Opinion
SA-20-CV-985-OLG (HJB)
03-20-2023
CEDRIC EARL HILL, Plaintiff, v. DETECTIVE JORDAN HAREN, OFFICER ERNEST VENEGAS, OFFICER SHANE PRINCE, OFFICER IKAIKA VIESCA, CITY OF PLEASANTON, PLEASANTON POLICE DEPARTMENT, and CHIEF ROLAND SANCHEZ, Defendants.
Honorable Orlando L. Garcia, United States District Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad United States Magistrate Judge
This Report and Recommendation concerns Defendants' Motion for Summary Judgment. (Docket Entry 39.) Pretrial motions in this case have been referred to the undersigned for consideration. (See Docket Entry 5.) For the reasons set out below, I recommend that Defendants' motion be GRANTED, and that Plaintiff's case DISMISSED WITH PREJUDICE.
I. Jurisdiction.
Plaintiff brought suit alleging violations of 42 U.S.C. § 1983. (Docket Entry 1.) The Court has original jurisdiction over his federal claims pursuant to 28 U.S.C. § 1331. I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b).
II. Background.
This case arises from Plaintiff's arrest in Pleasanton, Texas, on June 6, 2019. On that date, Pleasanton Police Officer Ernest Venegas responded to a dispatch call regarding a verbal confrontation at a gun shop. (See Docket Entry 39, at 4; Docket Entry 44-1, at 1.) He encountered Plaintiff, and the result of the encounter was that Plaintiff was arrested for interference with public duties, resisting arrest, and firearm charges. (Docket Entry 1, at 4; Docket Entry 44-7, at 1-2.) The charges were ultimately dismissed in March of 2020. (See Docket Entry 43, at 19-21.)
Proceeding pro se, Plaintiff filed this lawsuit, alleging claims under 42 U.S.C. § 1983 against Officer Venegas as well as Pleasanton Police Officers Shane Prince and Ikaika Viesca, Police Detective Jordan Haren, Police Chief Ronald Sanchez, and the City of Pleasanton. (See Docket Entry 1, at 2.) Plaintiff brought suit against the defendant officers in their official and individual capacities; the Court dismissed the official-capacity claims against the officers, as well as the claims against the City and Chief Sanchez. (See Docket Entry 22.) Plaintiff subsequently amended his complaint to state individual-capacity claims against the officers, as well as a renewed claim against the City. (Docket Entry 23.) Defendants now seek summary judgment on all Plaintiff's remaining claims. (Docket Entry 39.) Plaintiff has filed a response in opposition to the motion. (Docket Entry 43.)
III. Standard for Summary Judgment.
A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 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.” FED. R. CIV. P. 56(A). “A FACT IS MATERIAL IF IT MIGHT AFFECT THE outcome of the suit under the governing law, while a dispute about that fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Owens v. Circassia Pharms., Inc., 33 F.4th 814, 824 (5th Cir. 2022) (internal quotation marks omitted).
The moving party “always bears the initial responsibility of demonstrating the absence of a genuine issue of material fact.” Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019) (alterations omitted). When a movant would not bear the burden of persuasion at trial, the movant may satisfy the initial summary judgment burden “by pointing out that the record contains no support for the non-moving party's claim.” Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 997 (5th Cir. 2019).
If the moving party satisfies this initial burden, the nonmovant “must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Jones, 936 F.3d at 321. Even verified allegations in a pleading are insufficient to defeat summary judgment if they are nothing more than “conclusory allegations,” “unsubstantiated assertions,” or constitute “only a scintilla of evidence.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The non-movant's evidence must raise more than some “metaphysical doubt as to the material facts.” Funches v. Progressive Tractor & Implement Co., L.L.C., 905 F.3d 846, 849 (5th Cir. 2018). A genuine issue of fact does not exist “if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” City of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014).
IV. Analysis.
Title 42 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.Section 1983 “is not itself a source of substantive rights,” but instead “provides ‘a method for vindicating federal rights elsewhere conferred'” by the Constitution and federal statutes. Bradley v. Sheriff's Dep't St. Landry Par., 958 F.3d 387, 395 n.39 (5th Cir. 2020) (quoting Albright v. Oliver, 510 U.S. 266, 271 (1994)). To prevail in a § 1983 claim, a plaintiff must establish two elements: (1) a constitutional violation; and (2) that the defendants were acting under color of state law when they committed the constitutional violation. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013).
In this case, Plaintiff asserts § 1983 claims of constitutional violations by Defendant officers in their individual capacities; he also claims that officers failed to intervene to prevent the alleged constitutional violations, and that the City of Pleasanton as a municipality should be liable for the constitutional violations. (Docket Entry 23, at 7-15.) This Report and Recommendation first addresses the claimed constitutional violations by the individual officers, and then turns to the remaining failure-to-intervene and municipal-liability claims.
A. Claimed Constitutional Violations by the Individual Officers.
Plaintiff's amended complaint alleges claims for a variety of constitutional violations against the officers in their individual capacities. (Docket Entry 23, at 5-12.) The officers assert the defense of qualified immunity as to all these claims. (Docket Entry 39, at 3-4.) Qualified immunity protects government officials from liability for civil damages so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” City of Tahlequah, Ok. v. Bond, 142 S.Ct. 9, 11 (2021) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To overcome the defense, Plaintiff must establish that (1) the Defendant officers violated a constitutional right; and (2) their conduct was objectively unreasonable in light of law that was clearly established at the time of the violation. See Cunningham v. Castloo, 983 F.3d 185, 190-91 (5th Cir. 2020).
Plaintiff specifically alleges violations of the Fourth Amendment, the First Amendment, and the Fourteenth Amendment. (Docket Entry 23, at 5-12.) This Report and Recommendation addresses each in turn.
1. Fourth Amendment Claims.
Plaintiff raises Fourth Amendment claims for excessive force, unlawful arrest, unlawful search and seizure, and malicious prosecution. (Docket Entry 23, at 5-7, 9-12.) Defendants are entitled to qualified immunity on all these claims, as Plaintiff has failed to raise a genuine dispute of material fact that a constitutional violation occurred.
a. Excessive force.
To show a violation of the Fourth Amendment prohibition on excessive force, a plaintiff must show: (1) an injury; (2) the injury resulted directly and only from a use of force that was clearly excessive to the need; and (3) the forced used was objectively unreasonable. Darden v. City of Fort Worth, Tex., 880 F.3d 722, 727 (5th Cir. 2018); Bush v. Strain, 513 F.3d 492, 500-01 (5th Cir. 2008). “Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citations and quotation marks omitted). The proper application of the reasonableness test “requires 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.” Id. (citation omitted).
The first officer to have contact with Plaintiff was Ernest Venegas, who responded to a call regarding a disturbance at a gun shop called Gun Boss. Upon his arrival, he encountered Plaintiff exiting his 18-wheeler truck. (See Docket Entry 44-1, at 1-2.) According to Venegas's sworn declaration, the officer had physical contact with Plaintiff (1) when he directed Plaintiff to the front of his patrol car for a conversation, (2) when he handcuffed Plaintiff while trying to pat him down for weapons, and (3) when he eventually detained Plaintiff for resisting arrest and placed him in the patrol car, ultimately using leg restraints to secure him. (Id. at 2-3.) Venegas's declaration explains that, in each instance, he took the steps that he did because Plaintiff had either ignored his verbal requests or physically resisted as Venegas tried to perform his duties. (Id.) Venegas's testimony is corroborated by the sworn declaration of Officer Ikaika Viesca, who arrived at the scene, witnessed Plaintiff resisting Venegas's efforts, and assisted placing Plaintiff in the back of the patrol car. (Docket Entry 44-2.) The officers' declarations are further corroborated by the video recordings made of the encounter and presented into evidence. (See Docket Entry 42.)
In response to this evidence, Plaintiff submits as an exhibit what appear to be handwritten responses to Defendants' interrogatories, in which he states that he received injuries to his head, shoulders, arms, legs and testicles due to the officers restraining him. (See Docket Entry 43, at 27-40.) The handwritten document does not reflect that it was verified or made under oath;given Plaintiff's pro se status, however, the undersigned assumes that the assertions in the interrogatory responses could be presented in “a form that would be admissible in evidence.” FED. R. CIV. P. 56(C)(2). NEVERTHELESS, THE ASSERTIONS IN THE DOCUMENT DO NOT RAISE A GENUINE DISPUTE AS TO THE USE OF UNCONSTITUTIONAL EXCESSIVE FORCE. AT MOST, PLAINTIFF'S ALLEGATIONS RAISE A DISPUTE WHETHER INJURIES RESULTED FROM THE USE OF FORCE-THEY DO NOTHING TO SHOW THAT SUCH FORCE WAS EITHER EXCESSIVE TO THE NEED OR OBJECTIVELY UNREASONABLE. Darden, 880 F.3d at 727. To the contrary, the officers' declarations and the supporting video evidence shows that each use of force was necessitated by Plaintiff's own actions.
Plaintiff also submitted sworn objections to the officers' declarations. (Docket Entry 43, at 42-46.) These statements include no assertions regarding the facts at issue in the case; they state only that Plaintiff “do[es] not agree” with the officers' declarations. (Id.) Such conclusory statements are insufficient to withstand a motion for summary judgment. Little, 37 F.3d at 1075.
Plaintiff also attached to his response a hospital bill from the date of the incident. (Docket Entry 43, at 22-25.) Officer Venegas states in his affidavit that he took Plaintiff to the hospital at Plaintiff's request, but that Plaintiff refused to provide information to hospital staff and was discharged. (Docket Entry 44-1, at 3-4.) Plaintiff does not rebut these statements. In any event, the existence of a hospital bill does not show that any injury occurred, let alone that such injury was the result of excessive or unreasonable force.
Courts have “long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. Considering the Graham factors in this case, Plaintiff has failed to raise a genuine dispute that the officers' use of force was excessive or unreasonable. See Craig v. Martin, 49 F.4th 404, 416-17 (5th Cir. 2022) (granting summary judgment on excessive force claim where video evidence corroborated officer's declaration and plaintiff failed to present evidence beyond unsworn allegations and conclusory statements).
b. Unlawful arrest and unlawful search and seizure.
Plaintiff's unlawful-arrest and unlawful-search-and-seizure claims are considered together, as the facts concerning them are intertwined, and both Plaintiff's arrest and the search of his vehicle were conducted without a warrant.
Under the Fourth Amendment, an arrest without a warrant is lawful if the officer has probable cause. Loftin v. City of Prentiss, Miss., 33 F.4th 774, 780 (5th Cir. 2022). Probable cause justifying a warrantless arrest exists when the “facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'” Petersen v. Johnson, 57 F.4th 225, 232 (5th Cir. 2023) (quoting Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013)). “The validity of the arrest does not depend on whether the suspect actually committed a crime,” and whether a suspect is later acquitted of the offense for which he is arrested “is irrelevant to the validity of the arrest.” Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). This is because “[a]ctual probable cause is not necessary; merely arguable probable cause is sufficient to trigger qualified immunity.” Petersen, 57 F.4th at 232 (emphasis in original).
Officer Venegas submitted a probable cause affidavit to a magistrate on the day of the incident in this case. The affidavit indicates that Plaintiff was arrested for interference with public duties, resisting arrest, theft of a firearm, and unlawful possession of a firearm by a felon. (Docket Entry 44-7, at 1-2.) Venegas's affidavit recounted the facts described above, including Plaintiff's physical resistance to the officer's efforts to investigate and ensure safety. (Id. at 1.)
Plaintiff's conduct gave Venegas probable cause to believe that Plaintiff committed a violation of Texas Penal Code § 38.15, which states that a person commits the offense of interference with public duties when, with criminal negligence, the person “interrupts, disrupts, impedes, or otherwise interferes with . . . a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.” TEX. PENAL CODE § 38.15(a)(1) (2015). It is worth noting that, in order to violate the statute, a person's interference must consist of more than speech alone. A person does not commit interference by “merely arguing with police officers about the propriety of their conduct,” but must take actions such as “ma[king] physical contact with any of the officers or physically obstruct[ing]” them from performing their legally authorized duties. Freeman v. Gore, 483 F.3d 404, 414 (5th Cir. 2007); see TEX. PENAL. CODE § 38.15(d) (“It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only.”). In this case, the officers' uncontroverted affidavits and the videotape evidence meet this standard; they show that Plaintiff not only verbally, but physically resisted them. Thus, Plaintiff's conduct gave rise to probable cause to believe this offense had occurred.
After Plaintiff was placed under arrest, Officer Venegas conducted a warrantless inventory search of Plaintiff's truck in advance of its being towed from the scene. (Docket Entry 44-7, at 1.) As the Fifth Circuit has explained,
[A]n inventory search of a seized vehicle is reasonable and not violative of the Fourth Amendment if it is conducted pursuant to standardized regulations and procedures that are consistent with (1) protecting the property of the vehicle's owner, (2) protecting the police against claims or disputes over lost or stolen property, and (3) protecting the police from danger.United States v. McKinnon, 681 F.3d 203, 209 (5th Cir. 2012) (citation omitted). Defendants have presented as evidence the Pleasanton Police Department policy as to vehicle impoundment and inventory, which meets these requirements. (See Docket Entry 44-18, at 66-77.) Plaintiff presents no evidence that raises a dispute as to the validity of the inventory procedure employed in this case.
The inventory disclosed a 45-caliber pistol. (Docket Entry 44-7, at 1.) Officer Venegas entered the firearm serial number into law enforcement crime information databases, which listed the weapon as being stolen in Midland, Texas. (Id.) And a criminal history search of Plaintiff indicated that he had been convicted of aggravated robbery, a felony, in Belton, Texas. (Id.; see also Docket Entry 45, at 5.) All this information provided additional probable cause to arrest for the offenses listed in the officer's affidavit.
Plaintiff does not raise a genuine dispute as to any of these facts. Instead, he presents evidence that the charges were dismissed against him, and he argues that the ultimate dismissal of the charges against him show that probable cause was lacking. (Docket Entry 43, at 3, 19.) As noted above, however, the fact that a suspect is not ultimately convicted is irrelevant to the determination whether there was probable cause to arrest. See, e.g., Thompson v. Pruett, No. 4:21-cv-371, 2022 WL 1518520, *4 (E.D. Tex. Feb. 28, 2022) (“Fourth Amendment claims for false arrest focus on the validity of the arrest, not on the validity of each individual charge made during the course of the arrest.”) (citing Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001)). Here, there is no dispute that, at the time of Plaintiff's arrest, there was probable cause to believe Plaintiff committed at least one of the offenses for which he was arrested. This is sufficient for the arrest to pass scrutiny. See Hunter v. City of Hous., 564 F.Supp.3d 517, 527 (S.D. Tex. 2021) (“A sufficient showing of probable cause as to either [charge] necessarily undermines any assertion of unlawful arrest.”); Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (because officer's state of mind is not relevant to establish probable cause, officer's provided reason for executing arrest need not be same offense for which facts provide probable cause).
Plaintiff also argues that, although the gun may have been stolen by someone else, he bought it legitimately and it was later returned to its original owner. (Docket Entry 43, at 14.) Again, these arguments in no way show that the officers lacked probable cause at the time of the arrest.
For these reasons, Plaintiff has failed to raise a genuine dispute as to his unlawful-arrest and unlawful-search-and-seizure claims.
c. Malicious prosecution.
As the Supreme Court has recently explained, “the gravamen of the Fourth Amendment claim for malicious prosecution . . . is the wrongful initiation of charges without probable cause.” Thompson v. Clark, 142 S.Ct. 1332, 1337 (2022). Plaintiffs in the Fifth Circuit have to prove six elements to prevail on a constitutionalized malicious prosecution claim: “(1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) malice; and (6) damages.” Armstrong v. Ashley, 60 F.4th 262, 279 (5th Cir. 2023) (quoting Gordy v. Burns, 294 F.3d 722, 727 (5th Cir. 2002)).
The Fifth Circuit had abrogated Gordy in Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc), but as Armstrong explained, the Supreme Court in Thompson abrogated Castellano, thus reinstating Gordy's holding. 60 F.4th at 279.
Here, for the reasons outlined in Part IV(A)(1)(b), Plaintiff cannot show that the proceedings against him were commenced against him without probable cause. Conceivably, Plaintiff might be able to show that the firearm charges were continued against him without probable cause at some time between his June 6, 2019, arrest and the March 3, 2020, dismissal of those charges: there is evidence in the record that his aggravated robbery conviction was actually a juvenile offense, and he claims that the firearm seized from his truck was not actually stolen. (See Docket Entry 43, at 14; Docket Entry 44-4, at 3.) But even if he raises a genuine dispute on the continuation issue, his malicious prosecution claim cannot prevail. This is because he cannot show any damages that resulted from the continuation of his case. As discussed above, Plaintiff also faced a charge of interference with public duties, and that charge was supported by probable cause regardless of the validity of the weapons charges. Thus, the continuation of Plaintiff's criminal proceedings from June 2019 until March 2020 caused no independent injury to Plaintiff. Without such injury, the malicious-prosecution claim must be dismissed. See Armstrong, 60 F.4th at 279 (“[I]f the prosecution is supported by probable cause on at least one charge, then a malicious prosecution claim cannot move forward.”).
2. First Amendment Claim.
Plaintiff alleges that the officers retaliated against him for engaging in First Amendment conduct. (Docket Entry 23, at 7-8.) To establish a claim for retaliation in violation of the First Amendment, a plaintiff must show (1) engagement in a constitutionally protected activity; (2) an injury caused by the defendant's actions “that would chill a person of ordinary firmness from continuing to engage in that activity;” and (3) that the defendant's adverse actions were substantially motivated by the plaintiff's exercise of constitutionally protected activity. Cass v. City of Abilene, 814 F.3d 721, 729 (5th Cir. 2016) (per curiam) (citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)). As the Supreme Court recently clarified, in the context of a claim of retaliatory arrest or prosecution, the presence of probable cause generally defeats a First Amendment retaliation claim. Nieves v. Bartlett, 139 S.Ct. 1715, 1726 (2019); see Gonzales v. Trevino, 42 F.4th 487, 491-92 (discussing Nieves), reh 'g en banc denied, 2023 WL 2155932 (5th Cir. Feb. 22, 2023).
It is clear that the First Amendment protects the right to record the police. Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017). It is likewise clear that handcuffing a person and detaining them in a police car could chill a person of ordinary firmness from continuing to engage in the protected activity-indeed, the effect of these actions would often be to end such activity. However, as noted above, the officers in this case had probable cause to believe that Plaintiff was interfering with their lawful duties and resisting arrest. Moreover, the interference and resistance were not merely verbal, but physical, removing Plaintiff's actions from the protection of the First Amendment. Cf. City of Houston v. Hill, 482 U.S. 451, 461 (1987) (First Amendment “verbal criticism and challenge directed at police officers”). The existence of probable cause defeats Plaintiff's First Amendment claim. Nieves, 139 S.Ct. at 1726.Accordingly, this claim fails under the first prong of the qualified-immunity test.
In Nieves, the Supreme Court created “a narrow qualification” to the no-probable-cause rule “for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” 139 S.Ct. at 1727. The Court “conclude[d] that the no-probablecause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id. Plaintiff presents no such evidence and therefore Nieves's “narrow qualification” is inapplicable here.
3. Fourteenth Amendment Claim.
Plaintiff claims that Defendants deprived him of his property without due process of law when they impounded his truck, and seized a large box which contained his wallet and $2,000, his clothes, and the gun-which Plaintiff alleges was not stolen as officers believed. (Docket Entry 23, at 10-11.)
The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property without due process of law.” U.S. CONST. AMEND. XIV, § 1. EVEN ASSUMING THAT THE SEIZURE OF PLAINTIFF'S PROPERTY WAS IMPROPER, AN UNAUTHORIZED DEPRIVATION OF PROPERTY NEITHER VIOLATES DUE PROCESS NOR STATES A CLAIM UNDER § 1983 WHEN ADEQUATE POST-DEPRIVATION REMEDIES ARE PROVIDED BY THE STATE. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Combs v. City of Dallas, 289 Fed.Appx. 684, 687 (5th Cir. 2008) (applying Hudson to police officers' failure to return personal property confiscated during arrest). Accordingly, to sustain a due process challenge to a deprivation of property, a plaintiff must either take advantage of the available state remedies or prove that the available remedies are inadequate. Hudson, 468 U.S. at 534-35; Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).
Texas law provides adequate state post-deprivation remedies, including a state action for the Texas tort of conversion. Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (citing Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir.1994)). Because Plaintiff has available state postdeprivation remedies, his claim based on the alleged seizure of money and possessions by the police officers during arrest do not rise to a violation of the Due Process Clause. Cf. Hudson, 468 U.S. at 536 (even where prisoner's property was intentionally destroyed, such destruction did not violate Fourteenth Amendment because Virginia provided prisoner with an adequate postdeprivation remedy). Accordingly, Plaintiff's Fourteenth Amendment Due Process claim against the Defendant officers must be rejected.
B. Remaining Claims.
Plaintiff has two remaining claims not addressed above: (1) that each of the Defendant officers failed to intervene to prevent constitutional violations by other officers; and (2) that the City of Pleasanton is liable as a municipality for the officers' constitutional violations because the violations were committed pursuant to policy, custom or practice, reflected in a failure of training and supervision. (Docket Entry 23, at 9-10, 13-15.) Both these claims require that Plaintiff present evidence to support a finding of an underlying constitutional violation. See Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (failure to intervene); Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002) (municipal liability).
For the reasons set out above, Plaintiff has failed to raise a genuine issue as to the existence of a constitutional violation in this case. Without proof sufficient to survive summary judgment as to the claimed constitutional violations, Plaintiff's failure-to-intervene and municipal-liability claims must necessarily fail as well. See, e.g., Sligh v. City of Conroe, __ F.Supp.3d __, 2022 WL 3140502, *4-5 (S.D. Tex. Aug. 5, 2022) (dismissing failure-to-intervene and municipalliability claims where no underlying constitutional violation was shown).
V. Conclusion and Recommendation.
Based on the foregoing, I recommend that Defendants' Motion for Summary Judgment (Docket Entry 39) be GRANTED, and Plaintiff's case be DISMISSED WITH PREJUDICE.
VI. Instructions for Service and Notice for Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The party shall file the objections with the clerk of the court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections.
A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).