Hernandez v. Causey

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

GABINO RAMOS HERNANDEZ PLAINTIFF

v. CIVIL ACTION NO. 2:17-cv-123-TBM-MTP

PHILLIP CAUSEY and THE

UNITED STATES OF AMERICA DEFENDANTS

MEMORANDUM OPINION AND ORDER

On July 20, 2016, Gabino Ramos Hernandez was unarmed when he was shot in his right

forearm by Immigration and Customs Enforcement (“ICE”) Officer Phillip Causey. Pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.

Ed. 2d 619 (1971), Hernandez asserts that Causey violated his Fourth, Fifth, and Fourteenth

Amendment rights to be free from an unreasonable and excessive use of deadly force. Causey filed a

Motion for Summary Judgment based on qualified immunity. Because the Court finds that a genuine

issue of material fact exists as to the location of Hernandez’s hands at the time of the shooting,

Causey’s Motion for Summary Judgment based on qualified immunity is denied. In the light most

favorable to Hernandez, a jury could conclude that Hernandez was shot while he was standing with

his hands raised in the air.

In his Complaint, Hernandez also asserts three separate causes of action against the United

States pursuant to the Federal Tort Claims Act: 1) wrongful use of deadly force; 2) wrongful assault

and battery; and 3) negligent training and supervision. In response, the Government filed a Partial

Motion to Dismiss only the negligent training and supervision claim since discovery related to the

intentional tort claims is ongoing. In its Motion, the Government asserts that the “discretionary

function exception” of the Federal Tort Claims Act prevents negligent training and supervision suits

against it. As such, the Government submits that Hernandez’s negligence claim must be dismissed

for lack of subject matter jurisdiction. The Court finds that Hernandez has failed to satisfy the

minimum pleading requirements to withstand dismissal under the discretionary function exception,

and the negligent training and supervision claim is dismissed without prejudice under Rule 12(b)(1).

I. FACTUAL BACKGROUND

On July 20, 2016, Hernandez was driving home in Laurel, Mississippi. His brother was

following behind him in another vehicle. Hernandez’s brother allegedly rolled through a stop sign.

Laurel Police Department Officer David Driskell initiated his blue lights. [68-1], ¶ 2. Hernandez’s

brother did not immediately pull over. [68-1], ¶ 2. Officer Driskell followed the brother’s vehicle until

he pulled into a driveway on 13th Avenue. [68-1], ¶ 2. After pulling into the driveway, Officer Driskell

got out of his patrol car. [68-1], ¶ 2. Hernandez’s brother got out of his vehicle and appeared

intoxicated. [68-1], ¶ 3. Officer Driskell attempted to question Hernandez’s brother in English, but

discovered that his primary language was Spanish. [68-1], ¶ 3. While Officer Driskell was able to obtain

basic information from Hernandez’s brother in English, the language barrier made it difficult to

continue the questioning. [68-1], ¶ 3.

Officer Driskell knew that ICE agents were in the area performing immigration operations.1

[68-1], ¶ 3. He called ICE Deportation Officer Mike McGhee and requested translation assistance.

[68-1], ¶ 3. ICE Officer McGhee then called fellow ICE Deportation Officers Phillip Causey and Kyle

Le, who were assigned to the transportation van. It is clear from the record that the ICE Officers were

only told that the transportation van might be needed for deportation purposes at the address where

Hernandez was located. [75-1], pgs. 17:20-19:01; [68-3], ¶ 2; see also [68-4], ¶ 2.

1 Driskell testified that, earlier that evening, he stopped a Hispanic individual and had reason to believe the individual was

affiliated with the MS-13 gang. [75-3], pgs. 27:18-32:3. As a result, he called ICE Officer Mike McGhee.

After calling ICE Officer McGhee, Officer Driskell radioed a fellow Laurel Police Department

Officer and requested a breathalyzer. [75-8] at 3:59; [68-2], ¶ 2. At this point, Officer Driskell had not

yet spoken to Hernandez. [75-3], pg. 103:5-14.

After handcuffing Hernandez’s brother, Police Officer Driskell then addressed Hernandez,

who had exited his vehicle. [75-8] at 4:50-5:07. Hernandez asked Officer Driskell, “what’s the

problem?” [75-8] at 5:08-5:10. Officer Driskell responded, “he’s drunk.” [75-8] at 5:10-5:15.

Hernandez and Officer Driskell continued to converse, and Hernandez explained that the driver was

his brother. Id. Officer Driskell stated that someone was on the way who could speak Spanish, and

that they could continue their conversation once that person arrived. [75-8] at 5:15-5:41. It is clear

from the record that Officer Driskell never indicated that Hernandez was getting a ticket for a traffic

offense or that he was being detained. [75-3], pg. 81:13-23; [75-8] at 0:00-16:28. Instead, Officer

Driskell merely pointed to Hernandez’s vehicle with his flashlight and told Hernandez, “hang tight

right there, okay.” [75-8] at 5:39-5:41. Officer Driskell gave this instruction because he was the lone

officer on scene and was waiting on backup. [75-3], pg. 75:25-76:01.

Officer Driskell then returned to his patrol car where Hernandez’s brother was standing

handcuffed. [75-8] at 5:41-6:10. Hernandez began to walk towards Officer Driskell and his brother.

After Officer Driskell told him to “wait right there,” Hernandez stopped walking. [75-8] at 6:10-6:14.

Hernandez then explained, from a distance, that he had someone who could translate on the phone.

[75-8] at 6:28-6:33. Officer Driskell responded that he had a police officer on the way who would

translate. [75-8] at 6:50-6:55. Hernandez continued to talk on the phone and walked back and forth in

the driveway for the next few minutes. [75-8] at 6:28-11:30.

Before the ICE officers arrived, Laurel Police Department Officer Wade Robertson brought a

breathalyzer. [75-8] at 11:30. Officer Driskell told Officer Robertson, referencing Hernandez, “that

one over there is kind of mouthy. I don’t know what he’s saying, but we’re going to find out in just a

minute.” [75-8] at 11:30-11:38. Officer Driskell then administered the breathalyzer to Hernandez’s

brother and began to write him a citation. [75-8] at 11:44-14:00. After completing a few sections on

the citation form, Officer Driskell called the ICE officers again to tell them that another guy on scene

was “real mouthy,” and that he “couldn’t understand a word he’s saying.” [75-8] at 14:24-14:40.

Once ICE Officer Mike McGhee arrived, Police Officer Driskell left Hernandez’s brother with

ICE Officer McGhee, and he went to talk to Hernandez. [68-1], ¶ 4. Officer Driskell walked toward

the house and called out to Hernandez, who was no longer standing in the driveway. [75-8] at 15:34-

15:38. At that time, Hernandez was in the garage talking on the phone to a friend about what was going

to happen to his brother. [75-22] at 42:3-10. Then, Hernandez saw the ICE van and ran. [75-22] at

42:10-14.

Officer Driskell realized that Hernandez was running and said, “he’s darted around the front

. . . I think he just ran around the front.” [75-8] at 15:58-16:02. A few seconds later, Officer Driskell

said, “he’s going down the block, he’s going down the block! He’s running fast! He’s running fast!”

[75-8] at 16:16-16:21. Police Officer Robertson then asked Police Officer Driskell, “do you want me to

go get him?” to which Officer Driskell responded, “yeah.” [75-8] at 16:26-16:28

Hernandez was already running when the Defendant, ICE Officer Phillip Causey, and ICE

Officer Kyle Le arrived on the scene in the ICE transportation van. [68-3], ¶ 2; [68-4], ¶ 2. ICE Officer

McGhee told ICE Officers Causey and Le to “walk back down to the end of the street and see if you

can locate him.” [75-1], pg. 23:12-19. Significantly, Causey and Le were given no further instructions.

It is clear from the record that the ICE Officers were only called to assist with translation services for

Hernandez’s brother and were not told that Hernandez was suspected of committing any crime. [75-

1], pg. 45:23-25. Causey was not told that Hernandez was armed or dangerous. [75-1], pg. 45:10-22.

ICE Officers Causey and Le headed to an intersection to see if they could locate Hernandez.

Upon entering the intersection, they saw Hernandez approximately fifty to sixty yards away at the end

of the street. [68-4], ¶ 3; [75-1], pg. 25:1-3. As Hernandez approached Causey and Le, the ICE officers

began shouting. [75-8] at 16:42-16:55. Causey gave Hernandez commands in English and Spanish to

stop, put his hands up, and get down. [68-3], ¶ 3; [75-1], pg. 25:6-19. Le stated that he used hand

gestures to try to get Hernandez to stop. [68-4], ¶ 3. Hernandez continued to walk towards Causey

and Le. [68-3], ¶ 3; [75-1], pg. 25:6-19; [68-4], ¶ 3. Le testified that he did not see anything in

Hernandez’s hands while he was walking towards them. [75-2], pg. 12:8-23. It is undisputed that

Hernandez came to a stop when he was approximately twelve to fifteen feet from Causey, at which

point Causey shot him. [68-3], ¶ 3; [75-1], pgs. 25:19-26:6.

Hernandez testified that, at the time he was shot, his hands were raised. [75-22], pg. 75:13-19.

Specifically, Hernandez testified that his hands were near his waist, and while his hands were not

raised very high, his palms were facing Causey. [75-22], pg. 75:18-22. Officer Driskell stated in an

interview after the shooting that he saw Hernandez with his hands near his waist. [83-2], at 10:20-

10:28. In that same interview, Officer Driskell stated that Officer Robertson told him that he saw

Hernandez with his hands raised. [83-2], at 10:20-10:28; [75-3], pg. 43:14-24.

According to Causey, once Hernandez was approximately twelve to fifteen feet away,

Hernandez stopped and reached into his pocket. [68-3], ¶ 3; [75-1], pgs. 25:19-26:6; 35:21-25. Causey

testified that once Hernandez reached into his pocket, Causey discharged his firearm. [68-3], ¶ 3; [75-

1], pg. 26:1-6. Although the shot struck Hernandez in his right forearm, Causey testified that he was

shooting to kill. [75-1], pg. 28:13-18. Causey, Le, and Robertson testified that Hernandez reached

towards his pocket before the shooting. Hearing Transcript 5:22-24; [68-4], ¶ 3; [75-1], pgs. 35:24-

36:5; [75-2], pg. 33:3-8; [75-4], pg. 24:16-20; [68-2], ¶ 4. Hernandez’s biomechanical expert opined

that when Hernandez was shot, his right hand was not “reaching into his right side pocket as claimed

by Causey. Hernandez’ diagnosed proximal radius injury and point of entry are consistent with his

right forearm positioned forward of his body.” [75-16].

II. PROCEDURAL HISTORY

Hernandez filed suit in this Court on July 20, 2017 against ICE Officer Phillip Causey alleging

Bivens claims arising out of the shooting on July 20, 2016. Hernandez later amended his Complaint to

allege negligence and intentional tort claims against the United States under the Federal Tort Claims

Act.

On August 31, 2018, the Court stayed the case because Causey was deployed overseas on

active military duty. After Causey completed his deployment, the Defendants filed a combined Partial

Motion to Dismiss [68] for lack of subject matter jurisdiction as to the negligent training and

supervision claim under the Federal Tort Claims Act and a Motion for Summary Judgment [68] based

on qualified immunity. Causey also filed a Motion to Strike [81] nine of Hernandez’s exhibits offered

in support of his Response in Opposition to Causey’s Motion for Summary Judgment.

III. THE UNITED STATES’ MOTION TO DISMISS

The United States argues that the negligent training and supervision claim asserted against it

must be dismissed for lack of subject matter jurisdiction because the Federal Tort Claims Act prevents

such suits under the “discretionary function exception.” In his response, Hernandez argues that his

negligent training and supervision claim is not barred by the discretionary function exception because

government officials have no discretion to violate the Constitution. More specifically, Hernandez

states that “Causey’s supervisors allowed him and the other ICE agents on the ERO [Enforcement

and Removal Operations] team that night to enter into a collaboration with at least one local police

officer to circumvent constitutional prohibitions on ICE agents stopping and questioning someone

solely on the basis of race.” [75], pg. 40.

A. Standard of Review

“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to

challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States,

281 F.3d 158, 161 (5th Cir. 2001). A court may find lack of subject matter jurisdiction “on any one of

three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)

(internal citations omitted). “[C]onclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss.” Wells v. Ali, 304 Fed. App’x 292, 293

(5th Cir. 2008) (citing Fernandez–Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)).

“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”

Ramming, 281 F.3d at 161.

B. The Discretionary Function Exception of the Federal Tort Claims Act (“FTCA”)

“Sovereign immunity protects the federal government from being sued without its consent.”

Doe v. United States, 831 F.3d 309, 319 (5th Cir. 2016) (citing Molzof v. United States, 502 U.S. 301,

304-5, 112 S. Ct. 711, 116 L. Ed. 2d 731 (1992)). It is well established that Congress has waived the

sovereign immunity of the United States by giving district courts jurisdiction over certain torts

committed by government employees. 28 U.S.C. § 1346(b). “The discretionary function exception is

one of several limitations on the FTCA’s waiver.” Tsolmon v. United States, 841 F.3d 378, 382 (5th

Cir. 2016). The exception provides that the United States is not liable for “[a]ny claim . . . based upon

the exercise or performance or the failure to exercise or perform a discretionary function or duty on

the part of a federal agency or an employee of the Government, whether or not the discretion involved

be abused.” 28 U.S.C. § 2680(a). Courts employ a two-part test in determining whether the

discretionary function exception applies: (1) “the conduct must be a ‘matter of choice for the acting

employee;’” and (2) “the judgment [must be] of the kind that the discretionary function exception

was designed to shield.’” Tsolmon, 841 F.3d at 382 (citations omitted); United States v. Gaubert, 499

U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). If a case falls within this statutory exception to the

FTCA, the court lacks subject matter jurisdiction. Campos v. United States, 888 F.3d 724, 730 (5th

Cir. 2018).

The discretionary function exception is designed to continue immunity for policy-oriented

choices. St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 325–26 (5th

Cir. 2009). Indeed, “[i]f a statute, regulation, or policy leaves it to a federal agency to determine when

and how to take action, the agency is not bound to act in a particular manner and the exercise of its

authority is discretionary.” Gibson v. United States, 809 F.3d 807, 812 (5th Cir. 2016) (quoting Spotts

v. United States, 613 F.3d 559, 567 (5th Cir. 2010)). On the other hand, the violation of a mandatory

“federal statute, regulation, or policy” — that specifically prescribes a course of conduct — is not the

type of public policy consideration that is ordinarily shielded. Gibson, 809 F.3d at 812.

C. Hernandez’s Negligent Training and Supervision Claim is Dismissed without

Prejudice

Hernandez asserts that the discretionary function exception does not apply to his negligent

training and supervision claim because government officials have no discretion to violate the

Constitution. [75], pg. 34. Hernandez’s factual allegation is that Laurel Police Officer Driskell’s

request for translation services was “an apparent pretext” to allow ICE officers to question any

Hispanic person that Officer Driskell stopped, simply because of race. See [75], pgs. 2, 3, 4, 7, 33, 40.

In reply, the Government claims that Hernandez’s allegations are based on supposition, and that

Hernandez’s facts “are not supported by the record.” [83], pg. 3. The Government does not address

why several ICE officers were called for translation assistance related to a drunk driving stop, and the

Government does not dispute that ICE detained an individual earlier in the day after Laurel police

officers requested ICE involvement. Nor does the Government explain why the ICE detention van

was needed for translation assistance. It is unclear if the Government is conceding these facts and

arguing as a matter of law there is no constitutional violation, or simply asserting that the United

States has immunity under the FTCA for any alleged constitutional violations. Regardless,

Hernandez’s claim should be dismissed without prejudice because Hernandez has not properly pled

a constitutional violation.

Hernandez wholly fails to plead, within any of the various Complaints filed, that the

Constitution was violated with respect to the negligent training and supervision claim. See [1]; [5];

[20], ¶ XXXVII-XXXIX. In his response brief, he does not even attempt to identify which portion of

the Constitution has allegedly been violated. See [75], pgs. 34, 41, 42. While the Court may have a

suspicion as to the specific constitutional provision(s) that Hernandez may think he has raised, the

Court is not going to engage in speculation. Moreover, Hernandez fails to point to a single case that

supports a Constitutional violation for this type of negligent training and supervision claim.

Furthermore, Hernandez does not dispute that the supervision and training of Causey is the kind of

conduct that the discretionary function exception is designed to shield. See [75], pg. 34.

Without more, Hernandez has not met his 12(b)(1) “burden of showing an unequivocal waiver

of sovereign immunity.” Linke v. United States, No. W-14-cv-444, 2015 WL 12743611, at *5 (W.D.

Tex. Mar. 31, 2015) (citing Spotts, 613 F.3d at 568). Since Hernandez has failed to satisfy the minimum

pleading requirements to withstand dismissal under the discretionary function exception, his

negligent training and supervision claim is dismissed without prejudice under Rule 12(b)(1). See Hart

v. Bayer Corp., 199 F.3d 239, 248 (5th Cir. 2000) (explaining that “a plaintiff’s failure to meet the

specific pleading requirements should not automatically . . . result in dismissal of the complaint with

prejudice to re-filing.”).

Despite not meeting his burden under Rule 12(b)(1), the Fifth Circuit has stated that district

courts should “afford plaintiffs at least one opportunity to cure pleading deficiencies before

dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that

they are unwilling or unable to amend in a manner that will avoid dismissal.” Great Plains Trust Co. v.

Morgan Stanley Dean Witter & Co., 313 F.2d 305, 329 (5th Cir. 2002). If Hernandez chooses to amend

his Complaint, he must identify which portion of the Constitution has allegedly been violated and

allege a proper constitutional violation. Like the Fifth Circuit in Doe, this Court need not determine

at this time whether an alleged constitutional violation (as opposed to a statutory, regulatory, or policy

violation) precludes the application of the discretionary function exception. Doe v. United States, 831

F.3d 309, 319 (5th Cir. 2016).2

2 Whether a constitutional violation (as opposed to a statutory, regulatory, or policy violation) precludes the application

of the discretionary function exception has been an area of disagreement over the years. See Doe v. United States, 831 F.3d

309, 319-20 (5th Cir. 2016) (finding that because the plaintiff failed to plead a proper constitutional violation, the question

is not before the court); see also Lopez v. U.S. Immigr. & Customs Enf't, 455 F. App’x 427 (5th Cir. 2011) (avoiding the

issue); Castro v. United States, 560 F.3d 381 (5th Cir. 2009) (Castro I); Castro v. United States, 608 F.3d 266 (5th Cir. 2010)

(Castro II) (en banc); Loumiet v. United States, 828 F.3d 935, 939 (D.C. Cir. 2016) (collecting cases and finding that “the

discretionary-function exception does not categorically bar FTCA tort claims where the challenged exercise of discretion

allegedly exceeded the government’s constitutional authority to act.”); but see Linder v. United States, 937 F.3d 1087, 1090

(7th Cir. 2019), cert. denied, 141 S. Ct. 159, 207 L. Ed. 2d 1097 (2020) (finding the “theme that ‘no one has discretion to

violate the Constitution’ has nothing to do with the Federal Tort Claims Act, which does not apply to Constitutional

violations . . . The limited coverage of the FTCA, and its inapplicability to constitutional torts, is why the Supreme Court

created the Bivens remedy against individual federal employees.”); Ramirez v. Reddish, No. 2:18-cv-176-DME, 2020 WL

1955366, at *28 (D. Utah Apr. 23, 2020) (declining “without explicit congressional, Supreme Court, or Tenth Circuit

direction, to superimpose such an involved and detailed analysis of the constitutionality of the federal employee’s conduct

challenged under the FTCA into the otherwise straightforward inquiry that § 2680(a) and the Supreme Court have

prescribed[.]”); DANIEL A. MORRIS, FED. TORT CLAIMS § 2:34 (2020) (collecting cases and noting that “[f]ederal

constitutional torts are not separate grounds for liability under the Federal Tort Claims Act”).

IV. CAUSEY’S MOTION FOR SUMMARY JUDGMENT

In his Motion for Summary Judgment based on qualified immunity, Causey argues there is no

evidence that he violated a clearly established right when he discharged his weapon because

Hernandez’s hand was in his pocket. In response, Hernandez argues that the shooting of an unarmed

person with his hands raised is a violation of a clearly established constitutional right.

A. Standard of Review

Summary judgment is warranted when the evidence reveals no genuine dispute regarding any

material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P 56(a). A

dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,

91 L. Ed. 2d 202 (1986). The trial court must resolve all reasonable doubts in favor of the party

opposing the motion for summary judgment. Casey Enterprises, Inc. v. Am. Hardware Mut. Ins. Co.,

655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which facts are

material. Anderson, 477 U.S. at 248.

The party moving for summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The nonmoving party must then “go beyond the

pleadings” and “set forth ‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp.,

477 U.S. at 324 (citation omitted).

Notably, the normal “summary judgment burden of proof is altered in the case of a qualified

immunity defense.” Wolfe v. Meziere, 566 F. App’x 353, 354 (5th Cir. 2014) (citing Michalik v.

Hermann, 422 F.3d 252, 262 (5th Cir. 2005); Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489

(5th Cir. 2001)). Indeed, the burden shifts to the plaintiff to show that the defense is not available. Orr

v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016) (quoting Cass v. City of Abilene, 814 F.3d 721, 728 (5th

Cir. 2016)). A plaintiff “must rebut the defense by establishing that the officer’s allegedly wrongful

conduct violated clearly established law.” Wolfe, 566 F. App’x at 354 (citing Michalik, 422 F.3d at

262; Bazan ex rel. Bazan, 246 F.3d at 489). Hernandez “cannot rest on conclusory allegations and

assertions but must demonstrate genuine issues of material fact regarding the reasonableness of the

officer’s conduct.” Id. “Further, although courts view evidence in the light most favorable to the

nonmoving party, they give greater weight, even at the summary judgment stage, to the facts evident

from video recordings taken at the scene.” Valderas v. City of Lubbock, 937 F.3d 384, 388 (5th Cir.

2019) (citations omitted).

B. Bivens question

Before turning to the qualified immunity analysis, the Court must first address “the Bivens

question” because the Supreme Court has held that it is “antecedent” to the question of qualified

immunity. Hernandez v. Mesa (Hernandez I), ––– U.S. ––––, 137 S. Ct. 2003, 2006, 198 L. Ed. 2d 625

(2017). In Bivens, the Supreme Court recognized an implied right of action for damages against federal

officers who are alleged to have violated a citizen’s constitutional rights. Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). And in

Zilgar v. Abbasi, the Supreme Court acknowledged the “fixed principle” that plaintiffs may bring

Bivens suits against federal law enforcement officers for “seizure[s] that violate the Fourth

Amendment.” Zilgar v. Abbasi, --- U.S. ----, 137 S. Ct. 1843, 1877, 198 L. Ed. 2d 290 (2017). “Using

lethal force against a person who ‘poses no immediate threat to the officer and no threat to others’

surely qualifies as an unreasonable seizure.” Hernandez v. Mesa, --- U.S. ----, 140 S. Ct. 735, 758, 206

L. Ed. 2d 29 (2020) (Ginsburg, J. dissenting) (where the majority opinion declined to extend Bivens to

the context of a cross-border shooting but the Government did not dispute the shooting of an unarmed

individual on American soil is not a new context) (quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S.

Ct. 1694, 85 L. Ed. 2d 1 (1985)).

Here, Hernandez alleges in his Complaint that he was unarmed and had his hands raised at

the time of the shooting. Further, it is undisputed by the parties that the Bivens claim asserted against

Causey does not extend the Bivens remedy into a “new context,” which is a disfavored judicial

activity. Ziglar, 137 S. Ct. at 1857. In fact, while Hernandez briefed this issue, Causey provided no

analysis on the Bivens question and made no objection as to whether Hernandez could bring suit under

the Bivens framework for a Fourth Amendment excessive force claim.

The Court finds Hernandez’s Bivens claims against Causey to be the kind of Fourth

Amendment search-and-seizure case that courts have long adjudicated through Bivens actions.3

Accordingly, the Court turns now to the qualified immunity analysis.

B. Qualified immunity analysis

Causey claims he is entitled to qualified immunity on the Bivens claim against him. Qualified

immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v.

Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). The privilege is “an immunity

from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if

a case is erroneously permitted to go to trial.” Mitchell, 472 U.S. 511

3 Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006) (holding that plaintiff may bring a Bivens claim for unlawful

arrest and the excessive use of force under the Fourth Amendment); Del Paz v. Coy, 86 F.3d 367 (5th Cir. 2015)

(recognizing that Bivens extends to claims arising from excessive force by federal law enforcement officers); Samtani v.

City of Laredo, 274 F. Supp. 3d 695, 702 (S.D. Tex. Aug. 16, 2017) (finding that the plaintiff “has stated Bivens claims

against the six CBP officers for use of excessive force in violation of the Fourth Amendment.”); Gray v. Thompson, No.

3:01-cv-1190-M, 2002 WL 1544867 (N.D. Tex. July 10, 2002) (finding the plaintiff’s allegations asserted an excessive

force claim under Bivens); Jacobs v. Alam, 915 F.3d 1028 (6th Cir. 2019) (finding that the use of deadly force by federal

law enforcement officers is properly considered under Bivens).

Courts use a two-prong analysis to determine whether a defendant is entitled to qualified

immunity.4 The Court must decide, in the light most favorable to Hernandez, 1) whether Hernandez

has alleged a violation of a constitutional right and 2) whether the right was clearly established.

Trammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121

S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). Courts have discretion to address either prong of the qualified

immunity inquiry first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565

(2009). “[U]nder either prong, [the Court] may not resolve genuine disputes of fact in favor of the

party seeking summary judgment.” Winzer v. Kaufman County, 916 F.3d 464 (5th Cir. 2019) (citing

Tolan v. Cotton, 572 U.S. 650, 134 S. Ct. 1861, 1866, 188 L. Ed. 2d 895 (2014)). The Court “must view

the evidence in the light most favorable to the opposing party.” Tolan, 134 S. Ct. at 1866 (quoting

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)).

“To overcome a claim of qualified immunity in an excessive force case, the plaintiff must show

(1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and

(3) the excessiveness of which was clearly unreasonable.” Valderas, 937 F.3d at 389 (internal

quotations omitted) (citations omitted). As discussed above, the Court must view the evidence in the

light most favorable to Hernandez, and draw all reasonable inferences in his favor that are supported

by the summary judgment record. Scott v. Harris, 550 U.S. 372, 381 n.8, 127 S. Ct. 1769, 167 L. Ed. 2d

686 (2007) (noting that after the court has “drawn all inferences in favor of the nonmoving party to

the extent supportable by the record,” the reasonableness of a police officer’s actions “is a pure

4 A Bivens action mirrors a civil rights action brought under 42 U.S.C. § 1983, the difference being that a Bivens action

applies to alleged constitutional violations by federal actors, while a Section 1983 action applies to alleged constitutional

violations by state actors. Izen v. Catalina, 398 F.3d 363, 367 n. 3 (5th Cir. 2005). “The same analysis applies to excessive

force claims brought against federal law enforcement and correctional officers under Bivens” as those brought under

Section 1983. Graham v. Connor, 490 U.S. 386, n. 9, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Rodriguez v. Ritchey, 539

F.2d 394, 399 (5th Cir. 1976) (“[F]or the most part, courts have applied § 1983 law to Bivens cases.”); Webb v. United

States, 789 F.3d 647, 659 (6th Cir. 2015) (“The court reviews Bivens claims under the same legal principles as Section

1983 actions, except for the requirement of federal actions under Bivens and state action under Section 1983.”).

question of law.”). Here, it is undisputed that Hernandez suffered more than a de minimis injury.

Accordingly, the question is whether the use of force was clearly excessive or unreasonable.

1. Hernandez has alleged a violation of his Fourth Amendment constitutional right

The constitutional right at issue here is the Fourth Amendment right of every person to be

free from “unreasonable” seizures. U.S. CONST. amend. IV. The use of deadly force violates the

Fourth Amendment unless “the officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the officer or others.” Tennessee, 471 U.S. at 3.

Where a plaintiff complains of excessive force during an arrest, investigatory stop, or other seizure,

the claim must be analyzed under the Fourth Amendment’s objective reasonableness standard, not

under a substantive due process standard. Graham, 490 U.S. at 394.

The ultimate issue in analyzing an excessive force claim under the Fourth Amendment is

whether, from the officer’s perspective, the use of force was objectively reasonable under the

circumstances. Id. at 396–97. “The ‘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.”

Id. at 396. Accordingly, the Court may only consider facts that were “knowable” to Causey at the

time of the shooting. White v. Pauly, 137 U.S. 548, 137 S. Ct. 548, 550, 196 L. Ed. 2d 463 (2017).

The proper application of the objective reasonableness standard “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 or attempting to evade arrest by flight.” Graham, 490 U.S. at 394. Here, it

is undisputed that Hernandez was not under arrest at the time of the shooting. In fact, Causey was

never told that Hernandez had committed any crime, that he was escaping, nor that Hernandez was

armed or dangerous. [75-1], pg. 45:23-25; 45:10-22. Upon Causey’s arrival on scene, he was only told

to “walk back down to the end of the street and see if you can locate him.” [75-1], pg. 23:12-19.

The Fifth Circuit has held that the excessive force inquiry is confined to whether the officer

“was in danger at the moment of the threat that resulted in the [officer’s] shooting [of the victim].”

Bazan ex rel. Bazan, 246 F.3d at 493. “So, the focus of the inquiry should be on ‘the act that led [the

officer] to discharge his weapon[.]” Amador v. Vasquez, 961 F.3d 721, 728 (5th Cir. 2020) (quoting

Manis v. Lawson, 585 F.3d 839, 845 (5th Cir. 2009)).

The determining factor in this case concerns where Hernandez’s hands were positioned at the

time of the shooting, which is heavily disputed. Hernandez asserts that Causey’s commands were

confusing and that at the time of the shooting, his hands were near his waist, raised, with his palms

facing Causey. According to Causey, however, Hernandez continually disobeyed his commands to

put his hands up and to get on the ground. Causey asserts that once Hernandez was approximately

twelve to fifteen feet away, Hernandez stopped and reached his hand into his pocket. Causey testified

that once Hernandez reached into his pocket, Causey shot Hernandez in the right forearm.

Causey argues that the body camera footage and audio from the incident contradict

Hernandez’s version of events. The Court has reviewed the body camera footage and notes that it is

impossible to determine where Hernandez’s hands were located at the time of the shooting.

Accordingly, the video evidence does not “utterly discredit” Hernandez’s version of events. Scott,

550 U.S. at 380; Amador, 961 F.3d at 728.5 In addition to Hernandez’s testimony, Police Officer

5 The video evidence includes the body camera footage from Officer Driskell and Officer Robertson. Neither body camera

video depicts the shooting itself, as Officer Driskell observed the shooting from a distance and Officer Robertson jumped

into a ditch seconds before the shooting. In addition to showing some of the events leading up to the shooting, the video

depicts the moments immediately after the shooting when Hernandez is lying on the ground and Causey shouts, “you

shouldn’t have put your hand in your f****** pocket!” Hernandez’s response is not understandable for the most part,

but he does tell Causey that he does not speak English. [75-10], at 18:00-18:13. Causey alleges that this interaction

demonstrates that Causey is more credible than Hernandez, but this argument lacks merit. Credibility determinations are

for a jury.

Driskell stated that he saw Hernandez with his hands near his waist and that, after the shooting, Police

Officer Robertson told him that he saw Hernandez with his hands raised. [83-2], at 10:20-10:28.

Finally, Hernandez’s biomechanical expert, Mr. Arslanoglu, opined that when Hernandez was shot,

his right hand was not “reaching into his right side pocket as claimed by Causey. Hernandez’

diagnosed proximal radius injury and point of entry are consistent with his right forearm positioned

forward of his body.”6 [75-16]. Under the summary judgment standard, the Court must accept as true

that Hernandez’s hands, while not high, were raised with his palms facing Causey at the time of the

shooting. See Winzer, 916 F.3d at 474 (citing Tolan, 572 U.S. at 656–57); Graham, 490 U.S. at 396.

Accepting as true that Hernandez’s hands were raised with his palms facing Causey at the

time of the shooting, there is a material factual dispute to resolve as to whether Causey reasonably

believed that Hernandez posed a threat of serious harm at the time of the shooting. Amador, 961 F.3d

at 728. After considering the totality of the circumstances and construing the evidence in the light

most favorable to Hernandez, a jury could conclude that Hernandez’s hands were raised at the time

of the shooting, and that Causey’s use of force was unreasonable. Id. at 728-29 (finding genuine issues

of material fact as to reasonableness of excessive force when officers shot the plaintiff when he was

standing motionless thirty feet away from the officers with his hands in the air); Cullum v. Siemens,

No. SA-12-cv-49-DAE, 2013 WL 5781203, at *9–10 (W.D. Tex. Oct. 25, 2013) (finding deadly force

was unreasonable because the armed suspect’s hand was “palm-up in a ‘stop’ gesture” that was

“submissive” and he did not present an immediate threat); Jamison v. Metz, 541 F. App’x. 15, 19–20

(2nd Cir. 2013) (holding that officers were not entitled to qualified immunity where the suspect had

stopped and was in an act of surrendering by putting his hand in the air); Robinson v. Nolte, 77 F.

6 In his Motion to Strike, Causey objects to the admissibility of the biomechanical expert’s opinion. For the reasons

discussed below, his objection is overruled.

App’x. 413, 414 (9th Cir. 2003) (holding that the use of deadly force violated the suspect's Fourth

Amendment rights where the suspect had “his arms raised over his head in a classic surrender

position, with a gun in his lap”). Accordingly, the Court finds that Hernandez has alleged a violation

of a constitutional right and turns to the second prong of the qualified immunity analysis.

2. Hernandez’s Fourth Amendment right was “clearly established” at the time of the

shooting

“A clearly established right is one that is ‘sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11-12, 136 S.

Ct. 305, 193 L. Ed. 2d 255 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 182

L. Ed. 2d 985 (2012)). “[T]he salient question . . . is whether the state of the law in [2016] gave

[Causey] fair warning that [his] alleged treatment of [Hernandez] was unconstitutional.” Hope v.

Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). “In the excessive force context,

a constitutional violation is clearly established if no reasonable officer could believe the act was

lawful.” Darden v. City of Forth Worth, Texas, 880 F.3d 722, 727 (5th Cir. 2018). It is well established

that under the Fourth Amendment, “it is unreasonable for an officer to ‘seize an unarmed,

nondangerous suspect by shooting him dead.’” Brosseau v. Haugen, 543 U.S. 194, 197, 125 S. Ct. 596,

160 L. Ed. 2d 583 (2004) (quoting Tennessee, 471 U.S. at 11). Causey testified that when he discharged

his firearm, he was not firing a warning shot. [75-1], pg. 28:13-18. He was shooting to kill. [75-1], pg.

28:13-18.

The law is clear. Every reasonable officer would have understood the Fourth Amendment is

violated when deadly force is used on an unarmed man, who is standing motionless, with his hands

raised. Thus, based on clearly established law and the facts presented in this case, there are certainly

questions of fact as to what occurred in the moments before Causey shot Hernandez — the most

important of which being where Hernandez’s hands were located. See Amador, 961 F.3d at 730

(holding that “[e]very reasonable officer would have understood that using deadly force on a man

holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in

the air for several seconds, would violate the Fourth Amendment.”).7

Causey argues that his use of force was reasonable because he feared for his life and the lives

of his colleagues. [75-1], pg. 41:15-21. The Fifth Circuit has held that “an exercise of force that is

reasonable at one moment can become unreasonable in the next if the justification for the force has

ceased.” Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 413 (5th Cir. 2009). “To say otherwise would grant

officers an ongoing license to kill an otherwise unthreatening suspect who was threatening earlier.”

Amador, 961 F.3d at 730 (quoting Abraham v. Raso, 183 F.3d 279, 294 (3rd Cir. 1999) (internal

quotations omitted)).

In Lytle v. Bexar County Texas, the Fifth Circuit found that the officer could have “had

sufficient time to perceive that any threat to him had passed by the time he fired[,]” which was

“anywhere from three to ten seconds, perhaps even more” after the perceived threat, rather than “in

near contemporaneity” with the perceived threat. Lytle, 560 F.3d at 414. Here, Causey had

approximately eight seconds to evaluate Hernandez standing twelve to fifteen yards away. [75-8] at

7 Baskin v. Martinez, 243 N.J. 112 (N.J. S. Ct. 2020) cert. denied, 141 S. Ct. 956, 208 L. Ed. 2d 494 (2020) (holding that

“the law prohibiting the use of deadly force against a surrendering suspect — one with empty hands in the air and posing

no imminent threat — was clearly established); Hemphill v. Schott, 141 F.3d 412, 417 (2nd Cir. 1998) (accepting as true

the plaintiff’s version of facts, the court found that the officer’s “alleged decision to use potentially deadly force upon a

suspect who stopped and raised his arms in the air when commanded to do so [did] not qualify as reasonable” under the

circumstances.); Gray-Hopkins v. Prince George's Cnty., Maryland, 309 F.3d 224, 227–28 (4th Cir. 2002) (accepting the

plaintiff’s version of facts, that he had his hands raised over his head at the time he was shot, that he was not resisting

arrest or posing a threat to the safety of the other officers, the court denied qualified immunity finding that “a trier of fact

could clearly conclude that a Fourth Amendment violation occurred.”); Longoria v. Pinal Cnty., 873 F.3d 699, 709–11 (9th

Cir. 2017) (reversing grant of qualified immunity because material facts were disputed and because the suspect’s “Fourth

Amendment right not to be shot dead while unarmed, surrounded by law enforcement, and in the process of surrendering

[was] clearly established”).

17:06-17:14. In the light most favorable to Hernandez, the Court must accept at this stage that

Hernandez had his hands raised and his palms facing Causey before Causey shot him.

While the Court is “loath to second-guess the decisions made by police officers in the field,”

upon careful consideration of the facts of this case and the factors that should be used in evaluating an

officer’s use of force, a jury could conclude that a clearly established Fourth Amendment violation

occurred. Winzer, 916 F.3d at 476. The Court finds that a genuine issue of material fact exists that

must be submitted to a jury for resolution. Amador, 961 F.3d at 730.

V. CAUSEY’S MOTION TO STRIKE

Causey filed a Motion to Strike [81] Hernandez’s exhibits P-8, P-14, P-15, P-16, P-17, P-18, P-

19, P-20, and P-22 offered in support of Hernandez’s Response in Opposition to Causey’s Motion for

Summary Judgment. See [75-6; 75-12 through 75-18; 75-20]. Causey argues that these exhibits are not

proper summary judgment evidence in qualified immunity cases. However, “objections to evidence

on the ground that the evidence is irrelevant, speculative, argumentative, vague and ambiguous, or

constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself.”

Gaub v. Pro. Hosp. Supply, Inc., 845 F. Supp. 2d 1118, 1128 (D. Idaho Jan. 10, 2012) (citing Burch v.

Regents of the University of California, 433 F. Supp. 2d 1110, 1122 (E.D. Cal. Jun. 5, 2006). Such

“[o]bjections or motions to strike on any of these grounds are superfluous, and the court will overrule

them.” Gaub, 845 F. Supp. 2d 1118 Further, the Court only considered P-18 in ruling on the Motion

for Summary Judgment. For these reasons, Causey’s objections to the other exhibits are moot. Causey

may raise these objections at the motion in limine stage.

The Court considered P-18, the affidavit of biomechanical expert Ruhi Arslanoglu, in the

summary judgment analysis. Therefore, the Court will address Causey’s objection to the admissibility

of the biomechanical expert’s opinions. Hernandez timely designated Mr. Arslanoglu as an expert in

biomedical engineering and biomechanics on September 21, 2020. His affidavit is being offered to

determine whether Hernandez’s injury is consistent with Hernandez’s hands being raised at the time

of the shooting. Causey asserts that Mr. Arslanoglu’s affidavit is not relevant to the issue of qualified

immunity. More specifically, Causey argues that Mr. Arslanoglu’s affidavit, is not relevant because

(1) it amounts to improper witness vouching, particularly when there is video evidence, and (2)

because the affidavit provides impermissible commentary on the credibility of fact witnesses. Causey

did not challenge the reliability or qualifications of Mr. Arslanoglu in his Motion to Strike.

Expert testimony is relevant if it will “help the trier of fact to understand the evidence or to

determine a fact in issue.” FED. R. EVID. 702(a); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (“This condition goes primarily to relevance. ‘Expert

testimony which does not relate to any issue in the case is not relevant, and ergo, non-helpful.’”)

(citation omitted). Because Mr. Arslanoglu’s affidavit relates to the pivotal issue in this case — where

Hernandez’s hands were located at the time of the shooting — the Court finds it relevant.

Causey asserts that Mr. Arslanoglu’s affidavit is not relevant because it amounts to improper

witness vouching when there is video evidence. But it is impossible for the Court to determine where

Hernandez’s hands were at the time of the shooting from the video footage available. Therefore, the

Court finds that Mr. Arslanoglu’s affidavit is relevant to the qualified immunity analysis, specifically

to the question of where Hernandez’s hands were positioned at the time of the shooting. See Est. of

Smart by Smart v. City of Wichita, 951 F.3d 1161, 1175 (10th Cir. 2020) (reversing trial court’s grant of

summary judgment for qualified immunity as to defendant officer and taking into consideration

“plaintiffs’ biomechanics expert” that “opined Mr. Smart’s bullet wounds could not have been

inflicted while he was hunched forward as Officers Froese and Chaffee described Mr. Smart’s posture

when fleeing.”).

Causey also argues that Mr. Arslanoglu’s affidavit is inadmissible because, within it, he

provides impermissible commentary on the credibility of fact witnesses. [87], pg. 8. It is well

established that credibility determinations and decisions as to the weight given to factual testimony

are the province of the jury. See Palasota v. Haggar Clothing Co., 499 F.3d 474, 480 (5th Cir. 2007).

And expert witnesses are not permitted to provide commentary on the credibility of fact witnesses.

Westcott v. Crinklaw, 68 F.3d 1073, 1076 (8th Cir. 1995) (holding that an expert may not usurp the

exclusive function of the jury in weighing evidence and determining credibility, or pass judgment on

the truthfulness of a witness in the guise of professional opinion). At the hearing on this Motion,

Causey relied on Albert v. City of Petal, 819 F. App’x 200 (5th Cir. 2020) (affirming Albert v. City of

Petal, No. 2:18-cv-96-KS, 2019 WL 10736149 (S.D. Miss. Sep. 30, 2019), in support of his argument

to strike Mr. Arslanoglu’s affidavit. In Albert, the Fifth Circuit affirmed the exclusion of plaintiff’s

forensic pathology expert as inadmissible. Upon review of the expert’s opinions offered in Albert, the

Court finds that the opinions offered by Mr. Arslanoglu are distinguishable from those offered in

Albert.

First, the expert in Albert offered opinions concerning the use of restraint on the decedent —

specifically opining that the decedent “could have been completely restrained and immobilized by

Officer Jernigan and other officers who arrived to the scene[.]” Albert v. City of Petal, No. 2:18-cv-96-

KS, 2019 WL 10736149, at *8 (S.D. Miss. Sep. 30, 2019). The defendant argued that the expert was

not qualified to provide expert testimony regarding police restraint procedures, and the court agreed.

The court excluded any proposed testimony regarding the restraint and immobilization of the

decedent. Albert, 2019 WL 10736149, at *9. Here, however, Causey does not challenge the

qualifications of Mr. Arslanoglu to provide opinions on biomechanics or biomedical engineering, and

Mr. Arslanoglu does not provide opinions as to police procedure.

Second, while the defendant in Albert did argue that the expert’s opinion should be excluded

because it provided improper commentary on the credibility of witnesses, that too is distinguishable

from Mr. Arslanoglu’s opinions. The expert in Albert offered the following opinion: “[t]he statements

of Bryan Lee and Officer Jernigan are markedly different in their descriptions of the incident.” Id.

The court determined that the expert provided impermissible commentary on the credibility of fact

witnesses and excluded the expert’s statement. Although Causey failed to point to a specific

statement to which he objects, Mr. Arslanoglu offered the following opinions in his affidavit:

When Hernandez’ right forearm was struck with the bullet, his right hand was not on

or near his waist or reaching into his right side pocket as claimed by Causey.

Hernandez’ diagnosed proximal radius injury and point of entry are consistent with his

right forearm positioned forward of his body. Causey’s testimony is inconsistent with

Hernandez’ diagnosed injury. Hernandez’ testimony is not inconsistent with his

diagnosed injury.

The first two sentences of Mr. Arslanoglu’s affidavit are clearly distinguishable from the

expert’s opinion in Albert and do not provide impermissible commentary on the credibility of fact

witnesses. The last two sentences of Mr. Arslanoglu’s affidavit are also distinguishable as they do not

tend to pass judgment on Causey’s truthfulness under the guise of Mr. Arslanoglu’s professional

opinion. Such testimony is permissible summary judgment evidence. Est. of Smart by Smart, 951 F.3d

at 1175. Indeed, Causey does not dispute Mr. Arslangolu’s qualifications to testify in the field of

biomedical engineering or biomechanics. Nor does Causey dispute the reliability of those opinions.

Causey presents no authority that prohibits an expert from testifying that the science of a particular

field contradicts a different version of events.

For the reasons discussed above, Causey’s Motion to Strike exhibits P-8, P-14, P-15, P-16, P-

17, P-19, P-20, and P-22 is denied as moot. Causey may raise these objections at the appropriate stage

of this litigation. Causey’s Motion to Strike P-18 is denied.

VI. CONCLUSION

For the reasons stated above, IT IS THEREFORE ORDERED AND ADJUDGED that

United States’ Motion to Dismiss [68] the negligent training and supervision claim is GRANTED.

Hernandez’s negligent training and supervision claim is dismissed without prejudice.

IT IS FURTHER ORDERED AND ADJUDGED that Phillip Causey’s Motion for

Summary Judgment [68] on the basis of qualified immunity is DENIED.

IT IS FURTHER ORDERED AND ADJUDGED that Phillip Causey’s Motion to Strike

[81] is denied with respect to P-18 and moot in all other respects.

THIS, THE 4th DAY OF MAY, 2021.

_____________________________

TAYLOR B. McNEEL

UNITED STATES DISTRICT JUDGE