United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION and ORDER GRANTING JOHN
MEYER'S MOTION FOR SUMMARY JUDGMENT
PULLIAM UNITED STATES DISTRICT JUDGE
date, the Court considered Defendant John Meyer's
(“Meyer”) Opposed Motion for Summary
Judgment. (ECF No. 34). Although Plaintiff did not
respond, the Court evaluated the motion and applicable law.
After careful consideration, Defendant's motion is
11, 2016, Officers from the City of Uvalde Police Department
were dispatched to the Antonio Moreno residence for a subject
who was threatening to commit suicide by cop. As officers
arrived on the scene, dispatch alerted the officers that the
family was attempting to leave but that Antonio Moreno
(“Moreno”) would not let them. The City of Uvalde
Police Department secured a perimeter around the residence.
Numerous City of Uvalde Police Officers were on the scene to
establish the perimeter, including Meyer. Moreno came out of
the house with his hands raised and an attempt was made for a
peaceful surrender so that he could be taken to the hospital.
When it became apparent to the police that a peaceful
surrender was not likely, the Police Chief on the scene told
Meyer and other officers to take Moreno into custody. A
struggle ensued and Moreno was taken to the ground. The
officers were then able to restrain Moreno with handcuffs.
action is brought pursuant to 42 U.S.C. § 1983 and
alleges a single excessive force claim against Meyer. Moreno
alleges Meyer struck him in the testicles after Moreno was
placed in custody. Meyer admits to struggling with Moreno,
but asserts he did not intentionally kick Moreno in the
testicles. Meyer asserts qualified immunity.
Federal Rule of Civil Procedure 56(a), courts “grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” “As to materiality,
the substantive law will identify which facts are
material” and a fact is “material” only if
it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 248 (1986). When “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party, ” a dispute over a material fact
qualifies as “genuine” within the meaning of Rule
56. Id. Because there must be a genuine dispute of
material fact, “the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary
judgment.” Id. at 247-48. There is no genuine
dispute for trial when “the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party.” Scott v. Harris, 550 U.S.
372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
the movant asserts a qualified immunity defense, that
assertion “alters the usual summary judgment burden of
proof.” Brown v. Callahan, 623 F.3d 249, 253
(5th Cir. 2010). In the context of summary judgment,
governmental employees need only assert the defense in good
faith. See Gates v. Tex. Dep't of Protective &
Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008);
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007). They have no burden “to put forth evidence to
meet [their] summary judgment burden for a claim of
immunity.” Beck v. Tex. State Bd. of Dental
Examiners, 204 F.3d 629, 633-34 (5th Cir. 2000). Once a
governmental employee “invokes qualified immunity, the
burden shifts to the plaintiff to demonstrate the
inapplicability of the defense.” Club Retro, L.L.C.
v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009); accord
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th
Cir. 2002) (en banc). The plaintiff “must rebut the
defense” by establishing a genuine factual dispute as
to whether the “allegedly wrongful conduct violated
clearly established law.” Brown, 623 F.3d at
determining whether to grant summary judgment, courts view
all facts and reasonable inferences drawn from the record
“in the light most favorable to the party opposing the
motion.” Heinsohn v. Carabin & Shaw, P.C,
832 F.3d 224, 234 (5th Cir. 2016) (citation omitted).
However, courts have “no duty to search the record for
material fact issues.” RSR Corp. v. Int'l Ins.
Co., 612 F.3d 851, 857 (5th Cir. 2010); accord
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651
(5th Cir. 2012).
qualified immunity inquiry includes two parts. “In the
first we ask whether the officer's alleged conduct has
violated a federal right; in the second we ask whether the
right in question was ‘clearly established' at the
time of the alleged violation, such that the officer was on
notice of the unlawfulness of his or her conduct.”
Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019),
as revised (Aug. 21, 2019). To overcome a qualified
immunity defense, Moreno “must show that the law was so
clear, under circumstances reasonably analogous to those [the
officers] confronted, that no reasonable officer would have
used the amount of force they used.” Cooper v.
Flaig, 779 Fed.Appx. 269, 271 (5th Cir. 2019) (citing
Brosseau v. Haugen, 543 U.S. 194, 201 (2004)).
case, Moreno alleges Meyer used excessive force when he
kicked him in the testicles during a takedown that was
effectuated to apprehend him. Specifically, Moreno alleges
Meyer kicked him after he was “placed under
custody.” ECF No. 24 at 1. Chief Eric Herrera stated
that during the arrest, he heard Moreno yelling about being
kicked in his testicles. See ECF No. 34-3 at 10.
Chief Herrera further stated, “Lt. Meyer stated that
the subject had moved his leg and that caused him to
accidentally step on his groin.” Id.
Lieutenant Daniel Rodriguez stated, “At one point
[Moreno] attempted to pull upwards in an attempt to try to
roll over or get up, but Officer Hernandez and I were holding
him down. When Mr. Moreno did that, he began to yell
‘someone kicked me in the nuts' in a manner that
expressed he was in pain. I did not see who if anyone, kicked
Mr. Moreno in the groin area, but I did feel his body tug
forward.” Id. at 4. Meyer admits to struggling
with Moreno, but contends he did not intentionally kick
Moreno in the testicles. ECF No. 34 at 3. Meyer asserts
qualified immunity under “both prongs of the qualified
immunity defense.” Id. at 4.
overcome an asserted qualified immunity defense, Moreno must
point the Court to evidence that establishes a genuine
dispute of material fact as to whether (1) Meyer
“violated a federal constitutional or statutory right
or (2) the violated right was clearly established at the time
of the challenged conduct.” Escarcega v.
Jordan, 701 Fed.Appx. 338, 341 (5th Cir. 2017) (citing
Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir.
absence of a response, the Court looks to Moreno's Second
Amended Complaint and the evidence attached to Meyer's
Motion for evidence that establishes a genuine dispute of
material fact. ECF Nos. 24, 34. As to whether Meyer violated
a federal constitutional or statutory right, Moreno alleges
that Meyer violated his Fourth Amendment right against
unreasonable seizures by using excessive force in arresting
him. To prevail on an excessive-force claim, a plaintiff must
show “(1) injury, (2) which resulted directly and only
from a use of force that was clearly excessive, and (3) the