United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE.
Fernando Guerrero has filed a Prisoner's Civil Rights
Complaint under 42 U.S.C. § 1983 ("Complaint")
(Docket Entry-No. 1), alleging that four officers employed by
the City of Houston Police Department ("HPD") used
excessive force against him during the course of his arrest.
Pending before the court is Defendants' Motion for
Summary Judgment filed by T.W. Zachau, M.V. Alva, CM.
Holloway, and M.C. Skinner ("Defendants' MSJ")
(Docket Entry No. 26). Guerrero has not filed a response and
his time to do so has expired. After considering the
pleadings, the exhibits, and the applicable law, the court
will grant the Defendants' MSJ and will dismiss this case
for the reasons explained below.
incident that forms the basis of the Complaint occurred at an
apartment complex in Houston, Texas, on December 12,
2015. Guerrero explains that he was "inside
[an] apartment stealing 2 kilos of cocaine" when he was
confronted by several HPD officers.Before breaking into the
apartment, Guerrero robbed a man at knifepoint, taking his
car and his wallet. Guerrero, who was in possession of two
knives and a "replica shotgun" that he found in the
apartment, attempted to flee from the scene. As he fled from
the apartment, Guerrero was bitten by a K-9, tasered, and
shot in the chest by the officers who eventually arrested
Arguing that the force used was excessive, Guerrero seeks
$100, 000, 000.00 in compensatory damages under 42 U.S.C.
§ 1983 for the violation of his constitutional
court authorized service of process and requested an answer
from the HPD officers identified by Guerrero. Officers T.W.
Zachau, M.V. Alva, C.M. Holloway, and M.C. Skinner now move
for summary judgment, noting that Guerrero was subsequently
convicted of several serious criminal offenses, including
burglary of a habitation and aggravated robbery with a deadly
weapon as a result of his arrest on December 12,
2015. The defendants argue that Guerrero, as a
dangerous fleeing felon, has not established that their
efforts to apprehend him were unreasonable or that a
constitutional violation occurred. Defendants argue that they
are entitled to qualified immunity from his
claims. In support of those arguments, the
officers have provided affidavits and over 200 pages of
records from the ensuing investigation, which refute
Guerrero's claim that the amount of force used was
to the police report, officers were dispatched to a home
invasion burglary at an apartment complex where the suspect,
who was reportedly armed with a shotgun, was
present. Officer Zachau, accompanied by a K-9,
encountered Guerrero as he was fleeing from the apartment.
Officer Zachau believed that Guerrero was dangerous because
he had just committed a home invasion. In an effort
to apprehend Guerrero, Zachau released his K-9. When the K-9
made contact with Guerrero, Zachau ordered Guerrero to lie
still on the ground, but Guerrero did not obey the commands
and instead began to forcefully strike the dog. As Guerrero
was attacking his dog, Officer Zachau began to strike
Guerrero with his hands in an effort to gain Guerrero's
compliance. When this was "ineffective, "
Zachau deployed a "Conducted Energy Device" or
taser. Guerrero, however, proceeded to break
the taser wires and continued his attempts to
Officer Alva arrived he observed that the taser deployed by
Zachau was having no effect on Guerrero, who was
"punching the K-9" and actively attempting to
flee. As Guerrero squared off to face the
officers who were surrounding him, Officer Alva observed a
"knife sheath" in Guerrero's waistband and he
drew his firearm.Officer Holloway also drew his firearm
after he observed the knife sheath and saw that Guerrero was
about to charge Officer Alva.Guerrero, who was refusing to
obey orders to lie on the ground, then reached for his
waistband with both hands. Believing that Guerrero was
going for his knife, Officer Alva feared for his life and
discharged his firearm one time, striking Guerrero in the
chest. After cursing at the officers, Guerrero
then attempted to climb a nearby fence before he was pulled
to the ground. Officer Skinner and Officer Holloway
also deployed tasers in an effort to subdue Guerrero, who
remained belligerent and was threatening to overpower the
he was handcuffed and on a stretcher, Guerrero continued to
resist arrest and behave in a combative manner, fighting with
paramedics from the Houston Fire Department ("HFD")
and spitting at them. When asked by the paramedics,
Guerrero admitted having consumed an entire "8
ball" of cocaine before the incident
occurred. It took several officers, paramedics,
and hospital personnel to remove Guerrero from the
ambulance. Because Guerrero continued to spit at
the officers and emergency personnel assisting him, hospital
staff had to place a "spit mask" on
him.It was only after doctors administered a
sedative that they were able to attend to Guerrero's
Standard of Review
for summary judgment are governed by Rule 56 of the Federal
Rules of Civil Procedure. Under this rule a reviewing court
"shall grant summary judgment if 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, 106 S.Ct. 2548, 2552 (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., 106 S.Ct. 2505,
2510 (1986). An issue is "genuine" if the evidence
is sufficient for a reasonable jury to return a verdict for
the nonraoving party. Id.
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
quotation marks and citation omitted). However, the
non-movant "cannot rest on [his]
pleadings" where qualified immunity is asserted.
Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir.
2001) (emphasis in original). Nor can the non-movant avoid
summary judgment simply by presenting "[c]onclusional
allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic
argumentation." Jones v. Lowndes County,
Mississippi, 678 F.3d 344, 348 (5th Cir. 2012) (quoting
TIG Ins. Co. v. Sedgwick James of Washington, 276
F.3d 754, 759 (5th Cir. 2002)); 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). If the movant demonstrates
an "absence of evidentiary support in the record for the
nonmovant's case, " the burden shifts to the
nonmovant to "come forward with specific facts showing
that there is a genuine issue for trial." Sanchez v.
Young County, Texas, 866 F.3d 274, 279 (5th Cir. 2017)
(citing Cuadra v. Houston Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2010)); see also
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 106 S.Ct. 1348, 1356 (1986) .
plaintiff proceeds pro se in this case. Courts
construe pleadings filed by pro se litigants under a
less stringent standard than those drafted by lawyers.
See Haines v. Kerner, 92 S.Ct. 594, 596 (1972) (per
curiam); see also Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007) ("A document filed pro se is
'to be liberally construed[.]'") (quoting
Estelle v. Gamble, 97 S.Ct. 285, 292 (1976)) .
Nevertheless, "pro se parties must still brief
the issues and reasonably comply with [federal procedural
rules]." Grant v. Cuellar, 59 F.3d 523, 524
(5th Cir. 1995) (citations omitted). The Fifth Circuit has
held that "[t]he notice afforded by the Rules of Civil
Procedure and the local rules" is "sufficient"
to advise a pro se party of his burden in opposing a
summary judgment motion. Martin v. Harrison County
Jail, 975 F.2d 192, 193 (5th Cir. 1992) (per curiam).
defendants argue that Guerrero fails to demonstrate a
violation of the Fourth Amendment to the United States
Constitution, which governs claims of excessive force in the
context of an arrest. Arguing further that Guerrero fails
to establish that a constitutional violation occurred the
defendants move for summary judgment on the grounds that they
are entitled to qualified immunity from Guerrero's
doctrine of qualified immunity protects 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.'" Pearson v. Callahan, 129 S.Ct.
808, 815 (2009) (quoting Harlow v. Fitzgerald, 102
S.Ct. 2727, 2738 (1982)). This is an "exacting standard,
" City and County of San Francisco, California v.
Sheehan, 135 S.Ct. 1765, 1774 (2015), that
"protects 'all but the plainly incompetent or those
who knowingly violate the law.'" Mullenix v.
Luna, 136 S.Ct. 305, 308 (2015) (quoting Malley v.
Briggs, 106 S.Ct. 1092, 1096 (1986)). A plaintiff
seeking to overcome qualified immunity must satisfy a
two-prong inquiry by showing: "(1) that the official
violated a statutory or constitutional right, and (2) that
the right was 'clearly established' at the time of
the challenged conduct." Ashcroft v. al-Kidd,
131 S.Ct. 2074, 2080 (2011) (citation omitted).
standard reflects, "[a] good-faith assertion of
qualified immunity alters the usual summary judgment burden
of proof, shifting it to the plaintiff to show that the
defense is not available." King v. Handorf, 821
F.3d 650, 653-54 (5th Cir. 2016) (internal quotation marks
and citations omitted). "The plaintiff must rebut the
defense by establishing that the official's allegedly
wrongful conduct violated clearly established law and that
genuine issues of material fact exist regarding the
reasonableness of the official's conduct."
Id. at 654 (quoting Gates v. Texas Dep't of
Protective & Regulatory Servs., 537 F.3d 404, 419
(5th Cir. 2008)). "'To negate a defense of qualified
immunity and avoid summary judgment, the plaintiff need not
present "absolute proof, " but must offer more than
"mere allegations."'" Id.
(quoting Manis v. Lawson, 585 F.3d 839, 843 (5th
Claims of Excessive Force Under the Fourth Amendment
that law enforcement officers used excessive force to effect
an arrest is governed by the "reasonableness"
standard found in the Fourth Amendment. See Graham v.
Connor, 109 S.Ct. 1865, 1871 (1989); Tennessee v.
Garner, 105 S.Ct. 1694, 1699-1700 (1985). To prevail on
an excessive-force claim in this context, a plaintiff must
establish "'(1) injury, (2) which resulted directly
and only from a use of force that was clearly excessive, and
(3) the excessiveness of which was clearly
unreasonable.'" Trammell v. Fruge, 868 F.3d
332, 340 (5th Cir. 2017) (quoting Deville v.
Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)).
Fourth Amendment reasonableness determination "requires
careful attention to the facts and circumstances of each
particular case, including (1) the severity of the crime at
issue, (2) whether the suspect poses an immediate threat to
the safety of the officers or others, and (3) whether he is
actively resisting arrest or attempting to evade arrest by
flight." Trammell, 868 F.3d at 340 (citation
and internal quotation marks omitted). In determining
reasonableness courts are required to make "allowance
for the fact that police officers are often forced to make
split-second judgments - in circumstances that are tense,
uncertain, and rapidly evolving - about the amount of force
that is necessary in a particular situation." Graham,
109 S.Ct. at 1872. Thus, the reasonableness of the use of
deadly force "must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight." Id. An officer's use
of deadly force is presumptively reasonable if the officer
has reason to believe that the suspect poses a threat of
serious harm to the officer or to others. See Mace v.
City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003);
Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)
(observing that the use of deadly force is not excessive
under the Fourth Amendment if the officer reasonably believes
the suspect poses a threat of serious harm).
is no dispute that Guerrero was armed with a deadly weapon on
December 12, 2015, when he committed the offenses of
aggravated robbery and burglary of a
habitation. The knife that Guerrero used during the
robbery was recovered along with the victim's wallet at
the scene of the burglary.
evidence shows that Officer Zachau deployed his K-9 and then
his taser after Guerrero refused to obey repeated verbal
orders as he continued to attempt to evade arrest for a
serious felony offense. Officer Alva discharged his firearm
after Guerrero, who remained combative despite being tasered,
appeared to reach for a knife, placing Alva in fear for his
life and the safety of the other officers. Officer
Holloway and Officer Skinner deployed their tasers because,
even after being shot, Guerrero continued attempting to
a firearm was discharged during the incident, the
officers' actions were documented and investigated by HPD
as required by departmental policy. Officers employed by HPD
are authorized "to use force to protect themselves or
others, to effect an arrest, or to maintain custody of those
arrested." Deadly-force is permissible "in
circumstances in which officers reasonably believe it is
necessary to protect themselves or others from the imminent
threat of serious bodily injury or death." The internal
investigation conducted by HPD concluded that the
officers' actions did not violate departmental policy and
that "the force used by the officers was reasonable
under the circumstances."
officers who encountered Guerrero on the day of his arrest
state that Guerrero was actively resisting arrest despite
being tasered and that his actions posed an immediate threat
of serious bodily injury. There is no evidence in the
record that contradicts the officers' accounts, which are
supported by police reports and records of the
investigation. Those records, which also include
accounts from paramedics ...