Castro v. Salinas

Filing 45

MEMORANDUM OPINION AND ORDER. Signed by Judge Jason K. Pulliam. (mgr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOANNA CASTRO,
Plaintiff,
v.

No. 5:18-cv-00312-JKP-ESC

ALBERT SALINAS,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Alejandro 1 Salinas’s (“Salinas”) Motion For Summary
Judgment (ECF No. 39) to which Plaintiff Joanna Castro (“Castro”) responded (ECF No. 43) and
Salinas replied (ECF No. 44). After due consideration, the Court grants the motion.
BACKGROUND
Castro’s operative complaint alleges claims against Salinas pursuant to 42 U.S.C. § 1983.
The events underlying this civil rights action are described in the Court’s prior orders, in
particular the order of June 4, 2019, in which the Honorable David Alan Ezra dismissed Castro’s
claims against Olmos Park Chief of Police Rene Valenciano and the City of Olmos Park. ECF
No. 32. In short, the events concern a police encounter with Jack Miller (“Miller”), a Second
Amendment activist, which Castro recorded and live-streamed. Castro’s claims against Salinas
for excessive force, retaliation, and common law assault are the subject of this motion for
summary judgment.

Castro’s Second Amended Complaint notes she misnamed Defendant Salinas in her Original Complaint as “Alb ert
Salinas.” Castro states that a conversation with the Olmos Park Police Department confirmed Officer Salinas ’s first
name is Alejandro. ECF No. 17 ¶ 3.
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LEGAL STANDARD
The Court will grant summary judgment if the record shows there is no genuine dispute
as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A dispute is “genuine” if the evidence is sufficient for a reasonable jury to return a
verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010). “A fact is material only if
its resolution would affect the outcome of the action.” Wiley v. State Farm Fire & Cas. Co., 585
F.3d 206, 210 (5th Cir. 2009). Because there must be a genuine dispute of material fact, “the
mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson, 477 U.S. at 247-48. There is no
genuine dispute for trial when “the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586‑87 (1986)).
The moving party bears the initial burden of informing the court of the basis for the
motion and of identifying those portions of the record which demonstrate the absence of a
genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Adams v.
Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). Once the moving party meets this
burden, the nonmoving party must “go beyond the pleadings” and designate competent summary
judgment evidence “showing that there is a genuine [dispute] for trial.” Adams, 465 F.3d at 164;
Matsushita, 475 U.S. at 585–87. The parties may satisfy their respective burdens by “tendering
depositions, affidavits, and other competent evidence.” Topalian v. Ehrman, 954 F.2d 1125,
1131 (5th Cir. 1992); accord Fed. R. Civ. P. 56(c).

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When ruling on a motion for summary judgment, the Court must view all facts and
inferences in the light most favorable to the nonmoving party and resolve all disputed facts in
favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir.
2005). A court “may not make credibility determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Anderson, 477 U.S. at 254–55. However, at summary judgment, a court may assign
greater weight to “facts evident from the video recordings taken at the scene.” Griggs v. Brewer,
841 F.3d 308, 312 (5th Cir. 2016) (quoting Carnaby v. City of Houston, 636 F.3d 183, 187 (5th
Cir. 2011)). When the nonmoving party fails “to address or respond to a fact raised by the
moving party and supported by evidence, the court may consider the fact as undisputed ” and
“[s]uch undisputed facts may form the basis for a summary judgment.” Broadcast Music, Inc. v.
Bentley, No. SA-16-CV-394-XR, 2017 WL 782932, at *2 (W.D. Tex. Feb. 28, 2017).
Furthermore, the courts have “no duty to search the record for material fact issues.” RSR Corp. v.
Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010); accord Hernandez v. Yellow Transp., Inc., 670
F.3d 644, 651 (5th Cir. 2012).
When the movant asserts a qualified immunity defense, that assertion “alters the usual
summary judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). In
the context of summary judgment, governmental employees need only assert the defense in good
faith. See Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir.
2008); Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). They have no burden “to put
forth evidence to meet [their] summary judgment burden for a claim of immunity.” Beck v. Tex.
State Bd. of Dental Examiners, 204 F.3d 629, 633-34 (5th Cir. 2000). Once a governmental

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employee “invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the
inapplicability of the defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
DISCUSSION
Castro does not assert an independent constitutional claim under the Fourteenth
Amendment. The operative complaint alleges the defendants deprived Castro of her “First,
Fourth, and Fourteenth Amendment rights under the United States Constitution.” ECF No. 17 at
2. This is the only reference to the Fourteenth Amendment in the operative complaint. Castro
appears to clarify this reference in her response to the motion for summary judgment stating, the
“First Amendment is made applicable to the States via the Fourteenth Amendment.” ECF No. 43
at 3. Thus, to the extent Castro “asserts the Fourteenth Amendment for the unremarkable
proposition that [constitutional] protections apply to state actors by virtue of the Fourteenth
Amendment, the Fourteenth Amendment claims survive summary judgment where the
underlying [constitutional] claims do.” Perry v. City of Bossier, No. 17-0583, 2018 WL
5074674, at *4 (W.D. La. Oct. 17, 2018) (citing Shaboon v. Duncan, 252 F.3d 722, 733 (5th Cir.
2001)). To the extent that any Fourteenth Amendment claim purports to be a substantive due
process claim, it is dismissed. “[W]here a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process must be the guide for
analyzing these claims.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). Accordingly, in
the analyses below, the Court properly considers the alleged constitutional violations under the
more specific right implicated by the allegations.
To state a federal civil rights claim, a plaintiff must allege a specific defendant, while
acting under color of state law, deprived her of a right guaranteed under the Constitution or a

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federal statute. See West v. Atkins, 487 U.S. 42, 48 (1988). “A person acts under color of state
law if he misuses power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” Bustos v. Martini Club, 599 F.3d 458, 464
(5th Cir. 2010) (quoting West, 487 U.S. at 49) (internal quotations omitted). The defense 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “A
good-faith assertion of qualified immunity alters the usual summary judgment burden of proof,
shifting it to the plaintiff to show that the defense is not available.” Melton v. Phillips, 875 F.3d
256, 261 (5th Cir. 2017) (en banc) (quoting King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016)).
“A public official is entitled to qualified immunity unless the plaintiff demonstrates that
(1) the defendant violated the plaintiff’s constitutional rights and (2) the defendant’s actions were
objectively unreasonable in light of clearly established law at the time of the violation.” Porter v.
Epps, 659 F.3d 440, 445 (5th Cir. 2011). See also Melton, 875 F.3d at 261 (quoting Morgan v.
Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (“To satisfy this burden and overcome
qualified immunity, the plaintiff must satisfy a two-prong test. First, the plaintiff must show ‘that
the official violated a statutory or constitutional right.’ Second, the plaintiff must show that the
right was ‘clearly established’ at the time of the challenged conduct.”) (internal citations
omitted).
Courts are “permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because Castro
does not show Salinas violated any constitutional right, this case is resolved at the first prong.

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1. Excessive Force
Though Castro purports to bring her claim under both the Fourth and Fourteenth
Amendments, under Supreme Court precedent, an allegation that law enforcement officers used
excessive force is analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395
(1989). “To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must
first show that she was seized.” Flores v. Palacios, 381 F.3d 391, 396 (5th Cir. 2004). She must
then show she “suffered (1) an injury that (2) resulted directly and only from the use of force that
was excessive to the need and that (3) the force was objectively unreasonable.” Id.
Castro’s claim of excessive force fails because the undisputed evidence shows no more
than a de minimis injury. Therefore, there is no need to determine whether Castro was seized or
whether Salinas used force that was necessary or reasonable under the circumstances. A plaintiff
asserting an excessive force claim must demonstrate an injury that resulted directly and only
from the use of force that was excessive to the need. Id. “The injury must be more than a de
minimis injury and must be evaluated in the context in which the force was deployed.” Lincoln v.
Turner, 874 F.3d 833, 846 (5th Cir. 2017) (quoting Glenn v. City of Tyler, 242 F.3d 307, 314
(5th Cir. 2001)). “[P]sychological injuries may sustain a Fourth Amendment claim.” Id. (citing
Dunn v. Denk, 79 F.3d 401, 402 (5th Cir. 1996) (en banc)).
Salinas contends Castro cannot establish more than a de minimis injury. In support of his
contention, he points to Castro’s deposition, in which she testified she received a bruise to her
left breast as a result of Salinas pushing her. Castro also testified she did not inform the officers
at the scene that she was injured, did not receive any treatment for the bruise, the bruise was
tender for about a week, and she did not seek medical attention. Ex. D at 71:4-72:7. Salinas
further contends Castro cannot establish psychological injuries sufficient to sustain her excessive

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force claim. Salinas points to Castro’s deposition, in which she testified she did not see a
physician or counselor nor was she prescribed any medication to treat her alleged psychological
injury. Ex. D at 72:8-76:10.
Castro alleges she was filming Miller from approximately twenty-five feet away when
Salinas exited his vehicle carrying a rifle. ECF No. 17 ¶ 8. After initially shouting at Miller and
pointing the rifle at him, Salinas noticed Castro was filming and turned his attention to her. Id. ¶
9. Castro backed away as Salinas yelled at her to stop, put her camera down, and back away. Id.
¶ 10. Officer Schumacher told Salinas to not worry about Castro. Id. ¶ 10. Salinas approached
Castro and “shoved” her, striking her left breast. Id. ¶ 11. Castro stumbled and nearly fell to the
ground. Id. Salinas then slapped Castro, knocking the camera out of her hand. Id. ¶ 12.
In response to the motion for summary judgment, Castro points to her affidavit in which
she attests she continued to have an emotional response, “thinking that Salinas could have shot
me when he had his rifle pointed at me on February 20th, or planted something on me when he
arrested me in March.” ECF Nos. 43 at 8; 43-1 ¶ 20. Castro cites Flores in support of her
argument that “psychological injuries can be sufficient” to establish injury, and Tarver v. City of
Edna, 410 F.3d 745, 752 (5th Cir. 2005) in support of her argument that “significant physical
injuries are not required for an excessive force claim.” ECF No. 43 at 8.
In Tarver, “acute contusions of the wrist,” without more, did not evidence more than de
minimis injury. 410 F.3d at 751. “[N]umerous abrasions and bruises, bloody urine, high blood
pressure, and increased heart rate” noted by hospital staff does not evidence more than de
minimis injury. Westfall v. Luna, 903 F.3d 534, 541, 550 (5th Cir. 2018). A sore, bruised ear that
lasted three days and did not require medical care is merely a de minimis injury. Siglar v.
Hightower, 112 F.3d 191, 192 (5th Cir. 1997). An allegation of an increase in PTSD symptoms

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that was not supported with medical evidence is insufficient to survive summary judgment.
Brooks v. City of W. Point, 639 F. App’x 986, 990 (5th Cir. 2016). A plaintiff’s attestation that
after an incident with police in which a taser barb lodged in his genitals, he suffered “symptoms
of depression, crying episodes, increased sleep, feeling punished, decreased libido, and loss of
energy, enjoyment of life, confidence and appetite . . . and erectile disfunction,” presented
evidence of injuries that were more than de minimis. Casto v. Plaisance, No. 15-817, 2016 WL
2855468, at *6 (E.D. La. May 16, 2016).
The dashcam, body camera, and personal video recordings of the encounter generally
confirm Castro’s version of the encounter between herself and Salinas. Specifically, Salinas
pointed his rifle at Castro, pushed and slapped her, and knocked a video recording device from
her hand. See Exs. B-5, C-3, D-7, D-8. However, Castro does not point the Court to evidence of
a physical or psychological injury that is more than de minimis. Castro’s evidence of injury
includes her deposition testimony that her left breast was contused and sore for a week and she
suffered sleeplessness and fear of police officers; and her attestation that several months after her
encounter with Salinas and her arrest, she continued to have an emotional response when she
thought about the events. Ex. D 72:23-75:24; ECF No. 43-1 ¶ 20. Accordingly, Castro has not
shown more than a de minimis injury with respect to her encounter with Salinas and her
subsequent arrest, and the Court grants the motion for summary judgment as to the excessive
force claim.
2. Retaliation
The First Amendment protects the right to record the police, subject to reasonable time,
place, and manner restrictions. Turner v. Driver, 848 F.3d 678, 688 (5th Cir. 2017). “[A]s a
general matter the First Amendment prohibits government officials from subjecting an individual

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to retaliatory actions” for engaging in “constitutionally protected speech.” Hartman v. Moore,
547 U.S. 250, 256 (2006). “If an official takes adverse action against someone based on that
forbidden motive, and ‘non-retaliatory grounds are in fact insufficient to provoke the adverse
consequences,’ the injured person may generally seek relief by bringing a First Amendment
claim.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (citation omitted).
In general, a plaintiff bringing a First Amendment retaliation claim must establish she
was engaged in a constitutionally protected activity, the defendant's actions caused her to suffer
an injury that would chill a person of ordinary firmness from continuing to engage in that
activity, and but-for causation. Id. A First Amendment retaliatory arrest claim requires a plaintiff
plead and prove the absence of probable cause, unless “plaintiff presents objective evidence that
[s]he was arrested [and that] otherwise similarly situated individuals not engaged in the same sort
of protected speech had not been.” Roy v. City of Monroe, 950 F.3d 245, 255 n.4 (5th Cir. 2020)
(alteration in original) (quoting Nieves, 139 S. Ct. at 1727).
It is undisputed that Castro was engaged in constitutionally protected activity (filming
Miller’s encounter with police) and she suffered an injury that would chill a person of ordinary
firmness from continuing to engage in that activity (an arrest). The parties dispute whether there
was probable cause to arrest Castro. See ECF Nos. 39 at 17; 43 at 5-8.
Castro argues the facts in this case do not support probable cause to arrest based on Texas
Penal Code § 38.15 and Carney v. State, 31 S.W.3d 392 (Tex. App.—Austin 2000, no pet.). ECF
No. 43 at 5-6. Castro further contends Nieves creates an exception to the general requirement that
the plaintiff in a retaliation case prove a lack of probable cause for arrest, because “a narrow
qualification is warranted for circumstances where officers have probable cause to make arrests,
but typically exercise their discretion not to do so.” Id. at 7 (quoting Nieves, 139 S. Ct. at 1727).

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With respect to this exception she argues: “Salinas did not arrest Joanna Castro on February 20,
2018, showing the discretionary nature of the charge.” Id. at 7-8. Nieves requires more. To
proceed under the rule expressed in Nieves, a plaintiff must present “objective evidence that
[s]he was arrested and ‘otherwise similarly situated individuals not engaged in the same sort of
protected speech’ [were not arrested].” Nieves, 139 S. Ct. at 1727. In other words, Castro must
first present objective evidence that Olmos Park police officers routinely do not arrest persons
for the misdemeanor offense of interference with public duties, but she was arrested for that
offense.2 Castro does not point to such evidence.
When reviewing an arrest, courts must ask “whether the circumstances, viewed
objectively, justify the challenged action, and if so, conclude that action was reasonable whatever
the subjective intent motivating the relevant officials. A particular officer’s state of mind is
simply irrelevant, and it provides no basis for invalidating an arrest.” Id. at 1725 (emphasis in
original, internal citations and quotation marks omitted). Here, Castro was arrested pursuant to
an arrest warrant issued by a magistrate. Exhibit C-6. The warrant to arrest Castro was issued
pursuant to the affidavit of Sgt. Ruiz, which was supported by a statement of facts provided by
Salinas. Id. Castro does not allege the arrest warrant was facially invalid or that it was obtained
by fraud or misrepresentation. She argues there was no probable cause to arrest her.
“A person commits [the offense of interference with public duties] if the person with
criminal negligence interrupts, disrupts, impedes, or otherwise interferes with a peace officer
while the peace officer is performing a duty or exercising authority imposed or granted by law.”
Tex. Penal Code § 38.15(a)(1). It is a defense that the interruption, disruption, impediment, or

“For example, at many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has
been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem
insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground
that there was undoubted probable cause for the arrest.” Nieves, 139 S. Ct. at 1727.
2

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interference alleged consisted of speech only. Id. § 38.15(d). While the First Amendment
protects the right to record police, physically disobeying a police officer’s instruction may be
sufficient to establish probable cause for arrest under § 38.15. See Turner, 848 F.3d at 690;
Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017) (collecting cases).
The Court notes that part of the statement of facts presented to the magistrate does not
fairly represent the facts. In this statement of facts, Salinas states:
“In order to get ‘Suspect’ out of the vicinity of danger and for her not [to] be
interfering with Officer Salinas and Officer B. Schumacher, the officer had to
physically guide ‘Suspect’ back a couple of times. The ‘Suspect’ came very close
to the side of his handgun, that ‘Suspect’ was approximately less than a foot away
where ‘Suspect’ could have easily reached over in an attempt to take it.”
Ex. C-6. The video evidence is unequivocal that Salinas did not “guide” Castro back. Salinas
pushed and slapped Castro. The video evidence also shows it is Salinas’s movement that placed
Castro within reach of his gun. Castro began stepping back as Salinas approached her. After
several steps, Castro stopped her backward movement and Salinas closed the gap between them.
See Exs. B-5 00:00-00:45; C-3 at 01:18-01:44; D-7 at 00:23-00:29; D-8 at 13:45-13:51.
However, the video evidence also confirms a critical element in the statement of facts,
which is relevant to probable cause. Specifically, Castro did not follow Salinas’s commands. See
Ex. C-6. The video evidence shows Miller twice yelling to Castro to get back after Salinas told
her several times to get back. Ex. D-7 00:23-00:29. Because Castro’s failure to comply with
Salinas’s instructions can constitute interference, the magistrate’s finding of probable cause is
reasonable. Because there was probable cause to arrest Castro, her retaliatory arrest claim fails as
a matter of law. Accordingly, the Court grants the motion for summary judgment as to the
retaliation claim.

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3. Common Law Assault
Salinas argues and Castro does not dispute the claim for common law assault must be
dismissed pursuant to Tex. Civ. Prac. & Rem. Code § 101.106(f).
“Texas law protects governmental entities from suit through sovereign immunity, unless
the area of liability is specifically waived by the Texas Tort Claims Act, such as injury by an
employee’s motor vehicle, injury caused by property conditions, and claims arising from defects
in premises.” Calhoun v. Villa, 761 F. App’x 297, 300 (5th Cir. 2019), cert. denied, 140 S. Ct.
326 (2019) (citing Tex. Civ. Prac. & Rem. Code § 101 et seq.) Castro’s claim does not fall under
these categories.
“If a suit is filed . . . against both a governmental unit and any of its employees, the
employees shall immediately be dismissed on the filing of a motion by the governmental unit.”3
Id. § 101.106(e). A government employee sued individually may be dismissed upon his motion
or by plaintiff’s amended pleading substituting the governmental unit as defendant. Tex. Adjutant
Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013). “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. Prac. & Rem. Code § 101.106(f).
It is undisputed that Salinas was acting within the scope of his employment with a
governmental unit. Salinas’s motion for summary judgment moves for dismissal of Castro’s
state-law tort claim pursuant to § 101.106(f). Castro did not file an amended pleading dismissing

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Section 101.106 applies to both state and municipal governmental units. Calhoun, 761 F. App’x at 300 (affirming
dismissal of state law claims brought against the City of Houston and six of its police officers).

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Salinas and naming the governmental unit as defendant. 4 Accordingly, Castro’s state-law claim
for assault against Salinas is dismissed.
4. Declaratory Relief
Because Castro has asserted no claim against Salinas that survives summary judgment,
she has no basis to obtain declaratory relief. Furthermore, on June 4, 2019, Judge Ezra dismissed
Castro’s claims for declaratory relief against Olmos Park Chief of Police Rene Valenciano and
the City of Olmos Park. Although that dismissal occurred in the context of a motion to dismiss,
the reasons set forth in Judge Ezra’s Order apply equally here. See ECF No. 32. Accordingly, the
Court must deny Castro’s request for declaratory relief.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendant Alejandro Salinas’s
Motion for Summary Judgment (ECF No. 39). This ruling disposes of all claims asserted in the
operative complaint against Defendant Salinas. Because all other claims in this action were
previously dismissed, the Court issues a final judgment pursuant to Fed. R. Civ. P. 58
contemporaneously with this Memorandum Opinion and Order.
It is so ORDERED this 19th day of June 2020.

JASON PULLIAM
UNITED STATES DISTRICT JUDGE

4

The City of Olmos Park was dismissed as a defendant on June 4, 2019. See ECF No. 32.

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