Dilbeck v. City of Corpus Christi, Texas et al

Filing 49

ORDER GRANTING SUMMARY JUDGMENT; granting 30 Motion for Summary Judgment; granting 31 Motion for Summary Judgment. This action is DISMISSED. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

December 12, 2016
David J. Bradley, Clerk

DOROTHY DILBECK,

§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 2:15-CV-326
§
CITY OF CORPUS CHRISTI, TEXAS, et §
al,
§
§
Defendants.
§
ORDER GRANTING SUMMARY JUDGMENT
Plaintiff, Dorothy Dilbeck, Individually and as Representative of the Estate of
Walter Allen Bell, filed this action against the City of Corpus Christi, Texas (City) and its
police officer, Richard L. Olden (Officer Olden), Individually, alleging civil rights
violations under 42 U.S.C. § 1983 and state law assault claims related to the alleged
beating of Walter Allen Bell, resulting in his death. Before the Court are summary
judgment motions filed by both Defendants. D.E. 30, 31. After the motions were filed,
Plaintiff’s counsel withdrew from her representation. D.E. 43.
To ensure that Plaintiff had notice of the summary judgment motions and an
opportunity to respond, the Court entered an Order on November 1, 2016, setting the
submission date for the motions as November 30, 2016, and cautioning Plaintiff that the
case may be dismissed if she failed to respond to the motions. D.E. 46. That Order was
served on Plaintiff by certified mail and her executed return receipt shows that she
received the Order on November 7, 2016. D.E. 48. The deadline has passed and Plaintiff

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has failed to file a response to either motion or otherwise appear in the case to seek relief
from potential dismissal.
A. Defendant City of Corpus Christi, Texas
Plaintiff has alleged theories of liability against the City of Corpus Christi based
upon § 1983 with respect to the Fourth Amendment prohibition against unreasonable
search and seizure, the use of excessive force, and failure to intervene to prevent injuries.
Also based on § 1983, Plaintiff alleges failure to supervise, failure to train, and
acquiescence in unconstitutional behavior of the police officers. In anticipation of a
municipal liability defense, Plaintiff pled a custom, practice, or policy of using excessive
and deadly force to effectuate routine arrests or when not appropriate, ignoring the need
for training and supervision of police officers, and failing to discipline, supervise, and
train, particularly with respect to the use of deadly force, proper handling of individuals
with mental illness, and using alternative means to effectuate control and arrest. D.E. 1.
Plaintiff claims that the City was deliberately indifferent to Bell’s rights.
The City seeks summary judgment because: (1) Officer Olden did not violate
Bell’s constitutional rights; (2) Plaintiff cannot demonstrate municipal liability under
Monell v. New York Department of Social Services, 436 U.S. 658, 690 (1978); and (3)
Plaintiff cannot maintain a cause of action for failure to intervene against the City. D.E.
30. The first ground is supported by the affidavit of Officer Olden. D.E. 30-1. Plaintiff
has failed to controvert the affidavit with any evidence to the contrary. Her complaint
was not accompanied by evidence and she did not file any response to the motion. Thus

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the City is entitled to summary judgment that Officer Olden, and hence the City, did not
violate Bell’s civil rights.
The City denies any policy or widespread practice that encourages or contributes
to the violation of individuals’ constitutional rights as alleged in this case. This argument
is supported by the affidavits of Jason Brady and Kelly Isaacks. D.E. 30-2, 30-3. Again,
Plaintiff has failed to controvert that evidence with evidence of her own. There being no
proof of a City policy or widespread practice of permitting civil rights violations, the City
is entitled to summary judgment on the basis of Monell.
The City claims that its police officers in general, and Officer Olden in particular,
are adequately trained in the use of force, use of deadly force, and alternative means of
detaining individuals. D.E. 30-3 (Affidavit of Kelly Isaacks and training records of
Officer Olden).

Plaintiff offered no controverting evidence.

The City further

demonstrated that it properly supervises its police officers in general and Officer Olden in
particular and does not fail to discipline officers who have engaged in the use of
excessive force. D.E. 30-2 (Affidavit of Brady). Plaintiff has provided no evidence to
the contrary. Thus the City is entitled to summary judgment on these claims.
Plaintiff’s claim for failure to intervene is a claim addressed to the conduct of a
specific officer under specific conditions. It thus is not a cause of action addressed to the
City’s liability. Even if construed as a viable claim against the City, Monell prevents
assignment of liability without proof of a policy or custom that supported the errant
conduct. There being no evidence to support liability under Monell, this claim fails.

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For all of the reasons set out in the City’s motion for summary judgment (D.E.
30), the City is entitled to summary judgment dismissing all of Plaintiff’s claims against
it.
B. Defendant Richard L. Olden
With respect to Officer Olden, Plaintiff alleged theories of liability based upon
§ 1983 with respect to the Fourth Amendment prohibition against unreasonable search
and seizure, the use of excessive force, and failure to intervene to prevent injuries. She
also alleges a state law claim for assault.

D.E. 1.

Officer Olden seeks summary

judgment on the basis of qualified immunity, no evidence to support an excessive force
claim, and no evidence to support the failure to intervene claim. D.E. 31. Each of these
defenses requires Plaintiff to offer evidence in support of her claims and to defeat the
defenses. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002); Fed. R.
Civ. P. 56(c), (e). No evidence was submitted with her complaint and she has not filed
any response to the motion. Thus Officer Olden is entitled to summary judgment.
CONCLUSION
For the reasons set out above, the Court GRANTS the City’s motion (D.E. 30) and
Officer Olden’s motion (D.E. 31) that they are entitled to summary judgment on all of
Plaintiff’s claims. This action is DISMISSED.
ORDERED this 12th day of December, 2016.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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