Charlot v L D Smith, et al

Filing 25

MEMORANDUM OPINION granting 13 MOTION to Dismiss , granting 8 MOTION to Dismiss (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
May 27, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEVEN CHARLOT,
Plaintiff,
v.
CITY OF HOUSTON, et al.,
Defendants.

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David J. Bradley, Clerk

CIVIL ACTION NO. H-15-3028

MEMORANDUM OPINION
Pending

before

the

court1

are

Defendants

Frank

Medina

(“Officer Medina”) and Eduardo Martinez’ (“Officer Martinez”)
Motion to Dismiss (Doc. 8); Defendants Curtis Ford (“Sergeant
Ford”) and Traci Seals’ (“Sergeant Seals”) Motion to Dismiss (Doc.
13).

The court has considered the motions, the responses, all

other relevant filings, and the applicable law.

For the reasons

set forth below, the court GRANTS both motions.
I.

Case Background

Plaintiff filed this civil-rights action against multiple
defendants, alleging violations of his constitutional rights in
connection with a body-cavity search performed while Plaintiff was
in custody.
A.

Factual Background
On April 20, 2015, Officer Medina, an undercover police

1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Docs. 18, 19, 21,
24.

officer

for

the

Houston

Police

Department

(“HPD”),

allegedly

received a tip about Plaintiff’s involvement in illegal drug
activity.2

The tip led Officer Medina to a gas station on Elgin

St., where he observed what appeared to Officer Medina to be a
narcotics transaction conducted by Plaintiff from an automobile
that matched the description given by the tipster.3

When Plaintiff

drove away from the gas station, Officer Medina followed him.4
A

few

blocks

later,

Officer

Medina

allegedly

observed

Plaintiff’s failure to signal a turn and directed Defendants L.D.
Smith (“Officer Smith”) and M.J. Glover (“Officer Glover”), HPD
police officers traveling in a marked vehicle, to stop Plaintiff
for the infraction.5

Officers Smith and Glover asked Plaintiff for

permission to search his vehicle, to which he allegedly consented.6
The search allegedly returned prescription pills that were not in
Plaintiff’s name.7
The officers summoned an HPD K-9 officer to the scene, and the
dog

alerted

to

the

front-middle

console

area

automobile, but no additional drugs were found.8
2

Doc. 1, Compl. p. 4.

3

Id. pp. 4-5.

4

Id. p. 5.

5

Id.

6

Id.

7

Id.

8

Id.

2

of

Plaintiff’s

Officers Smith

and Glover arrested Plaintiff and transported him to HPD’s central
jail facility.9
Officer Smith performed a search incident to arrest, felt
something between Plaintiff’s buttocks, and requested a strip
search.10 A jail officer notified Sergeant Ford of the request, and
then the jail officer conducted “a quick search” of Plaintiff.11
The jail officer indicated that he also felt something between
Plaintiff’s buttocks.12 After briefing Sergeant Ford, Officer Smith
asked Sergeants Ford and Seals to approve a strip search.13
Sergeant Ford communicated with the lieutenant in charge,
after which Sergeant Ford informed Officer Smith that “a strip
search WOULD NOT be performed” and instructed Officer Smith to
convince Plaintiff to remove the object himself.14 Upon Plaintiff’s
denial that there was anything to be removed, Sergeant Ford
instructed Officer Smith to transport Plaintiff to a hospital for
a body-cavity search.15

Officer Smith clarified that he was not

requesting a body-cavity search, but Sergeant Ford repeated his

9

See id.

10

Id.

11

Id. pp. 5-6.

12

Id. p. 6.

13

Id.

14

Id.

15

Id.

3

denial of permission to have a strip search performed at the jail.16
Officers

Smith

and

Glover

transported

Plaintiff

to

one

hospital that refused to perform a body-cavity search and then to
Ben Taub Hospital, which agreed on the condition that a search
warrant be obtained.17
Officers Medina and Martinez prepared the warrant, secured a
judge’s signature, and provided it to a doctor at the hospital.18
The doctor performed a rectal exam on Plaintiff, who remained
handcuffed during the search.

The doctor reported that he found

nothing in Plaintiff’s rectum.19
B.

Procedural Background
On October 14, 2015, Plaintiff filed this action, naming the

City of Houston, eight police officers (including two unnamed
officers), and the chief of police as defendants.20

Plaintiff

alleged that “[t]he cavity search was not performed according to
the search and seizure laws of the State of Texas or the United
States of America because the force was too excessive given the
circumstances” and suggested that a strip search would have been

16

See id.

17

Id. pp. 6-7.

18

Id. p. 7.

19

Id.

20

See id. pp. 1, 3.

4

sufficient.21
Stating two causes of action, Plaintiff alleged that Officers
Medina and Martinez and Sergeants Ford and Seals, among other
officers, violated Plaintiff’s “right to be secure in [his] person
against unreasonable seizure of his person, in violation of the
Fourth and Fourteenth Amendments of the Constitution of the United
States” and that Chief McClelland and Defendant City of Houston
were liable for those violations because they were aware of a
pattern of excessive force among HPD officers and failed to
“instruct, supervise, control, and discipline” the officers.22
Defendant City of Houston filed an answer on November 4,
2015.23

In

January,

Officer

Smith

and

HPD

Chief

of

Police

McClelland answered, and Officers Medina and Martinez filed a joint
motion to dismiss.24

Sergeants Ford and Seals followed suit in

early February by filing their joint motion to dismiss.25 Plaintiff
filed responses to the motions later in February.26
Plaintiff sought and received additional time to serve process

21

Id. p. 7.

22

Id. pp. 9-11.
In one sentence of his complaint, Plaintiff also
refers to his Sixth Amendment rights, but the complaint is devoid of any facts
regarding a trial. See id. p. 8.
23

See Doc. 4, Def. City of Houston’s Answer.

24

See Doc. 8, Defs. Medina & Martinez’ Mot. to Dismiss

25

See Doc. 13, Defs. Ford & Seals’ Mot. to Dismiss.

26

See Doc. 16, Pl.’s Resp. to Defs. Medina & Martinez’ Mot. to Dismiss;
Doc. 17, Pl.’s Resp. to Defs. Ford & Seals’ Mot. to Dismiss.

5

on Officer Glover.27

After the case was referred, the parties

consented to proceed before the undersigned.28
transferred on February 25, 2016.29

The case was

Officer Glover appeared and

filed an answer on March 16, 2016.30

Officer Glover then also

consented in writing to proceed before the undersigned.31
II.

Dismissal Standard

Rule 12(b)(6) allows dismissal of an action whenever the
complaint, on its face, fails to state a claim upon which relief
can be granted.

When considering a motion to dismiss, the court

should construe the allegations in the complaint favorably to the
pleader and accept as true all well-pleaded facts.

Harold H.

Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir.
2011)(quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)).
A complaint need not contain “detailed factual allegations”
but must include sufficient facts to indicate the plausibility of
the claims asserted, raising the “right to relief above the
speculative level.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility means that the factual content “allows the court to

27

See Doc. 14, Pl.’s Mot. for Extension of Time to Serve Process on
Def. Glover; Doc. 23, Order Dated May 12, 2016.
28

See Doc. 18, Defs.’ Consent; Doc. 19, Pl.’s Consent.

29

See Doc. 21, Order Transferring Case.

30

See Doc. 22, Def. Glover’s Answer.

31

See Doc. 24, Consent Dated May 17, 2016.

6

draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
provide

“more

than

Iqbal, 556 U.S. 678.
labels

and

conclusions”

A plaintiff must
or

recitation of the elements of a cause of action.”
U.S. at 555.

“a

formulaic

Twombly, 550

In other words, the factual allegations must allow

for an inference of “more than a sheer possibility that a defendant
has acted unlawfully.”

Iqbal, 556 U.S. 678.
III. Analysis

The two joint motions assert that Plaintiff failed to allege
facts identifying specific illegal conduct by any of the four
movants

and

immunity.
against

that

the

movants

are

all

entitled

to

qualified

Plaintiff contends that his complaint alleged facts
each

of

the

movants

sufficient

to

support

his

constitutional claims that the body-cavity search performed at the
hospital was an illegal search and was excessive to the need.
A.

Applicable Law
A plaintiff can establish a prima facie case under Section

198332 for the deprivation of civil rights by establishing: (1) a
violation of a federal constitutional or statutory right; and (2)
32

The provision reads, in relevant part:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . , subjects, or causes to be
subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.

7

that the violation was committed by an individual acting under the
color of state law.

Doe v. Rains Cty. Indep. Sch. Dist., 66 F.3d

1402, 1406 (5th Cir. 1995).

The statute creates no substantive

rights but only provides remedies for deprivations of rights
created under federal law.

Graham v. Connor, 490 U.S. 386, 393-94

(1989).
Government officials have qualified immunity from Section 1983
“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.”

Pearson v. Callahan,

555 U.S. 223, 231 (2009)(quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)); McCreary v. Richardson, 738 F.3d 651, 655 (5th
Cir. 2013 )(citing Harlow, 457 U.S. at 818). By invoking qualified
immunity in good faith, a defendant shifts the burden to the
plaintiff to demonstrate its inapplicability.

McCreary, 738 F.3d

at 655.
Upon the assertion of qualified immunity in a motion to
dismiss, a court considers whether the facts alleged support a
finding that the officer’s conduct violated a constitutional right
and whether that right was clearly established law at the time of
the violation.

McCreary, 738 F.3d at 656.

considered in any order.

The two prongs may be

Id.

A common starting point for both the movants’ failure-tostate-a-claim arguments and their qualified-immunity arguments is

8

to determine whether Plaintiff’s allegations against each officer
individually stated a violation of Plaintiff’s constitutional
rights.

The court accepts the allegations as true and looks for

specific facts as to each of the movants that support a claim
against that movant.

Cf. Cole v. Carson, 802 F.3d 752, 763 (5th

Cir. 2015)(quoting Baker v. Putnal 75 F.3d 190, 195 (5th Cir.
1996))(explaining that the heightened burden in response to the
defense of qualified immunity requires pleading “specific conduct
and actions giving rise to a constitutional violation”).
B.

Plaintiff’s Allegations Against Movants
The only facts alleged against Officer Medina that implicate

constitutional limits on body-cavity searches are his participation
in

the

drafting,

presenting

for

review

and

signature,

and

delivering the search warrant to the doctor who performed the
search. His prior surveillance of Plaintiff is not relevant to the
constitutionality of the body-cavity search.

The statement in the

pleading about procuring the warrant named Officer Martinez as well
as Officer Medina.

That is the only factual allegation concerning

Officer Martinez’ conduct.
Plaintiff made only two factual statements about Sergeant
Seals’ conduct.

Plaintiff alleged, that, after both Officer Smith

and a jail officer performed searches at the jail, “Jail Sergeant
Ford and Sergeant Seales [sic] were notified that the Jailor felt

9

something

between

Plaintiff’s

butt

cheeks

as

well.”33

After

explaining the request for a strip search, “Officer Smith then
asked Sergeant Ford and Sergeant Seales [sic] for a strip search of
Plaintiff and stated that the strip search was authorized by G.O.’s
[general

orders].”34

In

other

words,

Officer

Smith

apprised

Sergeant Seals of the results of his search and asked her to
authorize a strip search.

The complaint contained no facts

indicating that she took any action at all.
Sergeant Ford played a bigger role according to the complaint.
The factual allegations regarding Sergeant Ford’s conduct are that
the jail officer relayed Officer Smith’s strip-search request to
Sergeant Ford after which the jail officer searched Plaintiff.
Sergeant

Ford

was

notified

that

the

something between Plaintiff’s buttocks.

jail

officer

also

The complaint continued:

18.
Jail Sergeant Ford asked Officer Smith why
Officer Smith felt that Plaintiff was hiding contraband.
. . .
19.
Officer Smith then asked Sergeant Ford and
Sergeant Seales [sic] for a strip search of Plaintiff and
stated that the strip search was authorized by G.O.’s.
Sergeant Ford immediately contacted his Lieutenant and
had a conversation with his Lieutenant.
20. Sergeant Ford then informed Officer Smith that
a strip search WOULD NOT be performed and that Officer
Smith needed to see if Plaintiff would remove the object
himself or Officer Smith must convince Plaintiff into
removing the object himself.
Plaintiff was asked to

33

Doc. 1, Pl.’s Compl. p. 6.

34

Id.

10

felt

remove the object and Plaintiff argued that there was no
object to remove. Sergeant Ford then advised Officer
Smith that he was required to transport Plaintiff to a
hospital to have a body cavity search performed.
21. Officer Smith then informed Sergeant Ford that
he [Officer Smith] was not requesting a cavity search and
was only requesting a strip search.
Sergeant Ford
again[] declined to perform a strip search or to have it
performed at the jail.35
C.

Constitutional Claims
Plaintiff’s complaint challenged the body-cavity search as an

unreasonable search and a use of excessive force.

The Fourth

Amendment,36

Fourteenth

applied

to

state

actors

through

the

Amendment, protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.”
Amendment

encompasses

U.S. Const. amend. IV.
both

constitutional

The Fourth

protections

that

Plaintiff alleged to have been violated.
For searches, reasonableness depends on the balance “of the
need for the particular search against the invasion of personal
rights that the search entails.”

Jimenez v. Wood Cty., 660 F.3d

841, 853 (5th Cir. 2011)(quoting Bell v. Wolfish, 441 U.S. 520, 559

35

Id.

36

The full text of the Fourth Amendment is:

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.

11

(1979)).

The court considers four factors: “(1) the scope of the

intrusion; (2) the manner in which the search is conducted; (3) the
justification for initiating the search; and (4) the place in which
the search is conducted.”

Id. (citing Bell, 441 U.S. at 559).

In general, police are required to secure a warrant before
proceeding with a search.
(1999).

Maryland v. Dyson, 527 U.S. 465, 466

Warrants must be issued only “upon probable cause,

supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV.

An officer, acting pursuant to a warrant,

violates the Fourth Amendment’s prohibition against unreasonable
searches

when

he

makes

“a

false

statement

knowingly

and

intentionally, or with reckless disregard for the truth,” which
causes the issuance of a warrant without probable cause.

Michalik

v. Hermann, 422 F.3d 252, 258 n.5 (5th Cir. 2005)(quoting Franks v.
Delaware, 438 U.S. 154, 155-56 (1978)).
Absent in the pleading here is any challenge to the validity
of

the

search

affirmations.

warrant

or

to

the

veracity

of

the

supporting

Moreover, Plaintiff did not allege that the doctor

exceeded the parameters of the search warrant.

In fact, despite

acknowledging that Officers Medina and Martinez applied for and
were granted a search warrant, Plaintiff’s pleading and briefing

12

ignore the effect of that search warrant.37

The search warrant

cannot be ignored in favor of this court deciding probable cause
anew based on the facts presented by Plaintiff.
Plaintiff

fails

to

state

a

constitutional

claim

for

unreasonable search against any of the movants.
The constitutionality of the force used by state actors is
also a matter of reasonableness, requiring that the complainant
allege: (1) an injury; (2) that resulted directly from the use of
force that was excessive; and (3) the force used was unreasonable.
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)(citing
Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)). Reasonableness
swings

in

the

balance

of

the

degree

of

intrusion

on

the

individual’s constitutional and the importance to the government of
apprehending the individual.

Graham, 490 U.S. at 396.

Absent in the complaint is the allegation that any of the
movants personally came into physical contact with Plaintiff.
Plaintiff’s only allegation of excessive force concerned the bodycavity search itself.38 The claim is wholly based on the allegation
that the scope of the search was unreasonable.39

The body-cavity

37

The factual recitation by Plaintiff makes perfectly clear that the
search would not have occurred but for the procurement and presentation of a
warrant.
38

See Doc. 1, Pl.’s Compl. p. 8 (“Not only was the search and seizure
unwarranted and not allowed by law, but the cavity search was use of excessive
force.”).
39

See id. As noted above, one of the balancing factors in deciding
reasonableness of a search is the invasion of personal rights, e.g., freedom from
unreasonable force, as a result of the search.

13

search was performed at a hospital by a doctor pursuant to a search
warrant.

Plaintiff does not allege that the doctor performed the

search in a manner that was inappropriate or excessive to the need.
Plaintiff alleged that he remained in handcuffs during the
search but specified no resulting injury. Neither his pleading nor
his

motion

briefing

offer

facts

or

analysis

suggesting

that

handcuffing him during the search was unreasonable.
Plaintiff fails to state a constitutional claim for excessive
force against any of the movants.
In his response briefs, Plaintiff argues for the first time
that

movants

are

also

liable

under

a

theory

of

bystander

liability.40 Bystander liability is a theory on which liability may
be

imputed

to

an

officer

who

knows

that

another

officer

is

violating an individual’s constitutional rights but, despite having
a reasonable opportunity to prevent that harm, does nothing.
Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013)(quoting Randall
v. Prince George’s Cty., 302 F.3d 188, 204 (4th Cir. 2002)).
The constitutional harm alleged by Plaintiff here arose solely
out of the performance of a body-cavity search, which was conducted
pursuant to a warrant.

Movants cannot be held liable under the

theory of bystander liability when the allegations do not support
a finding that anyone violated Plaintiff’s constitutional rights.

40

See Doc. 16, Pl.’s Resp. to Officers Medina & Martinez’ Mot. to
Dismiss pp. 10-14; Doc. 17, Pl.’s Resp. to Sergeants Ford & Seals’ Mot. to
Dismiss pp. 11-15.

14

Plaintiff fails to state a constitutional claim for bystander
liability against any of the movants.
IV.

Conclusion

Based on the foregoing, the court GRANTS Officers Medina and
Martinez’ Motion to Dismiss and Sergeants Ford and Seals’ Motion to
Dismiss.
SIGNED in Houston, Texas, this 27th

day of May, 2016.

______________________________
U.S. MAGISTRATE JUDGE

15