Guerrero v. Turner et al
Filing
29
MEMORANDUM OPINION AND ORDER granting 26 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FERNANDO GUERRERO,
TDCJ #2142911,
Plaintiff,
v.
MAYOR SYLVESTER TURNER, et al.,
Defendants.
§
§
§
§
§
§
§
§
§
§
June 14, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0386
MEMORANDUM OPINION AND ORDER
Plaintiff
Fernando
Guerrero
Rights Complaint under 42 U.S. C.
§
has
filed
a
Prisoner's
1983 ("Complaint")
Civil
(Docket Entry
No. 1), alleging that four officers employed by the City of Houston
Police Department ("HPD") used excessive force against him during
the course of his arrest.
Pending before the court is Defendants'
Motion for Summary Judgment filed by T.W. Zachau, M.V. Alva, C.M.
Holloway,
No. 26).
and
M.C.
Skinner
("Defendants'
MSJ")
(Docket
Entry
Guerrero has not filed a response and his time to do so
has expired.
After considering the pleadings, the exhibits, and
the applicable law,
the court will grant the Defendants' MSJ and
will dismiss this case for the reasons explained below.
I.
Background
The incident that forms the basis of the Complaint occurred at
an apartment complex in Houston,
1
Texas,
on December 12,
2015. 1
Complaint, Docket Entry No. 1, p. 4.
For purposes of
identification, all page numbers refer to the pagination inserted at
the top of the page by the court's electronic filing system, CM/ECF.
Guerrero explains that he was "inside
[an]
apartment stealing 2
kilos of cocaine" when he was confronted by several HPD officers. 2
Before breaking into the apartment, Guerrero robbed a man at knifepoint,
taking his
car and his
wallet. 3
Guerrero,
who was
in
possession of two knives and a "replica shotgun" that he found in
the apartment, attempted to flee from the scene. 4
As he fled from
the apartment, Guerrero was bitten by a K-9, tasered, and shot in
the chest by the officers who eventually arrested him. 5
Arguing
that the force used was excessive, Guerrero seeks $100,000,000.00
in compensatory damages under 42 U.S.C.
§
1983 for the violation of
his constitutional rights. 6
The
court
authorized service
of
process
and requested an
answer from the HPD officers identified by Guerrero. 7
Officers
T.W. Zachau, M.V. Alva, C.M. Holloway, and M.C. Skinner now move
for
summary
2
judgment,
noting
that
Guerrero
was
subsequently
Plaintiff's More Definite Statement, Docket Entry No. 9, p. 1.
HPD Incident Report 1588475-15, Exhibit B-2 to Defendants'
MSJ, Docket Entry No. 26-5, pp. 1-2, 19-20, 25.
3
4
Plaintiff's More Definite Statement, Docket Entry No. 9, p. 1.
5
Complaint, Docket Entry No. 1, p. 4.
6
Id.
7
0rder for Service of Process, Docket Entry No. 10, p. 1. The
Complaint also identifies City of Houston Mayor Sylvester Turner,
Chief of Police Art Acevedo, and former Acting Chief of Police
Martha Montalvo.
See Complaint, Docket Entry No. 1, pp. 1, 3.
Because Guerrero does not allege facts establishing liability on
the part of these supervisory officials, the claims against them
will be dismissed.
-2-
convicted of several serious criminal offenses, including burglary
of a habitation and aggravated robbery with a deadly weapon as a
result of his arrest on December 12, 2015. 8
that Guerrero, as a dangerous fleeing felon,
The defendants argue
has not established
that their efforts to apprehend him were unreasonable or that a
constitutional violation occurred. 9
Defendants argue that they are
entitled to qualified immunity from his claims . 10
In support of
those arguments, the officers have provided affidavits and over 200
pages
of
records
from
the
ensuing
investigation,
which refute
Guerrero's claim that the amount of force used was unreasonable. 11
According to the police report, officers were dispatched to a
home invasion burglary at an apartment complex where the suspect,
8
See Defendants' MSJ, Docket Entry No. 26, p. 3; Deposition of
Fernando Guerrero, Exhibit A to Defendants' MSJ, Docket Entry
No. 26-1, p. 6 (page 46 of the Deposition, lines 20-23); TDCJ
Offender Information website, located at http: //offender. tdcj.
texas.gov (last visited June 8, 2018) (reflecting that Guerrero was
convicted and sentenced to 20 years' imprisonment for aggravated
robbery with a deadly weapon and two counts of burglary of a
habitation in Harris County Cause Nos. 1493328010101, 149161901010,
and 149161801010 stemming from the offenses he committed on
December 12, 2015).
9
See Defendants' MSJ, Docket Entry No. 26, pp. 5-9.
10
See id.
Arguing further that Guerrero's excessive-force
claims implicate the validity of his conviction for aggravated
robbery with a deadly weapon, the defendants contend that his
claims are barred by Heck v. Humphrey, 114 S. Ct. 2364 (1994). See
Defendants' MSJ, Docket Entry No. 26, pp. 4-5. The court does not
reach this argument because, for reasons detailed further below,
Guerrero fails to overcome the defense of qualified immunity in
this case.
11
See Exhibits A through K to Defendants' MSJ,
Nos. 26-1 through 26-23.
-3-
Docket Entry
who was reportedly armed with a shotgun,
Zachau,
accompanied by a
fleeing from the apartment.
K-9,
was present. 12
encountered Guerrero
as
Officer
he
was
Officer Zachau believed that Guerrero
was dangerous because he had just committed a home invasion. 13
an effort to apprehend Guerrero, Zachau released his K-9. 14
In
When
the K-9 made contact with Guerrero, Zachau ordered Guerrero to lie
still on the ground,
but Guerrero did not obey the commands and
instead began to forcefully strike the dog.
15
As Guerrero was
attacking his dog, Officer Zachau began to strike Guerrero with his
hands in an effort to gain Guerrero's compliance. 16
"ineffective,"
taser. 17
Zachau
deployed
a
"Conducted
When this was
Energy Device"
or
Guerrero, however, proceeded to break the taser wires and
continued his attempts to escape. 18
When Officer Alva arrived he observed that the taser deployed
by Zachau was having no effect on Guerrero, who was "punching the
K-9" and actively attempting to flee . 19
As Guerrero squared off to
12
HPD Incident Report 1589665-15, Exhibit B-1 to Defendants'
MSJ, Docket Entry No. 26-3, pp. 4-5.
13
Affidavit of T.W. Zachau ("Zachau Affidavit"), Exhibit C to
Defendants' MSJ, Docket Entry No. 26-16, p. 1 ~ 4.
14
Id. at 2
15
Id.
~
~ 5.
6.
19
Affidavit of M.V. Alva ("Alva Affidavit"), Exhibit D to
Defendants' MSJ, Docket Entry No. 26-17, pp. 1-2 ~ 5.
-4-
face the officers who were surrounding him, Officer Alva observed
a "knife sheath" in Guerrero's waistband and he drew his firearm.
20
Officer Holloway also drew his firearm after he observed the knife
sheath and saw that Guerrero was about to charge Officer Alva. 21
Guerrero, who was refusing to obey orders to lie on the ground,
then reached for his waistband with both hands. 22
Believing that
Guerrero was going for his knife, Officer Alva feared for his life
and discharged his
chest. 23
firearm one
time,
striking Guerrero in the
After cursing at the officers, Guerrero then attempted to
climb a nearby fence before he was pulled to the ground. 24
Officer
Skinner and Officer Holloway also deployed tasers in an effort to
subdue Guerrero, who remained belligerent and was threatening to
overpower the officers . 25
Although
continued
to
he
was
resist
handcuffed
arrest
and
on
and behave
a
stretcher,
in a
Guerrero
combative manner,
fighting with paramedics from the Houston Fire Department ("HFD")
20
Id. at 2 ~~ 5-7.
21
Affidavit of C.M. Holloway ("Holloway Affidavit"), Exhibit E
to Defendants' MSJ, Docket Entry No. 26-18, p. 2 ~ 5.
22
Alva Affidavit, Exhibit D to Defendants' MSJ, Docket Entry
No. 26-17, p. 2 ~ 7.
25
Holloway Affidavit, Exhibit E to Defendants' MSJ, Docket
Entry No. 26-18, p. 2 ~ 7; Affidavit of M.C. Skinner ("Skinner
Affidavit"), Exhibit F to Defendants' MSJ, Docket Entry No. 26-19,
p. 2 ~ 6.
-5-
and spitting at them. 26
When asked by the paramedics,
Guerrero
admitted having consumed an entire "8 ball" of cocaine before the
incident occurred. 27
It took several officers,
paramedics,
hospital personnel to remove Guerrero from the ambulance. 28
and
Because
Guerrero continued to spit at the officers and emergency personnel
assisting him, hospital staff had to place a "spit mask" on him. 29
It was only after doctors administered a sedative that they were
able to attend to Guerrero's injuries. 30
II.
Standard of Review
Motions for summary judgment are governed by Rule 56 of the
Federal Rules of Civil Procedure.
Under this rule a
reviewing
court "shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552
(1986).
A fact is "material" if its resolution in favor of one party might
affect the outcome of the suit under governing law.
Anderson v.
Liberty Lobby,
An issue is
Inc.,
106 S.
Ct.
2505,
2510
(1986).
26
Skinner Affidavit, Exhibit F to Defendants' MSJ, Docket Entry
No. 26-19, p. 2 ~ 10.
27
Holloway Affidavit, Exhibit E to Defendants'
Entry No. 26-18, pp. 2-3 ~~ 9-10.
28
Id. at 3
~
10.
-6-
MSJ,
Docket
"genuine" if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.
Id.
In deciding a summary judgment motion the reviewing court must
"construe all facts and inferences in the light most favorable to
the nonmoving party."
Dillon v. Rogers,
Cir.
quotation
2010)
However,
(internal
the non-movant
marks
596 F.3d 260,
and
"cannot rest on
qualified immunity is asserted.
481, 490 (5th Cir. 2001)
citation
[his]
266
(5th
omitted).
pleadings"
where
Bazan v. Hidalgo County, 246 F.3d
(emphasis in original).
Nor can the non-
movant avoid summary judgment simply by presenting "[c] onclusional
allegations
and
denials,
speculation,
improbable
inferences,
unsubstantiated assertions, and legalistic argumentation."
Jones
v. Lowndes County, Mississippi, 678 F.3d 344, 348 (5th Cir. 2012)
(quoting TIG Ins.
Co. v.
Sedgwick James of Washington,
276 F.3d
754, 759 (5th Cir. 2002)); see also Little v. Liquid Air Corp., 37
F.3d 1069,
demonstrate
allegations,
evidence) .
1075
a
(5th Cir.
genuine
1994)
issue
of
(en bane)
material
unsubstantiated assertions,
(a non-movant cannot
fact
with
conclusory
or only a scintilla of
If the movant demonstrates an "absence of evidentiary
support in the record for the nonmovant's case," the burden shifts
to the nonmovant to "come forward with specific facts showing that
there is a genuine issue for trial."
Sanchez v.
Texas, 866 F.3d 274, 279 (5th Cir. 2017)
(citing Cuadra v. Houston
Indep. Sch. Dist.,
626 F.3d 808,
-7-
812
(5th Cir.
Young County,
2010)); see also
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106
s . Ct . 13 4 8
I
13 56 ( 19 8 6) .
The plaintiff proceeds pro se in this case.
Courts construe
pleadings filed by pro se litigants under a less stringent standard
than those drafted by lawyers.
594,
S.
596
Ct.
( 1972)
2197,
See Haines v. Kerner,
(per curiam) ;
2200
(2007)
liberally construed [.] '")
285, 292 (1976)).
see also Erickson v.
("A document
filed pro se
(quoting Estelle v.
Gamble,
92 S. Ct.
Pardus,
is
127
'to be
97 S.
Ct.
Nevertheless, "prose parties must still brief
the issues and reasonably comply with [federal procedural rules]."
Grant v.
omitted).
by
the
Cuellar,
59 F.3d 523,
524
(5th Cir.
1995)
(citations
The Fifth Circuit has held that "[t]he notice afforded
Rules
of
Civil
Procedure
and
the
local
rules"
is
"sufficient" to advise a pro se party of his burden in opposing a
summary judgment motion.
Martin v. Harrison County Jail, 975 F.2d
192, 193 (5th Cir. 1992)
(per curiam).
III.
A.
Discussion
Qualified Immunity
The defendants argue that Guerrero fails
violation
of
Constitution,
the
which
to demonstrate a
Fourth
Amendment
to
governs
claims
excessive
context of an arrest. 31
of
the
United
force
States
in
the
Arguing further that Guerrero fails to
establish that a constitutional violation occurred the defendants
31
Defendants' MSJ, Docket Entry No. 26, p. 7.
-8-
move for summary judgment on the grounds that they are entitled to
qualified immunity from Guerrero's claims. 32
"The
doctrine
officials
conduct
'from
does
constitutional
known.'"
of
qualified
liability
not
for
violate
rights
immunity
civil
damages
clearly
of which a
protects
insofar
established
reasonable
government
as
statutory
or
person would have
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738
their
(1982)).
(quoting
This is an
"exacting standard," City and County of San Francisco, California
v. Sheehan, 135 S. Ct. 1765, 1774 (2015), that "protects 'all but
the plainly incompetent or those who knowingly violate the law.'"
Mullenix v. Luna,
Briggs,
106 S.
Ct.
136 S. Ct. 305,
1092,
1096
308
(2015)
(1986)).
(quoting Malley v.
A plaintiff seeking to
overcome qualified immunity must satisfy a two-prong inquiry by
showing:
"(1) that the official violated a statutory or constitu-
tional right, and (2) that the right was 'clearly established' at
the time of the challenged conduct."
Ct. 2074, 2080 (2011)
As
this
standard
Ashcroft v. al-Kidd, 131 S.
(citation omitted) .
reflects,
"[a]
good-faith
assertion
of
qualified immunity alters the usual summary judgment burden of
proof, shifting it to the plaintiff to show that the defense is not
available."
King v. Handorf, 821 F.3d 650, 653-54 (5th Cir. 2016)
(internal quotation marks and citations omitted) .
32
Id. at 5-9.
-9-
"The plaintiff
must
rebut
the
defense
by
establishing
that
the
official's
allegedly wrongful conduct violated clearly established law and
that
genuine
issues
of
material
fact
exist
reasonableness of the official's conduct."
Id.
regarding
at 654
the
(quoting
Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d
404,
419
(5th Cir.
2008)).
"'To negate a defense of qualified
immunity and avoid summary judgment, the plaintiff need not present
"absolute proof," but must offer more than "mere allegations."'"
Id.
B.
(quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).
Claims of Excessive Force Under the Fourth Amendment
A claim that law enforcement officers used excessive force to
effect an arrest is governed by the "reasonableness" standard found
in the Fourth Amendment. See Graham v. Connor,
1871
(1989);
(1985) .
Tennessee
v.
Garner,
105
and only from a
the
Ct.
1694,
1699-1700
To prevail on an excessive-force claim in this context, a
plaintiff must establish"' (1) injury,
(3)
S.
109 S. Ct. 1865,
use of
excessiveness
Trammell v.
Fruge,
868
force
of
(2) which resulted directly
that was
which
F.3d 332,
was
340
clearly excessive,
clearly
(5th Cir.
and
unreasonable.'"
2017)
(quoting
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009))
A Fourth Amendment
reasonableness
determination
"requires
careful attention to the facts and circumstances of each particular
case, including (1) the severity of the crime at issue,
(2) whether
the suspect poses an immediate threat to the safety of the officers
-10-
or others,
and
( 3)
whether he is actively resisting arrest or
attempting to evade arrest by flight."
Trammell, 868 F.3d at 340
(citation and internal quotation marks omitted) .
In determining
reasonableness courts are required to make "allowance for the fact
that
police
officers
are
often
forced
to
make
split-second
judgments - in circumstances that are tense, uncertain, and rapidly
evolving -
about
the
amount
particular situation."
of
Graham,
force
109 S.
that
Ct.
is
necessary
at 1872.
Thus,
in a
the
reasonableness of the use of deadly force "must be judged from the
perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight."
Id.
An officer's use of deadly
force is presumptively reasonable if the officer has reason to
believe that the suspect poses a threat of serious harm to the
officer or to others.
See Mace v. City of Palestine, 333 F.3d 621,
623 (5th Cir. 2003); Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.
2009)
(observing that the use of deadly force is not excessive
under the Fourth Amendment if the officer reasonably believes the
suspect poses a threat of serious harm) .
There is no dispute that Guerrero was armed with a deadly
weapon on December 12,
2015,
when he committed the offenses of
aggravated robbery and burglary of a habitation. 33
33
The knife that
See Plaintiff's More Definite Statement, Docket Entry No. 9,
p.
1;
see
also
Judgment
of
Conviction
by Jury,
Cause
No. 149332801010, Exhibit J to Defendants' MSJ, Docket Entry
No. 26-22, p. 1 (finding in the affirmative that Guerrero used a
deadly weapon during the commission of the aggravated robbery
offense on December 12, 2015).
-11-
Guerrero used during the
robbery was
recovered along with the
victim's wallet at the scene of the burglary. 34
The evidence shows that Officer Zachau deployed his K-9 and
then his
taser after Guerrero refused to obey repeated verbal
orders as he continued to attempt to evade arrest for a serious
felony
offense. 35
Officer
Alva
discharged
his
firearm
after
Guerrero, who remained combative despite being tasered, appeared to
reach for a knife, placing Alva in fear for his life and the safety
of the other officers. 36
Officer Holloway and Officer Skinner
deployed their tasers because,
continued attempting to flee.
Because a
officers'
even after being shot,
Guerrero
37
firearm was discharged during the incident,
actions
were
documented
and
investigated
by
HPD
the
as
required by departmental policy. 38 Officers employed by HPD are
authorized "to use force to protect themselves or others, to effect
34
HPD Incident Report 1588475-15, Exhibit B-2 to Defendants'
MSJ, Docket Entry No. 26-5, p. 19.
35
Zachau Affidavit, Exhibit
No. 26-16, p. 2 ~~ 5-9.
c
to Defendants' MSJ, Docket Entry
36
Alva Affidavit, Exhibit D to Defendants' MSJ, Docket Entry
No. 26-17, pp. 1-2 ~~ 5-7.
37
Holloway Affidavit, Exhibit E to Defendants' MSJ, Docket
Entry No. 26-18, p. 2 ~~ 5-7; Skinner Affidavit, Exhibit F to
Defendants' MSJ, Docket Entry No. 26-19, p. 2 ~~ 6-8.
38
Affidavit of Wendy Baimbridge ( "Baimbridge Affidavit"),
Exhibit H to Defendants' MSJ, Docket Entry No. 26-20, p. 2 ~~ 5,
13; HPD Incident Report 1589665-15, Exhibit B-1 to Defendants' MSJ,
Docket Entry No. 26-3, pp. 16-21, 33-47.
-12-
an arrest,
or to maintain custody of those arrested.
1139
Deadly
force is permissible "in circumstances in which officers reasonably
believe it is necessary to protect themselves or others from the
imminent threat of serious bodily injury or death.
1140
The internal
investigation conducted by HPD concluded that the officers' actions
did not violate departmental policy and that "the force used by the
officers was reasonable under the circumstances.
1141
The officers who encountered Guerrero on the day of his arrest
state that Guerrero was actively resisting arrest despite being
tasered and that his actions posed an immediate threat of serious
bodily
injury. 42
There
is
no
evidence
in
the
record
that
contradicts the officers' accounts, which are supported by police
reports and records of the investigation. 43
Those records, which
also include accounts from paramedics dispatched by HFD and other
39
HPD General Order 6-17 (Use of Force) ,
Defendants' MSJ, Docket Entry No. 26-13, p. 1.
40
Exhibit
B-10
to
Id. at 4.
41
Baimbridge Affidavit, Exhibit H to Defendants' MSJ, Docket
Entry No. 26-20, p. 4 ~ 14.
42
Holloway Affidavit, Exhibit E to Defendants' MSJ, Docket Entry
No. 26-18, p. 2 ~ 5; Alva Affidavit, Exhibit D to Defendants' MSJ,
Docket Entry No. 26-17, p. 2 ~ 7; Zachau Affidavit, Exhibit C to
Defendants' MSJ, Docket Entry No. 26-16, p. 2 ~ 8.
43
See HPD
Incident Report
1589665-15,
Exhibit B-1
to
Defendants' MSJ, Docket Entry No. 26-3, pp. 1-47, continued at
Docket Entry No. 26-4, pp. 1-48; see also HPD Incident Report
1588475-15, Exhibit B-2 to Defendants' MSJ, Docket Entry No. 26-5,
pp. 1-25.
-13-
personnel, demonstrate that Guerrero continued to actively resist
arrest even after he was shot. 44
Viewing
the
circumstances
from
the
perspective
of
the
officers, see Graham, 109 S. Ct. at 1872, they could have concluded
that Guerrero was an armed felon intent on escaping, who posed an
immediate threat to their safety and to the safety of others if he
had succeeded in evading arrest.
691 F.3d 624,
629
(5th Cir.
See Poole v. City of Shreveport,
2012)
(holding that force was not
excessive where a suspect refused to turn around and be handcuffed,
posed an
immediate
threat
actively resisted arrest) .
to
the
safety of
the
officers,
and
The Fifth Circuit has upheld the use of
deadly force where a suspect could have reasonably been interpreted
as reaching for a weapon.
See Ontiveros v.
Texas, 564 F.3d 379, 385 (5th Cir. 2009)
926 F.2d 494
where the
appeared
(5th Cir.
1991)
City of Rosenberg,
(citing Reese v. Anderson,
(refusing to find excessive force
suspect repeatedly refused to keep hands
raised and
(citation
omitted)) .
to
be
reaching
for
an
object)
Viewing the evidence in the light most favorable to Guerrero, as
the non-movant, the use of force was not objectively unreasonable
or
excessive
and
did
not
violate
the
Fourth Amendment.
See
EMS Patient Care Report, Docket Entry No. 27, pp. 1, 5; HPD
Incident Report 1589665-15, Exhibit B-1 to Defendants' MSJ, Docket
Entry No. 26-3, pp. 26-27, 40, 44, 45, 47; Baimbridge Affidavit,
Exhibit H to Defendants' MSJ, Docket Entry No. 26-20, pp. 2-3;
Skinner Affidavit, Exhibit F to Defendants' MSJ, Docket Entry
No. 26-19, p. 2 ~~ 6, 9.
44
-14-
Plumhoff v.
Rickard,
134 S.
Ct.
2012,
2022
(2014);
Francis v.
Garcia, 702 F. App'x 218, 222-23 (5th Cir. 2017).
Based
on
this
record,
Guerrero
has
not
established
a
constitutional violation and he has not otherwise overcome the
officers' entitlement to qualified immunity from the claims against
them.
Because the record contains no genuine issue for trial,
Defendants' MSJ will be granted.
C.
Remaining Defendants
Guerrero also lists Mayor Sylvester Turner, Chief of Police
Art Acevedo, and former Acting Chief of Police Martha Montalvo as
defendants.
Guerrero contends that these supervisory officials
failed to conduct an adequate investigation into the excessive use
of force that was used during his arrest.
"Under
§
1983, officials are not vicariously liable for the
conduct of those under their supervision."
Parish Correctional Facility,
848 F.3d 415,
(citing Mouille v. City of Live Oak,
1992)).
Alderson v. Concordia
420
(5th Cir.
977 F.2d 924,
929
2017)
(5th Cir.
"Supervisory officials are accountable for their own acts
. . . and for implementing unconstitutional policies that causally
result
in injury to
the plaintiff."
Id.
liability against supervisory officials under
Thus,
§
to establish
1983 a plaintiff
"must allege either that they participated in acts that caused
constitutional deprivation or that they implemented unconstitutional policies causally related to his injuries."
(citing Mouille, 977 F.2d at 929).
-15-
Id.
at 421
Guerrero has not established that the force used during his
arrest was unreasonable or excessive under the circumstances, which
were investigated by HPD.
Likewise, Guerrero does not allege facts
demonstrating that the investigation was deficient or that HPD has
an official policy or practice of conducting inadequate investigations into the use of force by officers.
His allegations against
the supervisory officials therefore fail to state an actionable
claim.
Acevedo,
Accordingly,
the allegations against Mayor Turner,
Chief
and former Acting Chief Montalvo will be dismissed for
failure to state a claim upon which relief may be granted.
IV.
Conclusion and Order
Accordingly, the court ORDERS as follows:
1.
Defendants' Motion for Summary Judgment (Docket
Entry No. 26) is GRANTED.
The claims against
Officers T.W. Zachau, M.V. Alva, C.M. Holloway, and
M.C. Skinner will be dismissed with prejudice.
2.
The claims lodged by Guerrero against the remaining
defendants listed in the Complaint (Mayor Sylvester
Turner, Chief of Police Art Acevedo, and former
Acting Chief of Police Martha Montalvo) will be
dismissed with prejudice for failure to state a
claim upon which relief may be granted.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the 14th day of June, 2018.
UNITED STATES DISTRICT JUDGE
-16-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?