Idelma Saenz, et al v. City of McAllen, et al

Filing

UNPUBLISHED OPINION FILED. [09-41072 Affirmed ] Judge: EGJ , Judge: HRD , Judge: JLD Mandate pull date is 10/25/2010 [09-41072]

Download PDF
Idelma Saenz, et al v. City of McAllen, et al Doc. 0 Case: 09-41072 Document: 00511252649 Page: 1 Date Filed: 10/04/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 4, 2010 N o . 09-41072 Lyle W. Cayce Clerk I D E L M A ANA SAENZ; YOLANDA RAMIREZ; GLORIA SAENZ, Individually a n d as Next Friend of Diana Figueroa; DIANA FIGUEROA; JESUS HENRY S A E N Z ; JESUS SAENZ, Individually and as Administrator of the Estates of D o m in g a Saenz and Nelson Saenz, P la in t iffs - Appellants v. C I T Y OF MCALLEN; ARMANDO HERNANDEZ; HUMBERTO RESENDEZ; O R L A N D O OLIVAREZ; YASSAR HASSAN, D e fe n d a n t s - Appellees A p p e a l from the United States District Court fo r the Southern District of Texas B e fo r e JOLLY, DEMOSS, and DENNIS, Circuit Judges. P E R CURIAM:* A p p e lla n t s filed suit against the City of McAllen (the City) and the in d iv id u a l defendants (collectively "Appellees") for violations of 42 U.S.C. § 1983 a n d Texas state law, arising from the deaths of Dominga Saenz and Nelson S a e n z . The magistrate judge granted the Appellees' motions for summary ju d g m e n t on the § 1983 claims and motion to dismiss the state law claims. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 09-41072 Document: 00511252649 Page: 2 Date Filed: 10/04/2010 No. 09-41072 A p p e lla n t s filed this appeal. Because Appellants' theory of liability supporting t h e ir §1983 claims against the individual police officers is not clearly established in this circuit, we affirm the magistrate judge's grant of summary judgment on t h e basis of qualified immunity. We also affirm the magistrate judge's grant of s u m m a r y judgment on Appellants' municipal liability claims against the City a n d its dismissal of Appellants' state law claims. I. N e ls o n Saenz, Dominga's son, had a history of serious mental illness and h a d murdered his wife years ago.1 In the days leading up to the events in q u e s t io n , Nelson's mental health had deteriorated. He had allegedly stopped t a k in g his medication, acquired a gun, and threatened to kidnap certain m e m b e r s of his family. On September 3, 2005, Investigator Armando Hernandez, a 15-year veteran of the City's police department, and his wife, Linda H e r n a n d e z , went to Nelson's apartment for the purpose of having him c o m m it t e d .2 Linda was Dominga's niece. Armando and Linda knew of Nelson's m e n ta l illness, history of violence, and deteriorating mental condition. Armando a t t e m p t e d to get Nelson to come outside but Nelson refused and barricaded h im s e lf in his apartment, telling Armando to "come back next week." Armando c a lle d for backup and McAllen police officers Olivarez Hassan, Humberto Because this case involves an appeal from a grant of summary judgment, we adopt the Appellants' version of the facts to the extent supported by the evidence. See Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 327 (5th Cir. 2009). There is some discrepancy over the circumstances under which the police were summoned to Nelson's apartment. In their opening brief, Appellants assert that Armando was "requested by the family of Nelson Saenz to commit Nelson to a mental health facility," citing to Armando's deposition testimony, because "they knew [Armando] ha[d] been [a] police officer with the City of McAllen for many years and because . . . Linda [ ] was a relation to the family with some knowledge of Nelson's previous mental illness violence, including killing his wife with an axe." However, in the Appellants' Original and Amended Complaints, Appellants alleged that they had contacted the police department directly and had no prior notice that the Hernandezes were going to Nelson's apartment. 2 1 2 Case: 09-41072 Document: 00511252649 Page: 3 Date Filed: 10/04/2010 No. 09-41072 R e s e n d e z , and Yassar Hassan eventually arrived. Armando then developed a " p la n of approach" to extract Nelson from his apartment. Dominga would knock o n Nelson's front door in an attempt to coax her son to come out of his apartment w h ile the police officers would remain in front of the house but out of Nelson's lin e of sight. Armando summoned Dominga to Nelson's apartment. She arrived with her d a u g h t e r s Yolanda Ramirez and Idelma Saenz. Armando removed Dominga fr o m the vehicle and pulled her to Nelson's front door, staying behind her while t h e other officers got in the "ready position." Yolanda, realizing that Dominga w a s being taken to Nelson's door in order to extract him, yelled for the police to m o v e Dominga away from the entrance because Nelson had a gun. Nelson began y e llin g profanities at the police officers. Dominga attempted to get Nelson to c o m e out of his apartment, but after no response she knelt down to pray. When D o m in g a started to stand, Nelson opened his door and started shooting. The p o lic e officers returned fire. Both Nelson and Dominga were killed in the e x c h a n g e . Dominga was shot eleven times. Nelson's gun held only nine rounds. A p p e lla n t s submitted expert testimony evidencing that Dominga was shot at le a s t four times by the officers' weapons. A p p e lla n t s filed suit in the United States District Court for the Southern D is t r ic t of Texas against the individual police officers pursuant to 42 U.S.C. § 1 9 8 3 under the "state created danger theory," alleging that the police officers k n o w in g ly created a dangerous environment that would not have existed but for t h e officers' actions. Appellants also filed claims against the City pursuant to 42 U .S .C . § 1983, alleging that the City promoted a "shoot first, ask questions later" p o lic y within its police department, and filed Texas state law claims against all A p p e lle e s for bystander recovery and violations of the Texas Torts Claims Act. T h e parties consented to proceed before a magistrate judge. See 28 U.S.C. § 6 3 6 (c ) (2009); FED. R. CIV. P. 73(a). 3 Case: 09-41072 Document: 00511252649 Page: 4 Date Filed: 10/04/2010 No. 09-41072 T h e City filed a motion to dismiss, inter alia, Appellants' state law claims, w h ic h was granted.3 Appellees filed separate motions for summary judgment on th e various § 1983 claims, both of which were granted. Appellants timely a p p e a le d . II. T h is court reviews the grant of summary judgment based on qualified im m u n it y de novo, applying the same standard as the magistrate judge. See M o n g r u e v. Monsanto Co., 249 F.3d 422, 428 (5th Cir. 2001); FED. R. CIV. P. 56. S e c t io n 1983 provides a cause of action for individuals who have been " d e p r iv [e d ] of any rights, privileges, or immunities secured by the Constitution a n d laws" of the United States by a person or entity acting under color of state la w . 42 U.S.C. § 1983 (2003). The doctrine of qualified immunity protects g o v e r n m e n t officials from liability for civil damages insofar as their conduct (1) d o e s not violate a constitutional right and (2) was not objectively unreasonable in light of clearly established law at the time of the violation. Pearson v. C a lla h a n , 129 S. Ct. 808, 815-16 (2009). This court may address either prong fir s t . Id. at 818 (overruling in part Saucier v. Katz, 533 U.S. 194 (2001)). A. W h e n determining whether a constitutional right was clearly established, t h is court asks whether the right was clearly established at the time of the c o n d u c t , which for this matter is 2005. See Lytle v. Bexar Cnty., Tex., 560 F.3d 4 0 4 , 417 (5th Cir. 2009). A right is clearly established when "the contours of the r ig h t [are] sufficiently clear [such] that a reasonable official would understand t h a t what he is doing violates that right." Wernecke v. Garcia, 591 F.3d 386, 392 (5 t h Cir. 2009) (quotations and citation omitted). Our inquiry focuses on whether t h e officials were on notice that their conduct violates clearly established law The magistrate judge also dismissed Appellees' state law claims against the individual defendants which has not been appealed. 3 4 Case: 09-41072 Document: 00511252649 Page: 5 Date Filed: 10/04/2010 No. 09-41072 a n d that the state of the law provided fair warning that their conduct was u n c o n s t it u t io n a l. See Hope v. Pelzer, 536 U.S. 730, 740-41 (2002). "[A] d e fe n d a n t 's acts are held to be objectively reasonable unless all reasonable o ffic ia ls in the defendant's circumstances would have then known that the d e fe n d a n t 's conduct violated the United States Constitution or the federal s t a t u t e as alleged by the plaintiff." Thompson v. Upshur Cnty., Tex., 245 F.3d 4 4 7 , 457 (5th Cir. 2001) (emphasis in original). A p p e lla n t s allege a "state created danger theory" as the basis of liability fo r their § 1983 claims against the individual defendants. Generally, "a state o ffic ia l has no constitutional duty to protect an individual from private violence." M c C le n d o n v. City of Columbia, 305 F.3d 314, 324 (5th Cir. 2002) (en banc) (per c u r ia m ) (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 1 9 7 (1989)). However, the Supreme Court has held that where the state, " t h r o u g h the affirmative exercise of its powers, acts to restrain an individual's f r e e d o m . . . `through incarceration, institutionalization, or other similar r e s t r a in t of personal liberty,' the state creates a `special relationship' between t h e individual and the state which imposes upon the state a constitutional duty t o protect that individual from dangers, including, in certain circumstances, p r iv a t e violence." Id. (quoting DeShaney, 489 U.S. at 200). Some circuit courts h a v e read DeShaney to imply a second exception, the state created danger t h e o r y , to the general rule against state liability for private violence.4 In this See, e.g., Okin v. Village of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 434-35 (2d Cir. 2009); Waddell v. Hendry Cnty. Sheriff's Office, 329 F.3d 1300, 1306-07 (11th Cir. 2003); Ruiz v. McDonnell, 299 F.3d 1173, 1182-84 (10th Cir. 2002); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir. 1998); Kneipp v. Tedder, 95 F.3d 1199, 1201, 1208 (3d Cir. 1996); Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993); Freeman v. Ferguson, 911 F.2d 52, 54-55 (8th Cir. 1990); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989); Butera v. Dist. of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001); but see Velez-Diaz v. VegaIrizarry, 421 F.3d 71, 80 & n.3 (1st Cir. 2005) (noting that the First Circuit has discussed the state created danger theory but never found it actionable on the facts alleged) (quotations omitted); Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir. 1995) (finding that the state created 4 5 Case: 09-41072 Document: 00511252649 Page: 6 Date Filed: 10/04/2010 No. 09-41072 c ir c u it , the availability of the state created danger theory as the basis of liability f o r a § 1983 claim is far less certain. In Leffall v. Dallas Independent School D i s t r ic t, 28 F.3d 521, 530-32 (5th Cir. 1994), this court discussed the state c r e a t e d danger theory and set forth the elements necessary to establish the c la im as a basis for liability, but ultimately held that even if the state-created d a n g e r theory was constitutionally sound, the plaintiff failed to meet the n e c e s s a r y elements. Subsequent § 1983 cases predicated on the state created d a n g e r theory similarly pretermit the issue.5 O n two occasions this court explicitly adopted the state created danger t h e o r y but was ultimately reversed. See McClendon, 258 F.3d at 436 (noting that t h e Fifth Circuit had "continued to recognize the existence of the theory" and t h u s applying the theory), rev'd en banc, 305 F.3d at 325 (holding that "neither t h is court nor the Supreme Court has yet determined whether a citizen has a danger theory did not apply absent a custodial relationship). See, e.g., Bustos v. Martini Club, Inc., 599 F.3d 458, 466 (5th Cir. 2010) ("[T]his circuit has not adopted the state-created danger theory."); Luevano v. Geyer, 355 F. App'x 834, 836 (5th Cir. 2009) ("We have repeatedly declined to rule on whether the state-created danger theory applies in this Circuit, but have found that even if it did apply, it would not allow recovery for the plaintiff under the facts of the case at hand."); Hale v. Bexar Cnty., Tex., 342 F. App'x 921, 925-27 (5th Cir. 2009) (declining to apply the state created danger theory because this court had never expressly done so and even if available the plaintiff had not met the elements of the claim); Lester v. City of College Station, 103 F. App'x. 814, 814-816 (5th Cir. 2004) ("[T]his court has neither adopted nor accepted the state-created-danger theory of liability."); Greene v. Plano Indep. Sch. Dist., 103 F. App'x 542, 543-544, & n.3 (5th Cir. 2004) ("This Court . . . has never held that the state created danger theory is one of the limited circumstances that would rise to the level of a due process constitutional violation contemplated in DeShaney."); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 2003) ("We have never recognized state-created danger as a trigger of State affirmative duties under the Due Process clause . . . .We again decline to do so."); Piotrowski v. City of Houston, 237 F.3d 567, 584-85 (5th Cir. 2001) (recognizing that the state created danger theory had not been explicitly adopted by this court and declining to do so in that matter because plaintiff had not met the elements of the theory); Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997) (same); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir. 1997) (en banc) (same); see also Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir. 1995) (holding that absent a special relationship between the state actor and the individual, the "state has no duty to protect nor liability from failing to protect a person under the due process clause of the Fourteenth Amendment from violence at the hands of a private actor") (emphasis added). 5 6 Case: 09-41072 Document: 00511252649 Page: 7 Date Filed: 10/04/2010 No. 09-41072 c o n s t it u t io n a l right to be free from state-created dangers" and because the p la in tiff failed to establish the necessary elements of the theory it would not a p p ly even if available); Breen v. Tex. A&M Univ., 485 F.3d 325, 337 (5th Cir. 2 0 0 7 ) (holding that the state created danger theory was "a valid basis for a claim o n the set of facts alleged"), rev'd, 494 F.3d 516 (5th Cir. 2007) (granting r e h e a r in g sua sponte and issuing a subsequent opinion omitting discussion of s t a t e created danger theory); see also Rivera v. Houston Indep. Sch. Dist., 349 F .3 d 244, 249 n.5 (5th Cir. 2003) (recognizing that the panel's decision in M c C le n d o n "was vacated and with it our recognition of the [state created danger] t h e o r y " ). Thus, this court's stance on the state created danger theory as a basis o f liability for a § 1983 claim is uncertain. Further, we have found that the state created danger theory was not c le a r ly established for conduct that occurred in 1993. See McClendon, 305 F.3d a t 332-33. More recently this court has held that the state created danger theory is "not clearly established law within this circuit such that a § 1983 claim based o n this theory could be sustained" for an incident that occurred in 2006. See W a lk e r v. Livingston, No. 09-20508, 2010 WL 2465035, *2 (5th Cir. June 17, 2 0 1 0 ) (unpublished) (citing Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002)). Although this court may consider the law of other circuits when d e t e r m in in g whether a constitutional right is clearly established, "[t]he r e lu c t a n c e of this court . . . to embrace some version of the state-created danger t h e o r y despite numerous opportunities to do so suggests that, regardless of the s t a t u s of this doctrine in other circuits, a reasonable officer in this circuit would, e v e n [in 2002], be unclear as to whether there is a right to be free from `s ta t e -c r e a t e d danger.'" McClendon, 305 F.3d at 332 n.12. "[T]his circuit is lit t e r e d with opinions expressing varying levels of skepticism." Id. This circuit's h o ld in g s on the viability of the state created danger theory following McClendon d o not make its position any clearer. See, e.g., Rios v. City of Del Rio, Tex., 444 7 Case: 09-41072 Document: 00511252649 Page: 8 Date Filed: 10/04/2010 No. 09-41072 F .3 d 417, 422-23 (5th Cir. 2006) ("[N]either the Supreme Court nor this court h a s ever either adopted the state-created danger theory or sustained a recovery o n the basis thereof. We have, however, many times refused to allow recovery s o u g h t to be predicated thereunder."); Longoria v. Texas, 473 F.3d 586, 593 n.8 (5 t h Cir. 2006) ("Since [2003], we have explicitly rejected [the state created d a n g e r ] theory of liability."); Hernandez ex rel. Hernandez v. Tex. Dep't. of P r o te c tiv e and Regulatory Servs., 380 F.3d 872, 880 n.1 (5th Cir. 2004) ("We e m p h a s iz e that our court has not yet determined whether a state official has a . . . duty to protect individuals from state-created dangers.") (quotation and c it a t io n omitted); Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004) (" T h is court has consistently refused to recognize a `state-created danger' theory o f § 1983 liability even where the question of the theory's viability has been s q u a r e ly presented."). " [Q ]u a lifie d immunity should be granted `if a reasonable official would be le ft uncertain of the law's application to the facts confronting him.'" McClendon, 3 0 5 F.3d at 332 (quoting Salas v. Carpenter, 980 F.2d 299, 311 (5th Cir. 1992) (c it a t io n omitted). The state created danger theory has not been applied in this c ir c u i t with "obvious clarity" to the specific conduct in question such that a r e a s o n a b le officer would be aware that his actions were unlawful. See id. B e c a u s e the state created danger theory as a basis of liability was not clearly e s t a b lis h e d at the time the incident occurred, the individual defendants are e n tit le d to qualified immunity.6 Appellants asserted in their complaints and appellate briefs, and conceded at oral argument, that their claim was brought pursuant to DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989). Appellants now allege a second basis for liability under the "special relationship" theory. Because Appellants raise the "special relationship" theory of liability for the first time on appeal, this court will not consider them. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000) (holding that this court does not consider claims not raised before the district court). 6 8 Case: 09-41072 Document: 00511252649 Page: 9 Date Filed: 10/04/2010 No. 09-41072 B. A p p e lla n t s also appeal the magistrate judge's grant of summary judgment t o the City on the basis of qualified immunity. A municipality is a "person" s u b je c t to suit under § 1983. See Monell v. Dep't of Soc. Servs. of the City of New Y o r k , 436 U.S. 658, 690 (1978). "[M]unicipal liability under section 1983 requires p r o o f of three elements: a policymaker; an official policy; and a violation of c o n s t it u t io n a l rights whose `moving force' is the policy or custom." Piotrowski v. C ity of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citation omitted). "Municipal lia b ilit y requires deliberate action attributable to the municipality that is the d ir e c t cause of the alleged constitutional violation." Zarnow v. City of Wichita F a lls , Tex., -- F.3d --, 2010 WL 3093443, *3 (5th Cir. August 9, 2010) (citing C ity of Canton, Ohio v. Harris, 489 U.S. 378, 391-92 (1989)). A p p e lla n t s assert that the City "ratified and approved" the actions of the in d iv id u a l defendants by way of its determination, following a review of the in c id e n t , that the police officers did not "breach[]" any City police department r u le s . The magistrate judge held that Appellants' response to the City's motion fo r summary judgment on this point was "vague," and because Appellants failed t o establish a causal link between the department's alleged policy and the c o n s t it u t io n a l violation, the City was entitled to qualified immunity. "If the authorized policymakers approve a subordinate's decision and the b a s is for it, their ratification would be chargeable to the municipality because t h e ir decision is final." City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). M o r e o v e r , "a policymaker who defends conduct that is later shown to be u n la w fu l does not necessarily incur liability on behalf of the municipality." P e te r s o n v. City of Fort Worth, Tex., 588 F.3d 838, 848 (5th Cir. 2009) (citing C o o n v. Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir. 1986)). Appellants have not e s t a b lis h e d a genuine issue of material fact as to whether the City's review of the o ffic e r s ' conduct violated department rules rises to the level of ratification such 9 Case: 09-41072 Document: 00511252649 Page: 10 Date Filed: 10/04/2010 No. 09-41072 t h a t the City is liable for the officers' conduct. Thus, the City is entitled to q u a lifie d immunity.7 III. F in a lly , Appellants assert that the magistrate judge erred in dismissing t h e ir Texas state law claims against the City. This court reviews de novo a Rule 1 2 (b )(6 ) dismissal. See Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5 t h Cir. 2008). The interpretation of a statute is a question of law we also r e v ie w de novo. See Motient Corp. v. Dondero, 529 F.3d 532, 535 (5th Cir. 2008). U n d e r the doctrine of sovereign immunity, a unit of state government is im m u n e from suit and liability unless the State has waived immunity. Tooke v. C ity of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). The magistrate judge properly d is m is s e d Appellants' claims for relief pursuant to Texas Civil Practice & R e m e d ie s Code § 71.002, as that statute does not waive governmental immunity. S e e TEX. CIV. PRAC. & REM. CODE ANN. § 71.001-002 (West 2003) (permitting lia b ilit y for "persons," defined as "an individual, association of individuals, jo in t - s t o c k company, or corporation or a trustee or receiver of an individual, a s s o c ia t io n of individuals, joint-stock company, or corporation.").8 Appellants also raised municipal liability claims based on the City's alleged "shoot first ask questions later" policy and alleged failure to train its police officers and adopt department policies on the proper way to handle situations involving mentally ill persons. Because Appellants failed to raise its claim against the City's policy on appeal, we deem it forfeited. See Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) ("Claims not pressed on appeal are deemed abandoned."). Appellants' allegations that the City failed to train and adopt appropriate policies were raised for the first time on appeal and are likewise forfeited. See Stewart Glass & Mirror, 200 F.3d at 316-17. Appellants also filed state law claims against the City pursuant to the Texas Tort Claims Act. Appellants make no argument on appeal as to the magistrate judge's dismissal of these claims. As such, they have been forfeited. See Davis, 706 F.2d at 571. 8 7 10 Case: 09-41072 Document: 00511252649 Page: 11 Date Filed: 10/04/2010 No. 09-41072 IV . F o r the foregoing reasons, the magistrate judge's grant of summary ju d g m e n t as to all Appellees and grant of the City's motion to dismiss is a ffir m e d . A F F IR M E D . 11

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?