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Charlot v. City of Houston

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

December 7, 2017

CITY OF HOUSTON, et al., Defendants.


         Pending before the court[1] is Defendants' Amended Motion for Summary Judgment (Doc. 45).[2] The court has considered the motion, Plaintiff's response, all other relevant filings, and the applicable law. For the reasons set forth below, the court GRANTS the motion.

         I. Case Background

         Plaintiff filed this civil-rights action against multiple defendants, alleging violations of his constitutional rights in connection with a body-cavity search performed while he was in custody.

         A. Factual Background

         On April 20, 2015, Frank Medina (“Officer Medina”) of the Houston Police Department (“HPD”) Narcotics Division received information that an individual matching Plaintiff's description was selling cocaine from a gray Lexus at a Houston gas station.[3] During surveillance at the location:

Officer Medina observed a white female to enter the front passenger seat of the suspect['s] vehicle [and] observed them to perform what appeared to be a drug transaction inside of the male's vehicle. The female then exited the Lexus and returned to her own vehicle after only a minute or perhaps two inside of the suspect vehicle and then left the scene.
Within a few minutes the male moved his vehicle to a gas pump. . . . After a couple of minutes Officer Medina observed a vehicle park next to the male. Officer Medina observed a black female exit the vehicle and enter the male's vehicle [and] again observed what appeared to be a drug transaction inside of the male's vehicle. The female immediately exited the male's vehicle and left the scene.[4]

         After following the suspect to another location and back toward the gas station, Officer Medina “advised the assisting marked units of several traffic violations committed by the male.”[5]

         Defendants Leonard Smith (“Officer Smith”) and Michael Glover (“Officer Glover”), HPD officers, stopped Plaintiff pursuant to Officer Medina's report of Plaintiff's traffic infractions.[6]Plaintiff consented to a search of his vehicle that produced a hydrocodone bottle labeled with Plaintiff's name and an unreadable year that appeared to be 2010 and another pill bottle for generic Soma in someone else's name.[7] Although Plaintiff claimed that the pills were his and that he apparently put them in his uncle's pill bottle, he could provide neither the name of his uncle nor the name on the pill bottle.[8]

         The officers called for a K9 unit, and the dog alerted to the front console area.[9] This led to Plaintiff's assertion that the car was not his, but he was unable to identify the person in whose name the car was registered.[10] Officers Smith and Glover arrested Plaintiff on the charge of possession of controlled substances.[11]A pat-down search of Plaintiff's person performed at the scene produced no illegal narcotics.[12]

         After transport to HPD's central jail facility, Officer Smith performed a more thorough search of Plaintiff pursuant to the arrest based on information that Plaintiff may have been concealing crack cocaine on his person.[13] The search of Plaintiff's pockets, shoes, socks, waistband, and midsection revealed no narcotics.[14]Officer Smith discovered two cell phones, a wallet, and nearly $800 in currency and felt a “hard semicircular object concealed between [Plaintiff's] butt cheeks.”[15]

         As Officer Smith believed that Plaintiff was concealing “anywhere from a half of a cookie to one and a half cookies in his underwear and clenched between his butt cheeks, ” Officer Smith requested that a strip search be performed.[16] Before Officer Smith received an answer regarding his request, jail personnel conducted another quick search of Plaintiff and reported feeling a hard object concealed in Plaintiff's buttocks area.[17]

         Curtis Ford (“Sergeant Ford”) inquired about the request for a strip search, and Officer Smith explained the situation, the results of his and the jail personnel's searches, and Officer Smith's opinion of concealment based on experience.[18] Officer Smith also opined that HPD general orders authorized a strip search under the circumstances.[19] Sergeant Ford contacted the supervising lieutenant and informed Officer Smith that the request for a strip search was denied.[20] The sergeant told Officer Smith that “the only way to determine if [Plaintiff] had anything concealed was if he consensually removed the object or if [the officers] could convince him to remove it.”[21] Plaintiff denied that he had anything hidden between his butt cheeks, denied consent for the officers to attempt to remove the item, and refused to remove the item himself.[22]

         Sergeant Ford later instructed Officer Smith to transport [Plaintiff] to a hospital for a body cavity search.[23] Officers Smith and Glover followed Sergeant Ford's instructions and transported Plaintiff to Hermann Hospital, where staff refused to perform a body cavity search, regardless of whether the officers produced a warrant.[24] They then transported Plaintiff to Ben Taub Hospital, where staff indicated that they would perform the search upon presentation of a warrant.[25]

         At that time, Officer Medina was in the process of obtaining a warrant for the search.[26] In his affidavit, Officer Medina recounted the facts stated above and requested a warrant to search Plaintiff's anal cavity.[27] The county magistrate signed the warrant.[28]

         In the meantime, Officer Smith shared with the doctor the officers' concern that Plaintiff “had concealed illegal narcotics in his buttocks area and possibly now had secreted [them] inside his anus.”[29] After the doctor was provided with the warrant, she performed a rectal examination on Plaintiff and found nothing concealed inside his rectum.[30] Officer Smith reported that he believed Plaintiff was able to discard the narcotics at some point when he was outside of the officers' presence inside the jail.[31]

         According to Plaintiff, “[t]he whole incident (search process) took about three hours or so.”[32] Plaintiff pled guilty to the charge of possession of a controlled substance and stated in his affidavit that he did so “because of the fact that I was tired of fighting the case and they said that they would give me time-served.”[33]

         B. Procedural Background

         On October 14, 2015, Plaintiff filed this action, naming as defendants the City of Houston, Charles A. McClelland, Jr., (“Former Chief McClelland”), Sergeant Ford, Traci Seals (“Sergeant Seals”), Officer Medina, Eduardo Martinez (“Officer Martinez”), Officer Smith, Officer Glover, and two unnamed officers.[34] Stating two causes of action, Plaintiff alleged that the police officers violated Plaintiff's “right to be secure in [his] person against unreasonable seizure of his person, in violation of the Fourth and Fourteenth Amendments of the Constitution of the United States” and that Former Chief McClelland and Defendant City of Houston were liable for those violations because they were aware of a pattern of excessive force among HPD officers and failed to “instruct, supervise, control, and discipline” the officers.[35]

         After the case was referred, the parties consented to proceed before the undersigned.[36] The case was transferred on February 25, 2016.[37] On May 27, 2016, the court entered a memorandum opinion dismissing all claims against Sergeants Ford and Seals and Officers Medina and Martinez.[38] On November 7, 2017, Plaintiff filed an amended complaint without leave of court, attempting to reassert claims against the dismissed parties.[39] Within a short time, Defendants filed a motion to dismiss the amended complaint.[40]

         Before the court ruled on their motion to dismiss, Defendants filed a motion and an amended motion for summary judgment that addressed the claims alleged against all of the defendants, including the four previously dismissed.[41] On June 12, 2017, the court struck the improperly filed amended complaint, rendering Defendants' motion to dismiss the amended complaint moot.[42]

         To be clear, the only remaining claims in this lawsuit are the Fourth Amendment claims against City of Houston, Former Chief McClelland, Officer Smith, and Officer Glover. The court now addresses the amended motion for summary judgment.

         II. Summary Judgment Standard

         Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014). A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). To be genuine, the dispute regarding a material fact must be supported by evidence such that a reasonable jury could resolve the issue in favor of either party. See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at 248).

         The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. Celotex Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5thCir. 1992). The movant may meet this burden by demonstrating an absence of evidence in support of one or more elements of the case for which the nonmovant bears the burden of proof. See Celotex Corp., 477 U.S. at 322; Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir. 1997).

         If the movant carries its burden, the nonmovant may not rest on the allegations or denials in the pleading but must respond with evidence showing a genuine factual dispute. Stauffer, 741 F.3d at 581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)). Conclusory allegations, unsubstantiated assertions, improbable inferences, unsupported speculation, or only a scintilla of evidence will not carry this burden. Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003).

         III. Analysis

         Defendants argue that Plaintiff fails to establish that the body cavity search was unconstitutional as an unlawful search or as an excessive use of force, fails to overcome Defendants' defense of qualified immunity, fails to demonstrate bystander liability, and, with regard to the claims against City of Houston and Former Chief McClelland, fails to demonstrate a custom or policy that caused a constitutional violation. Plaintiff disagrees with Defendants on the merits of the case, but both parties agree that the Fourth Amendment encompasses the constitutional protections against unreasonable searches and excessive uses of force allegedly violated by the body-cavity search.

         A. Applicable Legal Standards

         In order to prevail on a claim under 42 U.S.C. § (“Section”) 1983, [43] a plaintiff must establish that the defendant deprived the plaintiff of his constitutional rights while acting under the color of state law. Moody v. Farrell, 868 F.3d 348, 351 (5th Cir. 2017). The statute creates no substantive rights but only provides remedies for deprivations of rights created under federal law. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

         Government officials have qualified immunity from Section 1983 “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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In order to overcome an assertion of qualified immunity, a plaintiff must produce evidence that the alleged conduct violated a statutory or constitutional right and that the right was clearly established at the time of the challenged conduct. See Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011).

         A city may be held liable under Section 1983 only for its own illegal acts, not pursuant to a theory of vicarious liability. Connick v. Thompson, 563 U.S. 51, 60 (2011). To succeed on a claim under Section 1983, the plaintiff must demonstrate that an “action pursuant to official municipal policy caused their injury.” Id. at 61 (internal quotation mark omitted)(citing Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978)). “Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Id. (citing Monell, 436 U.S. at 691, et al.).

         Plaintiff's claims all arise pursuant to the protections of the Fourth Amendment. The Fourth Amendment, [44] applied to state actors through the Fourteenth Amendment, protects “[t]he right of the people to be secure in their persons, houses, papers, and ...

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