Zepeda v. City of San Antonio, Texas et al

Filing 88

ORDER GRANTING 74 Motion for Summary Judgment. Signed by Judge David Ezra. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
§
§
§
Plaintiff,
§
§
vs.
§
SHANE Q. SIZEMORE, Individually; §
§
and ABEL BARRIENTES,
§
Individually,
§
§
Defendants.
TOBY ZEPEDA,

Cv. No. SA:11-CV-901-DAE

ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
On August 22, 2013, the Court heard oral argument on the Motion for
Summary Judgment filed by Defendants Shane Q. Sizemore and Abel Barrientes
(collectively, “Defendants”). (Doc. # 74 (“Mot.”).) Mark Anthony Sanchez,
Esq., appeared on behalf of Plaintiff Toby Zepeda; Nathan Mark Ralls, Esq.,
appeared on behalf of Defendants. After careful consideration of the Motion and
the supporting and opposing memoranda, and in light of the parties’ arguments at
the hearing, the Court, for the reasons that follow, GRANTS Defendants’ Motion.
BACKGROUND
I.

Background Facts
This case arises out of allegedly excessive force that Plaintiff Toby

Zepeda contends two officers of the San Antonio Police Department (“SAPD”)
1

used against him. Two videotapes—a surveillance video and a cell phone video
posted on Youtube—recorded most of the events underlying Plaintiff’s claims.
(See Mot. Exs. A, B.)1
The incident that forms the basis of this lawsuit occurred on
November 1, 2009 (the night of Halloween), at about 2:15 a.m., in downtown San
Antonio, in the elevator lobby to a parking garage. Plaintiff left Medusa’s Night
Club shortly after it closed at 2:00 a.m. (Zepeda Depo. 36:16–19.) In the
previous hour and a half, Plaintiff had drunk four beers. (Id. at 39:24–40:9,
57:11–18.) Upon leaving Medusa’s, Plaintiff saw a female friend of his arguing
with another girl outside the parking garage. (Id. at 38:23–39:12.) Plaintiff
attempted to break up the fight, at which point the security officer on duty
requested that Plaintiff and his friend enter the lobby of the parking garage in
order to separate the parties and defuse the situation. (Id. at 39:16–20.) The
surveillance video shows Plaintiff’s friend, recognizable by her Wonder Woman

1

These videotapes significantly aid the Court’s understanding of these events.
See Poole v. City of Shreveport, 691 F.3d 624, 625 n.1 (5th Cir. 2012) (noting that
courts should view purported facts “‘in the light depicted by the videotape’”)
(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)); Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011) (“A court of appeals need not rely on the
plaintiff’s description of the facts where the record discredits that description but
should instead consider ‘the facts in the light depicted by the videotape.’”)
(quoting Scott, 550 U.S. at 381). While the parties dispute the tapes’ content,
neither disputes the tapes’ admissibility.
2

costume, entering the lobby at time stamp 3:13:30 a.m.3 The acting security
officer can be seen attempting to prevent Plaintiff’s friend from leaving the lobby.
At around 3:13:45, two other girls enter the lobby, and they appear to be fighting
with someone off screen. At around 3:13:48, Plaintiff first appears in the bottom
right-hand corner of the screen wearing a red, long-sleeve shirt. At 3:13:52,
Plaintiff can be seen attempting to pull his friend away from the other women
while the acting security officer attempts to restrain another woman. At 3:13:54,
Plaintiff’s friend breaks free from his grasp and exits the lobby, at which point the
acting security officer runs out of the frame, followed by the woman he was
attempting to subdue and by Plaintiff.
At 3:14:04, the acting security officer reenters the frame holding the
arms of a woman dressed as a devil. The officer then leaves the woman dressed as
a devil in the lobby and goes back outside. At 3:14:11, Plaintiff reappears in the
bottom right-hand corner of the screen, again attempting to subdue his friend.
Seconds later, many other individuals enter the lobby. At 3:14:26, an individual in
a yellow shirt rushes at Plaintiff and attempts to attack him.4 The acting security

3

It appears that the time stamp on the video is one hour fast. (Zepeda Depo.
184:22–185:5.)
4
The Complaint alleges that the individual who lunged at Plaintiff was
former-Defendant Officer Anguiano. However, Plaintiff conceded during his
deposition that Officer Anguiano was the acting security guard who attempted to
restrain the man in the yellow shirt and that Anguiano did not attack Plaintiff.
(See Zepeda Depo. 50:17–20, 64:15–65:18.)
3

officer attempts to restrain the man in the yellow shirt. However, by 3:14:33, the
man in the yellow shirt, a man in a green shirt, and a man in a light blue shirt have
pushed Plaintiff into the corner of the lobby. (Zepeda Depo. 113:25–118:6.) At
this time, the civilian men “start[ed] throwing punches.” (Id. 115:3–13.) Plaintiff
“was trying to go down to the prone position,” but the civilian men “picked [him]
up from the floor, took [him] over here, picked [him] up from the floor and took
[him] back that way.” (Id.) These men were kicking and punching Defendant
“fast” and “hard” all over his upper and lower body, including his ribs, head, and
shoulders. (Id. at 116:10–118:6.)
By 3:14:37, at least eighteen other men and women have entered the
lobby, some of whom are fighting, grabbing each other, and/or running. At
3:14:40, the acting security officer can be seen attempting to subdue one of the
women in the corner of the lobby.
At 3:14:43, Defendant Sizemore first appears in the bottom
right-hand corner of the screen. (Mot. Ex. C at 2 (“Sizemore Aff.”).) He is
wearing black pants, a blue and black short-sleeve shirt that says POLICE, and a
dark colored, long-sleeved undershirt. He has a full head of hair that is closely
cropped on the sides. Defendant Sizemore can be seen attempting to help the
acting security officer subdue the woman. Then, at 3:14:45 a.m., while
Sizemore’s back is turned to the elevators and the lobby doors, a stream of men
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enters the lobby, and a number of the men walk toward the opposite side of the
lobby (the bottom left-hand side of the screen). At 3:14:48, Defendant Sizemore
turns around and walks in the same direction, where it appears that a struggle is
taking place. Behind Sizemore, many of the people who have entered the lobby
are struggling with each other. At 3:14:54, another police officer, dressed entirely
in black, enters the lobby and attempts to break up that fight. Plaintiff agreed at
his deposition that by this point the scene could be described as a “melee.”
(Zepeda Depo. 122:21–123:6.)
At the same time, Defendant Sizemore, along with a few other men,
can be seen in the bottom left-hand side of the frame, apparently attempting to
subdue someone. At 3:15:19, Plaintiff reappears, and three uniformed police
officers, including Defendant Sizemore, can be seen struggling with Plaintiff. The
YouTube video, which shows the same incident from another angle, shows an
unidentified officer (who is not dressed in an SAPD uniform5) directing a kick at
Plaintiff. Plaintiff testified that this man kicked him twice in the ribs. (Zepeda
Depo. 131:13–132:10.)
During this struggle, Plaintiff, Defendant Sizemore, and two
unidentified SAPD officers move to the corner of the lobby, to the left of the
elevators (the bottom left-hand side of the frame). Plaintiff testified at his

5

Plaintiff asserted during his deposition that this officer was wearing a Bexar
County Sheriff’s uniform. (Zepeda Depo. 58:2–17.)
5

deposition that he did not move to the corner of the lobby voluntarily; he claims
he was “already on the floor in the prone position” and the officers “pick[ed]
[him] back up” and took him to the corner, where they put him back down and
started hitting him. (Zepeda Depo. 124:15–125:2.)6
Once Plaintiff has moved to the corner of the lobby, he is outside the
frame of the security camera. However, approximately thirty-two seconds into the
YouTube video, Defendant Sizemore and the two unidentified officers can be seen
struggling with Plaintiff in the corner of the lobby. Sizemore is standing on the
left side of Plaintiff (Plaintiff’s right side), pulling at Plaintiff’s right arm and
apparently attempting to bring him under control. Another officer, who is bald, is
standing behind Plaintiff; and an officer wearing a bike helmet is standing on
Plaintiff’s left, attempting to grab Plaintiff’s arm. In the YouTube video, the bald
officer behind Plaintiff, who is not a defendant in this case, can be seen hitting
Plaintiff in the upper back or head at least four times. It is not clear from the
video whether the bald officer hit Plaintiff with an open hand or with a fist.
At 3:15:27 on the surveillance video, Plaintiff can be seen moving
toward the middle of the lobby while the officers are still struggling with him. At
3:15:33, a number of other officers enter the room and attempt to assist with the
arrest. It is at this time that Defendant Barrientes is first seen. At 3:15:34, he can

6

The YouTube video does not show that Plaintiff was ever lying prone on the
floor. However, the video does not provide an unobstructed view.
6

be seen standing behind two officers, one of whom is wearing a bike helmet.
(Mot. Ex. D (“Barrientes Aff.”).)
At 3:15:39, three officers can be seen attempting to subdue Plaintiff.
At this time, Defendants Sizemore and Barrientes, who can be seen on the left side
of the screen, are not touching Plaintiff. Shortly thereafter, Defendant Barrientes
can be seen attempting to grab Plaintiff’s legs while other officers are attempting
to pin him to the ground. At 3:15:47, Sizemore can be seen bending down to
assist the other officers, but the camera’s view of his hands is blocked by the other
officers. During this time, the video appears to show Plaintiff twisting, turning,
and kicking his legs.
At 3:15:59, Defendant Barrientes can be seen placing Plaintiff in a
choke hold. In the video, Plaintiff is lying face-up on top of Barrientes, who has
his back against the wall next to the elevator. Another officer can be seen on top
of Plaintiff, pinning him down. Plaintiff appears to be struggling. Seconds later,
as the officer who was on top of Plaintiff stands up, Plaintiff appears to kick his
legs to the side, leading a number of other officers to approach and grab his legs.
At 3:16:09, Defendant Barrientes and at least two other officers flip
Plaintiff onto his stomach. At 3:16:13, four officers, including Defendant
Barrientes, can be seen pinning Plaintiff to the ground, with two officers holding
his legs and one officer holding each arm. Defendant Sizemore is not in the
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frame. At 3:16:16, Defendant Barrientes places his right knee on Plaintiff’s neck
or upper shoulder, pinning him to the ground face-down, and uses his hands to
assist the other officers in handcuffing Plaintiff. Plaintiff testified at his
deposition that it was at this moment—the moment in which he was handcuffed—
that he first realized he was dealing with police officers. (Zepeda Depo. 128:15–
129:17.) Until that point, Plaintiff insists, he believed he was dealing with
civilians. (Id.)
At 3:16:32, the officers appear to have successfully handcuffed
Plaintiff, and Defendant Barrientes stands up. The other officers stand, too, and
most begin to exit the lobby. At 3:16:41, however, Plaintiff flips over onto his
back, leading Defendant Barrientes and another officer to bend down and flip
Plaintiff back onto his stomach. At 3:16:43, Defendant Barrientes again places his
right knee on Plaintiff’s neck or upper shoulder, apparently to prevent Plaintiff
from flipping over again. At 3:16:45, Plaintiff appears to flail his legs, leading a
third officer to grab them. At 3:17:01, Defendant Barrientes, who is still pinning
Plaintiff to the ground with his knee, appears to say something to Plaintiff. At
3:17:33, Defendant Barrientes again appears to speak with Plaintiff. By this time,
the lobby has largely been cleared out. At 3:18:14, the officer holding Plaintiff’s
legs stands up, at which point Defendant Barrientes is the only officer touching
Plaintiff. Barrientes is still pinning Plaintiff down with his right knee; however,
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he appears to be crouching in such a way that much of his weight is borne by his
left leg.
At 3:18:34, Defendant Sizemore reappears. He can be seen walking
around the lobby but does not make contact with Defendant. At 3:19:06, the video
cuts out, with Defendant Barrientes still pinning Plaintiff to the floor. However,
shortly thereafter Defendant Barrientes permitted Plaintiff to sit up, and Plaintiff
sat in the elevator lobby for about an hour before being taken to the police station.
(Zepeda Depo. 188:15–18.) Plaintiff states that he was not mistreated after he sat
up. (Id. at 197:23–198:3.)
Plaintiff alleges that as a result of the officers’ actions he “sustained
serious injuries to his person, including but not limited to, a sprained knee,
shoulder injury and numerous bruises to his head, back, and extremities.” (Compl.
¶ 15.) Following the incident, Plaintiff went to jail for approximately 26 hours.
(Zepeda Depo. 70:5–7.) Shortly thereafter, Plaintiff was charged with assault on a
public servant based on a complaint from Officer Anguiano. (Compl. ¶ 33;
Resp. Ex. 3.)
Plaintiff attests that he went to the emergency room upon his release
from jail. (Id. 70:5–71:25.) X-rays indicated that he had no broken bones, but his
ribs were bruised. (Id.) Plaintiff also asserts that he had “a little bit of swelling on

9

[his] face” and “little scratches” and that his throat hurt from “when they were
choking [him].” (Id.)
Plaintiff testified at his deposition that he went to see Dr. Wong a
couple of days later and that at that time he “could barely walk”; that he “couldn’t
cough,” because his “ribs would hurt”; that he “could barely speak” because of the
injuries to his throat; that his back hurt; and that he had “pain everywhere.” (Id. at
72:22–73:17.)
Plaintiff was put on unpaid leave from his job as a prison security
guard as a result of the criminal charges resulting from this incident, though he
received a salary until January 12, 2010, by using his accrued comp time. (Zepeda
Depo. 80:12–81:13.) On July 12, 2010, Plaintiff was fired (id. at 80:14–20), and
he has not returned to work, allegedly due to his injuries (id. at 82:5–85:13). At
the time of his deposition, Plaintiff insisted that he could “barely” pick up his arms
and “barely do a certain rotation.” (Id. at 74:7–11.) He also attested that he still
had all the same symptoms: throat problems, shoulder issues, and neck pain. (Id.
at 76:21–77:18.)
II.

Procedural History
On October 31, 2011, Plaintiff filed a Complaint with this Court

(doc. # 1), naming as Defendants the City of San Antonio, Texas; Price Protective

10

Services, Inc.; Bexar County, Texas; and Shane Q. Sizemore, Abel Barrientos,7
Antonio Flores, Craig R. Bottiglieri, John Doe I, John Doe II, and John Anguiano,
all in their individual capacities. Plaintiff brought claims pursuant to 42
U.S.C. § 1983, alleging that Defendants had deprived him of his Fourth
Amendment rights by using excessive force, failing to intervene to prevent his
injuries, falsely arresting Plaintiff, and maliciously prosecuting him.
(Compl. ¶ 23.) Plaintiff also brought a number of state-law claims, including
claims for intentional infliction of emotional distress, false arrest and false
imprisonment, and assault and battery. (Id. ¶¶ 34–41.) The Complaint sought
medical expenses, lost income, attorneys’ fees, punitive damages, and damages for
pain and suffering, emotional and mental distress, and “personal humiliation and
shock.” (Compl. ¶¶ 42–45.)
On December 27, 2011, Bottiglieri and Sizemore jointly filed their
Original Answer to the Complaint. (Doc. # 3.) On March 29, 2012, the City of
San Antonio filed its Answer. (Doc. # 8.) On the following day, Anguiano and
Price Protective Services jointly filed their Answer. (Doc. # 9.) On April 13,
2012, Barrientes and Flores jointly filed their Answer. (Doc. # 10.) On April 20,
2012, Anguiano and Price Protective Services filed an Amended Answer.
(Doc. # 11.)

7

Now known to be Abel Barrientes.
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On October 22, 2012, Bexar County filed a Motion to Dismiss and
Subject Thereto, Answer and Affirmative Defenses. (Doc. # 46.) On November
7, 2012, Plaintiff filed a Notice of Voluntary Dismissal that dismissed all claims
against Bexar County. (Doc. # 48.)
On November 20, 2012, Anguiano and Price Protective Services filed
a Motion for Summary Judgment and Motion to Sever. (Doc. # 50.) Shortly
thereafter, on November 29, 2012, Plaintiff filed four Stipulations of Dismissal,
dismissing all claims against Anguiano, Bottiglieri, Flores, and Price Protective
Services. (Docs. ## 51–54.) On January 3, 2012, Bottiglieri and Sizemore jointly
filed an Amended Answer. (Doc. # 56.)
On March 1, 2013, the City of San Antonio filed a Motion for
Summary Judgment. (Doc. # 71.) On April 11, 2013, Plaintiff filed a Stipulation
of Dismissal that dismissed all claims against the City of San Antonio.
(Doc. # 79.)
Also on March 1, 2013, the two remaining Defendants, Barrientes
and Sizemore, filed the Motion for Summary Judgment that is now before the
Court. (Doc. # 74.) On April 11, 2013, Plaintiff filed a Response in opposition to
the Motion. (Doc. # 81.) On April 18, 2013, Defendants Barrientes and Sizemore
filed their Reply. (Doc. # 82.)

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STANDARD OF REVIEW
Summary judgment is granted under Federal Rule of Civil Procedure
56 when “the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012).
The main purpose of summary judgment is to dispose of factually unsupported
claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Id. at 323. If the moving party
meets this burden, the non-moving party must come forward with specific facts
that establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v.
Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). In
deciding whether a fact issue has been created, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). However, “[u]nsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” Brown v. City of Houston, 337 F.3d 539, 541
(5th Cir. 2003). “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
13

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
Defendants Sizemore and Barrientes argue that they are entitled to
summary judgment on Plaintiff’s state-law tort claims as a matter of law under the
election-of-remedies provision of the Texas Tort Claims Act (“TTCA”). (Mot. at
2.) Defendants further assert that they are entitled to qualified immunity as to
Plaintiff’s claims of excessive force, false arrest, seizure, and failure to intervene,
because their actions were reasonable under the totality of the circumstances. (Id.)
Finally, Defendants assert that they are entitled to summary judgment on
Plaintiff’s malicious-prosecution claim as a matter of law. (Id.)
I.

Plaintiff’s State-Law Tort Claims
Plaintiff has alleged a number of state-law intentional-tort claims,

including intentional infliction of emotional distress (Compl. ¶¶ 34–35), assault
and battery (id. ¶¶ 38–41), and false arrest and/or false imprisonment (id. ¶¶ 36–
37). For the reasons that follow, Defendants are entitled to summary judgment on
these claims as a matter of law.
A.

Intentional Infliction of Emotional Distress
Defendants argue that intentional infliction of emotional distress

(“IIED”) is a “gap-filler” tort. (Mot. at 3.) “To establish a cause of action for
14

[IIED],” Defendants insist, “a plaintiff must establish [that] there is no alternative
cause of action that would provide a remedy for the severe emotional distress
caused by a defendant’s conduct.” (Mot. at 3.) For support, they point to the
Supreme Court of Texas’s decision in Hoffmann-LaRoche Inc. v. Zeltwanger,
wherein the court explained that the “clear purpose” of the tort is to “supplement
existing forms of recovery by providing a cause of action for egregious conduct
that might otherwise go unremedied.” 144 S.W.3d 438, 447 (Tex. 2004) (quoting
Std. Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)).
Because Plaintiff’s IIED claim “arises out of the same facts that give rise to
Plaintiff’s claims under 42 U.S.C. § 1983, and [because] 42 U.S.C. § 1983
provides for the recovery [of] mental anguish damages for a prevailing plaintiff,”
insist Defendants, Defendants are entitled to summary judgment as a matter of
law. (Mot. at 3–4.) Plaintiff did not address this argument in his Response.
Defendants are correct: In Texas, “intentional infliction of emotional
distress is a ‘gap-filler’ tort never intended to supplant or duplicate existing
statutory or common-law remedies.” Creditwatch, Inc. v. Jackson, 157 S.W.3d
814, 816 (Tex. 2005) (citing Hoffmann-La Roche, 144 S.W.3d at 447). Thus,
“where the gravamen of a plaintiff’s complaint is actually another tort, such as a
constitutional civil rights violation or false imprisonment, a cause of action for
intentional infliction of emotional distress is not available.” Burkett v. City of El
15

Paso, 513 F. Supp. 2d 800, 825 (W.D. Tex. 2007). In Holguin v. Lopez, for
example, the court held that the plaintiff’s IIED claim against a police officer
failed as a matter of law because it was “based on the same operative facts as his
claims for constitutional violations . . . .” 584 F. Supp. 2d 921, 928 (W.D. Tex.
2008); accord Almond v. Tarver, 468 F. Supp. 2d 886, 905 (E.D. Tex. 2006)
(“Because § 1983 and the common law tort of assault are the appropriate avenues
for redress of Almond’s alleged injuries, his intentional infliction of emotional
distress claim fails as a matter of law.”); Phillips v. U.P.S., No. 3:10-CV-1197,
2011 WL 2680725, at *14 (N.D. Tex. June 21, 2011) (dismissing plaintiff’s IIED
claim because it “relie[d] on the same alleged conduct” as her Title VII claims).
Plaintiff explicitly bases his IIED claim on the same operative facts
underlying his § 1983 claims and his other state-law tort claims. Compare
Compl. ¶¶ 20, 36, 38 (indicating that the allegations in Paragraphs 13 through 19
form the basis of Plaintiff’s § 1983 claims and his state-law claims for false
arrest/false imprisonment and assault and battery), with id. ¶ 34 (indicating that
the allegations in Paragraphs 13 through 19 form the basis of Plaintiff’s IIED
claim). More specifically, Plaintiff alleges that Defendants “acted intentionally
and/or recklessly when assaulting him and further alleges that such conduct was
extreme and outrageous.” (Id. ¶ 35 (emphasis added).) Because “the gravamen of
[Plaintiff’s] complaint is the type of wrong that the statutory remedy was meant to
16

cover”—i.e., because Plaintiff has a remedy under § 1983—he “cannot maintain
an intentional infliction claim . . . .” Watkins v. Tex. Dep’t of Crim. Justice, 269
F. App’x 457, 464 (5th Cir. 2008) (quoting Hoffman-La Roche, 114 S.W.3d at
447–68). Accordingly, Defendants are entitled to summary judgment on
Plaintiff’s IIED claim.
B.

Assault and Battery and False Arrest/Imprisonment
Defendants insist that Plaintiff’s remaining state-law claims must be

dismissed pursuant to the election-of-remedies provisions of the TTCA, Texas
Civil Practice and Remedies Code § 101.106. (Mot. at 4.) That section provides,
in relevant part:
(f) If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and if it
could have been brought under this chapter against the governmental unit,
the suit is considered to be against the employee in the employee’s official
capacity only. On the employee’s motion, the suit against the employee
shall be dismissed unless the plaintiff files amended pleadings dismissing
the employee and naming the governmental unit as defendant on or before
the 30th day after the date the motion is filed.
Tex. Civ. Practice & Remedies Code § 101.106(f) (emphasis added). Defendants
point out that Plaintiff, in the Complaint, “clearly states that Defendants were
acting as employees of the San Antonio Police Department, under color of state
law and in the course and scope of their employment and authority with the San
Antonio Police Department at the time of the incident made the basis of this suit.”
(Mot. at 4; accord Compl. ¶¶ 6, 7.) Moreover, insist Defendants, “[r]esponding to
17

a riot is clearly within the general course and scope of the Defendants’
employment.” (Id.) Accordingly, Defendants argue that “Plaintiff’s suit [must be]
considered to be against Defendants in Defendants’ official capacities only,” and
Plaintiff’s state-law claims should be dismissed as a matter of law. (Id.)
Plaintiff responds that, in order to warrant dismissal pursuant to
§ 101.106(f), a claim must meet two requirements: First, as Defendants note, the
claim must be “based on conduct within the general scope of [a governmental
unit’s] employee’s employment”; and second, the claim must be one that “could
have been brought under this chapter against the governmental unit . . . .”
(Resp. at 6–7 (quoting Tex. Civ. Practice & Remedies Code § 101.106(f)
(emphasis added).) Thus, insists Plaintiff, § 101.106(f) “is not applicable for one
simple reason: Assault and battery claims cannot be brought under the chapter
against a governmental entity.” (Resp. at 6.)
Plaintiff cites no authority for the proposition that assault and battery
claims “simply cannot be brought—under any circumstances whatsoever—against
a governmental entity.” (Resp. at 7.) However, what Plaintiff appears to mean is
not that it is impossible, under any circumstances imaginable, to bring an assault
and battery claim against a governmental agency; it is that the TTCA currently
does not waive sovereign immunity with respect to such claims. Plaintiff insists
that it “would be perverse” to dismiss his claims against the individual defendants
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“so that [he] can then improperly sue the City and be imperiled by the inevitable
dismissal (due to a lack of waiver of immunity) of such claims[.]” (Id.)
Dismissal is precisely what the Supreme Court of Texas’s holding in
Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), requires, however. Prior to
Franka, a majority of Texas courts had interpreted the phrase “could have been
brought under this chapter against the governmental unit” to mean that the suit
must be one for which the state has waived its sovereign immunity. See id. at 382
n.67 (collecting cases). In Franka, however, the supreme court explicitly rejected
that reasoning, see id., holding that, for purposes of § 101.106(f), a common-law
tort action “could have been brought under” the TTCA regardless of whether the
Act waives immunity for that action. See id. at 385; id. at 388 (Medina, J.,
dissenting) (construing the majority decision as holding that the phrase “could
have been brought under this chapter against the governmental unit” as
“includ[ing] all tort claims filed against a governmental employee individually
without regard to whether the government has consented to be sued”). In other
words, “the Franka court expressly concluded that . . . the Legislature [had] made
whatever remedy the Tort Claims Act provides against the governmental unit a
claimant’s exclusive remedy for damages allegedly caused by common-law torts
committed by a government employee in the scope of her employment.” Univ. of

19

Tex. Health Sci. Ctr. at Houston v. Crowder, 349 S.W.3d 640, 649 (Tex. App.
2011) (emphases added).
Plaintiff insists that the “hard-to-follow opinion” in Franka should not
be read so broadly. (Resp. at 6.) “[T]he Court in Franka,” argues Plaintiff, “was
dealing with a medical malpractice action that can be—albeit in limited
circumstances—brought against a governmental entity.” (Id.) By contrast, insists
Plaintiff, there are no circumstances under which a plaintiff could sue a
governmental entity for assault and battery.8 (Id.)
The Court is unconvinced. First, the Court can find no support for
Plaintiff’s restrictive reading of Franka in the text of that opinion. Instead, the
Franka majority explained that a claim “could have been brought under the [Texas
Tort Claims] Act” if that claim “is in tort and not under another statute that
independently waives immunity.” 332 S.W.3d at 381; accord Fontenot v. Stinson,
369 S.W.3d 268, 272–73 (Tex. App. 2011) (explaining that the phrase “under this
chapter” refers to any common-law tort claim but does not include, for example,
federal statutory claims brought under 42 U.S.C. § 1983). The Franka dissent also
interpreted the majority opinion broadly, lamenting that it “effectively reads the

8

Again, Plaintiff does not seem to be arguing that assault-and-battery claims are
categorically different from other common-law tort claims such that it would be
impossible to bring such claims against a governmental entity; he is arguing that
Texas Civil Practice and Remedies Code § 101.057(2) specifically does not waive
sovereign immunity for assault-and-battery claims.
20

‘could have been brought’ condition out of the statute . . . .” Franka, 332 S.W.3d
at 388 (Medina, J., dissenting). Finally, subsequent opinions from the Texas
Courts of Appeals have agreed that Franka broadly forecloses common-law tort
claims “against a government employee in his individual capacity if he was acting
within the scope of employment.’” Dung Ngoc Huynh v. Washington, 339 S.W.3d
309, 311 (Tex. App. 2011) (quoting Franka, 332 S.W.3d at 381); accord Crowder,
349 S.W.3d at 649; Williams v. Nealon, 394 S.W.3d 9, 12 (Tex. App. 2012);
Redburn v. Garrett, 13-12-00215-CV, 2013 WL 2149699, at *7 (Tex. App. May
16, 2013).
To the extent that Plaintiff would like this Court to ignore the
Supreme Court of Texas’s holding in Franka, the Court rejects that request. The
responsibility of the federal courts with respect to state-law questions is not to
make the law; it is merely to ascertain and apply it. See Polk Cnty., Ga. v. Lincoln
Nat. Life Ins. Co., 262 F.2d 486, 490 (5th Cir. 1959). While state courts can
overrule their prior decisions, federal courts cannot do so. Id. (citing Ill. Central
R.R. Co., 312 U.S. 630, 631 (1941)). Accordingly, it is not this Court’s place to
question the soundness of the Supreme Court of Texas’s interpretation of Texas
law.
For similar reasons, the Court rejects Plaintiff’s final argument: that
the holding of Franka as described above violates the Open Courts provision of
21

the Texas Constitution. (Resp. at 7.) The Open Courts provision states that “[a]ll
courts shall be open, and every person for an injury done him, in his lands, goods,
person or reputation, shall have remedy by due course of law.” Tex. Const. Art. I,
§ 13. Among other things, the Open Courts provision “prohibits the Legislature
from unreasonably restricting common law causes of action.” Thomas v. Oldham,
895 S.W.2d 352, 357 (Tex. 1995) (citing Tex. Ass’n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 448 (Tex. 1993)). The Franka court was not presented with
an Open Courts challenge, but it did address the issue in dicta:
We recognize that the Open Courts provision of the Texas Constitution
“prohibits the Legislature from unreasonably abrogating well-established
common-law claims,” but restrictions on government employee liability
have always been part of the tradeoff for the Act’s waiver of immunity,
expanding the government’s own liability for its employees’ conduct, and
thus “a reasonable exercise of the police power in the interest of the general
welfare.”
Franka, 332 S.W.3d at 385 (internal citations omitted). Thus, as the Texas Court
of Appeals recently noted in Williams v. Nealon, “the [Texas] supreme court has
indicated that an open courts challenge to section 101.106(f) would fail because
the restriction is reasonable when balanced against the statute’s purpose.” 394
S.W.3d at 12. Because Plaintiff points to no contrary state-court precedent, this
Court has no reason to conclude that § 101.106(f) violates the Open Courts
provision of the Texas Constitution.

22

For the foregoing reasons, Defendants are entitled to summary
judgment on Plaintiff’s common-law intentional-tort claims.
II.

Plaintiff’s § 1983 Claims
Plaintiff has alleged that Defendants deprived him of his Fourth

Amendment rights and privileges by (1) using excessive force in the course of
their custody of Plaintiff; (2) seizing Plaintiff in an unnecessarily abusive manner;
(3) falsely arresting and detaining Plaintiff; (4) failing to intervene where such
intervention would have prevented the constitutional violations and/or Plaintiff’s
injuries; and (5) falsely and maliciously charging Plaintiff with the commission of
crimes without probable cause to believe such crimes occurred. Defendants assert
that they are entitled to qualified immunity on the first four claims and to
summary judgment on the fifth as a matter of law.
A.

Defendants Are Entitled to Qualified Immunity on Plaintiff’s Claims
of Excessive Force, “Abusive” Seizure, False Arrest/Imprisonment,
and Failure to Intervene
“The doctrine of qualified immunity protects government 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.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two
23

important interests—the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Pearson, 555
U.S. at 231. The Supreme Court has characterized qualified immunity as
protecting “all but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Courts utilize a two-part analysis to resolve government officials’
qualified-immunity claims. The first prong asks whether the defendant’s conduct
violated a constitutional right. Terry v. Hubert, 609 F.3d 757, 761 (5th Cir. 2010)
(citing Pearson, 555 U.S. at 232). The second prong asks whether the defendant’s
conduct was objectively unreasonable in light of clearly established law at the
time of the violation. Id. A court may begin its analysis with either prong, but
both questions must be answered in the affirmative for liability to attach. Pearson,
555 U.S. at 236. Thus, “[e]ven if the official’s conduct violate[d] a constitutional
right, he is entitled to qualified immunity if the conduct was objectively
reasonable.” Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993) (quoting
Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993)).
A qualified-immunity defense alters the usual summary-judgment
burden of proof. See Brown, 623 F.3d at 253. “Once an official pleads the
defense, the burden then shifts to the plaintiff, who must rebut the defense by
24

establishing a genuine fact issue as to whether the official’s allegedly wrongful
conduct violated clearly established law.” Id.; see also Newman v. Guedry, 703
F.3d 757, 761 (5th Cir. 2012) (“Although qualified immunity is nominally an
affirmative defense, the plaintiff bears a heightened burden to negate the defense
once properly raised.”) (internal quotation marks omitted). A defendant who
claims qualified immunity in good faith has no obligation to produce evidence.
See Beck v. Tex. State Bd. of Dental Examiners, 204 F.3d 629, 633–34 (5th Cir.
2000). Thus, defendants who claim qualified immunity in good faith “are entitled
to qualified immunity . . . unless (1) [the plaintiff] has adduced sufficient evidence
to raise a genuine issue of material fact suggesting their conduct violated an actual
constitutional right, and (2) the officers’ actions were objectively unreasonable in
light of clearly established law at the time of the conduct in question.” Newman,
703 F.3d at 761 (emphases added; internal quotation marks omitted). “The
defendant[s’] acts are held to be objectively reasonable unless all reasonable
officers in the defendant[s’] circumstances would have then known that the
defendant[s’] conduct violated the United States Constitution or the federal statute
as alleged by the plaintiff.” Thompson v. Upshur County, Tex., 245 F.3d 447, 457
(5th Cir. 2001).
In order to overcome the defense of qualified immunity at the
summary judgment stage, the plaintiff cannot rest on conclusory allegations or
25

assertions; he must demonstrate genuine issues of material fact regarding the
reasonableness of the defendant’s conduct. See Michalik, 422 F.3d at 262.
However, while the plaintiff bears the burden of negating qualified immunity, all
inferences are still drawn in his favor. Poole, 691 F.3d at 630.9
By establishing that they are city police officers (see Mot. Exs. C, D;
doc. # 3 ¶ 8; doc. # 10 ¶ 7), Defendants have met their burden of showing that they
are governmental officials whose positions involve the exercise of discretion. See,
e.g., Curtis v. Anthony, 710 F.3d 587, 594–600 (5th Cir. 2013) (per curiam)
(recognizing that police officers may be entitled to qualified immunity). Mindful

9

Plaintiff incorrectly asserts that the burden is on Defendants to demonstrate that
they are entitled to qualified immunity, insisting that Defendants are not entitled to
qualified immunity because they have “offer[red] insufficient evidence concerning
the underlying events forming the basis of Plaintiff’s complaints.” (Resp. at 11.)
However, Plaintiff misunderstands the qualified immunity analysis: While
Defendants bore the initial burden of pleading in good faith that they were
government officials entitled to qualified immunity, once they did so the burden
shifted to Plaintiff to put forth evidence to show that there are genuine issues of
material fact concerning the reasonableness of Defendants’ conduct. See Beck,
204 F.3d at 633–34 (“Beck argues that the burden rests on the defendants to
articulate facts to support their claim of immunity. Our well established summary
judgment jurisprudence clearly shows otherwise. The moving party is not
required to put forth evidence to meet its summary judgment burden for a claim of
immunity. It is sufficient that the movant in good faith pleads that it is entitled to
absolute or qualified immunity.”); Estate of Davis v. City of N. Richland Hills,
406 F.3d 375, 380 (5th Cir. 2005) (“We do not require that an official demonstrate
that he did not violate clearly established federal rights; our precedent places that
burden upon plaintiffs.”); Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 490
(5th Cir. 2001) (“[B]ecause Trooper Vargas pleaded qualified immunity as an
affirmative defense, the burden of negating the defense lies with Plaintiffs. Again,
they cannot rest on the pleadings; instead, they must show genuine issues of
material fact concerning the reasonableness of Trooper Vargas’ conduct.”).
26

of the fact that it is therefore Plaintiff’s burden to produce evidence to overcome
Defendants’ claim of qualified immunity, the Court notes at the outset that, while
each Defendant submitted a sworn affidavit detailing his actions on the night of
November 1, 2009, Plaintiff did not submit an affidavit of his own.10 The three
pieces of evidence that Plaintiff submitted in opposition to Defendants’ Motion
are: (1) sixteen pages excerpted from the transcript of Plaintiff’s October 30, 2012
deposition (Resp. Ex. 1 (“Zepeda Depo.”)); (2) a two-page medical report from
the offices of Dr. Pablo Guajardo (Resp. Ex. 2); and (3) the incident report filed by
Defendant Sizemore on November 10, 2009 (Resp. Ex. 3). Accordingly, the
Court looks to these three pieces of evidence,11 along with the evidence submitted
by Defendants,12 to determine whether Plaintiff has met his burden of creating a

10

The Court reiterates that Plaintiff appears to have misunderstood his burden
with regard to Defendants’ claim of qualified immunity. (See Resp. at 5 (arguing
that “Defendants have failed to sustain their burden of proof and persuasion in
regard to their assertion of qualified immunity and their Defendants’ Motion for
Summary Judgment must therefore be denied”).)
11
Because it is part of the record, the Court will look to Plaintiff’s entire
deposition for evidence to support his claims rather than merely the sixteen pages
he has excerpted.
12
Defendants also submitted the affidavit of former chief of police Albert Ortiz.
Plaintiff objects to Ortiz’s testimony on the ground that it goes to the ultimate
issue in this case: whether the amount of force Defendants used was reasonable.
(Resp. at 2.) Plaintiff does not specify which portions of Ortiz’s testimony he
finds objectionable. However, to the extent that Ortiz states opinions that
constitute legal conclusions, the Court has not relied upon those opinions; whether
Defendants’ actions were reasonable is a question for the Court alone. See
Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998) (“We can still
conclude, of course, that one expert accurately expresses what a reasonable police
27

genuine issue of material fact with regard to any of his § 1983 claims. For the
reasons that follow, the Court finds that Plaintiff has not met his burden.
1.

Excessive Force

Plaintiff argues that Defendants violated his Fourth Amendment
rights when they used excessive force in the course of his arrest. (Compl. ¶ 23.)
To defeat Defendants’ qualified immunity on this claim, Plaintiff must overcome
two levels of unreasonableness. First, Plaintiff must create a genuine question as
to whether Defendants “violated his constitutional right to be free from excessive
force,” meaning he “must show ‘(1) an injury, (2) which resulted directly and only
from a use of force that was clearly excessive, and (3) the excessiveness of which
was clearly unreasonable.’” Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir.
2013) (quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)); see also
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (addressing
simultaneously the questions of whether the force was “excessive” or
“unreasonable”). Second, even if Plaintiff can establish a violation, the Court

officer would do, but we are not forced to so conclude by the mere presence of an
expert’s opinion.”). The fact that some portions of Ortiz’s affidavit may contain
inadmissible legal conclusions does not preclude the Court from considering other
portions of the affidavit. See Lee v. Nat’l Life Assur. Co., 632 F.2d 524, 529 (5th
Cir. 1980) (“The rule is settled that on a motion for summary judgment a court
will disregard only the inadmissible portions of a challenged affidavit offered in
support of or opposition to the motion and will consider the admissible portions in
determining whether to grant or deny the motion.”).

28

must still “determine whether the law was clearly established at the time of
[Defendants’] conduct,” Ramirez, 716 F.3d at 377, such that “no reasonable
officer” would have used that quantum of force, Brosseau v. Haugen, 543 U.S.
194, 201 (2004).
Whether the force used was “clearly excessive” and “unreasonable”
depends on the “facts and circumstances of each particular case.” Graham v.
Connor, 490 U.S. 386, 396 (1989)). A court must make this determination “from
the perspective of a reasonable officer on the scene, rather than with ‘the 20/20
vision of hindsight.’” Ramirez, 716 F.3d at 377 (quoting Bush v. Strain, 513 F.3d
492, 502 (5th Cir. 2008)). Some relevant considerations include “whether the
suspect pose[d] an immediate threat to the safety of the officers or others, and
whether he [was] actively resisting arrest or attempting to evade arrest by flight.”
Id. As to the reasonableness inquiry, “the question is whether the officers’ actions
are ‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Id. at 397. In
applying this standard, courts are also directed to consider “the fact that police
officers are often forced to make split second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id. at 396–97. Again, this standard shields
“all but the plainly incompetent officers or those who knowingly violate the law,”
29

Malley, 475 U.S. at 341, protecting officers from the sometimes “hazy border
between excessive and acceptable force,” Saucier, 533 U.S. at 206.
Importantly for present purposes, “[u]nder § 1983, . . . a government
official can be held liable only for his own misconduct.” Carnaby v. City of
Houston, 636 F.3d 183, 189 (5th Cir. 2011) (citing Iqbal, 556 U.S. at 677). Thus,
in determining whether the use of force was clearly excessive and clearly
unreasonable, a court evaluates each officer’s actions separately, to the extent
possible. See Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir. 2007) (holding, in
§ 1983 case, that “[t]he district court’s decision to consider the officers’ actions
collectively because it found they acted in unison [went] beyond what prudence
and case law allows”).
i.

Defendant Sizemore

It is undisputed that when Officer Sizemore arrived on the scene,
there was a large and excited crowd in and around the elevator lobby of the
parking garage. Sizemore attests that when he arrived, he observed several large
groups of people both inside and outside the lobby area who were engaged in
physical altercations. (Sizemore Aff. at 1–2.) Defendant Sizemore further attests
that people were “pushing each other in and out of the lobby area.” (Id. at 1–2.)
Both the surveillance video and the YouTube video confirm that many of the
individuals in the lobby were fighting. Plaintiff does not contest this
30

characterization of the scene; he conceded during his deposition that the scene
could be described as a “melee” and acknowledged that police officers “should
have contained the situation.” (Zepeda Depo. 122:21–124:6.)
It is also undisputed that, by the time Sizemore first appeared on the
scene, (1) Plaintiff had already been involved in an altercation with three civilian
men who had punched him all over his body, including his ribs, head, and
shoulders (Zepeda Depo. 116:10–118:6); and (2) another officer or officers—not
Defendant Sizemore—were struggling with Plaintiff (Sizemore Aff. at 2; Zepeda
Depo. 119:7–120:3 (wherein Plaintiff explains that the first police officer to have
contact with him was a bicycle officer wearing shorts, which neither Defendant
was wearing)). Plaintiff also conceded that he had a “buzz” from the alcohol he
had drunk in the hour and a half leading up to the incident. (Id. at 39:24–40:9,
57:11–18.)
Defendant Sizemore states in his affidavit that it appeared to him that
Plaintiff was resisting arrest and that he believed that the other officers needed
assistance in restraining Plaintiff. (Sizemore Aff. at 2.) Sizemore attests that he
“identified [himself] to Zepeda and ordered him to place his hands behind his
back.” (Id.) Sizemore further asserts that “Zepeda refused to comply with [his]
orders,” “continued to pull his arms away and attempt to stand up,” and “tried to
grab [Sizemore] and another officer while trying to kick with his feet.” (Id.) In
31

light of Zepeda’s “aggressiveness and violent behavior, and his refusal to follow
commands,” says Sizemore, he “struck Zepeda in his side in an attempt to gain
compliance.” (Id.) Nevertheless, Sizemore attests that Plaintiff “continued to
ignore verbal commands and continued to push officers away . . . .” (Id.) The
surveillance video and the YouTube video are not inconsistent with Sizemore’s
description.
The only evidence Plaintiff produces to controvert Sizemore’s sworn
statements and the contents of the videos is his deposition testimony. However,
Plaintiff’s testimony does not actually conflict with Sizemore’s description of the
incident. Plaintiff asserts in his Response that it is an “uncontested fact[]” that
“Defendants arrived with many other police officers and began attacking
Plaintiff,” and he cites to page 48, lines 11–24, of his deposition. (Resp. at 3.)
However, setting aside the fact that Defendants quite plainly do contest Plaintiff’s
claim that they “attacked” him, Plaintiff completely mischaracterizes the content
of his deposition. That part of his deposition reads as follows:
Q.

Okay. All right. You can go ahead and – and then you can see, I
guess, a little bit of Officer Anguiano still in the frame at the very
edge. Do you see that, can you point to that?

A.

Yeah. And you’ll see when he’s trying to stop him from coming at
me, because he’s the one I think starts the whole thing by coming at
me. Look. You can see him get his arm and try to stop him from
coming at me. You never see me in an aggressive manner, attacking
nobody, nothing. They come at me – two other people come and just
attack me, take me to the floor. This guy and another guy that’s just
32

in free-world13 clothes are going to be down there doing stuff to me
too while –
(Zepeda Depo. 48:11–24.) This, of course, is the part of Plaintiff’s deposition in
which he describes how Officer Anguiano tried to prevent three non-defendants,
including the man in the yellow shirt, from attacking Plaintiff. (See also id.
113:7–24 (wherein Plaintiff reaffirms that no SAPD officers had had physical
contact with him by this point).) None of these individuals were officers of the
SAPD, and Defendants Sizemore and Barrientes were not even on the scene yet.
Indeed, just one minute later, Plaintiff testifies that when the police arrived, they
must have seen this scuffle and mistakenly believed that he was one of the
aggressors:
A.

Yeah. And the one in the yellow was just a parking attendant. That’s
all he is is a parking attendant, just to park the cars, and he came in
and doing an officer’s job. See, and I believe that’s the whole thing
that started the situation, because he came and attacked me. Officers
get there, they see them attack me on the floor, and then, bam, they
just attack me because they already seen me on the floor, you know,
and so they think I’m the problem, so they just go in there and try to
handle the problem, you know, but they never knew what really
happened.

(Zepeda Depo. 49:20–50:5 (emphasis added).) In other words, Plaintiff admits
that he was involved in a fight when the police arrived, concedes that the officers

13

Plaintiff uses the term “free-world clothes” to mean “plain clothes,” either
plain-clothes officers or civilians. (See, e.g., Zepeda Depo. 48:15–49:23, 58:24–
59:1, 116:20–25.) The videos show that both Defendants were wearing SAPD
uniforms on the night of the incident.
33

were “try[ing] to handle the problem,” and concedes that, based on what the
officers saw when they arrived, they may have thought that he was “the problem.”
(Id.) Again, the video shows that Defendants Sizemore and Barrientes were not
among these officers that arrived on the scene first.
At one point, Plaintiff appears to claim that Defendant Sizemore
struck him in the back of the head:
Q.

All right. Can you – I think I know the answer to this, but I need to
ask you: Can you tell us whether Officer Sizemore actually struck
you or kicked you at any time?

A.

He struck me in the back of the head.

Q.

Okay. He never kicked you though, right?

A.

No.

(Zepeda Depo. 170:10–16.) Seconds later, however, Plaintiff admits that he often
mixes up Defendant Sizemore and former-Defendant Bottiglieri. In fact, says
Plaintiff, he is not sure who hit him in the head and can only tell by looking at the
videotapes:
Q.

And how about Officer Bottiglieri, would – can you tell us what
physical contact he had with you?

A.

I get him and Sizemore confused because they look kind of familiar.
That’s why I – I get them kind of confused with each other. So I
don’t – I don’t – I don’t know what – I know – I could tell you by the
video who hit me, you know what I’m saying, but off the top of my
head, no, I can’t.

34

(Zepeda Depo. 170:10–171:7 (emphases added).) In other words, Plaintiff admits
that he does not have an independent memory of Defendant Sizemore hitting him
and that he relies on the tapes. However, in neither videotape can Defendant
Sizemore be seen striking Plaintiff in the head.14 Instead, the only person who can
be seen striking Plaintiff in the head is the unidentified, bald officer described
above. (See YouTube video at 0:32.) Moreover, earlier in his deposition, when
asked to identify the “ball-headed [sic]” man on the screen, Plaintiff stated, “I
think that’s Sizemore.” (Zepeda Depo. 153:11–19.) Again, Defendant Sizemore
had a full head of hair at the time of the incident; it was the other officer—not a
defendant in this case—who was bald. In other words, Plaintiff appears to have
been under the false impression that the bald man who hit him was Defendant
Sizemore15; and thus his own testimony, together with the videos, discredits his
claim that Defendant Sizemore struck him in the head. See Poole, 691 F.3d at 625

14

Plaintiff did not specify in his Response to Defendants’ Motion for Summary
judgment when in the video(s) this alleged strike can be seen. The Court has
viewed each video over fifty times and has been unable to find it.
15
Elsewhere, Plaintiff describes Sizemore as being about 5’10” tall and about 230
or 240 pounds. (Zepeda Depo. 111:23–111:1.) Someone of that height and
weight would have a Body Mass Index of 33 and would be classified as obese.
See Adult BMI Calculator, Center for Disease Control and Prevention,
http://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_
calculator/bmi_calculator.html (last accessed August 29, 2013). Judging from
both videos, however, Defendant Sizemore is of approximately the same build as
Plaintiff, who weighed 165 pounds at the time of the incident.
35

n.1 (noting that courts should view purported facts “‘in the light depicted by the
videotape’”).
Plaintiff makes just one other mention of Sizemore’s actions, stating
that Sizemore and two other officers picked Plaintiff up and moved him to the
corner of the room. (Zepeda Depo. 124:15-125:1.) This corresponds to the same
point in time: when Defendant Sizemore can be seen attempting to restrain
Plaintiff by holding his right arm and the bald officer can be seen hitting Plaintiff
in the upper back or head. In sum, Plaintiff has presented no evidence, not even
his own testimony, to contradict Defendant Sizemore’s description of the actions
he (Sizemore) took on November 1, 2009.
In light of all the circumstances, Defendant Sizemore’s actions were
objectively reasonable. Again, the crowd in the lobby was excited, and many
fights were taking place; it was important for the officers to defuse the situation as
soon as possible and prevent the conflict from escalating. Former Chief of Police
Ortiz states in his affidavit that SAPD officers “are trained to bring a melee under
control as quickly as possible in order to avoid the phenomenon known as ‘group
hysteria’ from inciting bystanders to become involved and escalating an already
dangerous situation.” (Ortiz Aff. at 4.) “Among the[se] strategies,” asserts Ortiz,
“is to target the instigators or most aggressive combatants and remove them from
the scene as quickly as possible.” (Id.) In this way, others are “discouraged from
36

joining in the illegal and/or dangerous conduct because they realize the police will
deal with their indiscretions quickly and arrest violators.” (Id.) The surveillance
video shows that the situation in the parking garage lobby was extremely chaotic
when Defendant Sizemore arrived, and Plaintiff appeared to be resisting a lawful
arrest. The situation was “tense, uncertain, and rapidly evolving,” Graham, 490
U.S. at 396, and Defendant Sizemore’s use of force was not “clearly excessive” to
the need to overcome Plaintiff’s apparent resistance to arrest and to lessen the risk
of group hysteria. See, e.g., Poole, 691 F.3d at 629 (holding that officer used
reasonable force when he tasered the plaintiff to effect an arrest, because the
plaintiff had “refus[ed] to turn around and be handcuffed, posed an immediate
threat to the safety of the officers and actively resisted the officers’ instructions”);
Collier v. Montgomery, 569 F.3d 214 (5th Cir. 2009) (holding that arresting
officer used reasonable force when he pushed suspect onto hood of police cruiser,
resulting in bruising and chest pain; suspect physically resisted officer’s attempt to
handcuff him).
ii.

Defendant Barrientes

Plaintiff also fails to overcome Defendant Barrientes’s qualified
immunity. Barrientes attests that on the night of the incident he “responded to an
officer in trouble call,” and as he approached the scene “there were several large
groups of people both inside and outside the lobby area who were engaged in
37

physical altercations.” (Barrientes Aff. at 1.) Barrientes further attests that he
“noticed several San Antonio police officers struggling with [Plaintiff],” who
“was kicking out his feet while trying to break free from the officers.” (Id. at 1–
2.) Barrientes claims that he “grabbed control of [Plaintiff’s] right arm while he
continued to resist” and that he “struck [Plaintiff] in the chest in order to effect an
arrest.” (Id. at 2.) When Plaintiff “continued to struggle despite continued orders
to stop resisting,” Barrientes attests that he “moved to [Plaintiff’s] left side and
placed him in a restraint hold using [his] right arm to control and bring [Plaintiff]
to the ground.” The surveillance video shows that Barrientes held Plaintiff in this
manner for approximately twelve seconds, while other officers attempted to
control Plaintiff’s flailing legs. (Id.) Barrientes states that, “[w]ith the help of
other officers, [he] was able to turn [Plaintiff] onto his stomach.” (Id.) Once the
officers have flipped Plaintiff onto his stomach, the surveillance video shows
Barrientes pinning Plaintiff to the ground with his knee while four other officers
attempt to handcuff Plaintiff. Barrientes attests that he stood up as soon Plaintiff
was handcuffed (Barrientes Aff. at 2), which the video shows was approximately
fifteen seconds later. The video also shows that Plaintiff immediately attempted
to flip back over, leading Barrientes to roll Plaintiff back onto his stomach and
again use his knee to pin Plaintiff to the ground. (Id.)

38

Again, Plaintiff does not present much evidence to controvert
Barrientes’s description of that night’s events. In fact, Plaintiff testified that he
could not say whether Barrientes had had any contact with him at all:
Q.

And how about Officer Barrientos [sic], can you tell us what physical
contact he had with you?

A.

No, I can’t.

(Zepeda Depo. 170:17–19.) In other words, Plaintiff does not explicitly contest
any of Barrientes’s assertions or clearly state that Defendant Barrientes is
responsible for a particular injury.
Nevertheless, construing all evidence in favor of the non-movant, as
the Court must, Plaintiff does refer to an action that can be traced to Barrientes:
He testifies that an officer pinned him down with his knee and that this injured his
neck:
Q.

What – how was your neck injured?

A.

Well, I guess when I’m right here, the officer has his knee and his
whole weight – I’m like this. I’m already handcuffed and he has his
whole body weight and his knee on my neck and my face.

(Zepeda Depo. 68:20–24.) Similarly, while Plaintiff never discusses the choke
hold that the surveillance video shows Defendant Barrientes using on him (either
by describing the hold Barrientes used or by describing any pain he experienced),

39

the Court will consider the choke hold in its analysis of the force Barrientes
used.16

16

The Court emphasizes that Plaintiff never testifies that the named Defendants
(as opposed to other individuals or the SAPD officers as a group) did anything to
him that was not captured on the surveillance video. Instead, Plaintiff merely
makes broad, general statements that all of the officers were constantly hitting and
kicking him, a claim that is not supported by the videos. Indeed, Plaintiff
conceded at his deposition that he was not even sure that any SAPD officer—
much less the named Defendants—had ever kicked him:
Q.

[H]e [an unidentified police officer] wasn’t striking you at that point,
was he?

A.

I think he was.

Q.

How could you distinguish between him and any of the other three
individuals that were there as the –

A.

Because he already stood up.

Q.

All right. Well, how can you distinguish between the police officer
and the other – the individual in the yellow shirt and the other
individual as to who was attacking you?

A.

I guess I was just getting hit all over the body. I just – just – I guess
that’s it.

[...]
Q:

So everything leading up to [when you were handcuffed], you didn’t
know who was doing what?

A:

No. I just know I was getting hit by all sorts of people.

[...]
Q.

Did any law enforcement officer, during this entire incident, kick
you, other than [the unidentified individual on the YouTube video]?

A.

I can’t say yes and I can’t say no. I mean, I—I just know that I got
hit a lot of times.

[...]
40

a. Injury Resulting Directly and Solely from
Defendant’s Actions
First, the Court notes that Plaintiff has not produced medical records
to support his contention17 that he suffered more than a de minimis injury to his
neck or throat that resulted directly and solely from Defendant Barrientes’s
actions. See Ramirez, 716 F.3d at 377 (explaining that a plaintiff must show an
injury that “resulted directly and only from a use of force that was clearly
excessive”) (emphases added); Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir.
2005) (“Although we no longer require ‘significant injury’ for excessive force
claims, the injury must be more than de minimis.”) (citation omitted) (quoting
Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). The only medical
records Plaintiff produces are from a visit to Dr. Pablo Guajardo on May 6, 2010,
over seven months after the November 1, 2009 incident. (See Resp. Ex. 2.)
Notably, while Plaintiff asserted in his October 30, 2012 deposition that he still
suffered from all the same injuries he allegedly incurred the night of the

Q.

[Y]ou can’t say that any San Antonio Police officer kicked you that
night, correct?

A.

Correct. [ . . . ]

(Zepeda Depo. 122:8–20; 129:2–5; 133:9–13.)
17

Again, the Court merely presumes that Plaintiff is alleging that Defendant
Barrientes injured his neck, because Plaintiff does not explicitly assert that
Defendant Barrientes is responsible for a particular injury or even that he knows
what contact Barrientes had with him.
41

incident—“[e]verything,” including “throat problems” (Zepeda Depo. 76:21–
77:8)—Dr. Guajardo’s notes directly contradict this assertion. Dr. Guajardo noted
on May 6, 2010—over five months before Plaintiff made that statement during his
deposition—that Plaintiff’s neck was “supple.” (Resp. Ex. 2.) Dr. Guajardo made
no other mention of Plaintiff’s neck or throat under the heading “Physical
Examination,” which contains notes from a full-body examination. (Id.) Notably,
while Dr. Guajardo wrote that Plaintiff had claimed the November 1, 2009 arrest
had hurt his shoulder, he did not write that Plaintiff claimed the incident had hurt
his neck or throat. (Id.)
While Plaintiff asserts that he went to the emergency room on the day
following the incident (Zepeda Depo. 14:9–12; id. at 70:5–22), he has not
produced medical records from that visit or explained why such records are not
available. Defendants, however, have produced medical records from Plaintiff’s
visit to Dr. Donald Wong on December 8, 2009, five weeks after the incident.
(Mot. Ex. H at 10.) Again, while Plaintiff claims his injuries continued to plague
him even in 2012, Dr. Wong did not mention that Plaintiff had any neck or throat
injury. (Id.) Indeed, the only symptom Dr. Wong notes is left shoulder pain,
which he writes that Plaintiff has been suffering for just two weeks—not five
weeks, as would have been the case had Plaintiff been injured on the night of
November 1, 2009. (Id.) Once again, therefore, Plaintiff’s medical records
42

directly contradict his vague assertions that Defendant Barrientes injured him—
whether that injury was to his neck, throat, or shoulder—on the night of
November 1, 2009.
Just as importantly, Plaintiff has produced no evidence to suggest that
any injury he may have suffered resulted “only” from Defendant Barrientes’s
actions. Particularly in light of (1) Plaintiff’s own testimony about the severe
beating he received from the three civilian men who are not defendants in this
case18 and (2) Plaintiff’s failure even to make a sworn statement that a particular

Q.

And are all three of those [non-Defendants] throwing punches at you
during that time?

A.

Yes, sir.

Q.

Okay. And are they kicking you also?

A.

Yes, sir.

Q.

And are they – where are they hitting you with those punches and
kicks?

A.

My upper body and my lower body, all over.

Q.

All over you body?

A.

Yeah.

Q.

And how many – and I take it that they’re throwing those pretty fast
and pretty hard; would that be correct?

A.

Yes, sir.

Q.

Okay. And I take it that they’re kicking you pretty fast and pretty
hard; is that true also?

A.

Yes, sir.

Q.

And they’re kicking you all over your upper body and your lower
body at that time?
43

injury resulted directly and solely from Defendant Barrientes’s actions, Plaintiff
has failed to create a genuine factual dispute as to the these elements. See
McClure v. Boles, 490 F. App’x 666, 667 (5th Cir. 2012) (“[A] nonovant may not
overcome the summary judgment standard with conclusional allegations,
unsupported assertions, or presentation of only a scintilla of evidence.”) (citing
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).
b. Objective Unreasonableness
Even assuming arguendo that Plaintiff did suffer some
non-de minimis injury that resulted directly and solely from Defendant
Barrientes’s actions, Plaintiff simply has not created a genuine fact question as to
whether Barrientes’s actions were objectively unreasonable under the
circumstances.
First, Plaintiff has produced no evidence to suggest that Barrientes’s
use of a chokehold was objectively unreasonable. “[C]hoke-holds in themselves
are not legally impermissible.” Stogner v. Sturdivant, 515 F. App’x 280, 281 n.1
(5th Cir. 2013). Instead, the Fifth Circuit has repeatedly held that it was not

A.

Yeah, and on my ribs.

Q.

And are they also hitting you in the head?

A.

Yeah, back of the head, on the shoulders. I mean, I got hit
everywhere.

(Zepeda Depo. 117:9–118:6.)

44

objectively unreasonable for a police officer to employ a choke hold where the
suspect was physically resisting arrest. In Gassner v. City of Garland, 864 F.2d
394, 400 (5th Cir. 1989), for example, the Fifth Circuit upheld an officer’s use of a
chokehold where the plaintiff had “resisted [the officer’s] attempt to spread-eagle
him against the car, and . . . this resistance continued until [the officer] put him in
a chokehold, wrestled him to the ground, and handcuffed him.” Id. at 400; see
also Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000) (agreeing that
“nothing about the use of . . . a choke-hold was objectively-unreasonable conduct
where the suspect physically resisted arrest”).
In this case, Barrientes only placed Plaintiff in a choke hold after
many officers working together were unsuccessful in subduing Plaintiff, who
appeared to be resisting arrest. Even then, Barrientes only held Plaintiff in a
choke hold for twelve seconds, releasing him as soon as he and the other officers
had flipped Plaintiff onto his stomach. Plaintiff did not testify that the choke hold
prevented him from breathing, that he lost consciousness, or that Barrientes did
anything that would have made this particular choke hold more dangerous than
any other. Indeed, as previously noted, Plaintiff does not even mention or
describe the choke hold at any point in his deposition; he merely states that he
“got choked a lot of times” without clarifying whether he was choked by

45

Defendant Barrientes, another officer, or one of the three civilian men who
attacked him. (Zepeda Depo. 133:9–16.)
In addition, while Plaintiff claims that he “didn’t attack back” at any
point, even before he realized the men were police officers (Zepeda Depo.
128:15–129:17; id. at 155:6–11; id. at 139:2–18), his own testimony indicates that
he did act in such a way that a reasonable officer could have believed he was
resisting arrest. For example, Plaintiff agreed at his deposition that he was not
compliant with the officers’ attempts to take his arms and put them behind his
back. (Id. at 176:23–177:2; id. at 178:2–18.) He also testified that when the
officers attempted to handcuff him he “turn[ed] around . . . because [he] didn’t
even know they were cops” and acknowledged that this is what led them to “jump
on [him] again . . . .” (Id. at 156:4–12; see also id. 158:1–5 (“Until I got
handcuffed is when I knew I was – there was SAPD, and then that’s when I turned
around and, boom, they went on me again.”).) The surveillance video confirms
that Plaintiff struggled with the officers, flailing his arms and legs around,
requiring many officers to work together to subdue him. See Poole, 691 F.3d at
631 (admonishing the dissent for “accept[ing] [the plaintiff’s] assertion that he did
not actively resist the officers’ commands” when that assertion was “plainly
contradicted by the videotape”; in so doing, the dissent had “fail[ed] to consider
[the plaintiff’s] actions from the perspective of a reasonable officer”). In light of
46

the circumstances, therefore, a reasonable officer could have decided that a choke
hold was necessary to subdue Plaintiff.
Similarly, there is no bright-line rule forbidding police officers from
using a knee to pin an arrestee to the ground. In Castillo v. City of Round Rock,
Texas, for example, the Fifth Circuit held that officers had not used excessive
force where they had restrained plaintiff “in the prone position on the ground,
eventually handcuffing his hands behind his back,” even though (1) one officer
and a bystander “remained on [plaintiff’s] back for four to six minutes”; (2) the
officer “shoved his knee in the back of [plaintiff’s] neck and kept it there for some
five to ten minutes”; and (3) the plaintiff later died of asphyxiation. 177 F.3d 977,
at *1 (5th Cir. 1999) (unpublished). The Court explained that the plaintiff had
“actively resist[ed] by kicking and yelling” and had bloodied one officer’s nose
“in a manner that a reasonable officer could perceive as hostile.” Id. at *3. The
officers had not acted unreasonably when they placed the plaintiff in the prone
position and “incapacitat[ed] him as quickly and professionally as possible, by
climbing on top of his back and securing his hands and legs . . . .” Id. Similarly,
in Deshotels v. Marshall, 454 F. App’x 262 (5th Cir. 2011), the court held that
police officers acted reasonably when one officer kneeled on arrestee’s right
shoulder, another straddled his back and pulled on his arm, and the third folded
arrestee’s legs together to stop him from kicking—even though the arrestee died
47

of asphyxia shortly thereafter. Id. at 268. The court noted that the arrestee, a large
man, had resisted arrest, first by attempting to run away and then by continuously
“pulling his arms under his chest.” Id..
In this case, a reasonable officer could have believed that it was
appropriate to pin Plaintiff to the ground with his knee. First, as previously
described, a reasonable officer could have interpreted Plaintiff’s actions as
resistance to arrest: Barrientes asserts that Plaintiff “thrashing around on the
ground, turning on his back and stomach” (Barrientes Aff. at 2), and Plaintiff
himself admitted that he pulled his arms away and attempted to turn around when
the officers tried to handcuff him. The video shows that Plaintiff was putting up
such a struggle that it took multiple officers—as many as seven, at one point—to
bring him under control. Thus, just as in Castillo and Deshotels, a reasonable
officer could have believed that Plaintiff was resisting arrest with sufficient
physical force that it was necessary and appropriate to pin him to the ground with
a knee. The video shows that Barrientes did so at first for a mere fifteen seconds
and that he stood up as soon as Plaintiff was handcuffed. This, of course, is a
much less serious use of force than the actions found to be reasonable in Castillo,
wherein the officer “shoved his knee in the back of [plaintiff’s] neck and kept it
there for some five to ten minutes.” 177 F.3d 977, at *1 (emphasis added).
Moreover, the fact that Barrientes stood up as soon as Plaintiff was handcuffed
48

strongly suggests that Barrientes used his knee only insofar as it was necessary to
effect Plaintiff’s arrest. Thus, in light of Plaintiff’s apparent resistance to arrest,
Barrientes’s decision to pin Plaintiff to the floor with his knee, freeing his hands to
help with handcuffing Plaintiff, was neither excessive nor objectively
unreasonable.
While Barrientes pinned Plaintiff with his knee again a few seconds
later, he did so only after Plaintiff again appeared to be resisting arrest: The
surveillance video shows Plaintiff flailing his legs and attempting to flip himself
over onto his back as soon as the officers stand up. Moreover, while Barrientes
held Plaintiff in the prone position for longer than he did the first time, Plaintiff
does not testify that he was pinned in that manner for longer than a few minutes,
that he could not breathe, that he was screaming in pain, or that he was pleading
with Barrientes to let him sit up. Instead, Plaintiff confirmed that he “never said
anything” to Barrientes or the other officers while he was pinned to the ground
and that he was permitted to sit up shortly thereafter:
Q.

After you realized that you were dealing with law enforcement
officers, did you say anything to them?

A.

Yeah. What did I do wrong?

Q.

Okay. But up – okay. Anything else?

A.

No.

Q.

That’s it?

A.

Yeah. I was just, What did I do, why am I getting arrested? That’s
when I was sitting down over here.
49

Q.

Okay. How about prior to the – you’re talking about actually after
everything had calmed down and you were actually sitting up next to
the elevator wall?

A.

Yeah. Yeah.

Q.

How about prior to that time?

A.

No. They just stayed like that on me.

Q.

Okay. And you never said anything to them?

A.

No.

(Zepeda Depo. 159:10–160:3.) Plaintiff concedes that he was not mistreated once
he was permitted to sit up. (Id. at 197:23–198:3.)
Plaintiff asserted during his deposition that Barrientes “[had] his
whole body weight and his knee on my neck and my face” (Zepeda Depo. 68:20–
24.), though it is not clear whether Plaintiff is referring to the first knee-pin or the
second. In the surveillance video, Barrientes appears to be crouching in such a
way that much of his weight is supported by his left foot. Nevertheless, even
assuming the truth of Plaintiff’s allegation—i.e., assuming that Barrientes did use
his whole body weight to pin Plaintiff to the ground—Plaintiff’s excessive-force
claim against Barrientes fails.
First, for the reasons given above, Plaintiff has not provided
competent summary-judgment evidence of an injury that resulted directly and
solely from Barrientes’s actions, meaning he has not created a genuine factual
dispute regarding an essential element of an excessive-force claim.

50

Second, even assuming arguendo that Plaintiff had shown such an
injury, he has not overcome Barrientes’s qualified immunity, because he has not
shown that Barrientes’s alleged actions were objectively unreasonable under
clearly established law at the time of the incident. See Pfannstiel v. City of
Marion, 918 F.2d 1178, 1183 (5th Cir. 1990) (“Even if a defendant’s conduct
actually violates a plaintiff’s constitutional rights, the defendant is entitled to
qualified immunity if the conduct was objectively reasonable.”). While the right
to be free from the use of excessive force was, of course, clearly established, it
was not clear at the time of the incident (nor is it now) that pinning someone who
was resisting arrest with one’s knee—even applying one’s “whole weight”—
would constitute excessive force. Again, the Fifth Circuit held in Castillo that
officers were entitled to qualified immunity even where one had “shoved his knee
in the back of [plaintiff’s] neck and kept it there for some five to ten minutes” (and
even where the plaintiff later died of asphyxiation), because the plaintiff had been
struggling with officers and resisting arrest. 177 F.3d 977, at *1. Here, in light of
the fact that Plaintiff (1) had been resisting arrest to such a degree that multiple
officers had to work together to subdue him and (2) had flailed his legs and
attempted to roll himself over even after he had been handcuffed and the officers
had stood up, the Court simply cannot conclude that “no reasonable officer” in
Defendant Barrientes’s situation would have thought that he needed to use most of
51

his weight to pin Plaintiff to the ground until the situation was fully under control.
Brosseau, 543 U.S. at 201; see also Zarnow, 500 F.3d at 407–08 (“If reasonable
public officials could differ as to whether the defendants’ actions were lawful, the
defendants are entitled to immunity.”) (citing Malley, 475 U.S. at 341) (emphasis
added); Thompson, 245 F.3d at 457 (“The defendant’s acts are held to be
objectively reasonable unless all reasonable officers in the defendant’s
circumstances would have then known that the defendant’s conduct violated the
United States Constitution . . . .”). At most, Defendant Barrientes’s actions fall
within that “hazy border between excessive and acceptable force,” Saucier, 533
U.S. at 206, which is precisely the kind of situation in which qualified immunity is
meant to protect police officers from civil liability.
For the reasons given, Defendant Barrientes is entitlemed to qualified
immunity on Plaintiff’s excessive-force claim.19
2.

False Arrest

Plaintiff alleges that Defendants Barrientes and Sizemore violated his
Fourth Amendment rights when they falsely arrested and detained him.
(Compl. ¶ 23.) Again, however, both Defendants are entitled to qualified
immunity.

19

To the extent that Plaintiff asserts that Defendants violated his Fourth
Amendment rights by seizing him in an unnecessarily cruel or painful manner, this
claim is subsumed by Plaintiff’s excessive-force claim. Accordingly, Defendants
are also entitled to qualified immunity as to this claim.
52

An arrest is unlawful unless it is supported by probable cause. Flores
v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004). “Probable cause is present
‘when the totality of the facts and circumstances within a police officer’s
knowledge at the moment of arrest are sufficient for a reasonable person to
conclude that the suspect had committed or was committing an offense.’” Vance
v. Nunnery, 137 F.3d 270, 276 (5th Cir. 1998) (quoting United States v. Levine,
80 F.3d 129, 132 (5th Cir. 1996)). Thus, Defendants are entitled to qualified
immunity for their arrest of Plaintiff “‘if a reasonable person in their position
could have believed he had probable cause to arrest.’” Deville v. Mercantel, 567
F.3d 156, 166 (5th Cir. 2009) (citing Goodson v. City of Corpus Christi, 202 F.3d
730, 740 (5th Cir. 2000)).
For the reasons given above, a reasonable person in Defendants’
position could have believed he had probable cause to arrest Plaintiff. Again, by
the time the Defendants arrived on the scene, many people were fighting in the
lobby, and other officers were struggling with Plaintiff. Plaintiff appeared to be
resisting those officers’ attempts to place handcuffs on him. Even Plaintiff
conceded that it probably appeared to the police that he had been fighting with
other men or even attacking his female friend:
A.

There was a whole bunch of females there but, you know, it was
Jessica and that girl that were, you know, that had started, you know,
kind of arguing. And as soon as they started arguing, I said – he told
us to go in that building and then he tried keeping this girl in there;
53

well, then, this girl was trying to come in here, she’s trying to go out,
I’m trying to hold her, and then, I guess they think I’m probably
doing something to Jessica, and that’s when the cops just started, you
know…
(Zepeda Depo. 41:12–21 (emphasis added).)
A.

Yeah. And the one in the yellow was just a parking attendant. That’s
all he is is a parking attendant, just to park the cars, and he came in
and doing an officer’s job. See, and I believe that’s the whole thing
that started the situation, because he came and attacked me. Officers
get there, they see them attack me on the floor, and then, bam, they
just attack me because they already seen me on the floor, you know,
and so they think I’m the problem, so they just go in there and try to
handle the problem, you know, but they never knew what really
happened.

(Zepeda Depo. 49:20 – 50:5 (emphasis added).)
In light of these circumstances, a reasonable officer could have
believed that he had probable cause to arrest Plaintiff for, inter alia, assault and
resisting arrest. Accordingly, Defendants are entitled to qualified immunity on
Plaintiff’s false-arrest claim.
3.

Failure to Intervene

Plaintiff alleges that Defendants violated his Fourth Amendment
rights by failing to intervene where such intervention would have prevented
Plaintiff’s injuries. (Compl. ¶ 23.) “[A]n officer may be liable under § 1983
under a theory of bystander liability where the officer ‘(1) knows that a fellow
officer is violating an individual's constitutional rights; (2) has a reasonable
opportunity to prevent the harm; and (3) chooses not to act.’” Whitley v. Hanna, 54

-- F.3d ----, 2013 WL 4029134, at *11 (5th Cir. Aug. 8, 2013) (quoting Randall v.
Prince George’s Cnty., Md., 302 F.3d 188, 204 (4th Cir. 2002)); accord Hale v.
Townley, 45 F.3d 914, 919 (5th Cir. 1995).
Again, however, Plaintiff simply has not presented sufficient
evidence to overcome Defendants’ qualified immunity. While a
failure-to-intervene claim implies that a defendant stood idly by while a fellow
officer used clearly excessive force on a plaintiff, the two videos flatly contradict
any such notion. At the time of the kick by the unidentified officer, Sizemore can
clearly be seen looking in a different direction, and Barrientes was not even on the
scene yet. While Sizemore may have seen the bald officer hitting Plaintiff, there
is no reason to think that Sizemore had the opportunity or ability to stop him: The
officer acted over the course of just seconds and at a time when the lobby was full
of people and the situation was very chaotic. Nor is there any reason to believe
that Defendants witnessed other incidences of excessive force and failed to act
when doing so was clearly unreasonable. See Hale, 45 F.3d at 918 (finding that
plaintiff had raised a genuine issue of material fact as to whether defendant had
failed to intervene where defendant “stood by and laughed as [another officer]
slammed [plaintiff] against the car; rammed his fist into [plaintiff’s] testicles; and
repeatedly tried to slam [plaintiff’s] head into the car”). Instead, as described
above, the videos make clear that by the time the two Defendants arrived on the
55

scene, their fellow officers were attempting to subdue Plaintiff, and Defendants
had reason to believe that Plaintiff had either recently committed a crime and/or
was resisting arrest. Many fights were taking place in the lobby, and the officers
were working quickly to control the situation. In addition, the surveillance video
does not support Plaintiff’s assertion that the officers continuously punched,
kicked, and choked him. See Carnaby, 636 F.3d at 187 (“A court . . . need not
rely on the plaintiff’s description of the facts where the record discredits that
description but should instead consider the facts in the light depicted by the
videotape.”) (internal quotations omitted). Thus, Plaintiff has provided no
evidence that Defendants Sizemore and Barrientes were aware of any other
officers using excessive force on Plaintiff or that they failed to stop other officers
from using excessive force even though they had the opportunity to do so. See
Whitley, 2013 WL 4029134, at *11. Under the totality of the circumstances with
which the officers were confronted, Defendants’ actions were objectively
reasonable, and they are entitled to qualified immunity on this claim.
B.

Plaintiff’s Malicious-Prosecution Claim Fails as a Matter of Law
Plaintiff alleges that Defendants violated his Fourth Amendment

rights by falsely and maliciously charging him with the commission of crimes
without probable cause to believe that such crimes had occurred. However, this
argument is foreclosed by the Fifth Circuit’s decision in Castellano v. Fragozo,
56

352 F.3d 939, 958 (5th Cir. 2003). In Castellano, the Court noted that initiating
criminal charges without probable cause may set in motion events that run afoul of
an explicit constitutional protection—the Fourth Amendment if the accused is
seized and arrested, for example, or other constitutionally secured rights if a case
is pursued further. However, the Fifth Circuit held that there is no freestanding
claim under 42 U.S.C. § 1983 for malicious prosecution. Id. at 945; see also
Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (granting summary
judgment on plaintiff’s § 1983 malicious-prosecution claim because such a claim
is not “independently cognizable” in light of the Fifth Circuit’s holding in
Castellano); Price v. City of San Antonio, Tex., 431 F.3d 890, 895 (5th Cir. 2005)
(acknowledging “Castellano’s conclusion that ‘malicious prosecution’ alone does
not state a federal claim”). In this case, Plaintiff has not alleged that he suffered
any constitutional violation as a result of the allegedly malicious prosecution: The
charges were eventually dropped, and Plaintiff did not serve any jail time based on
those charges. See Gonzalez v. City of Corpus Christi Tex., Civ. A. C-10-321,
2011 WL 147741, at *4 (S.D. Tex. Jan. 18, 2011) (holding, under Castellano, that
“[t]he allegations that Defendants charged Plaintiff with resisting arrest, search or
transport, and two counts of felony assault are not alone enough to support a
§ 1983 malicious prosecution claim, even if Defendants lacked probable cause and
even if the charges terminated in Plaintiff's favor”; plaintiff had to show that the
57

initiation of criminal charges set in motion events that ran afoul of an explicit
constitutional protection). While Plaintiff asserts that he has satisfied the
requirements described in Castellano by pleading that he was subjected to
excessive force and unlawful arrest on November 1, 2009 (Resp. at 17), those
events all took place before the allegedly malicious prosecution, and thus any
constitutional violation alleged to have occurred that evening could not have
resulted from the prosecution itself. Accordingly, Plaintiff’s attempt to assert a
freestanding § 1983 malicious-prosecution claim fails as a matter of law.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion
for Summary Judgment.
IT IS SO ORDERED.
DATED: San Antonio, Texas, August 30, 2013.

_____________________________
David Alan Ezra
Senior United States District Judge

58