Ducharme-Romero et al v. Chavarria

Filing 10

ORDER Plaintiffs to file a response by 1/6/14, re 7 MOTION to Dismiss. Signed by Judge Xavier Rodriguez. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARK ROMERO and
HEATHER DUCHARME-ROMERO,
Plaintiffs,
v.
BEXAR COUNTY and
DEPUTY SHERIFF CHAVARRIA,
Defendants.

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Civil Action No. SA-13-CA-0495-XR

ORDER
On this date, the Court considered Defendants’ motion to dismiss and in the alternative
for summary judgment. Doc. No. 7.

After careful consideration, the Court GRANTS the

motion to dismiss as against Defendant Bexar County. With the respect to the claim against
Deputy Sherriff Chavarria, Plaintiffs are ORDERED to file a response to Defendants’ motion for
summary judgment on or before December 24, 2013.
DISCUSSION
This case arises out of an incident in which Deputy Sherriff Chavarria shot pro se
Plaintiffs’ pet dog, Licker, at their home. Plaintiffs allege that this constitutes a violation of their
Fourth Amendment right to be free of unreasonable seizures of their property. Doc. No. 4.
Plaintiffs have brought suit under § 1983 against both Deputy Chavarria in his individual
capacity and against Bexar County.

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With respect to the individual capacity claim, Plaintiff has not responded to Defendants’
motion for summary judgment on the basis of qualified immunity. Government officials are
protected from civil liability under the doctrine of qualified immunity if their conduct violates no
“clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982). When a governmental actor pleads
qualified immunity, the burden shifts to the Plaintiff to show that the doctrine does not apply.
Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir. 1992).

To overcome a qualified immunity

defense, a plaintiff must show: (1) a violation of a clearly established right; and (2) that the
official's conduct was objectively reasonable under clearly established law existing at the time of
the incident. Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001).
In this case, Deputy Chavarria does not argue that the shooting of a pet dog cannot
constitute a violation of a clearly established right. Instead, Deputy Chavarria asserts that his
conduct was “objectively reasonable under clearly established law existing at the time of the
incident.” Doc. No. 7. Deputy Chavarria argues that he shot the dog out of a reasonable fear for
his own safety. Id. As evidence, Defendants have included affidavits from Deputy Chavarria
and Deputy Phillips, another officer that was also present at the scene. To defeat this motion for
summary judgment, Plaintiffs must put forward some competent evidence that interjects a
genuine issue of material fact.1 FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-252 (1986). Because Plaintiffs are pro se, the Court will decline to rule on Defendants’
motion for summary judgment until Plaintiffs have a chance to respond.
With respect to Plaintiffs’ claims against Bexar County, Plaintiffs have failed to state a
claim upon which relief may be granted. In general, municipalities are not vicariously liable for
the actions of their employees under § 1983. Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996).
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This can take the form of a sworn affidavit recounting Plaintiffs’ version of the events.

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A municipality only faces liability under § 1983 “when execution of a government's policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts injury....” Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694
(1978). To establish municipal liability, a plaintiff must prove: (1) the existence of an official
policy (or custom), of which, (2) a policy maker can be charged with actual or constructive
knowledge, and (3) a constitutional violation whose “moving force” is that policy (or custom).
Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).
In this case, Plaintiffs have not sufficiently alleged the elements of a Monell claim against
the County.

They do not allege that the County has a policy of unlawfully seizing pets.

Plaintiffs’ complaint could be liberally construed as asserting that the County has as a custom of
unreasonably seizing pets. Doc. No. 4. However, for municipal liability to attach based upon a
custom, there must be more than just an isolated incident of unlawful conduct. City of Oklahoma
City v. Tuttle, 471 U.S. 808 (1985). Other than the incident with Deputy Chavarria, Plaintiffs
have not alleged any other instance of similar conduct on behalf of Bexar County employees.
Plaintiffs have therefore failed to allege that the custom and practice of unreasonably killing pets
that is “so persistent and widespread” that it can be attributed to the municipality. Pembaur v.
Cincinnati, 475 U.S. 469. (1986) (internal citations omitted).
CONCLUSION
Plaintiffs are ORDERED to file a response to Defendants’ motion for summary judgment
on the basis of qualified immunity on or before January 6, 2014. This response should include
competent evidence showing that Deputy Chavarria’s conduct was not objectively reasonable.
Failure to file a response may result in the claim against Deputy Chavarria being dismissed. In
light of the foregoing analysis, Plaintiffs’ claim against Bexar County is DISMISSED.

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SIGNED this 5th day of December, 2013.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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