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Zuniga v. Calderon

United States District Court, W.D. Texas, San Antonio Division

December 19, 2019

CESAR RAFAEL ZUNIGA, Plaintiff,
v.
BEXAR COUNTY DEPUTY SHERIFF E. CALDERON, BADGE # 1226, BEXAR COUNTY DEPUTY SHERIFF B. RAMOS III, BADGE # 2768, and BEXAR COUNTY DEPUTY SHERIFF N. GARZA, BADGE # 4304, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE PLEADINGS, AND DISMISSING PLAINTIFF'S CIVIL RIGHTS COMPLAINT

          JASON PULLIAM UNITED STATES DISTRICT JUDGE

         Before the Court is “Defendants' Motion for Summary Judgment and in the alternative, Motion for Judgment on the Pleadings.” Defs.' Mot. Summ. J., ECF No. 32.[1] 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.

         I. BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff 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 assault me.

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.” Id.

         Defendants 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 detail.

         Garza 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.

         Ramos 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 incident.

Id.

         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.

         Due to 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.

         The 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 this lawsuit.

Order, ECF No. 24.

         According 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, therefore, ...


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