Macias v. Cunningham

Filing 29

REPORT AND RECOMMENDATIONS re 9 Motion to Dismiss filed by Shane Cunningham, 19 Motion for Summary Judgment filed by Shane Cunningham, 25 Motion for Discovery filed by Miguel Angel Macias. Signed by Judge Mark Lane. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MIGUEL ANGEL MACIAS #1967946
-vs-

Case No. A-14-CA-1136-SS

SHANE CUNNINGHAM
__________________________________________

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The undersigned magistrate judge submits this Report and Recommendation pursuant to 28

U.S.C. § 636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United States District
Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States
Magistrates Judges, as amended, effective December 1, 2002.
Before the Court are Plaintiff’s complaint brought pursuant to 42 U.S.C. § 1983 (Document
No. 1); Defendants’ Motion for Partial Dismissal (Document No. 9); Defendant’s Motion for
Summary Judgment (Document No. 19); Plaintiff’s Response to Defendant’s Motion for Summary
Judgment (Document No. 24); Plaintiff’s Motion for Discovery (Document No. 25); Plaintiff’s
Declaration (Document No. 26); and Defendant’s Summary Judgment Reply and Response in
Opposition to Plaintiff’s Motion for Discovery (Document No. 28). Plaintiff, proceeding pro se, has
been granted leave to proceed in forma pauperis.

I. BACKGROUND
At the time he filed his complaint, Plaintiff was an inmate incarcerated in the Travis County
Correctional Complex. Plaintiff was subsequently transferred to the Allred Unit of the Texas
Department of Criminal Justice - Correctional Institutions Division. Plaintiff files this action
pursuant to 42 U.S.C. § 1983 alleging he was subjected to excessive use of force during his arrest
on August 31, 2014. According to Plaintiff, Austin Police Department Officer Shane Cunningham
fired his pistol at him fifteen times, and Plaintiff was struck with five bullets. Plaintiff sues Officer
Cunningham for violating his rights under the Eighth and Fourteenth Amendments to the
Constitution and various articles of the Declaration of Human Rights. He seeks compensatory and
punitive damages and a declaratory judgment.
Defendant Cunningham moves for a partial dismissal. Cunningham asserts Plaintiff’s claims
arise under the Fourth Amendment, not the Eighth and Fourteenth Amendments, because the alleged
use of excessive force occurred during Plaintiff’s arrest. Cunningham also moves to dismiss
Plaintiff’s claims purportedly brought under the Declaration of Human Rights. Cunningham
explains the United Nations Declaration of Human Rights does not confer any legal right to bring
private causes of action in the United States court system.
Defendant Cunningham also moves for summary judgement. He first argues Plaintiff’s
claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). He explains Plaintiff’s claim is a
direct challenge to his state court criminal conviction for aggravated assault on Cunningham for
which Plaintiff received a 32-year sentence. Cunningham concludes the aggravated assault
conviction necessarily demonstrates any force used by an officer is not excessive, and Heck bars any
civil claim to the contrary. Cunningham also argues summary judgment is appropriate in this case,
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because he is protected by qualified immunity. In sum, Cunningham argues he acted reasonably
when he used deadly force because any reasonable officer would have feared for his life under the
same circumstances. Cunningham maintains Plaintiff left him with no choice but to use deadly force
when Plaintiff deliberately rammed Cunningham’s patrol car and dangerously pushed it almost 50
feet across a parking lot, into a tree.
Plaintiff disagrees that Heck bars his case, because he does not intend to “undermine” his
criminal case. He repeats Officer Cunningham used excessive force against him when Plaintiff was
trying to exit a parking lot where a burglary had just taken place. Plaintiff contends the officer put
himself in harms way and started the chain of events that escalated into a shooting. Plaintiff claims
the lights of Officer Cunningham’s vehicle blinded him, and he did not know it was a patrol car or
that Officer Cunningham was standing outside of the vehicle. Plaintiff admits he was convicted of
assault on a peace officer but states his case is on direct appeal and has not yet been affirmed.
Plaintiff asserts he filed his civil rights complaint while his criminal case was on direct appeal,
because he feared his statute of limitations would expire. Plaintiff also challenges Defendant’s
summary-judgment evidence with regard to Officer Cunningham’s defense of qualified immunity.
II. ANALYSIS
A.

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a case for failure to state
a claim upon which relief can be granted. When evaluating a motion to dismiss under Rule 12(b)(6)
the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must
be taken as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507
U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
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Defendant Cunningham moves to dismiss Plaintiff’s claims based on violations of the Eighth
and Fourteenth Amendments to the Constitution. As explained by Defendant Cunningham, the
Fourth Amendment provides the standard for reviewing claims of excessive force in the course of
otherwise lawful arrests. Graham v. Connor, 490 U.S. 386 (1989). Accordingly, Plaintiff’s claims
based the on the Eighth and Fourteenth Amendments should be dismissed.1
Defendant Cunningham also moves to dismiss Plaintiff’s claim brought pursuant to various
articles of the Declaration of Human Rights. Defendant Cunningham correctly provides there is no
private cause of action under the Declaration of Human Rights. See Sosa v. Alvarez–Machain, 542
U.S. 692, 735 (2004). Accordingly, Plaintiff’s claims based on the Declaration of Human Rights
should be dismissed and Defendant Cunningham’s Motion for Partial Dismissal should be granted.
B.

Motion for Summary Judgment

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.” FED . R. CIV .
P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The standard for determining
whether to grant summary judgment “is not merely whether there is a sufficient factual dispute to
permit the case to go forward, but whether a rational trier of fact could find for the nonmoving party

1

Prior to the time a person in custody is convicted of a criminal offense, the Fourteenth
Amendment provides the standard of review for claims of excessive force by custodial officials.
Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993), cert. denied, 509 U.S. 905 (1993). Once a
prisoner has been convicted and placed in the penal system, the Eighth Amendment provides the
primary source of protection for a prisoner complaining that he has been injured through the
application of excessive force by jail or prison personnel. Huget v. Barnett, 900 F.2d 838, 840 (5th
Cir. 1990).
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based upon the record evidence before the court.” James v. Sadler, 909 F.2d 834, 837 (5th Cir.
1990) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 576 (1986)).
“If the moving party meets the initial burden of showing there is no genuine issue of material
fact, the burden shifts to the nonmoving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” Allen v. Rapides Parish Sch. Bd., 204 F.3d 619,
621 (5th Cir. 2000) (internal quotations and citations omitted). Conclusory allegations are not
competent summary-judgment proof, and thus are insufficient to defeat a motion for summary
judgment. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are also not competent summary-judgment
proof. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). The nonmovant must go beyond
the pleadings and identify specific proof in the record and articulate the precise manner in which that
proof supports his claim. See Wheeler v. B.L. Dev. Corp., 415 F.3d 399, 401–02 (5th Cir. 2005)
(citing Celotex Corp., 477 U.S. at 324)); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998). 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 summary-judgment motion. Ragas, 136
F.3d at 458. Doubts will be resolved in favor of the nonmovant, and all justifiable inferences to be
drawn from the underlying facts are viewed in the light most favorable to that party. See Minter v.
Great Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005); Burch v. City of Nacogdoches, 174 F.3d 615,
619 (5th Cir. 1999).

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Defendant first argues that Plaintiff’s excessive force claim2 is barred by the rule in Heck v.
Humphrey, 512 U.S. 477 (1994). Heck holds that a person may not maintain a civil rights action
based on the legality of a prior criminal proceeding unless a state court or federal habeas court has
determined that the terms of confinement are in fact invalid. Id. at 486-87. The critical inquiry is
whether a judgment in favor of the plaintiff in the civil action would “necessarily imply the invalidity
of his conviction or sentence.” Id.
Plaintiff was convicted of aggravated assault on a public servant with a deadly weapon. As
such, Heck bars Plaintiff’s excessive force claim. See Sappington v. Bartee, 195 F.3d 234, 236 (5th
Cir. 1999) (applying Heck to dismiss an excessive force claim when the plaintiff was convicted of
aggravated assault against the public servant who used deadly force). It is immaterial that Plaintiff
did not intend to undermine his criminal conviction. Accordingly, summary judgment should be
granted.3
III. RECOMMENDATION
The undersigned recommends that the District Court GRANT Defendant Cunningham’s
Motion for Partial Dismissal [#9], DISMISS WITH PREJUDICE Plaintiff’s claims brought
pursuant to the Eighth and Fourteenth Amendments to the Constitution and the Declaration of
Human Rights, GRANT Defendant Cunningham’s Motion for Summary Judgment [#19],
DISMISS WITHOUT PREJUDICE to refile Plaintiff’s claim brought pursuant to the Fourth

2

Construing Plaintiff’s claims liberally, as the Court must, the Court construes Plaintiff’s
excessive force claim as if it were brought pursuant to the Fourth Amendment.
3

Because Plaintiff’s claim is barred by Heck, his claim has not yet accrued. Accordingly,
any qualified immunity analysis is unnecessary. In addition, the limitations period has not started
to run.
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Amendment to the Constitution once the conditions of Heck are met, and DISMISS Plaintiff’s
Motion for Discovery [#25].4
IV. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within 14 days after the party is served with a copy of the Report shall bar
that party from de novo review by the district court of the proposed findings and recommendations
in the Report and, except upon grounds of plain error, shall bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985); Douglass v. United Servs.
Auto. Assoc., 79 F.3d 1415, 1428-29 (5th Cir. en banc, 1996).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is

4

Plaintiff’s Motion for Discovery is futile, because Plaintiff’s claims are Heck-barred.
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ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED on May 21, 2015.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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