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Garcia v. City of Houston

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

May 14, 2019

SONIA GARCIA, Individually and as a representative of the Estate of Philip Garcia, Jr., and PHILIP GARCIA, SR., Plaintiffs,
v.
CITY OF HOUSTON, TEXAS and WESLEY T. BLEVINS, Individually, Defendants.

          MEMORANDUM AND RECOMMENDATION

          FRANCES H. STACY, UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         I. Background

         This is 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 impending death.
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 manner.

         First 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.

         Defendants 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.

         II. Summary Judgment Standard

         Rule 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).[1] 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)).

         In 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).

         III. Discussion

         Section 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 ...


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