Moore v. City Of Houston

IN THE UNITED STATES DISTRICT COURT August 28, 2019

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

LARRY MOORE, JR., §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. H-17-2505

§

CITY OF HOUSTON, et al., §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

Pending before the court1 are Defendant City of Houston’s

(“City”) Motion for Summary Judgment (Doc. 65), Defendant Kevin

Hubenak’s (“Hubenak”) Motion for Summary Judgment (Doc. 66), and

Defendants Kyle Kelly (“Kelly”) and Glin Whitehead’s (“Whitehead”)

Motion for Summary Judgment (Doc. 69). The court has considered

the motions, the responses, the replies, Plaintiff’s surreply,2 the

summary judgment evidence, and the applicable law. For the reasons

set forth below, the court RECOMMENDS that Defendant Hubenak’s

motion be DENIED, Defendants Kelly and Whitehead’s motion be

GRANTED, and Defendant City’s motion be GRANTED.

I. Case Background

Plaintiff filed this civil rights action against Defendant

1 This case was referred to the undersigned magistrate judge pursuant

to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the

Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. See Doc. 14,

Ord. Dated Oct. 27, 2017.

2 The court granted Plaintiff’s motion for leave to file a surreply by

order dated May 10, 2019, and, thereby, effectively OVERRULED Defendants’

objections to the filing of Plaintiff’s surreply (Doc. 83). See Doc. 88, Ord.

Dated May 10, 2019.

City and three of its police officers, alleging violations of

constitutional rights that occurred during his arrest on July 7,

2015.

A. Factual Background3

The incident that is the subject of this lawsuit has generated

multiple, inconsistent accounts by those involved.4

1. Plaintiff’s Account

On July 7, 2015, Plaintiff agreed to provide a ride to Michael

Brooks (“Brooks”), who, before sitting in the vehicle, “placed his

3 None of Plaintiff’s exhibit lists in his response briefs completely

matches the cited and attached exhibits. At least two cited exhibits are not

filed at all. The court, therefore, consulted Plaintiff’s courtesy copies.

While the court requires and appreciates courtesy copies, Plaintiff’s courtesy

copies were so disorganized and incomplete as to be essentially useless.

In his very similar statements of fact in response to all three dispositive

motions, Plaintiff provides woefully inadequate citations to record evidence in

that many of the facts are not cited to any evidence and very few of those that

are cited to evidence contain document names or pinpoint citations. When citing

sealed exhibits, which were filed separately, Plaintiff fails to identify them

as such to assist the court in locating them. Several documents are attached to

more than one response but carry different exhibit numbers and/or titles, adding

to the confusion.

The court is similarly unimpressed with Defendants’ citation efforts. In

the three virtually identical statements of fact by Defendants, citations to

evidence are missing, and no pinpoint citations are given. In two of the three

motions, a range of exhibits without document names or pinpoints, are cited for

multiple factual assertions.

Rule 56 is very clear on the parties’ burdens with regard to citations.

Rule 56(c)(1) requires that a party cite to particular parts of the record

materials for each fact relied upon as either demonstrating the absence or

presence of factual disputes. If the parties fail to do so, Rule 56(c)(3) allows

the court to consider only the cited evidence. The court finds that Plaintiff

and Defendants all fail to comply with Rule 56(c)(1) in the ways listed above.

It is not incumbent on the court to scour through disorganized and poorly cited

evidence to determine whether a party has met its summary judgment burden. The

parties themselves bear that burden of combing through the evidence. In

reviewing the pending motions, the court, as much as was possible, held the

parties to the above requirements and did not sift through numerous documents to

find the existence or non-existence of any fact issue. See Fed. R. of Civ. P.

Rule 56(c),(e).

4 The court finds that the affidavits and Houston Police Department

(“HPD”) incident reports capture the relevant factual background of this case.

2

bag in the backseat passenger side floorboard.”° Defendants

Hubenak and Kelly signaled for Plaintiff to pull over, and

Plaintiff complied by stopping in the parking lot of a Fiesta Mart

(“Fiesta”).° Defendant Hubenak approached the car on the driver’s

side while Defendant Kelly approached on the passenger’s side.’

When Defendant Hubenak asked for Plaintiff’s driver’s license,

Plaintiff explained that he did not have it and offered another

form of identification (“ID”).® Defendant Hubenak returned from

his police vehicle and the conversation between the two of them

escalated.* Defendant Hubenak asked Plaintiff and Defendant Kelly

asked Brooks to exit the vehicle, and the two men complied.’

Defendant Hubenak moved Plaintiff to the front of the vehicle

and began to search him, placing one handcuff on his wrist.’ An

argument developed between Brooks and Defendant Kelly, and

Defendant Hubenak instructed Plaintiff to “get down.”' As

Plaintiff attempted to comply, Defendant Hubenak “grabbed

5 Doc. 74-2, Ex. B to Pl.’s Resp. to Def. City’s Mot. for Summ. J.,

Aff. of Plaintiff p. 1.

° See id.

’ See id.

° See id.

° See id.

" See id.

See id.

id.

[Plaintiff] around [his] waist, spun [him] around and slammed [him]

on [his] head.”' Defendant Hubenak “then started punching

[Plaintiff] in [his] body and head and put his foot on

[Plaintiff’s] head and grinded [sic] it into the pavement.”

Bystanders who observed the activity “yelled for [Defendant

Hubenak] to stop[,]” and “he did.”

Defendant Hubenak instructed a security guard for Fiesta, Jose

Izaguirre (“Izaguirre”) to hold Plaintiff until other Houston

Police Department (“HPD”) officers arrived.'® Izaguirre put his

foot on Plaintiff’s back as soon as Defendant Hubenak removed his

foot from Plaintiff’s head.'’ Defendant Hubenak joined Defendant

Kelly in a foot pursuit of Brooks.'®

While on the scene for a minimum of ninety minutes, Plaintiff

was moved from one police vehicle to another.*? During that time,

Plaintiff told Defendant Hubenak that he needed medical assistance

to no avail.*®° Defendant Hubenak led other [unnamed] officers over

to Plaintiff to look at his face, and, although they “grimace[d]”

id.

id.

18 Id. p. 2.

See id.

See id.

" See id.

See id.

°° See id.

when they saw it, none called an ambulance.*!

Defendant Hubenak searched Plaintiff, removing his cell phone

from a pocket and ultimately tossing it into Plaintiff’s vehicle

before it was towed, despite Plaintiff’s request that the phone be

transported with him to jail.** Eventually, the cell phone was

returned to Plaintiff in working order.*? Plaintiff also spoke with

Defendant Hubenak about the drugs that were found in Plaintiff’s

vehicle and about Brooks’ bag.**

Plaintiff was transported to the jail at which time he

described Defendant Hubenak’s actions to several officers in

response to their comments about his facial injuries.*? A sergeant

arrived and ordered Defendants Hubenak and Kelly to take Plaintiff

to a hospital for treatment.°*® After Defendants Hubenak and Kelly

placed Plaintiff in their police vehicle, they spent thirty-five to

forty minutes “talking and doing other stuff” before heading to the

hospital.’

At the hospital, Defendant Hubenak stayed in the police

id.

“2 See id.

2s See Doc. 66-5, Ex. E to Def. Hubenak’s Mot. for Summ. J., Dep. of Pl.

pp. 55-56.

a4 See Doc. 74-2, Ex. B to Pl.’s Resp. to Def. City’s Mot. for Summ. J.,

Aff. of Plaintiff p. 2.

See id.

See id.

0 See id.

vehicle while Defendant Kelly escorted Plaintiff.*® Because

Defendant Kelly had not witnessed what happened to cause

Plaintiff’s injuries, the treating physician asked to speak with

Defendant Hubenak.’’® When Defendant Kelly contacted Defendant

Hubenak with the request, Defendant Hubenak refused to enter the

hospital.*°

2. Defendant Hubenak’s Account

On July 7, 2015, Defendant Hubenak observed Plaintiff’s

vehicle fail to stop at a red light and turned around the police

vehicle to pursue Plaintiff.*' Also observing a defective right

brake light as Defendants Hubenak and Kelly followed Plaintiff,

they initiated a traffic stop.”

Plaintiff pulled into the Fiesta parking lot when Defendant

Hubenak observed the vehicle occupants “looking at [the] officers

through the back window while shifting their weight back and

forth.”**? Plaintiff stopped the vehicle in front of the store, and,

as the officers approached, the occupants focused on Defendant

See id.

“ See id.

See id.

3 See Doc. 66-1, Ex. A-1 to Def. Hubenak’s Mot. for Summ. J, Incident

Report No. 879346-15, Def. Hubenak’s Narrative p. 4.

See id.

id.

Hubenak.34 Defendant Hubenak approached on the driver’s side of the

vehicle and sensed “the distinct odor of fresh marijuana emanating

from within the vehicle through the open windows.”35 “As [the]

officers reached the vehicle . . . Brooks moved a black garbage bag

holding clear plastic bags containing marijuana visible inside from

between the driver and passenger seat[s] to the passenger side

floorboard.”36

Defendant Hubenak “removed [Plaintiff] from the vehicle and

immediately placed handcuffs on him.”37 As the two of them “were

standing in the open driver side door directly across from

[Defendant Kelly and Brooks],” Defendant Hubenak began a search of

Plaintiff and “suddenly became aware” that Defendant Kelly was

struggling with Brooks on the other side of the car.38

Defendant Hubenak observed Brooks “lunging toward the open

passenger side door” as Defendant Kelly attempted to prevent Brooks

from reentering the vehicle.39 Brooks escaped Defendant Kelly’s

34 See id.

35 Id.

36 Id. At his deposition, Defendant Hubenak testified that he did not

know at the time what it was that Brooks was moving. See Doc. 66-4, Ex. D to

Def. Hubenak’s Mot. for Summ. J. p. 40.

37 Doc. 66-1, Ex. A-1 to Def. Hubenak’s Mot. for Summ. J, Incident

Report No. 879346-15, Def. Hubenak’s Narrative p. 4.

38 Id.

39 Id. In his deposition, Plaintiff testified Brooks never attempted

to reach into the vehicle. Doc. 75-3, Ex. C to Pl.’s Resp. to Def. Hubenak’s

Mot. for Summ. J. p 150.

7

grasp and “dove toward the passenger side floor board.”*° Concerned

that Brooks may have been reaching for a weapon, Defendant Hubenak

pushed Plaintiff away from the open driver side door out of the

line of Defendant Kelly’s fire.” Plaintiff suffered an abrasion

and swelling on his right cheek area.**

Defendant Hubenak went to assist Defendant Kelly and pursued

Brooks, who had escaped from Defendant Kelly and was running

through the parking lot.** Brooks eventually stopped running and

lay on his back, refusing to turn over on his stomach in response

to Defendant Hubenak’s verbal orders.*° Defendant Kelly arrived as

Defendant Hubenak was forcibly turning over Brooks and placing

handcuffs on him.*°

While Defendants Hubenak and Kelly were in pursuit of Brooks,

Plaintiff “had attempted to stand and flee but was stopped by an

armed security guard employed by Fiesta.”*’ The marijuana from the

40 Doc. 66-1, Ex. A-1 to Def. Hubenak’s Mot. for Summ. J, Incident

Report No. 879346-15, Def. Hubenak’s Narrative pp. 4-5.

al Defendant Hubenak admitted in his deposition that he did not see a

weapon within Brooks’ reach and that Defendant Kelly had not drawn his weapon.

see Doc. 66-4, Ex. D to Def. Hubenak’s Mot. for Summ. J. pp. 31-32.

42 See Doc. 66-1, Ex. A-1 to Def. Hubenak’s Mot. for Summ. J, Incident

Report No. 879346-15, Def. Hubenak’s Narrative p. 5.

* See id.

See id.

See id.

*° See id.

id.

vehicle was secured by another officer, and Plaintiff nodded his

head when asked if he had known marijuana was in the vehicle.”

Plaintiff’s vehicle was towed from the scene.*®? Defendant Hubenak

contacted an assistant district attorney who accepted charges on

Plaintiff and Brooks, and the two were transported to jail.”

“Brooks did not require medical treatment and was booked

without incident[;] however, due to the abrasion and swelling to

his face, [Plaintiff] was rejected by medical personnel.””!

Defendants Hubenak and Kelly transported Plaintiff to a hospital

for treatment and released Plaintiff to the medical staff.”

Defendant Hubenak completed a “To-Be” warrant on the drug charges

at a later date.”

3. Defendant Kelly’s Account

On July 7, 2015, Defendant Kelly observed Plaintiff’s vehicle

fail to stop at a red light and turned around the police vehicle to

pursue Plaintiff’s vehicle.” As Defendants Hubenak and Kelly

followed Plaintiff, the officers also noticed that one of the

See id.

See id.

□□ See id.

id.

See id.

” See id.

oA See Doc. 69-1, Ex. A to Defs. Kelly & Whitehead’s Mot. for Summ. J.,

Aft. of Def. Kelly p. 1; Doc. 69-1, Ex. A-1 to Defs. Kelly & Whitehead’s Mot. for

Summ. J, Incident Report No. 879346-15, Def. Kelly’s Narrative p. 1.

vehicle’s brake lights was not functioning.55

After the vehicle stopped in the Fiesta parking lot, Defendant

Kelly approached on the passenger side of the vehicle and “could

smell a strong odor of marijuana” emanating from inside.56

Defendant Kelly summoned Brooks out of the vehicle and moved him to

the side of the vehicle.57 After talking to Brooks and reviewing

his ID, Defendant Kelly set Brooks’ wallet and ID on the seat of

the car in order to handcuff Brooks.58

Defendant Kelly described what happened next:

When [Defendant Kelly] put the wallet and [Brooks’] ID

back on the seat[, Brooks] reached back in the vehicle[,]

and I grabbed both of his arms and attempted to pull them

behind his back fearing that he was reaching for a

weapon. [Defendant Kelly] pulled [Brooks] away from the

vehicle. The suspect continued to jerk away from [sic]

[,] and eventually [Defendant Kelly] lost grip on

[Brooks,] and [Brooks] evaded on foot north bound [sic]

through the Fiesta parking lot . . . .”59

Defendant Kelly pursued Brooks, along with Defendant Hubenak.60

After Defendant Hubenak apprehended Brooks, Defendant Kelly

55 Doc. 69-1, Ex. A-1 to Defs. Kelly & Whitehead’s Mot. for Summ. J,

Incident Report No. 879346-15, Def. Kelly’s Narrative p. 1.

56 Id.; see also Doc. 69-1, Ex. A to Defs. Kelly & Whitehead’s Mot. for

Summ. J., Aff. of Def. Kelly p. 1.

57 Doc. 69-1, Ex. A-1 to Defs. Kelly & Whitehead’s Mot. for Summ. J,

Incident Report No. 879346-15, Def. Kelly’s Narrative p. 1.

58 See id.

59 Id.

60 See id.

10

assisted in placing Brooks in handcuffs.61

4. Defendant Whitehead’s Account

On July 7, 2015, Defendant Whitehead, a sergeant with the

Southeast Gang Unit (“SGU”), responded to a call reporting a

suspect evading SGU officers on foot.62

Upon arrival to the scene, [Defendant Whitehead] observed

. . . Plaintiff in handcuffs on the ground next to a

security guard. I noticed that Plaintiff had a minor

contusion under his eye and[,] therefore, asked him if he

needed medical attention. Plaintiff declined medical

attention at the scene.63

Defendant Whitehead placed Plaintiff in a police vehicle and

conducted an on-scene investigation of use of force.64 In the

course of the investigation, Defendant Whitehead spoke with both

Defendants Hubenak and Kelly, attempted unsuccessfully to locate

video of the incident, attempted unsuccessfully to locate

witnesses.65 Plaintiff did not report any use of force to Defendant

61 See id.

62 See Doc. 69-2, Ex. B to Defs. Kelly & Whitehead’s Mot. for Summ. J.,

Aff. of Def. Whitehead p. 1; Doc. 69-2, Ex. B-1 to Defs. Kelly & Whitehead’s Mot.

for Summ. J, Incident Report No. 879346-15, Def. Whitehead’s Narrative p. 2.

63 Doc. 69-2, Ex. B to Defs. Kelly & Whitehead’s Mot. for Summ. J., Aff.

of Def. Whitehead pp. 1-2; see also Doc. 69-2, Ex. B-1 to Defs. Kelly &

Whitehead’s Mot. for Summ. J, Incident Report No. 879346-15, Def. Whitehead’s

Narrative p. 2.

64 See Doc. 69-2, Ex. B to Defs. Kelly & Whitehead’s Mot. for Summ. J.,

Aff. of Def. Whitehead p. 2; Doc. 69-2, Ex. B-1 to Defs. Kelly & Whitehead’s Mot.

for Summ. J, Incident Report No. 879346-15, Def. Whitehead’s Narrative p. 2.

65 See Doc. 69-2, Ex. B-1 to Defs. Kelly & Whitehead’s Mot. for Summ.

J, Incident Report No. 879346-15, Def. Whitehead’s Narrative pp. 2-3.

11

Whitehead.®® Defendant Whitehead concluded “that the force used by

[Defendant] Hubenak to push Plaintiff out of the way of potential

danger was reasonable and necessary .. . and that the force used

to effect the arrest of Brooks was reasonable and necessary.’”°’

5. Security Guard’s Account

Izaguirre was on duty patrolling the Fiesta parking lot by

golf cart when he observed two HPD officers stop Plaintiff’s

vehicle. Izaguirre observed one of the officers handcuff

Plaintiff and the other officer struggle with Brooks before Brooks

ran away.*’ According to Izaguirre, both officers gave chase, and

Plaintiff attempted to run away while in handcuffs.’° At that

point, Izaguirre pulled his golf cart into Plaintiff’s path, “told

[Plaintiff] to stay, and held him down on the pavement until the

two officers returned with [Brooks].”"”

Izaguirre affirmed that he did not place his foot on

Plaintiff’s head; nor did he observe anyone else do so.”* Izaguirre

6s See Doc. 69-2, Ex. B to Defs. Kelly & Whitehead’s Mot. for Summ. □□□□

Aff. of Def. Whitehead p. 2.

67 Id.; see also Doc. 69-2, Ex. B-1 to Defs. Kelly & Whitehead’s Mot.

for Summ. J, Incident Report No. 879346-15, Def. Whitehead’s Narrative p. 3.

68 See Doc. 65-6, Ex. F to Def. City’s Mot. for Summ. J., Aff. of

Izaguirre p. l.

See id.

” See id.

7 Id. p. 2.

” See id.

12

further testified that he did not observe injuries to Plaintiff’s

face, hear Plaintiff request medical care, observe anyone ridicule,

or taunt Plaintiff, hear anyone yell at the police officers, or

observe anyone punch, kick, or strike Plaintiff.”

B. Procedural Background

On July 7, 2017, Plaintiff filed this action in the 165

Judicial District Court of Harris County.” Plaintiff alleged that

he was “violently beaten, harassed, taunted, wrongfully arrested

and denied medical attention” as a result of a traffic stop where

he was “not attempting to evade or resist arrest.”” Defendant

Hubenak removed the suit to this court on August 16, 2017.7° On

January 25, 2018, Plaintiff filed an amended complaint.’’ Plaintiff

filed a second amended complaint on February 22, 2018.”

From the lengthy, meandering, and repetitive amended

complaint, the court discerns several constitutional claims and

multiple theories of municipal liability.’ Against Defendants

Hubenak, Kelly, and Whitehead (“Defendant Officers”), Plaintiff

□ See id.

. "4 See Doc. 1-4, Ex. D to Def. Hubenak’s Not. of Removal, Pl.’s Compl.

p. 1.

7 Id. pp. 1, 5.

ws See Doc. 1, Def. Hubenak’s Not. of Removal.

" See Doc. 26, Pl.’s 1%* Am. Compl.

7 See Doc. 29, Pl.’s 2% Am. Compl.

See id. pp. 16-42.

13

alleged the use of excessive force during his arrest in violation

of the Fourth Amendment.80 In particular, Plaintiff complained of

excessive force:

a) when [Defendant] Hubenak body slammed

Plaintiff [while handcuffed] on his head, neck

and face;

b) when [Defendant] Hubenak punched Plaintiff in

his face and body;

c) and when [Defendant] Hubenak kicked and placed

his boot on the face and head of Plaintiff;

and enlisting [sic] a private security guard

to place his boot on Plaintiff’s head for a

period up to five minutes in violation of his

4th/14th Amendment [r]ight to be [f]ree from

[e]xcessive [f]orce.81

Plaintiff recast the same excessive-force allegations under the

Fourteenth Amendment as violations of his right to be free from

excessive force as a pre-trial detainee and his right to

substantive due process.82 Plaintiff also alleged a violation of

his right to be free from unreasonable search and seizure under the

Fourth Amendment resulting from Defendant Hubenak’s placing

Plaintiff’s cell phone in the soon-to-be-towed vehicle.83 Lastly,

Plaintiff alleged a violation of his right to medical care after

having sustained injuries.84

80 See id. pp. 16-21.

81 Id. p. 17.

82 See id. pp. 21-27.

83 See id. pp. 35-36.

84 See id. pp. 36-39.

14

As against Defendant City, Plaintiff alleged that it is liable

for the conduct of Defendant Officers due to its maintaining

inadequate use-of-force policies that allowed for the widespread

practice of “us[ing] body slams, feet and punching as .. . means

of force without adequate guidance or written policy.”® Plaintiff

also alleged inadequacies in other policies that, for example,

allowed searches of individuals in open doors of unsearched

vehicles and improper investigations into uses of force.*® In

addition to inadequate policies and/or a failure to enforce

policies, Plaintiff alleged deficiencies in policies or customs

related to hiring, training, supervising, disciplining, and

retaining officers and in ratifying illegal conduct.?®’

On August 15, 2018, the court entered a Memorandum and

Recommendation addressing Defendant Kelly’s Motion to Dismiss.*

The court determined that Plaintiff’s claim alleging wrongful

seizure of his cell phone was not barred by his guilty plea for

possession of marijuana under Heck v. Humphrey 517 U.S. 477

(1994) □□□ The court also determined that Plaintiff had stated a

claim against Defendant Kelly for denial of medical treatment but

8S Id. p. 28; see also id. pp. 27-35.

86 See id. pp. 27-35, 39-42.

” See id.

88 See Doc. 41, Mem. & Recom. Dated Aug. 15, 2018.

89 See id. pp. 8-11.

15

not for excessive force.90 Defendant Kelly timely objected to the

M&R,91 and Plaintiff belatedly filed a response to Defendant Kelly’s

Motion to Dismiss together with his response to Defendant Kelly’s

objections.92 Therein, Plaintiff also requested leave to amend his

complaint “to identify, by name instead of reference, parties

responsible for Plaintiff’s deprivation of rights.”93

On September 17, 2018, the district judge adopted the M&R and

granted leave to amend for the limited purpose of identifying the

defendant(s) against whom each remaining cause of action was

alleged.94 The court ordered Plaintiff to file the amendment within

fourteen days of the date of the order.95 Plaintiff failed to file

an amended complaint within fourteen days but, about four months

after the missed deadline, filed a motion for leave to amend his

complaint to add “new material and relevant information.”96 On

February 7, 2019, the court denied the motion as untimely and

without good cause.97

90 See id. pp. 11-14.

91 Doc. 44, Def. Kelly’s Objs. to M&R.

92 Doc. 46, Pl.’s Resp. to Def. Kelly’s Mot. to Dismiss & Def. Kelly’s

Objections to the M&R & Req. for Leave to Am. Compl.

93 Id. p. 5.

94 See Doc. 47, Ord. Adopting M&R Dated Sept. 17, 2018.

95 See id. p. 2.

96 See Doc. 60, Pl.’s Mot. for Leave to File Am. Compl.

97 See Doc. 63, Ord. Dated Feb. 7, 2019.

16

Later that month, the parties unsuccessfully attempted

mediation.98 Defendants timely filed the three pending motions for

summary judgment at the end of February.99 On August 8, 2018, the

court held a status conference, and the parties stated that, while

they were continuing settlement discussions, they did not

anticipate any resolution within the next few weeks.100 Thus, the

court now addresses the pending motions for summary judgment.

II. Evidentiary Objections

A party must support its factual positions on summary judgment

by citing to particular evidence in the record. Fed. R. Civ. P.

56(c)(1). Federal Rule of Civil Procedure 56(c)(2) allows a movant

to object to exhibits that “cannot be presented in a form that

would be admissible in evidence” under the Federal Rules of

Evidence. Only relevant evidence is admissible. Fed. R. Evid.

402. Relevant evidence has a “tendency to make a fact more or less

probable than it would be without the evidence” and relates to a

fact “of consequence in determining the action.” Fed. R. Evid.

401. However, “[e]vidence of a person’s character or character

trait is not admissible to prove that on a particular occasion the

person acted in accordance with the character or trait.” Fed. R.

98 See Doc. 64, Jt. Alternative Dispute Resolution Report.

99 See Doc. 45, Ord. Dated Aug. 30, 2018; Doc. 65, Def. City’s Mot. for

Summ. J.; Doc. 66, Def. Hubenak’s Mot. for Summ. J.; Doc. 69, Defs. Kelly &

Whitehead’s Mot. for Summ. J.

100 See Doc. 90, Min. Entry Ord. Dated Aug. 8, 2019; Audio of H’rg Dated

Aug. 8, 2019.

17

Evid. 404.

Affidavits or declarations supporting summary judgment “must

be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is

competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). Conclusory allegations, unsubstantiated assertions,

improbable inferences, and speculation are not competent evidence.

See Roach v. Allstate Indem. Co., 476 F. App’x 778, 780 (5th Cir.

2012)(unpublished)(citing S.E.C. v. Recile, 10 F.3d 1093, 1097 (5th

Cir. 1993)).

Hearsay is not admissible evidence. Fed. R. Evid. 802.

Hearsay is a statement, not made while testifying in the current

litigation, that is offered for “the truth of the matter asserted

in the statement.” Fed. R. Evid. 801. An exception to hearsay

exists for records of a regularly conducted activity of a business.

See Fed. R. Evid. 803(6).

The parties present five objections to evidence. Plaintiff

objects to Izaguirre’s affidavit on the basis that he did not

describe his training and experience and he did not have personal

knowledge of the force employed against Plaintiff. Izaguirre was

the Fiesta security guard on the scene. His testimony is offered

as an eye-witness account, not as an expert opinion. Accordingly,

he is not entitled to testify about the reasonableness of Defendant

Hubenak’s use of force. However, Izaguirre is entitled to testify

18

about events that he witnessed. In his affidavit, he asseverates

that he personally witnessed the events as they transpired. His

account does not agree with Plaintiff’s account; however,

Plaintiff’s objections go to the weight not the admissibility of

Izaguirre’s testimony. Plaintiff’s objection is SUSTAINED IN PART

AND OVERRULED IN PART.

All Defendants object to Plaintiff’s Statement of Facts in his

response on the basis that it mischaracterizes the evidence. A

brief is not evidence. Defendants’ objection is OVERRULED.

Without pointing to any particular statement in Plaintiff’s

affidavit, all Defendants object to it on the bases that it

contains bare allegations of fact and conclusory statements and

that statements therein are misleading. Defendants’ challenges

suggest only disputes of fact. The court has not relied on any

inadmissible statement. The objection to Plaintiff’s affidavit is

OVERRULED.

Defendant City objects to Plaintiff’s discussion of a 2007

case in which Defendant Hubenak was a named but unserved defendant

on the bases that Plaintiff mischaracterizes the lawsuit and that

the case contains inadmissible character evidence. Although

Plaintiff did not attach the complaint as evidence in support of

his response,101 Plaintiff cites the complaint for the truth of the

101 Defendant City requests that the court take judicial notice of the

filings in the case pursuant to Federal Rule of Evidence 201. The court GRANTS

that request.

19

allegations of excessive force against Defendant Hubenak. No

adjudication of the allegations against Defendant Hubenak occurred.

The objection is SUSTAINED.

Defendant Hubenak objects to the document regarding his HPD

employee complaint history on the bases that it contains irrelevant

information, hearsay, and impermissible character evidence. The

document lists seventeen citizen complaints reported from May 2009

to January 2016, including six use-of-force complaints. The

information contained in the document is both temporally and

substantively relevant. The document is a business record of HPD

kept in the course of its regularly conducted activity and falls

therefore, within an exception to hearsay. While it appears to

lack proper authentication, that can be easily rectified by the

testimony of the custodian or other qualified witness. The

document is not admissible to prove that Defendant Hubenak acted

improperly during the incident at issue in this lawsuit, but it is

admissible to show that multiple use-of-force and other complaints

had been filed against Defendant Hubenak. This objection is

SUSTAINED IN PART AND OVERRULED IN PART.

III. Legal Standards

Procedural and substantive legal standards inform the court’s

resolution of the pending motions.

A. Summary Judgment Standard

Summary judgment is warranted when the evidence reveals that

20

no genuine dispute exists regarding any material fact and the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Stauffer v. Gearhart, 741 F.3d 574, 581 Cir. 2014). A material

fact is a fact that is identified by applicable substantive law as

critical to the outcome of the suit. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v.

Signal Composites, Inc., 271 F.3d 624, 626 (5 Cir. 2001). To be

genuine, the dispute regarding a material fact must be supported by

evidence such that a reasonable jury could resolve the issue in

favor of either party. See Royal v. CCC & R Tres Arboles, L.L.C.,

736 F.3d 396, 400 □□□ Cir. 2013) (quoting Anderson, 477 U.S. at

248).

The movant must inform the court of the basis for the summary

judgment motion and must point to relevant excerpts from pleadings,

depositions, answers to interrogatories, admissions, or affidavits

that demonstrate the absence of genuine factual issues. Celotex

Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 □□□

Cir. 1992). The movant may meet this burden by demonstrating an

absence of evidence in support of one or more elements of the case

for which the nonmovant bears the burden of proof. See Celotex

Corp., 477 U.S. at 322; Exxon Corp. v. Oxxford Clothes, Inc., 109

F.3d 1070, 1074 (5° Cir. 1997). If the movant carries its burden,

the nonmovant may not rest on the allegations or denials in the

21

pleading but must respond with evidence showing a genuine factual

dispute. Stauffer, 741 F.3d at 581 (citing Hathaway v. Bazany, 507

F.3d 312, 319 (5th Cir. 2007)). “The court need consider only the

cited materials.” Fed. R. Civ. P. 56(c)(3).

B. Section 1983 and Constitutional Standards

In order to prevail on a claim under Section 1983,102 a

plaintiff must establish that the defendant deprived the plaintiff

of his constitutional rights while acting under the color of state

law. Moody v. Farrell, 868 F.3d 348, 351 (5th Cir. 2017).

Plaintiff pled violations of the following constitutional rights:

(1) Fourth Amendment protection against excessive force;103 (2)

Fourteenth Amendment right to medical care; and (3) Fourth

Amendment protection against unlawful seizure of Plaintiff’s cell

phone.

In order to establish an excessive-force claim under the

Fourth Amendment, a plaintiff must show: (1) an injury; (2) that

102 The provision reads, in relevant part:

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 . . . .

42 U.S.C. § 1983.

103 Although Plaintiff also pled excessive force under the Fourteenth

Amendment, he waived that claim by failing to respond to the relevant parts of

Defendants’ motions for summary judgment. See Keenan v. Tejeda, 290 F.3d 252,

262 (5th Cir. 2002)(“an issue raised in the complaint but ignored at summary

judgment may be deemed waived”). The latter claim should be dismissed against

all Defendants.

22

“resulted directly from the use of excessive force;” and (3) “that

the excessiveness of the force was unreasonable.” Carnaby v. City

of Houston, 636 F.3d 183, 187 (5% Cir. 2011) (citing Freeman v.

Gore, 483 F.3d 404, 416 (5% Cir. 2007)). “The objective

reasonableness of the force . . . depends on the facts and

circumstances of the particular case, such that the need for force

determines how much force is constitutionally permissible.”

Collier v. Montgomery, 569 F.3d 214, 218-19 (5™ Cir. 2009) (quoting

Bush v. Strain, 513 F.3d 492, 501 (5* Cir. 2008)). Reasonableness

is “judged from the perspective of a reasonable officer on the

scene,” not in hindsight. Ramirez v. Knoulton, 542 F.3d 124, 128

Cir. 2008).

Pretrial detainees have a Fourteenth Amendment due-process

right to medical care. See Garza v. City of Donna, 922 F.3d 626

Cir. 2019). With regard to medical care, an officer’s

“episodic act or omission” violates that right if he acts or fails

to act with “subjective deliberate indifference to the detainee’s

rights.” Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393

(5"" Cir. 2000) (quoting Nerren v. Livingston Police Dep’t, 86 F.3d

469, 473 Cir. 1996)).

In addition to protecting individuals from a police officer’s

use of excessive force, the Fourth Amendment protects against

unreasonable seizures of property. see Trent v. Wade, 776 F.3d

368, 377 (5° Cir. 2015) (quoting Fernandez v. California, 571 U.S.

23

292, 298 (2014)). A warrantless seizure of evidence in plain view

is reasonable when the officer is legally in the location from

which he viewed the item seized and the “incriminating nature of

the item [is] ‘immediately apparent.’” United States v. Turner,

839 F.3d 429, 433 (5th Cir. 2016)(quoting Horton v. California, 496

U.S. 128, 136 (1990)).

Government officials are entitled to qualified immunity from

liability for civil damages “unless [(1)] the official violated a

statutory or constitutional right [(2)] that was clearly

established at the time of the challenged conduct.” Reichle v.

Howards, 566 U.S. 658, 664 (2012). Qualified immunity protects an

officer even for reasonable mistakes in judgment. See Ashcroft v.

Al-Kidd, 563 U.S. 731, 743 (2011)(“Qualified immunity gives

government officials breathing room to make reasonable but mistaken

judgments about open legal questions.”); Pearson v. Callahan, 555

U.S. 223, 231 (2009)(“The protection of qualified immunity applies

regardless of whether the government official’s error is ‘a mistake

of law, a mistake of fact, or a mistake based on mixed questions of

law and fact.’”)(quoting Groh v. Ramirez, 540 U.S. 551, 567

(2004)(dissenting opinion)). By invoking qualified immunity, a

defendant shifts the burden to the plaintiff to rebut the

defendant’s assertion. Cantrell v. City of Murphy, 666 F.3d 911,

918 (5th Cir. 2012).

A city may be held liable under Section 1983 only for its own

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illegal acts, not pursuant to a theory of vicarious liability.

Connick v. Thompson, 563 U.S. 51, 60 (2011). To succeed on a claim

under Section 1983, the plaintiff must demonstrate that an official

policy promulgated by the municipal policymaker was the moving

force behind the alleged constitutional violation. Peña v. City of

Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018). Official

municipal policy includes the “decisions of a government’s law-

makers, the acts of its policymaking officials, and practices so

persistent and widespread as to practically have the force of law.”

Id. at 621-22 (quoting Connick, 563 U.S. at 61). The burden on the

plaintiff is to “identify the policy, connect the policy to the

city itself and show that the particular injury was incurred

because of the execution of that policy.” Bennett v. City of

Slidell, 728 F.2d 762, 767 (5th Cir. 1984).

III. Analysis

The two motions filed by Defendant Officers challenge whether

Plaintiff can overcome their assertion of qualified immunity. The

court addresses those motions before addressing Defendant City’s

motion on municipal liability.

A. Defendant Officers’ Motions

Defendant Officers contend that they are entitled to qualified

immunity on all of Plaintiff’s claims. As a preliminary matter,

none of Defendant Officers argues that he was not acting under the

color of state law at the time of the challenged conduct.

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Additionally, Defendant Officers cannot succeed on an argument that

any of the allegedly violated constitutional protections were not

clearly established at the time of the incident because the

parameters of excessive force, failure to provide medical care, and

unreasonable seizures as applied to the facts of this case were

well developed areas of law on July 7, 2015. See, e.g., Graham v.

Connor, 490 U.S. 386, 392-99 (1989)(discussing law on use of

force); Horton, 496 U.S. at 133-37 (discussing law on warrantless

seizure of property); Hare v. City of Corinth, Miss., 74 F.3d 633,

647-48 (5th Cir. 1996)(discussing law on providing medical care).

Thus, the only appropriate question for the court regarding each

alleged constitutional violation is whether Plaintiff has produced

sufficient evidence to create a fact issue as to whether any of the

Defendant Officers violated any of Plaintiff’s constitutional

rights.

1. Excessive Force

To succeed on this claim, Plaintiff must point to evidence

suggesting that each Defendant Officer caused Plaintiff an injury

that resulted from a use of force that was excessive and

unreasonable.104

104 In his response briefs, Plaintiff states that he pled that Defendant

Officers “used excessive force and/or deadly force.” See Doc. 75, Pl.’s Resp.

to Def. City’s Mot. for Summ. J. p. 19; Doc. 75, Pl.’s Resp. to Def. Hubenak’s

Mot. for Summ. J. p. 14; Doc. 76, Pl.’s Resp. to Defs. Kelly & Whitehead’s Mot.

for Summ. J. p. 10. Without providing any legal reference, Plaintiff appears to

view Defendant Hubenak’s shoving Plaintiff to the ground as potentially deadly

force. The court finds that characterization to be a stretch.

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Plaintiff’s affidavit provides sufficient evidence that

Defendant Hubenak shoved Plaintiff to the ground, punched Plaintiff

in the body and head, and ground Plaintiff’s head into the pavement

with a foot. Furthermore, Plaintiff testified that Brooks never

reached into the vehicle and that Plaintiff was complying with

Defendant Hubenak’s order to get down before he pushed Plaintiff.

Defendant Hubenak’s evidence raises questions as well, concerning

whether he reasonably worried about a weapon on the passenger

floorboard when he had observed Brooks’ moving a bag of marijuana

to that location and whether Defendant Hubenak was truly concerned

about crossfire from Defendant Kelly when, as he admitted, he knew

that Defendant Kelly had not drawn his weapon.

These facts call into question the reasonableness of Defendant

Hubenak’s belief that there was a significant threat to Plaintiff’s

safety that warranted shoving a handcuffed suspect to the ground.

Should the jury resolve the factual disputes in Defendant Hubenak’s

favor, he may be entitled to qualified immunity even if he

mistakenly assessed a risk of danger to Plaintiff’s safety.

Moreover, assuming Plaintiff’s account is true regarding the

subsequent force used while Plaintiff was in handcuffs on the

ground, no evidence suggests that such force was reasonable.

Defendant Hubenak’s defense is that those actions never took place.

A jury will be required to decide whom to believe.

Summary judgment should not be granted on Plaintiff’s

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excessive force claim against Defendant Hubenak.

The court previously dismissed the excessive-force claim

against Defendant Kelly. In response to Defendants Kelly and

Whitehead’s motion, Plaintiff states that he “pleads that

[Defendant Whitehead] used excessive force and/or deadly force in

the course of the officers’ supposed arrest, and/or investigatory

stop, and/or other ‘seizure’ of a free citizen, such as Plaintiff

in violation of the Fourth Amendment and its ‘reasonableness’

standard.”105 Plaintiff fails to support his allegations with any

evidence. In fact, the remainder of the two paragraphs Plaintiff

devotes to excessive force discusses only Defendant Hubenak’s

conduct.106

Defendant Whitehead is entitled to summary judgment on the

excessive force claim.

2. Failure to Provide Medical Care

To succeed on this claim, Plaintiff must point to evidence

105 Pl.’s Resp. to Defs.’ Kelly & Whitehead’s Mot. for Summ. J. p. 9.

The court relies on the courtesy copy of this response. Docketed at entry number

76 as a response to Defendants Kelly and Whitehead’s Motion for Summary Judgment

is a document entitled “Plaintiff’s Response to Defendant Hubenak’s Motion for

Summary Judgment” and contains the same “summary of argument” section as in

Plaintiff’s response to Defendant City’s motion. See Doc. 76, Pl.’s Resp. to

Def. Hubenak’s Mot. for Summ. J. The docketed response appears to respond in

other aspects to Defendants Kelly and Whitehead’s Motion for Summary Judgment.

See id.

106 The court does not read Plaintiff’s complaint to allege a claim of

supervisor liability against Defendant Whitehead. Regardless, the court agrees

with Defendant Whitehead that a supervisor cannot be held liable on a theory of

respondeat superior but only when his own conduct caused the violation or when,

in failing to train or supervise, his actions amounted to deliberate

indifference. See Estate of Davis ex rel. McCully v. City of N. Richland Hills,

406 F.3d 375, 381 (5th Cir. 2005).

28

that each of Defendant Officers acted with deliberate indifference

to Plaintiff’s right to medical care.

Plaintiff testified that Defendant Hubenak applied significant

force against Plaintiff and again while he was handcuffed on the

ground and, later, ignored Plaintiff’s request for medical

assistance. It is undisputed that an abrasion and swelling were

visible on Plaintiff’s right cheek, that Plaintiff was not booked

at the jail due to his medical condition, and that Defendant

Hubenak was one of the officers who transported Plaintiff to a

hospital for treatment thirty to forty minutes after being

instructed to do so.

These facts preclude the court from granting summary judgment

on this claim against Defendant Hubenak. If Plaintiff’s affidavit

is taken as true, Defendant Hubenak knew exactly how much and the

nature of the force he exerted on Plaintiff. Defendant Hubenak

admitted that he saw the abrasion and swelling on Plaintiff’s face.

If Defendant Hubenak was not aware of the extent of Plaintiff’s

injury immediately, certainly he would have been alerted when

Plaintiff requested medical care and when the jail medical staff

opined that Plaintiff needed to go to the hospital. That evidence

is sufficient to satisfy Plaintiff’s burden of production that

Defendant Hubenak was aware of facts leading to an inference of

excessive risk to Plaintiff’s health, that Defendant Hubenak drew

that inference, and that Defendant Hubenak disregarded the risk.

29

Summary judgment should not be granted on Plaintiff’s claim

against Defendant Hubenak for failure to provide medical care.

As for Defendants Kelly and Whitehead, Plaintiff claims that

they failed to summon medical assistance for Plaintiff despite his

several requests. The evidence does not indicate that Plaintiff

specifically asked either of these two Defendants for medical care.

In fact, Defendant Whitehead testified and included in his report

that he asked Plaintiff if he needed medical attention, and

Plaintiff declined. No evidence places Defendant Kelly among the

officers who even saw Plaintiff’s injuries prior to transporting

Plaintiff to jail. The evidence does not support an inference that

either of these officers possessed subjective knowledge of the

extent of Plaintiff’s injuries much less showed deliberate

indifference to his needs.

Summary judgment should be granted on Plaintiff’s claims

against Defendants Kelly and Whitehead for failure to provide

medical care.

3. Unlawful Seizure of Plaintiff’s Cell Phone

To succeed on this claim, Plaintiff must point to evidence

that Defendant Hubenak’s seizure of the cell phone was

unreasonable.

The parties do not even agree that Defendant Hubenak took the

cell phone from Plaintiff and tossed it into Plaintiff’s vehicle

prior to its being towed. This alone is a genuine issue of

30

material fact to be resolved at trial. Because Defendant Hubenak

denies seizing the cell phone, he does not defend the its seizure

as evidence of a crime or pursuant to any other constitutional

justification.

Rather, Defendant Hubenak argues that, even if he did seize

the cell phone, the deprivation did not rise to the level of a

constitutional violation because the phone was returned to

Plaintiff. In making that argument, Defendant Hubenak relies on

cases addressing procedural-due-process claims, not Fourth

Amendment seizure claims. Accordingly, the court finds that

Defendant Hubenak fails to meet either of his burdens on summary

judgment. A dispute of fact exists, and Defendant Hubenak fails to

demonstrate that he is entitled to judgment as a matter of law.

Summary judgment should not be granted on Plaintiff’s claim

against Defendant Hubenak for seizure of the cell phone.

Regarding Defendants Kelly and Whitehead, Plaintiff again

relies solely on allegations in his live pleading. Plaintiff

contends that Defendants Kelly and Whitehead were present with an

opportunity to prevent the seizure and did not. Plaintiff points

to no evidence in support of this allegation.

Defendants Kelly and Whitehead are entitled to summary

judgment on the phone seizure claim.

B. Defendant City’s Motion

Defendant City’s motion boils down to the assertion that

31

Plaintiff cannot produce evidence to support his claims of

municipal liability against Defendant City. Plaintiff responds, in

significant part, by pointing to allegations in his live pleading.

Therein, Plaintiff alleged that numerous policies and customs were

moving forces behind the alleged constitutional violations.

However, allegations no longer matter. At this stage, only

evidence matters. Plaintiff fundamentally misunderstands his

burden on summary judgment. The burden is on Plaintiff to cite the

relevant materials that raise a fact issue on the existence of a

policy or custom that unconstitutionally caused Plaintiff’s

injuries. With that burden in mind, the court looks for evidence

cited by Plaintiff in support of the policies and customs addressed

in his response.

Plaintiff’s rambling and unfocused response to Defendant

City’s motion contains pages of allegations, argument, and

hyperbole but infinitesimal actual evidence. Plaintiff listed

nineteen exhibits in its response brief but docketed only ten of

those with the response and cited only nine of the nineteen in the

brief. Four of the nine exhibits cited by Plaintiff were not

docketed with the response; and two other pieces of evidence are

cited but not exhibited or attached. Despite all of those

impediments to the consideration of Plaintiff’s arguments regarding

Defendant City’s liability, the court has given consideration to

whether Plaintiff has produced sufficient evidence of a policy to

32

survive summary judgment.

Plaintiff does not allege that any written policy is itself

unconstitutional, only that Defendant Officers and others failed to

consistently follow several different policies. Plaintiff’s

argument suggests, at most, a practice of violating various

policies but does not point to evidence of repeated violations of

the same policy in the same unconstitutional way. The failure to

comply with Defendant City’s policies alone does not give rise to

constitutional relief against the officer, much less indicate that

violations of policy amount to unconstitutional conduct so

widespread as to implicate the municipality’s acquiescence with a

particular unconstitutional custom. Cf. Fraire v. City of

Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[E]ven a negligent

departure from established police procedure does not necessarily

signal violation of constitutional protections”). In other words,

general noncompliance with policies is not enough, the evidence

must suggest a particular unconstitutional custom. See Peña, 879

F.3d at 621-22.

Plaintiff’s response brief quotes his complaint’s allegations

of three particular widespread customs: (1) Defendant City failed

to properly investigate or discipline officers accused of using

excessive force; (2) Defendant City failed to adequately train and

supervise it officers; and (3) Defendant City tolerated a

widespread practice of failing to provide medical care to suspects

33

injured by its employees. Plaintiff cites no evidence in support

of the third policy.

In Plaintiff’s discussion of the first policy, Plaintiff

relies heavily on the facts of this case as evidence of a policy.

An inference of a policy of authorizing police misconduct is not

warranted based on a single incident. See Fraire, 957 F.2d at

1278.

However, where “reckless disregard for human life and safety

[is] prevalent among the city’s police officers[,] . . . threatens

the life and security of those whom they encounter, and . . . is

attributable to the instruction or example or acceptance of or by

the city policymaker, the policy itself is a repudiation of

constitutional rights.” Grandstaff v. City of Borger, Tex., 767

F.2d 161, 170 (5th Cir. 1985). Thus, if Defendant City possesses

an inadequate policy or custom of investigating and disciplining

police officers who use excessive force, then that policy or custom

could be the moving force behind the alleged unconstitutional use

of excessive force by Defendant Hubenak.

All Plaintiff needs to produce is evidence. Plaintiff cites

to Defendant Hubenak’s complaint history, which indicates that, in

a period of nearly seven years, six use-of-force citizen complaints

were filed against Defendant Hubenak. Plaintiff discusses the

internal investigations into five of those citizen complaints,

asserting that the investigations were flawed. Those five

34

complaints were not sustained upon investigation. Defendant

Hubenak was exonerated on the sixth, most recent citizen complaint,

which Plaintiff does not discuss. No possible interpretation of

this evidence leads to an inference of widespread practices

throughout the police force of excessive force, inadequate

investigations of citizen complaints, or inadequate discipline.

The only other evidence cited in support of this alleged

policy are a media news story and a academic article,107 neither of

which are attached to the response. Because Plaintiff did not

provide these pieces of evidence, the court cannot determine their

admissibility or significance. Plaintiff represents that the news

story stated that Defendant City’s statistics reflected the filing

of 1,795 use-of-force complaints against HPD officers from 2005

through 2015. Of those complaints, according to Plaintiff’s

account of the news story, 98.44 percent of the investigations

resulted in no finding against the officer.

Absent details of all of those incidents for comparison to the

facts of the incident at issue in this case, the court cannot

determine whether the news story’s numbers are statistically

significant and allow for an inference of a widespread

unconstitutional practice.

Plaintiff’s discussion of the second policy regarding training

107 The court assumes from the information provided by Plaintiff these

are a news story and an academic article.

35

cites the educational and training records of Defendant Officers108

in support of this assertion: “Moreover, Defendants[’] educational

and training records are void of medical training or training or

any indication that they were capable of diagnosing Moore’s

injuries.”109 Plaintiff misses the mark here. The law does not

require that police officers be capable of diagnosing Moore’s

injuries, only that they do not act with subjective deliberate

indifference to a detainee’s needs. See Jacobs, 228 F.3d at 393.

Plaintiff presents argument without evidence to support his

multitude of other alleged unconstitutional policies or customs.

Summary judgment should be granted on Plaintiff’s claim of

municipal liability.

C. Punitive Damages Claims

Defendant Hubenak’s entire argument in support of summary

judgment in his favor on punitive damages is:

Here there is no evidence to support an award of punitive

damages. The record is void of evil motive or reckless

or callous indifference to support punitive damages. Eye

witness Izaguirre describes the officers’ conduct as

reasonable, and the medical records fail to support any

claim of punches and kicks.110

As Defendant Hubenak fails to cite any law, he has not shown that

he is entitled to judgment as a matter of law on the punitive

108 The citation does not identify which exhibit contains their records,

and the court could locate only Defendant Hubenak’s.

109 Doc. 74, Pl.’s Resp. to Def. City’s Mot. for Summ. J. p. 17.

110 Doc. 66, Def. Hubenak’s Mot. for Summ. J. p. 13.

36

damages claim.

Regarding Defendants Kelly and Whitehead, the court has

determined that Plaintiff failed to present facts in support of any

claim against either of them. Therefore, they cannot be assessed

damages of any sort.

Finally, Plaintiff expressly abandoned his claim for punitive

damages against Defendant City.111

IV. Conclusion

Based on the foregoing, the court RECOMMENDS that Defendant

Hubenak’s motion be DENIED, Defendants Kelly and Whitehead’s motion

be GRANTED, and Defendant City’s motion be GRANTED.

If this Memorandum and Recommendation is adopted, the

remaining claims are: (1) Fourth Amendment claim for excessive

force against Defendant Hubenak; (2) Fourteenth Amendment claim for

failure to provide medical care against Defendant Hubenak; and (3)

Fourth Amendment claim for seizure of property against Defendant

Hubenak.

The Clerk shall send copies of this Memorandum and

Recommendation to the respective parties who have fourteen days

from the receipt thereof to file written objections thereto

pursuant to Federal Rule of Civil Procedure 72(b) and General Order

2002-13. Failure to file written objections within the time period

111 See Doc. 74, Pl.’s Resp. to Def. City’s Mot. for Summ. J. p. 28 (“To

the extent punitive damages are barred by law, Plaintiff is not seeking punitive

damages from Defendant City.”).

37

mentioned shall bar an aggrieved party from attacking the factual

findings and legal conclusions on appeal.

The original of any written objections shall be filed with the

United States District Clerk electronically. Copies of such

objections shall be mailed to opposing parties and to the chambers

of the undersigned, 515 Rusk, Suite 7019, Houston, Texas 77002.

SIGNED in Houston, Texas, this 28th day of August, 2019.

38