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Moreno v. Meyer

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

January 3, 2020

ANTONIO MORENO, Plaintiff,
v.
JOHN MEYER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, Defendant.

          MEMORANDUM OPINION and ORDER GRANTING JOHN MEYER'S MOTION FOR SUMMARY JUDGMENT

          JASON PULLIAM UNITED STATES DISTRICT JUDGE

         On this 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 GRANTED.

         I. BACKGROUND

         On May 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.

         Moreno's 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.

         II. LEGAL STANDARD

         Under 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.”[1] “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)).

         When 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 253.

         In 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).

         III. DISCUSSION

         A 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)).

         In this 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.

         To 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. 1998)).

         In the 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 ...


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