Ramirez v. Jim Wells County, Texas et al

Filing 91

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 66 Opposed MOTION for Summary Judgment on Qualified Immunity, 87 Memorandum and Recommendations.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
REYNALDO RAMIREZ,

§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. C-09-209
§
JIM WELLS COUNTY, TEXAS, et al, §
§
Defendants.
§

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
TO GRANT IN PART AND DENY IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

On June 20, 2011, United States Magistrate Judge B. Janice Ellington
signed a Memorandum and Recommendation (D.E. 87) recommending that
Defendant Martinez’s Qualified Immunity Motion for Summary Judgment (D.E.
66) be granted in part and denied in part.

On July 5, 2011, Defendant Joe

Martinez filed his “Objections to the Magistrate Judge’s Memorandum and
Recommendation.”

D.E. 88.

The Magistrate Judge’s Memorandum and

Recommendation, as supplemented herein, is adopted as the Court’s own.
Defendant Martinez asserts that the Magistrate erred in failing to consider
his state law claims and holding that those claims were not addressed in
Martinez’s motion. After reviewing Martinez’s Motion for Summary Judgment
(D.E. 66), the Court holds that the state law claims of official immunity, assault
and battery, and false arrest and imprisonment were raised:
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In light of the video, Ramirez cannot prove any set of
facts that would allow him to prevail on his § 1983
excessive force claim. Ramirez cannot preserve his
complaint through his state-law assault and battery
claim either. Under Texas law, a peace officer is
privileged to use force as reasonably necessary to
detain an individual. Tex. Dept. of Public Safety v.
Petta, 44 S.W.3d 575, 579 (Tex. 2001). As a result,
Texas law compels the same result of dismissal on
summary judgment.
Motion, p. 5 (emphasis added). A state law official immunity claim was addressed
at pages 7 to 8 of the Motion and again at page 12, and the state law false arrest
and imprisonment claim was raised at page 11.
However, Martinez presented them as claims that rise or fall with the
corresponding federal claims, all of which are tied to the significance of the video.
Because the Court does not share Defendant’s confidence in the conclusive nature
of the video, summary judgment on the state law claims, while raised, must fail.
Having reviewed the findings of fact and conclusions of law in the
Magistrate Judge’s Memorandum and Recommendation (D.E. 87), as well as the
pleadings on file and Defendant’s objections, and having made a de novo
disposition of those portions of the Magistrate Judge’s recommended disposition
to which objections were raised, see Koetting v. Thompson, 995 F.2d 37 (5th Cir.
1993), 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b), the Court hereby adopts as
its own the findings and conclusions of the Magistrate Judge as supplemented
herein.

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Accordingly, it is ORDERED that Defendant Martinez’s Qualified
Immunity Motion for Summary Judgment (D.E. 66) is GRANTED IN PART and
DENIED IN PART.
ORDERED this 12th day of September, 2011.

_________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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