September 29, 2006

DOMINIQUE STOKES, PLAINTIFF,

v.

LT. HENRY PORRETTO, ET AL., DEFENDANTS.







The opinion of the court was delivered by: Lee H. Rosenthal United States District Judge

MEMORANDUM AND OPINION

Dominique Stokes sued City of Galveston police officers who allegedly beat him at the City jail after he was arrested and took him to a hospital where his stomach was pumped against his wishes. Stokes also sued the doctor at the hospital who performed the medical procedure. Stokes alleges that the four officers and doctor violated and conspired to violate his substantive due process, Fourth Amendment, equal protection, and "equal privileges and immunities" rights by pumping his stomach against his will. Stokes also alleges that the officers used excessive force; that the supervisory officers failed to provide adequate supervision to prevent the constitutional violations; and that the subordinate officers are liable for failing to intervene. (Docket Entry No. 37, ¶ 27).

The police officers and the doctor have moved for summary judgment, asserting qualified immunity. (Docket Entry No. 54, 55, 56). Stokes has responded, (Docket Entry No. 57), and the defendants have replied, (Docket Entries No. 62, 70). The parties have also challenged each other's summary judgment evidence. (Docket Entry Nos. 57, 63). Based on a careful review of the motions and responses, the record, the applicable law, and oral argument from counsel, this court grants in part and denies in part the motions for summary judgment and sets a status conference for October 10, 2006, at 5:00 p.m., to establish a schedule to resolve the issues remaining in the case. The reasons for these rulings are set out below.

I. Background

Stokes alleges that Officer Michael Gray used excessive force on him at the Galveston City jail after his arrest; that Officers Clayton Pope and Michael Gray, with Sergeant Pedro Alcocer and Lieutenant Henry Porretto, used excessive force on Stokes in the emergency room; and that all four officers and Dr. John Luh were involved in pumping Stokes's stomach against his expressed wishes. The allegations and evidence relating to each set of allegations is examined below.

A. Stokes's Arrest and the Events at the Jail

On October 14, 2002, Officer Michael Gray pulled over the car Stokes was driving. Two of Stokes's friends were in the car with him. (Docket Entry No. 56, Ex. B at 8--10, 16; Ex. I, at 2). Gray instructed the two friends to leave and took Stokes into custody on four outstanding municipal arrest warrants. (Docket Entry No. 54, Ex. B at 8--12).

The summary judgment record shows that Stokes was well known to the Galveston Police Department as a drug user and dealer with a long history of arrests and convictions. Officer Gray testified that he believed that Stokes had drugs in his possession when he was arrested. (Docket Entry No. 56, Ex. B at 16, 25--26; Ex. I at 2; Ex. K at 2). Gray searched the car Stokes had been driving when arrested, but found no drugs. At the jail, Gray ordered a strip-search, instructing Stokes to strip to his underwear, pull his boxers down around his thighs, turn away from Gray, and squat.

During this search, Gray testified that he saw Stokes place his hands in the area of his buttocks. When Officer Gray ordered him to stop, Stokes allegedly replied, "I got hemorrhoids, I got hemorrhoids man." Officer Gray repeated his instruction and called out for other officers to help because Stokes refused to comply. (Docket Entry No. 56, Ex. I at 2). Officer Gray testified that while awaiting backup, he saw Stokes remove a handful of what appeared to be crack cocaine rocks from his buttocks and hold the rocks in his hand. Officer Gray attempted to get Stokes to release what he was holding by striking Stokes's hand with a police baton. The blow hit Stoke's forearm and had no effect. Officer Gray saw Stokes place what Gray believed to be crack cocaine rocks into his mouth. Officer Gray forced Stokes to the floor in an effort to prevent him from swallowing the substance. A scuffle resulted, during which Officer Gray attempted to use "open hand control and restraint techniques" to prevent Stokes from swallowing. (Id. at 5). The effort was unsuccessful. Gray believed that Stokes swallowed the cocaine rocks. (Id. at 2; Docket Entry No. 56, Ex. A at 7--8). In 2000, during one of Stokes's previous arrests by Galveston police officers, he had his stomach pumped because he had become ill and it was believed that he had swallowed the drugs that were on his person when he was arrested. (Docket Entry No. 54, Ex. B at 54--56).

Stokes testified that Gray had previously threatened to arrest Stokes on sight, but Stokes does not dispute the validity of the outstanding warrants and there is, as a matter of law, no basis to find that the arrest was unconstitutional. Stokes admitted that he had been snorting cocaine the night before, but denied that he possessed or swallowed any when he was arrested. (Docket Entry No. 56, Ex. B at 66--67). Stokes agreed that during the strip-search, Gray yelled for other officers to assist because Stokes was putting something in his mouth. (Id. at 27). According to Stokes, Officer Gray then hit Stokes with the baton, but on the head, not the forearm, and did so twice, not merely one time. (Id. at 27--28, 30, 32). Stokes testified that when Gray hit him with the baton, his hands were on his boxers, which were around his thighs, not near his buttocks or mouth. (Id.).

Stokes testified that the blows were so hard that he lost consciousness. The record shows, however, that Stokes had no breaks in his skin, no bleeding from his head or face, and that he did not report a head injury to jail or medical personnel. (Docket Entry No. 56, Ex. I, at 2; Exs. C, D, J, K, L, M, N, dd). Stokes asserts that jail personnel told him that he had a "nice sized knot" on his head. (Docket Entry No. 56, Ex. B., p. 23).

When Stokes regained consciousness, Gray was choking him and two or three unidentified officers were "twisting on [his] legs and standing on [his] ankles." (Docket Entry No. 56, Ex. B at 33). Stokes told the officers that he did not have any drugs. (Id. at 21--22, 36--38). During this time, the unidentified officers allegedly continued to twist his legs and ankles. (Id. at 22). Stokes testified that Gray referred to him as a "nigger" two or three times during this struggle. (Id. at 35). Stokes was "light-headed" from the choking. (Id.).

The officers moved Stokes to a holding cell. Stokes asserts that he heard Officer Gray tell two other white officers that "the nigger had put something in his mouth." (Id. at 23). Stokes asked for his clothing but was given only a pair of shorts. (Id. at 24).

Officer Gray testified that he notified his immediate supervisor, Sergeant Pedro Alcocer, that he believed Stokes had swallowed crack cocaine. Officer Gray also contacted Galveston County Assistant District Attorney Bill Reed, who advised that Stokes should be taken to the emergency room for medical evaluation and treatment. Sergeant Alcocer directed Gray to take Stokes to the hospital and assigned Officer Pope to assist. (Docket Entry No. 56, Ex. I at 3; Ex. K).*fn1 Officer Gray told Stokes that "we're going to take you to the hospital and pump your stomach." (Id. at 24). Stokes was taken to the University of Texas Medical Branch (UTMB) Emergency Room. (Docket Entry No. 56, Ex. A at 9, 12--13; Ex. B at 38--39). When Officer Gray told Stokes that he was being transported to the hospital for evaluation and possible treatment, Stokes told Officer Gray that he would resist any attempt to pump his stomach. Officer Gray notified Sergeant Alcocer of these statements. (Docket Entry No. 56, Ex. B at 38; Ex. I at 3; Ex. K). Sergeant Alcocer in turn relayed the reports he had received to his commander, Lieutenant Porretto, including the report of Stokes's statement that he would resist any attempt to pump his stomach. Sergeant Alcocer asked Lieutenant Porretto to meet them at the hospital. (Docket Entry No. 56, Ex. L at 2; Ex. K).

B. The Events at the Hospital

At approximately 7:30 p.m., Gray and Stokes arrived at the UTMB emergency room.

During triage, Stokes informed the nurse that he did not want to be there. In response to the nurse's inquiry as to whether he was allergic to anything, Stokes replies, "yes, ma'am, I'm allergic to everything. I can't have no medication." (Docket Entry No. 54, Ex. B at 39) Stokes later admitted that this was untrue; he was not allergic to any medication. (Id. at 54). Stokes refused to give his name or other personal information to the triage nurse. (Id. at 39). Gray removed Stokes's identification from his pocket and gave it to the nurse. (Id.). Stokes was then taken to a small room and placed in a bed behind a curtain. Officer Gray handcuffed Stokes to the hospital bed. (Docket Entry No. 54, Ex. A at 16; Ex. B at 39). A UTMB nurse connected Stokes to a heart monitor, took his vital signs, and attempted to obtain medical information from him. Stokes did not cooperate with the nurse's attempts to obtain his medical history. (Docket Entry No. 54, Ex. B at 40).

The record shows that Stokes's initial heart rate reading was 138 beats per minute (bpm) and his blood pressure was 197/100. (Docket Entry No. 54, Ex. C at 2). Dr. Luh, the resident and attending physician in charge of the hospital emergency room that night, testified that a heart rate over 100 bpm is considered tachycardia and "cause for concern." A normal blood pressure reading is approximately 120/80; any systolic reading near or over 200 and/or any diastolic reading over 100 is "alarming" because of the risk of stroke, heart attack, or endocranial bleeding. (Id.).

Stokes continued to insist that he did not want to have his stomach pumped. (Id. at 39--40). Stokes explained that he was "talking to whoever [he] needed to talk to . . . to not have [his] stomach pumped." (Id. at 40). Sergeant Alcocer approached Stokes and encouraged him to cooperate without success. (Id.). It is undisputed that Stokes struggled and flailed on the bed as medical personnel attempted to attach monitoring equipment to his chest and an IV to his arm. The officers and attending physician testified that Stokes's medical condition could not be evaluated unless he was restrained. (Docket Entry No. 56, Ex. B at 40, 42; Ex. I at 3; Exs. C, D, J, K, L; Docket Entry No. 57, Ex. A at 52-55). Medical personnel supplied the police officers with soft cloth ties to secure Stokes's arms and legs to the bed so that he could be examined and his vital signs monitored. (Docket Entry No. 56, Ex. B at 42--43, 57; Ex. I at 3; Exs. C, J, K, L). An officer removed the handcuff from Stokes's right hand and secured that hand to the side of the hospital bed with one of the cloth ties. When the second handcuff was removed, Stokes pulled his left hand and arm away from the bed rail and toward his chest while gyrating his body, making it very difficult to control him. Police officers were eventually able to tie Stokes's left hand to the bed rail with another cloth. The officers contended that they used open-hand control and restraint techniques and only as much force as necessary to secure Stokes's second hand to the bed rail. (Docket Entry No. 56, Ex. I at 3; Exs. J, K, L). Stokes contends that the officers used more force than was necessary to achieve this result. (Docket Entry No. 54; Ex. B at 57-59).

The medical staff then used vital-signs monitoring equipment. (Docket Entry No. 56, Ex. I at 4; Exs. Exs. C, D, J, K, L). After monitoring Stokes's vital signs for a time, the nurse-in-charge informed the officers that Stokes's heart rate was more than twice the normal rate and that his blood pressure was dangerously high.*fn2 Medical records show that Stokes's heart rate ranged from 108 to 150 beats per minute and his blood pressure ranged from 197/100-242/80. (Docket Entry No. 54, Ex. D at 2; Docket Entry No. 56, Exs. C, D, H, I, J, K, L).

Dr. Luh saw Stokes at approximately 7:30 p.m. (Docket Entry No. 54, Ex. D at 2). A police officer or hospital employee told Dr. Luh that Stokes had swallowed a handful of crack cocaine. (Id.). Dr. Luh testified that Stokes denied swallowing cocaine, but Dr. Luh did not believe Stoke's denial because his vital signs, demeanor, and behavior were consistent with cocaine ingestion. (Id.). Stokes's blood pressure and heart rate were elevated and rising. Dr. Luh determined that Stokes had most likely ingested crack cocaine and needed to have his stomach pumped to prevent further absorption of the drug into his blood stream. (Id.). Dr. Luh told Stokes that he needed to have his stomach pumped, and Stokes initially consented. (Id. at 2-3).

At 7:45 p.m., UTMB staff twice attempted to perform the gastric lavage. Stokes's heart rate had climbed to approximately 140-150 bpm. Stokes became verbally abusive and combative with the hospital staff, screaming at them and threatening them, and continued to thrash about on the bed. The officers attempted to restrain him, but the soft restraints were not adequate to immobilize Stokes. (Docket Entry No. 56, Ex. B at 73--74; Ex. I at 4; Exs. C, J-L). When the nurse attempted to draw blood for additional diagnostic tests, Stokes refused to allow her to do so. (Id. at 42--43; Ex. I at 4; Exs. J, K, L). The police assisted in restraining Stokes and the nurse collected a blood sample. (Docket Entry No. 56, Ex. B at 42--43; Ex. I at 4; Exs. D, J, K, L). Sergeant Alcocer moved to the head of the bed and began pressing behind Stokes's ears, trying to make Stokes swallow the tube for the lavage. The nurse instructed the officers where to apply pressure. Officer Gray stood to Stokes's right and put his fist under Stokes's chin, pushing with his knuckles to make Stokes open his mouth. (Docket Entry No. 54, Ex. B at 43--44). During the struggle, Stokes's mouth began to bleed. The nurse instructed the officers to "hold up. His mouth is bleeding, I don't know if you should keep doing this." (Id. at 45).

The parties dispute the extent of the force used to enable the nurse to administer the medical procedures. Stokes testified that Lieutenant Porretto climbed onto the bed, got on top of Stokes, and pressed his knees into Stokes's stomach and groin. Stokes testified that while Lieutenant Porretto was on top of Stokes, Sergeant Alcocer grabbed Stokes's genitals. (Docket Entry No. 56, Ex. B at 44). Sergeant Alcocer denied grabbing Stokes's genitals, stating that it was Lieutenant Porretto who did so while he was straddling Stokes. (Id. at 26--27). Officer Gray agreed that it was Lieutenant Porretto who grabbed Stokes's genitals, testifying that Porretto had reached behind while straddling Stokes and grabbed him by the testicles because Stokes had tried to "eject" Porretto. (Docket Entry No. 54, Ex. A at 15, 25; Docket Entry No. 56, Ex. 1, ¶ 12).*fn3 Porretto testified that he grabbed Stokes's genitals only because Stokes was pushing him onto the floor. (Docket Entry No. 56, Ex. B, at 60--62, 89; Ex. I at 4; Exs. C, J, K, L). Officer Pope testified that he did not see anyone grab Stokes's genitals but did hear Stokes yelling. Stokes testified that he did not see Porretto grab his genitals, but acknowledged that it was possible. (Id. at 61-63).

According to Stokes, when Lieutenant Porretto got off him, Officer Pope grabbed Stokes's fingers and began to bend the entire hand back as another officer held Stokes's other hand. (Docket Entry No. 54, Ex. B at 44). Officer Pope testified that he may have inadvertently grabbed Stokes's fingers but denied any deliberate or forcible bending of the hand. (Docket Entry No. 54, Ex. F at 17--18).

At 8:15 p.m., hospital staff made another attempt to perform the gastric lavage. At that time, Stokes's heart rate was between 129 and 139 bpm and his blood pressure had risen to 203/75. Stokes continued to resist, physically and verbally. The nurse told the officers that there was a type of medicine that would briefly put Stokes to sleep and immobilize him so that the procedure could easily be done. (Id.). Dr. Luh reentered the room at this time. He discussed the procedure with Stokes, stressing the importance of preventing the absorption of any more cocaine into his system. (Docket Entry No. 56, Ex. C at 5). Stokes did not consent. Dr. Luh then left the room. (Docket Entry No. 56, Ex. D at 3). At some point, Lieutenant Porretto told Dr. Luh that because of Stokes's arrest status and irrational behavior, the City was responsible for making any decisions about his emergency medical needs. (Id. at 11--12; Docket Entry No. 56, Ex. I at 4).

Shortly before 8:40 p.m., Stokes's vital signs had not improved. Dr. Luh testified that he believed that Stokes could die unless the lavage was performed. (Docket Entry No. 54, Ex. D at 4). Dr. Luh stepped out of the room and informed the police of the growing urgency of the need to treat Stokes for cocaine ingestion. After a brief discussion, Lieutenant Porretto told Dr. Luh that if the doctor did not perform the gastric lavage, the police would arrest him and take him to jail. (Id. at 4; Ex. E at 17). Lieutenant Porretto told Dr. Luh that he would sign any documents necessary to show that he had authorized the medical care on Stokes's behalf and indicated that the other officers would sign as witnesses. (Docket Entry No. 56 at 12; Ex. I at 5).

According to the medical records, Stokes again refused the gastric lavage at 8:40 p.m. and continued to yell and struggle. Medical personnel told Stokes that he would be given a paralytic drug if he continued to resist. (Docket Entry No. 56, Ex. B at 45--46; Ex. I, at 5; Exs. C--D, H, J--L). Lieutenant Porretto gave the order to intubate Stokes and pump his stomach. (Id.).*fn4 When Stokes continued to struggle, Dr. Luh administered Versed, a sedative. Shortly after the Versed took effect, Stokes was administered succinylcholine, a paralytic, to permit the hospital staff to insert the tube and perform the gastric lavage. (Docket Entry No. 54, Ex. D at 4). Stokes was sedated and paralyzed for approximately ten minutes during the procedure and was fully awake and alert by 9:00 p.m. (Docket Entry No. 54, Ex. C at 6). Dr. Luh confirmed that Stokes was administered 100 mg of succinycholine and intubated from 8:45 p.m. to 8:50 p.m., although the nurses' notes indicate that Stokes was intubated from 8:50 p.m. to 9:10 p.m. Dr. Luh testified that he did not know which entry was correct. (Id. at 30, 32--36). Dr. Luh testified that Stokes was paralyzed for a total of six minutes. (Id. at 13--14).

The most prominent side effects of succinycholine are temporarily elevated potassium, headaches, blurred vision, and disorientation. (Id. at 14--15). While Stokes was recovering from the procedure, he was approached by Rachel Washington, a former neighbor who worked for the Texas Department of Criminal Justice. Washington asked Stokes whether he was all right and whether he wanted her to call his relatives. (Docket Entry No. 57, Ex. K, at 8, 16--17). In her deposition, Washington testified that Stokes was sweating and that there were no medical personnel in the room at the time, although a police officer was present. (Id. at 17). Stokes gave his grandmother's telephone number to Washington, and she left the room. (Id. at 18--19).