Jacobson-Boettcher v. Dowdy et al

Filing 63

MEMORANDUM OPINION AND ORDER granting 47 MOTION for Summary Judgment , 49 MOTION for Summary Judgment . (Signed by Judge George C Hanks, Jr) Parties notified.(gclair, 4)

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 1 of 18
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PENNY JACOBSON-BOETTCHER,
Plaintiff,
VS.
SERGEANT WILLIAM DOWDY, et al,
Defendants.

March 03, 2021
Nathan Ochsner, Clerk

§
§
§
§ CIVIL ACTION NO. 4:18-CV-853
§
§
§
§

MEMORANDUM OPINION AND ORDER
Pending before the Court are two Motions for Summary Judgment, one filed by
Defendants William Dowdy (“Dowdy”) and Jacob Walker (“Walker”) (Dkt. 47) and one
filed by Defendant Harris County (“Harris County”). (Dkt. 49) After carefully reviewing
the motions, responses, replies, applicable law, and the entire summary judgment record,
both motions are GRANTED.
I.

FACTUAL BACKGROUND
In light of the summary judgment standard, which will be discussed below, the

following facts are established by the summary judgment record. In the early morning
hours of October 23, 2016, Plaintiff Penny Jacobson-Boettcher (“Jacobson-Boettcher”)
and her husband, Isaiah Boettcher (“Boettcher”) (collectively “Boettchers”) were at Mo’s
Place Bar in Katy, Texas. (Dkt. 54-A at p. 2) Jacobson-Boettcher bumped another patron
near the dance floor who complained about her to the bar’s management. At that point,
Jacobson-Boettcher was asked to leave the bar, first by Richard Steele, a bouncer
employed by the bar, and then by Deputy Mook (“Mook”), an off-duty Harris County
1 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 2 of 18

Sherriff’s deputy in uniform who was working security at the bar. According to
Jacobson-Boettcher, the Boettchers walked outside the bar with Steele and Mook and
waited for the manager of the bar, Mo Jr., to bring them their tab. (Dkt. 54-A at pp. 2–3)
As Jacobson-Boettcher walked outside, she asked Steele and Mook multiple times
why she had to leave since she had done nothing wrong. Jacobson-Boettcher specifically
testified that she told Mook something to the effect of “This is bullshit. I didn’t do
anything wrong.” (Dkt. 47-1 at 129: 11–20) Mo Jr. testified that after he came outside, he
told Boettcher that Jacobson-Boettcher needed to call it a night and go home as he
believed that she had had too much to drink and that if she had another drink “she might
be a danger to herself and others.” (Dkt. 47-4 at 57:17–24) Mo Jr. testified that Mr.
Boettcher agreed with him, but Jacobson-Boettcher thought she was “totally sober and
fine.”1 (Dkt. 47-4 at 58:10–13) Jacobson-Boettcher then got into a discussion with Mook
in which she accused Mook of having raped her about 20 years ago. (Dkt. 47-1 at 101:5–
102:4)
At the time nearby, Defendant Sergeant William Dowdy (“Dowdy”), another offduty Harris County Sherriff’s deputy in uniform who was working security at the bar,
heard this discussion and walked over to the group. Dowdy testified that what first drew
his attention to Jacobson-Boettcher “was her level of intoxication, the way she was acting
Mo Jr. testified, “I said -- I even pulled [Mr. Boettcher] to the side and was like, ‘Dude, man,
your wife is going to get in trouble. You know, she keeps running her mouth and cursing at the
police officers and doing this and flailing her arms around. She looks like she's about to hit them.
She’s going to get put in a pair of handcuffs.’ I was like, ‘Be the man of the relationship and just
get her out of here.’ He's like, ‘Easy for you to say. I've tried that before. She'll beat me up when
I get home if I try to do anything. I have to take her side no matter what. You know, my marriage
will be tarnished.’ I was like, ‘Whatever.’” (Dkt. 47-4 at 62:8–20)
1

2 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 3 of 18

and the things she was talking about.” (Dkt. 47-5 at 28:6–8) He testified that she was
acting erratically, “flailing her arms towards [Mook]” and screaming, “hollering” and
“yelling” at Mook with “a lot of profanity.” (Dkt. 47-5 at 28:10–14, 29:3–6) Dowdy
described Jacobson-Boettcher as appearing “disheveled” with “bloodshot eyes.” Her
speech was “slow and slurred, she was not listening to anything anybody was having to
say other than what she” had to say. (Dkt. 47-5 at 29:16–22) Dowdy testified that his
request to Jacobson-Boettcher to “calm down” was met by more profanity laced
language, “you know, it was ‘fuck you’, basically.” (Dkt. 47-5 at 29:3–6) While she first
told Dowdy that Mook raped her, she later implied that Dowdy has also raped her. (Dkt.
47-5 at 39:4–11) Dowdy said that she was starting to draw a crowd and becoming
disorderly in a public place while intoxicated. (Dkt. 47-5 at 29:9–14)
Dowdy testified that Boettcher “deescalated” the encounter by telling Mook and
Dowdy that they would leave. (Dkt. 47-5 at 32:12–15) The Boettchers settled their bill
and Boettcher left to get the truck from the parking lot. Jacobson-Boettcher did not go
with him and waited for his return. She testified that because of her medical condition of
rheumatoid arthritis and “raw” feet she could not walk all the way to where the truck was
parked. (Dkt. 47-1 at 104:24–105:5) Dowdy considered the encounter over and walked
away. (Dkt. 47-5 at 32:12–15)
Jacobson-Boettcher testified that when her husband arrived, she and Mook were
still “exchanging words.” (Dkt. 54-1 at p. 4) Dowdy testified that he was walking outside
the bar when he saw Jacobson-Boettcher screaming at her husband as he tried to get her
into the truck. Dowdy testified that she “was very agitated, very distraught.” Dowdy
3 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 4 of 18

approached them and told her to get into the truck or she was going to jail. (Dkt. 47-5 at
35:12–18, 43:21–44:2) Dowdy also testified that as Jacobson-Boettcher was about to get
into the truck, she turned around just two feet away from Dowdy. She put her hands
together like they were handcuffed, thrust them in Dowdy’s face, barely missing hitting
him, and said “Arrest me motherfucker.” (Dkt. 47-5 at 35:12–23) She was then
handcuffed by Dowdy.2 After she was handcuffed Jacobson-Boettcher informed Dowdy
of several medical issues including rheumatoid arthritis, neck issues, and that her “feet
were raw.” (Dkt. 54-1 at p. 5)
Dowdy then started to lead Jacobson-Boettcher to his patrol car as Mr. Boettcher
followed them. Dowdy testified that because Jacobson-Boettcher’s balance was unsteady,
he asked her to sit on the curb so she could “maintain her balance, not fall.” (Dkt. 47-5 at
39:4–11) Dowdy testified that Jacobson-Boettcher refused to sit down and screamed,
"Fuck you, I'm not getting on the ground so you and him can rape me again." She began
pointing to Mook and screaming “he raped me, he raped me.” (Dkt. 47-5 at 39:9–15)
Dowdy testified that Jacobson-Boettcher was “very, very unsteady on her feet and not
able to maintain her own balance.” Dowdy testified that he was trying to maintain control
of the handcuffs when she fell forward into the trash can knocking the lid off but not
falling on to the ground. According to Dowdy, he then held her against the trash and used
his arm to brace her on top of the trash can so she could not wiggle away and possibly
fall. (Dkt. 47-5 at 40:2–14) Dowdy testified that Jacobson-Boettcher was “very
Dowdy testified that he asked Boettcher “Why couldn't you help us get her in the vehicle and
just leave?” and that Boettcher responded, “Honestly, sir, if I were to put her in the vehicle, you
would probably be taking us both to jail.” (Dkt. 47-5 at 37:13–16)
2

4 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 5 of 18

flamboyant yelling and screaming at everybody.” As Dowdy called for back up to assist
him, Jacobson-Boettcher attempted to wander off while in handcuffs. Dowdy testified
that she then broke free from his grip on the handcuffs and fell and hit the pavement.
(Dkt. 47-5 at 41:3–42:11) Jacobson-Boettcher testified that she lost consciousness for
maybe one or two minutes after the fall. (Dkt. 47-1 at 150:19–22) Dowdy testified that as
he was trying to get her to her feet, there were many people in their immediate vicinity
and deputies began responding to a fight going on in the same parking lot. (Dkt. 47-5 at
45:15–18)
Defendant Walker, a Harris County Sheriff’s deputy who had been on patrol on
the night of the incident received a call for assistance and arrived on the scene. As
Dowdy and Walker lifted Jacobson-Boettcher up and started to move her to the patrol
car, she became “dead weight” in their arms. (Dkt. 47-5 at 46:15–20) As they led her to
the car, Jacobson-Boettcher continued to scream and resist their attempt to move her. On
the way to the car, Jacobson-Boettcher tripped over her feet, falling to the ground and
pulling the deputies to the ground with her in the middle of a driving lane in the parking
lot. All three were injured in the fall. Walker was eventually able to drag JacobsonBoettcher out of the driving lane and into the patrol car.
Once in the car Jacobson-Boettcher kicked the car door, refused to pull her legs in
and had to be pulled from the opposite door into the patrol car. Jacobson-Boettcher began
to beat her head against the car window and vomited in the back seat of the patrol car.
When an ambulance came to take Jacobson-Boettcher to the hospital, the
emergency medical technicians believed her to be intoxicated and noted that she was
5 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 6 of 18

belligerent and smelled of alcohol. Jacobson-Boettcher cursed and swore at the
emergency medical technicians who tried to help her. She called the female technician a
“bitch,” threw her arms around, used the word “fuck” and “yelled a lot.” (Dkt. 47-2 at
para. 8) She also was uncooperative with EMS, pulled off the blood pressure cuff, and
initially refused medical treatment. (Dkt. 47-2 at paras. 6, 11)
When the ambulance arrived at the hospital, Jacobson-Boettcher refused
treatment so that she could take pictures of her injuries, returned home, and then went
back to the hospital for treatment. As a result of the incident, Jacobson-Boettcher claims
to have experienced numerous physical and mental damages including bruises, nerve
injury, memory loss, tendonitis, PTSD, depression, and insomnia. (Dkt. 54 at p. 11)
Jacobson-Boettcher testified that that at no time did she “swing, flail, run, trip” or
“refuse” orders by any officer. She also denied being drunk or that she was arguing with
anyone at the time she was being arrested. (Dkt. 54-1 at p. 5) Other than admitting to
using what she described as “a bad word”—“bullshit”—to Mook, she denies having used
profanity during her arrest. (Dkt. 47-1 at 129:11–16) Jacobson-Boettcher states that due
to her health issues, she did not have “the physical prowess, strength or any thought” to
resist arrest. (Dkt. 54-1 at p. 6) Jacobson-Boettcher asserts that the civilian eyewitnesses
to her arrest and the sheriff deputies on the scene—including Dowdy and Walker— who
have testified to the contrary are “liars.” She asserts at the time she was being taken to the
patrol car she was having flashbacks to her alleged rape and this was the cause of her

6 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 7 of 18

actions in the patrol car.3 Jacobson-Boettcher testified that she was “unintentionally rude,
irritable and agitated” towards the EMS personnel, which she attributes to medical shock
from what she had just experienced. (Dkt. 54-1 at p. 9)
Subsequently Jacobson-Boettcher filed this lawsuit under 43 U.S.C. § 1983
alleging that Dowdy and Walker violated her rights under the Fourth Amendment to the
United States Constitution by using excessive force during her arrest and unlawfully
arresting her.
In the pending motions, Dowdy and Walker move for summary judgment
contending that Jacobson-Boettcher’s claims against them are barred by qualified
immunity; Harris County has moved for summary judgment on the grounds that no
violation of Jacobson-Boettcher’s rights has occurred and that Jacobson-Boettcher has
failed to identify and prove that any policy, practice, or custom of Harris County caused a
deprivation of her rights.4 The Court will address these arguments below.
II.

APPLICABLE LAW

A.

Summary Judgment Standard

Under Federal Rule of Civil Procedure Rule 56, summary judgment is appropriate
“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.” Celotex Corp. v. Catrett, 477 U.S.
The summary judgment record establishes that Jacobson-Boettcher has a documented history of
emotional and mental health issues. She has been treated for depression and has been diagnosed
with PTSD. (Dkt. 47-1 at 30:14–32:15)
3

Jacobson-Boettcher concedes that she does not have adequate evidence to prove her municipal
liability claims against Harris County and does not oppose Harris County’s motion for summary
judgment. (Dkt. 55)
4

7 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 8 of 18

317, 322‒24 (1986). “A genuine dispute of material fact exists when the ‘evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Burrell v.
Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (quoting Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986)). A fact is material if “its resolution could affect
the outcome of the action.” Nunley v. City of Waco, 440 F. App’x 275, 277 (5th Cir.
2011). The court must view the facts and draw all reasonable inferences in the light most
favorable to the nonmoving party. Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th
Cir. 2018).
“Where the non-movant bears the burden of proof at trial, ‘the movant may merely
point to the absence of evidence and thereby shift to the non-movant the burden of
demonstrating . . . that there is an issue of material fact warranting trial.” Kim v. Hospira,
Inc., 709 F. App’x 287, 288 (5th Cir. 2018) (quoting Nola Spice Designs, L.L.C. v.
Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)). If the movant produces evidence
that tends to show that there is no dispute of material fact, the nonmovant must then
identify evidence in the record sufficient to establish the dispute of material fact for trial.
Celotex, 477 U.S. at 321‒23.
The nonmovant must “go beyond the pleadings and by her own affidavits, or by
depositions, answers to interrogatories and admissions on file, designate specific facts
showing that there is a genuine issue of material fact for trial.” Giles v. Gen. Elec. Co.,
245 F.3d 474, 493 (5th Cir. 2001) (citing Celotex, 477 U.S. at 324). “This burden will not
be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertion, or by only a scintilla of evidence.’” Jurach v.
8 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 9 of 18

Safety Vision, L.L.C., 642 F. App’x 313, 317 (5th Cir. 2016) (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). Likewise, a party's self-serving and
unsupported statement in an affidavit will not defeat summary judgment where the
evidence in the record is to the contrary. Smith v. Sw. Bell Tel. Co., 456 Fed. App'x 489,
492 (5th Cir. 2012) ("[W]e have repeatedly held that self-serving statements, without
more, will not defeat a motion for summary judgment, particularly one supported by
plentiful contrary evidence."); United States v. Lawrence, 276 F.3d 193, 197 (5th Cir.
2001); In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000); see also Scott v. Harris, 550 U.S.
372, 380 (2007) ("When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a summary judgment
motion.)
B.

Qualified Immunity

The doctrine of qualified immunity protects government officers from civil
liability in their individual capacities if their conduct does not violate clearly established
federal statutory or constitutional law of which a reasonable person would have
known. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Once raised as a defense, the
plaintiff has the burden to demonstrate that qualified immunity should be pierced. Brown
v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). This inquiry requires a two-part analysis,
in which the court determines (1) whether the official violated a statutory or
constitutional right, and (2) whether the unlawfulness of the official's conduct was
"clearly established" at that time. District of Columbia v. Wesby, 138 S. Ct. 577, 589
9 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 10 of 18

(2018); Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). A right is "clearly established"
only where pre-existing law "dictate[s], that is truly compel[s] (not just suggest[s] or
allow[s] or raise[s] a question about), the conclusion for every like-situated, reasonable
government agent that what the defendant is doing violates federal law in these
circumstances." Sama v. Hannigan, 669 F.3d 585, 591 (5th Cir. 2012). Even if a
defendant's conduct actually violates a plaintiff's constitutional rights, the defendant is
entitled to qualified immunity unless "all reasonable officials in the defendant's
circumstances would have then known that the defendant's conduct violated the plaintiff's
rights." Carroll v. Ellington, 800 F. 3d 154, 169 (5th Cir. 2015). In the context of a
summary judgment motion like the one here, to avoid summary judgment on the officers'
claim of qualified immunity, the plaintiff must demonstrate that there is a genuine issue
of material fact regarding whether a constitutional violation took place and must show
that under clearly established law provided that the officer's conduct was objectively
unreasonable. Zarnow v. City of Wichita Falls, 500 F.3d 401, 408 (5th Cir. 2007).
C.

Municipal Liability Under 42 U.S.C. § 1983

“Section 1983 provides a remedy against ‘any person’ who, under color of state
law, deprives another of rights protected by the Constitution.” Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 120 (1992). A local government may not be sued under
Section 1983 for the deprivation of rights guaranteed by the Constitution or federal law
inflicted solely by its employees or agents. See Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 691 (1978) (“[A] municipality cannot be held liable under § 1983
on a respondeat superior theory.”) However, “when execution of a government’s policy
10 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 11 of 18

or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury,” the government agency is liable
under Section 1983. Id.
To state a claim against a municipality under Section 1983, “a plaintiff must show
that (1) an official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” Peterson v. City of Fort
Worth, 588 F.3d 838, 847 (5th Cir. 2009).
“An official policy is either (1) a policy statement, ordinance,
regulation, or decision that is officially adopted and promulgated by the
municipality’s lawmaking officers or by an official to whom the lawmakers
have delegated policy-making authority; or (2) a persistent, widespread
practice of officials or employees, which, although not authorized by
officially adopted and promulgated policy, is so common and well-settled
as to constitute a custom that fairly represents the municipal policy. Actual
or constructive knowledge of such custom must be attributable to the
governing body of the municipality or to an official to whom that body has
delegated policy-making authority.”
McIntosh v. Smith, 690 F. Supp. 2d 515, 530 (S.D. Tex. Feb. 2, 2010) (citing
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)).
A local government’s decision not to train certain employees about their
legal duty to avoid violating citizens’ rights can only be considered an official
government policy where the failure to train amounts to “deliberate indifference” to the
rights of persons with whom the employee comes into contact. Connick v. Thompson, 563
U.S. 51 (2011) “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of
County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 410 (1997).
11 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 12 of 18

III.

ANALYSIS

A. Dowdy and Walker Are Entitled to Qualified Immunity Regarding the
Excessive Use of Force Claim
The Fourth Amendment guarantees the right to be free from excessive force
during an arrest. Under the first prong of the qualified immunity analysis, to establish a
claim for violation of the Fourth Amendment’s prohibition on excessive force, JacobsonBoettcher must show (1) she suffered an injury that (2) “resulted directly and only from a
use of force that was clearly excessive to the need,” (3) the excessiveness of the force
was objectively unreasonable. Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018)
(internal quotation marks and citations omitted).
Here, Jacobson-Boettcher has failed to establish a claim against Dowdy and
Walker for use of excessive force. “Excessive force claims are necessarily fact-intensive;
whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and
circumstances of each particular case.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.
2009) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The court must evaluate
the use of force by these officers “from the perspective of a reasonable officer on the
scene,” and not “with the 20/20 vision of hindsight.” Griggs v. Brewer, 841 F.3d 308,
312 (5th Cir. 2016). In Graham v. Connor, the Supreme Court identified three factors—
the "Graham factors"—that courts should consider when assessing whether a particular
use of force was reasonable: (1) the severity of the crime at hand, (2) whether the suspect
posed an immediate threat to the safety of the officers or others, and (3) whether the
suspect was actively resisting arrest or attempting to flee. 490 U.S. at 389.
12 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 13 of 18

Considering the summary judgment evidence in the instant case under the
Graham factors, the Court finds that a jury could not reasonably conclude that the force
used against Jacobson-Boettcher was excessive and thus constituted a violation of her
constitutional rights. Assuming that the first Graham factor might weigh against the
immediate use of force in Jacobson-Boettcher’s arrest, here once she was under arrest the
other two factors clearly and overwhelmingly establish that Dowdy and Walker are
immune from this lawsuit. Under the second Graham factor, the summary judgment
evidence establishes that Jacobson-Boettcher’s conduct not only posed an immediate
threat to the safety of the officers and bystanders, but that she actually caused the officers
harm by actively resisting arrest and pulling them to the ground by dropping in their arms
as “dead weight” while they attempted to bring her to the patrol car. Next, under the
third Graham factor, the summary judgment evidence establishes that no reasonable jury
could find that the force used was excessive to the need.
Here, the summary judgment evidence corroborates the testimony of Dowdy and
Walker regarding the material facts supporting the reasonableness of the force used to
bring Jacobson-Boettcher to the patrol car when she was injured. The statements and
testimony of the civilian eyewitnesses including two bar patrons, one of whom
videotaped part of the encounter, Mo Jr. and medical technicians, as well as hospital
intake records and limited videotape of the incident establish that Jacobson-Boettcher 1)
was extremely intoxicated; 2) was combative, even flailing her arms at officers and
bystanders until she was handcuffed; 3) was acting erratically by cursing, yelling and
13 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 14 of 18

screaming at those around her; 4) tried to get away from Dowdy even while handcuffed
and after Dowdy had allegedly placed a firmer grip on her; 5) despite her medical
conditions and alleged inability to resist, succeeded in getting away for Dowdy’s grip
before Walker came to assist him; 6) fell not once but twice while she was either
attempting to get away from the officers or prevent them from moving her; and 7) Dowdy
and Walker were injured as a result of her second fall. The summary judgment record
also establishes the urgency of the need to move Jacobson-Boettcher out of the area as
quickly as possible because of the developing fight nearby in the parking lot and the need
for the officers to come to the assistance of the deputies involved in stopping that fight.
The Court finds that Jacobson-Boettcher’s self-serving deposition and affidavit
testimony contradicting these facts—which are completely unsubstantiated by any other
evidence in the summary judgment record—are insufficient to create a material issue of
fact as to the reasonableness of the force used against her by Dowdy and Walker. 5 The
Court is not required to accept as true a nonmovant's conclusory allegations, speculation,
or unsubstantiated assertions of fact that are either entirely unsupported by the summary
judgment record, or are supported by a mere scintilla of evidence. Chaney v. Dreyfus
Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage Co. v. Sunbelt
Fruit & Vegetable Co., 336 F.3d 410, 413 (5th Cir. 2003). A nonmovant’s self-serving
and unsupported testimony will not defeat summary judgment where the evidence in the
5

For these same reasons, the Court also finds Boettcher’s self-serving and conclusory affidavit
testimony—including but not limited to statements that everyone who does not agree with his
wife’s version of events is a “liar” is not competent summary judgment evidence and the Court
will not accept these statements as true for purposes of ruling on the pending motion.
14 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 15 of 18

record is to the contrary. See In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000); Clark v.
Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (citing Duffy v. Leading
Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995)).
Here, the Court will not accept as true Jacobson-Boettcher’s unsubstantiated and
conclusory statements regarding her conduct for purposes of ruling on the pending
summary judgment motion. The Court also finds that even if Jacobson-Boettcher had told
Dowdy and Walker of her medical conditions after she was handcuffed as she claims,
under the facts of this case, that knowledge would not make their use of force
unreasonable. Accordingly, the Court finds that Dowdy and Walker did not violate
Jacobson-Boettcher’s constitutional rights and these defendants are entitled to qualified
immunity as to Jacobson-Boettcher’s excessive force claims.
B. Dowdy and Walker Are Entitled to Qualified Immunity Regarding the
False Arrest Claim
Whether a plaintiff has established a claim for false arrest and satisfied the first
prong of the qualified immunity analysis turns on whether "a reasonable officer could
have believed the arrest to be lawful, in light of clearly established law and the
information

the

officer

possessed." Hunter

v.

Bryant,

502

U.S.

224,

227

(1991). An officer violates the Fourth Amendment if an arrest is made without a proper
arrest warrant or probable cause. Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th
Cir. 1994) (citations omitted); see also Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.
1994). Here, it is undisputed that Dowdy and Walker acted without the benefit of a

15 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 16 of 18

warrant. Thus, the Court's inquiry focuses on the existence of probable cause to support
the arrest.
“Probable cause exists when the totality of the facts and circumstances within a
police officer’s knowledge at the moment of arrest are sufficient for a reasonable person
to conclude that the suspect had committed or was committing an offense.” Resendiz v.
Miller, 203 F.3d 902, 903 (5th Cir. 2000). “If there was probable cause for any of the
charges made . . . then the arrest was supported by probable cause, and the claim for false
arrest fails.” Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).
“An officer may conduct a warrantless arrest based on probable cause that an
individual has committed even a minor offense, including misdemeanors.” Deville, 567
F.3d at 165 (citing Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)). Moreover,
“evidence that the arrestee was innocent of the crime is not necessarily dispositive of
whether the officer had probable cause to conduct the arrest because probable cause
requires only a probability or substantial chance of criminal activity, not an actual
showing of such activity.” Id. Accordingly, an officer’s own testimony regarding the
occurrence of an arrestable violation can by itself support a finding of probable cause,
even in the face of the plaintiff’s denial of that violation. Id.
Here, Dowdy had probable cause to arrest Jacobson-Boettcher for public
intoxication and for criminal trespass. Dowdy and Walker reasonably believed JacobsonBoettcher to have been publicly intoxicated and their testimony on this fact is supported
16 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 17 of 18

by competent summary judgment evidence. Jacobson-Boettcher also admits that she had
been asked to leave the bar by both Steele and Mook and that she was standing in front of
the bar entrance arguing with them about why she had been asked to leave when she was
arrested. (Dkt. 54-A at 2–3) These facts gave Dowdy probable cause to arrest JacobsonBoettcher for either public intoxication or criminal trespass or both. Courts have
consistently held that an “arrest does not violate the Fourth Amendment if the officer
making the arrest has probable cause to arrest the defendant for any crime, regardless of
whether the defendant can be lawfully arrested for the crime which the officer states or
believes he is making the arrest.” U.S. v. Bain, 135 F. App’x 695, 696 (5th Cir. 2005)
(citing Devenpeck v. Alford, 543 U.S. 146 (2004)). Accordingly, the Court finds that
Jacobson-Boettcher cannot establish a claim for false arrest and Dowdy and Walker are
entitled to qualified immunity from this lawsuit.
C.
Jacobson-Boettcher’s municipal liability claim against Harris County
fails because she did not create a genuine issue of material fact regarding
whether she suffered a constitutional violation.
There can be no municipal liability under Section 1983 unless the plaintiff
suffered a constitutional violation. As discussed above, the Court finds that Dowdy and
Walker did not violate Jacobson-Boettcher’s constitutional rights. Furthermore JacobsonBoettcher has not identified an official policy or custom that led to her alleged
constitutional violation nor a policymaker with actual or constructive knowledge of that
policy or custom. See Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).

17 / 18

Case 4:18-cv-00853 Document 63 Filed on 03/03/21 in TXSD Page 18 of 18

Accordingly, there can be no municipal liability against Harris County, and it is entitled
to judgment in this case as a matter of law.

IV.

CONCLUSION
For the reasons discussed above, the motion for summary judgments are

GRANTED.
SIGNED at Houston, Texas, this 3rd day of March, 2021.
___________________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE

18 / 18