Castillo et al v. City of Fort Worth, Texas et al
MEMORANDUM OPINION AND ORDER: The court ORDERS that Jones's 35 motion for summary judgment be, and is hereby, granted, that plaintiffs take nothing on their claims against Jones, and that such claims be, and are hereby, dismissed with prejudice. The court further ORDERS that plaintiffs take nothing on their claims against defendant City of Fort Worth and that such claims be, and are hereby, dismissed with prejudice. (Ordered by Judge John McBryde on 12/5/2017) (bdb)
IN THE UNITED STATES DISTRI
NORTHERN DISTRICT OF TE! AS
~C-·FORT WORTH DIVISION
DEC - 5 2017
JESSICA CASTILLO, Individually,
and as Next Friend of Ricky
Bronx Brumley, ET AL.,
CLERK, U.S. DISTRICT COURT
CITY OF FORT WORTH, TEXAS,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant Officer
for summary judgment. The court,
having considered the motion, the response of plaintiffs, Jessica
Castillo ("Castillo"), individually and as next friend of Ricky
Bronx Brumley ("Ricky"); Tiffany Meza ("Meza"),
as next friend of Damien Brumley ("Damien"), Adrian Brumley
("Adrian"), and Jason Brumley ("Jason"); and Sonia Perez
("Perez"), as next friend of Sarah Perez ("Sarah"), the record,
the summary judgment evidence, and applicable authorities,
that the motion should be granted. In addition, the court finds
that judgment should be rendered in favor of defendant City of
ORTHER1'\J DISTRICT OF TEX,\S
Plaintiffs' operative pleading is their second amended
complaint filed July 7, 2017. Doc. 1 27. In it, they allege:
Castillo is the mother of Daniel Jon Brumley, Jr.
("Brumley") and the legal guardian of Brumley's minor son Ricky.
Meza is the widow of Brumley and mother of Damien, Adrian, and
Jason, minor children of Brumley. Perez is the mother of Sarah,
another minor child of Brumley.
Just after 4:00 a.m. on January 17, 2015, Brumley was pulled
over for a traffic stop by Jones, a member of the Fort Worth
Police Department. Jones was driving a K-9 unit, meaning that the
back seat of the car was occupied by a police dog and cage. Jones
spoke with Brumley, then returned to his police car to check on
warrants for Brumley, a process that took more than five minutes.
Brumley had an outstanding warrant and Jones decided to take him
into custody before backup transport had arrived. Jones ordered
Brumley out of his vehicle and escorted him to the rear of the
police car. At some point a struggle ensued.' Jones shot Brumley
twice in the back, then fired two additional shots, including one
to the top of the head, which resulted in Brumley's death. Jones
" reference is to the number of the item on the docket in this action.
'Plaintiffs admit that it is unknown who instigated the struggle. Doc. 27 at 6, if 15.
subsequently claimed that Brumley had a knife and had attempted
to stab him.
Plaintiffs sue Jones under 42 U.S.C.
1983 for use of
excessive force against Brumley. They sue City of Fort Worth for
failure to train and for having a custom and policy of use of
excessive force by its police department.
Ground of the Motion
Jones maintains that he is entitled to qualified immunity.
Applicable Legal Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
Id. at 324; see also Fed. R. Civ. P. 56(c)
asserting that a fact
the assertion by
is genuinely disputed must support
citing to particular parts of materials in
• If )
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
In Mississippi Prot. & Advocacy
Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
Celotex Corp., 477 U.S. at 323.
If the record taken as a
ln Boeing Co. v. Shipman, 4 I I F.2d 365, 3 74-75 (5th Cir. 1969) (en bane), the Fifth Circuit
(continued ... )
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
929 F.2d at 1058.
The elements of an excessive force claim are (1) an injury,
that resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness was clearly
unreasonable. Freeman v. Gore, 483 F.3d 404, 416
A use of deadly force is presumptively reasonable when an officer
has reason to believe that the suspect poses a threat of serious
harm to the officer or to others. Mace v. City of Palestine, 333
F.3d 621, 624
(5th Cir. 2003).
The reasonableness of use of force is to be determined from
the perspective of the officer on the scene and not with "the 2020 vision of hindsight." Mace, 333 F.3d at 625
(quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). That the officer himself may
have created the situation does not change the analysis. In other
words, that the officer could have handled the situation better
is not a factor in the constitutional analysis. Young v. City of
Killeen, 775 F.2d 1349, 1352-53
(5th Cir. 1985). See also City
( ... continued)
explained the standard to be applied in determining whether the comi should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
Cty. Of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777
(2015) (failure to follow training does not itself negate
entitlement to qualified immunity) .
Qualified immunity insulates a government official from
civil damages liability when the official's actions do not
•violate clearly established statutory or constitutional rights
of which a reasonable person would have known."
Fitzgerald, 457 U.S. 800, 818
For a right to be •clearly
established," the right's contours must be •sufficiently clear
that a reasonable official would understand that what he is doing
violates that right.•
Anderson v. Creighton, 483 U.S. 635, 640
Individual liability thus turns on the objective legal
reasonableness of the defendant's actions assessed in light of
clearly established law at the time.
Hunter v. Bryant, 502 U.S.
(1991); Anderson, 483 U.S. at 639-40.
In Harlow, the
court explained that a key question is "whether that law was
clearly established at the time an action occurred" because "[i]f
the law at that time was not clearly established, an official
could not reasonably be expected to anticipate subsequent legal
developments, nor could he fairly be said to 'know• that the law
forbade conduct not previously identified as unlawful.•
In assessing whether the law was clearly established at
the time, the court is to consider all relevant legal authority,
whether cited by the parties or not.
Elder v. Holloway, 510 U.S.
If public officials of reasonable competence
could differ on the lawfulness of defendant's actions, the
defendant is entitled to qualified immunity.
475 U.S. 335, 341
Malley v. Briggs,
(1986); Fraire v. City of Arlington, 957 F.2d
(5th Cir. 1992).
"[A]n allegation of malice is not
sufficient to defeat immunity if the defendant acted in an
objectively reasonable manner."
Malley, 475 U.S. at 341.
In analyzing whether an individual defendant is entitled to
qualified immunity, the court considers whether plaintiff has
alleged any violation of a clearly established right, and, if so,
whether the individual defendant's conduct was objectively
Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett
v. City of Cedar Park,
950 F.2d 272, 276-80
(5th Cir. 1992).
so doing, the court should not assume that plaintiff has stated a
claim, i.e., asserted a violation of a constitutional right.
Siegert, 500 U.S. at 232.
Rather, the court must be certain
that, if the facts alleged by plaintiff are true, a violation has
(5th Cir. 1989).
Connelly v. Comptroller, 876 F.2d 1209, 1212
A mistake in judgment does not cause an officer
to lose his qualified immunity defense.
In Hunter, the Supreme
The qualified immunity standard "gives ample room for
mistaken judgments" by protecting "all but the plainly
incompetent or those who knowingly violate the law."
Mallev, [475 U.S.] at 343. . .
This accommodation for
reasonable error exists because "officials should not err
always on the side of caution" because they fear being sued.
502 U.S. at 229.
When a defendant relies on qualified immunity, the burden is
on the plaintiff to negate the defense. Kovacic v. Villarreal,
628 F.3d 209,
211 (5th Cir. 2010); Foster v. City of Lake
Jackson, 28 F.3d 425, 428
(5th Cir. 1994). Although Supreme Court
precedent does not require a case directly on point, existing
precedent must place the statutory or constitutional question
beyond debate. White v. Pauly, 137 s. Ct. 548, 551 (2017). That
is, the clearly established law upon which plaintiff relies
should not be defined at a high level of generality, but must be
particularized to the facts of the case. Id. at 552. Thus, the
failure to identify a case where an officer acting under similar
circumstances was held to have violated a plaintiff's rights will
most likely defeat the plaintiff's ability to overcome a
qualified immunity defense. Id.; Surratt v McClarin, 851 F.3d
(5th Cir. 2017).
The Summary Judgment Evidence
The summary judgment evidence establishes the following:
Early on January 17, 2015, Jones stopped a vehicle driven by
Brumley after he observed Brumley commit traffic violations. Doc.
37 at 1. Jones went to Brumley's vehicle on the driver's side,
identified himself, and told Brumley the reason for the stop. Id.
Jones observed blood on Brumley's fingers. Id. at 2. Jones took
Brumley's driver's license and returned to his patrol car. He
learned that Brumley had several class C misdemeanor warrants and
a capias warrant. 4 He learned that Brumley had been involved in
incidents with Fort Worth Police including narcotics violations,
assault/family violence, and evading arrest. Jones confirmed that
the capias warrant for Brumley was valid and called dispatch to
ask for assistance because he was driving a K-9 unit and could
not transport Brumley. Jones saw that his assist unit was 2-3
minutes away and decided to remove Brumley from his vehicle, not
knowing whether Brumley had access to weapons in the vehicle. Id.
Jones approached Brumley a second time and asked him to exit
the vehicle. Brumley did so and immediately started to walk
When Jones learned of the capias warrant, he had no choice but to arrest Brumley. Doc. 37 at
quickly towards the back of his car. Brumley's hands were hidden
in his sweatshirt sleeves. Jones inquired about the dried blood
on Brumley's hands to get Brumley to stop walking, as it appeared
that Brumley was trying to walk away from Jones. Id. Brumley
mumbled a response about wrestling with a friend.
Id. at 3. Jones
gave verbal commands to stop that Brumley disobeyed. Id. at 3,
107. Jones tried to put Brumley in an escort hold,
to place handcuffs on him. Id. at 3. As he began to place the
handcuff on Brumley's left wrist, Brumley spun around and struck
Jones on his left side multiple times.' Jones attempted knee
strikes to Brumley's leg, but realized that Brumley was armed
with a knife in his right hand. Jones ordered Brumley to drop the
knife, but he did not. Jones told Brumley he would shoot if
Brumley did not drop the knife. Jones fired his weapon twice. Id.
Brumley fell to the ground and so did Jones, who was holding the
handcuff attached to Brumley's arm. Brumley still had the knife
and Jones believed Brumley to pose a serious threat to him. Jones
attempted to stand up and get away when Brumley lurched forward
and stabbed Jones twice in the left thigh. Jones fired twice
more. Id. at 4. Jones noticed that the knife was stuck in his
An escort hold is a control tactic whereby the officer grabs a wrist or forearm to esc01i the
subject to the place the officer wants the subject to go. Doc. 37 at l 08.
An officer who photographed Jones 's injuries noted that there was redness on the left side of his
rib cage area and there were cuts and tears in his uniform shhi. Doc. 37 at 6-13.
leg; he pulled the knife out and collapsed to the ground. Id. at
Officers recovered a knife measuring more than six inches
in length at the scene. Id. at 18-21, 28.
Jones called for help and the first officer on the scene
observed that Jones had been stabbed in his left leg. Id. at 3031. The officer applied a tourniquet. Id. at 31. Jones appeared
disoriented and in a lot of pain, appearing to be going into
shock. Id. at 32. En route to the hospital, Jones lapsed between
unconsciousness and acting like he was still engaged in a
struggle, calling out "drop the knife" several times. Id. at 27.
Cheri Anguiano ("Anguiano") lives in a house diagonally
across from the scene of the incident. Doc. 38 at 163, 291. She
watched from her door as events unfolded. Id. at 174. She grabbed
her grandson's phone to record the scene. Id. at 188, 230. The
video Anguiano took from the door of her home does not clearly
reflect anything that transpired.' Id. at 295.
As part of his investigation, Sergeant N.E. Harris conducted
a telephone interview of Anguiano. Id. at 22. During that
interview, Anguiano made it clear that after hearing the first
she went into shock, walking away from the door where
she had been watching the proceedings to check on her
Anguiano did not tell police or the district attorney that she had the video. Instead, she later
tumed it over to plaintiffs' attomeys. Doc. 37 at 245-48.
grandchildren. She did not see anything after the first shot;
that is why she said she did not see a fight. Doc. 38 at 294. She
heard three more shots and called 911. Id.
Jones is Entitled to Qualified Immunity
Here, plaintiffs rely on little more than mere allegations
in their attempt to overcome Jones's plea of qualified immunity.
Their response to the motion is to question the facts established
by the summary judgment evidence rather than raise genuine fact
issues. For example, they cite to text messages between Brumley
and a woman he had slept with prior to being pulled over to
explain why he had blood on his hand. Doc. 5 at 4-5. The exchange
is irrelevant to the issue of qualified immunity. Further, they
question whether Jones followed proper police procedures, when it
is clear that the officer's actions leading up to the use of
force do not factor into the qualified immunity analysis. Young,
775 F.2d at 1352-53. They argue that Anguiano did not see Brumley
swing at Jones, but the evidence establishes that it was dark and
difficult to see and Anguiano went into shock and turned away at
the first gunshot. She viewed the events from a house and a half
away and did not possess the same perspective as Jones. See Sudac
v. Hoang, 378 F. Supp.2d 1298, 1311 (D. Kan. 2005).
The cases plaintiffs cite are clearly distinguishable. Doc.
50 at 7. For example, in Cooper v. Brown, the officer could see
the suspect's hands; he had no weapon and was actively complying
and not resisting the officer's orders. 844 F.3d 517, 522
Cir. 2016). In Deville v. Marcantel, a woman with her grandchild
in the car was stopped for a minor traffic violation; she would
not leave the child alone in the car so the officer immediately
broke out the window and dragged her from the car. 567 F.3d 156,
167 (5th Cir. 2009).
In this case,
"[p]laintiffs acknowledge that there is
[Brumley] attempted to stab Officer Jones." Doc. 50
at 8. The summary judgment evidence establishes that Brumley
stabbed Jones and that Jones perceived that Brumley posed a
threat of serious harm to him. Brumley refused to drop the weapon
after being ordered to do so and Brumley continued to assault
Jones after the first two shots were fired. Doc. 37 at 3-4.
Jones's use of deadly force was objectively reasonable. Elizondo
v. Green, 671 F.3d 506, 510 (5th Cir. 2012). Although Jones might
have taken another course of action, the court does not use the
vision of 20-20 hindsight to judge the reasonableness of his
actions. Mace, 333 F.3d at 625.
Claims against City of Fort Worth Must Be Dismissed
Inasmuch as Jones did not use excessive force,
not have been a constitutional violation by City of Fort Worth.
See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986);
Elizondo v. Green, 671 F.3d 506, 510-11 (5th Cir. 2012).
Therefore, City of Fort Worth is entitled to judgment as a matter
of law. The court is satisfied that no purpose would be served in
giving notice and an opportunity to respond to a proposed
dismissal of the claims against City of Fort Worth. See Fed. R.
Civ. P. 56(f). The claims against it necessarily fail because
there was no constitutional violation by its officer, Jones.
Heller, 475 U.S. at 799. Elizondo, 671 F.3d at 510-11.
For the reasons discussed herein,
The court ORDERS that Jones's motion for summary judgment
be, and is hereby, granted, that plaintiffs take nothing on their
claims against Jones, and that such claims be, and are hereby,
dismissed with prejudice.
The court further ORDERS that plaintiffs take nothing on
their claims against defendant City of Fort Worth and that such
claims be, and are hereby, dismissed with prejudice.
SIGNED December 5, 2017.
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