King et al v. Munoz et al

Filing 34

ORDER ACCEPTING and ADOPTING 30 REPORT AND RECOMMENDATIONS for GRANTING IN PART and DENYING IN PART 23 Motion for Summary Judgment, filed by Brian Huckaby, Richard Munoz, Vanessa Jimenez, Gustave Gallenkamp. Signed by Judge Sam Sparks. (jf)

IN TIlE UNITEI) STATES 1)ISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JEREMY KING and LOURDES GLEN

FILED
28110C1 12

PM l:5

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§

V.

A-16-CA-131-SS

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§

RICHARD MUNOZ #3029,
BRIAN HUCKABY #5159,
GUSTAVE GALLENKAMP #7077,
VANESSA JIMENEZ #7611, and
UNKNOWN OFFICERS

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ORDER ON REPORT AND RECOMMENI)ATION
OF UNITED STATES MAGISTRATE JUI)GE
Before the Court in the above-styled and numbered cause is Plaintiffs' civil rights complaint.
See 42 U.S.C. § 1983.

Plaintiffs' complaint was referred to the United States Magistrate Judge for

findings and recommendations.

See

28 U.S.C.

§

636(b); Fed. R. Civ. P. 72; Loc. R. W. D. Tex.

Appx. C. The Magistrate Judge recommended that the Defendants' Motion for Summary Judgment
be granted in part and denied in part.

Plaintiffs and Defendants object to the Report and

Recommendation. In light of the objections to the Report and Recommendation, the Court has

undertaken a de novo review of the entire case file in this action and finds and concludes that the
Report and Recommendation of the United States Magistrate Judge is correct and should be accepted
and adopted by the Court for substantially the reasons stated therein.

Background
As summarized in the Report and Recommendation, Plaintiffs Jeremy King and Lourdes
Glen were part of a larder group of friends who were crossing an intersection at Red River and Sixth

I

Street at about 2:40 a.m. on November 6, 2015. Dkt.

//1

("Compi.") at 9-10. The group included

Jeremy King, Matthew Wallace, Lourdes Glen, Rolando Ramiro, and Lindsey Salazar. Plaintiffs

contend the group began to cross the intersection together as the pedestrian signal was counting
down and continued to cross the intersection together. Dkt. 1/23-1 ("King Depo.") at 43:19.
Defendants, all City of Austin police officers, contend as the group began to cross the intersection,
the officers instructed the group not to cross and most members of the group returned to the
sidewalk, but King and Wallace continued to cross the intersection against the signal. Dkt. 1/23-3

("Huckaby Depo.") at 15:7-18. King and Wallace, the only two African Americans in the group,
were in the intersection when the pedestrian signal was against them. King Depo. at 41:20-42:16.

After the group crossed the intersection, King and Wallace wcrc forcibly arrested by the officers.
King Depo. at 49:16-50; Huckaby Depo. at 28:11. Video, recorded by Ramiro on his cell phone,
begins to record the incident just as officers approached King and Wallace. Dkt. #23, Exh. 6. Glen

was subsequently arrested minutes later. Id. Her arrest was also recorded by Ramiro on his cell
phone. Id.

King was charged with Disregard of a Pedestrian Control Device, colloquially known as

jaywalking.

Dkt. #23 at 5. The charge was ultimately dismissed. Id. Glen was charged with

Pedestrian on a Roadway, to which she pleaded no contest. Dkt. 1/23 at 5, Exh. 10.
King and Glen bring several causes of action against the officers. King asserts a selective
enforcement claim against the officers, claiming he and Wallace were arrested because they are
African Americans while the Anglo members of their group were not initially arrested. Compi. at
20-25. King and Glen also assert excessive force claims regarding the use of force in their arrests.
Id. at 26-35.

Glen brings a First Amendment retaliation claim against the officers, claiming she
2

was arrested in retaliation for her criticisms of the officers' use of force on her companions. Id. at
38-40. Finally, King and Glen raise state law claims of assault.'

Defendants Munoz, Huckaby, Gallenkamp, and Jimenez move for summary judgment
arguing Plaintiffs claims lack merit and they are entitled to qualified immunity on the excessive
force claim.

The Magistrate Court recommends the Court deny Defendants' Motion for Summary
Judgment with respect to King's selective enforcement and excessive force claims, grant the motion

with respect to Glen's excessive force and retaliation claims, grant the motion with respect to the
state law claim, and dismiss Defendants Munoz and Jimenez.

Defendants object to the Magistrate Court's recommendation with regard to King's selective
enforcement claim but do not object to the Magistrate Court's recommendation with regard to King's

excessive force claim.
Glen objects to the Magistrate Court's recommendation with regard to Defendant Jimencz's
use of force against her. Glen also objects to the Magistrate Court's finding that her injuries were
de minimis,

her retaliation claim has no merit, and Defendant Jimenez is protected by qualified

immunity.

'As noted by the Magistrate Judge, Plaintiffs informed the Court they are no longer moving
forward on their state law assault claims.
3

Analysis
I.

Legal Standards

Summary Judgment

A.

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. FED. R. Civ. P. 56(a); Celotex Corp.
v.

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

v.

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.

Liberty 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.

Zenith Radio, 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 makes 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 summary judgment. 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

supports his claim. Adams

v.

Travelers Indem. Co. o[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.

Section 1983

Section 1983 provides a cause of action to individuals whose federal rights have been

violated by those acting under color of state law. Doe

v.

Dall. Jndep. Sch. Dist., 153 F.3d 211, 215

(5th Cir. 1998). Section 1983 is not itself a source of substantive rights; rather, it merely provides
a method for vindicating federal rights conferred elsewhere. See Aibright v. Oliver, 510 U.S. 266,
271 (1994). In order to state a claim under Section 1983, a plaintiff must (1) allege a violation

of

rights guaranteed by the United States Constitution or federal law, and (2) demonstrate the alleged
deprivation was committed by a person acting under color of state law. Doe, 153 F.3d at 215.

II.

Application
A.

King's Selective Enforcement Claim

The Magistrate Judge recommends denying summary judgment with respect to King's
selective enforcement claim and finding a factual dispute as to whether King was similarly situated
5

to the rest

of the group precludes summary judgment. Defendants argue the Magistrate Judge erred

in finding there is a factual dispute and deny King submitted sufficient evidence of discriminatory

intent.
As explained by the Magistrate Judge, "to successfully bring a selective prosecution or

enforcement claim, a plaintiff must prove the government official's acts were motivated by improper
considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right."
Beeler v. Rounsavall, 328 F.3d 813, 817 (5th Cir. 2003) (quoting Bryan

v.

City

ofMadison, Miss.,

213 F.3d 267, 277 (5th Cir. 2000)). "[I]t must be shown that the selective enforcement 'was

deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary

classification." Id. (quoiingAllred's Produce v.

U.S. Dept. Agriculture, 178

F.3d 743, 748 (5th Cir.

1999)).

To succeed with a selective enforcement or prosecution claim, a party must demonstrate the

enforcement had a discriminatory effect and was motivated by an invidious purpose. United Stales
v.

Lawrence, 179 F.3d 343, 349 (5th Cir. 1999); Un ited States v. hall, 455 F.3d 508, 523 (5th Cir.

2006). These requirements draw on "ordinary equal protection standards." United States

v.

Armstrong, 517 U.S. 456, 465 (1996). 1-lowever, direct evidence of discriminatory intent is not
required. Rodriguez

v,

Harris County, Tex., 964 F. Supp. 2d 686, 800 (S.D. Tex. 2013) (citing

Rogers v. Lodge, 458 U.S. 613, 618 (1982)); accord Moore v. Keller Indus., Inc., 948 F.2d 199,202
(5th Cir. 1991). "Necessarily, an invidious discriminatory purpose may often be inferred from the
totality of the relevant facts." Washington

v.

Davis, 426 U.S. 229, 242 (1976).

King and Glen contend their group began to cross the intersection together as the pedestrian
signal was counting down and continued to cross the intersection together. The defendant officers

contend, as the group began to cross the intersection, the officers instructed the group not to cross.

According to the officers, King and Wallace continued walking, but the others returned to the
sidewalk. Whether all five crossed together or whether only King and Wallace continued to cross
is disputed.

Defendants argue King was not similarly situated to Glen, Salazar, and Ramiro, because King
ignored Officer Huckaby' s instructions to "come here" and profanely instructed the others in the
group to keep

walking.2

Defendants argue they do not have the burden to prove why other officers

arrested Wallace. They further argue they are presumed to have properly discharged their official
duties.
The Court agrees with the Magistrate Judge and finds, if all five crossed together and only
the two African Americans were arrested for jaywalking, there is a factual dispute as to whether or

not King was arrested due to his race. Accordingly, summary judgment is denied with respect to
Defendant King's selective enforcement claim.
B.

Glen's Retaliation Claim

The Magistrate Judge recommends granting summary judgment with respect to Glen's First

Amendment retaliation claim. Glen objects, arguing she presented evidence showing she was
arrested for the content of her speech and would not have been arrested if she had been silent.

of the officer say "come
"F that, we straight," and
here." King Depo. at 32:15. King admits in response he told Wallace,
continued to walk forward. Id. at 32:17-21. Wallace agrees King told him "fuck that, we're
straight." Wallace Depo. at 30:5-16. Ramiro on the other hand reflects King responded, "Man, fuck
these niggas." Ramiro Depo. at 19:18. As noted by the Magistrate Judge, while King's exact
response is disputed, the meaning ofthe purported response is basically the same don't worry about
those officers, we're npt doing anything wrong, keep walking.
2As King and Wallace were crossing the street, King heard one

7

Individuals who protest are []protected under the First Amendment from retaliatory actions
by government officials. Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016). But if an officer has
probable cause to seize that individual, "the objectives of law enforcement take primacy over the
citizen's right to avoid retaliation." Id. at 245 (quoting Keenan v. Tejeda, 290 F.3d 252, 261-62 (5th
Cir. 2002)). Probable cause "means facts and circumstances within the officer's knowledge that are
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about to commit an
offense." Hogan, 722 F.3d at 731 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627,
61 L. Ed.2d 343 (1979)).
Officers are therefore entitled to qualified immunity unless there was no
actual probable cause for the arrest and the officers were objectively unreasonable in
believing there was probable cause for the arrest. See Crost icy v. Lamar Cly., 717
F.3d 410, 422-23 (5th Cir. 2013); see also Cooper v. Cily ofLa Porte Police Dep
608 Fed. Appx. 195, 199 (5th Cir. 2015) ("[Olfficers are entitled to qualified
immunity unless there was not probable cause for the arrest and a reasonable officer
in their position could not have concluded that there was probable cause for the
arrest." (citing Crostley, 717 F.3d at 422-23)).
'1,

Davidson

v.

City of Stafford, Tex., 848 F.3d 384 (5th Cir. 2017).

As noted by the Magistrate Judge, Glen was charged with Pedestrian on a Roadway, and the
video ofher arrest clearly demonstrates she was in the roadway at the time of arrest. Moreover, Glen

pleaded no contest to the charge. Therefore, whether officers were subjectively motivated by her
speech is irrelevant.

Glen also contends the Magistrate Judge erred by relying exclusively on the First
Amendment, because the Fourteenth Amendment is also relevant. The Magistrate Judge held a
hearing on Defendants' Motion for Summary Judgment. At the hearing, Glen conceded she did not

plead a claim for selective enforcement pursuant to the Fourteenth Amendment and orally moved
for leave to amend her pleading to add the claim. The Magistrate Judge noted such amendment

would require amending the undersigned's scheduling order and instructed Glen to take it up in her

objections to the District Court. The deadline to file amended pleadings was January 9,2017. Glen

has not filed a motion to amend her complaint, and she clearly did not plead a selective enforcement
claim. Accordingly, the Magistrate Court did not err in analyzing Glen's claim solely under the First

Amendment.

Moreover, whether Glen raises a claim under the First Amendment or Fourteenth
Amendment, her claim does not survive summary judgment. Upon review of the video of Glen's
arrest, it is clear she is not similarly situated to Ramiro. The video reflects Glen continued to ignore
Officer Jimenez's warnings to get back and stay out of the roadway. Ramiro, on the other hand,

appeared to comply with officers instructions and did not interfere with any of the officers' duties.
C.

King's and Glen's Excessive Force Claims

Both King and Glen allege claims ofexcessive force. Defendants Huckaby, Gallenkamp, and
Jimenez move for summary judgment on the basis of qualified immunity.3

Qualified immunity protects public officials "from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known." Harlow

v.

Fitzgerald,

457 U.s. 800, 818 (1982).

The qualified

immunity analysis involves two considerations: "(1) whether facts alleged or shown by plaintiff
make out the violation of a constitutional right, and

(2)

if so, whether that right was clearly

established at the time of the defendant's alleged misconduct." Pasco

v.

Knoblauch, 566 F.3d 572,

579 (5th Cir. 2009). "The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in the

3Defendant Munoz was not present at the time of arrest, and Plaintiff concedes he should be
dismissed from the case.

situation he confronted." Lytle

v.

Bexar Cty., 560 F.3d 404, 410 (5th Cir. 2009) (quoting Saucier

v.

Katz, 533 U.S. 194, 202 (2001) overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009)).

"Qualified immunity balances two important interests--the need to hold public officials
accountable when they exercise power irresponsiblyand the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 233.

Qualified immunity "gives government officials breathing room to make reasonable but mistaken

judgments, and protects all but the plainly incompetent or those who knowingly violate the law."
Messerschmidt

v.

Millender, 132 S. Ct. 1235, 1244 (2012) (internal quotation marks omitted).

Though the Court views all facts in the most favorable to King and Glen on Defendants'

motion for summary judgment, the burden remains on King and Glen "to negate the [qualified
immunity] defense once properly raised." Brumjieldv. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
The Fourth Amendment confers a right to be free from excessive force during an arrest.
Deville

v.

Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (per curiam). To establish a claim of

excessive force under the Fourth Amendment, a plaintiff must show "(1) an injury (2) which resulted
directly and only from the use of force that was clearly excessive to the need and (3) the force used
was objectively unreasonable." Cass

v.

City of Abilerie, 814 F.3d 721, 731 (5th Cir. 2016).

"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, 567 F.3d
at 167 (quoting Graham

v.

Connor, 490 U.S. 386, 396 (1989)). In determining whether the force

used is "excessive" or "unreasonable," the Supreme Court in Graham identified three sets of facts

which deserve careful consideration: (1) the severity of the crime at issue, (2) whether the suspect

10

poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is
actively resisting arrest or attempting to evade arrest by flight. 490 U.S. at 396.
1.

King's Excessive Force Claim

Defendants did not object to the Magistrate Judge's recommendation with respect to King's
excessive force claim. As explained by the Magistrate Court, disputed issues of material fact
preclude summary judgment on King's excessive force claim, because it is unclear whether any force
was necessary under the Graham factors.
2.

Glen's Excessive Force Claim

The Magistrate Judge recommends granting summary judgment with respect to Glen's

excessive force claim. After considering the Graham factors, the Magistrate Court concluded the
force used to arrest Glen was not excessive, her alleged psychological injury was de minimis, and
the arresting officers were entitled to qualified immunity. Glen objects, arguing a fact issue

precludes a finding of qualified immunity for Defendant Jimenez and Glen's injuries were not de
minim is.

As aptly explained by the Magistrate Judge, the minimal use of force to secure Glen's hands
behind her back was not excessive or unreasonable. Where, as here, there is a video recording of
the events in question, "the Court should analyze the video evidence and reject the plaintiffs account
only where the video evidence so clearly discredits the plaintiff's story that no reasonable jury could

believe the plaintiff's version of the events." Chacon v. City ofAustin, No. A-12-CA-226-SS, 2013
WL 2245139, at *14 (citing Scott

v.

Harris, 550 U.S. 372, 378 (2007)). The video recording of

Glen's arrest clearly shows Glen was repeatedly instructed to stand back, she continually invaded
the scene where the officers were attempting to carry out the arrests of King and Wallace, the force
11

in light of
used to effect her arrest was minimal, and the officers actions were not unreasonable
clearly established law

at

the time of Glen's arrest.

Conclusion
After consideration of the objections filed in this case, the Report and Recommendation of
the Magistrate Judge is accepted and adopted. Summary judgment is granted with respect to Plaintiff

Glen's excessive force and First Amendment retaliation claims and Plaintiff King's and Plaintiff's
Glen's state law claims for assault. Defendant Munoz is dismissed, as the plaintiffs concede, he was
not present at the time of the arrests. Finally, Defendant Jimenez is entitled to qualified immunity

protection.

IT IS ORDERE1) that the Plaintiffs' and Defendants' Objections are OVERRULEI).
IT IS FURThER ORDEREJ) that the Report and Recommendation of the United States
Magistrate Judge filed in this action is hereby ACCEPTEI) ANI) A1)OI'TEI).

IT IS FURThER ORI)ERED that Defendants' Motion for Summary Judgment

is

GRANTE1) IN PART AN1) 1)ENIEI) IN PART as fully explained in this order.

IT IS FINALLY ORI)ERED that Defendants Munoz and Jimenez are dismissed with
prejudice.

SIGNED this

/2''

day of October 2017.

SAM SPARKS
LI
UNITED STATES DISTRTCT JUDGE

12