United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
James filed this lawsuit against the City of West Columbia,
City Manager Debbie Sutherland, Lieutenant Darryl R. Tiner of
the West Columbia Police Department, Officer Michael Glaspie
of the West Columbia Police Department, and Officer Pena of
the West Columbia Police Department.
live pleading is her Fourth Amended Complaint. Dkt. 45. She
alleges that, on May 29, 2009, when she was 13 years old, her
mother brought her to the West Columbia Police Department to
seek help from police officers "in convincing James to
take her psychotropic medication." But, according to
James, "[t]he afternoon ended with Lateaa James being
arrested, handcuffed, battered, and tased a minimum of six
(6) times." James therefore brought this lawsuit,
asserting state law causes of action individually against
Officer Tiner for malicious prosecution, false imprisonment,
false arrest, intentional infliction of emotional distress,
libel, and slander, as well as federal and state law claims
against the City and Police Department under 42 U.S.C. §
1983, negligence and gross negligence. She complaints of
assault, excessive force, wrongful seizure, deprivation of
due process, deprivation of medical attention, violations of
First Amendment freedom of speech, abuse of office, official
oppression, and negligence under the Texas Tort Claims Act.
She also also alleges that the Police Officers and City
employees then wrongly pressed criminal charges against her,
in an act of malicious prosecution, and that these charges
"were false and placed on her in an effort to cover up
their unconstitutional actions."
Court has dismissed most of the claims alleged by James, with
the exception of one: her excessive force claim against
Defendant Dairy 1 Tiner in his individual capacity. Dkt. 44.
Now, Defendant Tiner has filed a motion for summary judgment,
particularly focusing on his assertion of qualified immunity.
considering the motion, the response, the evidence in the
summary judgment record, and the record of this case as a
whole, the Court finds that there is no genuine dispute of
material fact and that Defendant Tiner's motion for
summary judgment should be GRANTED.
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A fact is
"material" if its resolution in favor of one party
might affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., Ml U.S. 242, 248
(1986). An issue or dispute is "genuine" if the
evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party. Id. If the movant
demonstrates the absence of a genuine dispute of material
fact, the burden shifts to the non-movant to provide
"specific facts" showing the existence of a genuine
issue for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). In deciding a
summary judgment motion, the reviewing court must
"construe all facts and inferences in the light most
favorable to the nonmoving party." Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal
citation and quotation marks omitted). However, the
non-movant cannot avoid summary judgment simply by presenting
"conclusory allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation." Jones v. Lowndes
County, 678 F.3d 344, 348 (5th Cir. 2012); see also
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc) (a non-movant cannot demonstrate a genuine
issue of material fact with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence).
nonmovant must identify specific evidence in the record and
articulate how that evidence supports that party's claim.
Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.
2007). Though courts are to draw all reasonable inferences in
favor of the nonmovant, "a party cannot defeat summary
judgment with conclusory allegations, unsubstantiated
assertions, or 'only a scintilla of evidence.'"
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,
343 (5th Cir. 2007) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
Instead, "[t]he party opposing summary judgment is
required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports
his or her claim." Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998); see also
Little, 37 F.3d at 1075 ("Rule 56 mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.") (emphasis in original).
allegations in a plaintiffs complaint are not evidence.
Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th
Cir. 1996) ("[P]leadings are not summary judgment
evidence."); Johnston v. City of Houston, Tex.,
14 F.3d 1056, 1060 (5th Cir. 1995) (for the party opposing
the motion for summary judgment, "only evidence-not
argument, not facts in the complaint-will satisfy the
burden"), citing Solo Serve Corp. v. Westown
Assoc, 929 F.2d 160, 164 (5th Cir. 1991); see also
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,
1429 (5th Cir. 1996) (en banc) ("[C]onclusory
allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy the nonmovant's burden.");
Grizzle v. Travelers Health Network, Inc., 14 F.3d
261, 268 (5th Cir. 1994) (noting that an employee's
"self-serving generalized testimony stating her
subjective belief that discrimination occurred ... is simply
insufficient to support a jury verdict in plaintiffs
favor"); Int'l Shortstop, Inc. v. Rally's,
Inc., 939 F.2d 1257, 1266 (5th Cir. 1991) ("Summary
judgment, to be sure, may be appropriate, '[e]ven in
cases where elusive concepts such as motive or intent are at
issue, ... if the nonmoving party rests merely upon
conclusory allegations, improbable inferences, and
unsupported speculation." (quoting Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990)) (alteration in original)).
as noted above, parties have the obligation to specifically
point out the evidence upon which they rely. Rule 56(c)(1)
provides that "[a] party asserting that a fact cannot be
or is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record."
Fed.R.Civ.P. 56(c)(1)(A); Am. Fam. Life Assur. Co. of
Columbus v. Biles, 714 F.3d 887, 896 (5th Cir. 2013).
Under Rule 56(c)(3), "[t]he court need consider only the
cited materials, but it may consider other materials in the
record." Fed.R.Civ.P. 56(c)(3). The Fifth Circuit has
explained that, "Rule 56 does not impose upon the
district court a duty to sift through the record in search of
evidence to support a party's opposition to summary
judgment." Adams v. Travelers Indem. Co. of
Conn., 465 F.3d 156, 164 (5th Cir. 2006); see also
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th
Cir. 1988) (concluding that a deposition "was never made
part of the competent summary judgment record before the
district court" because the party opposing summary
judgment "failed to designate, or in any way refer to,
the deposition as the source of factual support" for its
response to the summary judgment motion).
1983 enables persons who have been "depriv[ed] of any
rights, privileges, or immunities secured by the Constitution
and laws" of the United States by the actions of a
person or entity operating under color of state law to seek
redress from those state actors responsible for the
deprivations. 42 U.S.C. § 1983. But qualified immunity
insulates those 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, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982).
Summary Judgment: Qualified Immunity
Fifth Circuit recently noted, "the Supreme Court
"mandated a two-step sequence for resolving government
officials' qualified immunity claims.'"
Darden v. City of Fort Worth, Texas,880 F.3d 722,
727-28 (5th Cir. 2018) (citing Pearson v. Callahan,555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).
The court must determine (1) "whether the facts that a
plaintiff has alleged ... make out a violation of a
constitutional right" and (2) "whether the right at
issue was 'clearly established' at the time of
defendant's alleged misconduct." Id.
"A right may be clearly established without 'a case
directly on point, ' but 'existing precedent must