Graham v. Dall. Area Rapid Transit (288 F. Supp. 3d 711, 2017)

Sam A. Lindsay, United States District Judge

MEMORANDUM OPINION AND ORDER

Before the court is Defendants' Motion for Summary Judgment (Doc. 15), filed January 19, 2016. After considering the motion, response, reply, appendixes, record, and applicable law, and for the reasons that follow, the court grants in part and denies in part Defendants' Motion for Summary Judgment (Doc. 15).

I. Factual and Procedural Background

This is a civil rights action arising out of an encounter between Plaintiff Terry Graham, Jr. ("Plaintiff" or "Graham") and two Dallas Area Rapid Transit ("DART") officers, Defendants Fernando Ibarra, Jr. ("Ibarra") and Jeanne Jones ("Jones") (sometimes collectively, the "Officers"). On the afternoon of May 11, 2013, Graham left a shopping mall and boarded a DART bus in downtown Dallas, Texas. Graham had not consumed any alcohol that day. While on the bus, he witnessed a man in a gray shirt strike a woman at a bus stop and then run away from the bus toward a McDonald's restaurant near the federal building in downtown Dallas.

At approximately 4:30 p.m. that same afternoon, Ibarra and Jones responded to a DART police dispatch regarding the assault Graham had witnessed. The dispatch reported that a black male had hit a female with an unknown object and thereafter may have boarded a DART bus. The dispatch described the suspect as wearing a gray shirt and blue jeans, although a later dispatch stated that the suspect may have changed his shirt. As Ibarra and Jones boarded the bus, they walked toward the back where Graham, wearing blue jeans and a light-colored shirt, was sitting. As the Officers approached Graham, Ibarra unholstered his department approved firearm and kept it at his side. He asked Graham for identification. In response, Graham stated: "I am not the guy you are looking for." Pl.'s Summ. J. App. 71. Graham did not use any profanities in response to Ibarra's questions. Id. Other passengers on the bus also informed the Officers that Graham was not the individual who had committed the assault. Id.

Ibarra states that at this point in the encounter he noticed that Graham smelled like alcohol and observed that he had bloodshot eyes and slurred speech. Defs.' Summ. J. App. 26. Ibarra directed Graham to place his hands behind his back, and Jones handcuffed him. Id. at 18, 26. Ibarra removed Graham from the bus for further questioning. Officer Ibarra then advised Graham he was not a suspect in the assault but was "being arrested for public intoxication due to him being an obvious danger to himself and others." Id. at 19. Ibarra and Jones then escorted a handcuffed Graham toward a DART patrol car.

With respect to the ensuing events, the parties have provided the court with a videotape that appears to have been taken by a dash-mounted camera on another patrol car. See id. at 33; Pl.'s Summ. J. App. 70. Each party represents to the court that the videotape supports his or her version of the facts. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In Scott v. Harris, the Supreme Court reversed an Eleventh Circuit decision to uphold a denial of summary judgment where a videotape captured the events in dispute and the deposition testimony contradicted the videotape. "Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape." Id.

The court has viewed the videotape numerous times. Unlike the videotape in Scott v. Harris , unless the parties have an enhanced version of the videotape or specialized equipment for viewing the videotape that the court does not have, the court is unable to substantiate either party's version of the events that unfolded as the Officers led Graham toward the patrol car, except as herein described. The videotape is grainy, unclear, and an extremely bright glare on the lens obscures what transpires between the Officers and Graham. The audio portion is garbled and incomprehensible. The videotape, however, shows that Jones did not participate in the use of force as Graham was about to be put into the patrol car and during the ensuing struggle between him and Ibarra. The videotape clearly shows Jones standing by as Ibarra used force. Other than Jones's lack of participation, as the disputed events are too obfuscated to provide support for either the Officers' or Graham's version of the events, the videotape is of little utility to the court. Accordingly, the court will consider it only in assessing the lack of Jones's use of force during the struggle between Ibarra and Graham that occurred near the back door of the patrol car. Further, and as set out more fully below in its discussion of the parties' evidence, to the extent Defendants' retained and nonretained experts rely on their viewing of the videotape to support their opinions, the court will not consider this testimony, as it is inherently unreliable.

According to Defendants' version of the ensuing events, as Ibarra escorted Graham toward the back seat of the patrol car, Graham stepped onto the door sill and pushed back with force, causing him and Ibarra to lose balance and fall onto the concrete sidewalk. Graham kept kicking while on the sidewalk, striking Jones with his legs and injuring her, and biting Ibarra on the hand. Ibarra, believing Graham to be a danger to himself and others, deployed his Oleoresin Capsicum Spray ("OC Spray"). See Defs.' Summ. J. Br. 2. In support of their version, the Officers rely on their statements and incident reports, their deposition testimony, the report of Officer Roy Wilt with the Office of Professional Standards ("OPS"), the Affidavit of DART's Chief of Police James D. Spiller, the report of Defendants' retained expert, Albert Ortiz, and Graham's own deposition testimony admitting to repeatedly kicking his legs while he was on the sidewalk. Defs.' Summ. J. App. 3-17, 19, 21-22, 27-32, 34-36, 69-70, 124-25, 150, 193-204.

According to Graham's version, once near the patrol car, the Officers, without justification, slammed him to the ground, and severely beat, struck and injured him, even though he did not resist, hit, strike, attempt to flee, bite, or in any way pose a threat to the Officers. While Graham concedes he was kicking his legs after he was on the ground, he contends that Ibarra had his knee on Graham's neck, and provides evidence that his kicking "stem[s] from [him] flailing his legs as Ibarra choked the life out of him." Pl.'s Summ. J. Resp. Br. 9. In support of his version, Graham relies on the emergency room records from Parkland Hospital showing extensive facial injuries (Pl.'s Summ. J. App. 1-65), his own affidavit submitted in support of his response to the motion for summary judgment (id. at 71), as well as his deposition testimony where he states that Ibarra had his knee on his neck and he was kicking his legs because Ibarra "was choking the hell out of [him]." Id. at 75-76. In support of his contention that he never bit Ibarra, Graham points out that the incident report completed by Ibarra at 4:32 p.m. on May 11, 2013, shortly after the incident, does not list Ibarra as a victim or contain any reference to him being injured during the encounter with Graham. Id. at 68-69.

Dallas Emergency Medical Services ("EMS") was called to treat Graham for injuries at the scene, including for the effects of the OC Spray. Graham was then transported to the Dallas County Jail, but his injuries were severe enough that it would not accept him. Graham was then transported to Parkland Hospital for medical treatment of his injuries. The emergency room records show that in addition to burning eyes caused by the OC Spray, Graham suffered a two-centimeter laceration under his left eye, swelling of the left cheek, a left medial nasal fracture, bruising all over his face, and a small laceration to his inner lower lip. Id. at 7, 10. The emergency room records make no mention of alcohol, the smell of alcohol, or Graham's alleged intoxication. Once discharged the following day, May 12, 2014, Graham was transported back to the Dallas County Jail where he was booked for assault of a public servant under cause number F13-16626. Defs.' Summ. J. App. 31-32.

On May 20, 2013, Graham filed a complaint with the DART Police Department's OPS against Ibarra for using excessive force during his arrest. Roy Wilt, who was assigned to the OPS, conducted an Internal Affairs investigation and found that DART Police policy violations were not committed and concluded that "Officer Ibarra used only the amount of force necessary." Id. at 8.

On November 1, 2013, a Dallas County Grand Jury indicted Graham for assault of a public servant in cause number F13-16626. Ultimately, cause number F13-16626 was dismissed by the Dallas County District Attorney's Office. The Officers did not testify before the grand jury on the felony charge against Graham.

On December 16, 2014, Graham brought this lawsuit against DART, Ibarra, and Jones, pursuant to 42 U.S.C. § 1983 for alleged violations of his First, Fourth, and Fifth Amendment rights. Specifically, he brings claims against the Officers under the Fourth Amendment for "false arrest and/or false imprisonment," unlawful detention or seizure, and malicious prosecution. Compl. ¶¶ 24, 29-31. Graham also contends the Officers violated his Fourth Amendment rights by using clearly excessive force after he was already handcuffed and under arrest, causing him bodily injury, and by failing to intervene to protect him from harm. Id. ¶¶ 21-23. Although not entirely clear, in addition to the Fourth Amendment, Graham appears to be alleging that the Officers violated his First Amendment right to free speech in connection with their alleged use of excessive force, "in light of such force being in response to First Amendment speech alone[.]" Id. ¶ 21(a). Further, Graham sues Defendant DART pursuant to section 1983, alleging it has a custom, policy, or practice of allowing its officers to engage in excessive force and make arrests without probable cause, and that it failed to adequately train its officers in the use of force. Id. ¶¶ 26-27. In addition to his federal claims under section 1983, Graham brings state law tort claims against Ibarra and Jones for intentional infliction of emotional distress ("IIED"), false arrest and false imprisonment, and assault and battery. Id. ¶¶ 32-39. Graham seeks compensatory damages against Defendants, jointly and severally, punitive damages against the Officers, as well as attorney's fees, prejudgment and postjudgment interest, and costs.

II. Legal Standard

Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ;

Celotex Corp. v. Catrett , 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Ragas v. Tennessee Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc. , 402 F.3d 536, 540 (5th Cir. 2005). Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; Anderson , 477 U.S. at 254-55, 106 S.Ct. 2505.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, "if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). "[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine [dispute] for trial.' " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler , 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir. 1994).

The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas , 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id. ; see also Skotak v. Tenneco Resins, Inc. , 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex , 477 U.S. at 322-23, 106 S.Ct. 2548.

III. Analysis

A. Section 1983 Claims Against DART

A governmental entity can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right.

Board of the Cty. Comm'rs of Bryan Cty. v. Brown , 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ; Monell v. New York City Dep't of Soc. Servs. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id. ; see also Baskin v. Parker , 602 F.2d 1205, 1208 (5th Cir. 1979). DART has been recognized as a municipal entity subject to suit under 42 U.S.C. § 1983. See Craig v. Dallas Area Rapid Transit , 504 Fed.Appx. 328, 334 (5th Cir. 2012) ; see also Williams v. Dallas Area Rapid Transit , 242 F.3d 315, 319-20 (5th Cir. 2001) (holding that DART is a municipal entity rather than an arm of the state).

For purposes of section 1983, official policy is defined as:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by [DART's] lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of [DART] officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents [DART] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of [DART] or to an official to whom that body had delegated policy-making authority.

Webster v. City of Houston , 735 F.2d 838, 841 (5th Cir. 1984) (en banc ); Bennett v. City of Slidell , 735 F.2d 861, 862 (5th Cir. 1984) (en banc ). A plaintiff must identify the policy, connect the policy to the governmental entity itself, and show that his injury was incurred because of the application of that specific policy. Bennett v. City of Slidell , 728 F.2d 762, 767 (5th Cir. 1984). A plaintiff must establish that the governmental entity through its deliberate conduct was the "moving force behind the injury alleged" and must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Bryan County v. Brown, 520 U.S. at 404, 117 S.Ct. 1382.

Liability must rest on official policy, meaning the governmental entity's policy, and not the policy of an individual official. Bennett , 728 F.2d at 769. The official complained of must possess

[f]inal authority to establish [DART] policy with respect to the action ordered.... The official must also be responsible for establishing final government policy respecting such activity before [DART] can be held liable.... [W]hether an official had final policymaking authority is a question of state law.

Pembaur v. City of Cincinnati , 475 U.S. 469, 481-82, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee, agency, or board and cannot review the action or decision of the employee, agency or board. See City of St. Louis v. Praprotnik , 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) ; Worsham v. City of Pasadena , 881 F.2d 1336, 1340-41 (5th Cir. 1989).

The policy or custom relied upon to establish liability may include the inaction of official policymakers but only when such inaction constitutes "deliberate indifference" to the rights of the plaintiff, and such indifference is a "closely related" cause of the plaintiff's injuries.

City of Canton v. Harris , 489 U.S. 378, 388, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The failure or inaction regarding the discipline, supervision, or training of municipal employees "must amount to an intentional choice, not merely an unintentionally negligent oversight." Rhyne v. Henderson Cty. , 973 F.2d 386, 392 (5th Cir. 1992) (citing City of Canton , 489 U.S. at 390, 109 S.Ct. 1197 ).

The type and quantum of proof a plaintiff must offer to establish deliberate indifference vary, however, with the type of inaction alleged and with the identity of the wrongdoer. When the wrongdoer is a policymaking official, a single act will suffice, if deliberate indifference and causation are established. See, e.g. , Pembaur , 475 U.S. at 481, 106 S.Ct. 1292 ("[W]here action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly."). When the challenge relates to a custom of behavior among nonpolicymaking employees, which may be contrary to official policy, the plaintiff cannot rely on a single instance of unconstitutional conduct, but must demonstrate "at least a pattern of similar incidents in which the citizens were injured ... to establish the official policy requisite to municipal liability under section 1983." Snyder v. Trepagnier , 142 F.3d 791, 798 (5th Cir. 1998) (internal quotations and citations omitted). Isolated violations are not persistent, often repeated constant violations that constitute custom or policy. Bennett , 728 F.2d at 768 n.3. In such "custom" cases, "where the violations are flagrant or severe, the fact finder will likely require a shorter pattern of the conduct to be satisfied that diligent governing body members would necessarily have learned of the objectionable practice and acceded to its continuation." Id. at 768.

Graham contends that DART is liable under section 1983 because it had a policy or custom that led to the alleged violations of his constitutional rights. He alleges DART "sanctioned the custom, practice and/or policy or procedure of illegal seizures, excessive force and/or violating [the] right[ ] to be free of unwanton [sic] seizure." Pl.'s Compl. § 26. According to Plaintiff's pleadings, "Ibarra and Jones's actions were a customary practice and/or policy or procedure that was sanctioned by DART" and such actions deprived him of his civil rights. Graham further alleges that, although assaults, beatings, and injury to citizens by DART police officers were not a policy or custom that was officially adopted by DART, the practice was so common and well-settled that it constitutes an official policy or custom, and DART had constructive knowledge of the "unspoken policy." Id. Graham also contends that DART is liable under section 1983 for its failure to adequately train its police officers.

In support of its motion for summary judgment, DART argues that it has adequate policies and procedures that ensure fair and humane treatment of all persons in its custody, as shown by the DART Police Department's Code of Conduct, which provides:

All officers shall protect the rights of any person held in custody and no officer shall verbally abuse or use unnecessary force or violence against any such person.

No officer shall willfully mistreat or give inhumane treatment to any person held in custody.

Officers shall use only the reasonable amount of force necessary in effecting an arrest and maintaining custody of prisoners.

Defs.' Summ. J. App. 45-46. DART contends that Graham has failed to come forward with any evidence or identify: "an official DART policy or custom"; a DART policymaker with final DART policymaking authority; or that the alleged official policy or custom of DART was the moving force of the alleged constitutional violations; or a pattern or practice of DART of constitutional violations sufficient to establish a persistent widespread practice of DART "that is so common and well settled as to constitute a custom that fairly represents governmental policy." Defs.' Summ. J. Br. 7. In addition, DART contends there is no evidence that it sanctioned or ratified any policy or custom about which Graham complains. Finally, DART contends that the evidence establishes that Ibarra and Jones meet the legal minimum training requirements for police officers in Texas, including successfully completing the Basic Peace Officer training requirements of the Texas Commission on Law Enforcement ("TCOLE"), and that Graham has failed to show that their training was inadequate. Id. at 20 ("Graham has presented no evidence DART's training requirements for police officers fail to meet minimum state standards or that the training from the N. Central Texas Regional Police Academy was somehow deficient or inadequate and there is no genuine [dispute] of material fact on this claim.").

The court recognizes that this litigation is at the summary judgment stage; however, before the court considers the summary judgment evidence, a plaintiff must have sufficiently pleaded a claim against a party. Plaintiff's Complaint fails to allege sufficiently that a policy of custom of DART was a moving force behind his alleged injury, much less produce competent summary judgment evidence to establish that he was injured as a result of an unconstitutional policy of DART. To defeat "a motion to dismiss, a complaint's 'description of a policy or custom and its relationship to the underlying constitutional violation ... cannot be conclusory; it must contain specific facts.' " Balle v. Nueces Cty., Tex. , 690 Fed.Appx. 847, 852 (5th Cir. 2017) (quoting Spiller v. City of Tex. City, Police Dep't , 130 F.3d 162, 167 (5th Cir. 1997) ). In other words, the pleadings are adequate with respect to a section 1983 claim against a municipality when they set forth "specific factual allegations that allow a court to reasonably infer that a policy or practice exists and that the alleged policy of practice was the moving force" for the constitutional violation asserted. Id. (citation omitted). Graham has not even met this low pleading threshold, as his pleadings are entirely conclusory, which alone constitutes a basis for dismissal of his claims against DART.

In any event, in his response, Graham fails to address his section 1983 claim against DART, much less respond to any of DART's arguments in support of its motion for summary judgment. Although Graham's failure to respond to DART's arguments in support of summary judgment does not permit the court to enter a "default" summary judgment on his section 1983 claims against DART, the court is permitted to accept DART's evidence as undisputed. Bookman v. Shubzda , 945 F.Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.). Further, "a summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence." Id. (citing Solo Serve Corp. v. Westowne Associates , 929 F.2d 160, 165 (5th Cir. 1991) ); see also Larry v. White , 929 F.2d 206, 211 n.12 (5th Cir. 1991) ("Unsworn pleadings, memoranda, or the like are not, of course, competent summary judgment evidence."). As Graham's Complaint is not verified, the court may not consider it in determining whether he has raised a genuine dispute of material fact.

Having considered the summary judgment evidence provided by DART, and pursuant to Federal Rule of Civil Procedure 56(e), DART's motion for summary judgment must be granted because Graham has failed to provide even a scintilla of evidence to support his claims against DART. By not responding to DART's arguments and submitting any evidence in support of his section 1983 claims against DART, Graham has failed to raise a genuine dispute of material fact as to DART's contentions and undisputed evidence supporting its motion for summary judgment, and DART is entitled to judgment as a matter of law. Accordingly, the court will grant DART's motion for summary judgment and enter judgment in DART's favor regarding Graham's section 1983 claims against it.

Alternatively, the court concludes that Graham has abandoned or waived his section 1983 claims against DART. When a party fails to pursue a claim or defense beyond the party's initial complaint, the claim is deemed abandoned or waived. Black v. Panola Sch. Dist. , 461 F.3d 584, 588 n.1 (5th Cir. 2006) (plaintiff abandoned claim when she failed to defend claim in response to motion to dismiss); Keenan v. Tejeda , 290 F.3d 252, 262 (5th Cir. 2002) (noting that "an issue raised in the complaint but ignored at summary judgment may be deemed waived[ ]") (citation omitted). As Graham failed to pursue his section 1983 claims against DART, they are no longer before the court, and he has abandoned or waived them. Accordingly, in addition to the reasons set forth previously, Graham's abandonment or waiver constitutes an alternative ground for granting summary judgment in DART's favor.

B. Claims Under Section 1983 Against Ibarra and Jones

Graham alleges Ibarra and Jones violated his right to be free from unreasonable seizure under the Fourth Amendment by: (i) unlawfully detaining him; (ii) arresting him without probable cause; (iii) using excessive and unreasonable force during his arrest; and (iv) maliciously prosecuting him for assault on a police officer.

The Officers contend they are entitled to summary judgment based on qualified immunity with respect to these claims. In support, the Officers rely on the evidence submitted in the appendix to their motion, which includes the Affidavit of Albert Ortiz ("Ortiz Affidavit"), their retained expert, as well as his "Expert Opinion Report" ("expert report"), and the Affidavit of James Spiller ("Spiller Affidavit"), a nonretained expert.

Rule 702 of the Federal Rules of Evidence provides guidance on the admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

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

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

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

The Supreme Court has held that Rule 702 requires the district court to act as a "gatekeeper" to ensure that "any and all scientific evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Further, the Court clarified that the Daubert gatekeeping function applies to all forms of expert testimony, not just scientific. Kumho Tire Company v. Carmichael 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The district court fulfills its role as gatekeeper by screening the proposed evidence and evaluating it in light of the specific circumstances of the case to ensure that it is reliable and sufficiently relevant to assist the jury in resolving the factual disputes. Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. The Fifth Circuit on more than one occasion has reminded district courts of their important gatekeeping functions. See Carlson v. Bioremedi Therapeutic Sys., Inc. , 822 F.3d 194, 199 (5th Cir. 2016) ; In re Air Crash Disaster at New Orleans, La. , 795 F.2d 1230, 1233 (5th Cir. 1986) ("Our point is that the ultimate issue in such cases can too easily become whatever an expert witness says it is, and trial courts must be wary lest the expert become nothing more than an advocate of policy before the jury. Stated more directly, the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument.").

As part of its obligation as a gatekeeper, prior to analyzing the parties' arguments on summary judgment, the court first addresses whether Ortiz's and Spillers's respective opinions meet the requirements for expert testimony under Rule 702, Daubert , and Kuhmo Tire .

1. Expert Testimony

On November 4, 2015, Defendants filed their expert disclosures under Federal Rule of Civil Procedure 26(a)(2). Defs.' FRCP 26(a)(2) Expert Disclosures (Doc. 14). Defendants listed Albert Ortiz, Police Consultant, as a retained expert, and stated that the subject of his testimony would be:

on DART and the DART Police Department's policy and practice in reference to the investigation of criminal offenses, probable cause, arrest procedures, reasonable use of force, law enforcement training and how officers in the same or similar circumstances as Officer J. Jones and F. Ibarra could have reasonably acted and responded to the circumstances involving Graham.

Defs.' Expert Discl. 1. Defendants also listed DART Police Chief James D. Spiller as a nonretained expert. Id.

In support of their Motion for Summary Judgment, Defendants rely heavily on Ortiz's Affidavit and expert report. See Defs.' Summ. J. App. 193-204. In his expert report, Ortiz opines, among other things, that: "[a]ny officer in the same or similar circumstances as Defendant Officers could reasonably believe probable cause existed to believe Graham was in violation of Texas Penal Code Section 42.01, Disorderly Conduct (Language)"; that "[a]ny officer in the same or similar circumstances as Defendant Officers could reasonably believe probable cause existed to believe Graham was intoxicated in a public place and a danger to himself or others and the Officers could have acted in the same or similar manner as the Defendant Officers in taking him into custody[ ]"; that "the Defendant Officers' use of force was reasonable, necessary, and only the level of force necessary to accomplish a legitimate police objective and overcome Graham's violent resistance[ ]"; that "any officer in the same or similar circumstances as Officers Jones and Ibarra could reasonably believe that [his or her] use of force was reasonable, necessary, and only the level needed and could have acted in the same or similar manner as Officers Jones and Ibarra[ ]"; and that "the totality of the circumstances, including the video of the incident and the conduct of Graham, could lead any officer in the same or similar circumstances to believe probable cause existed to arrest Graham for Assault on a Public Servant[.]" Defs.' Summ. J. App. 201-04.

The court does not doubt that, as a former police chief, Ortiz would be qualified as an expert in the matters before the court. The court, however, questions the reliability and helpfulness of Ortiz's opinions with respect to the analysis of the Officers' motion for summary judgment based on qualified immunity. First, Ortiz does not take into account Graham's version of the events but instead assumes that the Officers' account is true. Otherwise stated, he accepts, carte blanche , the Officers' version of the facts while labeling Graham's version of the events as merely "allegations" or "claims," which implies his version is open to challenge, debate, or doubt. On summary judgment, however, the court must view all facts in the light most favorable to Graham, the nonmoving party. Boudreaux , 402 F.3d at 540. As Ortiz takes a one-sided approach, his opinions are of little utility to the court at this juncture.

Second, Ortiz's report is riddled with legal conclusions concerning probable cause and the use of force. He fails to preface his conclusions with the legal standards for probable cause and use of force. He does not address whether he had sufficient facts to reach his conclusions or discuss procedures or methodologies in the area of policing, including those employed in the course of making a lawful arrest or in determining whether the use of force was excessive on a continuum of force.

Third, Ortiz cites to the videotape submitted by DART as part of the basis for his opinions that the Officers' use of force was reasonable, necessary, and only the level of force necessary to accomplish a legitimate police objective and overcome Graham's resistance, and that any officer in the same or similar circumstances as Jones and Ibarra could reasonably believe that his or her use of force was reasonable, necessary, and only the level needed and could have acted in the same or similar manner as Jones and Ibarra. See Defs.' Summ. J. App. 203-04. As stated previously, absent an enhanced version of the videotape or special viewing equipment, neither of which the court has been provided, the videotape is too unclear to substantiate either party's version of the events, and is only helpful to the court insofar as it is able to see on the videotape that Jones did not participate in the use of force during Ibarra's arrest for public intoxication. Insofar as Ortiz's opinions are premised on the videotape, the court finds that they are inherently unreliable under Rule 702 and Daubert , and will not be considered in evaluating whether the Officers are entitled to summary judgment based on qualified immunity with respect to Graham's excessive force claim.

Spiller, in his Affidavit, holds many of the same opinions as does Ortiz with respect to the legality of the Officers' conduct. See Defs.' Summ. J. App. 34-37. Spiller's Affidavit, however, suffers from many of the same problems as Ortiz's Affidavit and expert report. Like Ortiz, Spiller's opinions are premised on his acceptance of the Officers' version of the facts, and not Graham's. As already noted, this alone renders the opinion unreliable and unhelpful to the court when confronted with a factual dispute on summary judgment. Further, like Ortiz, Spiller cites to the videotape as a basis for his opinions regarding the legality of the Officers' conduct. Id. at 36-37. Once again, the videotape is too unclear to substantiate either side's account of the encounter, except for Jones's lack of participation in the scuffle. Any opinion formed from viewing the videotape is inherently unreliable and will not be considered by the court.

Finally, Ortiz and Spiller rely almost entirely on their years of experience as police officers to form their respective opinions. The advisory committee notes to the 2000 amendments to Rule 702 of the Federal Rules of Evidence ("Notes") state, "Nothing in this amendment is intended to suggest that experience alone-or experience in conjunction with other knowledge, skill, training or education-may not provide a sufficient foundation for expert testimony"; however, the Notes further provide:

If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply "taking the expert's word for it."

Fed. R. Evid. 702 advisory committee's note, 2000 (citation omitted); see also Pipitone v. Biomatrix , 288 F.3d 239, 245-47 (5th Cir. 2002) (finding expert testimony reliable when the expert explained how his experience in the field led him to opine that an absence of contamination of some samples did not undermine his conclusion that the plaintiff's infection came from the same drug). Here, Ortiz and Spiller are relying primarily, if not exclusively, on experience, to form their respective conclusions as to the legality of the Officers' actions, but each fails to articulate how that experience leads to his conclusion, why that experience is a sufficient basis for the conclusion reached, and how that experience is reliably applied to the facts of the case.

In short, the court determines that Defendants have not met their burden of showing that Ortiz's or Spiller's expert testimony is reliable and relevant under Rule 702, Daubert , supra , and Kuhmo Tire, supra , insofar as it is being offered to opine as to the legality and appropriateness of the Officers' conduct in detaining and arresting Graham, and the use of force against him by Ibarra. The court, therefore, will not consider their opinions and conclusions in this regard with respect to analyzing the factual disputes presented.

2. Qualified Immunity Standard

Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo , 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Defendants Jones and Ibarra have asserted this defense. See Defs.' Ans. 5, ¶ 4 (Doc. 6).

In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme Court initially set forth a mandatory two-part inquiry for determining whether a government official was entitled to qualified immunity. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under Saucier , a court must determine first whether the facts alleged or shown are sufficient to make out a violation of a constitutional or federal statutory right. If the record sets forth or establishes no violation, no further inquiry is necessary. On the other hand, if the plaintiff sufficiently pleads or establishes that a violation could be made out, the court must determine whether the right at issue was clearly established at the time of the government official's alleged misconduct. Id. The Court relaxed this mandatory sequence in Pearson v. Callahan , 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), and stated, "[W]hile the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory," and judges "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236, 129 S.Ct. 808. The second prong of the test "is better understood as two separate inquiries: whether the allegedly violated constitutional right[ ] [was] clearly established at the time of the incident; and if so, whether the conduct of the defendant[ ] [official] was objectively unreasonable in light of that then clearly established law." Hanks v. Rogers , 853 F.3d 738, 744 (5th Cir. 2017) (quoting Tarver v. City of Edna , 410 F.3d 745, 750 (5th Cir. 2005) (internal quotation marks and citations omitted)); see also Evans v. Ball , 168 F.3d 856, 860 (5th Cir. 1999) ; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998) ; Eugene v. Alief Indep. Sch. Dist. , 65 F.3d 1299, 1305 (5th Cir. 1995).

Ordinarily, one who pleads an affirmative defense must establish his entitlement to such defense. In the context of qualified immunity, however, this burden varies from the norm. In this circuit, the rule is as follows:

Where ... [a] defendant pleads qualified immunity and shows he is a governmental official whose position involves the exercise of discretion, the plaintiff then has the burden to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law. We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.

Pierce v. Smith , 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted); see also Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010).

A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ; Foster v. City of Lake Jackson , 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson v. Creighton , 483 U.S. at 640, 107 S.Ct. 3034 ; Stefanoff v. Hays County , 154 F.3d 523, 525 (5th Cir. 1998) ; and Pierce v. Smith , 117 F.3d at 871.

In Anderson , 483 U.S. at 641, 107 S.Ct. 3034, the Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether the conduct is legal], immunity should be recognized." Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ; Gibson v. Rich , 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman , 33 F.3d 472, 477 (5th Cir. 1994) ). Qualified immunity is designed to protect from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs , 475 U.S. at 341, 106 S.Ct. 1092. Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster , 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson , 483 U.S. at 640, 107 S.Ct. 3034. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances. " Pierce v. Smith , 117 F.3d at 882 (emphasis in original and citation omitted); and Stefanoff v. Hays County , 154 F.3d at 525. Stated differently, while the law does not require a case directly on point, "existing precedent must have placed the statutory or constitutional question beyond debate."

Ashcroft v. Al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citations omitted).

In analyzing qualified immunity claims, the Supreme Court has "repeatedly told courts ... to not define clearly established law at a high level of generality." Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citation omitted). Pursuant to Mullenix , courts must consider "whether the violative nature of particular conduct is clearly established" and must undertake this inquiry "in light of the specific context of the case, not as a broad general proposition." Id. (citations and internal quotations marks omitted).

3. Unlawful Detention and False Arrest Claims

Graham contends that, in violation of his Fourth Amendment rights, the Officers unlawfully detained him and subsequently arrested him on charges of public intoxication and assault on a peace officer without probable cause to believe that he committed a crime. The Officers move for summary judgment based on qualified immunity.

a. Unlawful Detention

The Fourth Amendment provides, in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." U.S. Const. amend. IV. "When [ ] officers detain[ ] [an individual] for the purpose of requiring him to identify himself, they perform[ ] a seizure of the person subject to the Fourth Amendment." Brown v. Texas , 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Under the Fourth Amendment, "[p]olice officers may briefly detain individuals on the street, even though there is no probable cause to arrest them, if they have a reasonable suspicion that criminal activity is afoot." United States v. Michelletti , 13 F.3d 838, 840 (5th Cir. 1994). Reasonable suspicion exists if there are "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [a detention]." Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whether reasonable suspicion exists is an objective inquiry that turns on whether "the circumstances, viewed objectively, justify [the challenged] action." Al-Kidd , 563 U.S. at 735, 131 S.Ct. 2074 (quoting Scott v. United States , 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) ). Thus, "[t]he Fourth Amendment requires only some minimum level of objective justification for the officers' actions-but more than a hunch-measured in light of the totality of the circumstances, considering the facts available to the officer at the time of the detention." Allen v. Cisneros , 815 F.3d 239, 245 (5th Cir. 2016) (per curiam) (citations omitted).

Having considered the evidence in the light most favorable to Graham, the nonmoving party, as set forth directly below, the court determines that while the Officers are entitled to qualified immunity for initially stopping Graham and requesting identification, the summary judgment record is sufficient to raise a genuine dispute of material fact as to the Officers' entitlement to qualified immunity for subsequently detaining him for disorderly conduct after they informed him he was no longer a suspect in the assault.

i. The Initial Stop

Jones and Ibarra are entitled to qualified immunity for their decision to stop Graham and question him if a reasonable officer could have had a "reasonable suspicion, based on objective facts, that [he was] involved in criminal activity." Brown , 443 U.S. at 51, 99 S.Ct. 2637. The Officers' deposition testimony on this issue is consistent. They testified that, while on duty, they learned from a DART dispatch that a black male, wearing blue jeans and a gray shirt, had assaulted a woman at a DART bus stop in downtown Dallas. A subsequent DART dispatch advised that the suspect may have changed from a gray to white shirt. According to the dispatch, the suspect, after committing the assault, may have boarded a bus coming out of downtown Dallas, Texas, from the West Transfer Center. Jones arrived first on the scene, and, after Ibarra arrived, the Officers boarded the bus. According to Ibarra, who took the lead, Graham was the only person that matched the general description of the suspect described in the dispatch because all of the other passengers were wearing bright-colored clothing, not a gray or white shirt and jeans like Graham. Given that Graham was the only passenger who matched the general description of the suspect in the dispatch and was on the same DART bus as the one on which the suspect was last seen and could possibly still be located, the court determines that reasonable officers could agree that Jones and Ibarra had a reasonable suspicion that Graham was the suspect described in the DART dispatches and might have been involved in the aggravated assault. Graham's protestations of innocence and other passengers' attempts to tell the Officers that Graham was not the assailant do not make the Officers' conduct, in briefly detaining him, asking him for identification, and questioning him for the purpose of determining whether he committed the reported assault, any less reasonable. Thus, even assuming that Graham's rendition of the facts is true, Ibarra and Jones are still entitled to qualified immunity for the initial stop of Graham and request for his identification.

Moreover, even though Jones and Ibarra were mistaken about their suspicions and ultimately ruled out Graham as a suspect in the assault, the qualified immunity standard allows for such mistakes by law enforcement officials: "The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. This accommodation for reasonable error exists because officials should not err always on the side of caution because they fear being sued." Hunter v. Bryant , 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (internal quotations and citations omitted). Taking into account all of the circumstances, Jones's and Ibarra's conduct in detaining Graham to determine whether he was involved in the aggravated assault was not plainly incompetent; nor is there evidence that they knowingly violated the law. See id. Because a reasonable officer in their position could have believed that there was reasonable cause or suspicion to believe, initially, that Graham was the suspect involved in an assault, they are entitled to qualified immunity as to Graham's unlawful detention claim insofar as the initial encounter.

ii. Detention for Disorderly Conduct

Under the Texas Penal Code, a person commits the offense of disorderly conduct if he intentionally or knowingly "uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace." Tex. Penal Code Ann. § 42.01 (West 2016). Texas courts interpret "breach of peace" as an act that "disturbs or threatens to disturb the tranquility enjoyed by the citizens." Ross v. State of Texas , 802 S.W.2d 308, 315 (Tex. App.-Dallas 1990, no pet.) (quoting Woods v. State of Texas , 152 Tex.Crim. 338, 213 S.W.2d 685, 687 (Tex. 1948) ).

Graham contends that the Officers' decision to detain him for disorderly conduct after they had already informed him he was not a suspect in the assault constituted an unlawful seizure in violation of his Fourth Amendment rights. The Officers move for summary judgment based on qualified immunity, arguing that after Graham failed to provide identification and began using profanities in response to Ibarra's questioning, it was reasonable for the Officers to conclude that Graham had committed the offense of disorderly conduct. See Defs.' Summ. J. Br. 11. In support, the Officers rely on Ibarra's incident report in which he states that in response to police questioning and requests for identification, Graham stated: "what the fuck man I am grown man I don't have to give you shit," and that Graham then jumped up and continued to use profanities, becoming "visibly upset and disorderly," stating, "what the fuck bro I heard the description [and] I aint wearing no stupid ass gray shirt, I didn't hit that bitch, I saw it happen[.]" See Defs.' Summ. J. App. 26. In his deposition, Ibarra also testified that Graham used profanities in response to police questioning. See id. at 66-67. 100.

In response to the Officers' motion for summary judgment, Graham has provided an affidavit in which he testifies that Ibarra and Jones boarded the DART bus and "came straight at [him] with their pistols drawn and began harassing [him]." He further testifies:

At that point all I did was tell them that "I am not the guy you are looking for." Other people on the bus told them the same thing that "he's not the guy." I did not use any profanity. I had not had any alcohol. It was a Saturday afternoon and I had been to the mall. I was completely sober and minding my own business.

Pl.'s Summ. J. App. 71. In his deposition testimony, Graham admits he was raising his voice in response to Ibarra's questioning. Defs.' Summ. J. App. 146.

As previously stated by the court, on a motion for summary judgment, the court must view all facts in the light most favorable to Graham, the nonmoving party. Thus, for purposes of determining whether the Officers are entitled to qualified immunity at the summary judgment phase of the case, the court must accept Graham's affidavit testimony as true.

Taking into account all of the circumstances, and viewing them in the light most favorable to Graham, the court concludes that Graham's affidavit testimony that he informed the Officers he was not the suspect in the assault but did not use profanities is evidence sufficient to raise a genuine dispute of material fact as to the Officers' entitlement to summary judgment based on qualified immunity. Absent any use of profanities by Graham, no reasonable officers in their position could have believed that there was reasonable cause to believe Graham was engaging in disorderly conduct in violation of section 42.01(a)(1) of the Texas Penal Code. Further, even if he did use profanity, there is no evidence that other passengers became alarmed, that their tranquility was disturbed, or that the very utterance of the profanities incited an immediate breach of the peace, which would support the reasonableness of the Officers' conclusion that Graham breached the peace under Texas Penal Code, section 42.01(a)(1).

Accordingly, the Officers are not entitled to summary judgment based on qualified immunity as to Graham's unlawful detention claim regarding disorderly conduct, and their motion for summary judgment on this claim will be denied.

b. False Arrest

"[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment [when] there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford , 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). "Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Id. "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his [or her] presence, he [or she] may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista , 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). To prevail on a Fourth Amendment claim for "false arrest" brought under section 1983 when an officer asserts qualified immunity, a plaintiff must show that Officers could not have reasonably believed that they had probable cause to arrest the plaintiff for any crime. Thus, probable cause is a necessary component of Graham's Fourth Amendment claim for false arrest. Cuadra v. Houston Indep. Sch. Dist ., 626 F.3d 808, 813 (5th Cir. 2010).

"Probable cause exists when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." United States v. McCowan , 469 F.3d 386, 390 (5th Cir. 2006). When "facts supporting an arrest are placed before an independent intermediary such as a ... grand jury, the intermediary's decision breaks the chain of causation" for false arrest, insulating the initiating party. Shields v. Twiss , 389 F.3d 142, 150 (5thCir. 2004) (quoting Taylor v. Gregg , 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds by Castellano v. Fragozo , 352 F.3d 939, 949 (5th Cir. 2003) ). A grand jury indictment establishes probable cause. Gerstein v. Pugh , 420 U.S. 103, 117 n.19, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The chain of causation, however, "remains intact if it can be shown that the deliberations of that intermediary were in some way tainted by the actions of the defendant." Cuadra , 626 F.3d at 813 (citation omitted). "[T]he chain of causation is broken only whe[n] all the facts are presented to the grand jury, or other independent intermediary where the malicious motive of the law enforcement officials does not lead them to withhold any relevant information from the independent intermediary." Id.

Here, Graham was charged with public intoxication and, subsequently, with assault against a public servant, and a grand jury indicted him for the felony assault charge. He alleges that his Fourth Amendment rights were violated because the Officers lacked probable cause to arrest him for either offense. For the reasons that follow, the court determines that while the Officers are entitled to summary judgment based on qualified immunity with respect to Graham's false arrest claim for assault on a police officer, genuine disputes of material fact remain with respect to his false arrest claim on the charge of public intoxication, and the Officers are not entitled to summary judgment on this claim.

i. Arrest for Public Intoxication

Ibarra and Jones contend that Graham's claim for false arrest based on the charge of public intoxication fails because probable cause existed to arrest him for public intoxication. Because Graham exhibited signs of public intoxication in their presence (including that he smelled like alcohol, had bloodshot eyes, and slurred speech), and because they believed he presented a danger to himself and others, the Officers argue that probable cause existed to arrest him for public intoxication. Graham contends that no probable cause existed to arrest him for public intoxication because he has provided evidence, including his affidavit and hospital records, showing he had nothing to drink and was sober on the day he was arrested and that there had been no reports that day that he was intoxicated. Graham contends that, even accepting as true Ibarra's and Jones's version of events that he smelled of alcohol, had slurred speech, and blood shot eyes, probable cause for his arrest was lacking because such facts do constitute public intoxication under section 49.04 of the Texas Penal Code absent evidence that he was so intoxicated that he posed a danger to himself or others.

Under Texas law, a person commits the offen