Lopez v. Harris County, Texas et al, No. 4:2015cv03077 - Document 19 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting 17 MOTION for Summary Judgment . (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Lopez v. Harris County, Texas et al Doc. 19 United States District Court Southern District of Texas ENTERED October 07, 2016 IN THE UN ITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION David J. Bradley, Clerk ANGELA RENEE LOPEZ, Plaintiff, CIVIL ACTTON NO . H-15-3077 HARRIS COUNTY , TEXA S, and FRANCISCO SALA ZAR, JR ., IN HIS INDIVIDUAL AND OFFICIAL CA PACITIES, Defendants. MRMOQAHDUM OPIN ION AHn ORDER Plaintiff, Angela Renee Lopez, brings this action against Harris County, Texas, and Deputy Francisco Salazar, Salazar/) ' capacity as b0th individual capacity and Harris County Deputy Sheriff, (A 'Deputy his official claim s based on b0th federal and state 1aw arising from an alleged excessive use of force when Deputy Salazar responded to during a family argumentx call assistance Pending before the court Motion for Summary Judgment ( Docket Entry No. Defendants' For the reasons explained below, defendants' motion will be granted, and this action will be dismissed . 1. Factual and Leqai A llelations Plaintiff alleges that on August 2014, Deputy Salazar was dispatched to her residence in response to her call for assistance l see Plaintiff's First Amended Petition , Docket Entry No . Dockets.Justia.com during an argument with her lg-year old daughter, Stephanie Lopez. Plaintiff alleges that the argument started when she asked Stephanie and her boyfriend to leave the hom e, but they refused . Plaintiff alleges that the argument turned violent when Stephanie her . Plaintiff alleges that she had called the police for help in the past when a house guest refused to leave her home, and an officer had assisted her in removing the guest without incident .z Plaintiff alleges that when Deputy Salazar arrived at her home , he entered without knocking and shouted at her to give her identification . Plaintiff alleges that Deputy Salazar ordered her to step out of the house so that he could talk to Stephanie but that she refused and told him that he could talk outside but she was staying inside . Stephanie Plaintiff alleges that Stephanie went outside and waited for Deputy Salazar who again shouted at plaintiff to give him her identification . alleges that when she reached her phone Plaintiff another officer, Deputy Salazar grabbed her arm , dragged her outside, pushed her the ground, sat on her, and pulled her arms behind her back so he could handcuff her . Plaintiff alleges that once she was handcuffed , Deputy Salazar pulled her up by her handcuffs, and placed her in the back his patrol that after she spent approximately a half hour Plaintiff alleges Deputy Salazar's hot patrol car, she was transported to the Inmate Processing Center 2Id . where she stayed for hours until she was released without charge .3 Plaintiff alleges that Deputy Salazar used excessive force to arrest her violation Fourth, Fifth, Fourteenth Amendments to the United States Constitution , and the laws of the State of Texas . Plaintiff alleges that Harris County her based on alleged failure liable train and supervise Deputy Salazar whose actions followed an unconstitutional policy ordered , sanctioned, and ratified by Harris County through one or m ore of its policymakers .4 Plaintiff alleges that she suffered permanent injuries to her shoulder and wrist,s and that E als a direct and proximate result of the above described conduct of agents and employees including Deputy Salazar, of Harris, County, E she) suffered significant injuries and damages, including physical pain, mental anguish , physical impairment, disfigurement, and loss of enjoyment of life, and she has incurred medical expenses for the treatment of her injuries in the past, and she will, in a11 likelihood, incur medical expenses in the future for the continued treatment of her injuries.6 Plaintiff seeks compensatory attorneys fees -7 3Id . 4Id . at 5 . 51d . 6Id . 7Id . at 5- 7 . punitive damages, costs, and II . Standard of Review Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the 1aw entitles judgment . Fed. P. 56( c). Disputes about material facts are 'genuine' if the evidence is such that ' ' verdict reasonable jury could return the nonmoving party . Anderson v . Libertv Lobbv , Inc ., 106 S.Ct. 2505, 2511 ( 1986). The Supreme Court has interpreted the plain language of Rule 56( c) mandate the entry summary judgment uafter adequate time discovery and upon motion , against showing sufficient establish party the fails existence of an make element essential to that party's case, and on which that party will bear the burden proof at trial .' ' Celotex Corr . v . Catrett, 106 S. Ct. 2548, 2552 ( 1986). A party moving for summary judgment 'must ' ' demonstrate the absence of genuine issue of material fact ,' but need not neaate the elements of the nonmovant's case .' ' Little v . Licuid Air Corp w ( banc). en F.3d 1069, 1075 ( 5th Cir. 1994) If the moving party meets this burden, Rule 56( c) requires the nonmovant go beyond the pleadings and show by admissible evidence that specific facts exist over which there a genuine issue for trial . resolved Id . Factual controversies are favor of the nonmovant , ubut only when parties have subm itted evidence - be b0th contradictory facts .' Id . ' 4- 111 . Defendants' Motion for Snmmarv Judqment Defendants argue that they are entitled to summary judgment on a11 of plaintiff's claim s because p laintiff is unable to present evidence capable of supporting any of the claim s alleged .' Over two months have passed since defendants filed the pending motion for summary judgment on August 2016. More than six weeks have passed since plaintiff's response the pending motion was due. But plaintiff has not responded to defendants' motion . Local Rule provides that: nOpposed motions will be submitted to the judge days from filing without notice from the clerk appearance by counsel.' ' S.D. Tex. R . without ( 2000) ( Amended General Order 2009-17, effective December 1r 2009). Local Rule provides : Failure to respond will be taken as a representation of no opposition . Responses to motions Must be filed by the submission day ; B. Must be written ; Must include or be accompanied by authority; and D. Tex. Must be accompanied by denying the relief sought. ( 2000) separate form order accordance with Local Rule 7.4, the court takes plaintiff's failure respond the defendants' motion for summary judgment as a representation of no opposition to defendants' summary judgment evidence. BDefendant's Motion for Summary Judgm ent , Docket Entry No . - 5- Although a district court may grant summary judgment by default simply because there is no opposition to the motion, the court may accept as undisputed the movant 's version the facts and grant a motion for summary judgment when the movant has made a rrima facie showing of entitlement to judgment as a matter See John v . State of Louisiana law. ( Board of Trustees for State Colleaes and Universities), 757 F.2d 698, 708 (5th Cir. 1985) ( when the movant's summary judgment evidence establishes its right judgment as matter 1aw by establishing that there are genuine issues of material fact, the district court is entitled to grant summary judgment); and Everslev v. Mbank Dallas, 843 F.2d 174 ( 5th Cir. 1988) ( when the nonmovant fails to respond motion for summary judgment, the court does not err by granting the motion when the movant's subm ittals make a Drima facie showing of entitlement to judgment as a matter of law). A. Federal Law Claim s Plaintiff alleges that intentional actions of Deputy Salazar make him liable under 42 U .S . . 5 1983 for infringing her rights to C be free from excessive force in violation of the Fourth, Fifth, and Fourteenth Am endments depriving her the United States Constitution the right to be free from an unreasonable seizure that proximately caused her to suffer severe injury; and that Harris County liable for Deputy Salazar's deprivation of her - 6- constitutional rights for failing to adequately train and supervise him, and for having a policy, custom , or practice that allowed him to use excessive force. Defendants seek summary judgment on g of the claims asserted against them because plaintiff has not suffered any deprivation of rights secured by the Constitution or laws of the United States, Deputy Salazar is entitled to qualified immunity from suit, and plaintiff is unable to cite any evidence capable of proving that a county custom , policy, or practice caused the plaintiff suffer deprivation Constitution or laws a right secured by the United states.l o ApDlicable Law ( a) 42 U.S.C. 5 1983 U .S . . 5 1983 provides C private right of action for deprivation of rights, privileges, and immunities secured by the Constitution or laws of the United States . Section 1983 states: Every person who, under color of any statute , ordinance, regulation , custom , or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party g plaintiff's First Amended Petition, Docket Entry PP . 5-6. l oDefendant 's Motion for Summary Judgment , Docket Entry No . 17, p. 2 % 2 ( uDefendants deny that any constitutional violation occurred, or that they are liable to Plaintiff in any amount, under any theory.'). ' injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . U. C. S. 1983. nE section) not itself a source substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred .'' Graham v . Conner, 109 S . ' 1865, 1870 ( 1989) ( quoting Baker v. Mccollan, ( 1979)) establish 5 1983 liability, plaintiff must prove that she suffered law 2689, 2694 a deprivation of a right secured by federal that occurred under color of state law , and by a state actor .' ' was caused Victoria W . v . Larpenter, 369 F.3d 475, 2004) ( citing Bush v. Viterna, F.2d 1203, 1209 ( 5th Cir. 1986)). Plaintiff must also show that the constitutional or statutory deprivation she suffered was intentional due deliberate indifference and not the result of mere negligence . Id . ( citing Baker, 99 Ct. at 2695). ( 1) 5 1983 Suits Against Governmentai Entities A governmental entity can be sued and subjected to monetary damages and injunctive relief under policy custom causes protected right . Citv of New York, person 1983 only be dep rived of official federally Monell v . Deoartment of Social Services of the 2018, 2037-38 ( 1978) 1983). municipality may not be held liable under 5 1983 on the basis of resrondeat surerior or vicarious liability . under 5 1983 requires proof policy ; and Municipal liability a policy maker; an official a violation of a constitutional right whose moving force is the policy or custom . Id . Dallas, Texas, 430 F.3d See also Cox v . Citv of 2005), cert. denied, S. Ct. 2039 ( 2006) ( uMunicipal liability under 50th 5 1983 requires proof of three elements addition underlying claim of a violation of rights: official policy; and violation 1981 and the policymaker; constitutional rights whose Mmoving force' is the policy or custom .f/). ' ' Section 1988 allows courts to award attorneys' fees to prevailing parties in rights actions . See Farrar v . Hobbv, 571-72 ( 1992). ( 2) 5 1983 Suits Against Public Officials Public officials may be sued pursuant to 42 U . .C . 5 1983 in S their official and/or their personal capacities. Hafer v. Melo, 361-63 ( 1991) ( citing Kentucky v. Graham , - S. 3099 ( 1985)). ( T)he distinction between official-capacity suits and personal-capacity suits is more than na mere pleading device .' ' State officers sued for dam ages in their official capacity are not npersons' for purposes of the ' suit because they assume the identity of the government that employs them . . . By contrast, officers sued in their personal capacity com e to court as individuals . A governm ent official in the role of personal-capacity defendant thus fits com fortably within the statutory term Aperson .; A ; - 9- Id . interest The real party suit is the governmental entity , an official-capacity the named official. ( citing Graham, Id . at ( nsuits against state officials in their official capacity should be treated as suits against the State.')). See also Bennett v. Pipoin, ' 578, 584 ( 5th Cir.), cert. denied, Mrs. Bennett sued the Sheriff F.3d 68 ( 1996) ( nWhen his individual and official capacity, she sued two defendants: the Sheriff and the County./). ' See also Turner v . Houma Municioal Fire and Po lice Civil Service - Board, 229 F.3d 478, 483 ( 5th Cir. 2000) (A 'official-capacity suits 'generally represent only another way of pleading an action against an entity Accordingly, of which 1983 an suit 'official capacity' does officer an naming defendants agent .' in only their involve personal liability the individual defendant.') ( ' citations omitted). state a personal-capacity claim under must allege that while acting under color individual defendant was personally involved 1983 plaintiffs state 1aw an the deprivation a right secured by the laws or Constitution of the United States, that defendant's wrongful actions were causally connected such a deprivation. James v . Texas Collin Countv, 535 F.3d 365, 2008). Absent personal involvement notice , supervisors cannot be held liable for a subordinate 's actions . Id . - 10- Elements of Claims for Excessive Use Force Plaintiff alleges that Deputy Salazar used excessive force to arrest her in violation of the Fourth and Fourteenth Amendmentsx l To state and claim for the use of excessive force under the Fourth Fourteenth Amendments, plaintiff must first allege facts capable of showing that she suffered a seizure . See Flores v . City of Palacios, 381 F.3d 391, 396 ( citing Graham, 109 5th Cir. 2004) ( S. Ct. at 1871). See also Tennessee v . Garner, 105 1700 ( 1985) ( claim of excessive force Ct . 1694, effect arrest analyzed under Fourth Amendment standard). Plaintiff must then allege facts capable of showing that she suffered ( an injury; 1) resulted directly and only from a use excessive to the need ; and which force that was clearly the excessiveness of which was objectively unreasonable. Flores, 381 F.3d at 396. See also Ikerd v. Blair, l01 F.3d 430, 433-34 ( 5th question permissible nE Tqhe whether the totality of the circumstances justified' ' that use of force . F.3d at 1996) ( same). Garner, ( MThe amount Ct . at 1700. force that See also Ikerd, constitutionally . must be judged by the context in which that force l lplaintiff also alleges that Deputy Salazar's actions violated the Fifth Amendment , but the Fifth Amendment applies only to violations of constitutional rights by the United States or by a federal actor. See Morin v. Caire, 77 F.3d 116, l20 ( 5th Cir. 1996). Plaintiff has not alleged that any of the defendants were acting under authority of the federal governm ent . Accordingly, defendants are entitled to judgment as a matter of 1aw on plaintiff's Fifth Amendment claims . See Jones v . Citv of Jackson , 203 F.3d 875, 880 ( 5th Cir. 2000). at 1865, the Supreme Court Graham , is deployed.f). ' articulated three guideposts for courts to use when determining if a particular use of force was reasonable under the circumstances or excessive to the need . These guideposts - often referred to as the Graham factors - are : whether the the severity of the crime at issue; suspect posed officers or civilians; and an immediate threat police whether the suspect was actively resisting arrest or attempting to evade arrest by fleeing the scene . Id . at 1872. The Graham factors provide the framework for judging whether an officer's use of force was excessive. Newman v. Guedrv, 703 F.3d 757, 76l ( 5th Cir. 2012), cert. denied, l34 S. Ct. ( O13 ). 2 Application of the Law to the Undisruted Facts ( a) 5 1983 Claims Asserted Against Deputy Salazar ( 1) Official Capacity Claims Plaintiff has asserted 5 1983 claims against Deputy Salazar b0th his individual and his official capacities . claims against Deputy Salazar his official capacity are essence claim s against Harris County . 3105. See Graham , See also Goodman v . Harris Countv, 2009), cert. denied, 130 Plaintiff's at F .3d 388, Ct. 1143 and 1146 ( 2010) ( uofficial capacity suits are really suits against the governmental entity'). Since Harris County is already named as a defendant ' this action, plaintiff's 5 1983 claim s against Deputy Salazar in dism issal because Harris official capacity are subject County is the real party in interest . See Bennett, 74 F.3d at 584 suit against the Sheriff against the County./) ' defendants are his official capacity suit Accordingly, the court concludes that entitled to summary judgment on the claims asserted against Deputy Salazar in his official capacity . ( 2) Individual Capacity Claims Defendants do not challenge plaintiff's allegations of injury from Deputy Salazar's use force . Instead, defendants' argue that Deputy Salazar's use of force did violate plaintiff's constitutionally guaranteed rights because his use of force was not clearly excessive to the need or objectively unreasonable under the circumstancesx z Defendants argue that Deputy Salazar's use force was reasonably proportionate to the circum stances because plaintiff committed a violation state law by remaining the room and interrupting Deputy Salazar's interview with her daughter, Stephanie,l and because p laintiff resisted arrest by struggling 3 with Deputy Salazar and by refusing to comply with his orders l zDefendants' Motion for Summary Judgment, Docket Entry No . pp . 13-16 1% 20-27 . l . at p . 6 & n . 3 ( 3Id citing Affidavit of Jay 0. Coons, Ph.D., Docket Entry No. 17-2: pp . 11-12 %% 18-20, and Texas Penal Code 5 38.15 Interference with Public Duties). - 13- hands give that he could safely handcuff her .1 4 Asserting that Deputy Salazar nm aintained a calm demeanor and used measured physical measures to overcome Plaintiff's resistance and bring her into custody,/l defendants argue that /s after officer presence and verbal task directions . . . failed to gain Plaintiff's compliance, Deputy Salazar employed empty hand ( soft technique) grabs, holds and joint locks to control Plaintiff. . . Deputy Salazar's use of force against Plaintiff was a reasonable and measured attempt to gain custody of her and accomplish her detention . . . Deputy Salazar's use of force in this incident was m inimal, appropriate and reasonable given b0th the level of resistance directed at him and the stature of Plaintiff vis-à-vis Deputy Salazarx 6 support of their version of the facts, defendants have submitted the Incident Report prepared by Deputy Salazar on events at issue, cell-phone video force against the plaintiff produced day of Deputy Salazar's use the plaintiff the defendants, and the affidavits of Deputy Salazar and Jay 0 . Coons, Ph .D., Commander, District Five , Patrol Bureau Harris County Sheriff's Office . In pertinent part , Deputy Salazar's Incident Report states: While on patrol I was dispatched to 3418 Hurlingham Street in reference to a family disturbance . Upon arrival I heard two females arguing inside the residence . I made contact with the first female who opened the door. I asked her what was going on , she 14Id . at 4 % 8 and 14 % 22. l . at 5ld % 26. 16Id . at 15-16 % 26 . - 14- stated she . . . had been assaulted by her daughter . I asked for her identification, she stated it was in another room , I asked her to retrieve the identification to prevent further argument between 50th parties . The female did not attempt to get her identification instead she continued to argue with the second female . I attempted to speak with the second half of the disturbance, she identified verbally as Ms . Stephanie Lopez DOB . . . While speaking with Stephanie, she advised they had b0th been physically hitting each other , over an argument of trash in the house . Stephanie stated the female was her m other. Stephanie stated she had been punched several times by her mother . She stated she b it her mother on the leg to get her to stop hitting her . While speaking to Stephanie the first fem ale began to interrupt my interview . I asked the female several times to retrieve her identification and she would not . I demanded the female's identification as they 50th were lawfully detained due to the family violence . The female stated E that she) did not want to give it to me and she did not have to . I advised her of the consequences and she stated she would not give me her identification . I began to detain the female and she began to resist . She began to pull away and attempt to pull back into the residence . The female was pulled outside where I pulled her to the ground to gain control and place her in handcuffs . The female continued to resist pulling her left arm under her body . The female was given several orders to give me her hands . The female was placed in handcuffs without further incident and secured in my patrol vehicle . I spoke with Mr. Jacob Rojas, Stephanie's boyfriend. Mr. Rojas stated he E hadq observed b0th females fighting in the living room . He stated he was not sure why the fight occurred but it is an on going situation at the residence . I asked for som eone at the residence to locate the female g rqs identification for me, Stephanie was able to locate the female l'qs drivers license. She was identified as Ms . Angela Lopez. I contacted the Harris County District Attorney's Office and spoke with ADA Acklin . A DA Acklin was given the details of the incident for the family violence and declined due to mutual combat o E fq 50th parties. - 15- ADA Acklin accepted the charge M s. Lopez . Failure to Identify M s. Lopez was transported to the Inmate Processing Center to prevent any further incidents. .l 7 The video produced by plaintiff the defendants shows not only that plaintiff failed to comply w ith Deputy Salazar's requests produce her identification, but also that she actively and physically resisted his attempt to take her into custodyx 8 Moreover, the video shows that Deputy Salazar maintained a calm demeanor throughout the incident, and used only the force necessary to take the plaintiff into custody . In addition to restating essentially the same facts stated the incident report , Deputy Salazar states in his affidavit that he is licensed as a peace officer by the State of Texas,lg and that plaintiff ndid not complain of being injured at any time while she was in my custody, and did not request EMS . injuries any time on her after I did not notice any pulled her to the ground response to her resistance .'zo / In pertinent part Commander Coons states : H lncident Report, Docket Entry No . 17-4, pp . l 8Exhibit 5 to Defendants' Motion for Summary Judgment , Docket Entry No . 17-9. lA ffidavit g of Harris County Sheriff's Deputy Francisco Salazar, Jr. ( nsalazar Affidavit'), Docket Entry No . 17-1, p . 1 ' % 2. 20Id . at 4 % E Tqhe situation for which Deputy Salazar had taken responsibility was a Family Violence issue which is a criminal offense subjecting the aggressort to mandatory s) arrest . Deputy Salazar stated at that point, 50th subjects were being detained while he conducted his criminal investigation to determine which, if either or b0th parties, may have violated the law . A s Plaintiff Lopez was lawfully detained, Deputy Salazar now demanded her identification; again, Plaintiff E Lopez) refused . At this point, faced with Plaintiff ( Lopezrsj complete refusal to produce her identification after several entreaties, a demand, an explanation of the consequences and then a subsequent refusal, Deputy Salazar had exhausted reasonable verbal avenues . Deputy Salazar moved to physically detain Plaintiff Lopez whereupon, u she began to resist .' ' A video shot by an unknown subject inside the Lopez residence at the time of the incident clearly sets forth b0th Plaintiff Lopez' physical resistance to Deputy Salazar's attempts to arrest her as well as Deputy Salazar's calm demeanor and measured physical measure E sl employed to overcome Plaintiff Lopez' resistance and bring her into custody . .21 . . . Deputy Salazar had a duty to thoroughly investigate the circumstances of the event to which he was dispatched and the authority to temporarily detain those who may have been responsible for the commission of a crime . As he was attempting to execute his duties under the Texas Code of Crim inal Procedure A rt . 2 .17, and regardless of who may or may not have committed an offense regarding the affray to which he responded, Plaintiff Lopez interfered with those duties by failing to follow the deputy's verbal directions to her to retrieve her identification thus taking her out of the room and facilitating his interview with the daughter, z Affidavit of Jay 0 . Coons, Ph .D., Exhibit 17-2, pp . 4-5 %% 8l 10 ( citing Family code, Title 4, Protective Orders and Family Violence; Subtitle A . General Provisions, Chapter 71. Definitions; 5 71 .004 Family Violence, and Terrv v . Ohio , 88 S . Ct . 1868, 1877- 78 ( 1968)). - 17- Stephanie . Plaintiff Lopez further interfered with Deputy Salazar's duties, while she remained in the room , by interrupting his interview with Stephanie . By making it virtually impossible for Deputy Salazar to interview the various parties to the event, thus compromising his investigation and Deputy Salazar's duty to conduct an investigation, Plaintiff Lopez was in violation of the Texas Penal Code, 5 38 .15 Interference With Public Duties: ' a) A person commits an offense if the person '( with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by 1aw .' ' . . What can be said was Deputy Salazar is the deputy who responded to the call and had the responsibility to render some sanity to the chaos. Especially given the fact b0th parties, Plaintiff Lopez and Stephanie Lopez, were alleging physical assaults by one party on the other and, as opined by the boyfriend , Jacob Rojas, these violent episodes were not uncommon in the Lopez house, a reasonable officer in Deputy Salazar's position would have almost immediately determined the first order of business, for everyone's safety, was to establish control of the scene and a1l persons in it . Deputy Salazar was attempting to do just that and, regardless of whether or not his tone could have been more cheery and upbeat, Plaintiff Lopez had a duty to obey his verbal commands and, if not cooperate, at least not interfere with his investigation . In sum , upon his response to the Lopez residence, Deputy Salazar had a duty to conduct a thorough investigation of the situation and the authority to detain those involved for a reasonable period until that mission was accomplished . Deputy Salazar was also shielded by Texas Penal Code f 38.15 from those who would interfere w ith his investigation . If, when proceeding on the advice of the on-duty assistant district attorney in the Harris County District A ttorney's Office Intake Division, one MA DA Acklin,' Deputy Salazar was in error ' regarding the arrest title he cited , this does not render the arrest without merit . Given the facts set forth in his offense report and as cited here, Plaintiff Lopez was subject to arrest for violation of Texas Penal Code 5 38 .15, Interference .z z 2 . at 11-12 %% 18-20. 2Id - 18- The undisputed facts set forth prepared by Deputy Salazar and b0th his affidavit establish that Deputy Salazar had probable cause interfering w ith 5 38.15( ( a) 1) his incident report arrest the plalntiff for investigation . See Tex . Penal Code See Pearlman v . Citv of Fort Worth , Texas, 4OO Fed . App 'x 956, 959 ( 5th 2010) ( per curiam ll examining substantially similar facts and holding that police officer had probable cause to arrest the plaintiff investigation). interfering with an The undisputed facts stated in Deputy Salazar's incident report and affidavit as corroborated by the evidence visible in the cell-phone video that the plaintiff provided to the defendants, establish that the plaintiff resisted Deputy Salazar's attempt to take her into custody, and that Deputy Salazar maintained a calm demeanor throughout the incident and used only the force reasonably necessary to take the plaintiff into custody . Moreover, although plaintiff alleges that she suffered nsignificant' injuries, the undisputed facts establish that ' plaintiff did not complain of being injured and did not request medical assistance for an injury, and that Deputy Salazar did not notice that she suffered any injuriesx3 Because defendants have presented undisputed evidence establishing that Deputy Salazar used only the amount plaintiff's arrest for force reasonably necessary interfering with an effect investigation, no 23salazar Affidavit , Docket Entry No . 17-1, p . 4 % reasonable juror could find that any injuries plaintiff suffered resulted directly and only from his use of force that was excessive or objectively unreasonable under the circumstances. Accordingly, the court concludes that Deputy Salazar is entitled to judgment as matter of 1aw on the 1983 claim s asserted against him his individual capacity . 1983 Claim s A sserted Against Harris County Plaintiff alleges claims against Harris County for failure to train and supervise Deputy Salazar whose actions followed an unconstitutional policy ordered, sanctioned, and ratified by Harris County through one or more of its policymakers .z4 A sserting that at a11 relevant times Harris County had in effect a constitutional policy regarding the use force , and that there is no evidence that plaintiff suffered a violation of her constitutional right to be free from unreasonable seizure due to an excessive use of force, or that Harris County failed to train and/or supervise Deputy Salazar on the use force, Harris County argues that entitled to summary judgment on a1l of the 5 1983 claims asserted against it in this action .2 Because 5 preceding section , the court for the reasons stated in the has already concluded that M plaintiff's First Amended Petition, Docket Entry PP . 5-6 . M Defendants' Motion for Summary Judgment , Docket Entry No . % 2. See also id . at 16-20 %% 28-39. the defendants have presented undisputed evidence establishing that Deputy Salazar used only the amount of force reasonably necessary to effect plaintiff's arrest for interfering with an investigation , and that no reasonable juror could find that any injuries plaintiff suffered resulted directly from his use of force that was excessive or objectively unreasonable under the circumstances, Harris County cannot be held liable for failing to train and supervise Deputy Salazarr for ratifying his use of force, policy custom that constitutional rights. lead for maintaining deprivation plaintiff's Accordingly, the court concludes that Harris County is entitled to summary judgment on a11 the 5 1983 claims that plaintiff has asserted against Monell, 98 B. this action . See 2037-38 . State Law Claims Plaintiff asserts claim s against Deputy Salazar and Harris County for personal injuries under Texas law . Municipalities and political subdivisions such as Harris County have governmental immunity except where the state legislature immunity in the Texas Tort Claims Act ( TTCA ) & Rem . Code has waived that See Tex . Civ . Prac . 101.217 Mission Consolidated Inderendent School District v. Garcia, 253 S. W.3d 653, ( Tex. 2008). The limited waiver of governm ental immunity provided by the TTCA is for claims arising from the use of publicly owned vehiclesz p remises defects, and injuries arising out of conditions or use of property. Garcia, S .W .3d 655. The Texas Supreme Court has held that common law tort claims alleged against governmental unit are presumed to be governed by the TTCA regardless of whether the TTCA waives immunity for a particular claim . and S. W.3d ( Tex. 2011). Franka v . Velascuez, The TTCA does not waive immunity for intentional torts, such as assault, battery , false imprisonment, and false arrest . 5 101.057 ( 2). Moreover, See Tex . Civ . Prac. See also Franka, Rem . Code S .W .3d a plaintiff sues b0th a governmental unit and any its employees under the TTCA , as plaintiff has done in this case, the claims asserted against the employees are subject to dismissal under Tex . Prac. & Rem . Code 5 101.1O6 ( if the employee has e) been sued in his individual capacity and under 5 1O1.106 ( if the f) employee has been sued in his official capacity . Fontenot, 435 S. . 793, W 3d See Stinson v . ( Tex . 2014) ( per curiam). Here, plaintiff sued Harris County and its employee, Deputy Salazar, in b0th his individual and his official capacity . purposes of the TTCA , an employee is considered in his official capacity when the suit within the general scope of his employment , and nFor have been sued based on eonduct could have been brought under the TTCA against the government . Stinson , 435 S .W .3d Defendants assert that plaintiff's claim s against Deputy Salazar are based on conduct that occurred within the scope of his employment, and plaintiff alleges that her claims against Deputy Salazar are in fact based on conduct within general scope of his employment .z6 Moreover , plaintiff has asserted the same claim s against 50th Deputy Salazar and Harris County . Deputy Salazar is therefore entitled to summary judgment on the TTCA claim asserted against him in his individual capacity under Tex . Civ . Prac . Rem . Code 5 101.106( e), and is entitled to summary judgment on the TTCA claim asserted against him in his official capacity under Tex . Civ . Prac. & Rem . Code 101.106( f). Id. See also Pearlman, 400 Fed. App'x at 959 ( citing Pearlman v. Citv of Fort Worth, Texas, Civil Action No. 4:08-cv-393-Ar 2008 WL 4787650 ( N.D. Tex. October 2008)). Any state 1aw claim that plaintiff is attempting to assert against Harris County fares no better . ' 'governmental unit' covered by the TTCA . ' A Texas county Tex . Prac . Rem . Code @ 101.001( B). The TTCA does not apply to claims narising 3)( of assault, battery, false imprisonment, any other intentional tortz' Tex. Civ. Prac. & Rem . Code 5 101.057 ( 2). This means that plaintiff's state 1aw claim personal injuries against Harris County does not fall w ithin the lim ited waiver governmental immunity provided by the TTCA , and is thus precluded Harris County's immunity as Pearlman , 400 Fed . App'x at 959. governmental entity . Accordingly, Harris County entitled to summary judgment on the state law claim that plaintiff has asserted or attempted to against M plaintiff's First Amended Petition , Docket Entry No . 5-6. IV . Conciu sions and Order For the reasons explained above the court concludes that defendants are entitled to summary judgment on al1 of the claims asserted against them in this action . Accordingly, Defendants' Motion for Summary Judgment ( Docket Entry No. is GRAHTED . SICMED at Houston , Texas, this 7th day of October, 2016 . K SIM LAKE UNITED STATES DISTRICT JUDGE - 24-
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