United States District Court, S.D. Texas, Houston Division
SONIA GARCIA, Individually and as a representative of the Estate of Philip Garcia, Jr., and PHILIP GARCIA, SR., Plaintiffs,
CITY OF HOUSTON, TEXAS and WESLEY T. BLEVINS, Individually, Defendants.
MEMORANDUM AND RECOMMENDATION
FRANCES H. STACY, UNITED STATES MAGISTRATE JUDGE
in this case that has been referred for all further pretrial
proceedings is Defendant City of Houston's Motion for
Summary Judgment (Document No. 48) and Defendant Wesley
Blevins' Motion for Summary Judgment (Document No. 51).
Having considered the motions, the responses and additional
briefing, the summary judgment evidence, and the applicable
law, the Magistrate Judge RECOMMENDS, for the reasons set
forth below, that Defendant City of Houston's Motion for
Summary Judgment (Document No. 48) and Defendant Wesley T.
Blevins' Motion for Summary Judgment (Document No. 51)
both be GRANTED.
a civil rights case brought by the surviving parents of
Philip Garcia, Jr., who was shot and killed by an off-duty
Houston Police Officer, Wesley T. Blevins, while he was
working an off-duty security job at a Houston restaurant.
Plaintiffs allege in their First Amended Original Complaint
(Document No. 11) that:
7. January 16, 2015 Phillip Adam Garcia Jr. (sometimes
hereinafter Phillip), 26, was with friends at Bombshells, a
restaurant in Houston, Texas, after a Houston Rockets
basketball game. Wesley T. Blevins (hereinafter sometimes
Officer Blevins), a City of Houston police officer, was
working off duty in uniform at Bombshells.
8. An argument started with a friend of Phillip's and a
group of males. Eventually the argument involved Phillip.
9. Phillip, and several others, were commanded to leave
Bombshells and did so.
10. Outside of Bombshells in the parking lot Phillip was in
fear of his life and injury from some of the people who
caused the argument. Phillip then retrieved a gun to protect
himself from injury or death.
11. Suddenly, Officer Blevins emerged from Bombshells and
shot Phillip three times, killing him. Phillip did not die
immediately but suffered in great pain and fear of his
12. At the time he was shot and killed Phillip did not point
a gun at Blevins or anyone else or threaten him in any
Amended Complaint (Document No. 11) at 2-3. Plaintiffs also
allege that "The City of Houston has a variety of
policies, practices, and procedures which individually or in
concert caused the Constitutional rights [sic] complained of
herein including but not limited to, failure to train,
failure to discipline, failure to supervise, failure to fire
or reassign officer, a pattern of improper police shootings
and excessive force, a code of silence, and HPD investigating
HPD to name a few." First Amended Complaint (Document
No. 11) at 12. Plaintiff has alleged, as against both the
City of Houston and Blevins, Fourth and Fourteenth Amendment
excessive force claims under 42 U.S.C. § 1983.
City of Houston and Wesley Blevins seek summary judgment on
Plaintiffs' claims, arguing that there is no summary
judgment evidence of a municipal custom or policy upon which
any municipal liability could be based under § 1983, and
that there is no genuine issue of material fact on
Blevins' entitlement to qualified immunity.
Summary Judgment Standard
56(a) provides that "[t]he court shall grant summary
judgment if the movant shows that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The
moving party bears the burden of demonstrating that there
exists no genuine issue of material fact. Brandon v. Sage
Corp., 808 F.3d 266, 269-70 (5th Cir. 2015)
(citing Celotex Corp. v. Catrett, 106 S.Ct. 2548,
2553 (1986)). Once the moving party meets its burden, the
burden shifts to the nonmovant, "who must, by submitting
or referring to evidence, set out specific facts showing that
a genuine issue exists" and that summary judgment should
not be granted. Norwegian Bulk Transp. A/S v. Int'l
Marine Terminals P'ship, 520 F.3d 409, 412
(5th Cir. 2008); see also Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998). A party opposing a properly
supported motion for summary judgment may not rest upon mere
allegations or denials in a pleading, and unsubstantiated
assertions that a fact issue exists will not suffice.
Celotex, 106 S.Ct. at 2548. Instead, the non-movant
"must go beyond the pleadings and come forward with
specific facts indicating a genuine issue for trial to avoid
summary judgment." Brandon, 808 F.3d at 270
(quoting Piazza's Seafood World, LLC v. Odom,
448 F.3d 744, 752 (5thCir. 2006)).
considering a motion for summary judgment, all reasonable
inferences to be drawn from both the evidence and undisputed
facts are to be viewed in the light most favorable to the
nonmoving party. Darden v. City of Fort Worth, 880
F.3d 722, 727 (5th Cir. 2018). "If the
record, viewed in the light most favorable to non-movant,
could not lead a rational trier of fact to decide in
non-movant's favor, summary judgment is
appropriate." Allen v. Radio One of Texas II,
LLC, 515 Fed.Appx. 295, 299 (5th Cir. 2013)
(citing Kelley v. Price-Macemon, Inc., 992 F.2d
1408, 1413 (5th Cir. 1993). On the other hand, if
"the factfinder could reasonably find in [the
nonmovant's] favor, then summary judgment is
improper." Kelley, 992 F.2d at 1413. Even if
the standards of Rule 56 are met, a court has discretion to
deny a motion for summary judgment if it believes that
"the better course would be to proceed to a full
trial." Anderson v. Liberty Lobby, Inc., 106
S.Ct. 2505, 2513 (1986).
1983 of Title 42 provides that any person who, under color of
state law, deprives another of "any rights, privileges
or immunities secured by the Constitution and laws shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceedings for redress...." 42
U.S.C. § 1983. "Rather than creating substantive
rights, § 1983 simply provides a remedy for the rights
that it designates." Johnston v. Harris County
FloodControl Dist.,869F.2d 1565, 1573
(5thCir. 1989), cert, denied, 493
U.S.1019 (1990). To state a claim under § 1983,
plaintiffs must (1) allege a violation of rights secured by
the Constitution or laws of the United States, and (2)
demonstrate that the alleged deprivation was committed by a
person acting under color of state law. See Bass v.
Parkwwod Hosp.,180 F.3d 234, 241 (5th Cir.
1999). "Because the Fourteenth Amendment protects