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Ussery v. Flores

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

September 17, 2019

ROY EUGENE USSERY, a/k/a TROYUSSERY, Plaintiff,
v.
HPD OFFICER XA. FLORES, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          KEITH P. ELLISON UNITED STATES DISTRICT JUDGE.

         Plaintiff, a state inmate proceeding pro se and in forma pauperis, filed this section 1983 lawsuit against Houston Police Department ("HPD") Officer X.A. Flores and Officer Nicole Miyako (f/k/aN. Tafhurt), and Harris County Deputy Everett Simpson. Simpson filed a motion for summary judgment (the "Simpson Motion") (Docket Entry No. 26), to which plaintiff filed three responses (Docket Entries No. 28, 37, 42) and Simpson filed a reply (Docket Entry No. 41). Flores and Miyako filed a motion for summary judgment (the "HPD Motion") (Docket Entries No. 33, 35), to which plaintiff filed two responses (Docket Entries No. 37, 42) and the defendants filed a reply (Docket Entry No. 38).

         Having considered the motions, the responses and replies, the record, and the applicable law, the Court GRANTS the motions for summary judgment and DISMISSES this lawsuit for the reasons shown below.

         I. BACKGROUND AND CLAIMS

         Plaintiff complains that, on July 22, 2015, at a motel located in Harris County, Texas, defendants accosted, assaulted, and tazed him without justification, causing bodily injuries. He seeks monetary compensation for their use of excessive force and falsification of the incident reports. He also complains that the arrest and ensuing criminal charges were unlawful and false and that he is entitled to additional monetary compensation.

         Defendants, on the other hand, state that plaintiff was found trespassing on the motel grounds in the company of a female suspect. Plaintiff was noted to have an ankle monitor on his right leg. The motel was known for having high drug and prostitution activity, and plaintiff had been banned from the premises. Plaintiff resisted the officers' efforts to arrest and handcuff him, and he was brought under control only after one of the officers tazed him. Plaintiff, who falsely identified himself to the officers, was found to be an unregistered sex offender in possession of counterfeit money.

         Defendants contend they are entitled to qualified immunity and move for summary judgment dismissal of plaintiff s Fourth Amendment claims.

         II. LEGAL STANDARDS

         A. Summary Judgment

         Under Rule 56(c) of the Federal Rules of Civil Procedure, a moving party is entitled to summary judgment if the pleadings, discovery, disclosure materials on file, and 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party has the burden of demonstrating the absence of genuine issue for trial. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The burden then shifts to the non-moving party to show with significant probative evidence that a genuine issue of material fact exists. Hamilton v. Segue Software, 232 F.3d 473, 477 (5th Cir. 2000). Facts are considered material if they might affect the outcome of the lawsuit under the governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When considering the evidence, all reasonable inferences are to be resolved in favor of the non-moving party. Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001).

         In opposing summary judgment, the non-movant must show more than "some metaphysical doubt as to material facts." Meinecke v. H&R Block of Houston, 66 F.3d 77, 81 (5th Cir. 1995). Conclusory allegations, unsubstantiated assertions, improbable inferences, unsupported speculation or only a scintilla of evidence will not carry this burden. Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003). Likewise, unsupported allegations, affidavits, or deposition testimony asserting ultimate or conclusory facts and conclusions of law are not sufficient to defeat a motion for summary judgment. Clark v. American's Favorite Chicken, 110 F.3d 295, 297 (5th Cir. 1997).

         Where the record, taken as a whole, indicates that no reasonable jury could return a verdict for the non-movant, there is no genuine issue for trial and summary judgment must be granted. Washington v. Allstate Ins. Co., 901 F.2d 1281, 1286 (5th Cir. 1990).

         B. Excessive Force

         To establish a claim for use of excessive force under the Fourth Amendment, 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 Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012); Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). Whether the force used is excessive or unreasonable turns on the facts and circumstances of the particular case. See Tolan v. Cotton, __ U.S. __, 134S.Ct. 1861, 1865 (2014); Graham v. Connor, 490 U.S. 386, 396 (1989). In Graham, the Supreme Court identified some of the factors which a court should consider in making the determination, such as "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. The "objective reasonableness" of a particular use of force is to be determined in light of the facts and circumstances confronting the officer. Id.

         C. Qualified Immunity

         In determining if an officer is entitled to qualified immunity, a court must engage in a two step inquiry. Tolan, 572 U.S. at 655-56. First, the court must, by taking the facts in the light most favorable to the party asserting the injury, determine if the facts would establish conduct that violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, (2001). Next, the court must determine if the right in question was clearly established at the time of the violation. Id.

         In assessing the reasonableness of the use of force, courts give "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. The reasonableness of a particular use of force "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id.; see also Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011). "The calculus of reasonableness must embody 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, 490 U.S. at 396-97.

         At summary judgment, plaintiffs bear the burden to demonstrate that the defendant official is not entitled to qualified immunity. Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). The court must ask whether the law so clearly and unambiguously prohibited the officer's conduct that every reasonable official would understand that what he is doing violates the law. Id.; see also Morgan v. Swans on, 659 F.3d 359, 371 (5th Cir. 2011) (en banc). It is clearly established that criminal suspects have a constitutional right to be free from excessive force during an arrest. Tarver v. City of Edna, 410 F.3d 745, 753-54 (5th Cir. 2005). This does not end the inquiry, however, as the Supreme Court has carefully admonished that courts are "not to define clearly established law at a high level of generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) ("We have repeatedly told courts ... not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.") (citations omitted); see also Hernandez v. United States, 785 F.3d 117, 120 (5th Cir. 2015). To defeat qualified immunity, a plaintiff must demonstrate that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted” Id. (emphasis added).

         III. SIMPSON MOTION

         Plaintiff claims that Deputy Simpson kicked him during the incident. Simpson filed a motion for summary judgment (the "Simpson Motion") (Docket Entry No. 26), to which plaintiff filed three responses (Docket Entries No. 28, 37, 42) and Simpson filed a reply (Docket Entry No. 41).

         Simpson submitted an affidavit in support of summary judgment, in ...


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