Custer et al v. City of Houston et al

Filing 52

MEMORANDUM OPINION Re: 38 (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
May 30, 2019

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROBIN CUSTER,

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§
§
§
§
§

Plaintiff,
v.
CITY OF HOUSTON,
Defendant.

David J. Bradley, Clerk

CIVIL ACTION NO. H-17-1338

MEMORANDUM OPINION
Pending before the court1 is Defendant City of Houston’s
(“Defendant City”) Motion for Summary Judgment (Doc 38). The court
has

considered

the

motion,

the

filings, and the applicable law.

response,

all

other

relevant

For the reasons set forth below,

the court GRANTS Defendant City’s motion.
I.
Plaintiff

filed

Case Background

this

civil

rights

action

alleging

a

Constitutional violation as a result of Defendant City’s failure to
train

its

police

officers

regarding

their

Fourth

Amendment

obligations.2
A.

Factual Background3
On March 5, 2015, two HPD officers drove into Plaintiff’s

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 Doc. 7, Ord. Dated
May 31, 2017.
2

See Doc. 1-4, Ex. D to Def.’s Not. of Removal, Pl.’s Orig. Pet.

3
As Plaintiff presented no evidence regarding the factual background
of the case, the court relies, for context only, on the facts set forth in
Plaintiff’s original state court petition.

driveway

while

Plaintiff

Custer”) were not home.4

and

her

husband

Ricky

Custer

(“Mr.

The officers walked around the exterior

of Plaintiff’s home and disabled the home’s security cameras.5

One

of the officers used his flashlight to break open the front door,
and the officers entered Plaintiff’s home.6

After they exited the

home, leaving the front door open, the officers took the mail out
of

Plaintiff’s

mailbox.7

The

officers

then

re-entered

their

vehicle and parked it down the street from Plaintiff’s house.8
Mr. Custer came home to find his house had been entered and
the security cameras disabled.9 After Mr. Custer called Plaintiff,
she came home from work and reviewed the footage on their security
cameras.10

Plaintiff’s neighbor also had footage of the incident

captured on his camera.11
B.

Procedural Background
Plaintiff filed this action alleging violations of 42 U.S.C.

§ 1983 (“Section 1983"), the Texas Torts Claims Act, and state law

4

See Doc. 1-4, Ex. D to Defs.’ Not. of Removal, Pl.’s Orig. State Pet.

pp. 2-3.
5

See id.

6

See id.

7

See id.

8

See id.

9

See id.

10

See id.

11

See id.

2

claims of negligence and gross negligence.12

After reviewing

Defendant City’s motion to dismiss, the court dismissed all claims
except for Plaintiff’s Section 1983 claim regarding Defendant
City’s failure

to

train

its

police

officers

on

their

Fourth

Amendment responsibilities.13
II.

Legal Standards

Disposition of Plaintiff’s case at this stage involves review
of both procedural and substantive legal standards.
A. Summary Judgment
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

12

See id. pp. 12-13.

13

See Doc. 13, Mem. Op. Dated Nov. 15, 2017.

3

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).

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)). The court must accept all of the nonmovant’s evidence
as true and draw all justifiable inferences in her favor.

Coastal

Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498,
505 (5th Cir. 2014)(quoting Anderson, 477 U.S. at 255).
B. Section 1983
In

order

to

prevail

on

a

claim

under

Section

1983,14

a

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

law.

14

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.

4

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).
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).

To succeed on a claim

under Section 1983, the plaintiff must demonstrate that the city
“had some inadequate custom or policy that acted as the moving
force behind a constitutional violation.”

Forgan v. Howard Cty.,

Tex., 494 F.3d 518, 522 (5th Cir. 2007) (citing Monell v. Dep’t of
Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978)); see also
Connick, 563 U.S. at 61.

“Official municipal policy includes the

decisions of a government’s lawmakers, the acts of its policymaking
officials,

and

practices

so

persistent

practically have the force of law.”

and

widespread

as

to

Connick, 563 U.S. at 61.

Courts have recognized that, under limited circumstances, the
failure to train or to supervise its employees may give rise to
local-government liability under Section 1983.

See id.; Zarnow v.

City of Wichita Falls, Texas, 614 F.3d 161, 169, 170 (5th Cir.
2010).

In failure-to-train cases, a plaintiff must prove: “(1)

that the municipality’s training procedures were inadequate, (2)
that the municipality was deliberately indifferent in adopting its
training policy, and (3) that the inadequate training policy
directly caused the violations in question.”

5

Zarnow, 614 F.3d at

170.

When

a

constitutional

plaintiff

is

violations,

unable

she

to

might

show

a

pattern

establish

of

deliberate

indifference by “showing a single incident with proof of the
possibility

of

recurring

situations

that

present

potential for violation of constitutional rights.”
Tammany Parish, 336 F.3d 363, 373 (5th Cir. 2003).

an

obvious
Burge v.

The exception

should apply “only where the facts . . . are such that it should
have

been

apparent

to

the

policymaker

that

a

constitutional

violation was the highly predictable consequence of a particular
policy or failure to train.” Id.

The Supreme Court has cautioned,

“[a] municipality’s culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.”
Connick, 563 U.S. at 61.
III. Analysis
In its motion for summary judgment,15 Defendant City argues
that Plaintiff has provided no evidence of a failure-to-train
policy or custom, or evidence of causation to Plaintiff’s injury.16
Defendant City also argues that Plaintiff has failed to produce any
evidence of deliberate indifference or facts warranting application
of the single-incident exception to policy or custom liability

15
The court OVERRULES Plaintiff’s hearsay objection to a portion of
Defendant City’s evidence as MOOT because the court does not rely on that
evidence in reaching its conclusion.
16

See Doc. 38, Def.’s Mot. for Summ. J. p. 7.

6

under Connick.17
In response to Defendant City’s motion for summary judgment,
Plaintiff attempts to raise an issue by setting up a factual
dispute over whether or not the officers entered Plaintiff’s
residence and conducted a search.18

However, Plaintiff’s argument

misses the point; while this singular incident is relevant, it does
not raise an issue of material fact because it is not evidence of
a fact “critical to the outcome of the suit;” it is not evidence of
an “official municipality policy” or “practices so persistent and
widespread as to practically have the force of law” as required in
order to hold Defendant City liable under Section 1983.

Connick,

563 U.S. at 61.
Likewise, this incident is not a “decision of government
lawmakers” or an act of “policymaking officials.” Id. Plaintiff’s
alleged factual dispute is also not genuine because the evidence,
or lack thereof, is insufficient to lead a reasonable jury to
resolve

the

issue

in

favor

of

either

party,

and

therefore,

Plaintiff does not raise a genuine issue of material fact on her
failure to train claim.

There must be evidence of failure to train

on Fourth Amendment parameters, but there is no evidence before the
court on this point.
Also, there is no summary judgment evidence in the record that
17

See id. at 8.

18

See Doc. 47, Pl.’s Opp’n in Resp. to Def.’s Mot. for Summ. J. &
Objection to Def.’s Mot. for Summ. J. Evidence p. 2.

7

Defendant

City

had

Amendment violation.

a

policy

that

caused

the

alleged

Fourth

Because the court finds that there is no

causal evidence in the record, the court need not consider whether
Plaintiff

has

indifference.

raised

a

fact

issue

regarding

deliberate

Moreover, the facts of this case do not warrant

application of the single-incident exception.19
Additionally, Plaintiff has not identified inadequacies in
Defendant City’s actual training procedures, and instead relies
solely on the affidavit and expert report of W. Lloyd Grafton.20
Even Plaintiff’s expert falls short of providing any evidence that
Defendant City improperly trained its officers or that this failure
was “the moving force behind a constitutional violation;” See
Forgan, 494 F.3d at 522.

Grafton speculates, “[t]he two law

enforcement officers . . . had no knowledge concerning the Fourth
Amendment or they simply chose to ignore it.

My opinion is that

they chose to ignore it.”21 Thus, even when considering Plaintiff’s
expert’s opinion as true, Plaintiff still has not produced any
evidence of a custom or practice regarding Defendant City’s failure
to train or inadequately training its officers.

In fact, the

expert states just the opposite - that he believes the officers
19
The court notes that Officer Massey was trained on appropriate search
and seizure protocol. See Ex. C to Def.’s Mot. for Summ. J., TCOLE Report on
Officer Massey, pp. 3, 5, & 9.
20
See Doc. 47, Pl.’s Opp’n in Resp. to Def.’s Mot. for Summ. J. &
Objection to Def.’s Mot. for Summ. J. Evidence p. 2.
21

Doc. 48-1, Ex. 1 to Pl.’s Resp. to Def.’s Mot. for Summ. J., Attach.
A to Grafton Aff., Grafton Report p. 6.

8

chose to ignore their Fourth Amendment training.

Therefore,

Plaintiff’s evidence fails to raise a genuine issue of material
fact, and Defendant City is entitled to judgment as a matter of
law.
IV.

Conclusion

Based on the foregoing, the court GRANTS Defendant City’s
motion for summary judgment.
SIGNED in Houston, Texas, this 30th day of May, 2019.

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