Escobar v. Montee et al

Filing 40

MEMORANDUM OPINION AND ORDER granting in part and denying in part 28 Motion for Summary Judgment filed by Lance Montee. (Ordered by Judge Sidney A Fitzwater on 3/30/2017) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ISRAEL ESCOBAR,
Plaintiff,
VS.
LANCE MONTEE, et al.,
Defendants.

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§ Civil Action No. 3:15-CV-1962-D
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MEMORANDUM OPINION
AND ORDER
This is an action by plaintiff Israel Escobar (“Escobar”) against defendant Lance
Montee (“Officer Montee”), a Grand Prairie Police Department canine officer, seeking to
recover under 42 U.S.C. § 1983 on a Fourth Amendment excessive force claim and on other
claims. Officer Montee moves for summary judgment based on qualified immunity.
Because the summary judgment record reflects that there is a genuine issue of material fact,
the court denies Officer Montee’s motion as to Escobar’s Fourth Amendment excessive force
claim. The court otherwise dismisses Escobar’s claims against Officer Montee.
I
Because this case is the subject of a prior memorandum opinion and order, see
Escobar v. Montee, 2016 WL 397087 (N.D. Tex. Feb. 2, 2016) (Fitzwater, J.) (“Escobar I”),
the court will recount only the background facts and procedural history necessary to
understand the present decision.
On or about February 22, 2014, shortly after 9:00 p.m., Escobar had an argument and

physical altercation1 with his wife in a restaurant parking lot.2 After the altercation ended,
Escobar drove his wife to a Walmart parking lot, where she exited the vehicle, and he then
returned to his residence located in Grand Prairie, Texas. After spending a few minutes at
his residence, Escobar decided to return to the Walmart to pick up his wife. As he was about
to depart, he observed a police vehicle at his residence.
Escobar decided to exit his residence through the back door because he feared the
consequences of a run-in with the police. He took refuge near the back porch of a house a
few blocks away. While he was hiding, a helicopter dispatched from the Texas Department
of Public Safety (“DPS”), Garland Office, arrived at the scene and notified the officers on
the ground that someone was in the backyard two houses to the west of the officers’ location.
According to the Incident History Detail transcribed from statements over the police radio,
it was determined that Escobar was lying on the ground “in [a] fetal position.” D. App. 6.
After Escobar’s location was determined, Officer Montee and the other officers at the
scene formulated a plan. They had been informed that Escobar was armed with a knife, and
that his mother had told the police that Escobar told her that the police would have to kill him
to catch him. After several unsuccessful attempts to contact the owner of the residence
1

Escobar alleges that his wife told the police that he struck her with his hand, which
he contends is a class “A” misdemeanor assault offense under the Texas Penal Code.
2

In deciding Officer Montee’s summary judgment motion, the court views the
evidence in the light most favorable to Escobar as the summary judgment nonmovant and
draws all reasonable inferences in Escobar’s favor. See, e.g., Owens v. Mercedes-Benz USA,
LLC, 541 F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l
Ass’n v. Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
-2-

where Escobar was hiding, Officer Montee threw his canine, a German Shepherd named
“Bullet,” over the fence. According to Escobar, when he heard a police officer with a dog
rounding the corner of the house, he dropped the knife in his possession and lay flat on the
ground with his face down, because he feared what the dog might do to him.
Police then entered the yard where Escobar was hiding and ordered him to get down
on the ground. Without warning, Bullet attacked Escobar, biting him in the middle upper
calf area of his leg while Bullet shook his head violently. After approximately 30 seconds
had elapsed, Bullet let go of the middle upper calf area of Escobar’s leg and took a second
bite, this time of Escobar’s outside upper calf area.3 During both dog bites, Escobar
continually yelled for the dog to be taken off of him. After approximately 30 more seconds
of the second dog bite, one of the police officers yelled a command to Bullet, causing the dog
to stop biting immediately.
Escobar brought this suit under 42 U.S.C. § 1983 against Officer Montee and “John
Does 1-10,”4 alleging that Officer Montee violated these constitutional rights: to be free from
unreasonable seizure; to be free from the use of unreasonable, unnecessary, and excessive

3

Officer Montee contends that he gave only one command to Bullet to seize Escobar,
and that, although Bullet may have lost his grip and therefore bit and held Escobar a second
time during the struggle, he only saw Bullet bite and hold Escobar once. Officer Montee also
posits that the entire struggle between the time Bullet first made contact with Escobar to the
time that officers gained control of the struggling Escobar and took him into custody was
about 30 seconds.
4

Escobar sues John Does 1-10 on claims of indifference and failure to intervene to
stop dog attack, denial of medical treatment, and intrusion on seclusion.
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force; and to have medical care for injuries received while in custody.5 Officer Montee
moved to dismiss Escobar’s Fourth Amendment claims asserted against him on the basis of
qualified immunity. In Escobar I the court granted Officer Montee’s motion in part,
dismissing Escobar’s claim that Officer Montee used excessive and unreasonable force, in
violation of the Fourth Amendment, when he initially released Bullet over the fence to bite
and hold Escobar, and when he failed to provide a warning before releasing Bullet. Escobar
I, 2016 WL 397087, at *5-7. The court denied Officer Montee’s motion to dismiss Escobar’s
§ 1983 claim, however, to the extent that Escobar alleged that Officer Montee delayed in
removing Bullet after it was clear that Escobar had surrendered his weapon and was not
resisting arrest:
Accepting the well-pleaded facts as true and viewing them
favorably to Escobar, the complaint alleges that Officer Montee
permitted Bullet to bite and hold Escobar for at least 60 seconds,
even though Escobar was lying on the ground with his hands
extended “like a parachute man,” was not actively resisting
arrest, was calling out for the dog to be removed, and, at some
point during the 60 seconds, dropped his knife. In sum,
according to Escobar’s complaint, at the time Bullet attacked
him, he was neither resisting nor fleeing, and any rational cause
to fear resistance or flight had dissipated. Any reasonable
officer would have understood that the Fourth Amendment
prohibits continued force, particularly such extreme force as
allowing a dog to bite Escobar’s leg for over one minute,
causing injuries of the severity alleged[.]

5

In Escobar I Officer Montee did not move to dismiss or seek a Rule 7(a) reply
regarding Escobar’s § 1983 claim based on Officer Montee’s alleged violation of his
constitutional right to medical care for injuries received while in custody. See Escobar I,
2016 WL 397087, at *3 n.6.
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Id. at *10.
Officer Montee now moves for summary judgment on the remaining claims asserted
against him based on qualified immunity. Escobar opposes the motion.
II
When a summary judgment movant will not have the burden of proof on a claim at
trial, he can obtain summary judgment by pointing the court to the absence of evidence on
any essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). Once he does so, the nonmovant must go beyond his pleadings and designate
specific facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is
genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s
failure to produce proof as to any essential element renders all other facts immaterial. See
TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater,
J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little,
37 F.3d at 1076.
When qualified immunity has been raised, “[t]he moving party is not required to meet
[his] summary judgment burden for a claim of immunity.” Hathaway v. Bazany, 507 F.3d
312, 319 (5th Cir. 2007) (citation omitted). Rather, the movant need only plead his
good-faith entitlement to qualified immunity, whereupon “the burden shifts to the plaintiff
to rebut it.” Id. (citation and emphasis omitted); see also Gates v. Tex. Dep’t of Protective
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& Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008) (noting that when government
official pleads qualified immunity, plaintiff must “rebut the defense by establishing that the
official’s allegedly wrongful conduct violated clearly established law and that genuine issues
of material fact exist regarding the reasonableness of the official’s conduct”). Once qualified
immunity is asserted, the burden shifts to the plaintiff to demonstrate the inapplicability of
the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)
(per curiam).
III
Qualified immunity jurisprudence is well settled. “[G]overnment officials performing
discretionary functions generally are shielded from liability for civil damages insofar as 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).
Qualified immunity applies to state officials sued for constitutional violations under § 1983.
See id. at 818 n.30 (citing Butz v. Economou, 438 U.S. 478, 504 (1978)); Palmer v. Johnson,
193 F.3d 346, 351 (5th Cir. 1999). “‘Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments,’ and ‘protects all but the plainly
incompetent or those who knowingly violate the law.’” Thompson v. Mercer, 762 F.3d 433,
437 (5th Cir. 2014) (some internal quotation marks omitted) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011)).
“To decide whether defendant[] [is] entitled to qualified immunity, the court must first
answer the threshold question whether, taken in the light most favorable to plaintiff[] as the
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part[y] asserting the injuries, the facts [he has] alleged show that defendant[’s] conduct
violated a constitutional right.” Ellis v. Crawford, 2005 WL 525406, at *3 (N.D. Tex. Mar.
3, 2005) (Fitzwater, J.) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required
to rule upon the qualified immunity issue must consider, then, this threshold question: Taken
in the light most favorable to the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right? This must be the initial inquiry.”)).6 “If no
constitutional right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201.
“[I]f a violation could be made out on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly established.” Id. Finally, “[e]ven if
the government official’s conduct violates a clearly established right, the official is
nonetheless entitled to qualified immunity if his conduct was objectively reasonable.”
Wallace v. Cnty. of Comal, 400 F.3d 284, 289 (5th Cir. 2005) (citing Hare v. City of Corinth,
135 F.3d 320, 325 (5th Cir. 1998) (en banc)). “The objective reasonableness of allegedly
illegal conduct is assessed in light of the legal rules clearly established at the time it was
taken.” Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992) (citing Anderson v. Creighton,
483 U.S. 635, 639 (1987)). “‘The defendant’s acts are held to be objectively reasonable

6

Saucier’s two-step procedure for determining qualified immunity is no longer
mandatory. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts are free to consider
Saucier’s second prong without first deciding whether the facts show a constitutional
violation. Id. The “decision does not prevent the lower courts from following the Saucier
procedure; it simply recognizes that those courts should have the discretion to decide whether
that procedure is worthwhile in particular cases.” Id. at 242.
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unless all reasonable officials in the defendant’s circumstances would have then known that
the defendant’s conduct violated the’ plaintiff’s asserted constitutional or federal statutory
right.” Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 284 (5th Cir.
2002) (quoting Thompson v. Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001)).
IV
The court begins with Officer Montee’s motion for summary judgment on Escobar’s
Fourth Amendment excessive force claim.
A
“The Fourth Amendment’s protection against unreasonable seizures of the person has
been applied in causes of action under 42 U.S.C. § 1983 to impose liability on police officers
who use excessive force against citizens.” Colston v. Barnhart, 130 F.3d 96, 102 (5th Cir.
1997). “‘To prevail on an excessive force claim, a plaintiff must establish: (1) injury (2)
which resulted directly and only from a use of force that was clearly excessive, and (3) the
excessiveness of which was clearly unreasonable.’” Ramirez v. Knoulton, 542 F.3d 124, 128
(5th Cir. 2008) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)) (some internal
quotation marks omitted).
There is no dispute that Escobar suffered an injury. “The relevant question in this
case is whether the force was ‘clearly excessive’ or ‘clearly unreasonable.’” Id. In assessing
the reasonableness of the use of force, the court must give “careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others, and whether he
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is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490
U.S. 386, 396 (1989). “The ‘reasonableness’ of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Graham, 490
U.S. at 396) (some internal quotation marks omitted). This is an objective standard: “the
question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.”
Graham, 490 U.S. at 397. “The calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 396-97.
B
To the extent Escobar bases his Fourth Amendment claim on Bullet’s biting him a
second time or Bullet’s biting and holding him at a point after Officer Montee allegedly knew
that Escobar ceased to pose a threat to fight or flee, Officer Montee contends that his use of
force was not unreasonable. He maintains that, although he now knows that Bullet bit
Escobar twice, he only issued one order to Bullet to bite and hold Escobar; he only saw
Bullet bite and hold Escobar one time; when Bullet is using a bite and hold method, he will
attempt to seize the subject and hold on until he is directed to release the hold, and if he loses
his grip on the suspect for any reason before he is directed to release his hold, he will bite or
attempt to bite again; that Bullet might lose his grip if the subject struggles or pulls away, if
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the subject’s leg is slippery with sweat, or if the type of clothing the subject is wearing could
cause him to lose his grip; that because Escobar was armed with a knife and reportedly was
willing to go to such extreme lengths as to make police officers kill him rather than arrest
him, there was a known particular need to control Escobar and take care to make sure that
he was unarmed before the officers took any other steps; and that Officer Montee therefore
did not direct Bullet to release Escobar until other officers at the scene had Escobar
handcuffed and under their control. Officer Montee also posits that if Escobar was bitten a
second time, or if Bullet held Escobar for a period of time Escobar believes was
constitutionally unreasonable, there is no one to blame but Escobar himself. Officer Montee
argues in his brief:
Escobar was a large man (6’1” & at least 200 pounds), who
feloniously beat his wife, desperately trespassed across
numerous yards even reportedly climbing onto a roof trying to
escape from Police. He was armed with a knife, and the knife
remained in the immediate vicinity even after Escobar dropped
it. Escobar struggled with Officers even after K-9 Bullet had
seized him, and as the Court can see, the struggle with Officers
was going on for about 30 seconds captured on the helicopter
video. There simply was no excessive force by Officer Montee
concerning his decision to use K-9 Bullet to seize Escobar using
a bite and hold technique without an advance warning, and
concerning using K-9 Bullet to bite and hold Escobar until
Escobar was under control of the four Officers who struggled
with him. Even if a second bite was given to Escobar by K-9
Bullet, the entirety of the bite and hold, which included two
bites, was not unreasonable under governing Fourth Amendment
standards.
D. Br. 15-16.
Escobar responds by pointing to video evidence from the DPS helicopter that he
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contends “clearly establishes” that Officer Montee had ample time to use his standard
training, and that he ignored clearly established precedents on the proper use of force for
police canines. Escobar contends that, as depicted in the video, Officer Montee released
Bullet at timestamp 22:29:44 while Escobar was lying motionless on the porch; that the video
further establishes that Escobar had been lying on the ground not moving for at least 13
minutes; that, at timestamp 22:30:03, the video shows that Bullet was still attacking; and that,
at timestamp 22:30:17, the DPS helicopter video shows that Bullet was biting Escobar’s leg
despite the fact that he had already surrendered. Escobar maintains that he surrendered
before Bullet bit him, and that this raises a fact issue as to whether the prolonged use of
Bullet was justified; he was motionless in the fetal position for at least 13 minutes; he was
not going anywhere and was not actively resisting arrest; he had dropped his knife and was
not actively resisting once Bullet initially bit him; he was lying face down on the
ground—not in the fetal position—when Bullet initially bit him, which demonstrates that he
had clearly submitted and surrendered; and the DPS helicopter video does not show any
active resistance before Bullet bit him, and does not show any additional resistance after
Bullet attacked. Finally, Escobar points out that although the underlying offense was an
assault, it did not involve a deadly weapon or serious bodily harm, and although there was
flight, there was never any evidence of physical resistance against any officer.7

7

Escobar also argues that Officer Montee’s releasing Bullet without giving a warning
was constitutionally unreasonable, and that “based on the totality of the circumstances, the
use of a bite and hold on [Escobar] was patently unreasonable and excessive.” P. Br. 11. In
Escobar I, however, the court dismissed Escobar’s § 1983 claim based on Officer Montee’s
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Officer Montee replies, inter alia, that Escobar was holding his knife when Officer
Montee first saw him, but that even if Escobar had dropped the knife when he first saw
Bullet, it is undisputed that the knife remained close enough to Escobar that he could have
reached it and could possibly have used it to harm Officer Montee, another police officer, or
Bullet, and that Officer Montee thought it was reasonable to have Bullet seize and hold
Escobar until the knife was secure or until Escobar was securely in custody. Officer Montee
also contends that, although Escobar estimates the passage of time as totaling about one
minute, the time sequence lasted approximately 30 to 35 seconds in total; that Officer
Montee’s time estimate is confirmed by the DPS helicopter video, which shows Bullet first
reaching Escobar’s location at timestamp 22:29:45 and shows the entire struggle lasting from
timestamp 22:30:04 to timestamp 22:30:35; that the video shows Escobar struggling and
moving, even with multiple officers on the patio trying to grab him to carry out his arrest;
that there was a need not only to seize Escobar and handcuff him, but also to locate and
secure Escobar’s knife; and that, under the totality of circumstances that Officer Montee
knew of and faced, it was reasonable for Officer Montee to use Bullet to seize Escobar by
biting and holding him until he was under control, handcuffed, and his knife was secure.

decision to initially release Bullet over the fence to bite and hold Escobar without first
issuing a warning. Escobar I, 2016 WL 397087, at *5, 7. Accordingly, in deciding Officer
Montee’s motion for summary judgment, the court considers only whether there is a genuine
issue of material fact concerning Escobar’s remaining constitutional claim asserted against
Officer Montee—i.e., Escobar’s claim that Officer Montee used excessive force when he
delayed in removing Bullet even after it was clear that Escobar had surrendered his weapon
and was not resisting arrest.
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C
The court concludes that although a reasonable jury could accept Officer Montee’s
version of the facts and find in his favor at trial, a genuine issue of material fact precludes
summary judgment on the question whether Officer Montee’s use of force was
constitutionally excessive. The court reaches this conclusion for largely the same reasons
that it denied Officer Montee’s motion to dismiss Escobar’s claim that Officer Montee used
excessive force when he delayed removing Bullet even after it was clear that Escobar had
surrendered his weapon and was not resisting arrest. In Escobar I the court explained:
In assessing the objective reasonableness of the use of canine
force, courts routinely consider the duration of a dog bite. See,
e.g., Trammell v. Thomason, 335 Fed. Appx. 835, 844 (11th Cir.
2009) (reversing summary judgment in favor of officer on
§ 1983 claim where there was evidence that dog attack lasted
“for a significant period of time,” and jury might find “that the
officers failed to stop the attack promptly after they became
aware that [plaintiff] was not the suspect.”); Priester v. City of
Riviera Beach, 208 F.3d 919, 925 (11th Cir. 2000) (overturning
qualified immunity for officer whose dog’s attack on the
restrained plaintiff “may have lasted as long as two minutes ”);
Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir.
1998) (holding that “excessive duration of the bite . . . could
constitute excessive force”); Campbell v. City of Springboro,
Ohio, 788 F.Supp.2d 637, 671 (S.D. Ohio 2011) (noting that
“[t]he final factor suggesting the force applied against Campbell
was excessive is the duration of the attack,” and holding that,
because “[t]here is evidence suggesting that [officer] allowed
[dog] to continue to bite [suspect] for an extended period of
time, up to forty-five seconds . . . [and suspect] maintains that he
did not kick [dog]” or refuse to comply with officer’s orders,
officer was not entitled to summary judgment on plaintiff’s
excessive force claim), aff’d, 700 F.3d 779, 787 (6th Cir. 2012);
Dunn v. Nance, 2009 WL 1956429, at *7 (D. Idaho July 6,
2009) (“Ordering or allowing a police canine to bite a suspect
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for more than one minute under the circumstances described
above [i.e., the plaintiff was lying flat on the ground, not
resisting, and with his arms outstretched in full view of the
officers] could amount to excessive force.”). Officers are
generally expected to remove a dog once it becomes clear that
the suspect no longer poses an immediate threat of harm and is
not actively resisting or evading arrest. See, e.g., Edwards v.
Shanley, 666 F.3d 1289, 1296 (11th Cir. 2012) (“[T]he Graham
factors compel the conclusion that [the officer] used
unreasonable force when he subjected [the suspect] to five to
seven minutes of dog attack, while [the suspect] was pleading to
surrender and [the officer] was in a position to immediately
effect [the suspect’s] arrest.”); Carter v. Marion, 2013 WL
5220180, at *10 (M.D. Ga. Sept. 16, 2013) (holding that officers
were not entitled to qualified immunity where dog was
permitted to continue attacking plaintiff even after he “was
compliant with the . . . officers, lying face down, arms above his
head, and posing no threat of bodily harm to the officers or
others [and] was not attempting to flee and was asking the
officers for help and to call off the canine.”); Calton [v. City of
Garland], 2004 WL 2965005, at *3 [(N.D. Tex. Dec. 10, 2004)
(Godbey, J.)] (holding that “officer’s release of a police dog on
a suspect of a misdemeanor traffic offense who is making no
threatening actions and is not actively resisting at the time of the
release was objectively unreasonable.”). In other words, “even
where deploying a dog to bite and hold a suspect is reasonable,
an officer may use excessive force by allowing the dog to
continue biting and holding a suspect who has ceased to pose a
threat to fight or flee.” Becker v. City of Evansville, 2015 WL
328895, at *11 (S.D. Ind. Jan. 26, 2015).
Escobar I, 2016 WL 397087, at *8 (most alterations in original).
Viewing the evidence in a light most favorable to Escobar as the summary judgment
nonmovant, and drawing all reasonable inferences in Escobar’s favor, a reasonable jury could
find that Officer Montee used excessive force by allowing Bullet to continue biting and
holding Escobar after it became apparent to Officer Montee that Escobar was no longer

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armed and was not resisting arrest. For example,8 Escobar has adduced evidence that when
he first heard Bullet rounding the corner of the house, he dropped the knife that was in his
pocket, turned over onto his stomach to indicate that he was giving up and did not want to
resist, and he did not resist arrest.9 This evidence would enable a reasonable jury to find that,
just before Bullet attacked, Escobar no longer posed an immediate threat to the safety of the
officers and others, and that “although Escobar had initially fled from the officers who came
to his residence, he was no longer ‘actively resisting arrest or attempting to evade arrest by
flight.’” Escobar I, 2016 WL 397087, at *9 (quoting Graham, 490 U.S. at 396).
D
In Escobar I the court concluded at the Rule 12(b)(6) stage that it was clearly
established at the time of the incident that, under the circumstances alleged, Officer Montee’s
delay in removing Bullet from Escobar’s leg violated the Fourth Amendment. See id. at *910. Now at the summary judgment stage, viewing the evidence in a light most favorable to
Escobar as the summary judgment nonmovant, and drawing all reasonable inferences in
Escobar’s favor, the court holds that a reasonable jury could find that Officer Montee
permitted Bullet to bite and hold Escobar for more than 30 seconds (possibly as long as 60

8

“When this court denies rather than grants summary judgment, it typically does not
set out in detail the evidence that creates a genuine issue of material fact.” Valcho v. Dall.
Cnty. Hosp. Dist., 658 F.Supp.2d 802, 812 n.8 (N.D. Tex. 2009) (Fitzwater, C.J.) (citing
Swicegood v. Med. Protective Co., 2003 WL 22234928, at *17 n.25 (N.D. Tex. Sept. 19,
2003) (Fitzwater, J.)).
9

Video evidence from the DPS helicopter is not inconsistent with Escobar’s version
of what happened.
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seconds) even though Escobar had dropped his knife before Bullet attacked him, was lying
face down on the ground, was not actively resisting arrest, and was “begging the cops to take
the dog off [him].” P. App. 3. The evidence would further permit the reasonable finding that
“[a] massive piece of muscle, fat and skin was completely ripped from [Escobar’s] left le[g]
[and] detached from the bone,” and that officers on the scene “laughed while [Escobar] was
lying on the ground in extreme pain.” Id. Based on the summary judgment evidence, a
reasonable jury could find that, “at the time Bullet attacked [Escobar], he was neither
resisting nor fleeing, and any rational cause to fear resistance or flight had dissipated.”
Escobar I, 2016 WL 397087, at *10. As the court held in Escobar I, “[a]ny reasonable
officer would have understood that the Fourth Amendment prohibits continued force,
particularly such extreme force as allowing a dog to bite Escobar’s leg for [up to] one minute,
causing injuries of the severity alleged.” Id. (citing Becker, 2015 WL 328895, at *27).
Accordingly, although Officer Montee has offered a version of the incident that, if
credited by the jury, would entitle him to qualified immunity, because Escobar has presented
evidence that creates a genuine issue of material fact on this question, the court denies
Officer Montee’s motion for summary judgment on Escobar’s Fourth Amendment excessive
force claim based on qualified immunity.
V
Officer Montee moves for summary judgment on Escobar’s claim for denial of
medical treatment (including any alleged delay in medical care or deprivation of medical care
at the scene).
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A
Under the Fourteenth Amendment, an arrestee “has a ‘constitutional right to be secure
in his basic human needs, such as medical care and safety.’”10 Dyer v. City of Mesquite, Tex.,
2017 WL 118811, at *8 (N.D. Tex. Jan. 12, 2017) (Boyle, J.) (quoting Hare v. City of
Corinth, 74 F.3d 633, 647-48 (5th Cir. 1996)). A state official violates that right when he
“act[s] or fail[s] to act with deliberate indifference to the [arrestee]’s needs.” Id. at 648.
“Deliberate indifference encompasses only unnecessary and wanton infliction of pain
repugnant to the conscience of mankind.” Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir.
2009) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).
A plaintiff alleging deliberate indifference must show that: (1) “each defendant had
subjective knowledge of ‘facts from which an inference of substantial risk of serious harm
could be drawn’”; (2) “each defendant actually drew that inference”; and (3) “each
defendant’s response to the risk indicates that [he] ‘subjectively intended that harm occur.’”
Id. (quoting Thompson, 245 F.3d at 458-59). It is not enough that the official was
negligent—only a “subjective intent to cause harm” supports a finding of deliberate
indifference. Mace v. City of Palestine, 333 F.3d 621, 626 (5th Cir. 2003).
B
Officer Montee contends that there is no evidence that there was a deprivation or even

10

The mere delay of medical care can also constitute a constitutional violation, but
only if the official causing such delay acts with deliberate indifference that results in
substantial harm. See Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).
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a delay in furnishing medical treatment at the scene: once Escobar was handcuffed and had
stopped struggling, officers examined him and quickly decided to apply a tourniquet to his
left leg because of the amount of bleeding; officers then searched the scene to determine that
it was secure, and, approximately one minute after the officers had Escobar in custody, a
request for an ambulance was made; the ambulance arrived on the scene within just a few
minutes; and Officer Montee had no involvement with Escobar once Escobar left the scene
in an ambulance. Officer Montee maintains that, in any event, Escobar cannot show that
Officer Montee’s actions in relation to Escobar’s medical care were so egregious that no
reasonable officer could have believed the conduct was constitutional.
Escobar has not responded to Officer Montee’s arguments. Although Escobar’s
failure to respond does not permit the court to enter a “default” summary judgment on this
claim, see, e.g., Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex.
1990) (Fitzwater, J.), “[a] summary judgment nonmovant who does not respond to the motion
is relegated to [its] unsworn pleadings, which do not constitute summary judgment
evidence,” Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.)
(citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). Moreover,
[i]f a party fails . . . to properly address another party’s assertion
of fact as required by Rule 56(c), the court may . . . (2) consider
the fact undisputed for purposes of the motion [and] (3) grant
summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the movant is entitled to it[.]
Rule 56(e)(2), (3).

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The court concludes that, to the extent Escobar alleges that Officer Montee deprived
him of the right to medical care for injuries received while in custody by delaying the call
for medical treatment at the scene, Officer Montee is entitled to summary judgment
dismissing this claim. This is so because Escobar has failed to adduce any evidence that
would permit a reasonable jury to find that Officer Montee denied Escobar medical treatment
or delayed in providing him medical treatment, or that Officer Montee acted with deliberate
indifference to Escobar’s needs.
VI
Officer Montee also moves for summary judgment on Escobar’s claim for “intrusion
upon seclusion,” which is based on allegations that, while he was lying incapacitated in his
hospital bed, “one or more of the unidentified John Doe Defendants [took] photographs of
[Escobar] on his camera phone . . . exclusively for the sadistic amusement of that officer and
others.” Compl. ¶ 103. Officer Montee contends, inter alia, that this entire claim is based
on actions by unidentified John Doe defendants once Escobar reached the hospital; Officer
Montee swears that he had no involvement at any point after Escobar received on-the-scene
treatment and was transported to the hospital.
Escobar has not responded to Officer Montee’s arguments. To the extent that Escobar
intends to bring his intrusion on seclusion claim against Officer Montee—and there is no
indication in the complaint that he does—the court grants Officer Montee’s motion and
dismisses this claim.

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*

*

*

Accordingly, for the reasons explained, the court dismisses Escobar’s claims for
denial of his right to medical care and for intrusion on seclusion to the extent Escobar asserts
these claims against Officer Montee. The court otherwise denies Officer Montee’s motion
for summary judgment because there is a genuine issue of material fact that precludes the
court from holding that he is entitled to qualified immunity.
SO ORDERED.
March 30, 2017.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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