Thomas v. City of Kingsville, Texas et al

Filing 113

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS IN PART AND DISMISSING CASE re: 101 Memorandum and Recommendations granting 83 MOTION for Summary Judgment of Defendant Michael Chavana, granting 78 MOTION for Summary Judgment of defendants Wright, Gonzalez, and Del Moral, granting 82 MOTION for Summary Judgment of Defendant Kevin Martinez.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(vrios, 2)

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United States District Court
Southern District of Texas

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

DAVID TYRONE THOMAS,
Plaintiff,
VS.
CITY OF KINGSVILLE, TEXAS, et al.,
Defendants.

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January 11, 2022
Nathan Ochsner, Clerk

CIVIL ACTION NO. 2:18-CV-00136

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
IN PART AND DISMISSING CASE
Pending before the Court are the following: (1) Motion for Summary Judgment
filed by Defendants Robert Wright, Carlos Del Moral, and Emmanuel Gonzalez (D.E. 78);
(2) Motion for Summary Judgment filed by Defendant Kevin Martinez (D.E. 82); and (3)
Motion for Summary Judgment filed by Defendant Michael Chavana (D.E. 83). On March
31, 2021, United States Magistrate Judge Julie K. Hampton issued a Memorandum and
Recommendation (D.E. 101), recommending that the motions be granted on the merits, but
denied on the defense of the statute of limitations, and that Plaintiff’s action be dismissed.
DISCUSSION
Defendants Robert Wright, Carlos Del Moral, and Emmanuel Gonzalez filed
conditional objections (D.E. 103) on April 14, 2021. They seek to preserve their limitations
defense, which was previously rejected by the Court and was again rejected by the
Magistrate Judge. Because the Court, as shown below, adopts the recommendation of the
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Magistrate Judge and dismisses the claims on other grounds, the Court need not, and does
not, reach the conditional objections pertaining to limitations.
Plaintiff filed objections (D.E. 106) on May 7, 2021, and Defendants responded
(D.E. 108). Throughout Plaintiff’s objections, he complains that he needs an additional
opportunity to present evidence either at a hearing (oral argument) or trial. He does not
argue that he was prevented from filing responses with the evidence he wants to raise or
the briefing he wants to advance. Indeed, the gist of his arguments is that the Magistrate
Judge did not accept his evidence over that of the Defendants.
As illustrated more fully below, Plaintiff’s arguments fail to apply the proper
standards of review and rubric applicable to his claims. His request for an additional
opportunity to present evidence or arguments has no legal basis and the objection is
OVERRULED.
A. Claims Against Martinez: Arrest Without Probable Cause
In his summary judgment motion, Martinez claims that (1) he did have probable
cause for the arrest; (2) if not, he is still entitled to qualified immunity; and (3) the claim is
barred by limitations. D.E. 82. The Magistrate Judge recommends a determination in favor
of Martinez on the first two arguments, but not the third. As noted above, the Court does
not reach the third.
Plaintiff’s complaint regarding the probable cause and qualified immunity
recommendations are that Martinez falsely identified the door through which he entered
the house and that he did not field test the substance he discovered to confirm that it was
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an illegal substance. D.E. 106, pp. 4-5. First, the door used is not a fact material to the
decision and thus cannot prevent summary judgment. “Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Second, in separate court proceedings, Plaintiff admitted that he was in possession
of drug paraphernalia in reference to this incident. See M&R, D.E. 101, p. 12. Third, as
the Magistrate Judge noted, probable cause for arrest may exist without the alleged
perpetrator being actually guilty of a crime. Id., p. 13 (citing cases). Last, Plaintiff did not
otherwise challenge the Magistrate Judge’s recommendation to grant summary judgment
on the basis of qualified immunity.
The Court OVERRULES the objections to the recommendations on Martinez’s
motion for summary judgment.
B. Claims Against Chavana: Seizure Without Probable Cause
In his summary judgment motion, Chavana argues that he did not seize Plaintiff in
the course of transporting him to a psychiatric medical facility and that, if he did, he had
probable cause to do so under the circumstances. D.E. 83. Consequently, he claims
qualified immunity. He also raises the limitations defense. The Magistrate Judge assumes
that Chavana’s restraint of Plaintiff constituted a seizure, but that he had probable cause
for that seizure, recommending that the defense of qualified immunity be granted and the
claim dismissed.
limitations defense.
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Again the Magistrate Judge recommends denying the alternative

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Plaintiff objects, claiming that Chavana’s recitation of the reason that he was called
to get Plaintiff psychiatric help was the concern of his family, not reports from strangers.
D.E. 106, pp. 5-6. He complains that the restraint was a seizure and that it was without
probable cause. Id, pp. 6-7. Assuming—as the Magistrate Judge did—that Chavana did
seize Plaintiff, the Court agrees that the uncontroverted evidence shows that the seizure
was done with probable cause.
First, Plaintiff does nothing to show that the concerns of strangers on which
Chavana acted, confirmed by healthcare providers, were false or that he knew them to be
false. Thus they are sufficient to support probable cause. Second, whether the concern
originated with family or strangers, the result was the same: both thought Plaintiff needed
medical help. And Chavana sought that on his behalf. A disputed fact issue must be
material to the decision to preclude summary judgment. Anderson, 477 U.S. at 248. This
is not a material fact dispute.
The Court OVERRULES the objections to the recommendations on Chavana’s
motion for summary judgment.
C. Claims Against Wright, Del Moral, and Gonzalez: Excessive Force
In their summary judgment motion, Wright, Del Moral, and Gonzalez argue that
they did not engage in excessive force because any force used to restrain and transport
Plaintiff was reasonable and necessary because of his resistance. They also argue that
Plaintiff did not suffer any injury from the encounter or that the injury was de minimis so
as to preclude the excessive force claim. Last, they seek a limitations bar to the claims.
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D.E. 78. The magistrate judge rejected the limitations claim and found that the evidence
showed that the undisputed facts justified the use of reasonable force and that the force
used was not excessive. She found that Plaintiff did not sustain his summary judgment
burden to show any injury from the alleged use of force.
Plaintiff objects, claiming that the healthcare providers told him he could leave the
facility and that no one advised him otherwise. So he wanted to leave and felt unlawfully
detained. D.E. 106, pp. 8-10. In the course of his argument, he admits that he was noncompliant and resisted the officers’ efforts to restrain and transport him. At the same time,
he suggests that he was compliant and submissive. A party cannot create a fact question
by offering his own inconsistent testimony. Doe ex rel. Doe v. Dallas Indep. Sch. Dist.,
220 F.3d 380, 386 (5th Cir. 2000). Regardless, the evidence is clear that he wanted to leave
the facility without the officers and was prevented from doing so. He then argues that he
was subjected to excessive force of being slammed against a door or wall and injured.
As the Magistrate Judge found, Plaintiffs’ claims of force were refuted by
eyewitness testimony and the claims of injury were refuted by healthcare records showing
that Plaintiff was seen the day after the event and exhibited no injuries. See M&R, D.E.
101, pp. 30-31. The only healthcare record that could be related to a claimed injury—the
chipped tooth—was three years removed from the event and indicated that the need for
tooth repair was merely “restorable decay.” D.E. 93-1. Plaintiff thus failed to sustain his
burden of proof to show excessive force.

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The Court OVERRULES the objections to the recommendations on Wright, Del
Moral, and Gonzalez’s motion for summary judgment.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Plaintiff’s
objections, and all other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation
to which objections were specifically directed, the Court OVERRULES Plaintiff’s
objections. The Court does not reach Wright, Del Moral, and Gonzalez’s conditional
objections regarding the statute of limitations bar. With the exception of the disposition of
the limitations defense, which the Court need not reach, the Court ADOPTS as its own the
findings and conclusions of the Magistrate Judge.
Accordingly, the Court ORDERS that:
• the Motion for Summary Judgment filed by Defendants Robert Wright,
Carlos Del Moral, and Emmanuel Gonzalez (D.E. 78) is GRANTED on
the merits for failure to demonstrate evidence of excessive force;
• the Motion for Summary Judgment filed by Defendant Kevin Martinez
(D.E. 82) is GRANTED on the issue of probable cause and the defense
of qualified immunity; and

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• the Motion for Summary Judgment filed by Defendant Michael Chavana
(D.E. 83) is GRANTED on the issue of probable cause and the defense
of qualified immunity.
This action is DISMISSED WITH PREJUDICE in its entirety.
ORDERED on January 11, 2022.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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