Charlot v L D Smith, et al

Filing 50

MEMORANDUM OPINION granting 45 Amended MOTION for Summary Judgment </i(Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEVEN CHARLOT,

§
§
§
§
§
§
§
§
§

Plaintiff,
v.
CITY OF HOUSTON, et al.,
Defendants.

December 07, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-3028

MEMORANDUM OPINION
Pending before the court1 is Defendants’ Amended Motion for
Summary Judgment (Doc. 45).2

The court has considered the motion,

Plaintiff’s

other

response,

applicable law.

all

relevant

filings,

and

the

For the reasons set forth below, the court GRANTS

the motion.
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 he was in
custody.
A.

Factual Background
On April 20, 2015, Frank Medina (“Officer Medina”) of the

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.
2
Also pending is Defendants’ Motion for Summary Judgment (Doc. 43),
which was supplanted in its entirety by their filing of the pending amended
motion for summary judgment. Defendants’ Motion for Summary Judgment is DENIED
AS MOOT.

Houston Police Department (“HPD”) Narcotics Division received
information that an individual matching Plaintiff’s description was
selling cocaine from a gray Lexus at a Houston gas station.3
During surveillance at the location:
Officer Medina observed a white female to enter the front
passenger seat of the suspect[’s] vehicle [and] observed
them to perform what appeared to be a drug transaction
inside of the male’s vehicle. The female then exited the
Lexus and returned to her own vehicle after only a minute
or perhaps two inside of the suspect vehicle and then
left the scene.
Within a few minutes the male moved his vehicle to a gas
pump. . . . After a couple of minutes Officer Medina
observed a vehicle park next to the male. Officer Medina
observed a black female exit the vehicle and enter the
male’s vehicle [and] again observed what appeared to be
a drug transaction inside of the male’s vehicle. The
female immediately exited the male’s vehicle and left the
scene.4
After following the suspect to another location and back toward the
gas station, Officer Medina “advised the assisting marked units of
several traffic violations committed by the male.”5
Defendants Leonard Smith (“Officer Smith”) and Michael Glover
(“Officer Glover”), HPD officers, stopped Plaintiff pursuant to
Officer Medina’s report of Plaintiff’s traffic infractions.6
Plaintiff consented to a search of his vehicle that produced a

3

See Doc. 46-1, Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ.
J., Aff. for Search Warrant p. 1.
4

Id. p. 2.

5

Id.

6

See id.; Doc. 46-1, Ex. C-1 to Pl.’s Resp. to Defs.’ Am. Mot. for
Summ. J., Police Report p. 1.

2

hydrocodone bottle labeled with Plaintiff’s name and an unreadable
year that appeared to be 2010 and another pill bottle for generic
Soma in someone else’s name.7

Although Plaintiff claimed that the

pills were his and that he apparently put them in his uncle’s pill
bottle, he could provide neither the name of his uncle nor the name
on the pill bottle.8
The officers called for a K9 unit, and the dog alerted to the
front console area.9

This led to Plaintiff’s assertion that the

car was not his, but he was unable to identify the person in whose
name the car was registered.10

Officers Smith and Glover arrested

Plaintiff on the charge of possession of controlled substances.11
A pat-down search of Plaintiff’s person performed at the scene
produced no illegal narcotics.12
After transport to HPD’s central jail facility, Officer Smith
performed a more thorough search of Plaintiff pursuant to the
arrest based on information that Plaintiff may have been concealing

7

Doc. 46-1, Ex. C-1 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ. J.,
Police Report p. 1; Doc. 46-1, Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for
Summ. J., Aff. for Search Warrant p. 2.
8

See Doc. 46-1, Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ.
J., Aff. for Search Warrant p. 2.
9

See id.

10

See id.

11
See id.; Doc. 46-1, Ex. C-1 to Pl.’s Resp. to Defs.’ Am. Mot. for
Summ. J., Police Report p. 1.
12

See Doc. 46-1, Ex. C-1 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ.
J., Police Report p. 1.

3

crack cocaine on his person.13

The search of Plaintiff’s pockets,

shoes, socks, waistband, and midsection revealed no narcotics.14
Officer Smith discovered two cell phones, a wallet, and nearly $800
in currency and felt a “hard semicircular object concealed between
[Plaintiff’s] butt cheeks.”15
As

Officer

Smith

believed

that

Plaintiff

was

concealing

“anywhere from a half of a cookie to one and a half cookies in his
underwear and clenched between his butt cheeks,” Officer Smith
requested that a strip search be performed.16

Before Officer Smith

received an answer regarding his request, jail personnel conducted
another quick search of Plaintiff and reported feeling a hard
object concealed in Plaintiff’s buttocks area.17
Curtis Ford (“Sergeant Ford”) inquired about the request for
a strip search, and Officer Smith explained the situation, the
results of his and the jail personnel’s searches, and Officer
Smith’s opinion of concealment based on experience.18 Officer Smith
13

See id.

14

See id.

15

Id.; Doc. 46-1, Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ.
J., Aff. for Search Warrant p. 2.
The police report is typed in uppercase. See Doc. 46-1, Ex. C-1 to Pl.’s
Resp. to Defs.’ Am. Mot. for Summ. J., Police Report.
For the sake of
readability, the court chooses to quote it according to the customary rules of
uppercase and lowercase usage.
16

Id. p. 1.

17
See id.; Doc. 46-1, Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for
Summ. J., Aff. for Search Warrant p. 2.
18

See Doc. 46-1, Ex. C-1 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ.
J., Police Report pp. 1-2.

4

also opined that HPD general orders authorized a strip search under
the

circumstances.19

Sergeant

Ford

contacted

the

supervising

lieutenant and informed Officer Smith that the request for a strip
search was denied.20 The sergeant told Officer Smith that “the only
way to determine if [Plaintiff] had anything concealed was if he
consensually removed the object or if [the officers] could convince
him to remove it.”21

Plaintiff denied that he had anything hidden

between his butt cheeks, denied consent for the officers to attempt
to remove the item, and refused to remove the item himself.22
Sergeant Ford later instructed Officer Smith to transport
[Plaintiff] to a hospital for a body cavity search.23
Smith

and

Glover

followed

Sergeant

Ford’s

Officers

instructions

and

transported Plaintiff to Hermann Hospital, where staff refused to
perform a body cavity search, regardless of whether the officers
produced a warrant.24

They then transported Plaintiff to Ben Taub

Hospital, where staff indicated that they would perform the search
upon presentation of a warrant.25

19

See id. p. 2.

20

See id.

21

Id.

22

Doc. 46-1, Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ. J.,
Aff. for Search Warrant p. 2.
23
See Doc. 46-1, Ex. C-1 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ.
J., Police Report p. 2.
24

See id.

25

See id.

5

At that time, Officer Medina was in the process of obtaining
a warrant for the search.26

In his affidavit, Officer Medina

recounted the facts stated above and requested a warrant to search
Plaintiff’s

anal

cavity.27

The

county

magistrate

signed

the

warrant.28
In the meantime, Officer Smith shared with the doctor the
officers’ concern that Plaintiff “had concealed illegal narcotics
in his buttocks area and possibly now had secreted [them] inside
his anus.”29

After the doctor was provided with the warrant, she

performed a rectal examination on Plaintiff and found nothing
concealed inside his rectum.30

Officer Smith reported that he

believed Plaintiff was able to discard the narcotics at some point
when he was outside of the officers’ presence inside the jail.31
According to Plaintiff, “[t]he whole incident (search process)
took about three hours or so.”32

Plaintiff pled guilty to the

charge of possession of a controlled substance and stated in his

26

See id.

27
See Doc. 46-1, Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ.
J., Aff. for Search Warrant.
28

See Doc. 46-1 Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ. J.,
Search Warrant.
29

See Doc. 46-1, Ex. C-1 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ.
J., Police Report p. 2.
30

See id.

31

See id.

32

Doc. 46-1, Ex. D to Pl.’s Resp. to Defs.’ Am. Mot. for Summ. J.,
Pl.’s Aff. p. 2.

6

affidavit that he did so “because of the fact that I was tired of
fighting the case and they said that they would give me timeserved.”33
B.

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

defendants

the

City

of

Houston,

Charles

A.

McClelland,

Jr.,

(“Former Chief McClelland”), Sergeant Ford, Traci Seals (“Sergeant
Seals”), Officer Medina, Eduardo Martinez (“Officer Martinez”),
Officer Smith, Officer Glover, and two unnamed officers.34 Stating
two causes of action, Plaintiff alleged that the police 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 Former 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.35
After the case was referred, the parties consented to proceed

33

Id. p. 1.

34

See Doc. 1, Pl.’s Orig. Compl. pp. 1, 3.
the two unnamed officers.
35

Plaintiff never identified

Id. pp. 9, 11; see also id. pp. 8-12.
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.

7

before the undersigned.36
2016.37

The case was transferred on February 25,

On May 27, 2016, the court entered a memorandum opinion

dismissing all claims against Sergeants Ford and Seals and Officers
Medina and Martinez.38

On November 7, 2017, Plaintiff filed an

amended complaint without leave of court, attempting to reassert
claims against the dismissed parties.39

Within a short time,

Defendants filed a motion to dismiss the amended complaint.40
Before the court ruled on their motion to dismiss, Defendants
filed a motion and an amended motion for summary judgment that
addressed

the

claims

alleged

against

all

including the four previously dismissed.41

of

the

defendants,

On June 12, 2017, the

court struck the improperly filed amended complaint, rendering
Defendants’ motion to dismiss the amended complaint moot.42
To be clear, the only remaining claims in this lawsuit are the
Fourth Amendment claims against City of Houston, Former Chief
McClelland, Officer Smith, and Officer Glover.

The court now

36

See Doc. 18, City of Houston, Former Chief McClellan, Sergeants Ford
& Seals, & Officers Medina, Martinez, & Smith’s Consent; Doc. 19, Pl.’s Consent.
37

See Doc. 21, Order Transferring Case. Officer Glover had not been
served at the time but later consented in writing to proceed before the
undersigned. See Doc. 24, Officer Glover’s Consent.
38

See Doc. 25, Mem. Op. Dated May 27, 2016.

39

See Doc. 37, 1st Am. Compl.

40

See Doc. 38, Defs.’ Mot. to Dismiss 1st Am. Compl.

41

See Doc. 43, Defs.’ Mot. for Summ. J.; Doc. 45, Defs.’ Am. Mot. for

Summ. J.
42

See Doc. 49, Ord. Dated June 12, 2017.

8

addresses the amended motion for summary judgment.
II.

Summary Judgment Standard

Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
moving party is entitled to judgment as a matter of law.

Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014). A material
fact is a fact that is identified by applicable substantive law as
critical to the outcome of the suit.

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v.
Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001).

To be

genuine, the dispute regarding a material fact must be supported by
evidence such that a reasonable jury could resolve the issue in
favor of either party.

See Royal v. CCC & R Tres Arboles, L.L.C.,

736 F.3d 396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at
248).
The movant must inform the court of the basis for the summary
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual issues.

Celotex

Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th
Cir. 1992).

The movant may meet this burden by demonstrating an

absence of evidence in support of one or more elements of the case
for which the nonmovant bears the burden of proof.

9

See Celotex

Corp., 477 U.S. at 322; Exxon Corp. v. Oxxford Clothes, Inc., 109
F.3d 1070, 1074 (5th Cir. 1997).
If the movant carries its burden, the nonmovant may not rest
on the allegations or denials in the pleading but must respond with
evidence showing a genuine factual dispute.

Stauffer, 741 F.3d at

581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).
Conclusory

allegations,

inferences,

unsubstantiated

unsupported

speculation,

evidence will not carry this burden.

assertions,

or

only

a

improbable

scintilla

of

Brown v. City of Houston,

Tex., 337 F.3d 539, 541 (5th Cir. 2003).
III. Analysis
Defendants argue that Plaintiff fails to establish that the
body cavity search was unconstitutional as an unlawful search or as
an excessive use of force, fails to overcome Defendants’ defense of
qualified immunity, fails to demonstrate bystander liability, and,
with regard to the claims against City of Houston and Former Chief
McClelland, fails to demonstrate a custom or policy that caused a
constitutional violation.

Plaintiff disagrees with Defendants on

the merits of the case, but both parties agree that the Fourth
Amendment

encompasses

unreasonable

searches

the

constitutional

protections

and

excessive

of

uses

force

against

allegedly

violated by the body-cavity search.
A.

Applicable Legal Standards
In order to prevail on a claim under 42 U.S.C. § (“Section”)
10

1983,43 a plaintiff must establish that the defendant deprived the
plaintiff of his constitutional rights while acting under the color
Moody v. Farrell, 868 F.3d 348, 351 (5th Cir. 2017).

of state law.
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)).

In order to overcome an assertion of qualified

immunity, a plaintiff must produce evidence that the alleged
conduct violated a statutory or constitutional right and that the
right was clearly established at the time of the challenged
conduct.

See Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011).

A city may be held liable under Section 1983 only for its own
illegal acts, not pursuant to a theory of vicarious liability.
Connick v. Thompson, 563 U.S. 51, 60 (2011).

43

To succeed on a claim

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.

11

under Section 1983, the plaintiff must demonstrate that an “action
pursuant to official municipal policy caused their injury.” Id. at
61 (internal quotation mark omitted)(citing Monell v. Dep’t of Soc.
Servs. of N.Y., 436 U.S. 658, 691 (1978)).

“Official municipal

policy includes the decisions of a government’s lawmakers, the acts
of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.”

Id. (citing

Monell, 436 U.S. at 691, et al.).
Plaintiff’s claims all arise pursuant to the protections of
the Fourth Amendment.

The Fourth Amendment,44 applied to state

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

U.S. Const.

amend. IV.
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
(1979)).

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

intrusion; (2) the manner in which the search is conducted; (3) the

44

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.

12

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.

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

(1999)(citing California v. Carney, 471 U.S. 386, 390-91 (1985).
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.”
amend. IV.

U.S. Const.

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)).
For the use of force, 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)).
intrusion

Reasonableness swings in the balance of the degree of
on

the

individual’s

constitutional

rights

and

the

importance to the government of apprehending the individual.

13

Graham, 490 U.S. at 396.
B.

Discussion
The court previously found, in addressing the motions to

dismiss filed by Officers Medina and Martinez and Sergeants Ford
and Seals, that Plaintiff’s pleading failed to challenge the
validity of the search warrant or the veracity of the supporting
affirmations.45

The court also found that Plaintiff did not allege

that the doctor exceeded the parameters of the search warrant.46
The court further determined that Plaintiff’s claim of excessive
force was wholly based on the allegation that the scope of the
search was unreasonable, not on any physical contact exerted on
Plaintiff by the HPD officers or the doctor performing the cavity
search.47
The

time

for

allegations

has

ended.

At

this

stage

of

litigation, Plaintiff must produce evidence of a constitutional
violation, as that is the core requirement for establishing a prima
facie case under Section 1983, for overcoming qualified immunity,
and for imputing liability to the city.48

Citing to his complaint,

45

See Doc. 25, Mem. Op. Dated May 27, 2016 p. 12.

46

Id.

47

Id. p. 13.

48
Plaintiff’s claims against Former Chief McClelland do not assert that
he was personally involved in the incident giving rise to this lawsuit but that
he was a policymaker who was aware of a pattern of illegal conduct which he
failed to correct through training, supervising, and disciplining the officer
defendants. See Doc. 1, Pl.’s Compl. p. 3. In a Section 1983 suit against a
government actor in his official capacity, the plaintiff is seeking to recover
compensatory damages from the government body itself, and the suit should be

14

Plaintiff

argues

that

the

cavity

search

was

unconstitutional

because the warrant on which it was based “was procured in and
through the misleading statements that an [o]fficer made and/or
misleading evidence given to the [m]agistrate who issued the
warrant” and “because there was a lesser intrusive means available
. . . to retrieve the alleged contraband.”49
Plaintiff identifies the correct legal issue regarding his
claim that the cavity search was unreasonable.

Because the search

was supported by a warrant, the only way that Plaintiff can survive
summary judgment is to produce evidence that Officer Medina “made
a false statement knowingly and intentionally, or with reckless
disregard for the truth” in his affidavit to procure the warrant,
which resulted in a warrant issuing without probable cause.

See

Michalik, 422 F.3d at 258 n.5.
The evidence implicates only Officer Medina on this issue, as
neither

of

the

two

remaining

individual

officers

made

representations to the magistrate in support of the warrant.
Therefore, summary judgment should be granted to Officers Smith and
Glover on the illegal search claim.
As evidence of Officer Medina’s untruthfulness, Plaintiff
states that Officer Medina’s affidavit was erroneous because he was

treated as one against the government.
See Hafer v. Melo, 502 U.S. 21, 25
(1991); Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009)
49

Doc. 47, Pl.’s Resp. to Defs.’ Am. Mot. for Summ. J. pp. 7, 8
(unnumbered).

15

aware of Officer Smith’s opinions and “wrote an erroneous affidavit
which led the [m]agistrate into believing that [Officer] Smith
found the contraband and could not remove the contraband because
Plaintiff refused to allow police personnel[] or Smith to remove it
so that a warrant would be needed for removal of contraband that
was already found.”50

Plaintiff speculates that the magistrate

judge would have denied the warrant if he had known that only patdown searches, not a visual strip search, had been performed.51
These arguments are revisionist history not supported by the
evidence.

In the first place, Officer Smith’s opinion of what

search was appropriate is irrelevant to the determination whether
Officer Medina made any false statements in his affidavit.
Moreover, the evidence shows that Officer Medina recounted facts in
his affidavit that were consistent with both Officer Smith’s report
and his deposition testimony.

Officer Medina stated that officers

felt something protruding between Plaintiff’s butt cheeks and
suspected that Plaintiff was “hiding contraband inside his person
in an attempt to conceal from law enforcement.”52 That is precisely
what Officer Smith reported that he told the doctor while waiting
for the warrant: “I spoke with [the doctor] and explained to her
our concern that [Plaintiff] had concealed illegal narcotics in his
50

Id. p. 11 (unnumbered); see also id. p. 10.

51

See id. p. 11.

52

Doc. 46-1, Ex. C-5 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ. J.,
Aff. for Search Warrant p. 2.

16

buttocks area and possibly now had secreted it inside his anus.”53
Officer Medina’s affidavit includes no statement that a strip
search had been performed; nor does the account of events in the
affidavit suggest that one had been performed.

No reasonable jury

could infer from the affidavit that the magistrate made the
unsupported assumption that a strip search had been performed or
based the issuance of the warrant on that assumption.

Regardless,

Officer Medina clearly did not falsely represent that a strip
search had been performed. His affidavit accurately recounted the
facts, described the place to be searched, and what was to be
seized; and the magistrate found probable cause.

Because the

search was supported by a valid warrant, the scope, the manner, the
justification, and the place of the body cavity search were
reasonable as a matter of law.
Plaintiff’s excessive-force argument is based on his opinion
that a less intrusive means was available; however, that is not the
proper focus for the claim, particularly in light of the valid
warrant. The evidence Plaintiff cites in support of that assertion
is based on Officer Smith’s testimony that he felt an object
protruding from Plaintiff’s butt cheeks and requested only a strip
search in the belief that a cavity search was not necessary.54

53

Doc. 46-1, Ex. C-1 to Pl.’s Resp. to Defs.’ Am. Mot. for Summ. J.,
Police Report p. 2.
54

See Doc. 47, Pl.’s Resp. to Defs.’ Am. Mot. for Summ. J. pp. 9-10
(unnumbered)(citing Doc. 46, Ex. A to Pl.’s Resp. to Defs.’ Mot. for Summ. J.,
Officer Smith’s Video Dep. Disc 1).

17

Again, Officer Smith’s personal opinion of what search was
necessary is irrelevant.

The cavity search was supported by a

warrant finding probable cause. Unless Plaintiff can show that the
force used in the performance of the cavity search was excessive to
the need, he cannot survive summary judgment on this claim.
Plaintiff fails to produce any such evidence.

The pleading

deficiencies are compounded by the absence of any evidence that the
doctor exceeded the parameters of the search warrant, that the
doctor used more force than necessary in conducting the cavity
search, or that Officers Smith or Glover used excessive force in
any physical contact they had with Plaintiff.

No evidence,

including Plaintiff’s own affidavit, suggests that he suffered any
injury at all, that the body cavity search was performed with force
that was excessive to the need, or that a search supported by a
finding of probable cause was unreasonable.

Plaintiff has failed

to produce any evidence in support of his excessive-force claim.
Plaintiff’s Fourth Amendment rights to be free of unreasonable
searches and the use of excessive force were not violated as a
matter of law.

As a showing of a constitutional violation is the

bedrock of his Section 1983 claim, Plaintiff’s failure to produce
evidence establishing either an unreasonable search or unreasonable
use

of

force

dooms

Plaintiff’s

18

claims

against

all

remaining

defendants.55
IV.

Conclusion

Based on the foregoing, the court GRANTS Defendants’ Amended
Motion for Summary Judgment.
SIGNED in Houston, Texas, this 7th day of December, 2017.

______________________________
U.S. MAGISTRATE JUDGE

55

Plaintiff’s alternative theory of bystander liability likewise fails.
An individual cannot be held liable under the theory of bystander liability when
the evidence does not support a finding that anyone violated Plaintiff’s
constitutional rights.
See 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))(stating that the theory applies to impute liability to an officer who knew
that another officer was violating an individual’s constitutional rights but did
nothing).

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