Martinez et al v. City of Buda et al
ORDER GRANTING 43 Motion for Summary Judgment; GRANTING 47 Motion for Summary Judgment. Signed by Judge Sam Sparks. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
JUAN MARTINEZ and GUADALUPE
THE CITY OF BUDA, TEXAS;
OFFICER DEMERRIAL YOUNG; and
WAL-MART STORES TEXAS, LLC,
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Defendants the City of Buda (the City) and Officer Demerriel Young (Officer
Young) (collectively the Buda Defendants)' Motion for Summary Judgment [#43], Plaintiffs
Juan and Guadalupe Martinez's Response [#5 1] in opposition, and the Buda Defendants' Reply
[#53] in support as well as Defendant Wal-Mart Stores Texas, LLC (Wal-Mart)'s Motion for
Summary Judgment [#47], Plaintiffs' Response [#50] in opposition, and Wal-Mart's Reply [#52]
in support. Having reviewed the documents, the governing law, and the file as a whole, the Court
now enters the following opinion and orders.
On October 2, 2014, Plaintiffs, a married couple, went shopping at a Wal-Mart store
located in Buda, Texas. Without her husband, Mrs. Martinez used a motorized scooter to move
throughout the store. Floor Video 1; Floor Video 2. Mrs. Martinez placed a variety of items in
the basket on her scooter. Id. One such item was a bunch of bananas. Floor Video 2 at 2:48-58.
As Mrs. Martinez continued shopping, she peeled a banana and ate it. Id. at 4:50-5:20.
Mrs. Martinez also visited a vacant checkout aisle and grabbed an armful of plastic Wal-Mart
shopping bags. Id. at 16:27-17:05.
Subsequently, after driving around the store for another period of time, Mrs. Martinez
drove out an exit door without stopping to pay for the merchandise filling the basket of her
Eit Video at 0:16-22. Two Wal-Mart employees stopped Mrs. Martinez and asked her
to accompany them to the Asset Protection office (AP Office). Id. Mrs. Martinez followed the
two employees to the AP Office on the scooter. Id.
Once in the AP Office, the Wal-Mart employees spoke with Mrs. Martinez and
inventoried the merchandise in her scooter basket. Office Video at 0:00-6:30. Mrs. Martinez had
exited the store with over twenty-five items in her basket.
Resp. Wal-Mart's Mot. [#50-1]
Ex. A.8 (Basket Inventory). Mrs. Martinez informed the employees she had purchased some of
the items in her basket at the in-store pharmacy and produced receipts for two items totaling
$20.67 in value. Id. [#50-4] Ex. D (Receipts). However, Mrs. Martinez had exited the store
The facts recounted here are drawn from the summary judgment record, including the parties' depositions
and declarations as well as video recordings of Wal-Mart's surveillance footage and Officer Young's body camera
footage. Buda Defs.' Mot. [#43] Ex. 2 (Police Records). The video clips offered as part of the Police Records
include footage from Wal-Mart's Asset Protection Office (Office Video), Wal-Mart's exit (Exit Video), the WalMart shopping floor (Floor Video 1, Floor Video 2), and Officer Young's body camera (Body Camera Video 1,
Body Camera Video 2). On summary judgment, the Court must view the evidence in the light most favorable to the
nonmoving party, but in instances where the facts are evident from video recordings taken at the scene, the Court
assigns these facts more weight. Carnaby v. City ofHous., 636 F.3d 183, 187 (5th Cir. 2011).
without paying the majority of the items in her basket, items totaling over $160.00 in value.
While Mrs. Martinez and the Wal-Mart employees were talking, Mr. Martinez arrived at
the AP Office. Mrs. Martinez got off of her scooter and let Mr. Martinez into the AP Office.
Office Video at 8:24-33. Although he wore a back brace, Mr. Martinez walked into the office
without using a cane or scooter. Id. at 8:33-50. After Mr. Martinez entered, three Wal-Mart
employees stood with Plaintiffs in the entrance way of the AP Office. Id. at 8:45. The Wal-Mart
employees stood calmly listening to Mr. Martinez as he gestured emphatically at them. Id. at
8:45-9:36. Eventually, one of the Walk-Mart employees left the AP Office. Id. at 9:38. Plaintiffs
and the other two Wal-Mart employees remained. Id.
The Wal-Mart employee who left the AP Office is later seen in the body camera footage
of Officer Young, who was exiting a police patrol car parked outside of the Wal-Mart. Body
at 0:00-50. The employee informed Officer Young Wal-Mart was seeking to
press charges against Mrs. Martinez because she had exited the store with over $25 in unpaid-for
merchandise. Id. The employee also commented Mr. Martinez was raising "nine kinds of hell."
BudaDefs.' Mot. [#43-5] Ex.
(Guyer Dccl.) at 157:16-158:25.
After this conversation, Officer Young entered the store and proceeded to the AP Office.
Body Camera Video 11:01-09. As he walked inside, Officer Young passed Mr. Martinez, who
was standing outside the AP Office. Id. Once Officer Young entered the AP office, he walked to
the back of the office and turned to face Mrs. Martinez, who was seated on the scooter. Id. at
1:09-20; Office Video at 20:45. Officer Young greeted the Wal-Mart employees and Mrs.
Martinez, and then Mr. Martinez entered the AP Office. Body Camera Video
at 1:19; Office
Video at 20:47. Mr. Martinez had not been invited into the AP Office and stood blocking the
office's doorway. Id. Officer Young twice asked Mr. Martinez to "step outside." Body Camera
at 1:20. Mr. Martinez responded, "No sir, I am not going to do that." Id. at 1:22-26.
Officer Young then ordered Mr. Martinez to step outside and Mr. Martinez shouted back
"I have done nothing wrong." Id. at 1:28-30. Officer Young replied, "I am asking you to step
outside." Id. Mr. Martinez continued to refuse to leave the AP Office. Id. at 1:30-33; Office
Video at 20:52-21:00. Officer Young interrupted, "I'm asking you to step outside. I just got
here. And either you are going to step outside or I am going to place you outside and I am going
to place you under arrest for interfering." Id. at 1:33-40. Mr. Martinez then said "go ahead." Id.
at 1:40. Officer Young subsequently told Mr. Martinez to "turn around." Officer Young placed
his hand on Mr. Martinez's stomach and tried to guide Mr. Martinez out the office door, but Mr.
Martinez resisted. Office Video at 21:09-11; Body Camera Video
at 1:41-1:47. Mr. Martinez
pushed Officer Young's hands away and pushed back against Officer Young in an effort to stay
in the AP Office. Id. Despite Mr. Martinez's response, Officer Young continued to guide Mr.
Martinez from the office by holding on to Mr. Martinez's arm. Office Video at 21:11. Officer
Young walked forward toward the AP Office door and Mr. Martinez, propelled by Officer
Young, walked sideways. Id. As the two men exited the office door, Mr. Martinez's feet slid out
from under him and he fell to the ground. Office Video at 2 1:11-13.
On October 3, 2016, Plaintiffs filed suit in this Court against Officer Young, the City, and
Wal-Mart. Compl. [#1]. Asserting claims under 42 U.S.C.
1983, Plaintiffs allege Officer
Young used excessive force against Mr. Martinez in violation of the Fourth and Fourteenth
Amendments and failed to accommodate Mr. Martinez's disability in violation of the Americans
with Disabilities Act (ADA). Am. Compl. [#10] ¶J 6.4-6.5. Plaintiffs also allege the City's
inadequate policies and customs caused Officer Young's unlawful actions. Id. ¶J 6.1-6.3.
Finally, Plaintiffs claim Wal-Mart is liable for false imprisonment, the negligence of its
employees, and negligent hiring, training, and supervision. Id. ¶6.6.
As the Buda Defendants, Officer Young and the City jointly moved for summary
judgment on all claims asserted against them. Simultaneously, Wal-Mart moved for summary
judgment on all claims against it. The parties have fully briefed the motions, which are now ripe
for the Court's consideration.
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.
Civ. P. 56(a);
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
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
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 summary judgment. Turner
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
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.
Section 1983 provides a cause of action to individuals whose federal rights have been
violated by those acting under color of state law. Doe
Dali. Indep. 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 A/bright
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.
Claims Against Officer Young
Plaintiffs claim Officer Young used excessive force and violated the ADA. Officer
Young argues he is entitled to summary judgment because the force used was not excessive
under the circumstances, and, alternatively, he is entitled to qualified immunity. Officer Young
also claims he cannot be held liable in his individual capacity for violating the ADA.
The Fourth Amendment confers a right to be free from excessive force during an arrest,
investigatory stop, or other "seizure" of person. Graham
Connor, 490 U.S. 386, 388 (1989).
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 Abi/ene, 814 F.3d
721, 731 (5th Cir. 2016).
In alleging Officer Young used excessive force, Plaintiffs claim Officer Young "tackled
the elderly and disabled Mr. Martinez, failing to control the descent of Mr. Martinez and
slammed him hard onto the floor." Am. Compi. [#10] ¶ 4.9; Resp. Buda Defs.' Mot. [#51] at 2
(citing Mrs. Martinez's deposition). Plaintiffs also claim Officer Young's foot hit Mr. Martinez's
legs. Resp. Buda Defs.' Mot. [#5 1] at 2.
Where, as here, there is a video recording of the events in question, "the Court should
analyze the video evidence and reject the plaintiff's 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, Tex., No. A-12-CV-226-SS, 2013 WL 2245139, at *14
(W.D. Tex. May 21, 2013), aff'd sub nom. Chacon
2014) (citing Scott
Copeland, 577 F. App'x 355 (5th Cir.
Harris, 550 U.S. 372, 378 (2007)). The video evidence here clearly
discredits Plaintiffs' version of the events.
The video clips demonstrate Mr. Martinez entered the AP office uninvited, blocked the
doorway so no one could exit, raised his voice to Officer Young, and refused to exit the office
when Officer Young ordered him to do so. Officer Young warned Mr. Martinez that if he did not
step out of the office, then Officer Young would place Mr. Martinez outside and he would be
arrested. Mr. Martinez responded "go ahead." Following Mr. Martinez's statement, Officer
Young attempted to escort Mr. Martinez from the office. Officer Young placed his hand on Mr.
Martinez's stomach and tried to guide Mr. Martinez out the office door. The video footages
shows Mr. Martinez resisted, pushing Officer Young's hands away and pushing back against
Officer Young in an effort to stay in the office. Despite Mr. Martinez's response, Officer Young
continued to guide Mr. Martinez from the office by holding on to Mr. Martinez's arm. As the
two men exited the office door, Mr. Martinez's feet slid out from under him. Officer Young's
legs did not touch Mr. Martinez's legs until Mr. Martinez was on the ground. The videos also
show Officer Young endeavored to break Mr. Martinez's fall by holding onto Mr. Martinez's
arm and lowering him to the ground.
Based on the video evidence, the Court rejects Plaintiffs' claims Officer Young tackled
Mr. Martinez or pushed him to the ground.
The Court now turns to the elements of an excessive force claim. Mr. Martinez claims he
broke several rips and sustained various other injuries, and Defendants do not dispute the
existence of a constitutionally cognizable injury. The relevant inquiries, therefore, are whether
Mr. Martinez's injury resulted from the use of clearly excessive and objectively unreasonable
force. Under Fifth Circuit precedent, these inquiries are "often intertwined." Poole
Shreveport, 691 F.3d 624, 628 (5th Cir. 2012).
The Supreme Court has long recognized the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion of threat thereof to
effect it. Graham, 490 U.S. at 396. Determining whether force is excessive or unreasonable
"requires careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade
arrest by flight." Id. Additional considerations that "may bear on the reasonableness or
unreasonableness of the force used [include]: the relationship between the need for the use of
force and the amount of force used; the extent of the plaintiff's injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the security problem at issue; the
threat reasonably perceived by the officer; and whether the plaintiff was actively resisting."
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015).
Moreover, the "reasonableness" of a particular use of force is judged from the perspective
of the officer at the scene, rather than the 20/20 vision of hindsight. Graham, 490 U.S. at 396.
"Not every push or shove even if it may later seem unnecessary in the peace of a judge's
chamber violated the Fourth Amendment." Id. (citation and internal quotation marks omitted). It
is well-established that an officer may consider a suspect's refusal to comply with instructions in
assessing whether physical force is needed to effectuate the suspect's compliance. Deville
Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam).
Here, the totality of the circumstances do not support finding Officer Young's use of
force was clearly excessive. In terms of the crime at issue, Officer Young was investigating
allegations of shoplifting, a relatively trivial misdemeanor. But Mr. Martinez's uncooperative
and confrontational demeanor gave rise to a reasonable belief Mr. Martinez posed a slight threat
to Officer Young and the Wal-Mart employees present. Furthermore, it was reasonable for
Officer Young to believe Mr. Martinez needed to be removed from the office to deescalate the
situation. When Officer Young used slight force to effectuate his order for Mr. Martinez to exit
the office, Mr. Martinez actively resisted, pushing Officer Young's hands away and pushing
The video recordings show Officer Young used very minimal force to counter Mr.
Martinez's refusal to comply with a police order. Given the circumstances confronting him,
Officer Young's use of force was objectively reasonable and not excessive as a matter of law.
Therefore, the Court grants the Buda Defendants' motion for summary judgment on Plaintiffs'
excessive force claim against Officer Young.
Even if Officer Young's use of force was excessive, he is protected by qualified
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
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
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 situation he confronted." Lytle
Bexar Cty., 560 F.3d 404, 410 (5th Cir. 2009)
Katz, 533 U.S. 194, 202 (2001) overruled in part by Pearson
555 U.S. 223 (2009)).
If public officials of reasonable competence could differ on the lawfulness
of defendant's actions, the defendant is entitled to qualified immunity. See Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) ("Put simply, qualified immunity protects 'all but the plainly incompetent
or those who knowingly violate the law." (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Though the Court views all facts in the most favorable light to Plaintiffs, the burden
remains on Plaintiffs "to negate the [qualified immunity] defense once properly raised."
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Assuming Officer Young's conduct
violated Mr. Martinez's right to be free from excessive force, the Court finds Plaintiffs have
failed to demonstrate Officer Young acted objectively unreasonably in light of clearly
established law at the time of the incident. See Surratt
McClarin, 851 F.3d 389, 392 (5th Cir.),
cert. denied sub nom. Surratt v. McClaran, 138 S. Ct. 147 (2017) (noting a defendant's actions
violate clearly established law only when there is an identified "case where an officer acting
under similar circumstances
was held to have violated the Fourth Amendment." (citation
A reasonable officer could view Officer Young's conduct as lawful. As discussed above,
the Supreme Court has announced that not every unnecessary push or shove is a violation of the
Fourth Amendment and officer may consider a suspect's refusal to comply with instructions in
determining if physical force is needed. See Graham, 490 U.S. at 396. The video evidence shows
Officer Young used slight force to escort Mr. Martinez, who refused to obey Officer Young's
order to leave, out of a room. Furthermore, the evidence shows Mr. Martinez actively resisted
Officer Young's efforts to escort him out. A reasonable officer would not believe Officer
Young's minimal use of force was unlawful given Mr. Martinez's refusal to comply with
Because Officer Young's actions were not objectively unreasonable in light of clearly
established law, Officer Young is entitled to qualified immunity on Plaintiffs' excessive force
Failure to Comply with ADA
Plaintiff also claims Officer Young violated Mr. Martinez's rights under the ADA by
failing to provide reasonable accommodations for Mr. Martinez's disability.
The Court finds Plaintiffs' claims against Officer Young under
1983 for violating the
ADA are not permitted. The Fifth Circuit has stated in multiple unpublished opinions that
individual defendants cannot be sued for violating the ADA. See Nottingham
App'x 368, 376 n. 6 (5th Cir. 2012) (noting a plaintiff may not sue defendants in their
individual capacities under the ADA); Rivera
Dawson, No. 05-41565, 2007 WL 1223914 (5th
Cir. Apr. 25, 2007) (finding a plaintiff "may not bring a 42 U.S.C.
1983 action for damages
against a state official in his individual capacity to vindicate rights conferred by Title II of the
ADA."). "A number district courts have similarly found the plain language of the ADA applies
only to public entities and does not contemplate holding government employees liable in their
individual capacities." Aibright
Sheriffs Dep 't Rapides Par., No. CIV.A. 12-2 117, 2014 WL
4702579, at *8 (W.D. La. Sept. 22, 2014) (alteration in original) (quotation marks omitted)
(collecting cases dismissing disability discrimination claims asserted against defendants in their
individual capacities under 42 U.S.C.
Therefore, the Court grants the Buda Defendants' motion for summary judgment
1983 claim against Officer Young for violating the ADA.
Claims Against the City
Plaintiffs contend the City is liable under
1983 for failing to adequately supervise and
train Officer Young regarding the reasonable use of force and compliance with the ADA. The
City has moved for summary judgment on Plaintiffs' claims against it, arguing Plaintiffs offer no
evidence Officer Young received inadequate training or supervision.
Department of Social Services, the Supreme Court held that a municipality
cam-iot be held liable under § 1983 on a theory of respondeat superior. 436 U.S. 658, 691 (1978).
Municipalities and other local governments may incur
policy or custom causes a constitutional violation. Bennet
liability, however, where official
of Slidell, 728 F.2d 762, 766
(5th Cir. 1984). For municipal liability to attach, the plaintiff must prove three elements: (1) a
policymaker; (2) an official policy; and (3) a "violation of constitutional rights whose 'moving
force' is the policy or custom." Piotrowski
of Hous., 237 F.3d
567, 578 (5th Cir. 2001)
(quoting Monell, 436 U.S. at 694). Official policy may be found in "written policy statements,
ordinances, or regulations, but it may also arise in the form of a widespread practice that is so
common and well-settled as to constitute a custom that fairly represents municipal policy."
Tex., 588 F.3d 838, 847 (5th Cir. 2009). A municipality's failure
to train or supervise its employees may also constitute a "policy" when it "reflects a 'deliberate'
or 'conscious' choice by a municipality." City of Canton
Harris, 489 U.S. 378, 389 (1989).
That is, a municipality's failure to train may constitute an actionable "policy" if, "in light of the
duties assigned to specific officers or employees the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent to the
need." Id. at 390.
Plaintiffs assert Officer Young's conduct at the Wal-Mart evinces the City's failure to
adequately train and supervise its officers. To establish a
1983 claim for failure to train and
supervise, a plaintiff must show: "(1) the supervisor either failed to supervise or train a
subordinate official; (2) a causal link exists between the failure to train or supervise and the
violation of the plaintiffs rights; and (3) the failure to train or supervise amounts to deliberate
indifference." Estate ofDavis v. City of N. Richiand Hills, 406 F.3d 375, 381 (5th Cir. 2005).
Plaintiffs point to no evidence showing the City's training program or supervision was
inadequate, and in fact, Defendants produced evidence to the contrary. Specifically, the Buda
Defendants offer evidence Officer Young underwent well over 1,000 hours of training before
interacting with Mr. Martinez and Officer Young was certified as a peace officer by the Texas
Commission on Law Enforcement. Police Records at 46SO. Where training complies with state
law requirements, the Fifth Circuit holds a plaintiff must show "this legal minimum of training
was inadequate to enable the [officers] to deal with 'usual and recurring situations' faced by
jailers and peace officers." Benavides
of Wilson, 955 F.2d 968, 973 (5th Cir. 1992); see
of Plano, 594 F.3d 366, 382 (5th Cir. 2010) (affirming grant of
summary judgment where the officers completed state-mandated training program and the
plaintiff did not allege the state requirements were inadequate). Plaintiffs offer no evidence to
show Officer Young's state-certified training was inadequate.
Rather, Plaintiffs only rely on Officer Young's actions in this case and the differing
opinions of supervisors within the Buda Police Department on whether Officer Young used force
and whether his use of force was reportable. Resp. Buda Defs.' Mot. [#51] at 8-9. But, as this
Court held in Chacon, the actions of particular officers "on this sole occasion do not prove [the
defendant-municipality's] significant training efforts are inadequate." Chacon, 2013 WL
2245139, at *6. And the opinions of Buda Police Department supervisors merely demonstrate
reasonable officers possessed different thoughts on how to measure an officer's use of force and
when a "use of force" form should be completed. Such evidence does not show with specificity
how particular training or supervision is defective. See Roberts
of Shreveport, 397 F.3d
287, 293 (5th Cir. 2005) ("For liability to attach based on an 'inadequate training' claim, a
plaintiff must allege with specificity how a particular training program is defective.")
Moreover, Plaintiffs offer no evidence establishing the City's training or supervision was
the "moving force" behind Plaintiffs' claimed constitutional injuries. Like the Court found in
Chacon, summary judgment is warranted here because there is no evidence Officer Young
engaged in his actions because City training or supervision left him ill-equipped to handle the
situation. See id. at *7 The City is therefore entitled to summary judgment.
Claims Against Wal-Mart
Plaintiffs claim Wal-Mart falsely imprisoned Mrs. Martinez, Wal-Mart employees acted
negligently toward Mr. Martinez, and Wal-Mart negligently hired, trained, and supervised its
employees. Wal-Mart moves for summary judgment on all of Plaintiffs' claims against it.
To establish a claim for false imprisonment under Texas law, a plaintiff must show the
defendant (1) willfully detained the plaintiff, (2) without her consent, and (3) without the
authority of the law. Hodgson
United States, No. SA:13-CV-702, 2014 WL 4161777, at *12
(W.D. Tex. Aug. 19, 2014) (citing Sears, Roebuck & Co.
Castillo, 693 S.W.2d 374, 375 (Tex.
1985)). If an alleged detention was performed with the authority of law, then no false
imprisonment occurred. Wal-Mart Stores, Inc.
Resendez, 962 S.W.2d 539, 540 (Tex. 1998).
Wal-Mart alleges it had authority of law to detain Mrs. Martinez under the shopkeeper's
privilege. The shopkeeper's privilege "expressly grants an employee the authority of law to
detain a customer to investigate the ownership of property in a reasonable manner and for a
reasonable period of time if the employee has a reasonable belief that the customer has stolen or
is attempting to steal store merchandise." Resendez, 962 S.W.2d at 540 (citing TEX.
& REM. CODE §
Plaintiffs do not dispute that Mrs. Martinez was detained in a reasonable manner and for
a reasonable manner of time. See Resp. Wal-Mart's Mot. [#50] at 9-10. Plaintiffs only argue
there is a fact issue concerning whether the Wal-Mart employees had a reasonable belief Mrs.
Martinez had stolen or was attempting to steal store merchandise. Id. Specifically, Plaintiffs
contend there was a reasonable explanation for Mrs. Martinez's behavior and the Wal-Mart
employees' failure to ask for a receipt was unreasonable. Id.
However, whether a reasonable explanation for Mr. Martinez's behavior existed or was
possible is not the standard. The standard for the shopkeeper's privilege focuses on whether the
employee's belief of theft or potential theft was reasonable. Resendez, 962 S.W.2d at 540.
Plaintiffs provide no
do not even attempt to
arguethat the belief Mrs. Martinez
had stolen or was attempting to steal Wal-Mart merchandise was unreasonable. See Resp. Wa!-
Mart's Mot. [#50] at 9-10.
Based on the undisputed facts, it was reasonable for the Wal-Mart employees to believe
Ms. Martinez had stolen and was attempting to steal Wal-Mart merchandise. First, it is
undisputed Mrs. Martinez placed over twenty items, merchandise totaling over $160.00 in value,
in her scooter basket. It also undisputed that one of those items was a bunch of bananas. Video
evidence confirms Mrs. Martinez ate a banana while shopping in Wal-Mart. Video evidence also
confirms Mrs. Martinez attempted to leave the Wal-Mart building without paying for the
majority of items in her basket.
Based on this information alone, it was reasonable for the Wal-Mart employees to believe
Mrs. Martinez had stolen and was attempting to steal Wal-Mart merchandize. See Resendez, 962
S.W.2d at 540 (holding it was reasonable for a store employee to believe a customer had stolen
from the store where the customer picked up peanuts while in the store, was seen eating from a
bag of peanuts in the store, and attempted to exit the store without paying for the peanuts). And,
while Mrs. Martinez did possess two receipts, it is undisputed the receipts accounted for only
two items totaling $20.67 in value.
Because the Wal-Mart employees had a reasonable belief Mrs. Martinez had stolen or
was attempting to steal Wal-Mart merchandise and it is not disputed Mrs. Martinez was detained
in a reasonable manner and for a reasonable time, Walmart is entitled to the shopkeeper's
privilege. Therefore, Mrs. Martinez's detention was performed with the authority of law and no
false imprisonment occurred. Wal-Mart is thus entitled to summary judgment on Plaintiffs' false
Negligence Toward Mr. Martinez
Plaintiffs allege the Wal-Mart employees "failed to exercise reasonable care to avoid a
foreseeable risk of harm to [Mr. Martinez] and failed to take affirmative action to control or
avoid increasing the danger from a condition.
at least partially created by the conduct of Wal-
Mart's employees." Am. Compl. [#10] ¶ 6.6. To prevail on a negligence claim under Texas law,
a plaintiff must show "(1) a legal duty owed to the plaintiff by the defendant; (2) a breach of that
duty; (3) an actual injury to the plaintiff; and (4)
. . .
the breach was the proximate cause of the
Merlino, 969 F. Supp. 2d 704, 715-16 (N.D. Tex. 2013) (quoting Gutierrez v.
Excel Corp., 106 F.3d 683, 687 (5th Cir.1997)).
Here, Plaintiffs assert the Wal-Mart employees had a duty to avoid foreseeable risk of
injury to others. Resp. Wal-Mart's Mot. [#50] at 3-4. Plaintiffs contend the employees breached
that duty when its employees (1) failed to follow Wal-Mart's own policies, (2) unreasonably
accused Mrs. Martinez of shoplifting, and (3) provided Officer Young with limited information.
Id. at 3-7. Thus, Plaintiffs claims Wal-Mart should be held liable for its employees' negligence.
First, in arguing the Wal-Mart employees were negligent because they did not follow
company policies, Plaintiffs argue the duty of care for Wal-Mart employees is based on Wa!-
Mart's own policies. But the failure to comply with company policies does not create a separate
basis for liability. Owens
Comerica Bank, 229 S.W.3d 544, 547 (Tex.
pet.) ("The Texas Supreme Court has refused to create a standard of care or duty based upon
internal policies, and the failure to follow such policies does not give rise to a cause of action in
favor of customers or others." (citing FFE Transp. Servs., Inc.
Fuigham, 154 S.W.3d 84, 92
(Tex. 2006)). Therefore, an employee's failure to follow company policies does not support
Second, as examined above for Plaintiff's false imprisonment claim, the Wal-Mart
employees possessed a reasonable belief Mrs. Martinez had stolen or was attempting to steal
Wal-Mart merchandise. Therefore, the Wal-Mart employees did not unreasonably accuse Mrs.
Martinez of shoplifting.
Third, in alleging the Wal-Mart employees provided Officer Young with limited
information, Plaintiffs claim the Wal-Mart employees should have informed Officer Young that
Mr. Martinez was an elderly man who was wearing a back brace and had not threatened anyone.
Resp. Wal-Mart's Mot. [#50] at 7. Plaintiffs also argue an employee's statement Mr. Martinez
was raising "nine kinds of hell" negligently escalated the situation. Id. But Plaintiffs fail to show
how these allegations correspond to their negligence claim. Specifically, Plaintiffs offer no
evidence or authority indicating the Wal-Mart employees had a duty to share more detailed
observations with Officer Young. Plaintiffs also point to no evidence demonstrating Officer
Young entered the Wal-Mart with insufficient information or that he viewed the situation as
escalated before interacting with Mr. Martinez. In fact, Officer Younger did not attempt to
interact with Mr. Martinez until Mr. Martinez entered the AP Office uninvited.
Simply put, Plaintiffs offer no evidence and no authority supporting its allegation the
Wal-Mart employees breached any duty to Plaintiffs. Wal-Mart is therefore entitled to summary
judgment on Plaintiffs' general negligence claim.
Negligent Hiring, Training, and Supervision
Texas law authorizes recovery where an employer's direct negligence in hiring, training,
or supervising an incompetent employee whom the employer knows, or by the exercise of
reasonable care should have known, was incompetent or unfit creates an unreasonable risk of
harm to others. Garcia
Hospice of El Paso, No. EP-02-CA-268-DB, 2003 WL 21961177, at
*5 (W.D. Tex. May 20, 2003) (citing Wise v. Complete Staffing Services, Inc., 56 S.W.3d 900,
App.Texarkana 2001, no pet.)). To prevail on a claim of negligent hiring, training,
or supervision, a plaintiff must prove (1) the employer owned the plaintiff a legal duty to protect
against injury, (2) the employer breached that duty, (3) and the breach proximately caused
plaintiffs injury. Id.
Here, it is undisputed Wal-Mart owed Plaintiffs a duty to hire, train, and supervise
competent employees. But Wal-Mart argues Plaintiffs cannot establish Wal-Mart breached that
duty or that any alleged breach caused Plaintiffs' injuries. The Court agrees.
First, Plaintiffs supply no evidence Wal-Mart breached its duty in hiring, training, or
supervising its employees. Specifically, Plaintiffs present no evidence any of the Wal-Mart
employees were unfit for their positions or how the training Wal-Mart provided its employees
was inadequate. See Garcia, 2003 WL 21961177, at
(explaining the duty to hire, train, and
supervise competent employees includes "inquiry into the qualifications of candidates for
employment, the termination of employees who are not qualified or are unfit, and the adequate
supervision and training of employees" (citing Carney
206, 211 (Tex.
Roberts Investments Co., 837 S.W.2d
1992, writ denied)). Plaintiffs also offer no evidence showing how
Wal-Mart failed to adequately supervise its employees. Plaintiffs' mere conclusory allegations
cannot create a fact issue to withstand summary judgment. See Turner, 476 F.3d at 343.
By contrast, Wal-Mart points to evidence its employees professionally handled the
detention of a suspected shoplifter. The video evidence demonstrates the Wal-Mart employees
asked Mrs. Martinez to accompany them to the AP office, inventoried Mrs. Martinez's basket,
and calmly talked with both Plaintiffs until Officer Young arrived. As the only evidence in the
record suggests the Wal-Mart employees competently interacted with Plaintiffs, Wal-Mart is
entitled to summary judgment on Plaintiffs' claim for negligent hiring, training, or supervision.
Furthermore, even if Plaintiff provided evidence Wal-Mart breached its duty, Plaintiffs
offer no evidence any alleged breach caused Plaintiff's injuries. In order to establish proximate
cause, a plaintiff must show that the defendant's actions in hiring, supervising, or retaining an
employee were the cause-in-fact of the injuries and the resulting injuries were a foreseeable
consequence. McDorman ex rel. Conneily v. Texas-Cola Leasing Co. LP, LLP, 288 F. Supp. 2d
796, 804 (N.D. Tex. 2003) (citing Houser v. Smith, 968 S.W.2d 542, 545 (Tex.
1998, no writ)).
Here, the evidence only shows the Wal-Mart employees' actions in detaining Mrs.
Martinez furnished a condition which made Plaintiffs' injuries possible. Such evidence is
insufficient to establish cause-in-fact. See id. at 805 (citing Doe
Boys Clubs of Greater Dali.,
Inc., 907 S.W.2d 472, 477-78 (Tex. 1995)). Plaintiffs also present no evidence their injuries
were a foreseeable consequence of Wal-Mart's hiring, training, or supervision. Specifically,
Plaintiffs put forward no evidence or facts showing Wal-Mart should have reasonably anticipated
its actions in hiring, training, or supervising its employees could cause Plaintiffs' injuries. See
Garcia, 2003 WL 21961177, at *6 (holding plaintiff failed to prove foreseeability where there
was no evidence the employer knew or should have known the employee was incompetent).
Because Plaintiffs offer no evidence Wal-Mart breached its duty or any such breach
caused Plaintiffs' injuries, Wal-Mart is entitled to summary judgment on Plaintiffs' negligent
hiring, training, and supervision claim.
For the reasons explained in this order, Defendants are entitled to judgment as a matter of
law on all of Plaintiffs' claims.
IT IS ORDERED that Defendants the City
of Buda and Officer Demerriel
Young's Motion for Summary Judgment [#43] is GRANTED; and
IT IS FiNALLY ORDERED that Defendant Wal-Mart Stores Texas, LLC's
Motion for Summary Judgment [#47] is GRANTED.
SIGNED this the
day of February 2018.
UNITED STATESLbISTRICT JUDGE
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