United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE.
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).
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.
BACKGROUND AND CLAIMS
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
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
contend they are entitled to qualified immunity and move for
summary judgment dismissal of plaintiff s Fourth Amendment
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).
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).
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).
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.
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.
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.
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).
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).
submitted an affidavit in support of summary judgment, in