Leverson v. City of Austin/Austin Police Department et al

Filing 50

ORDER GRANTING IN PART DENYING IN PART 44 Motion to Dismiss, GRANTING 43 Motion for Summary Judgment. Signed by Judge Sam Sparks. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2016

P!y 19

P/j 2:

i

CHRISTOPHER HAYES LEVERSON,
Plaintiff,
Case No. A-14-CA-1118-SS

-vs-

CITY

OF

AUSTIN/AUSTIN

POLICE

DEPARTMENT; AUSTIN POLICE CHIEF ART
ACE VEDO; POLICE OFFICER LARRY VEST;
POLICE OFFICER SCOTT POPHAM; POLICE
OFFICER SHANA HOWELL; POLICE
OFFICER JEFFERY RODRIGUEZ; POLICE
OFFICER LEONARD WHEELER; POLICE
OFFICER SANDRA BENNINGFIELD; POLICE
SERGEANT DEBRA TREVINO; and JOHN
DOES A-Z who are unknown to the plaintiff at
this time but are in the chain of command for the
Austin Police Department,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Defendants[] the City of Austin[,] Officer Jeffrey Rodriguez, Officer Leonard Wheeler,
and John Does

AZ's

12(c) Motion to Dismiss [#44], Plaintiff Christopher Hayes Leverson's

Response [#46] in opposition, Defendants' Motion for Summary Judgment [#43], Plaintiffs
Response [#47] in opposition, and Defendants' Reply [#48] in support. Having considered the

documents, the governing law, and the file as a whole, the Court now enters the following opinion
and orders.

I

Background
Pro se Plaintiff Christopher Hayes Leverson brings this 42 U.S.C. § 1983 civil rights action
against the City of Austin and various members of the Austin Police Department in connection with
a traffic stop that led to his arrest. Leverson alleges violations of his Fourth, Fifth, and Fourteenth

Amendment rights and unspecified "rights.

. .

under the statutory and tort law of the State of Texas."

Am. Compi. [#27] ¶J 68-71.

The relevant facts are as follows. On December 20, 2012, while on patrol in downtown

Austin looking for vehicles with expired registration, Defendant Officers Larry Vest and Scott
Popham targeted Leverson' s vehicle, a white Jeep. Finding the Jeep's registration was expired, Vest
and Popham turned on their cruiser's emergency lights to initiate a traffic stop. Rather than pull over

immediately, however, Leverson continued driving for several blocks, at one point turning the Jeep

toward an empty curb and then back into traffic. Mot. Summ. J. [#43-1] Ex. A, Attach. 5 (Dash Cam
Recording) at 0:55-1:00.
The officers sounded their emergency siren several times and began ordering Leverson to pull
over via loudspeaker. Leverson, however, continued to drive for a few more blocks before finally

coming to a stop. Id. at 1:08-1:50. According to Leverson, he "assum[ed]" he would be "arrested
on the spot" during the encounter and was thus "looking for a proper place to pull over" which would

not "give the officers any reason to have [his] Jeep towed[.]" Resp. Mot. Summ. J. [#47-1] Ex.

1

(Leverson Decl.) ¶ 2. The officers characterize Leverson' s driving before coming to a stop as
unusual and "evasive." Mot. Summ. J. [#43-1] Ex. A (Vest Dee!.) ¶ 8.
After Leverson pulled over, Vest approached the Jeep's driver's side window, asked
Leverson why he had taken so long to stop, and requested his driver's license and proof of insurance.
-2-

Leverson ignored the request, instead asking whether the encounter was being recorded and, for the

first of many times, "inform[ing] [Vest] for the record I am not engaged in transportation." Dash
Cam Recording at 2:06-2:41.

Leverson stepped out of his car, continuing to ignore the officers' requests he produce his
driver's license and insurance. As Leverson repeatedly asked the officers to "acknowledge" "for the
record" that he was "not engaged in transportation," the officers placed Leverson in handcuffs,
informing Leverson he was pulled over for expired registration and lack of inspection, was being

detained, and was not under arrest. Id. at 2:42-4:15. The officers frisked Leverson for safety and
found a knife and metal rod in Leverson's pants. Id. at 4:21-4:41.

Defendant Sergeant Debra Trevino, the officers' supervisor, arrived on the scene and gave
the officers approval to arrest Leverson. Mot. Summ. J. [#43-1] Ex. C (Popham Decl.) ¶ 8.
Additionally, Vest called the APD '5 Arrest Review Unit and received approval to arrest Leverson
for eluding arrest. Id. ¶ 16. The officers then placed Leverson under arrest, informed him his car

would be towed, and took him tojail, where he was booked in for eluding arrest, expired registration,

lack of inspection, lack of insurance, and failure to display a driver's license. Id.; Dash Cam

Recording at 14:58-15:10.
Pursuant to APD impoundment policy, Defendant Officer Shana Howell conducted an
inventory search of Leverson's vehicle prior to the tow.

See Mot.

Summ. J. [#43-1] Ex. A, Attach.

4 (APD Policy) at 350.3.1(a), 350.4(a). Among other items, Howell discovered Leverson' s driver's

license, a large knife concealed underneath the driver' s-side sun visor, three loaded pistol magazines,
a loaded Glock pistol, and a loaded tactical shotgun. Id. [#43-1] Ex. D (Howell Decl.) ¶J 7-8.

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Defendant Officer Sandra Benningfield, then a detective in APD's Firearms Unit, was
assigned to investigate the firearms aspect of Leverson's case. Id. [#43-1] Ex. E (Benningfield

Deci.) ¶ 3. Bennington concluded that because Leverson was charged with eluding arrest, the
presence of weapons in his vehicle meant he could also be charged with unlawfully carrying a
weapon. Id.

¶IJ

4, 7. After conferring with the County Attorney's Office, APD filed an additional

charge against Leverson for unlawfully carrying a weapon. Id. ¶ 8.

On September 3, 2013, Leverson filed his first lawsuit in this Court stemming from these
events, suing the City prosecutor and municipal court judge involved in his prosecution under

§

1983

and various common-law theories. See Compl. [#1], Leverson v. Sullivan et al.,No. A- 13 -CV-0764SS (W.D. Tex. 2013) (Sullivan Case). On October 17, 2013, the Court dismissed that suit with

prejudice, see Order of Oct. 17, 2013 [##7, 8], Sullivan Case, and the Fifth Circuit affirmed on
appeal, see USCA J,/Mandate [#14], Sullivan Case.

Leverson initiated the present action by filing his complaint on December 18, 2014. See
Compi. [#1]. The Court granted a motion to dismiss without prejudice on February 9, 2015, see
Order of Feb. 9, 2015, warning Leverson "that on every defendant he has sued wherein there is no
cause of action or no cause of action can be established, the Court will consider sanctions under Rule
11

. . .

and, in addition to assessing court costs, will assess attorney's fees." Order of Feb. 9, 2015

[#24].

Leverson filed his amended complaint, the presently operative pleading, on March 10,2015.
See Am. Compl. [#27]. Defendants filed the instant motions to dismiss and for summary judgment

on April 20, 2016. See Mot. Summ. J. [#43]; Mot. Dismiss [#44]. The motions are now ripe for

decision.

I.

Motion to Dismiss

A.

Legal

StandardRule 12(c)

Federal Rule of Civil Procedure 12(c) provides: "After the pleadings are closedbut early

enough not to delay triala party may move for judgment on the pleadings."

FED.

R. CIV. P. 12(c).

Motions for judgment on the pleadings are "designed to dispose of cases where the material facts
are not in dispute and a judgment on the merits can be rendered by looking to the substance of the

pleadings and any judicially noticed facts." Great Plains Trust Co.

v.

Morgan Stanley Dean Witter

& Co., 313 F.3d 305, 312 (5th Cir. 2002). "A motion for judgment on the pleadings under Rule

12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6)." Doe v. MySpace,

Inc., 528 F.3d 413, 418 (5th Cir. 2008).
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain

statement of the claim showing that the pleader is entitled to relief."

FED.

R.

Civ. P.

8(a)(2). A

motion under Federal Rule of Civil Procedure 1 2(b)(6) asks a court to dismiss a complaint for

"failure to state a claim upon which relief can be granted."

FED. R.

Civ. P. 12(b)(6). The plaintiff

must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556

U.s. 662, 678 (2009); Bell Atl. Corp.

v.

Twombly, 550 U.S. 544, 570 (2007). "A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at 678. Although
a plaintiff's factual allegations need not establish that the defendant is probably liable, they must

establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining
plausibility is a "context-specific task," and must be performed in light of a court's "judicial
experience and common sense." Id. at 679.
-5-

In deciding a motion to dismiss under Rule 1 2(b)(6), a court generally accepts as true all

factual allegations contained within the complaint.

Leatherman

v.

Tarrant Cty. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, a court is not bound to
accept legal conclusions couched as factual allegations. Papasan

v.

Allain, 478 U.S. 265, 286

(1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff

must plead "specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp.,
14 F.3d 1061, 1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the

complaint, as well as other sources such as documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).

B.

Application
In their motion, Defendant Officers Jeffrey Rodriguez and Leonard Wheeler argue Leverson

has failed to allege sufficient factual material against them to state a claim for relief. The City
further argues Leverson's

§

1983 claims against it should be dismissed, as Leverson has failed to

allege any official City policy or custom that led to the alleged constitutional violations. Finally,
these three Defendants request dismissal of any remaining claims against John Does AZ. As noted
in his response, Leverson does not oppose dismissal of all claims against Rodriguez, Wheeler, and
John Does

AZ,

see Resp. Mot. Dismiss [#46] at 1-2; those claims are therefore dismissed.

Leverson does, however, contest dismissal of his § 1983 claims against the City. As the City has
also moved for summary judgment on all claims against it, however, the Court declines to dismiss

Leverson' s claims against the City, and will instead evaluate them on summary judgment.

II.

Motion for Summary Judgment

A.

Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law.
v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn

v.

FED. R.

Civ. P. 56(a); Celotex Corp.

Harvey, 504 F.3d 505, 508 (5th Cir. 2007).

A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could

return a verdict in favor of the nonmoving party. Anderson v. Liberiy Lobby, Inc., 477 U.S. 242,248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences

drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co.

v.

ZenithRadio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court

"may not make credibility determinations or weigh the evidence" in ruling on a motion for summary

judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477
U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party's case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to

defeat a motion for summaryjudgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are
not competent summary judgment evidence. Id. The party opposing summary judgment is required
to identify specific evidence in the record and to articulate the precise manner in which that evidence

-7-

supports his claim. Adams

v.

Travelers Indem. Co.

of Conn.,

465 F.3d 156, 164 (5th Cir. 2006).

Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to
support the nonmovant's opposition to the motion for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing laws
will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact
issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary

judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it will bear the burden of proof at trial,
summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B.

Application
The City, as well as Defendants Chief Art Acevedo, Sergeant Trevino, and Officers Vest,

Popham, Howell, and Benningfield (collectively, the MSJ Defendants) move for summary judgment
on all of the remaining claims. Viewing the record in the light most favorable to Leverson, the Court

agrees with the MSJ Defendants that summary judgment in their favor on all Leverson's claims is
proper. Leverson has failed to show he suffered any injury to his constitutional rights which would

render any of the MSJ Defendants liable.
According to Leverson' s response to the motion for summary judgment, his claims are based

on alleged violations of his (1) Fourteenth Amendment right to due process "[b]y the levy of a charge
that the officers knew to be false at the time," (2) Fifth Amendment "rights to refuse to provide

evidence that could be used against him later at trial," and (3) Fourth Amendment "rights to be free
from unwarranted search and seizure of his persons and property." Resp. Mot. Summ. J. [#47] at

17. Because Leverson fails to prove any

of these constitutional violations, all of his theories of

liability based on these violations fail.
1.

Fourteenth Amendment

Leverson' s Fourteenth Amendment due process claim sounds in malicious prosecution. See
Am. Compl. [#27] ¶ 68 ("Defendants violated Mr. Leverson's.

. .

Fourteenth Amendment rights

when.. . [they] continued their false prosecution of Mr. Leverson without probable cause."). As the
Fifth Circuit has explained, "causing charges to be filed without probable cause will not without

more violate the Constitution. So defined, the assertion of malicious prosecution states no
constitutional claim." Castellano

v.

Fragozo, 352 F.3d 939, 953 (5th Cir. 2003). While Leverson

does conclusorily assert that the police "falsifijed]

.

. .

records in support of that known false

allegation," he provides no evidence in support of this allegation. The MSJ Defendants are therefore
entitled to judgment on Leverson' s claims to the extent they are grounded in alleged Fourteenth

Amendment violations.
2.

Fifth Amendment

Leverson's Fifth Amendment claim is also without merit. The Court notes Leverson's
complaint never describes what his Fifth Amendment claim actually is; as such, Leverson fails to
state a claim for relief on this ground. See Am. Compl. [#27] ¶J 69-70 (generally alleging an

unspecified Fifth Amendment deprivation). Assuming for the sake of completeness Leverson meant
to allege, as he suggests in his response, that Defendants violated his privilege against self-

incrimination, Leverson has presented no evidence indicating he was made to be a witness against

himself in a criminal case.

Consequently, Leverson has neither alleged nor shown a Fifth

Amendment violation. See Chavez

v.

Martinez, 538 U.S. 760, 770 (2003) ("[A] violation of the

constitutional right against self-incrimination occurs only if one has been compelled to be a witness
against himself in a criminal case.")
3.

Fourth Amendment

Construing Leverson's Fourth Amendment allegations as claims for unlawful arrest and
unlawful search,' those claims also fail. First, there was no unlawful arrest, as failure to display

proper vehicle registration and driving without a license are lawful grounds for arrest under Texas
law. See TEx. TRANSP. CODE § 502.472, .473 (displayed, proper registration required); 521.021

(driver's license required); 543.001 (warrantless arrest permitted for traffic violations). Because
Leverson failed to produce a driver's license or display a vehicle registration sticker, Officers Vest
and Popham had probable cause to believe Leverson was committing a crime in their presence. As

the Supreme Court has held, "[i]f an officer has probable cause to believe that an individual has

committed even a very minor criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender." Atwater

v.

City ofLago Vista, 532 U.S. 318, 354 (2011) (arrest

for failure to wear seatbelt did not offend the Fourth Amendment).
constitutional. See Marzett v. McGraw,

S .W.3d,

Leverson's arrest was

2015 WL 1886827, *1_2 (Tex. App.Dallas

2015, pet. denied) (affirming dismissal of pro se appellant's claims that Texas officials "illegally

enforced the Texas Transportation Code against him when he was not engaged in transportation" and
noting "[a]n arrest for a minor traffic violation is not an unreasonable seizure under the Fourth
Amendment" (citing Atwater, 532 U.S. at 354)).

The Court does not read Leverson's complaintto assert an excessive force claim. Even if Leverson did assert
such a claim, there is no record evidence whatsoever that the arresting officers used excessive force in effectuating
Leverson's arrest, and the MSJ Defendants would therefore be entitled to judgment on that claim. See generally Dash
Cam Recording.

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Second, the search of Leverson' s vehicle was a permissible inventory search. Inventory

searches "are now a well-defined exception to the warrant requirement" and are constitutional if
conducted pursuant to "reasonable police regulations.
v.

.

.

administered in good faith[.]" Colorado

Bertine,479U.S. 367,371,374(1987);SouthDakotav. Opperman,428U.S. 364,375-76(1976).

The policy ofthe Austin Police Department authorizes impoundment of a vehicle where its "operator

has been arrested and the vehicle is otherwise safely operable," and requires officers to inventory
vehicles "[i]n all incidents" of impoundment. APD Policy at 350.3.1(a), 350.4(a). Leverson does
not respond to the MSJ Defendants' argument on this point, and there is no evidence the officers
who searched Leverson's vehicle did so in bad faith or contrary to APD policy. Further, the policy

itself is not constitutionally deficient; rather, by its explicit terms, it is consistent with "protecting
the property of the vehicle's owner" and "protecting the police against claims or disputes over lost
or stolen property." United States

v.

McKinnon, 681 F.3d 203, 210 (5th Cir. 2012) (quoting United

States v. Lage, 183 F.3d 374, 380 (5th Cir. 1999)); see APD Policy at 350.4(a). Defendants are
entitled to judgment on Leverson's Fourth Amendment claims.
Because Leverson suffered no constitutional injury, all of his

Phillips

v.

§

1983 claims lack merit. See

Vandygriff 711 F.2d 1217, 1221 (5th Cir. 1983) (citing 42 U.S.C.

§

1983) ("The two

elements of a section 1983 claim are (1) deprivation of a federal right (2) under color of state law.").
Finally, Leverson's sole allegation concerning violations of state law is a vague and conclusory

statement that "[t]he actions of Defendants violated the rights of the Plaintiff under the statutory and

tort law of the state of Texas." Am. Compl. [#271 ¶ 71. This fails to state a claim for relief.

Leverson's unspecified claims grounded in unspecified state laws are dismissed.

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Conclusion
Accordingly:
IT IS ORDERED that Defendants[] the City of Austin[,] Officer Jeffrey Rodriguez,

Officer Leonard Wheeler, and John Does

AZ's

12(c) Motion to Dismiss [#44] is

GRANTED as to Officers Rodriguez, Wheeler, and John Does AZ and DENIED as to the
City of Austin, as described in this opinion;
IT IS FURTHER ORDERED that Plaintiff Christopher Hayes Leverson's state law

claims are DISMISSED WITHOUT PREJUDICE; and
IT IS FINALLY ORDERED that Defendants the City of Austin, Chief Art Acevedo,

Sergeant Debra Trevino, Officer Larry Vest, Officer Scott Popham, Officer Shana Howell,
and Officer Sandra Benningfield's Motion for Summary Judgment [#43] is GRANTED.

SIGNED this the /7

'day of May 2016.

SAr.SRr? JUDGE
UNITED STATES DISTRICT

1118 rntdmsj ordba3.frrn

12