Dan Kovacic, et al v. Larry Brown Enterprises, L.L.C, et al

Filing 920101217

Opinion

Case: 10-40208 Document: 00511324330 Page: 1 Date Filed: 12/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 16, 2010 N o . 10-40208 Lyle W. Cayce Clerk

D A N KOVACIC, Individually, and With An Interest in the Estate of Zachary K o v a c ic , Deceased; ELIZABETH FOX, Individually, and With An Interest in t h e Estate of Zachary Kovacic, Deceased; ERIN MICHELLE KOVACIC, I n d iv id u a lly , and As Next Friend of Carley Nicole Kovacic, Both With An I n t e r e s t in the Estate of Zachary Kovacic, Deceased, CARLEY NICOLE K O V A C I C , Minor Child With an Interest in the Estate of Zachary Kovacic, D eceased, P la in t if f s - A p p e lle e s v. J U A N VILLARREAL, Individually, and In His Official Capacity; JOSE D. R U B I O , Individually, and In His Official Capacity, D e fe n d a n t s -A p p e lla n t s

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e KING, GARWOOD, and DAVIS, Circuit Judges. G A R W O O D , Circuit Judge. P la in t iffs -a p p e lle e s brought a 42 U.S.C. § 1983 claim against City of L a r e d o Police Officers Juan Villarreal and Jose D. Rubio to recover damages fo r the death of Zachary Kovacic. The issue on appeal is whether the d e fe n d a n t s -a p p e lla n t s are entitled to summary judgment on the defense of q u a lifie d immunity. For the reasons stated below, we find that Officers Rubio

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and Villarreal are entitled to summary judgment and reverse the district c o u r t's order denying it. STANDARD OF REVIEW W e review de novo a district court's denial of a motion for summary ju d g m e n t on the basis of qualified immunity. Flores v. City of Palacios, 383 F .3 d 391, 394 (5th Cir. 2004). Summary judgment is applicable when it is d e t e r m in e d that there is "no genuine dispute as to any material fact and the m o v a n t is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). A d e n ia l of a motion for summary judgment on the issue of qualified immunity is immediately appealable, to the extent that the district court's order turns o n an issue of law. Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).1 Once a d e fe n d a n t invokes qualified immunity, the burden shifts to the plaintiff to s h o w that the defense is not available. McClendon v. City of Columbia, 305 F .3 d 314, 323 (5th Cir. 2002). As we said in Thompson v. Upshur County, Tx., 2 4 5 F.3d 447, 456 (5th Cir. 2001) (quoting with approval from Pierce v. Smith, 1 1 7 F.3d 866, 871-72 (5th Cir. 1997)): " W h e r e , as here, a section 1983 defendant pleads qualified im m u n it y and shows he is a governmental official whose position in v o lv e s the exercise of discretion, the plaintiff then has the

The district court did find in its order denying summary judgment that there was a factual dispute sufficient to defeat summary judgment. When deciding an interlocutory appeal of a denial of qualified immunity, we do not have jurisdiction to review the genuineness of any factual disputes but can decide whether the factual disputes are material. Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). The district court identified only one disputed fact in its order­ the officers' testimony about Kovacic's level of intoxication. If the district court does not specify all the facts that it finds to be in dispute, we "conduct an analysis of the record to determine what issues of fact the district court likely considered genuine." Id. See also, e.g., Colston v. Barnhart, 146 F.3d 282, 285 (5th Cir. on petition for rehearing en banc), cert. denied, 119 S.Ct. 618 (1998); Thompson v. Upshur County, Tx., 245 F.3d 447, 455-56 (5th Cir. 2001); Manis v. Lawson, 585 F.3d 839, 842-43 (5th Cir. 2009). After conducting such a review (and accepting, arguendo, plaintiffs' claims as to the evidence of Kovacic's level of intoxication), we find that there are no disputes of fact that are material to the question of whether or not the defendants are entitled to summary judgment on the basis of qualified immunity.

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burden `to rebut this defense by establishing that the official's a lle g e d ly wrongful conduct violated clearly established law.' Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). We do `not r e q u ir e that an official demonstrate that he did not violate clearly e s t a b lis h e d federal rights; our precedent places that burden upon p la in t iffs .' Id." F u r t h e r , where as here, a defendant moves for summary judgment and c o r r e c t ly points to an absence of evidence to support the plaintiff's claim on a n issue as to which plaintiff would bear the burden of proof at trial, then s u m m a r y judgment should be granted for the defendant unless the plaintiff p r o d u c e s summary judgment evidence sufficient to sustain a finding in p la in t iff's favor on that issue. Anderson v. Liberty Lobby Inc., 106 S.Ct. 2505, 2 5 1 1 (1986); Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552-53 (1986); Johnson v . Deep East Texas Narcotics Trafficking Task Force, 379 F.3d 293, 337 (5th C ir . 2004) (qualified immunity). F A C T S AND PROCEEDINGS BELOW O n August 9, 2007, Zachary Kovacic met several of his co-workers at t h e Cheers Cocktail Lounge (Cheers) in Laredo, Texas at around 9:30 p.m. Kovacic was working on a work crew in Laredo, and his wife and daughter h a d traveled from their home in Colorado to join him. After several hours at C h e e r s , Kovacic was escorted outside of the bar by Cheers employees. Kovacic was allegedly intoxicated and involved in an altercation with another m a n over a woman. At approximately 1:33 a.m., an employee of Cheers called t h e Laredo Police Department to notify them that there was an intoxicated p e r s o n at the bar who needed to be escorted off of the premises. Several L a r e d o police officers arrived, including appellants Rubio and Villarreal. Kovacic, who had been handcuffed by Cheers employees, was handcuffed a g a in by the officers and placed in the back of Officer Rubio's squad car. One

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of the officers contacted the Webb County Jail and was told that due to o v e r c r o w d in g , there was not room for a person charged only with a Class C m is d e m e a n o r , which applies to the offense of public intoxication. The officers in fo r m e d the friends and relatives of Kovacic who were still at Cheers that t h e y , the officers, were going to transport Kovacic to his hotel, the Value Inn o n Loop 20. At 2:08 a.m., Kovacic was unhandcuffed and released into the p a r k in g lot of an Exxon Speedy Stop gas station at the intersection of Del Mar a n d Loop 20. The Speedy Stop was a convenience store/gas station which was t h e n lighted and open to the public for business, as it was 24 hours a day. It w a s some five to six miles from Kovacic's hotel. The officers stated in their s u m m a r y judgment affidavits that Kovacic insisted that he be dropped off at t h e gas station, where he would call his wife at the hotel to come pick him up. The officers left the parking lot after Kovacic got out of the car. At a p p r o x im a t e ly 2:33 a.m., Kovacic was hit while walking in the roadway of L o o p 20, about 1/4 mile north of the Speedy Stop, by an unknown hit-and-run d r iv e r . He did not regain consciousness and subsequently died from the in ju r ie s he thus received.2 Plaintiffs presented evidence that, as later d e t e r m in e d , Kovacic's blood alcohol at the time he was hit was .205. Plaintiffs, who all have an interest in the estate of Zachary Kovacic, file d this action against Cheers Cocktail Lounge, Officers Villarreal and R u b io , the former Laredo Chief of Police, and the City of Laredo. The original c la im s against appellants were under 42 U.S.C. § 1983 for false arrest, e x c e s s iv e force and failure to protect. The appellants filed a FED. R. CIV. P. 1 2 (b )(6 ) motion to dismiss arguing that the plaintiffs had failed to state a

The next day or so, Kovacic's wallet was found by a third party behind a dumpster at the Speedy Stop. There was no money in it when thus found. Kovacic had cashed a several hundred dollar paycheck earlier in the day on August 9.

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valid constitutional claim. While their motion to dismiss was still pending b e fo r e the district court, appellants filed a motion for summary judgment. The district court issued an order granting in part and denying in part the m o t io n to dismiss. The court dismissed all claims against the officers save for t h e 42 U.S.C. § 1983 due process claim under the "special relationship" t h e o r y . The district court subsequently denied the appellants' motion for s u m m a r y judgment. Appellants here interlocutorily appeal the denial of their m o t io n for summary judgment. DISCUSSION S e c t io n 1983 provides a cause of action for persons who have been " d e p r iv [e d ] of any rights, privileges, or immunities secured by the C o n s t it u t io n and laws" of the United States by the actions of a person or e n tit y operating under color of state law. 42 U.S.C. § 1983. Qualified im m u n it y was created to insulate government officials "from liability for civil d a m a g e s insofar as their conduct does not violate clearly established s t a t u t o r y or constitutional rights of which a reasonable person would have k n o w n ." Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982). To determine if a d e fe n d a n t is entitled to qualified immunity, this court must determine " w h e t h e r the defendant's actions were objectively unreasonable in light of c le a r ly established law at the time of the conduct in question." Freeman, 483 F .3 d at 410-11. In light of the Supreme Court's decision in Pearson v. C a lla h a n , we are permitted to consider the question of whether a defendant is entitled to qualified immunity without determining whether or not the p la in t iff's constitutional rights were violated. 129 S.Ct. 808, 821 (2009). There is a recognized substantive due process right for individuals to b e free from bodily harm caused by the state, but as a general rule, there is n o constitutional duty that requires state officials to protect persons from 5

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private harms. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. 109 S.Ct. 9 9 8 , 1004 (1989). The Supreme Court in DeShaney did recognize that there c o u ld be exceptions to this general rule. One of these exceptions applies when t h e r e is a "special relationship" between the individual and the state. This r e la t io n s h ip is formed "[w]hen the state, through the affirmative exercise of it s powers, acts to restrain an individual's freedom to act on his own behalf `t h r o u g h incarceration, institutionalization, or other similar restraint of p e r s o n a l liberty'." McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir. 2 0 0 2 ) (quoting DeShaney, 109 S.Ct. at 1005). The state does have a c o n s t it u t io n a l duty to protect individuals in such relationship to the state fr o m dangers, which in certain circumstances can include private violence. McClendon, 305 F.3d at 324. We hold that defendants Villarreal and Rubio are entitled to qualified im m u n it y from plaintiffs' section 1983 claim. A constitutional right is clearly e s t a b lis h e d for the purposes of section 1983 only if the law is clear enough s u c h that "a reasonable official would understand that what he is doing v io la t e s that right." Anderson v. Creighton, 107 S.Ct. 3034, 3039 (1987). To d e t e r m in e whether state officials had "fair warning" that their conduct was u n c o n s t it u t io n a l, we consider the status of the law both in our circuit and in o u r sister circuits at the time of the defendants' actions. McClendon, 305 F .3 d 314 at 329. The plaintiffs argue that a "special relationship" existed b e tw e e n Kovacic and the defendant officers because he had been in their c u s t o d y at one point in time and thus the officers should be liable for the p r iv a t e violence perpetrated against him by the hit-and-run driver. Plaintiffs h a v e not referenced a single case in either the district courts or the court of a p p e a ls of this circuit in which state actors were held liable for private harm

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caused to an individual after he was released from custody. In DeShaney it s e lf, the Court held that the state actor at issue, a county Department of S o c ia l Services, had no duty to act because the plaintiff was no longer in the d e p a r t m e n t 's custody and thus his liberty to act on his own behalf was not lim it e d by the state actor. 109 S.Ct. at 1005-06. The plaintiffs do point to a case decided by the Sixth Circuit, Davis v. B r a d y , in which that court found that the plaintiff had a valid section 1983 c la im against police officers who abandoned him in an intoxicated condition o n a highway, where he was subsequently hit by a car and severely injured. 143 F.3d 1021 (6th Cir. 1998). However, the facts in Davis distinguish it from t h e instant case. The plaintiff in Davis testified that he asked the officers not t o be released on the road but the officers threw him out of the car in order to " t e a c h [him] a lesson." Id. at 1023. As stated above, once a defendant invokes q u a lifie d immunity, the burden shifts to the plaintiff to show that the d e fe n d a n t is not entitled to qualified immunity. The plaintiffs in this case h a v e not presented any evidence to contradict Rubio's and Villarreal's a ffid a v it s that Kovacic demanded to be let out of the squad car in the Speedy S t o p parking lot and thus was released from their custody at his request. There is also no evidence in the record that shows that the officers had any r e a s o n to think that Kovacic likely would not call his wife to pick him up as h e indicated, or that the officers were aware that Kovacic was lacking the r e s o u r c e s to secure another way home. Additionally, the Sixth Circuit recognizes the "state-created danger" t h e o r y of section 1983 liability and references it in its opinion in Davis. Id. at 1 0 2 5 . A number of courts have interpreted DeShaney to allow a second e x c e p t io n to the rule against state liability for violence committed by private

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actors in situations where "the state actor played an affirmative role in c r e a t in g or exacerbating a dangerous situation that led to the individual's in ju r y ." McClendon, 305 F.3d at 324. The Fifth Circuit has not adopted the " s t a t e -c r e a t e d danger" theory of liability. See Bustos v. Martini Club Inc., 599 F .3 d 458, 466 (5th Cir. 2010); Rios v. City of Del Rio, 444 F.3d 417, 422 (5th C ir . 2006). As such, the analysis in Davis pertaining to whether the police o ffic e r s put the victim in a more vulnerable position than he would have been o t h e r w is e is not applicable in this circuit and would not put the officers on r e a s o n a b le notice of a constitutional violation. Plaintiffs cite to Walton v. Alexander as their sole support in the Fifth C ir c u it for the "special relationship" theory as applied to this situation. 44 F .3 d 1297 (5th Cir. 1995). In Walton, this court only specifically holds that it a d o p t s the special relationship theory outlined in DeShaney. It does not p r o v id e any support for expanding an officer's duty under section 1983 past t h e point in time when the victim is no longer in the officer's custody. Given t h e lack of any contrary precedent, we hold that reasonable, competent o ffic e r s would not conclude that it would violate Kovacic's constitutional r ig h t s to honor his request that he be let out at the Speedy Stop. No such c o n s t it u t io n a l law was then, or is now, clearly established. The defendant o ffic e r s are entitled to qualified immunity, and the district court's denial of t h e ir motion for summary judgment is reversed. CONCLUSION F o r the foregoing reasons, we REVERSE the district court's order d e n y in g the officers' motion for summary judgment on plaintiffs' section 1983 c la im .

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