Lewis v. Dallas County

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SOPHIA LEWIS, Individually and §

As Representative of the Estate §

of Shamond Lewis, Deceased, §

§

Plaintiff, §

§ Civil Action No. 3:23-CV-0381-D

VS. §

§

DALLAS COUNTY, et al., §

§

Defendants. §

MEMORANDUM OPINION

AND ORDER

Plaintiff Sophia Lewis (“Lewis”), individually and as representative of the estate of

Shamond Lewis, sues defendants Dallas County, Texas (the “County”), the Dallas County

Hospital District, d/b/a Parkland Health (“DCHD”), and various County detention officers

and medical providers under 42 U.S.C. § 1983, asserting claims for alleged deprivations of

her deceased son Shamond’s constitutional rights. Four County employees—defendants

Adaria Johnson, L.V.N (“Johnson”), Kelechi Nwazue, RN (“Nwazue”), Carmen Davis, RN

(“Davis”), and Yewande Wilson, NP (“Wilson”) (collectively, the “Medical Providers”

unless the context indicates otherwise)—move to compel Lewis to file a Fed. R. Civ. P. 7(a)

reply. Defendant Officer Annette Grant (“Officer Grant”) moves for summary judgment

based on the defense of qualified immunity. Lewis opposes both motions and moves under

Rule 56(d) to supplement the summary judgment record. For the reasons that follow, the

court grants the Medical Providers’ motion for a Rule 7 reply, denies Lewis’ motion to

supplement the summary judgment record, grants Officer Grant’s motion for summary

judgment, and dismisses Lewis’ claims against Officer Grant by Rule 54(b) final judgment

filed today.

I

Prior to the events giving rise to this lawsuit, Shamond lived alone, was physically

healthy, and took prescribed medication for his mental health condition: paranoid

schizophrenia.1 On September 22, 2022 Shamond was arrested for aggravated assault and

booked into the Dallas County Jail (“Jail”) without incident as a pretrial detainee. During

the booking process, Jail personnel noted Shamond’s mental illness on his Intake

Assessment, and initially placed him on suicide precaution to be monitored in an intake

single cell holding unit. Later that evening, at approximately 11:30 p.m., Shamond was

transferred to the second floor release section to be processed into a housing unit. Shamond

was again placed in a single cell holding unit.

At approximately 12:45 a.m., Shamond was escorted by defendants Sergeant

Christopher Loboda (“Sergeant Loboda”), Officer Javier Tavera-Luna (“Officer Tavera”),

and Officer James McDaniel to the changeout room to change into jail attire. According to

Sergeant Loboda, Shamond refused to change out of his clothes. When Sergeant Loboda

1In the context of Officer Grant’s summary judgment motion, the court views the

evidence in the light most favorable to Lewis as the summary judgment nonmovant and

draws all reasonable inferences in her favor. See, e.g., Owens v. Mercedes-Benz USA, LLC,

541 F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n

v. Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).

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attempted to restrain him, Shamond “pulled away from [him] and curled into a ball.” P. Br.

(ECF No. 84) at 4. Sergeant Loboda then gave Shamond several commands to “give us his

hands and quit resisting,” id., but Sergeant Loboda was unable to place both handcuffs on

Shamond.

During the struggle, one of the assisting officers placed an officer assist call, to which

Officer Grant and five other detention officers responded. When Officer Grant arrived in the

changeout room, she observed Shamond on the floor in a face-down position with his left

arm under his body, resisting the officers’ efforts to handcuff him. According to Lewis,

Officer Grant then stood on top of Shamond’s legs and “might have moved up from the legs

to the upper parts of [Shamond]’s body.” P. Br. (ECF No. 84) at 7 (citing P. App. (ECF No.

85) at 22-23). Officer Grant disputes this allegation, contending instead that she assisted the

detention officers who were trying to gain control of Shamond by using her hands on

Shamond’s thighs. It is undisputed that, after approximately 1-2 minutes, Shamond was

brought under control and handcuffed. Officer Grant then left the changeout room.

The remaining officers changed Shamond’s clothes and placed him in a six-point

restraint chair. Immediately afterward, as Jail officials were providing Shamond water, his

eyes rolled back, he became unresponsive, and he had difficulty breathing. At around 1:00

a.m., Shamond was taken to the nurses station where officers realized that Shamond was not

breathing and needed emergency care. Officer Tavera called twice for an automatic external

defribillator before it was brought to Shamond. According to Officer Tavera, “the medical

staff was not prepared to assist the inmate.”

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Shamond was eventually transported to Parkland Hospital (“Parkland”). When he

arrived, he was unresponsive and in critical condition. Shamond’s medical records from

Parkland note that he “likely suffered severe anoxic brain injury,” and that “[m]ulti-system

organ failure seems to be a result of shock state which is common following an arrest.” Id.

¶ 4.14. Shamond remained at Parkland in critical condition until his death on September 29,

2022. An autopsy followed, and in the custodial death report, the Medical Examiner

concluded that the cause and manner of death “remains undetermined.” Id. ¶ 4.19.

Lewis then brought this lawsuit. In her Fifth Amended Complaint (“Complaint”),

which is the operative pleading in this case, Lewis asserts claims under 42 U.S.C. § 1983

against the County for violating Shamond’s Fourth and Fourteenth Amendment rights;

against DCHD and “Unknown 1-7 Medical Providers”2 for violating Shamond’s Fourteenth

Amendment rights; and against Officer Grant and five other County detention officers for

using excessive force, in violation of Shamond’s Fourteenth Amendment rights and for

bystander liability.

2Lewis alleges that she “does have the following partial names of Unknown medical

providers 1-7,” and lists the following:

1. Nurse A. Johnson, LVN[;]

2. Y. Wilson, Provider;

3. C. Davis, Provider;

4. W. Patricia, RN;

5. K. Nmazue, RN;

6. M. Annah, LVN; and,

7. A. Ola, LVN

Compl. ¶ 3.05.

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The Medical Providers—i.e., Johnson, Nwazue, Davis, and Wilson, who are four of

the “Unknown 1-7 Medical Providers”—move the court to order Lewis to file a Rule 7 reply.

Officer Grant moves for summary judgment. Lewis opposes both motions and also moves

under Rule 56(d) for leave to supplement the summary judgment record. The court is

deciding the motions on the briefs, without oral argument.

II

The court turns first to the Medical Providers’ motion for a Rule 7(a) reply.

A

“[G]overnment officials performing discretionary functions generally are shielded

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.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982) (citation omitted). Qualified immunity likewise

applies to state officials sued for constitutional violations under § 1983. See id. at 818 n.30

(citing Butz v. Economou, 438 U.S. 478, 504 (1978)); Palmer v. Johnson, 193 F.3d 346, 351

(5th Cir. 1999). “The Supreme Court has characterized the doctrine as protecting ‘all but the

plainly incompetent or those who knowingly violate the law.’” Cozzo v. Tangipahoa Parish

Council–President Gov’t, 279 F.3d 273, 284 (5th Cir. 2002) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)).

“To decide whether defendants are entitled to qualified immunity, the court must first

answer the threshold question whether, taken in the light most favorable to plaintiff[] as the

part[y] asserting the injuries, the facts . . . alleged show that defendants’ conduct violated a

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constitutional right.” Ellis v. Crawford, 2005 WL 525406, at *3 (N.D. Tex. Mar. 3, 2005)

(Fitzwater, J.) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to rule

upon the qualified immunity issue must consider, then, this threshold question: Taken in the

light most favorable to the party asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right? This must be the initial inquiry.”)).3 “If no

constitutional right would have been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201.

“[I]f a violation could be made out on a favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly established.” Id. “Even if the

government official’s conduct violates a clearly established right, the official is nonetheless

entitled to qualified immunity if his conduct was objectively reasonable.” Wallace v. Cnty.

of Comal, 400 F.3d 284, 289 (5th Cir. 2005). “The objective reasonableness of allegedly

illegal conduct is assessed in light of the legal rules clearly established at the time it was

taken.” Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992) (citing Anderson v. Creighton,

483 U.S. 635, 639 (1987)). “‘The defendant’s acts are held to be objectively reasonable

unless all reasonable officials in the defendant’s circumstances would have then known that

the defendant’s conduct violated the’ plaintiff’s asserted constitutional or federal statutory

3Saucier’s two-step procedure for determining qualified immunity is no longer

mandatory. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). Courts are free to consider

Saucier’s second prong without first deciding whether the facts show a constitutional

violation. Id. The “decision does not prevent the lower courts from following the Saucier

procedure; it simply recognizes that those courts should have the discretion to decide whether

that procedure is worthwhile in particular cases.” Id. at 242.

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right.” Cozzo, 279 F.3d at 284 (quoting Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457

(5th Cir. 2001)).

“[W]hen a plaintiff sues a public official under § 1983, the district court must insist

on heightened pleading by the plaintiff.” Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996)

(citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc)). Although a plaintiff

may comply with ordinary pleading standards in his initial complaint, and need not anticipate

a qualified immunity defense, “[w]hen a public official pleads the affirmative defense of

qualified immunity in his answer, the district court may, on the official’s motion or on its

own, require the plaintiff to reply to that defense in detail” pursuant to Rule 7(a). Schultea,

47 F.3d at 1433. “[T]he reply must be tailored to the assertion of qualified immunity and

fairly engage its allegations.” Id. “Heightened pleading requires allegations of fact focusing

specifically on the conduct of the individual who caused the plaintiff[’s] injury.” Reyes v.

Sazan, 168 F.3d 158, 161 (5th Cir. 1999). The case should not be allowed to proceed unless

plaintiff can assert specific facts that, if true, would overcome the defense. See Morin, 77

F.3d at 120 (“Public officials are entitled to qualified immunity from suit under § 1983 unless

it is shown by specific allegations that the officials violated clearly established law.”);

Schultea, 47 F.3d at 1434 (“The district court need not allow any discovery unless it finds

that plaintiff has supported his claim with sufficient precision and factual specificity[.]”).

The “district court’s discretion not to [require a Rule 7(a) reply] is narrow indeed when

greater detail might assist.” Schultea, 47 F.3d at 1434; see also Reyes, 168 F.3d at 161

(“Faced with sparse details of claimed wrongdoing by officials, trial courts ought routinely

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require plaintiffs to file a reply under [Rule] 7(a) to qualified immunity defenses.”).

B

The court concludes that greater detail might assist in determining whether any of the

Medical Providers is entitled to qualified immunity.

In her complaint, Lewis has grouped all of the “unknown 1-7 Medical Providers”

together, alleging that

Defendants unknown 1-7 Medical Providers were legally

responsible to follow and implement the policies of the Dallas

County Sheriff’s Department and the United States Constitution

with respect to all matters concerning the medical care of

inmates in the Dallas County Jail. Defendants unknown 1-7

Medical Providers were responsible for ensuring that all medical

devices and equipment are available to immediately apply

medical care, and providing medical treatment to all inmates,

including Shamond Lewis, in compliance with federal and state

law, department and agency policies, and rules, regulations and

related standards of care, including the implementation of the

policies, procedures, practices, and customs and the acts and

omissions challenged by this suit.

Compl. ¶ 3.06 (bold font omitted). In setting out her cause of action against the Medical

Providers, Lewis alleges that the Medical Providers:

a. Fail[ed] to take reasonable or appropriate precautions to

prevent [Shamond]’s death;

b. Fail[ed] to provide appropriate medical evaluation and/or

treatment to [Shamond] to address his known, obvious medical

condition(s); and

c. Refus[ed] to treat [Shamond], ignoring his complaints,

intentionally treating him incorrectly, or engaging in similar

conduct that would evidence a wanton disregard for serious

medical needs.

Id. ¶ 6.04. And she pleads in the alternative that the Medical Providers “are liable for

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violating their applicable jail inmate standards of care and causing death and pre-death pain

and suffering of [Shamond].” Id. ¶ 6.05.

Lewis’ mostly conclusory allegations describe collective action not assigned to any

specific Medical Provider and fail to plead any conduct by any particular Medical Provider

that allegedly violated Shamond’s constitutional rights. Lewis’ “failure to attribute conduct

to any of the [Medical Providers] or to separate out the allegations against the various

[Medical Providers] makes it impossible to determine whether the defendant in question

acted in an objectively unreasonable manner in light of clearly established constitutional

standards.” Fisher v. Dallas Cnty., 299 F.R.D. 527, 532-33 (N.D. Tex. Apr. 18, 2014)

(Fitzwater, C.J.) (citing Waltman v. Payne, 535 F.3d 342, 346 (5th Cir. 2008)); see also

Bonham v. Winn, 2021 WL 1312634, at *2 (N.D. Tex. Apr. 8, 2021) (Fitzwater, J) (requiring

Rule 7(a) reply where “some allegations [in the complaint] describe collective action not

assigned to any particular officer” and plaintiff “has not pleaded specific facts demonstrating

a genuine issue as to the illegality of [one of the defendant officer’s] activity.”); Little v. Tex.

Att’y Gen., 2015 WL 1859457, at *4 (N.D. Tex. Apr. 23, 2015) (Fitzwater, J.) (requiring

Rule 7(a) reply where plaintiff referred to individual defendants “as undifferentiated

members of a collective group of ‘Defendants,’” and where, inter alia, “[t]here are several

. . . conclusory allegations in the amended complaint in which all the Individual Defendants

are lumped together.”).

Accordingly, under the authority granted in Schultea, 47 F.3d at 1433, the court orders

that, within 28 days of the date this memorandum opinion and order is filed, Lewis file a

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Rule 7(a) reply that alleges with particularity all material facts that she contends establish her

right to recover under § 1983 against each Medical Provider for violating a constitutional

right. See Reyes, 168 F.3d at 161. After Lewis files her Rule 7(a) reply, the Medical

Providers may move for judgment on the pleadings or for other relief available by motion,

if they have grounds to do so.

C

In the concluding sentence of her response to the Medical Providers’ motion, Lewis

states: “in the event the Court determines that a Rule 7(a) reply is necessary and that

discovery should also be limited, the Plaintiff would argue that discovery is necessary on the

issue of qualified immunity.” P. Resp. (ECF No. 78) at 9. To the extent that Lewis seeks

discovery on the issue of qualified immunity, the court denies her request at this time.

“One of the most salient benefits of qualified immunity is protection from pretrial

discovery, which is costly, time-consuming, and intrusive.” Backe v. LeBlanc, 691 F.3d 645,

648 (5th Cir. 2012) (citing Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986)). In this

circuit, it is established that “[d]iscovery . . . must not proceed until the district court first

finds that the plaintiff’s pleadings assert facts which, if true, would overcome the defense of

qualified immunity.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995);

Hutcheson v. Dall. Cnty., Tex., 994 F.3d 477, 481 (5th Cir. 2021).

[A] plaintiff seeking to overcome qualified immunity must plead

specific facts that both allow the court to draw the reasonable

inference that the defendant is liable for the harm he has alleged

and that defeat a qualified immunity defense with equal

specificity. After the district court finds a plaintiff has so pled,

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if the court remains “unable to rule on the immunity defense

without further clarification of the facts,” it may issue a

discovery order “narrowly tailored to uncover only those facts

needed to rule on the immunity claim.”

Backe, 691 F.3d at 648 (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.

1987)).

Because Lewis has not yet alleged sufficient facts to overcome the Medical Providers’

defense of qualified immunity, discovery in this case—even limited discovery—must be

stayed. See Vess v. City of Dallas, 2022 WL 1471432, at *2 (N.D. Tex. May 10, 2022)

(Fitzwater, J.) (citing cases); see also Hutcheson, 994 F.3d at 481 (“Before limited discovery

is permitted, a plaintiff seeking to overcome [qualified immunity] must assert facts that, if

true, would overcome that defense.”).

III

The court now considers Officer Grant’s motion for summary judgment.

A

When a summary judgment movant will not have the burden of proof on a claim at

trial, she can obtain summary judgment by pointing the court to the absence of evidence on

any essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986). Once she does so, the nonmovant must go beyond her pleadings and designate

specific facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is

genuine if the evidence is such that a reasonable jury could return a verdict for the

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nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s

failure to produce proof as to any essential element renders all other facts immaterial. See

TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater,

J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little,

37 F.3d at 1076.

B

When qualified immunity has been raised, “[t]he moving party is not required to meet

[her] summary judgment burden for a claim of immunity.” Hathaway v. Bazany, 507 F.3d

312, 319 (5th Cir. 2007) (citation omitted). Rather, the movant need only plead her

good-faith entitlement to qualified immunity, whereupon “the burden shifts to the plaintiff

to rebut it.” Id. (emphasis and citation omitted); see also Gates v. Tex. Dep’t of Protective

& Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008) (noting that when government

official pleads qualified immunity, plaintiff must “rebut the defense by establishing that the

official’s allegedly wrongful conduct violated clearly established law and that genuine issues

of material fact exist regarding the reasonableness of the official’s conduct”). Once qualified

immunity is asserted, the burden shifts to the plaintiff to demonstrate the inapplicability of

the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)

(per curiam).

IV

Officer Grant asserts the defense of qualified immunity to Lewis’ Fourteenth

Amendment excessive force claim.

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A

Because Shamond was a pretrial detainee at the time of the alleged use of excessive

force, the Fourteenth Amendment’s Due Process Clause applies. Cope v. Cogdill, 3 F.4th

198, 206 (5th Cir. 2021) (“The constitutional rights of a pretrial detainee are found in the

procedural and substantive due process guarantees of the Fourteenth Amendment.” (citation

omitted)). Under the Fourteenth Amendment, pretrial detainees have a constitutional right

to be free from “the use of excessive force that amounts to punishment.” Kingsley v.

Hendrickson, 576 U.S. 389, 397 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10

(1989)). Use of force on a pretrial detainee is “excessive” if it is “objectively unreasonable.”

Id. at 392.

To determine whether an officer’s use of force was objectively reasonable, courts look

to the “facts and circumstances of each particular case.” Id. at 397 (quoting Graham, 490

U.S. at 396). The Supreme Court has emphasized that

A court must make this determination from the perspective of a

reasonable officer on the scene, including what the officer knew

at the time, not with the 20/20 vision of hindsight. A court must

also account for the legitimate interests that stem from the

government’s need to manage the facility in which the

individual is detained, appropriately deferring to policies and

practices that in the judgment of jail officials are needed to

preserve internal order and discipline and to maintain

institutional security.

Id. (quotation marks, brackets, and internal citations omitted). The Court also noted that the

following factors “may bear” on the reasonableness or unreasonableness of the force used:

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the relationship between the need for the use of force and the

amount of force used; the extent of the plaintiff’s injury; any

effort made by the officer to temper or to limit the amount of

force; the severity of the security problem at issue; the threat

reasonably perceived by the officer; and whether the plaintiff

was actively resisting.

Id. (“Kingsley factors”).

B

Officer Grant maintains that the pleadings and evidence do not establish constitutional

harm, contending, inter alia, that the complaint largely fails to allege that she, as opposed to

the group of jailers in the changeout room, used excessive force against Shamond; the “triple

hearsay” statement provided by a Tarrant County officer in an unofficial interview report4

is inconsistent with Officer Grant’s own testimony about her actual involvement with other

officers in their attempt to gain control of Shamond; the summary judgement evidence shows

that she responded to a call for assistance, saw Shamond on the floor resisting other officers’

attempts to handcuff him, assisted those officers by using her hands on Shamond’s legs, and

left the area and had no further involvement with Shamond after the other officers

handcuffed and gained control of Shamond; her use of force was only applied in the context

of responding to Shamond’s active resistance to being handcuffed and assisting other

detention officers in their use of force to handcuff him; and reviewing the incident from her

perspective and applying the Kingsley factors leads to the conclusion that her actions did not

4The report states: “Officer Sawyer stated that Officer J. Tavera told her that Officer

A. Grant had stood on top of Shamond with both of her feet as officers were attempting to

gain control of him.” D. App. (ECF No. 72) at 14.

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amount to excessive force.5 She also argues that there is no clearly established law that

provided her with notice that the alleged use of force to gain control and enforce discipline

in order to handcuff Shamond was unconstitutional, or even objectively unreasonable under

the Fourteenth Amendment.

Lewis responds that Officer Grant’s use of force was unreasonable, unnecessary, and

excessive under the Kingsley factors. Based on evidence that Officer Grant stood on

Shamond’s legs while he was in a prone position, face down on the floor, and that Officer

Grant “might have moved up from the legs to the upper parts of [Shamond]’s body,” P. Br.

(ECF No. 84) at 7 (citing P. App. (ECF No. 85) at 22-23))6—Lewis contends that the amount

of force that Officer Grant used was disproportionate to the need for the use of force,

especially considering that Shamond only weighed 178 pounds, and there were as many as

nine other officers in the changeout room during the incident; there is no evidence that

Officer Grant made any effort to temper or limit the amount of force she used; that “one

mentally ill inmate’s resistance to having his clothes changed . . . did not create a ‘severe

security problem’ for the Jail that warranted such an immediate escalation of force,” id. at

16; and that, although Shamond was resisting officers’ attempts to change his clothes, he had

5Officer Grant also argues that, to the extent that Lewis relies on a res ipsa loquitur

theory to establish a constitutional harm, that theory is inapplicable in the § 1983 qualified

immunity context. [D. Br. (ECF No. 71) at 13-14]

6In her summary judgment reply, Officer Grant makes objections to Lewis’ summary

judgment evidence, including an objection to Officer Tavera’s statement under Fed. R. Evid.

801-803. Because the court is granting Officer Grant’s motion for summary judgment, it

overrules the objections without prejudice as moot.

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pulled away from Sergeant Loboda and “curled into a ball,” P. App. (ECF No. 85) at 6, and

there “is not a shred of evidence to suggest that [Shamond] affirmatively attacked the officers

to intentionally injure them,” P. Br. (ECF No. 84) at 17. Regarding the second prong of the

qualified immunity analysis, Lewis posits that the evidence shows “that [Officer] Grant stood

on [Shamond], using her entire body weight on him when he was on the floor, on his

stomach, surrounded by officers,” and that the Fifth Circuit has “long denied” qualified

immunity for jail officials in similar situations, citing Simpson v. Hines, 903 F.2d 400 (5th

Cir. 1990) as an example. P. Br. (ECF No. 84) at 18.

C

The court will assume arguendo that Lewis can produce admissible evidence that

Officer Grant stood with her entire body weight on Shamond while he was on the floor, on

his stomach, surrounded by officers. The court will further assume that this conduct violated

Shamond’s Fourteenth Amendment right as a pretrial detainee to be free from the objectively

unreasonable use of force. Even having made these assumptions, the court concludes that

Officer Grant is entitled to qualified immunity on Lewis’ § 1983 excessive force claim. This

is so because it was not clearly established at the time of the incident that Officer Grant’s

alleged use of such force under the circumstances—i.e., in the context of the detention

officers’ attempts to gain control of Shamond after he resisted being handcuffed—violated

the Fourteenth Amendment.

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1

Under the second prong of the qualified immunity analysis,7 courts consider “whether

the defendant’s conduct was objectively reasonable in light of the clearly established law at

the time of the incident.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008); see also Wood

v. Moss, 572 U.S. 744, 758 (2014) (“The ‘dispositive inquiry,’ we have said, ‘is whether it

would have been clear to a reasonable officer’ in the [defendant’s] position ‘that [her]

conduct was unlawful in the situation [she] confronted.’” (brackets omitted) (quoting

Saucier, 533 U.S. at 202)). To make this determination, the court must

ask whether the law so clearly and unambiguously prohibited

[the defendant’s] conduct that every reasonable official would

understand that what [she] is doing violates the law. To answer

that question in the affirmative, [the court] must be able to point

to controlling authority—or a robust consensus of persuasive

authority—that defines the contours of the right in question with

a high degree of particularity.

Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc) (brackets and internal

quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). While “a

case directly on point” is not required for the court to conclude that the law is clearly

established, “existing precedent must have placed the statutory or constitutional question

beyond debate.” al-Kidd, 563 U.S. at 741. Moreover, a court may not “define clearly

established law at a high level of generality, since doing so avoids the crucial question

whether the official acted reasonably in the particular circumstances that he or she faced.”

7Under Pearson, 555 U.S. at 236, the court may consider the second Saucier prong

first.

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Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (internal quotation marks and citation

omitted). The Fifth Circuit has explained that “[t]he central concept is that of ‘fair warning’:

The law can be clearly established ‘despite notable factual distinctions between the

precedents relied on and the cases then before the Court, so long as the prior decisions gave

reasonable warning that the conduct then at issue violated constitutional rights.’” Kinney v.

Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730,

740 (2002)).

2

Lewis has failed to point to any controlling authority that would have put Officer

Grant on notice that standing on Shamond’s legs with her entire body weight while the other

officers in the changeout room attempted to control and handcuff him constituted an

objectively unreasonable use of force in violation of Shamond’s Fourteenth Amendment

rights. She cites just one case, Simpson, to support the assertion that “a reasonable officer

would have concluded that [Officer] Grant used excessive force on [Shamond] by placing

her entire body weight on him in violation of his Fourteenth Amendment rights.” P. Br.

(ECF No. 84) at 19. But Simpson is factually distinguishable.

In Simpson when Kenneth Simpson (“Simpson”), a pretrial detainee, resisted the

defendant officers’ efforts to search his pockets, one of the officers

put his arm around Simpson’s neck while the other officers

grabbed Simpson’s arms and legs. The officers forced Simpson

to the floor and attempted to handcuff him while [Officer]

Broussard, nicknamed “Beef” due to his large size, sat on

Simpson’s chest. Unable to restrain Simpson in this position,

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they rolled him on his stomach, cuffed his hands behind his

back, and cuffed his legs.

Simpson, 903 F.2d at 402. In an audio recording of the incident, Simpson can be heard

asking the officers to “lighten up,” and then begging for help and screaming. Id. Later that

morning, Simpson was discovered dead in his cell. Id. According to the medical examiner’s

report, he died “as a result of asphyxia due to trauma to [the] neck.” Id. (alteration in

original). The plaintiff also produced evidence that Simpson “could have died of

asphyxiation resulting from the pressure exerted when Broussard sat on his chest.” Id. at

403. The Fifth Circuit affirmed the district court’s denial of the defendant officers’ motion

to dismiss or alternatively for summary judgment on qualified immunity, finding “ample

evidence that the defendant officers who entered Simpson’s cell reasonably should have

known that in subduing and searching Simpson they maliciously used force which was

grossly disproportionate to the need and was calculated to injure Simpson severely.” Id.

Unlike Simpson, however, there is no evidence in this case, or even an allegation, that

Officer Grant stood on, or put her entire weight on, Simpson’s chest, possibly causing

asphyxiation. Nor has Lewis cited any other case law that would have put Officer Grant on

notice that standing on, or putting her entire weight on, Simpson’s legs in an attempt to bring

him under control constituted an objectively unreasonable use of force. Cf. Brown v.

Coulston, 463 F.Supp.3d 762, 777 (E.D. Tex. 2020) (“[P]recedent within this circuit shows

. . . that there is no clearly established law that a police officer may not handcuff or otherwise

use his body weight to restrain a student, including a student who has special needs and is

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repeatedly disruptive, combative, noncompliant, and resisting the officer’s commands.”).

Accordingly, under the second step of the qualified immunity analysis, the court holds that

Officer Grant is entitled to qualified immunity as to Lewis’ § 1983 excessive force claim.

V

Lewis moves under Rule 56(d) to supplement the summary judgment record. In

support of her motion, she maintains that she should be permitted to conduct six depositions8

to obtain additional information to properly respond to Officer Grant’s motion.

A

“Rule 56(d) functions as a safe harbor that has been built into the rules so that

summary judgment is not granted prematurely.” State Farm Fire & Cas. Co. v. Whirlpool

Corp., 2011 WL 3567466, at *2 (N.D. Tex. Aug. 15, 2011) (Fitzwater, C.J.) (citing Union

City Barge Line v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987)). The Rule

states:

[i]f a nonmovant shows by affidavit or declaration that, for

specified reasons, [she] cannot present facts essential to justify

[her] opposition, the court may: (1) defer considering the motion

or deny it; (2) allow time to obtain affidavits or declarations or

to take discovery; or (3) issue any other appropriate order.

Rule 56(d).

In qualified immunity cases, the court “use[s] a two-step procedure ‘under which a

8Lewis “asks for the following depositions” to obtain information regarding Officer

Grant’s assertion of qualified immunity: Detective Williams, Sergeant Shelton, Officer

Grant, Susan Marie Sawyer, Officer Tavera, and Sergeant Laboda. P. Br. (ECF No. 88) at

3.

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district court may defer its [qualified immunity] ruling if further factual development is

necessary to ascertain the availability of that defense.’” Hutcheson, 994 F.3d at 481 (quoting

Backe, 691 F.3d at 648).

First, the court determines whether the pleadings assert facts

which, if true, would overcome the defense of [qualified

immunity]. Second, if the pleadings assert such facts, the

district court issues a narrowly tailored discovery order to

uncover only those facts needed to rule on the immunity claim.

Id. (citations and internal quotation marks omitted).

B

Lewis maintains that a “main focus” of the discovery she seeks is on Officer Grant’s

“restraining techniques of standing on [Shamond]’s back that led to [Shamond]’s death.” P.

Br. (ECF No. 88) at 1. She contends that “there remains an identifiable fact issue on whether

[Officer] Grant was standing on Lewis during the restraint, whether there was a cover-up,

and whether members of the Dallas County Sheriff’s Office directed [Officer Tavera] to

change his report to hide the constitutional excessive force violations that led to [Shamond]’s

death.” Id. at 4. And she alleges that

Plaintiff’s claims, as well as Tarrant County’s investigation

revealed that [Officer] Grant stood on [Shamond]’s back, not his

legs. This is a restraint that can cause positional asphyxiation,

which explains how [Shamond] was essentially dead by the time

he reached the hospital. As shown in our Response, this type of

restraint by standing on the back of a person is not allowed. Our

medical expert will likely be able to relate the autopsy and

injuries to the unlawful restraint and death.

Id. at 5.

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“Before limited discovery is permitted, a plaintiff seeking to overcome [qualified

immunity] must assert facts that, if true, would overcome that defense.” Hutcheson, 994 F.3d

at 481 (citing Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014)). “It is not enough

broadly to seek information that might impeach the defendants’ version of events.” Id. Not

only has Lewis failed to plead that Officer Grant stood on Shamond’s back or that his death

was caused by positional asphyxiation, she has not shown how these facts, if true, would

overcome Officer Grant’s qualified immunity defense. This is because, even if Officer Grant

did stand on Shamond’s back, and even if Shamond did die as a result of positional

asphyxiation, Lewis has still failed to point to any controlling authority that would have put

Officer Grant on notice that standing on Shamond’s back, under the circumstances of this

case, constituted an objectively unreasonable use of force that violated Shamond’s

Fourteenth Amendment rights.9

Accordingly, the court denies Lewis’ motion for leave to supplement the discovery

record.

VI

Officer Grant also moves for summary judgment, on qualified immunity grounds, on

Lewis’ bystander liability claim. Lewis has not responded to this ground of Officer Grant’s

motion. Although this failure does not permit the court to enter a “default” summary

9Nor does she explain how the other fact issues she identifies—whether there was a

cover-up and whether members of the Dallas County Sheriff’s Office directed Officer Tavera

to change his report to hide the constitutional excessive force violations—even relate to

Officer Grant’s assertion of qualified immunity.

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judgment on Lewis’ bystander liability claim, see, e.g., Tutton v. Garland Independent

School District, 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.), “[a] summary

judgment nonmovant who does not respond to the motion is relegated to her unsworn

pleadings, which do not constitute summary judgment evidence,” Bookman v. Shubzda, 945

F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne

Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). And

[i]f a party fails . . . to properly address another party’s assertion

of fact as required by Rule 56(c), the court may . . . (2) consider

the fact undisputed for purposes of the motion [and] (3) grant

summary judgment if the motion and supporting

materials—including the facts considered undisputed—show

that the movant is entitled to it[.]

Rule 56(e)(2), (3).

Because Lewis has not responded to this ground of Officer Grant’s motion for

summary judgment with specific evidence that would raise a fact issue on the question of

Officer Grant’s entitlement to qualified immunity, the court grants Officer Grant’s motion

for summary judgment on Lewis’ § 1983 claim for bystander liability.

* * *

Accordingly, for the reasons explained, the court grants the Medical Providers’ motion

for a Rule 7 reply, directs Lewis to file a Rule 7(a) reply as to the Medical Providers within

28 days of the date this memorandum opinion and order is filed, and stays discovery as to the

Medical Providers until further order of the court. The court denies Lewis’ motion for leave

to supplement the summary judgment record, grants Officer Grant’s motion for summary

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judgment, and dismisses Lewis’ action against Officer Grant by Rule 54(b) final judgment

filed today.

SO ORDERED.

October 23, 2024.

. . 4

AVA © BRA Y

IDNEY A. FITZWATERS

SENIOR JUDGE

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