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Roberts v. City of Houston

United States District Court, S.D. Texas, Houston Division

March 31, 2017

THE CITY OF HOUSTON, et al, Defendants.



         Pending 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).

         Based 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.


         Plaintiff 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.

         The 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 scene. Id.

         Plaintiff 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.

         Defendant 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.

         Following 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.

         Plaintiff 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 to plaintiff.

         Plaintiff 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.[1] He seeks $ 10 million for physical and mental injuries.[2]


         Summary 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).

         Once 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, 587 (1986).

         "At 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.


         Section 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).

         A 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         To the 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.").

         Defendants are entitled to summary judgment dismissal of plaintiff s claims against the individual defendants in their official capacity.


         Plaintiff raises the following claims against the following defendants in his original and supplemental complaints and more definite statement (Docket Entries No. 1, 14, 60).

         A. Police Chief Charles McClelland

         Plaintiff 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.

         To 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).

         Plaintiff 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 complaints.

         Defendants are entitled to summary judgment dismissal of plaintiff s claims against defendant McClelland.

         B. Officer C. McClain-Ferdinand

         Plaintiffs 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. 1996).

         Moreover, 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.

         Nor 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.

         Defendants are entitled to summary judgment dismissal of plaintiff s claims against defendant Ferdinand.

         C. Officer K. Feddersen

         Plaintiff 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 (2007).

         Plaintiff 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 800.

         Defendants are entitled to summary judgment dismissal of plaintiff s claims against defendant Feddersen.

         D. Sergea ...

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