# Moore v. City Of Houston

> District Court, S.D. Texas · August 28, 2019

URL: https://www.frixlaw.com/law-library/cases/10672679

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 28, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- discussing law on warrantless seizure of property
- discussing law on providing medical care

## Opinion text

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
24
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.
25
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.
26
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
27
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10672679. Public record. Not legal advice.