(“WPD”) SWAT team and 20 John Does alleging Fourth Amendment violations stemming from

an execution of a search warrant at Plaintiffs’ residence on March 27, 2019. Plaintiffs’ First

Amended Complaint likewise asserts claims against unidentified John Does 1 through 20 (“John

Does”). It also names the following members of the WPD in their individual capacities as

Defendants: Lt. Mike Lewis, Brent Dunn, Dustin Koch, Andrew Gonzales, Derrick Young, Brian

Fuller, Stephen Sanders, James Lewis, O.T. Glidewell, James Taylor, Derek Berringer (“Named

Defendants”). In addition, Zach Beauchamp was named as a Defendant, but he was previously

dismissed with prejudice from the action pursuant to a joint stipulation (Doc. 151). On April 21,

2021, the court dismissed with prejudice Plaintiffs’ state tort claims against the Named Defendants

(Doc. 160).

II. Discussion

A. Objections to the Report

1. Alleged Transfer of Case to Magistrate Judge

Plaintiffs contend that this case was transferred to the magistrate judge, and they object to

this alleged transfer. Doc. 192 at 1. This case was not transferred to the magistrate judge. Plaintiffs’

objection shows their lack of appreciation for the rules that allow a district judge to refer cases to

a magistrate judge. Pursuant to 28 U.S.C. § 636(b)(1)(B), a district judge may “designate a

magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of

the court proposed findings of fact and recommendations for the disposition, by a judge of the

court, of any [dispositive motion.]” Rule 72 of the Federal Rules of Civil Procedure also provides

that a magistrate judge “must enter a recommended disposition, including, if appropriate, proposed

findings of fact” for dispositive motions. Fed. R. Civ. P. 72. Additionally, the court issued a

Standing Order of Reference (Doc. 159) on April 20, 2021, which stated:

This case is hereby referred to United States Magistrate Judge Irma Carrillo

Ramirez for pretrial management. All nondispositive motions, pending or

prospective, are referred to the magistrate judge for determination. All dispositive

motions, pending or prospective, are referred to the magistrate judge for findings

of fact and recommendations. All other pretrial matters, including scheduling and

alternative dispute resolution, are referred to the magistrate judge for appropriate

action consistent with applicable law. Magistrate Judge Ramirez is to notify the

court when the case is ready for a trial setting.

Doc. 159.

Consistent with 28 U.S.C. § 636, Rule 72, and the court’s order, the magistrate judge issued

the Report that made recommendations to the court concerning the disposition of the Motion.

Because the magistrate judge acted consistent with the controlling statute and the court’s orders,

the court overrules Plaintiffs’ first objection. Moreover, the magistrate judge did not dispose of

the Motion; she merely made recommendations to the court through the Report. Accordingly, the

court also overrules Plaintiffs’ third objection that the magistrate judge conducted a “mini-trial”

and was acting as a “fact finder.” The magistrate judge may not make the final decision regarding

the Motion. That is expressly reserved for this court.

2. Summary Judgment Standard and Application

Plaintiffs next contend that the magistrate judge erred by (1) failing to follow summary

judgment procedure under Rule 56 of the Federal Rules of Civil Procedure; and (2) failing to view

the summary judgment evidence in the light most favorable to Plaintiffs. Doc. 192 at 3-8. The

court disagrees, except to the extent that it rejects the magistrate judge’s findings as to the second

prong of the qualified immunity test with respect to Defendant Lt. Mike Lewis.

a. Legal Standard for Summary Judgment

Summary judgment shall be granted when the record shows that there is no genuine dispute

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas

Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine”

if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary

judgment, the court is required to view all facts and inferences in the light most favorable to the

nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v.

Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make

credibility determinations or weigh the evidence” in ruling on a motion for summary judgment.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-

55.

Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party’s case, the party opposing the motion must come forward with competent

summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita

Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant

bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is

asserting an affirmative defense, he must establish beyond peradventure all of the essential

elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780

F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for

trial.’” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not

competent summary judgment evidence, and thus are insufficient to defeat a motion for summary

judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions,

improbable inferences, and unsupported speculation are not competent summary judgment

evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

The party opposing summary judgment is required to identify specific evidence in the

record and to articulate the precise manner in which that evidence supports his or her claim. Ragas,

136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search

of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see

also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes

over facts that might affect the outcome of the suit under the governing laws will properly preclude

the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are

“irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment

motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence

of an element essential to its case and on which it will bear the burden of proof at trial, summary

judgment must be granted. Celotex, 477 U.S. at 322-23.

b. Analysis

The magistrate judge outlined the correct legal standard for summary judgment procedure

under Rule 56 of the Federal Rules of Civil Procedure and proceeded to analyze the facts consistent

with Rule 56 and controlling precedent.1 In particular, the court agrees with the Report with respect

to finding that the police officers who provided unchallenged declarations that they did not enter

Plaintiffs’ home are entitled to qualified immunity. See Simmons v. City of Paris, 378 F.3d 476,

481 (5th Cir. 2004) (finding officers were entitled to qualified immunity because there was no

evidence that they entered the residence with the other officers). The court also agrees that when

viewing the evidence in the light most favorable to Plaintiffs, the officers who did enter Plaintiffs’

home immediately stopped searching the home upon learning it was the wrong residence.

Moreover, Plaintiffs’ summary judgment evidence does not identify which officers they assert

remained in the residence after realizing their mistake. As such, those officers who entered

Plaintiffs’ residence are entitled to qualified immunity. See id. at 481. The court, therefore,

1 The court, similar to the Report, finds that Plaintiffs have not asserted a violation of the Fourteenth Amendment

against the Named Defendants. Because Plaintiffs have only asserted allegations of unlawful searches and seizures,

such claims fall under the Fourth Amendment, not the Fourteenth. See Graham v. Connor, 490 U.S. 386, 396 (1989)

(holding that “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an

arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard, rather than under a “substantive due process’ approach.”) (emphasis in original).

Additionally, the court finds that Plaintiffs have not asserted an excessive force claim. The elements of an excessive

force claim are: “(1) an injury; (2) which resulted directly and only from a use of force that was clearly excessive; and

(3) the excessiveness of which was clearly unreasonable.” Ratliff v. Aransas County, Tex., 948 F.3d 281, 287 (5th Cir.

2020); see Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (reciting that the second element of an excessive force

claim requires that the force be “clearly excessive”); Darden v. City of Fort Worth, Texas, 880 F.3d 722, 727 (5th Cir.

2018) (same); Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (same); Williams v. Bramer, 180

F.3d 699, 703 (5th Cir. 1999) (same). Even if the court liberally construes Plaintiffs’ allegations as having alleged an

excessive force claim, they fail to raise a genuine dispute of material fact as to elements two and three. This is so

because there is no evidence in the record that the use of force used on Plaintiffs was clearly excessive and that the

excessiveness was clearly unreasonable. See id.

overrules these objections. To the extent the court disagrees with the Report, the reasoning for the

disagreement is analyzed below.

3. Striking of Plaintiffs’ Expert Witness Under Rule 702

Plaintiffs next assert the magistrate judge erred by improperly striking Plaintiffs’ expert,

Mr. Gill. See Doc. 192 at 8-10. The court disagrees. For the reasons stated below, the court

overrules this objection.

On March 8, 2021, Plaintiffs filed their expert disclosures under Federal Rule of Civil

Procedure 26(a)(2) (Doc. 150). Plaintiffs listed Robert “Bob” Gill, currently a practicing attorney

in Fort Worth, Tarrant County, Texas, as a retained expert, and his report purports to address the

unreasonableness of the Named Defendants’ actions on March 27, 2019. Id. In their response to

the Motion, Plaintiffs attach a declaration by Mr. Gill. Doc. 183, Exhibit 9. Named Defendants

object and move to strike Mr. Gill and his declaration as inadmissible under Rule 702 of the Federal

Rules of Evidence. Doc. 187 at 5. The Report recommends striking Mr. Gill and his declaration

after finding his opinions were unreliable under Rule 702. Doc. 188 at 10.

a. Legal Standard for Expert Testimony

The admissibility of evidence is a procedural issue governed by federal law. See Reed v.

General Motors Corp., 773 F.2d 660, 663 (5th Cir. 1985). Federal Rule of Evidence 702 governs

the admissibility of expert testimony and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the

case.

The trial court acts as a “gatekeeper” to ensure that “any and all scientific evidence

admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

589 (1993). “Daubert’s general holding—setting forth the trial judge’s general ‘gatekeeping’

obligation—applies not only to testimony based on ‘scientific’ knowledge, but also to testimony

based on ‘technical’ and ‘other specialized’ knowledge” that is non-scientific in nature. Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). In Kumho Tire, the Supreme Court resolved a

split among the circuits and held that Daubert’s “gatekeeping” function applied to all expert

opinion testimony based on specialized knowledge, not merely scientific expert testimony.

As part of its gatekeeping role, the court determines the admissibility of expert testimony

based on Rule 702, and Daubert and its progeny. The amendments to Federal Rule of Evidence

702, effective December 1, 2000, essentially codify Daubert and Kumho Tire. The Advisory

Committee’s Notes to Rule 702 state that the determination of whether an expert’s opinions are

reliable is based upon sufficient facts or data that calls for a “quantitative rather than qualitative

analysis.” In addressing this issue, the “question is whether the expert considered enough

information to make the proffered opinion reliable. . . . The expert must base [his or her] opinion

on at least the amount of data that a reliable methodology demands.” 29 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 6268 (2d ed. 1987). Further, in reviewing a

Daubert challenge, the court makes no credibility determinations; it only decides whether the

threshold reliability standards have been satisfied. See Fed. R. Evid. 702 Advisory Committee’s

Notes (2000 Amendments).

“The court may admit proffered expert testimony only if the proponent . . . demonstrates

that (1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is

reliable.” E.E.O.C. v. S & B Indus., Inc., No. 3:15-CV-641-D, 2017 WL 345641, at *2 (N.D. Tex.

Jan. 24, 2017) (citing Kumho Tire Co., 526 U.S. at 147) (internal quotation marks omitted). The

burden is on the proponent of the expert testimony to establish its admissibility by a preponderance

of the evidence. See Daubert, 509 U.S. at 592 n.10; Johnson v. Arkema, Inc., 685 F.3d 452, 459

(5th Cir. 2012). The court’s inquiry is flexible in that “[t]he relevance and reliability of expert

testimony turn[] upon its nature and the purpose for which its proponent offers it.” United States

v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (citation omitted). To be relevant, “expert testimony

[must] ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’” Pipitone

v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002) (quoting Daubert, 509 U.S. at 591).

“Relevance depends upon ‘whether [the expert’s] reasoning or methodology properly can be

applied to the facts in issue.’” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir.

2007) (quoting Daubert, 509 U.S. at 593); see also Fed. R. Evid. 702(d) (requiring that an “expert

has reliably applied the principles and methods to the facts of the case”).

“Reliability is determined by assessing ‘whether the reasoning or methodology underlying

the testimony is scientifically valid.’” Knight, 482 F.3d at 352 (quoting Daubert, 509 U.S. at 592-

93); see also Fed. R. Evid. 702(c) (requiring that “testimony [be] the product of reliable principles

and methods”). “The reliability analysis applies to all aspects of an expert’s testimony: the

methodology, the facts underlying the expert’s opinion, the link between the facts and the

conclusion, et alia.” Knight, 482 F.3d at 355 (citation and internal quotation marks omitted). “The

reliability prong mandates that expert opinion be grounded in the methods and procedures of

science and . . . be more than unsupported speculation or subjective belief,” Johnson, 685 F.3d at

459 (internal quotation marks omitted); however, “there is no requirement that an expert derive

his opinion from firsthand knowledge or observation.” Deshotel v. Wal-Mart La., L.L.C., 850 F.3d

742, 746 (5th Cir. 2017) (internal quotation marks omitted).

“The focus, of course, must be solely on principles and methodology, not on the

conclusions that they generate.” Daubert, 509 U.S. at 595; Williams v. Manitowoc Cranes, L.L.C.,

898 F.3d 607, 623 (5th Cir. 2018) (quoting Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th

Cir. 2004)). “The proponent need not prove to the judge that the expert’s testimony is correct, but

[it] must prove by a preponderance of the evidence that the testimony is reliable.” Johnson, 685

F.3d at 459 (internal quotation marks omitted). On the other hand, if “there is simply too great an

analytical gap between the [basis for the expert opinion] and the opinion proffered,” the court may

exclude the testimony as unreliable, as “nothing in either Daubert or the Federal Rules of Evidence

requires a district court to admit opinion evidence that is connected to existing data only by the

ipse dixit of the expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

“[C]ourts consider the following non-exclusive list of factors when conducting the

reliability inquiry: (1) whether the theory or technique has been tested; (2) whether the theory or

technique has been subjected to peer review and publication; (3) the known or potential rate of

error of the method used and the existence and maintenance of standards controlling the

technique’s operation; and (4) whether the theory or method has been generally accepted by the

scientific community.” Johnson, 685 F.3d at 459 (internal quotation marks omitted). These

factors, however, are not definitive or exhaustive. The reliability inquiry is flexible, and the district

court conducting the Daubert analysis has discretion in determining which factors are most

germane in light of the nature of the issue, the particular expertise, and the subject of the expert’s

testimony. Daubert, 509 U.S. at 593-95; Kumho Tire Co., 526 U.S. at 142.

The Advisory Committee’s Notes to Rule 702 contemplate that expert testimony may be

based on experience, training, or both:

Nothing in this amendment is intended to suggest that experience alone—

or experience in conjunction with other knowledge, skill, training or education—

may not provide a sufficient foundation for expert testimony. To the contrary, the

text of Rule 702 expressly contemplates that an expert may be qualified on the basis

of experience. In certain fields, experience is the predominant, if not sole, basis for

a great deal of reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d

1147 (6th Cir. 1997) (no abuse of discretion in admitting the testimony of a

handwriting examiner who had years of practical experience and extensive training,

and who explained his methodology in detail); Tassin v. Sears Roebuck, 946 F.

Supp. 1241, 1248 (M.D. La. 1996) (design engineer’s testimony can be admissible

when the expert’s opinions “are based on facts, a reasonable investigation, and

traditional technical/mechanical expertise, and he provides a reasonable link

between the information and procedures he uses and the conclusions he reaches”).

See also Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1178 (1999) (stating that

“no one denies that an expert might draw a conclusion from a set of observations

based on extensive and specialized experience.”).

Fed. R. Evid. 702 Advisory Committee’s Notes (2000 Amendments).

The Advisory Committee’s Notes to Rule 702 further explain: “If the witness is relying

solely or primarily on experience, then [he or she] must explain how that experience leads to the

conclusion reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts.” Id. This is because the “trial court’s gatekeeping

function requires more than simply taking the expert’s word for it” that the claimed basis supports

the opinion. Id. (citation and internal quotation marks omitted); Pipitone, 288 F.3d at 245-47

(finding expert testimony reliable when the expert explained how his experience in the field led

him to opine that an absence of contamination of some samples did not undermine his conclusion

that the plaintiff’s infection came from the same drug). Overall, the trial court must strive to ensure

that the expert, “whether basing testimony on professional studies or personal experience, employs

in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in

the relevant field.” Kumho Tire Co., 526 U.S. at 152. As stated earlier, the relevance and reliability

of expert testimony turn upon its nature and the purpose for which its proponent offers the

testimony. See, e.g., Hodges v. Mack Trucks, Inc., 474 F.3d 188, 195 (5th Cir. 2006) (“Of course,

whether a proposed expert should be permitted to testify is case, and fact, specific.”) (citing Kumho

Tire, 526 U.S. at 150-51).

b. Analysis

The court does not find that Mr. Gill is qualified to offer opinions under Rule 702 on police

and tactical procedures. Mr. Gill acknowledges that he has some familiarity with how SWAT

teams operate. Some familiarity alone, however, is enough to disqualify him as an expert under

Rule 702 because definitionally, having some familiarity does not meet the test under Rule 702.

To qualify under Rule 702, a person has to have scientific or some otherwise specialized

knowledge of the subject matter of which he or she intends to testify. See Fed. R. Evid. 702.

Nowhere in his CV or his report does Mr. Gill state he has specialized training, skill, or knowledge

in police practices, particularly in areas of SWAT operations. Moreover, the court agrees with the

magistrate judge that his opinions are conclusory, and that Mr. Gill fails to support his contentions.

See Pipitone, 288 F.3d at 245-47 (5th Cir. 2002) (finding expert testimony reliable when the expert

explained how his experience in the field led him to his opinions). Accordingly, the court

determines that Plaintiffs have not met their burden of showing that Mr. Gill’s expert testimony is

reliable under Rule 702. In light of the standard enunciated by the court for the admission of expert

testimony and in light of the court’s findings, Mr. Gill is not qualified to testify as to tactical

procedures with respect to execution of search warrants. Further, his opinions are neither relevant

nor reliable. For these reasons, the court strikes his purported testimony and will not consider it

in ruling on the issues presented.

B. Qualified Immunity

1. Legal Standard for Qualified Immunity

Government officials who perform discretionary functions are entitled to the defense of

qualified immunity, which shields them from suit as well as liability for civil damages, if their

conduct does not violate “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A

defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo,

446 U.S. 635, 640 (1980). Named Defendants asserted this defense in their motion for summary

judgment.

In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme

Court initially set forth a mandatory two-part inquiry for determining whether a government

official was entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). Under

Saucier, a court must determine first whether the facts alleged or shown are sufficient to make out

a violation of a constitutional or federal statutory right. If the record sets forth or establishes no

violation, no further inquiry is necessary. On the other hand, if the plaintiff sufficiently pleads or

establishes that a violation could be made out, the court must determine whether the right at issue

was clearly established at the time of the government official’s alleged misconduct. Id. The Court

relaxed this mandatory sequence in Pearson v. Callahan, 555 U.S. 223 (2009), and stated,

“[W]hile the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded

as mandatory,” and judges “should be permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be addressed first in light of

the circumstances in the particular case at hand.” Id. at 236. The second prong of the test “is better

understood as two separate inquiries: whether the allegedly violated constitutional right[] [was]

clearly established at the time of the incident; and if so, whether the conduct of the defendant[]

[official] was objectively unreasonable in light of that then clearly established law.” Hanks v.

Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (quoting Tarver v. City of Edna, 410 F.3d 745, 750 (5th

Cir. 2005) (internal quotation marks and citations omitted)).

Ordinarily, one who pleads an affirmative defense must establish his entitlement to such

defense. In the context of qualified immunity, however, this burden varies from the norm. In this

circuit, the rule is as follows:

Where . . . [a] defendant pleads qualified immunity and shows he is a governmental

official whose position involves the exercise of discretion, the plaintiff then has the

burden to rebut this defense by establishing that the official’s allegedly wrongful

conduct violated clearly established law. We do not require that an official

demonstrate that he did not violate clearly established federal rights; our precedent

places that burden upon plaintiffs.

Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted);

see also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

A right is “clearly established” only when its contours are sufficiently clear that a

reasonable public official would have realized or understood that his conduct violated the right in

issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S.

635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right

must not only be clearly established in an abstract sense but in a more particularized sense so that

it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing

law. Anderson v. Creighton, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th

Cir. 1998); and Pierce v. Smith, 117 F.3d at 871.

In Anderson, 483 U.S. at 641, the Court refined the qualified immunity standard and held

that the relevant question is whether a reasonable officer or public official could have believed that

his conduct was lawful in light of clearly established law and the information possessed by him.

If public officials or officers of “reasonable competence could disagree [on whether the conduct is

legal], immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v.

Rich, 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)).

Qualified immunity is designed to protect from civil liability “all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475 U.S. at 341. Conversely, an official’s

conduct is not protected by qualified immunity if, in light of clearly established pre-existing law,

it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster,

28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that

“the [specific] action in question has previously been held unlawful.” Anderson, 483 U.S. at 640.

For an official, however, to surrender qualified immunity, “pre-existing law must dictate, that is,

truly compel (not just suggest or allow or raise a question about), the conclusion for every like-

situated, reasonable government agent that what the defendant is doing violates federal law in the

circumstances.” Pierce v. Smith, 117 F.3d at 882 (emphasis in original and citation omitted); and

Stefanoff v. Hays County, 154 F.3d at 525. Stated differently, while the law does not require a

case directly on point, “existing precedent must have placed the statutory or constitutional question

beyond debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted).

In analyzing qualified immunity claims, the Supreme Court has “repeatedly told courts …

to not define clearly established law at a high level of generality.” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (citation omitted). Pursuant to Mullenix, courts must consider “whether the

violative nature of particular conduct is clearly established” and must undertake this inquiry “in

light of the specific context of the case, not as a broad general proposition.” Id. (citations and

internal quotations marks omitted).

2. Analysis

The court agrees with the magistrate judge’s analysis in the Report regarding qualified

immunity and its application to the Named Defendants, except for the analysis of the second prong

of the test of qualified immunity with respect to whether Defendant Lt. Mike Lewis

(“Commander”) acted objectively reasonable in his efforts to identify the correct house. The record

in this case contains ample evidence for a reasonable jury to conclude that Commander acted

objectively unreasonable prior to the execution of the search warrant. The court first focuses on

the facts relevant to Commander’s efforts to identify the correct home. In support of his efforts,

Commander provides the following:

I was put in contact with Ruben Felan via Tommy Hale. Ruben is an agent

with the Drug Enforcement Agency and he gave me some basic information on

what they had [regarding the request for assistant in executing a search warrant at

a house located at 573 8th St., Lancaster, Texas] . . . .

I requested additional information from their team, including pictures of the target

location, whether or not the location was fortified, whether or not it appeared to

have surveillance equipment, whether or not children were present, and whether or

not there were any exterior indicators on the property that children may be present.

. . . .

DEA agents provided me with pictures of the front of the residence, and advised

me they currently had surveillance established at the location. They believed there

were 4-6 adult males currently occupying the target location. They advised they

had never seen any children coming or going from the residence during their entire

investigation into the target location. They saw no fortification, no surveillance

cameras, and no evidence on the exterior of the property that indicated children

would be present.

. . . .

I was able to gather information on the target location through the Dallas Central

Appraisal District website, including the square footage and year built.

. . . .

Agents also provided real-time intelligence that surveillance officers at the scene

reported a truck pulling a white box trailer just pulled up in front of the target

location and stopped.

Agents provided me with a copy of their search warrant and I confirmed the details

of the warrant including the address of the target location and that it included the

outbuilding. The warrant included a no-knock authorization by the signing judge.

. . . .

Upon arrival to the area, SWAT . . . made an approach toward the residence with

the truck and box trailer in front of it.

Defs.’ App. 0015-17. Commander states that he was provided photographs of the target location

by the DEA; however, he did not include any of those particular photographs as part of the record.

See id. The summary judgment evidence, however, includes copies of black and white photographs

of the target home and Plaintiffs’ residence that were taken after the execution of the search

warrant. See Defs.’ App. 0026-27. This is of major significance because the photograph of

Plaintiffs’ residence included an attachment to Plaintiffs’ residence that was markedly different

from the target residence, which the court discusses below, that should have been readily apparent

to any reasonably competent officer.

The record further reflects that the truck pulling a white box trailer was parked in front of

583 8th Street. Defs.’ App. 0002. Based upon information provided by the DEA, the SWAT Team

began approaching the home. Id. On approach, Commander noticed that the residence did not

appear to be the one in the photographs provided by the DEA, and he then directed his team to the

house located to the left of them—Plaintiffs’ residence located at 593 8th Street. Id. at 0018.

Shortly after SWAT Team members entered Plaintiffs’ residence, “SWAT Team officers began

yelling out, ‘Wrong house!’” Id. at 0002. The SWAT Team thereafter left Plaintiffs’ residence and

proceeded to the correct target location—573 8th Street. Id. Instructive to the court’s analysis are

the Fifth Circuit’s reasoning in Rogers v. Hooper, 271 F. App’x 431 (5th Cir. 2008) (unpublished

table decision), and the Eleventh Circuit’s analysis in Hartsfield v. Lemacks, 50 F.3d 950 (11th

Cir. 1995), which was relied on by the Fifth Circuit in Rogers.

In Rogers, the Fifth Circuit affirmed the lower court’s entry of summary judgment based

on qualified immunity after finding the actions of two officers, who guided the team serving a

warrant on a wrong location, to be “consistent with a reasonable effort to ascertain and identify

the place intended to be searched.” Rogers, 271 F. App’x at 435 (quoting Maryland v. Garrison,

480 U.S. 79, 87 (1987) (internal quotations omitted). The officers performed various actions prior

to executing the warrant during the night: obtained the search warrant; drove by the target house;

and identified a vehicle parked in front of the target residence to serve as a cue to the officers. Id.

Despite these precautions, the wrong residence was entered into before the officer could inform

the team they were at the wrong location. Id. at 432. This court agrees that the officers in Rogers

were entitled to qualified immunity because their pre-execution efforts were reasonable. The court

cannot say the same for Commander, as his efforts and lack of alertness do not rise to the level of

the two officers in Rogers.

The Eleventh Circuit in Hartsfield had a different issue. 50 F.3d 950. There, the leading

officer, who obtained the search warrant, led his team to execute the warrant on the wrong

residence during daylight. Id. at 952. The Eleventh Circuit reversed the lower court’s granting of

summary judgment with respect to the lead officer being entitled to qualified immunity because

“he did not check to make sure that he was leading the other officers to the correct address, let

alone perform any precautionary measures.” The Eleventh Circuit goes on to state:

As it is uncontroverted that the numbers on the houses are clearly marked, and that

the raid took place during daylight hours, simply checking the warrant would have

avoided the mistaken entry. Moreover, evidence before the court showed that the

houses were located on different parts of the street, separated by at least one other

residence, and that their appearances were distinguishable.

Because [the commanding officer] did nothing to make sure that he was leading the

other officers to the correct residence, we conclude that the district court erred in

holding that he was protected by qualified immunity.

Id. at 955.

Here, Commander took more precautionary measures than the defendant in Hartsfield, but

he did not take the same level of competent measures outlined in Rogers. The undisputed evidence

before the court reveals the SWAT Team was approaching 583 8th Street—the wrong address—

when Commander directed them to 593 8th Street—also the wrong address. Prior to directing

officers to the wrong home, Commander (1) reviewed the search warrant; (2) conducted additional

searches on the target residence through the Dallas Central Appraisal District website; (3) ran a

computerized criminal history search of the occupant of the target residence; (4) debriefed with

DEA agents twice; (5) was provided with “real-time intelligence that surveillance officers at the

scene reported a truck pulling a white box trailer just pulled up in front of the target location and

stopped;” and (6) observed the home and took note of the front windows, driveway, and the

numbers on the front of the home in an attempt to confirm the residence as being the target location.

Defs.’ App. at 0015-24. The court finds that while Commander took some precautionary measures

to lead the SWAT team to the correct house, such measures were not sufficient to be “consistent

with [] reasonable effort[s] to ascertain and identify the place intended to be searched.” Rogers,

271 F. App’x at 435.

First, the undisputed evidence before the court reveals the search warrant noted that “the

numbers ‘573’ [were] painted on the curb directly in front of the [target] residence and [also]

affixed to a wooden post that supports the front porch.” Defs.’ App. 0011. Simply checking the

warrant and looking down at the curb would have avoided Commander’s mistaken order to enter

the wrong house. Second, the search warrant further noted that the target residence “is the

thirteenth residence west from Elm Street.” Id. at 0010. Commander, prior to the execution of the

warrant, also had the option to count the houses as he and his team proceeded down 8th Street.

The record does not reveal that Commander took any of these precautionary measures.

Third, while there are a few similarities between the target house and Plaintiffs’ residence,

the undisputed evidence shows a glaring difference between Plaintiffs’ residence and the target

location. Most notable is the uncontroverted evidence that Plaintiffs’ residence had two wheelchair

ramps in front of it, complete with handrails, and the target location did not. See Doc. at 175; and

compare Defs.’ App. 0027 with Defs.’ App. 0026. This handicap structure had ramps projecting

from the front door of the house towards the sidewalk in the front and to the side towards the

driveway. Defs.’ App. 00027. Commander does not address, or even mention in passing, that

Plaintiffs’ residence had a protruding handicap ramp when he observed the home before directing

his team to execute the search warrant on it. To breach the front door of Plaintiffs’ house, the entry

team necessarily had to navigate those ramps, and Commander, who remained outside of the

house, offers no explanation why he did not see those ramps that his officers had to use to reach

the front door of Plaintiffs’ residence. The presence of the ramps should have been a “dead

giveaway” that Plaintiffs’ house was not the target location. Even assuming this difference was

less noticeable at night, “because the search was to occur at night, the chance for a mistake was

greater and the need for precautions proportionately were increased.” Rogers, 271 F. App’x at 435.

Additionally, the target residence and Plaintiffs’ residence were separated by one other residence,

which the SWAT team first approached before being directed away by Commander. Id. at 0002.

Despite Commander’s efforts, the record does not reveal he performed the most basic

precaution prior to executing the search warrant: driving by the target location or having a person

under his command do so. Nothing is in the record that a drive-by was impossible or would

jeopardize officer safety. The court, for all of these reasons, determines there is a genuine dispute

of material fact regarding whether Commander made the necessary reasonable effort to identify

the correct residence and whether his actions were “[in]consistent with a reasonable effort to

ascertain and identify the place intended to be searched.” Garrison, 480 U.S. at 88. A jury could

return a verdict in Commander’s favor; however, this is a classic dispute regarding a material fact

that should proceed to the jury for final determination. A jury, not this court, should determine

whether Commander was plainly incompetent.

So that there is no misapprehension of the court’s ruling, this is not a situation in which the

court is applying 20/20 hindsight to a situation that went awry or second-guessing what

Commander did or failed to do prior to the execution of the warrant. The court’s focus is on what

steps a reasonable police officer in his position should have done prior to the execution of the

search on Plaintiffs’ residence. The court has included a number of things that Commander easily

could have reasonably done or noticed. He was the person in charge of the tactical operation, and

“the buck stopped” with him. The failure to observe and follow some basic and fundamental steps

regarding police procedure was a recipe for disaster. The pre-planning did not involve a tense, fast-

moving, or a set of quickly-unfolding facts or circumstances. As stated before, this case presents

a situation for the jury to decide whether Commander was plainly incompetent in the execution of

the search warrant that resulted in an unconstitutional search of Plaintiffs’ residence.

C. Discovery Requests

Plaintiffs also contend that they were denied opportunities to conduct discovery except for

the deposition of WPD Chief Goolsby, and the denial hampered their ability to respond to the

Motion and further prevents them from identifying more John Does. See Doc. 192 at 2; Doc. 190.

After the Motion was filed, Plaintiffs filed a motion for discovery (Doc. 170) seeking permission

to serve specific interrogatories and requests for production, which sought the production of certain

documents and recordings, upon the Named Defendants in their individual capacities to assist their

response to the Motion. Named Defendants argue in their response that Plaintiffs have “obtained

documents in this case by sending multiple Open Records Requests to the City of Waxahachie.”

Doc. 174 at 2. They further argue that the discovery sought is not narrowly tailored to the issue of

qualified immunity. Id. The magistrate judge held a hearing on July 27, 2021, to discuss the

pending motion and ultimately denied Plaintiffs’ requested discovery relief but allowed the

deposition of Chief Goolsby. See Doc. 177.

After reviewing the record, the court determines that Plaintiffs were allowed to depose

Chief Goolsby and that they failed to identify what additional documents or information they could

not have obtained or requested from Chief Goolsby or other public sources. Additionally, the court

finds that the specific discovery sought to be served upon Named Defendants by Plaintiffs were

not narrowly tailored to the issue of qualified immunity. Moreover, Plaintiffs did not appeal or file

any objections within 14 days of the the magistrate’s ruling regarding their efforts to seek

additional discovery to this court. See Fed. R. Civ. P. 72. Plaintiffs have therefore waived these

objections. Accordingly, to the extent Plaintiffs raised an objection regarding their previous

attempts to obtain additional discovery, the court overrules such objection.

III. Conclusion

Having considered the pleadings, Report, Objection, file, and record in this case, and

having conducted a de novo review of that portion of the Report to which objection was made, the

court, for the reasons explained, determines that the magistrate judge’s findings and conclusions

in Sec. II and IV.A., are correct, and accepts them as those of the court. Accordingly, the court

overrules Named Defendants’ objection to Plaintiffs’ response, brief, and exhibits as non-

compliant with the Local Rules; overrules as moot Defendants’ objection to Plaintiffs’ use of

pleadings to serve as summary judgment evidence; grants Named Defendants’ motion to exclude

and strike Plaintiffs’ expert testimony; and grants Named Defendants’ Motion for Summary

Judgment (Doc. 167) as to Plaintiffs’ claims against Brent Dunn, O.T. Glidewell, James Lewis,

James Taylor, and Derek Behringer, and dismisses with prejudice the Fourth Amendment

violations against them. The court also denies as moot Named Defendants’ Motion for Summary

Judgment (Doc. 167) on any Fourteenth Amendment violation because Fourteenth Amendment

claims cannot be made when a person is seized or detained.

The court further determines that the magistrate judge’s findings and conclusions in Sec.

IV.B. are correct as they relate to Andrew Gonzales, Derrick Young, Brian Fuller, Dustin Koch,

and Stephen Sanders; and accepts them as those of the court. Accordingly, the court grants Named

Defendants’ Motion for Summary Judgment (Doc. 167) as to Plaintiffs’ claims against Andrew

Gonzales, Derrick Young, Brian Fuller, Dustin Koch, and Stephen Sanders and dismisses with

prejudice the Fourth Amendment violations against them.

The court rejects the magistrate judge’s findings and conclusions in Sec. IV.B. relating to

Defendant Lt. Mike Lewis. Accordingly, the court denies Named Defendants’ Motion for

Summary Judgment (Doc. 167) as to Plaintiffs’ claims against Defendant Lt. Mike Lewis.

Further, the court considered the magistrate judge’s order on February 28, 2022, requiring

Plaintiffs to provide proof that they have served the John Does by March 14, 2022, or show cause

in writing why service cannot be made on them (Doc. 189); Plaintiffs’ Objection stating additional

discovery is needed to identify the John Does (Doc. 190); and Named Defendants’ Response to

Plaintiffs’ Objection (Doc. 191). After careful review, the court finds that Plaintiffs failed to show

good cause why the John Does cannot be identified and why service cannot then be made on them.

Accordingly, pursuant to Federal Rule of Civil Procedure 4(m), the court dismisses

without prejudice Plaintiffs’ claims against the remaining John Doe Defendants, which the court

shows to be John Does 1-9.? The only claim that remains for trial or other resolution is Plaintiffs’

claim for a Fourth Amendment violation against Defendant Lt. Mike Lewis.

It is so ordered this 31st day of March, 20272.

< Sam A. Lindsay “4

United States District Judge

The court previously dismissed with prejudice Plaintiffs’ claims against John Does 10-20 in its order dated April 21,

2021 (Doc. 160).

Memorandum Opinion and Order — Page 24