Arlington police body slam lawsuit

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JULIE PERRY, et al. §§

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

DYLAN ECKSTROM §

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant’s 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. Kelcey’s older sister

and one of Kelcey’s friends were also in attendance. At the time,

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

Case 4:12-cv-00818-Y Document 47 Filed 01/28/14 of 12 PageID 909

present. According to Officer Eckstrom, there were at least 100

teenagers and young adults in the nightclub’s 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 Eckstrom’s 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. Pl’s App. at 2.

Kelcey’s 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 Kelcey’s direction. According to Officer Eckstrom, he had been

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

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 friend’s 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 Kelcey’s 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

Eckstrom used his pepper spray. He states that he “gave her one

application of pepper spray across the eyes.” Id. at 18. Kelcey

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 Kelcey’s

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. Kelcey’s parents were called, and she was later released

to their custody.

Kelcey’s parents filed suit on behalf of their daughter under

42 U.S.C. § 1983. They claim that Officer Eckstrom violated Kelcey’s

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 Kelcey’s 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

opposed to merely formal, pretended, or a sham.” Bazan v. Hidalgo

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.” Fed. R. Civ. P.

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 nonmovant’s favor.” Sanders-

Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citation

and internal quotation marks omitted). “[I]f no reasonable juror

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 interests—the 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 official’s conduct violated the plaintiff’s 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

Kelcey’s parents claim that Officer Eckstrom violated Kelcey’s

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 Eckstrom’s use of force was excessive.1 “An

1 Even if Plaintiffs claim of unreasonable seizure was basedon Officer Eckstrom’s taking Kelcey into custody, they appear tohave abandoned that claim on summary judgment. Officer Eckstromaddressed the claim out of caution in his motion, but Plaintiffsprovide no argument squarely addressing the point in theirresponse. See Criner v. Tex.–N.M. Power Co., 470 F. App’x 364 (5thCir. 2012) (affirming district court’s dismissal of a claim whereplaintiff failed to defend it in her response to defendant’s motionfor summary judgment); Black v. N. Panola Sch. Dist., 461 F.3d 584,588 n.1 (5th Cir. 2006) (explaining that plaintiff had abandonedclaim where she failed to defend it in her response to defendant’smotion to dismiss)

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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 Eckstrom’s 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 plaintiff’s 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 Eckstrom’s 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 club’s 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 Eckstrom’s 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

2 Plaintiffs allege several other injuries in their responseto Officer Eckstrom’s motion for summary judgment, including a discbulge in Kelcey’s cervical spine. Officer Eckstrom objects to theevidence submitted in support of these injuries on various grounds,including hearsay and improper authentication. He also submitsthat some of the documents are irrelevant given that no qualifiedperson links the injuries presented in them to any act or omissioncommitted by him. The Court has already determined that Kelceysuffered an injury based on the injuries alleged in the amendedcomplaint. Consideration of these materials would not change theCourt’s analysis of Plaintiffs’ claim of excessive force. Thus,Officer Eckstrom’s objections with respect to these exhibits areoverruled.

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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 Kelcey’s 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 friend’s 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 Court’s 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

Eckstrom’s 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 Eckstrom’s

alleged violation of Kelcey’s 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 [Kelcey’s] need for medical

care.” Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (citation

omitted). “Deliberate indifference is an extremely high standard

to meet.” 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 Kelcey’s 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 Kelcey’s 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 Kelcey’s 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 Court’s 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 Eckstrom’s 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 Kelcey’s constitutional

rights. Accordingly, Officer Eckstrom’s motion for summary judgment

is GRANTED. All of Plaintiffs’ claims against Officer Eckstrom are

hereby DISMISSED WITH PREJUDICE.

SIGNED January 28, 2014.

____________________________TERRY R. MEANSUNITED STATES DISTRICT JUDGE

TRM/lj 12


Arlington police body slam lawsuit

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