United States District Court, S.D. Texas, Houston Division
MICHAEL E. ROBERTS, a/k/a MICHAEL REYES ROBERTS, TDCJ-CID #01887766, Plaintiff,
THE CITY OF HOUSTON, et al, Defendants.
MEMORANDUM OPINION AND ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE.
before the Court is defendants' motion for summary
judgment (Docket Entries No. 94, 95, 96). Plaintiff, a state
inmate proceeding pro se, filed several pleadings in
response, including a declaration of undisputed facts (Docket
Entry No. 97), his opposition to the motion (Docket Entry No.
98), his "credentials" (Docket Entry No. 100), his
"rebukes" (Docket Entry No. 101), and his
"final supplement" in opposition to the motion
(Docket Entry No. 104). Defendants filed a reply to
plaintiffs opposition (Docket Entry No. 99).
on consideration of defendants' motion for summary
judgment, plaintiffs various responses, defendants'
reply, the record, and the applicable law, the Court GRANTS
the motion for summary judgment and DISMISSES this lawsuit
for the reasons that follow.
BACKGROUND AND CLAIMS
filed this pro se section 1983 lawsuit against the
City of Houston, former Police Chief Charles McClelland,
Officer C. McClain-Ferdinand, Officer K. Feddersen, Sergeant
R. Espinoza, Sergeant B. L. Chebret, Sergeant R. Gonzales,
Sergeant J. Rubio, Officer A. Beaudion, and Dr. Chidi Nnaka
for alleged violations of his constitutional rights.
probative summary judgment evidence shows that, on the night
of July 16, 2013, plaintiff and defendant Houston Police
Department ("HPD") Officer Ferdinand were involved
in two motor vehicle collisions with each other in Harris
County, Texas. Ferdinand, wearing a HPD uniform, was driving
her personal vehicle to work. (Docket Entry No. 94, Exhibit
A.) Although plaintiff disagrees with the defendants as to
how the two collisions occurred, it is clear that he was
driving away from Ferdinand after both collisions and that he
subsequently struck another vehicle in a third collision.
Ferdinand stated that she had followed plaintiffs vehicle to
obtain the license plate number, and witnessed him run
several stop signs before colliding with the other vehicle.
Id. She stopped to investigate the collision and
render aid, and stated that plaintiff was very hostile and
violent towards her and had a strong odor of alcohol. She
attempted to restrain him and place him under arrest on
suspicion of driving while intoxicated, but he resisted her
efforts until he saw other police officers arriving at the
states that the collisions were Ferdinand's fault and
that she had chased him, causing him to collide with the
other vehicle. He alleges that, after he was handcuffed,
defendant HPD Officer Feddersen had placed his hands around
plaintiffs neck and held him up off his feet, briefly cutting
off his airway. He further alleges that he was denied an
ambulance or medical treatment at the scene.
HPD Officer Beaudion attempted to perform field sobriety
tests on plaintiff near the scene of the accident; defendants
submitted a copy of the videotaped tests as summary judgment
evidence. Plaintiff refused to take an alcohol breathalyzer
test, and a warrant was issued for obtaining a sample of his
blood for blood alcohol concentration ("BAC")
purposes. Plaintiff was transported to Memorial Hermann
Hospital, where a blood draw was obtained. Plaintiff claims
that the nurse had to stick him twice to obtain the sample,
and that defendant Feddersen jumped on him during the blood
draw, breaking his back.
the blood draw, plaintiff was returned to the HPD downtown
jail for booking and processing. Plaintiff told the officers
that he was unable to walk, so he was transported through the
building on a jail restraint chair and was lifted or carried
to his bunk. The blood draw revealed that plaintiffs BAC was
0.145, well over the 0.08 legal limit for intoxication.
(Docket Entry No. 16, p. 4.) Plaintiff subsequently pleaded
guilty to driving while intoxicated and was sentenced to ten
years' incarceration. State v. Roberts, No.
139483801010, 184th District Court of Harris County, Texas.
filed complaints with the HPD Internal Affairs Division
("IAD"), and his complaints were investigated. The
IAD report, pages of which have been submitted by the parties
as summary judgment evidence, made determinations unfavorable
claims that defendants "broke his back, " used
excessive force, falsified records, committed "official
oppression, " failed to provide proper medical care,
violated the Americans with Disabilities Act
("ADA") by not providing him a wheelchair, and
ignored his complaints of pain and serious
injury. He seeks $ 10 million for physical and
SUMMARY JUDGMENT STANDARDS
judgment should be granted when the moving party conclusively
establishes that there is no genuine issue of material fact.
Fed.R.Civ.P. 56(c); Chelates Corp. v. Citrate, 477
U.S. 317, 323-25 (1986). There is no issue for resolution at
trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The moving party may satisfy its burden
by negating the existence of an essential element of the
nonmoving party's case. Chelates Corp., 477 U.S.
at 325. Alternatively, if the moving party will not bear the
burden of proof at trial on a particular issue, it may meet
its initial burden by pointing out the absence of evidence
supporting that element of the nonmoving party's case.
Id.; Stilts v. Conoco, Inc., 76 F.3d 651, 656 (5th
Cir. 1996); Transamerica Ins. Co. v. Avenall, 66
F.3d 715, 718-719 (5th Cir. 1995).
the moving party has carried its burden, the burden shifts to
the nonmoving party to show that summary judgment is not
appropriate. Exxon Corp. v. Baton Rouge Oil, 11 F.3d
850, 853 (5th Cir. 1996). The nonmoving party cannot
discharge its burden by alleging legal conclusions or
unsubstantiated assertions, nor can it rest on the
allegations of the pleadings; instead, it must present
affirmative evidence in order to demonstrate the existence of
a genuine issue of material fact and defeat a motion for
summary judgment supported by competent evidence.
Anderson, Ml U.S. at 248-250; Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
the summary judgment stage, facts must be viewed in the light
most favorable to the nonmoving party only if there is a
'genuine' dispute as to those facts." Scott
v. Harris, 550 U.S. 372, 380 (2007). When the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. Id. However, when opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment. Id.
CLAIMS AGAINST THE CITY OF HOUSTON
1983 provides a private right of action against parties
acting under color of state law to redress the deprivation of
rights secured by the United States Constitution or federal
law. Bauer v. Texas, 341 F.3d 352, 357 (5th Cir.
2003). Section 1983 is not itself a source of substantive
rights; it merely provides a method for vindicating already
conferred federal rights. Albright v. Oliver, 510
U.S. 266, 271 (1994). To prevail on a section 1983 claim, a
plaintiff must show that the offending conduct was committed
by a person acting under color of state law and that the
conduct deprived the plaintiff of rights secured by the
Constitution or federal law. Parratt v. Taylor, 451
U.S. 527, 535 (1981).
municipality such as the City of Houston (the
"City") is a "person" subject to suit
under section 1983 under certain circumstances. See
Monell v. Dep 't of Social Services, 436 U.S. 658,
690 (1978). Although a municipality cannot be held liable
simply on a theory of respondeat superior, Id. at
691, it can be held liable if a deprivation of a
constitutional right was inflicted pursuant to an official
policy or custom. Piotrowski v. City of Houston, 237
F.3d 567, 579 (5th Cir. 2001). Municipal liability requires
proof of three elements: "(1) an official policy (or
custom), of which (2) a policymaker can be charged with
actual or constructive knowledge, and (3) a constitutional
violation whose 'moving force' is that policy or
custom." Valle v. City of Houston, 613 F.3d
536, 541-42 (5th Cir. 2010). Single instances of certain
actions, behaviors, or decisions, even if unconstitutional,
do not prove, or allow inference of, a policy, custom, or
practice. Piotrowski, Til F.3d at 581.
in the instant case has not identified and presented
probative evidence of an actionable and unconstitutional
policy or custom attributable to the City. See Thompson
v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001). No
section 1983 claim is established against the City.
also alleges that the City violated his rights under the ADA
by failing to provide a wheelchair for his use at the City
Jail. Title II of the ADA provides that "no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity." 42 U.S.C. § 12132. Thus, plaintiff here
must prove that: (1) he is a qualified individual with a
disability; (2) he was excluded from participation in, or
denied the benefits of the services, programs, or activities
of the City's jail, or was otherwise discriminated
against; and (3) that such exclusion, denial of benefits, or
discrimination was by reason of his disability.
fails to present probative summary judgment evidence
establishing that he has a "qualifying disability"
under the ADA. Moreover, temporary conditions are generally
not sufficient to rise to the level of a disability under the
ADA. Haralson v. Campuzano, 356 F.App'x 692, 698
(5th Cir. 2009) (holding that prisoner did not have a
"disability" within the meaning of the ADA where he
was temporarily impaired in walking and breathing due to his
cancer and cancer treatment). Defendants are entitled to
summary judgment dismissal of plaintiffs claims against the
City of Houston.
extent plaintiff sues the individual defendants in their
official capacities, his claims fail. The United States
Supreme Court has noted that official capacity suits
'"generally represent only another way of pleading
an action against an entity of which an officer is an
agent.'" Hafer v. Melo, 502 U.S. 21, 25
(1991). The City of Houston is a party to this lawsuit, and
plaintiffs official capacity claims against the individual
defendants are redundant. See Johnson v. Hurtt, 893
F.Supp.2d 817, 828 (S.D. Tex. 2012) ("[W]ith respect to
Plaintiffs official capacity claims against Chief McClelland,
the Court finds that these claims should be dismissed as they
are simply another way of pleading against the City, which is
already a party to this action.").
are entitled to summary judgment dismissal of plaintiff s
claims against the individual defendants in their official
CLAIMS AGAINST HOUSTON POLICE OFFICERS
raises the following claims against the following defendants
in his original and supplemental complaints and more definite
statement (Docket Entries No. 1, 14, 60).
Police Chief Charles McClelland
sues former Houston Police Chief Charles McClelland for
failure to train, failure to provide wheelchairs at all jails
in violation of the ADA, and a "13 hour delay" in
obtaining medical care.
state an individual capacity claim under section 1983, a
plaintiff must allege that while acting under color of state
law, defendants were personally involved in the deprivation
of a right secured by the Constitution of the United States,
or that defendants' wrongful actions were causally
connected to such a deprivation. James v. Texas Collin
County, 535 F.3d 365, 373 (5th Cir. 2008).
presents no probative summary judgment evidence of personal
involvement by McClelland. He does not establish that
McClelland was at the scene of the accidents or at the
Houston jails or Memorial Hermann Hospital, or was otherwise
personally involved in the events made the basis of this
lawsuit. Further, he fails to present probative summary
judgment evidence of a failure to train or supervise on the
part of McClelland as to any of the individual defendants
named in this lawsuit. To any extent plaintiff claims that
McClelland was responsible for his not receiving information
regarding the IAD report, plaintiff shows no federal
constitutional or statutory right to receive the information,
and no section 1983 claim is raised. Moreover, plaintiff
acknowledges that his IAD complaints were investigated, and
that he was personally interviewed by IAD officials during
their investigation. Plaintiff fails to demonstrate the
denial of any opportunity to be heard regarding his
are entitled to summary judgment dismissal of plaintiff s
claims against defendant McClelland.
Officer C. McClain-Ferdinand
allegations against defendant Ferdinand raise no issues of
federal constitutional dimension. His claim for official
oppression fails as a matter of law under section 1983.
Official oppression is a state criminal offense and not a
private cause of action that can be lodged by a citizen
against a police officer. See Tex. Penal Code §
39.03. Under Texas law, "official oppression is a
criminal offense rather than an intentional tort."
Callis v. Sellars, 953 F.Supp. 793, 800 (S.D. Tex.
plaintiffs disputes regarding causation or liability for the
three motor vehicle collisions are matters of state tort law,
not federal constitutional law. During their investigation of
the accidents, police officers became aware of plaintiffs
potential intoxication. As a result of those direct
interactions with plaintiff, plaintiff was offered field
sobriety tests and a breathalyzer test. When plaintiff
refused both tests, a warrant for a blood specimen was
obtained, and plaintiffs blood was drawn at a local hospital.
It is uncontested that plaintiffs blood alcohol level was
measured at 0.145, well over the 0.08 blood alcohol level
required for legal intoxication, and that he was arrested and
successfully prosecuted for driving under the influence of
alcohol. Plaintiff s disagreements with Ferdinand's
actions and statements regarding the accidents do not give
rise to a constitutional issue under section 1983.
does the probative evidence show that Ferdinand violated
plaintiff s constitutional rights by failing to render aid at
the scene of the third accident. Plaintiff complains that
Ferdinand did not have him transported by ambulance to a
hospital following the third collision. The Court liberally
construes plaintiffs assertion as a claim for deliberate
indifference to his serious medical needs. To prevail on his
claim, plaintiff must present competent summary judgment
showing that Ferdinand "refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs."
Domino v. Tex. Dep 't of Crim. Justice, 239 F.3d
752, 756 (5th Cir. 2001). Plaintiff presents no competent
evidence that he had any serious medical needs at the time he
interacted with Ferdinand. To the extent he alleges that he
was unable to walk after the accident, he concedes that his
field sobriety test videotape, taken shortly after the third
accident, shows him walking, talking, and refusing to take
any intoxication-related tests. Moreover, the record shows
that plaintiff was examined for any serious injuries at the
Houston City Jail. Plaintiffs disagreement with
Ferdinand's actions does not state a claim for deliberate
indifference, Norton v. Dimizana, 122 F.3d 286, 292
(5th Cir. 1997), and simple or even heightened negligence is
insufficient to establish deliberate indifference. Farmer
v. Brennan, 511 U.S. 825, 835 (1994). No deliberate
indifference is shown in the record.
are entitled to summary judgment dismissal of plaintiff s
claims against defendant Ferdinand.
Officer K. Feddersen
alleges that, at the scene of the third collision, defendant
Feddersen was guilty of official oppression by placing his
hands around plaintiff s neck, raising him off the ground,
and momentarily cutting off his air. Defendants argue, and
plaintiff does not dispute, that none of the police
videotapes of the accident scene show that this event
occurred. The Supreme Court has clarified that, "when
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment." Scott v. Harris, 550 U.S. 372, 380
contends that third-party witness Ashlin Johnson saw
Feddersen's actions and could verify plaintiffs version
of the events. However, plaintiff has not presented any
testimony or other evidence from Johnson. Plaintiffs
speculation and bald assertions as to what Johnson may have
seen or might say do not raise a genuine issue of material
fact precluding summary judgment. See Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990); Ross v.
Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Regardless, claims of official oppression are matters arising
under Texas criminal law and do not constitute federal
constitutional issues. See Callis, 953 F.Supp. at
are entitled to summary judgment dismissal of plaintiff s
claims against defendant Feddersen.