United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge.
a state inmate at the time of filing, filed this pro
se section 1983 lawsuit against four employees of the
Harris County Constable's Office: Deputy Andrew Baskins,
Deputy Justin Loucks, Sergeant Anthony Sebastian, and Deputy
Carlos Guerra.Defendants filed a motion for summary
judgment (Docket Entries No. 20, 21), to which plaintiff
filed a response (Docket Entry No. 23) and defendants filed a
reply (Docket Entry No. 24).
considered the motion, the response, the reply, the record,
and the applicable law, the Court GRANTS the motion for
summary judgment and DISMISSES this lawsuit for the reasons
April 1, 2016, defendants were dispatched to a house owned by
plaintiff's parents at 21622 Falvel Sunset Ct., Spring,
Texas 77388, to execute fugitive felony arrest warrants
against plaintiff. The felony charges included family
violence and violation of protective orders. Plaintiff, who
was 40 years old and unemployed at the time, had a known
history of violent crimes and violent tendencies. A K-9 unit
was brought with defendants to the scene, as per Harris
County Constable's Office Precinct 4 policy for
apprehending violent fugitives.
deputies arrived at the two-story house and positioned
themselves at the front and back doors. Plaintiff's
parents and brother answered their door knocks and told the
deputies plaintiff was not at home. However, after a few
minutes, the father admitted plaintiff was upstairs and
called out for plaintiff to surrender.
did not respond. Deputy Baskins entered the house with his
K-9 unit and, pursuant to policy, shouted out several
warnings to the unseen plaintiff that the K-9 unit would
enter the residence, find him, and bite him if he did not
reveal himself. Plaintiff again did not respond. Baskins and
the K-9 unit proceeded through the house, and the K-9 unit
subsequently signaled that plaintiff was behind an upstairs
parties disagree as to what happened at that point. Baskins,
relying on the K-9 dog's signals, states that he again
told plaintiff to surrender, and that plaintiff again failed
to respond. Baskins moved the couch away from the wall and
found plaintiff on the floor hidden under a blanket.
Plaintiff refused to show his hands, and Baskins ordered the
K-9 unit to apprehend him. The K-9 unit bit and held on to
plaintiff's arm, and plaintiff began fighting him.
Plaintiff resisted the deputies' efforts to arrest and
restrain him, but they were eventually able to subdue and
on the other hand, claims that he was asleep on the upstairs
floor and woke up when a dog bit him on the arm. He argues
that he did not fight the dog or resist arrest, but did try
to free his arm from the dog's mouth. According to
plaintiff's complaint, the defendants repeatedly struck
him for no reason, twisted his arms, and kneed him in the
claims in this lawsuit that defendants used excessive force
during his arrest, resulting in injuries to his face, neck,
and back. He seeks $2 million in monetary damages.
judgment under Federal Rule of Civil Procedure 56(c) is
appropriate when, viewing the evidence in the light most
favorable to the nonmovant, the court determines that
“the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” Burleson v. Texas Dep't of Criminal
Justice, 393 F.3d 577, 589 (5th Cir. 2004).
court must examine the evidence and inferences drawn
therefrom in the light most favorable to the non-moving
party. Id. A properly supported motion for summary
judgment should be granted unless the opposing party produces
sufficient evidence to show that a genuine factual issue
exists. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). There is no genuine issue for trial
if the record, taken as a whole, could not lead a rational
trier of fact to find for the non-moving party. Prison
Legal News v. Livingston, 683 F.3d 201, 211 (5th Cir.
2012). Although disputed facts are viewed in the light most
favorable to a non-movant, the entire record must be
considered. Scott v. Harris, 550 U.S. 372, 380
moving party meets the initial burden of showing there is no
genuine issue of material fact, the burden shifts to the
non-moving party to produce evidence or designate specific
facts showing the existence of a genuine issue for trial.
Id. A plaintiff cannot oppose summary judgment
through some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated or speculative
assertions, or by only a scintilla of evidence. Boudreaux
v. Swift Transp. Co., Inc., 402 F.3d 536, 540
(5th Cir. 2005). Moreover, a court has no obligation to sift
the record in search of evidence to support a party's
opposition to summary judgment. Adams v. Traveler's
Indemnity Co., 465 F.3d 156, 164 (5th Cir. 2008).
of Excessive Force
for use of excessive force in the course of an arrest are
analyzed under the Fourth Amendment and its guarantee of
freedom from unreasonable searches and seizures. Graham
v. Connor, 490 U.S. 386, 395 (1989). To succeed on a use
of excessive force claim, a plaintiff must establish that he
experienced: (1) an injury; (2) which resulted directly and
only from the use of force which was clearly excessive to the
need; and (3) the excessiveness of which was clearly
unreasonable. See Ontiveros v. City of Rosenberg,
564 F.3d 379, 382 (5th Cir. 2009); Freeman v. Gore,
483 F.3d 404, 410 (5th Cir. 2007). The question is
“whether the totality of the circumstances
justified” the use of force. Tennessee v.
Garner, 471 U.S. 1, 9 (1985).
Graham, the Supreme Court articulated three
guideposts for courts to use when determining if a particular
use of force was reasonable under the circumstances or
excessive to the need. These guidepost are: (1) the severity
of the crime at issue; (2) whether the suspect posed an
immediate threat to police officers or civilians; and (3)
whether the suspect was actively resisting arrest or
attempting to evade arrest by fleeing the scene.
Id., 490 U.S. at 396-97. These factors provide the
framework for judging whether an officer's use of force
was excessive. Newman v. Guedry, 703 F.3d 757, 761
(5th Cir. 2012).
out a Fourth Amendment violation, let alone one that violates
clearly established law, “the question is whether the
officer's actions are ‘objectively reasonable'
in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation,
” while evaluating the use of force “from the
perspective of a reasonable officer on the scene.”
Graham, 490 U.S. at 396.
the exhibits submitted in support of their motion for summary
judgment, defendants include an unsworn statement written by
plaintiff. The statement is undated, and no background
information for the exhibit is provided. In the statement,
plaintiff stated in relevant part as follows:
This is my true and correct statement. On Friday April 1st
2016 at approximately 5 pm, I Kevin Mohammed was dropped off
at my parents house: 21622 Falvel Sunset Ct. Spring TX 77388
by a friend. Upon arriving at my parent['s] house I
realized that they were not home so I let myself in with my
personal house key. I entered their home and proceeded to
make myself something quick to eat, before retiring upstairs
to the game room. The last thing I remember was laying down
on the floor of their game room and falling to sleep.
when [sic] I was awoken abruptly to the bites of a
dog that I had never seen. coming [sic] to and
becoming fully cognitive of the fact that there was what
appeared to be a large Dog [sic] whose jaws were
firmly clamped around my upper left forearm, I reacted by
instinctively attempting to break my arm free from the
dog['s] grasp by pulling my arm back towards me. At that
point I then noticed from my sitting position something
coming down towards me, a bright light the blow of a blunt
object that turned out to be the officer['s] issued
handgun. The officer then proceeded to continued
[sic] to strike me with said blunt object on my left
facial and cranial area. As this happened I again became
prostrate on the floor as I rolled over on my stomach in an
attempt to shield my face and head from the blows, while the
large dog subsequently proceeded to continue to bite me on my
buttocks and upper thighs on both left and right sides.
(Docket Entry No. 20-9.)
plaintiff alleges that a single officer struck him with an
object and that a dog bit him. He does not state that any
other officers or individuals were involved.
doctrine of qualified immunity protects government officials
from civil damages liability when their actions could
reasonably have been believed to be legal. Whitley v.
Hanna, 726 F.3d 631, 638 (5th Cir. 2013); Morgan v.
Swanson, 659 F.3d 359, 370 (5th Cir. 2011). Qualified
immunity “gives government officials breathing room to
make reasonable but mistaken judgments, ” and
“protects all but the ...