United States District Court, W.D. Texas, San Antonio Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND IN THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE
PLEADINGS, AND DISMISSING PLAINTIFF'S CIVIL RIGHTS
PULLIAM UNITED STATES DISTRICT JUDGE
the Court is “Defendants' Motion for Summary
Judgment and in the alternative, Motion for Judgment on the
Pleadings.” Defs.' Mot. Summ. J., ECF No.
Therein, defendants assert there are no genuine issues as to
any material fact and they are entitled to judgment as a
matter of law under Federal Rule of Civil Procedure 56. In
the alternative, defendants maintain the material facts are
not in dispute and the Court may render a judgment on the
merits pursuant to Federal Rule of Civil Procedure 12(c) by
looking to the substance of the pleadings and any judicially
noticed facts. Plaintiff has not filed a substantive response
to defendants' motion and his time to do so has expired.
Pl.'s Advisory, ECF No. 41. After reviewing the
pleadings, the summary judgment record, and the applicable
law, the Court grants the defendants' motion and
dismisses this case.
BACKGROUND AND PROCEDURAL HISTORY
Cesar Rafael Zuniga, a state prisoner proceeding pro se and
in forma pauperis, brings a complaint under 42 U.S.C. §
1983 alleging violations of his civil rights by Bexar County
Sheriff's Office deputies. Pl.'s Compl., ECF No. 1.
His complaint stems from his arrest in San Antonio, Texas, on
June 6, 2016, for “Evading Motor Vehicle and Child
Endangerment.” Defs.' Mot. Summ. J., p. 2, ECF No.
32. His arrest came after “he fled from police and
Bexar County deputies at a high speed with a young child
unsecured in the back seat.” Id. He claims
that after his arrest, a crime scene investigator assaulted
him while two other deputies stood by:
I . . . was arrested, and detained in handcuffs, and placed
inside a patrol vehicle. That is when I was approached by
crime scene investigator officer E. Calderon #1226. He then
took me out [of] the patrol vehicle, closed the door behind
me, and had me stand against the patrol vehicle. He then
asked me to lift my head up to take a picture of me. I
didn't comprehend well, and that is when he started to
choke and strangulate [sic] me. Officer B. Ramos III #2768,
and officer N. Garza #4304 just stood there watching him
Pl.'s Compl., p. 4, ECF No. 1. He asks the court to order
his acquittal on all charges in his criminal case and
“compensation for mental trauma/agony.”
Deputy Nathaniel Garza, Deputy Ben Ramos III, and Sergeant
Edward Calderon denied Zuniga's claims and asserted
qualified immunity defenses in their answers. Answer of Ramos
and Garza, p. 2, ECF No. 13; Answer of Calderon, p. 2, ECF
No. 23. Defendants then filed a motion for summary judgment
or, in the alternative, motion for judgment on the pleadings.
Defs.' Mot. Summ. J., ECF No. 32. In their motion,
defendants described the events of June 6, 2016 in greater
explained he gave chase when he observed Zuniga driving his
vehicle with a toddler standing unsecured in the rear seat.
Id., Ex. C (Decl. of Nathaniel Garza, May 14, 2019),
p. 1, ECF No. 32-4. He followed Zuniga in his
clearly-marked-patrol car through San Antonio neighborhoods
at speeds up to 85 miles per hour. Id. He observed
Zuniga jump in the back seat-with a passenger remaining in
the front seat-and grab the child while the vehicle moved
forward at 40 miles per hour. Id. at 2. He described
how Ramos stopped Zuniga's vehicle by blocking it with
his patrol car. Id. He explained he ordered Zuniga
out of his vehicle at gun point, and when he refused, he hit
the rear window with his baton to gain entry. Id. He
noted he “then detained Mr. Zuniga without
incident.” Id. Garza maintained Calderon did
not use excessive force at the scene of the incident:
Investigator E. Calderon #1236 arrived on the scene to
conduct his investigation. I did not observe Investigator
Calderon choke or strangle Mr. Zuniga. I did not observe E.
Calderon touch Mr. Zuniga at all. I did not see excessive
force being used by any Bexar County Officer toward Mr.
Zuniga. Given my knowledge and training, I am able to
recognize when the force used to obtain a detainee's
compliance is excessive. No. officer used excessive force
toward Mr. Zuniga in this case. I did not intervene during
Investigator Calderon's interaction with Mr. Zuniga
because I did not observe any use of excessive force by
Investigator Calderon toward Mr. Zuniga. I did not render aid
to Mr. Zuniga because I did not observe any excessive force
being used against him.
Id. at 2-3.
described Zuniga as “uncooperative and had to be taken
to the ground and secured in handcuffs. We then assisted him
to his feet and escorted him to the back of my patrol vehicle
without incident.” Id., Ex. B (Decl. of Ben
Ramos III, May 12, 2019), p. 2, ECF No. 32-3. Ramos claimed
he did not see Calderon use excessive force after he arrived
to investigate the incident:
Detective E. Calderon #1236 arrived to conduct his
investigation. I did not observe any use of excessive force
by E. Calderon toward Mr. Zuniga. I did not observe E.
Calderon strangle or choke Mr. Zuniga. I did not need to
intervene or render aid to Mr. Zuniga because I did not
observe any excessive force being used against him during the
supplement to the official Sheriff's Office report on the
incident that Calderon prepared on June 26, 2016, does not
mention any use of force:
I was . . . notified of the incident and . . . proceeded to
the scene. . . . Upon arriving to location I made contact
with Deputy Garza. . . . I proceeded to Deputy Garza's
vehicle to make contact with Cesar [Zuniga] and obtain his
statement. I asked Cesar [Zuniga] if he wished to provide me
with a statement and he did not comply. I asked Cesar several
times if he was willing to provide me with a statement and he
remained silent, acting as if he did not hear anything I
mentioned. Cesar was uncooperative and did not say one word.
Deputy R. Chapa arrived at location and photographed
Cesar's vehicle and Deputy Ramos' vehicle. Cesar was
then brought out of the patrol vehicle and photographs were
taken. Cesar was then transported to 401 S. Frio and booked
for Evading Motor Vehicle and Child Endangerment.
Id., Ex. A-1, (Supplementary Report, June 26, 2016),
p. 5, ECF No. 32-2. Calderon later asserted “I did not
make physical contact with Mr. Zuniga during this incident
[and] I did not see any excessive force being used by any
officers at the scene, including by those photographing Mr.
Zuniga.” Id., Ex. A (Decl. of Edward Calderon,
May 13, 2019), p. 3, ECF No. 32-1.
the nature of Zuniga's claim, Detective Sylvia Perez from
the Public Integrity Unit investigated the incident.
Id., Ex. D (Decl. of Sylvia Perez, May 15, 2019),
ECF No. 32-5. She reviewed photos of Zuniga taken on June 6,
2016, but she did not find bruises or marks on his neck
consistent with chocking. Id. at 2. She also
interviewed Zuniga and Calderon. Id. at 1.
“Zuniga stated he identified Edward Calderon as the
person who chocked him after reviewing the police
report.” Id. at 2. He claimed that “he
was choked by a tall bald man.” Id. But Perez
noted “Calderon is not tall [and] Calderon is not
bald.” Id. Perez concluded there was “no
basis for Cesar Zuniga's allegations.” Id.
Court ordered Zuniga to file and serve certain documents on
defendants' counsel on or before January 18, 2019:
a. An executed original of the Medical Authorization form
attached to this scheduling order.
b. A complete list of the names and addresses of: (1) all
physicians, physician's assistants, nurses,
chiropractors, or other medical care providers who have
provided Plaintiff with any medical care during Plaintiffs
period of incarceration or detention, including any medical
care relevant to this lawsuit; and (2) all hospitals,
clinics, infirmaries or other facilities where he received
any medical care or treatment for any injuries relevant to
Order, ECF No. 24.
to defendants, Zuniga neither “provided a medical
authorization, nor any contact information for a single
medical care provider” to them. Defs.' Mot. Summ.
J., p. 8, ECF No. 32. Defendants assert Zuniga has,