Opinion
No. 3:01-CV-983-M
January 30, 2003
MEMORANDUM ORDER AND OPINION
Before the Court is Defendants' Motion for Summary Judgment, filed June 14, 2002, in which the City of Ennis ("the City") and John Erisman ("Erisman"), a police officer employed by the City, seek dismissal of all of Plaintiff's claims against them. After reviewing the Motion, Briefs, Response, Reply, and the supporting evidence submitted by the parties, the Court is of the opinion that the Motion should be GRANTED.
I. BACKGROUND
This is a civil rights action filed under 42 U.S.C. § 1983 in connection with the shooting death of Felipe Andrade ("Andrade"). Andrade's mother, Elda Mata, brings this suit in her individual capacity and as legal representative of her son. She alleges that Defendant Erisman and the City deprived her son of rights guaranteed by the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and that Defendants deprived her of rights as a parent under the Fourteenth Amendment. She also seeks an injunction to prevent the City from employing Erisman in any capacity in which he would carry a weapon.
Certain key facts are undisputed. On May 22, 1999, an individual representing himself as "Felipe Andrade" purchased a handgun from the Ennis Pawn Shop. At approximately 11:30 p.m. that night, Andrade was walking near the railroad tracks in Ennis, Texas. Around 11:40 p.m., Defendant Erisman was in a police car near the railroad overpass at Belknap Street responding to reports that shots had been fired near the area. Erisman encountered Andrade near the railroad overpass and witnessed Andrade falling to the ground at the bottom of the railroad embankment. At some point thereafter, Officer Erisman shot Andrade in the chest, killing him. Photographs from the scene reveal that Andrade was wearing blue jeans and an unbuttoned blue plaid shirt over a white t-shirt.
The railroad tracks run parallel to and in between N.W. Main and N.E. Main Streets, and they pass over Belknap Street, which intersects N.W. and N.E. Main.
According to Defendants, Officer Erisman, Officer Jon Hykel, and Holly Friday are the only living witnesses to the shooting. Plaintiff presents no eyewitnesses and bases her entire case on circumstantial evidence and on a critique of the Defendants' version of the facts.
Defendants' version of the facts. In the evening of May 22, 1999, a dispatcher at the Ennis Police Department received several 911 calls regarding a subject who was randomly firing a weapon. The dispatcher advised Officer Donald Kemp of the reports, and Officer Kemp attempted to locate the shooter. At about the same time, Sergeant Randy Owen and Officer Jon Hykel were in their cars in a Blockbuster parking lot when three individuals in a pickup truck arrived. The driver, Jason Dupree, reported to Owen and Hykel that while he was driving down Belknap near the railroad overpass, a Hispanic male wearing baggy pants and a blue shirt fired a shot into the windshield of Dupree's truck. Sergeant Owen made a radio report of the incident and of the description of the shooter.
Defendants also present the sworn statement of Casey Brooke Orman, taken at the Ennis Police Department on May 24, 1999. While driving on N.W. Main, she encountered a man standing in the grassy area between the road and the railroad tracks. She watched the man walk to the opening of the railroad underpass on Baylor Street when a pickup truck came through the underpass from the other direction. She observed the man fire one shot with a handgun at the truck and then run north onto the grass between the railroad tracks and the road.
After hearing Sergeant Owen's radio report, Officer Kemp drove toward the intersection of N.W. Main and Belknap, and there observed a Hispanic male fitting the description of the shooter who was standing on the railroad overpass. The suspect fired his handgun at Officer Kemp's vehicle, and Officer Kemp notified dispatch and other officers in the area that he had been fired upon.
After hearing a shot fired and Officer Kemp's dispatch, Officer Erisman drove south on N.E. Main toward Belknap and observed a man standing on the railroad overpass. Erisman parked his car, took cover behind the driver's side door, shined his spotlight on the suspect, and drew his weapon. Officer Hykel also arrived, parked his car behind Erisman's vehicle, obtained the Ennis Police Department shotgun from his vehicle, and observed the man standing on the overpass.
Officers Erisman and Hykel identified themselves as police officers and ordered the suspect to get down and drop his weapon. Erisman also claims to have instructed the suspect to stop, using the Spanish word, "Alto!" The suspect then walked south on the railroad tracks, and when he raised his right hand, the officers observed a handgun in it. Next, the suspect ran quickly down the railroad embankment towards the two officers. The officers repeated their command to him to drop his weapon. At the bottom of the embankment, the suspect fell to the ground. Then, he got up and started running toward the officers while screaming unintelligible words and pointing his weapon in their direction. The officers claim that at this point they feared their lives were in danger. When the suspect was about 20-30 yards from the officers, Officer Hykel attempted to fire at him, but because the safety feature of his shotgun was engaged, his gun did not fire. Officer Erisman then fired a single shot at the suspect's chest, and the suspect dropped to the ground.
Defendants present in their evidence the sworn statement Holly Friday gave at the Ennis Police Department on June 4, 1999. She swore she was driving on N.W. Main toward the Belknap underpass the night of the incident. She observed a man standing on top of the railroad tracks and a police car on the west side of the tracks that had its spotlight shining on the man. She drove through the underpass going east and then observed the man fall. He then got up and walked toward another police car parked on N.E. Main. Through her rearview mirror, she observed a police officer raise his arms in preparation to shoot.
Officers Erisman and Hykel, and Officer Tuley, who had just arrived on the scene, then approached the suspect, handcuffed him, and called an ambulance. He was pronounced dead at the scene, and a handgun was recovered a few feet from his body. The body of the deceased was later identified as that of Andrade.
Lieutenant Ron Roark arrived after midnight to begin an investigation of the incident. He photographed the scene, measured the area and the body of the deceased, and searched for evidence. Lieutenant Roark returned to the scene after daybreak on May 23, 1999 to continue the investigation. He recovered a bullet clip that appeared to match the suspect's handgun.
An autopsy revealed that Andrade was killed with a single bullet which perforated his lung and spinal cord and that his blood alcohol content was 0.12%. Forensic testing revealed the presence of gun powder residue on Andrade's hands. The investigation also tracked the handgun to the Ennis Pawn Shop and the bullets to a Wal-Mart store in Ennis.
Defendants also present in their evidence the sworn statement of Terrell Garner, assistant manager of the Ennis Pawn Shop. He states that "[o]n Saturday, May 22, 1999, sometime between 1:00 p.m. and 2:00 p.m., a young man that has been coming to the pawn shop for approx[imately] 4 years or so, that I know as Felipe Andrade came into the shop" and bought a pistol. Defs.' App. at 40.
Defendants also present the sworn statement of Felista Adams, taken at the Ennis Police Department on June 2, 1999. She was employed at a Wal-Mart in Ennis, Texas and claims to "have known Felipe Andrade for years." Defs.' App. at 46. She was working at about 2:30 p.m. on May 22, 1999 when she assisted Andrade with a purchase of two cases of 9 millimeter shells.
Plaintiffs position as to the facts. Plaintiff contends that issues of material fact exist as to the truth of many of Defendants' factual allegations. Plaintiff points to differences in the various signatures on the Firearms Transaction Record, allegedly filled out by Andrade when he purchased the handgun, and suggests that Andrade may not have been the purchaser. Plaintiff alleges inconsistences in the evidence create fact issues as to whether or not witnesses observed Andrade shooting at vehicles the night of the incident. Plaintiff produces photographs of Andrade at the scene and at the funeral home to show that Andrade had a bruise on his face when he died. Plaintiff contends the photographs create fact issues as to whether or not the police and Andrade were in an altercation before the shooting. Plaintiff also suggests the police may have handcuffed Andrade before he was shot, arguing that the nature of Andrade's injuries would have obviated any need to handcuff Andrade after he was shot. According to Plaintiff, the path of the bullet and the relative locations of Andrade, the police officers, and the railroad embankment suggest that fact issues exist as to whether or not Andrade was on the ground or falling when he was shot. Finally, Plaintiff argues that evidence exists supporting the conclusion that the police planted the gun and bullet clip found at the scene after Andrade died. Plaintiff contends these issues create genuine issues of material fact which preclude summary judgment.
I. STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. "[T]he substantive law will identify which facts are material." Only genuine disputes about those facts will preclude the granting of summary judgment. The burden is on the party moving for summary judgment to prove that no genuine issue of material fact exists. If the moving party meets this initial burden, the burden then shifts to the nonmovant, who must produce evidence establishing a genuine issue of material fact for trial. The record before the court must be considered in the light most favorable to the opposing party. However, bare allegations in briefs and pleadings are not sufficient to withstand summary judgment.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id.
Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990).
Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986).
Anderson, 477 U.S. at 248; Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985).
Alizadeh v. Safety Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).
II. ANALYSIS
A. Plaintiff's Claims for Violations of Andrade's RightsThe Fifth Circuit has held that section 1983 incorporates state wrongful death and survival statutes "to provide . . . full remedies for violations of constitutional rights." Thus, trial courts must analyze state wrongful death and survival statutes to determine who may properly assert claims under section 1983. Here, Plaintiff properly asserts claims under sections 71.004 and 71.021 of the Texas Civil Practice and Remedies Code to obtain recovery for the alleged deprivation of Andrade's constitutional rights.
Rhyne v. Henderson County, 973 F.2d 386, 390 (5th Cir. 1992) (citing Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1961)).
Rhyne, 973 F.2d at 390.
Section 71.004(a) provides that a wrongful death action is "for the exclusive benefit of the surviving spouse, children, and parents of the decedent." TEX. CIV. PRAC. REM. CODE ANN. § 71.004(a) (Vernon 1986). Section 71.021(b) states that "legal representatives" are among those that may bring a survival action. TEX. CIV. PRAC. REM. CODE ANN. § 71.021(b) (Vernon 1986).
1. Fourth Amendment Excessive Force Claim Against Officer Erisman
A private right of action may be asserted against police officers who violate federal constitutional or statutory rights while acting under color of state law. Here, Plaintiff alleges that Officer Erisman's use of deadly force against Andrade deprived him of rights secured to him by the Fourth Amendment. Officer Erisman moves for summary judgment, arguing that he is entitled to qualified immunity as to that claim.
42 U.S.C. § 1983 (1994).
An analysis of the qualified immunity defense requires a two-step approach. First, the threshold question is "whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the officer's conduct violated a constitutional right." If the allegations could make out a constitutional violation, the second question is whether it would have been "clear to a reasonable officer that his conduct was unlawful in the situation confronted." Thus, an official is entitled to the defense of qualified immunity "insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would be aware."
Keenan v. Tejeda, 290 F.3d 252, 261 (5th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Id.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The Supreme Court in Saucier v. Katz explained that courts must consider the requirements of qualified immunity in the proper sequence. The Court must determine at the outset whether the factual allegations, viewed in the light most favorable to the Plaintiff, reveal a constitutional violation. If the facts alleged do not reveal such a violation, there is no need for the Court to proceed to the next step in the qualified immunity analysis.
533 U.S. 194 (2001).
Id. at 201.
Id.
On summary judgment, Plaintiff cannot rest on the facts alleged in the Complaint. Thus, this Court must first determine whether "the facts established by the summary judgment record, viewed in the light most favorable to [Plaintiff], . . . demonstrate the violation of a constitutional right." To establish an excessive force claim under the Fourth Amendment, Plaintiff must produce evidence of (1) an injury, (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the excessiveness of which was objectively unreasonable.
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3416 (U.S. Dec. 4, 2002) (No. 02-861) (citing Behrens v. Pelletier, 516 U.S. 299, 309 (1996)).
Id. at 326.
Heitschmidt v. City of Houston, 161 F.3d 834 (5th Cir. 1998).
The Supreme Court has explained that a police officer may use deadly force when the officer has reason to believe that a suspect poses a threat of serious physical harm to the officer or others. When evaluating an excessive force claim, "[t]he `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." The test for reasonableness is an objective one. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation."
Tennessee v. Garner, 471 U.S. 1, 11 (1985).
Graham v. Connor, 490 U.S. 386, 396 (1989).
Id. at 396-97.
The element of Plaintiff's claim requiring proof of an injury is clearly satisfied, as it is undisputed that Erisman fatally shot Andrade. However, the facts relevant to the remaining elements are in dispute. Therefore, it is the Court's task to determine, based on competent summary judgment evidence, whether Plaintiff alleges facts sufficient to meet her summary judgment burden as to the two remaining elements of her excessive force claim. While the Court must draw all reasonable inferences favorably to the Plaintiff, the Court will not consider conclusory allegations and unsupported speculation as competent summary judgment evidence.
See Williams v. Bramer, 180 F.3d 699, 702 (5th Cir. 1999).
Hugh Symons Group v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir. 2002).
Plaintiff claims that because Andrade did not pose a serious threat of harm to Erisman or others, Officer Erisman's use of force was excessive, and applied in a manner that was objectively unreasonable.
To support her claim, Plaintiff makes these arguments. First, Plaintiff contends that fact issues exist as to whether or not Andrade purchased the handgun from the Ennis Pawn Shop. Plaintiff offers the Firearms Transaction Record which shows that on the day of Andrade's death someone using his name purchased the handgun found at the scene. The Firearms Transaction Record is a form stating that it "must be completed personally by the transferee (buyer)." Noting that each time Andrade's name appears on the form it is in "separate and distinct handwriting," Plaintiff suggests that someone other than Andrade may have forged his signature and purchased the gun. Defendants, on the other hand, present the sworn statement of Terrell Garner, Ennis Pawn Shop's assistant manager, who knew Andrade and affirms that he was the purchaser of the gun. Garner states he conducted the FBI background check and instructed Andrade to fill out the paperwork required for his purchase. Although the signatures on the Firearms Transaction Record are not identical, as a matter of law that is an insufficient basis for the conclusion that Andrade was not the purchaser, did not have the weapon before he died, and did not present a threat of harm to the officers.
Pla.'s Ex. No. 10.
Pla.'s Resp. Br. at 9.
Plaintiff also questions Erisman's claim that he came to the scene after witnesses reported seeing a man standing on a railroad overpass firing a weapon at vehicles. Plaintiff argues that there are fact issues as to whether or not the witnesses Hykel and Owen claim to have encountered in the Blockbuster parking lot exist. Plaintiff notes discrepancies between the two officers' descriptions of the witnesses and notes that only one of them was identified in Lieutenant Roark's report. The minor differences between the officers' descriptions do not support the inference that the police fabricated the existence of the witnesses. Similarly, the fact that the witnesses' names do not appear in Owen's Affidavit or Hykel's Ennis Police Department Supplementary Report does not support such an inference. Plaintiff also reviews the various descriptions of the shooter reported by Sergeant Owen after he met Dupree and his passengers, and those of Officers Kemp and Erisman, to argue that Andrade may not have been the shooter described by the witnesses. The slight differences in the descriptions are not sufficient to raise a fact question as to whether or not Andrade was the man witnesses described or as to whether or not Erisman believed that Andrade was the man the witnesses claimed to have seen shooting at vehicles.
Officer Hykel states in his Ennis Police Department Supplementary Report that just before midnight, he was talking with Sergeant Owen in the Blockbuster parking lot when an unknown subject pulled up in a pickup, and advised that there is a subject on the railroad overpass shooting at people." Defs.' App. at 25. Sergeant Owen did not report speaking with Officer Hykel, but did report that "[a]t approximately 11:53 p.m., three white males in a brown one ton Chevy pickup truck pulled up" and described a man who had shot at their vehicle. Defs.' App. at 16.
Lieutenant Roark, the investigating officer, identifies Jason Dupree as the driver of the other two witnesses in his supplementary report attached to his Affidavit. Defs.' App. at 33.
Plaintiff produced a picture of Andrade after he was shot. Andrade was clothed in blue jeans and an unbuttoned blue plaid shirt, over a white t-shirt. Sergeant Owen reported that witnesses had described a Hispanic suspect wearing a blue shirt with baggy jeans. Officer Kemp described a white or Hispanic male wearing a white shirt and either blue or black pants. Erisman observed a white or Hispanic male wearing a white shirt and dark colored pants. The medical examiner's report states that Andrade was wearing a plaid shirt, t-shirt, and jeans. These minor differences, which might not be inconsistent at all, do not create a genuine issue of material fact.
Plaintiffs allegation that the police were in a physical altercation with Andrade before Erisman shot him is also without support. Plaintiff argues that photographs of Andrade at the scene of his death and at the funeral home show he had a black right eye. Plaintiffs Affidavit states that Andrade did not have a black eye approximately two hours before his death. However, even viewing this evidence in the light most favorable to the Plaintiff, the Court could allow the jury to conclude only that Andrade suffered a bruise below his right eye during the two hours before he died. That certainly does not suffice to establish that the police had any role in that injury. Andrade was engaged in some unknown conduct after Plaintiff last saw him and before he encountered the police. Linkage of that injury to the police is a matter of pure speculation.
Similarly, a jury could not reasonably infer from this evidence that the police handcuffed Andrade before Erisman shot him. It is undisputed that an officer put handcuffs on Andrade that night. The medical examiner's report indicates that the bullet fired by Erisman hit Andrade's lung and spinal cord. Plaintiff argues that because Andrade would not have been able to move after such a wound, there was no reason to handcuff him. Although the seriousness of his injuries may have rendered handcuffs practically unnecessary, one could not reasonably infer from the circumstances that the police actually handcuffed Andrade before shooting him.
Defendants contend that the officers placed handcuffs on Andrade after he was shot for "officer safety reasons." Defs.' Mot. at 12.
Plaintiff also cites witness statements that a train was passing over the railroad tracks during the incident, arguing that Andrade would not have been able to hear if Erisman and/or Hykel yelled, "Get down!," "Drop your weapon!," and/or "Alto!" However, such evidence does not support the conclusion that Erisman believed that Andrade was unable to hear his commands; nor does it by itself suffice to establish that Andrade did not pose a physical threat to the officers at the scene.
Plaintiff further contends that Andrade was not in a threatening position when Erisman shot him. Erisman admits Andrade fell to the ground at the bottom of the railroad embankment. A photograph of the scene reveals that Andrade was only a short distance from the bottom of the railroad embankment when he was shot. The autopsy report states that the gunshot wound was "front to back, right to left, and downward" and that the "range of fire [was] distant." Thus, Plaintiff contends that Andrade could not have posed a threat to the officers because he was either on the ground, on his knees, or falling when he was shot.
Defs.' App. at 49.
Even if the Court draws all reasonable inferences in favor of the Plaintiff, neither the path of the bullet nor the fact that Andrade had fallen a few feet from where he was shot support the conclusion that Andrade was on the ground, falling, or somehow incapacitated when he was shot. The relative elevations of the positions of Andrade and the police are not in evidence and no expert testimony is offered to extrapolate from the autopsy. Without such evidence, the inference that Plaintiff urges is not supportable. Competent summary judgment evidence contradicts Plaintiff's unsupported contention that Andrade was on the ground, falling, or somehow incapacitated when he was shot. The sworn statement of an eyewitness states that Andrade fell down, got up and advanced towards the officers, and then was shot.
Plaintiff contends that photographs from the scene reveal that Erisman was on lower ground than Andrade and that a downward bullet trajectory could not have occurred unless Andrade was close to the ground or falling when the shot was fired. Plaintiff fails to explain how any of the four photographs of the scene in the evidentiary record support this contention. One photograph is a closeup of the decedent. Another depicts the west side of the railroad tracks. Neither of these photographs support a conclusion about the scene where Andrade was shot—the east side of the tracks. While the other two photographs are of the east side of the railroad tracks, it is not clear from either of them that Erisman was on lower ground than Andrade when the shot was fired. The Court cannot tell from the photographs, and Plaintiff does not explain, where Erisman was standing relative to Andrade. Plaintiff produces no measurements of the area or other evidence that would indicate that Erisman fired from lower ground. These photographs without more do not create a fact issue supporting the conclusion that Erisman was on lower ground than Andrade and that, therefore, Andrade must have been on the ground or falling when he was shot.
Statement of Holly Friday; Defs.' App. at 43. Additionally, Erisman's Affidavit states that Andrade fell down at the bottom of the embankment and then got up and ran toward him and Hykel. Defs.' App. at 3. Hykel's Ennis Police Department Supplementary Report states that Andrade was shot when he was standing in the middle of the field by the railroad tracks and pointing his gun toward the officers. Defs.' App. at 25.
Finally, Plaintiff contends that Andrade could not have posed a threat to the officers because the police "planted" the gun they claim to have found a few feet from Andrade's body and the bullet clip Lieutenant Roark allegedly found the morning after the incident. Plaintiff suggests the jury could draw such a conclusion based on nothing more than "perplexing inconsistencies" in the Defendants' factual account. Plaintiff also alleges that someone may have contaminated Andrade's hands with gunpowder after his death, noting there were no photographs taken of Andrade's body or his hands before the body was moved. Plaintiff offers no proof of either of these Contentions, and the Court cannot find fact issues supporting Plaintiffs excessive force claim based purely on speculative and unsupported allegations of misconduct, which Plaintiff attributes without evidence to the police.
Pla.'s Resp. Br. at 14.
Plaintiff presents as summary judgment evidence two photographs of Andrade apparently taken at the scene of his death.
Plaintiff has failed to produce competent summary judgment evidence on which a reasonable jury could find that Erisman's use of force was excessive and that his conduct was unreasonable. Plaintiff correctly cites Baker v. Putnal, for the proposition that summary judgment is improper in an excessive force case where many factual issues are in dispute. However, this case is not comparable to Baker. In Baker, the plaintiff put forward "the sworn testimony of three witnesses who state[d] that the decedent took no threatening action" toward the officer who killed the decedent. Additionally, in Baker, the plaintiff offered witnesses who disputed the defendant's contention that the decedent was holding a pistol or pointing it at the officer when he was shot.
75 F.3d 190 (5th Cir. 1996).
Id. at 198.
Id.
Here, Defendants allege that Erisman came to the scene after hearing reports that Andrade had shot at civilians and at Officer Kemp. Defendants further contend that Andrade was advancing towards Officers Erisman and Hykel with a weapon pointed in their direction. Plaintiff asks the Court to allow the jury to infer that the police and Andrade had a physical altercation before Erisman shot Andrade, and that Andrade was shot while handcuffed, unarmed, and either on the ground or falling. Such allegations are not supported by competent summary judgment evidence.
"[T]he facts alleged by [Plaintiff], as supplemented by the summary judgment record, do not demonstrate the violation" of Andrade's Fourth Amendment right to be free from excessive force. Thus, further inquiry is inappropriate, and the Court must grant summary judgment to Erisman on his qualified immunity defense.
McClendon v. City of Columbia, 305 F.3d 314, 326 (5th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3416 (U.S. Dec. 4, 2002) (No. 02-861).
Saucier v. Katz, 533 U.S. 194 (2001).
2. Fourth Amendment Excessive Force Claim Against the City
Plaintiff also brings suit against the City, seeking to hold it liable for Erisman's actions. Under Monell v. Department of Social Services, a city "cannot be held liable under section 1983 on a theory of respondeat superior . . . [but] it can be held liable when conduct depriving a person of constitutional rights was pursuant to [city] policy."
436 U.S. 658 (1978).
Brown v. Lyford, 243 F.3d 185, 191 (5th Cir. 2001).
However, in City of Los Angeles v. Heller, the Supreme Court held that a plaintiff cannot maintain a claim that a city is responsible for an officer's section 1983 violation if the officer inflicted no constitutional injury on the plaintiff. In Heller, the plaintiff brought a section 1983 action against the City of Los Angeles, a Los Angeles police officer, and other officials. After concluding that the jury's verdict absolved the officer of the alleged constitutional violations, the Court noted that none of its "cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm."
475 U.S. 796 (1986).
Id. at 797.
Id. at 799.
If a plaintiff cannot establish a constitutional violation by the officer, the fact that a government entity's policy "might have authorized the use of constitutionally excessive force is quite beside the point." Plaintiff has failed to establish that Officer Erisman deprived Andrade of his rights under the Fourth Amendment. Thus, Plaintiff's claim that the City is liable for a Fourth Amendment violation because of its allegedly unconstitutional policy fails as a matter of law.
Id. (emphasis in original).
3. Fourteenth Amendment Claims
Plaintiff cannot maintain her excessive force claim under the Fourteenth Amendment. In Graham v. Connor, the Supreme Court held that "all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach." Thus, "[s]ubstantive due process analysis is . . . inappropriate in this case only if [Plaintiffs] claim is `covered by' the Fourth Amendment." Fourth Amendment protections are implicated when a police officer seizes an individual, and "apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Thus, Plaintiff's Fourteenth Amendment excessive force claim is barred as such a claim is properly analyzed only under the Fourth Amendment, and for the reasons described above the claim is untenable in this case.
490 U.S. 386 (1989).
Id. at 395.
County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).
Guitierrez v. City of San Antonio, 139 F.3d 441, 445 (5th Cir. 1998) (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985) ("Whenever an officer restrains the freedom of a person to walk away, he has seized that person.")).
Tennessee v. Garner, 471 U.S. 1, 7 (1985).
Additionally, Plaintiff has failed to meet her summary judgment burden on the Fourteenth Amendment equal protection claim. Plaintiff fails to bring forth any facts indicating that "a state actor intentionally discriminated against [Andrade] because of membership in a protected class." Therefore, this claim must be denied as a matter of law.
Williams v. Bramer, 180 F.3d 699, 705 (5th Cir. 1999) (quoting Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989)).
4. First, Fifth, and Eighth Amendment Claims
The Court also denies as a matter of law Plaintiff's First, Fifth, and Eighth Amendment claims. The First Amendment provides that Congress should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Plaintiff fails to allege facts supporting a claim for violation of any of Andrade's First Amendment rights, and so her First Amendment claim must be denied.
The Fifth Amendment's due process clause applies only to federal actors. Neither the City of Ennis nor Officer Erisman is a federal actor, and Plaintiff's claims against them based on the Fifth Amendment must therefore be denied.
See Blackburn v. City of Marshall, 42 F.3d 925, 930 n. 3 (5th Cir. 1995) ("the due process component of the Fifth Amendment applies only to federal actors").
Finally, because Eighth Amendment protection extends only to those who have been convicted of a crime, and no such conviction is involved here, Plaintiff's Eighth Amendment claim is barred as a matter of law.
Thibodeaux v. Bordelon, 740 F.2d 329, 334 (5th Cir. 1984) (citing Ingraham v. Wright, 430 U.S. 651, 653 (1977)).
B. Plaintiffs Fourteenth Amendment Claim for Deprivation of Rights of Parenthood
Plaintiffs claim that Defendants deprived her of her Fourteenth Amendment rights of parenthood similarly cannot survive summary judgment. In Roe v. Texas Department of Protective and Regulatoty Services, parents of a minor brought a section 1983 action against the Texas Department of Protective and Regulatory Services and one of its social workers, asserting: (1) an individual claim under section 1983 that the social worker's entry into their home violated their Fourth Amendment rights; (2) a claim on behalf of the child that the social worker's visual body cavity search violated the child's Fourth Amendment rights; and (3) a claim that the social worker violated their Fourteenth Amendment rights to family association and bodily integrity.
299 F.3d 395 (5th Cir. 2002).
Id. at 400.
Id. at 402-03.
Id. at 411.
The Fifth Circuit held that plaintiffs could not assert their claim under the Fourteenth Amendment because "[t]he Fourth Amendment fully embraces a parent or child's claim that a social worker has unlawfully entered the home and conducted a visual body cavity search." The court noted the holding in Graham v. Connor that "whenever the Fourth Amendment fully protects against an unlawful arrest, courts should not consider the vaguer protections established by substantive due process." Applying Graham, the court held that the plaintiffs could not assert their rights of familial association and bodily integrity under the Fourteenth Amendment because the Fourth Amendment offered the parents and the child "complete protection" from the defendant's conduct.
Id.
490 U.S. 386 (1989).
Roe, 299 F.3d at 411.
Id.
Here, the Fourth Amendment fully covers Plaintiff's claims against Defendants. As noted above, Plaintiff's claim for use of excessive and deadly force is properly analyzed under the Fourth Amendment, and Plaintiff is within the group of individuals eligible to recover for violations of her son's Fourth Amendment rights pursuant to the Texas wrongful death and survival statutes. Roe suggests that Graham applies even if a plaintiff's claim under the Fourth Amendment is not successful. The Court must dismiss Plaintiff's claim for deprivation of her Fourteenth Amendment rights as a parent because the Fourth Amendment would offer full protection for her claims arising out of Defendants' use of deadly force against her son, if qualified immunity did not otherwise bar it.
Although the Plaintiff does not appear to have requested such relief, the Fifth Circuit has held that such individuals are also allowed to recover for their own injuries arising out of the wrongful death of another. See Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992); Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir. 1985). In Grandstaff the Fifth Circuit allowed a father to recover for loss of society and companionship in connection with the wrongful death of his son. Id. The Texas wrongful death statute provided the measure for the father's recovery. Id. However, Grandstaff would permit Plaintiff to recover pursuant to the Texas wrongful death statute for her own injuries only if she could prove Defendants violated her son's Fourth Amendment rights.
Roe, 299 F.3d at 411-12 (holding that the Fourth Amendment fully covered the government action of which plaintiffs complained even though the court held that the social worker did not violate the Fourth Amendment rights of the parents).
C. Plaintiff's Request for Injunction
The Court's holding that Plaintiff's constitutional claims against Defendants cannot survive summary judgment precludes any claim the Plaintiff may have for injunctive relief against the Defendants arising out of the same alleged constitutional violations.
III. CONCLUSION
The Court GRANTS Defendants' Motion for Summary Judgment and dismisses all of Plaintiff's claims against Erisman and the City.