Curley v. Gonzalez
Memorandum Opinion and Order granting 18 Motion for Summary Judgment filed by Joshua Gonzalez. The court dismisses with prejudice all federal claims asserted against Gonzalez. With respect to the state law claims asserted by Curley, the court dismisses them without prejudice for the reasons herein stated. (Ordered by Judge Sam A Lindsay on 9/30/2017) (epm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
Civil Action No. 3:15-CV-1341-L
MEMORANDUM OPINION AND ORDER
Before the court is Defendant’s Motion for Summary Judgment based on Qualified
Immunity, filed September 23, 2016. Ronald Curley (“Curley” or “Plaintiff”) did not file a
response to the motion. After careful consideration of the motion, brief of Defendant Joshua
Gonzalez (“Defendant” or “Gonzalez”), appendix, record, and applicable law, the court grants
Defendant’s Motion for Summary Judgment.
Curley filed this action on April 30, 2015, against Gonzalez. The lawsuit arises from a
traffic stop performed by Gonzalez, a City of Dallas, Texas police officer, in which he detained
Curley and ultimately arrested him on June 7, 2013, for unlawful possession of cocaine, a
controlled substance under the Texas Health and Safety Code.
Memorandum Opinion and Order – Page 1
Plaintiff asserts federal claims pursuant to 42 U.S.C. §§ 1983 1 and 1985(3). 2 He sues for
an unlawful and unreasonable seizure under the Fourth Amendment to the United States
Constitution (“Constitution”), and deprivation of procedural and substantive due process pursuant
to the Fifth and Fourteenth Amendments to the Constitution. Finally, he alleges state law claims
for racial profiling, malicious prosecution, and negligence. Curley seeks $75,000 in actual
damages, $500,000 in punitive damages, and recovery of attorney’s fees.
Gonzalez has filed a motion for summary judgment requesting the court to grant summary
judgment and dismiss all federal claims because there is no genuine dispute of material facts
regarding the federal claims and Gonzalez is entitled to judgment as a matter of law on all of
Plaintiff’s federal claims.
With respect to Plaintiff’s state law claims, Gonzalez requests that the court dismiss these
claims pursuant to section 101.106(f) of the Texas Tort Claims Act, unless Plaintiff files within 30
days of the date Gonzalez filed his summary judgment motion an amended complaint dismissing
Gonzalez and naming the City of Dallas as the proper defendant.
Motion for Summary Judgment Standard When No Response Is Filed
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.
Title 42 U.S.C. § 1983 is a federal statute that allows a person to bring a civil action against
another person who, acting under color of state law, deprives him or her of a right or privilege secured by
the United States Constitution or laws of the United States.
Title 42 U.S.C. § 1985(3) is a federal statute that “prohibits conspiracies to ‘deprive . . . any person
or class of persons the equal protection of the laws’ and those aimed at preventing a person from voting.”
Montoya v. FedEx Ground Package Sys. Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing 42 U.S.C. §
Memorandum Opinion and Order – Page 2
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (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 (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 (2000); Anderson, 477 U.S. at 25455.
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 (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.’” Id. (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,
Memorandum Opinion and Order – Page 3
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. 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.
As previously stated, Curley filed no response to the summary judgment motion. This
failure, of course, does not permit the court to enter a “default” summary judgment. Eversley v.
Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). A court, however, is permitted to accept the
movant’s facts as undisputed when no response or opposition is filed. Id. Normally, “[a] summary
judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings,
which do not constitute summary judgment evidence.” Bookman v. Schubzda, 945 F. Supp. 999,
1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir.
1991)). Curley’s pleadings are not verified and, therefore, he has presented no summary judgment
evidence, and the court is permitted to accept Gonzalez’s evidence as undisputed as long as it
meets the standard set forth in this section.
Memorandum Opinion and Order – Page 4
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 (1982). A
defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo,
446 U.S. 635, 640 (1980). Gonzalez has asserted this defense in his motion to dismiss.
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 (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 (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. 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.”
Memorandum Opinion and Order – Page 5
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).
The following facts, for purposes of the court’s ruling, are undisputed:
At all times relevant to the incident giving rise to Curley’s claims, Gonzalez was
employed by the City of Dallas as an officer of the Dallas Police Department (“DPD”). At all
times relevant to the incident giving rise to Curley’s claims, Gonzalez’s duties as a DPD patrol
officer included investigating crimes and making warrantless seizures of persons.
On June 7, 2013, at about 10:00 p.m., Gonzalez was in uniform and on routine
patrol in a marked DPD squad car traveling westbound in the center lane of Wheatland Road near
its intersection with South Polk Street in Dallas, Texas. Prior to reaching the intersection,
Gonzalez signaled his intent to move from the center lane to the right lane of traffic. As Gonzalez
prepared to change lanes, he saw a white 2004 Dodge Dakota pickup truck pull up alongside him
in the right lane. Gonzalez slowed his patrol car to allow the Dakota to move ahead, but it neither
accelerated nor decelerated to allow Gonzalez to move over to the right lane. The Dakota drove at
the same rate of speed as did Gonzalez until the two vehicles reached the intersection.
Gonzalez saw the Dakota make a right turn northbound onto Polk Street. Once the
Dakota turned onto Polk Street, Gonzalez changed lanes and continued his patrol northbound on
Polk Street. Shortly thereafter, Gonzalez saw the Dakota make a right turn into the parking lot of
a convenience store without signaling 100 feet before turning.
Memorandum Opinion and Order – Page 6
Texas Transportation Code § 545.104(b) requires that an operator of a motor
vehicle intending to turn to the right or left signal continuously for not less than the last 100 feet
of movement of the vehicle before the turn. A violation of Texas Transportation Code §
545.104(b) is a misdemeanor offense. Tex. Transp. Code § 542.301. Gonzalez performed a traffic
stop on the Dakota by turning on his patrol car’s overhead emergency lights. Gonzalez identified
the driver of the Dakota as Ronald Curley.
Sometime after the traffic stop, Gonzalez observed, in plain view, a white powdered
substance that appeared to be cocaine in a plastic cellophane wrapper. The substance was field
tested, and the test was positive for cocaine. Curley was subsequently arrested for unlawful
possession of cocaine, which is a criminal offense under section 481.115 of the Texas Health and
Gonzalez did not conduct the traffic stop because of Curley’s ethnicity, nationality,
or race, and he did not racially profile Curley. The traffic stop occurred at night, and the windows
on the Dakota were “rolled up.” Gonzalez could not see inside the Dakota, and he did not know
the ethnicity, nationality, or race of Curley or the other two occupants in the Dakota prior to the
The Traffic Stop and Probable Cause
The constitutional tort of unreasonable seizure requires a showing that probable cause did
not exist to seize the individual. Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001) (footnote
omitted). The court, therefore, begins its analysis by setting forth the meaning of probable cause
in the context of an arrest or detention. Probable cause means “facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution,
Memorandum Opinion and Order – Page 7
in believing, in the circumstances shown, that [one] has committed, is committing, or is about to
commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (citations omitted). When
determining whether a reasonable person would have believed that an offense occurred, a court
considers the expertise and experience of law enforcement officials. United States v. Garcia, 179
F .3d 265, 268 (5th Cir. 1999) (citing United States v. Ortiz, 442 U.S. 891, 897 (1975)). “Probable
cause ‘does not demand any showing that [the belief that an offense was committed] be correct or
more likely true than false.’” Piazza v. Mayne, 217 F.3d 239, 245-46 (5th Cir. 2000) (quoting
Texas v. Brown, 460 U.S. 730, 742 (1983)). In determining whether probable cause exists, a court
is required to find a basis for an officer to believe to a “fair probability” that an offense occurred.
Id. (citing United States v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985)) (citations omitted). A
“fair probability” does not mean that a reasonable person would have believed it more likely than
not, which is a preponderance of the evidence standard, that an offense occurred. Garcia, 179 F.3d
at 269; Antone, 753 F.2d at 1304. It means “something more than a bare suspicion, but need not
reach the fifty percent mark.” Garcia, 179 F.3d at 269; see also United States v. Watson, 273 F.3d
599, 602 (5th Cir. 2001).
A police officer who has probable cause to believe that a person has committed even a
minor offense may arrest the offender, and the arrest does not violate the Fourth Amendment.
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). Based on the undisputed evidence
presented by Gonzalez, he observed a violation of the Texas Transportation Code committed in
his presence. Accordingly, probable cause existed for Gonzalez to stop and detain, and even arrest,
Curley for the traffic offense, and no constitutional violation occurred.
Memorandum Opinion and Order – Page 8
Plaintiff’s Arrest for Possession of Cocaine
Once again, the undisputed evidence establishes that Gonzalez, based upon his training and
experience, had probable cause to believe that Curley was in possession of cocaine, a violation of
section 481.115 of the Texas Health and Safety Code. As probable cause existed, the arrest of
Curley was lawful, and no constitutional violation occurred, and Gonzalez is entitled to judgment
as a matter of law on the unlawful or unreasonable seizure claim asserted by Curley, and the court
will grant summary judgment in his favor on this claim.
Sections 1983 and 1985(3)
Section 1983 “provides a claim against anyone who, ‘under color of state law,’ deprives
another person of his or her constitutional rights.” Townsend v. Moya, 291 F.3d 859, 861 (5th Cir.
2002) (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994) (en banc)). As
Curley did not file a response and has produced no evidence to establish, or raise a genuine dispute
of material fact, that he has been deprived of a federally protected right, his section 1983 claim
fails as a matter of law, and the court will grant summary judgment in favor of Gonzalez on this
With respect to section 1985(3), this statute “prohibits conspiracies to ‘deprive . . . any
person or class of persons the equal protection of the laws’ and those aimed at preventing a person
from lawfully voting.” Montoya v. FedEx Ground Package Sys. Inc., 614 F.3d 145, 149 (5th Cir.
2010) (citing 42 U.S.C. § 1985(3)). “To state a cognizable claim under § 1985(3), [a plaintiff]
must allege that (1) a racial or class-based discriminatory animus lay behind the conspiracy and
(2) the conspiracy aimed to violate rights protected against private infringement.” Horaist v.
Doctor’s Hosp. of Opelousas, 255 F.3d 261, 270 (5th Cir. 2001) (citations and footnote omitted).
Plaintiff has not provided any competent summary judgment evidence to establish, or raise a
Memorandum Opinion and Order – Page 9
genuine dispute of material fact, that Gonzalez conspired with anyone to deprive him of equal
protection of the laws because of his race, ethnicity, nationality, or any class-based discriminatory
animus; or to prevent him from lawfully voting. Accordingly, Gonzalez is entitled to judgment as
a matter of law, and the court will enter summary judgment in his favor on this claim.
Selective Prosecution and Racial Profiling
To the extent Curley asserts federal claims for selective prosecution or racial profiling,
such claims necessarily fail. Gonzalez has produced competent summary judgment evidence that
none of his actions in detaining and arresting Curley was racially motivated or based on any classbased discriminatory animus. As previously noted, Curley has offered no summary judgment
evidence to contradict Gonzalez’s testimony, or raise a genuine dispute of material fact, regarding
the bases for his initial detention and subsequent arrest. Accordingly, Gonzalez is entitled to
judgment as a matter of law on these claims, and the court will enter summary judgment in his
favor on these claims.
Due Process and Other Possible Federal Claims
Plaintiff’s Complaint is not a model of pellucid draftsmanship. To ensure that the court
has addressed and ruled on all of federal claims arguably raised by Curley, the court expressly
determines that Plaintiff’s procedural and substantive due process claims, and any other federal
claim arguably raised but not specifically addressed in this opinion, necessarily fail because
Gonzalez has produced competent summary judgment evidence that he did not violate any
constitutionally protected right of Curley, and Curley has produced no summary judgment
evidence to raise a genuine dispute of material fact that Gonzalez violated any of his
constitutionally protected rights.
Memorandum Opinion and Order – Page 10
As the court has determined that no constitutional violation has occurred regarding any of
the federal claims asserted by Plaintiff, the court need not discuss the second prong of qualified
immunity. Saucier v. Katz, 533 U.S. at 201. In other words, the court has determined as a matter
of law that Gonzalez committed no constitutional violation against Curley, and the second prong
of the qualified immunity analysis is moot. Thus, the court will not engage in any further analysis
of qualified immunity or address any arguments by Gonzalez that he is entitled to summary
judgment because of qualified immunity.
Plaintiff’s State Law Claims
Curley has asserted state law claims of racial profiling, malicious prosecution, and
negligence. Gonzalez contends that the state law torts against him should be dismissed because
Curley has not filed an amended pleading dismissing him and naming the City of Dallas as a
defendant. The court agrees.
The relevant portion of the Texas Tort Claims Act provides:
If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and if it could
have been brought under this chapter against the governmental unit, the suit is
considered to be against the employee in the employee’s official capacity only. On
the employee’s motion, the suit against the employee shall be dismissed unless the
plaintiff files amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date the motion
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (West 2011). Under Texas law, “[b]ecause the
Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the
government, all tort theories alleged against a governmental unit, whether it is sued alone or
Memorandum Opinion and Order – Page 11
together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of
section 101.106.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W. 3d 653, 659 (Tex. 2008)
(citation omitted). Although Mission involved an analysis and application of section 101.106(e),
section 101.106(f) “must be governed by the same rule Mission applied in construing [section
101.106](e).” Franka v. Velasquez, 332 S.W. 3d 367, 380 (Tex. 2011).
From the allegations set forth in Plaintiff’s Complaint and the undisputed facts, the court
has no pause in determining that Curley filed this action against Gonzalez based on his conduct
within the general scope of his duties as a police officer of the City of Dallas, and that the suit
could have been brought against the City of Dallas under that chapter. Curley filed no amended
pleading dismissing Gonzalez as a defendant and naming the City of Dallas as the defendant.
Accordingly, Curley’s state law claims of racial profiling, selective prosecution, and negligence
will be dismissed pursuant to section 101.106(f). As the dismissal involves immunity, it appears
to be a jurisdictional matter; therefore, the dismissal pursuant to section 101.106(f) will be without
Even if the state law claims should not be dismissed pursuant to section 101.106(f), an
alternative basis exists to dismiss them pursuant to 28 U.S.C. § 1367. Under 28 U.S.C. § 1367,
the court has supplemental jurisdiction over Plaintiffs’ state law claims. Because the court has
dismissed the federal claims over which it had original jurisdiction, the court must decide whether
to retain jurisdiction over the remaining state law claims. Supplemental jurisdiction over state law
claims is a “doctrine of discretion, not of plaintiff’s right.” United Mine Workers of America v.
Gibbs, 383 U.S. 715, 726 (1966). A federal court has broad discretion in deciding whether to
exercise supplemental jurisdiction over state law claims after all federal law claims have been
Memorandum Opinion and Order – Page 12
dismissed. See 28 U.S.C. § 1367(c)(3); Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993). Section
1367(c) provides that a district court may decline to exercise supplemental jurisdiction over a state
law claim if:
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially
predominates over the claim or claims over which the district court has original
jurisdiction, (3) the district court has dismissed all claims over which it has original
jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c). In addition, other factors a court is to consider in determining whether to
exercise supplemental jurisdiction over a state law claim include judicial economy, convenience,
fairness, and comity. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988); Enochs v.
Lampass Cty., 641 F.3d 155, 159 (5th Cir. 2011) (citing Carnegie-Mellon and referring to “judicial
economy, convenience, fairness, and comity” as the “common law factors”).
The court has considered that no federal claims remain, and it has considered each of the
common law factors. After such consideration, the court concludes that none of the common law
factors warrants exercising jurisdiction over the state law claims and making an exception to the
general rule that a federal court should decline the exercise of jurisdiction when no federal claims
remain. Accordingly, the court declines to exercise jurisdiction over Curley’s state law claims,
and the court will dismiss them pursuant to 28 U.S.C. § 1367(c).
For the reasons herein stated, the court grants Defendant’s Motion for Summary Judgment
as to Curley’s federal claims. The court dismisses with prejudice all federal claims asserted
against Gonzalez. With respect to the state law claims asserted by Curley, the court dismisses
them without prejudice for the reasons herein stated. The court will enter judgment in accordance
Memorandum Opinion and Order – Page 13
with this opinion and order by separate document as required by Federal Rule of Civil Procedure
It is so ordered this 30th day of September, 2017.
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order – Page 14
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