Angela Vasquez v. James Ball, et al

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Angela Vasquez v. James Ball, et al

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Case: 09-10817

Document: 00511183817

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Date Filed: 07/23/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10817 S u m m a r y Calendar July 23, 2010 Lyle W. Cayce Clerk

A N G E L A VASQUEZ, P la in t if f S A p p e lla n t v. S H E L B Y NOWAK CHACON, Individually, DefendantSAppellee

A p p e a l from the United States District Court for the Northern District of Texas U S D C No. 3:08-CV-2046-M

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A n g e la Vasquez filed suit under 42 U.S.C. § 1983 against Shelby Chacon, a Dallas police officer, alleging violations of the Fourth Amendment for false a r r e s t , false imprisonment, and the use of excessive force. The magistrate judge d is m is s e d Vasquez's suit for failure to identify evidence in the record that s u p p o r t s the claim of bystander liability. We affirm.

Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5T H CIR. R. 47.5.4.

*

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Case: 09-10817

Document: 00511183817

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Date Filed: 07/23/2010

No. 09-10817 I . FACTUAL AND PROCEDURAL BACKGROUND V a s q u e z called 911 to report a disturbance at her residence. When

Officers James Ball and Chacon arrived on the scene, Vasquez approached the o ffic e r s with her dog in her arms. The officers detected alcohol on Vasquez's b r e a th and suspected that she was intoxicated. When the officers told Vasquez t h a t there was little they could do to resolve the disturbance, she became a g it a t e d and uncooperative. Vasquez refused to comply with the officers' request t o return to her home. Officer Ball then placed Vasquez under arrest for public in to x ic a tio n . When Officer Ball attempted to handcuff Vasquez, she jerked her right a r m out of his control and the dog fell. Officer Ball, in an effort to regain control, g r a b b e d Vasquez's right wrist and placed her on the hood of the patrol car. Officer Chacon, standing on the opposite side of the patrol car, secured the dog w h ile Officer Ball finished handcuffing Vasquez. The officers transported

V a s q u e z to a detoxification center. At no point did Vasquez request medical a s s is t a n c e or complain about her arm. After being released from the

d e t o x ific a t io n center, a doctor determined that Vasquez's right arm was broken. Vasquez filed an action in state court against Officers Ball and Chacon for fa ls e arrest, false imprisonment, assault, and excessive force. Vasquez served O ffic e r Chacon but never effected service on Officer Ball. The state court

g r a n t e d leave for Vasquez to amend her petition to include claims arising under 4 2 U.S.C. § 1983. Vasquez amended her complaint to include claims under § 1983 and Officer Chacon removed the action to federal district court. Officer Chacon filed a motion for summary judgment, arguing that she was e n tit le d to qualified immunity and thus could not be held liable on a theory of

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No. 09-10817 b y s t a n d e r liability. See White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992). The m a g is tr a t e judge recommended granting the motion for summary judgment. Vasquez did not object to the magistrate judge's findings or recommendation. The district court accepted the magistrate judge's recommendation and granted O ffic e r Chacon's motion for summary judgment. Vasquez timely appealed. II. ANALYSIS W e generally review a grant of summary judgment de novo. See ICEE D is tr ib s . Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 844 (5th Cir. 2006). H o w e v e r , when a party fails to object to the findings of a magistrate judge within t e n days of the recommendation, we review the district court's grant of summary ju d g m e n t for plain error. See 28 U.S.C. § 636(b)(1); Douglass v. United Serv. A u to Ass'n, 79 F.3d 1415, 1428­29 (5th Cir. 1996) (en banc). Plain error review a p p lie s to the factual findings and legal conclusions of magistrate judges a c c e p t e d by the district court. Douglass, 79 F.3d at 1417. Summary judgment w o u ld not be appropriate if there are "unobjected-to (forfeited) errors that are p l a i n (`clear' or `obvious') and affect substantial rights." Id. at 1424 (citations o m it t e d ). In United States v. Olano, the Supreme Court explained that we have t h e discretion to correct plain errors only if the "error `seriously affect[s] the fa ir n e s s , integrity or public reputation of judicial proceedings.'" 507 U.S. 725, 7 3 6 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)) (a lt e r a t io n in original). Summary judgment is appropriate when, after considering the pleadings a n d other evidence on file, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P . 56(c). In order to defeat summary judgment, the nonmoving party must

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No. 09-10817 id e n tify evidence in the record that "articulate[s] the precise manner in which t h a t evidence supports his or her claim." Ragas v. Tenn. Gas Pipeline Co., 136 F .3 d 455, 458 (5th Cir. 1998). We view the evidence in the light most favorable t o the nonmoving party, but conclusory allegations and unsubstantiated a s s e r t io n s may not be relied on as evidence by the nonmoving party. Little v. L iq u id Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In her motion for summary judgment, Officer Chacon asserted that V a s q u e z had not produced evidence showing the inapplicability of the qualified im m u n it y defense. See Zarnow v. City of Wichita Falls, 500 F.3d 401, 407 (5th C ir . 2007) (finding that the nonmoving party, in response to a motion for s u m m a r y judgment under qualified immunity, must produce evidence going to s h o w "that the defendant violated the plaintiff's constitutional rights and that t h e violation was objectively unreasonable"). Additionally, Officer Chacon

a r g u e d that Vasquez failed to identify any evidence showing that Officer Chacon w a s liable under § 1983 as a bystander to the use of excessive force. See Hale v. T o w n le y , 45 F.3d 914, 919 (5th Cir. 1995) (noting that the evidence necessary to d e fe a t summary judgment must indicate that the officer had a "reasonable o p p o r t u n it y to realize the excessive nature of the force and to intervene and stop it"). In response, Vasquez articulated discrepancies between Officer Chacon's sta te and federal court affidavits purporting to demonstrate the

u n r e a s o n a b le n e s s of Officer Chacon's actions.

The affidavits had three

d is c r e p a n c ie s : (1) the state court affidavit listed 8:15 p.m. as the time of the s t r u g g l e , while the federal court affidavit listed 9:56 p.m.; (2) the state court a ffid a v it did not detail Officer Chacon's location during the struggle, while the

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No. 09-10817 fe d e r a l court affidavit noted that Officer Chacon was standing on the opposite s id e of the patrol car from Vasquez and Officer Ball; and (3) both the state and fe d e r a l court affidavits noted that Vasquez was taken to the Dallas jail when, in fa c t , she was taken to the detoxification center. T h e magistrate judge, in construing the evidence in the light most fa v o r a b le to Vasquez, determined that the discrepancies noted by Vasquez failed t o create a genuine issue of material fact as to qualified immunity or bystander lia b ilit y . The magistrate judge found the first and third discrepancies to be immaterial to Officer Chacon's liability under § 1983. The timing of the struggle a n d the type of facility that the officers took Vasquez to have no bearing on w h e t h e r Officer Chacon violated Vasquez's constitutional rights or had a r e a s o n a b le opportunity to intervene. The second discrepancy, although

t a n g e n t ia lly related to Officer Chacon's ability to intervene in the arrest, does n o t show that Officer Chacon knew of the excessive force or had a reasonable o p p o r t u n it y to intervene. Vasquez's conclusory allegation that Officer Chacon's lo c a t io n during the struggle establishes that Chacon was in position to stop the u s e of excessive force is, absent other evidence, insufficient to create a genuine is s u e of material fact. See id.; Little, 37 F.3d at 1075. Vasquez now contends that when the magistrate judge disregarded the t h r e e discrepancies, the magistrate judge did not construe the evidence in the lig h t most favorable to her. Vasquez cites cases from other circuits to support h e r argument that a disputed issue of fact as to qualified immunity should be d e c id e d by a jury. See Velasquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th C ir . 2007); Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996). Vasquez's r e lia n c e on Velasquez and Mick is unwarranted; in both cases there were facts

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No. 09-10817 in d ic a tin g that the officers could have reasonably prevented the use of excessive fo r c e . Velasquez, 484 F.3d at 1342; Mick, 76 F.3d at 1130­31. We agree with the m a g is tr a t e judge that the discrepancies noted by Vasquez do not create a g e n u in e issue of material fact as to the actions of Officer Chacon. The

m a g is tr a t e judge did not plainly err in recommending summary judgment. III. CONCLUSION B e c a u s e Vasquez failed to come forward with evidence to rebut qualified im m u n it y or substantiate her § 1983 claim, we AFFIRM the district court's g r a n t of summary judgment to Officer Chacon. AFFIRMED.

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