IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10588
(Summary Calendar)
EDWARD CHARLES CROCKETT,
Plaintiff-Appellant,
versus
M. A. THORNE, Officer,
Fort Worth Police Department,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(4:91CV00470)
November 17, 1995
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Edward Charles Crockett appeals from the
district court's order granting the motion of Defendant-Appellee
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
M. A. Thorne, for a summary judgment dismissing Crockett's
complaint under 42 U.S.C. § 1983. In addition, Crockett here
complains that the district court erred in denying his motions for
(1) a Spears1 hearing, (2) production and discovery,
(3) appointment of counsel, and (4) leave to amend his complaint to
add a demand for punitive damages, a demand for jury trial, and
additional defendants. Concluding that the district court erred in
granting summary judgment of dismissal, in refusing to permit
Crockett to amend his complaint to add a demand for punitive
damages, and in failing to consider his motion to add additional
defendants, we reverse in part and remand; however, we affirm the
court's denial of Crockett's motions to amend to demand a jury
trial, and for appointment of counsel. Given our reversal of the
summary judgment in favor of Thorne and remand for further
consistent proceedings, including a ruling on the motion to add
defendants, Crockett's appellate issues concerning a Spears hearing
and production and discovery of evidence are moot. Finally, we
deny Crockett's motion for appointment of appellate counsel.
I
FACTS AND PROCEEDINGS
Crockett filed a civil rights complaint against Fort Worth
Police Officer Thorne, alleging use of excessive force in arresting
Crockett. In his verified complaint, Crockett alleged the
following facts. Officer Thorne stopped Crockett and another
person on the street and asked for identification. The officer
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
then attempted to search Crockett, but he started to walk away
after the officer acknowledged that he did not have an arrest
warrant. Officer Thorne then grabbed Crockett and struck him with
a baton. Crockett managed to run away, but was apprehended by
another Fort Worth policeman, Officer Johnson, who was brandishing
his service revolver. Crockett complied with Johnson's command to
kneel and was handcuffed by Johnson. While he was thus cuffed and
kneeling, Crockett was struck by Thorne in the back of the head
with the officer's police baton, as a result of which Crockett's
head was "split open."
Crockett filed a motion for appointment of counsel, which was
denied by the district court. He also filed motions (1) for
discovery, (2) to amend his complaint, and (3) for a Spears
hearing, all of which were denied by the district court.
Officer Thorne filed a motion to dismiss or for summary
judgment, attaching his affidavit and another from Officer Johnson.
In his own affidavit, Thorne averred: He had reviewed a videotape
of an individual, later identified as Crockett, robbing a
convenience store. While patrolling the neighborhood the following
morning, Officer Thorne saw Crockett walking with a person known to
Thorne. He did not initially recognize Crockett as the individual
seen the day before on the videotape of the store robbery, but
Crockett immediately began to run from the area as Thorne
approached. Thorne yelled at Crockett to stop and called for
backup. Crockett stopped and returned to the area, whereupon he
was recognized by Officer Thorne as the individual seen on the
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videotape robbing the convenience store. Thorne again requested
backup. When the backup arrived in a police vehicle, Crockett
began to run. Thorne grabbed Crockett's left arm, told him that he
was under arrest, and ordered him to place his hands on the car.
Instead, Crockett struggled with and hit Thorne with his right fist
on the left side of Thorne's face, in response to which Thorne drew
his baton and struck Crockett three times: across the chest, on the
shoulder or arm, and on the back. Crockett continued to struggle,
eventually pulling free of his shirt and running. As Officer
Thorne gave chase, he dropped his baton and it fell under the
patrol car. He pursued Crockett around several apartments until
Crockett jumped a fence, only to be met by Officer Johnson who was
brandishing his service revolver. That allowed Thorne to jump on
Crockett's back and attempt to handcuff him. Crockett continued to
struggle, however, so Officer Johnson too grappled with Crockett,
and all three men fell to the pavement. Crockett was subdued,
handcuffed, and taken to Officer Johnson's car. Officer Thorne did
not have with him his baton or flashlight or any object that he
could have used to strike Crockett when finally apprehended.
In his affidavit, Officer Johnson averred: He received the
radio call from Officer Thorne, stating that he had a suspect on
foot and needed backup. Johnson arrived in the area and observed
Thorne chasing a black male, later identified as Crockett, so
Johnson began running along a fence in the vicinity of the chase.
Crockett jumped the fence, landing close to Officer Johnson, who
aimed his revolver at Crockett. Officer Thorne then arrived and
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attempted to handcuff Crockett, but he continued to struggle with
Thorne. Officer Johnson holstered his weapon, then grabbed
Crockett. After the three men fell to the ground, Officer Thorne
was able to handcuff Crockett. Officer Thorne did not have a baton
or a large flashlight with him at the time of the scuffle, and
Johnson never observed Thorne striking Crockett.
Crockett filed an opposition to Officer Thorne's dismissal and
summary judgment motion, reasserting that there were eyewitnesses
to the incident who would testify that they saw Thorne hit Crockett
in the head with a baton while he was on his knees and handcuffed.
He reiterated that he was hit three times with a baton by Thorne
after being subdued and cuffed.
The district court denied Thorne's motion to dismiss,
concluding that Crockett's complaint stated a claim upon which
relief could be granted, but the court reserved its judgment on
Thorne's motion for summary judgment. Crockett filed another
motion for leave to file an amended complaint to add the City of
Fort Worth and its police chief as defendants (the district court
did not address this motion prior to entering summary judgment to
dismiss this case).
Crockett filed a motion for summary judgment, again urging
that Officer Thorne had used excessive force for which Crockett is
entitled to damages. The district court denied Crockett's motion
for summary judgment after determining that he had failed to
present any evidence that would enable the court to decide that no
genuine issues of material fact remained for trial.
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The district court granted Thorne's motion for summary
judgment, ruling on the basis of the affidavits submitted that
Thorne had carried his initial burden of demonstrating the lack of
a genuine issue of fact, that Crockett had submitted no summary-
judgment evidence because he had not submitted any statement made
under oath, and that Thorne thus was entitled to judgment as a
matter of law.
II
ANALYSIS
On appeal, Crockett insists that the district court erred in
granting Thorne's motion for summary judgment. Crockett notes that
the court's order was based on the mistaken conclusion that he had
failed to submit any summary judgment evidence. In arguing again
that his witnesses would testify that they saw Thorne hitting
Crockett with the baton while he was on his knees, Crockett
correctly notes that his verified complaint meets the evidentiary
requirements for opposing summary judgment. Complaints and
other submissions to the court that are made under penalty of
perjury are considered competent summary-judgment evidence.
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.
1988). The party moving for summary judgment must "demonstrate the
absence of a genuine issue of material fact, but need not negate
the elements of the nonmovant's case." Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotations
and citation omitted).
"[A]ll claims that law enforcement officers have used
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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 . . . ." Graham v. Connor, 490 U.S. 386, 395 (1989).
Crockett's assertions in his complaint, made under penalty of
perjurySQthat he was struck three times in the head by Thorne with
his baton after Crockett had been captured and handcuffed, causing
his head to "split open"SQwere directly contrary to the facts set
forth in the affidavits submitted by Thorne and Johnson denying
that such force was used following Crockett's capture. These
contrary statements are sufficient to create a genuine issue of
material fact regarding the application of force vel non, and
reasonableness of the degree of the force, if any, used by Thorne.
The district court erred in granting summary judgment in the face
of this disputed issue of fact. See Wilson v. Ector County Jail,
No. 93-8877, slip op. at 5, (5th Cir. July 22, 1994) (unpublished;
copy attached) (plaintiff's complaint and other submissions made
under penalty of perjury that directly contradicted the affidavits
submitted by the defendants precluded the grant of summary
judgment); Johnson v. Dubroc, No. 92-3452, slip op. at 5-7 (5th
Cir. Aug. 11, 1993) (unpublished; copy attached) (inmate's
allegations, in his verified complaint, of the use of excessive
force by a prison guard were sufficient to preclude summary
judgment). We are, therefore, constrained to remand this case for
further proceedings.
Crockett contends that the district court also committed error
7
in failing to conduct a Spears hearing and in denying Crockett's
motion for discovery and production of documents. He argues that
these rulings prevented him from showing that there are genuine
issues of material fact for trial and, thus, violated his due
process rights. Given our holding that Crockett's verified
complaint was sufficient to create an issue of fact for trial and
thus avoid summary judgment, this contention is moot.
As he did in the district court, Crockett also requests that
we appoint counsel for him. He argues that the district court
erred in refusing to appoint trial counsel, insisting that his case
involves issues too complex for him to represent himself. He
contends that he cannot investigate the case and that he is not
capable of conducting direct and cross-examination of the witnesses
at trial.
The district court may appoint counsel in civil rights cases
presenting "exceptional circumstances." Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982). Factors to be considered, among
others, are the complexity of the issues and the plaintiff's
ability to represent himself adequately. Id. at 213. Crockett's
case is not factually or legally complex. Also, his pleadings
demonstrate an ability to represent himself adequately. As such,
the district court did not abuse its discretion in denying
Crockett's motions for appointment of counsel; for the same reason
we deny his motion for appointment of counsel on appeal.
Crockett asserts that the district court erred in denying
three motions to amend his complaint. After responsive pleadings
8
have been filed, leave to amend a party's pleadings "shall be
freely given when justice so requires." Fed. R. Civ. P. 15(a). A
district court's decision to grant or deny leave to amend is not
broad enough to permit denial "if [it] lacks a substantial reason
to deny leave." Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.
1985) (internal quotations and citations omitted). A pro se
petitioner should be permitted to amend his petition when it is
clear that there is a ground for relief. Gallegos v. La. Code of
Criminal Procedures Art. 658, 858 F.2d 1091, 1092 (5th Cir. 1988).
Crockett argues that the district court should have allowed
him to amend his complaint to include a punitive-damages claim
against Thorne individually. A defendant who demonstrates
"reckless or callous indifference to the federally protected rights
of others" or is "motivated by evil motive or intent" can be liable
for punitive damages under § 1983. Smith v. Wade, 461 U.S. 30, 56
(1983). Based on Crockett's allegations that Thorne used excessive
force, Crockett was entitled to seek punitive damages from Thorne.
The district court did not give reasons for denying Crockett's
motion to amend. Facially, then, the court abused its discretion
in not permitting Crockett to amend his complaint to include such
a claim.
Crockett makes the same argument regarding the court's failure
to permit him to amend his complaint to demand a jury trial.
Fed. R. Civ. P. 38(b) requires that a party demand a trial by jury
on any issue triable of right by a jury by "serving upon the other
parties a demand therefor in writing . . . not later than 10 days
9
after the service of the last pleading directed to such issue." A
party's failure timely to serve and file a demand as required by
subparagraph (b) of Rule 38 "constitutes a waiver by the party of
trial by jury." Fed. R. Civ. P. 38(d). Officer Thorne filed his
answer on August 21, 1991, yet Crockett did not file his motion to
amend to add the jury demand until October 27, 1992. Thus, the
amendment was late as a Rule 38 demand for a jury trial. Crockett
did not offer any reasons for his delay in making a jury demand in
his motion, and he has presented none on appeal. Neither has he
alleged that he was ignorant of the Rule 38 requirement that a jury
demand must be made within specified time limits. Therefore, the
district court did not abuse its discretion in denying the motion.
The district court has yet to rule on Crockett's motion to
amend to add the City of Fort Worth and its police chief as
defendants. The district court should address this motion on
remand.
III
CONCLUSION
As Crockett's complaint containing specific factual assertions
was verified, it constituted summary judgment evidence. In this
instance that evidence is sufficient to create a genuine dispute of
material fact. Therefore, summary judgment dismissing his
complaint as a matter of law is precluded. Particularly in light
of his pro se status, Crockett was entitled to amend his complaint
to assert a claim of punitive damages; the district court's refusal
to grant leave thus to amend was an abuse of discretion. We
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therefore reverse the court's summary judgment of dismissal and its
denial of Crockett's punitive damages motion to amend, remanding
this case for further proceedings consistent with these holdings.
We affirm, however, the court's refusal to appoint counsel for
Crockett, and we deny Crockett's motion for appointment of
appellate counsel as well. His complaints regarding a Spears
hearing and his motion for production and discovery are moot in
light of our reversal of the summary judgment; neither can he
prevail in his untimely attempt to obtain a civil jury trial. On
remand, however, the district court should address Crockett's
motion to amend his complaint to add parties defendant, no action
having yet been taken by the district court on that pending motion.
AFFIRMED in part, REVERSED and REMANDED in part.
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