The opinion of the court was delivered by: Janis Graham Jack United States District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFFS' CLAIMS WITH PREJUDICE
Pending is defendants' motion for summary judgment (D.E. 33), to deny plaintiffs' constitutional claims alleging excessive force and illegal search and seizure, as well as state law tort claims, and to dismiss those claims with prejudice. Plaintiffs have failed to file a response in opposition. For the reasons stated herein, defendants' summary judgment motion is GRANTED, and plaintiffs' claims are dismissed with prejudice.
The Court has federal question jurisdiction over this civil rights action pursuant to 28 U.S.C. § 1331.
II. Procedural Background
Husband-wife plaintiffs, Emerico and Gloria Garcia, filed this civil action on August 26, 2007, alleging § 1983 civil rights violations and other, state law claims against Kleberg County, the City of Kingsville, and individual peace officers employed by the two municipalities. (D.E. 1). In particular, plaintiffs complain that on August 26, 2005, defendants conducted a warrantless search of their home and used excessive force against them, in violation of their Fourth, Eighth, and Fourteenth Amendment rights, as well as the Texas Tort Claim Act and other laws.
By Order of Dismissal entered February 28, 2008, plaintiffs' claims against Kleberg County and individual Kleberg County peace officers were dismissed for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). (See D.E. 20). The dismissal was with prejudice because limitations had run on plaintiffs' claims with no service effected. Id. The Court denied plaintiffs' motion for reconsideration. (D.E. 21, 23).
On September 11, 2008, the remaining defendants, the City of Kingsville, Officer Antonio Contreras, Officer Juan Garcia, Officer Augustine Ruiz, Officer Graciela "Grace" Garcia, Officer Richard Kirkpatrick, Officer Jason McGee, and Officer Humberto Gonzalez, filed the instant motion for summary judgment.*fn1 (D.E. 33). Plaintiffs have not filed a response in opposition.*fn2
III. Summary Judgment Evidence
The following facts are supported by the summary judgment evidence.*fn3 On August 26, 2005, Detective Mendoza, an officer with the Kleberg County Sheriff's Department ("KCSD"), telephoned plaintiffs' residence and requested that plaintiffs' then seventeen year-old grandson, Emerico Garcia II, report to the sheriff's office for questioning. (DSJ, Ex. A, Emerico Garcia Depo. at 20-22.). Plaintiffs' grandson was living with plaintiffs' at the time. Id. at 20. The KCSD was investigating theft of property from the City of Kingsville (the "City"). Id. at 22. Plaintiffs' grandson had worked for the City during the summer. Id.
Plaintiff's grandson went to the Sheriff's department by himself. Id. at 23. There, KCSD officers Detective Mendoza and Deputy Longoria questioned him about the theft of property, including Freon. Id. at 24. Plaintiffs' grandson related that his grandfather kept Freon at the house for fixing cars, and he agreed to take the officers to plaintiff's residence to show them. Id.
At plaintiffs' residence, the officers entered the house following plaintiffs' grandson. (DSJ, Ex. B, Gloria Garcia Depo., at 8-9). At the time, plaintiffs were at home and in their t.v. room, along with their granddaughter, Selina Hernandez. (DSJ, Ex. A, Emerico Garcia Depo. at 24). As the officers entered the t.v. room, Mr. Garcia asked them, "What do you want? Who are you?", but the officers did not identify themselves. Id. at 24-25. Plaintiffs' grandson then retrieved a box containing cans of Freon from the washroom and placed it on the kitchen table. Id. at 25. The officers then told plaintiffs that they were there to recover stolen property. Id. Mr. Garcia responded that the Freon was not stolen, that it was his, and that they could not take it. Id. He demanded to see the officers' search warrant or other authority for being in his home. Id. The officers related they did not have a warrant because plaintiffs' grandson had consented to the search. Id. Plaintiffs' grandson denied this, stating that he had planned to bring the Freon outside for the officers to inspect. Id. Detective Mendoza then picked up the box of Freon as if to take it with him. Id. at 28. Mr. Garcia grabbed Detective Mendoza by his shirt and held his arm back. Id. at 31. Deputy Longoria then grabbed Mr. Garcia's arms and wrestled them behind his back. Id.
Mrs. Garcia, along with her granddaughter, Selina Hernandez, yelled at Deputy Longoria to leave Mr. Garcia alone because he had open heart surgery and he was old. (DSJ Ex. B, Gloria Garcia Depo. at 12). Deputy Longoria released Mr. Garcia. Id. Both officers began calling for backup on their radios. Id. at 26-27.
Many officers arrived at plaintiffs' residence in response to the call for assistance, including officers from the City of Kingsville police, Task Force, Highway Patrol, Constable's office, and Border Patrol. (DSJ Ex. A, Emerico Garcia Depo. at 32). Mr. Garcia identified City of Kingsville Officer A. Contreras, and Kleberg County Sheriff Deputies Cisneros, and Cantu, as coming into the house. Id. at 34-37.
Mr. Garcia then noticed that the officers' guns were drawn and that red lights were flashing everywhere. (Emerico Garcia Depo. at 34). Mr. Garcia was not sure if the guns were real guns or Tasers. Id. at 35.
The red lights were shining primarily on Mr. Garcia's chest. (DSJ Ex. A, Emerico Garcia Depo. at 37). Mr. Garcia also observed the lights on his wife and granddaughter, and about 10 to 12 lights shining on him. Id. at 38-39. Officer Longoria advised the officers not to shoot plaintiff because he had a heart problem. Id. at 39. The officers continued to point their guns and yell at plaintiff. Id. at 40. Plaintiffs' adult daughters, who had arrived at their home by that time, were yelling back at the officers, telling them to leave plaintiffs' home. Id. at 40-41, 47.
Mrs. Garcia picked up a box of Freon and stated: "If you want that -- that's what you want, just take it." and she threw it. Id. at 49. As she threw the box of Freon down, Mrs. Garcia was tased, and fell to the floor. Id. at 49, 62. Plaintiff's grandson told Mr. Garcia that he saw Officer Cisneros tase Mrs. Garcia. Id. at 51-52. Mr. Garcia was standing next to his wife when she was tased, but he could not tell who tased her because there were lots of people and he did not see anything come out of the guns. Id. at 53.
Mr. Garcia was also tased at approximately the same time Mrs. Garcia was tased. Id. at 61. Mr. Garcia felt electricity go through his body as he administered nitro to his wife. Id. at 55, 60. After Mrs. Garcia fell to the ground, Mr. Garcia did not see any wire or metal probes attached to her skin. Id. at 55-56, 64. After administering nitro to Mrs. Garcia, she was slightly revived. Id. at 58-59. Shortly thereafter, an ambulance arrived and EMS personnel began administering first aid to Mrs. Garcia and checking Mr. Garcia's vital signs. Id. at 59. Plaintiffs were then transported to the hospital. Id. at 59.
Kingsville police officer Antonio Contreras was on duty the afternoon of August 25, 2006, and he responded to Detective Mendoza's call for assistance. (DSJ Ex. M, Antonio A. Contreras Depo, at 1-2).*fn4 In his offense report, Officer Contreras noted that he and Officer Gonzalez entered plaintiff's Kingsville residence. Id. at 2. Officer Contreras observed Mr. Garcia became hostile toward Deputy Longoria. (See DSJ Ex. E-17, police offense report dated August 26, 2005). In addition, he observed three females, later identified as Mrs. Garcia and plaintiffs' two grown daughters who arrived at the home, as screaming at the officers, and he characterized the situation as "out of control." Id. at 2.
Officer Contreras heard a noise like someone falling to the ground. Id. at 3. He turned around and looked through the doorway that leads from the t.v. room to the kitchen, and observed Mrs. Garcia on the ground shaking. Id. He also saw that Officer Gonzalez had his Taser X26 device from its holster, but had not fired it.*fn5 Id. Officer Contreras heard Deputy Longoria advise Mr. Garcia that he was under arrest. Id.
IV. Summary Judgment Standard
Federal Rule of Civil Procedure 56 states that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c). In the face of a properly supported motion for summary judgment, a plaintiff "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also Schaefer v. Gulf Coast Reg'l Blood Ctr., 10 F.3d 327, 330 (5th Cir. 1994). The non-movant's burden is not satisfied by conclusory allegations, unsubstantiated assertions, or some metaphysical doubt as to the material facts. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995); see also Brown v. Houston, 337 F.3d 539, 541 (5th Cir. 2003) (stating that "improbable inferences and unsupported speculation are not sufficient to [avoid] summary judgment").
When the parties have submitted evidence of conflicting facts, however, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Willis, 61 F.3d at 315. Summary judgment is not appropriate unless, viewing the evidence in the light most favorable to the nonmoving party, no reasonable jury could return a verdict for that party. See, e.g., Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "That the movant appears more likely to prevail at trial is no reason to grant summary judgment; it is not the province of the court on a motion for summary judgment to weigh the evidence, assess its probative value, or decide factual issues." Byrd v. Roadway Exp., Inc., 687 F.2d 85, 87 (5th Cir. 1982); Aubrey v. School Bd. of Lafayette, 92 F.3d 316, 318 (5th Cir. 1996).
Defendants move for summary judgment on the grounds that: (1) plaintiffs failed to respond timely to propounded requests for admissions, and the admissions were deemed admitted by Order dated July 30, 2008, such that there are no issues of material fact, and defendants officers are entitled to judgment in their favor as a matter of law; (2) there is no personal involvement by certain defendant officers such that they are entitled to summary judgment in their favor on all of plaintiffs claims; (3) there is no evidence that the defendant officers who did enter plaintiffs' residence ever fired their tasers such that there is no credible evidence to support plaintiffs' claims of excessive force; (4) defendant officers are entitled to qualified immunity on plaintiffs' constitutional claims; (5) plaintiffs fail to establish that the City of Kingsville has a custom or policy approving excessive force or illegal search and seizure by its officers; (6) plaintiffs fail to establish a violation of the Texas Tort claims Act; and (7) plaintiffs fail to establish negligence.
At the time of the events that form the basis of plaintiffs' claims, plaintiffs were private, free citizens residing in Kingsville, Texas. As private citizens, they have a constitutional right under the Fourth Amendment to be free from unreasonable search and seizures, as well as excessive force. See Graham v. Connor, 490 U.S. 386, 394 (1989) ("all claims that law enforcement officials have used excessive force-- deadly or not-- in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and 'reasonableness' standard rather than a 'substantive due process' approach."). Accordingly, to the extent plaintiffs have attempted to raise their clams under the Eighth and Fourteenth Amendments, those claims are denied for failure to state a claim.
To state a cause of action under § 1983, plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged. Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995). Personal involvement is an essential element of a civil rights case. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).Plaintiff must prove that defendant either actively participated in the acts complained of, or ...