Opinion

Ussery v. Flores

Court: District Court, S.D. Texas
Filed: Sep 17, 2019
Cited by: 0 cases
Authority: More cited than 31.9%

The opinion

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT igs □□□□□□ □□

FOR THE SOUTHERN DISTRICT OF TEXAS □

HOUSTON DIVISION □

ROY EUGENE USSERY, a/k/a §

TROY USSERY, §

Plaintiff,

Civil Action No. H-17-2235

HPD OFFICER X.A. FLORES, ef al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, a state inmate proceeding pro se and in forma pauperis, filed this section

1983 lawsuit against Houston Police Department (“HPD”) Officer X.A. Flores and Officer

Nicole Miyako (f/k/a N. Tafhurt), and Harris County Deputy Everett Simpson. Simpson filed

a motion for summary judgment (the “Simpson Motion”) (Docket Entry No. 26), to which

plaintiff filed three responses (Docket Entries No. 28, 37, 42) and Simpson filed a reply

(Docket Entry No. 41). Flores and Miyako filed a motion for summary judgment (the “HPD

Motion”) (Docket Entries No. 33, 35), to which plaintiff filed two responses (Docket Entries

No. 37, 42) and the defendants filed a reply (Docket Entry No. 38).

Having considered the motions, the responses and replies, the record, and the

applicable law, the Court GRANTS the motions for summary judgment and DISMISSES

this lawsuit for the reasons shown below.

I. BACKGROUND AND CLAIMS

Plaintiff complains that, on July 22, 2015, at a motel located in Harris County, Texas,

defendants accosted, assaulted, and tazed him without justification, causing bodily injuries.

He seeks monetary compensation for their use of excessive force and falsification of the

incident reports. He also complains that the arrest and ensuing criminal charges were

unlawful and false and that he is entitled to additional monetary compensation.

Defendants, on the other hand, state that plaintiff was found trespassing on the motel

grounds in the company of a female suspect. Plaintiff was noted to have an ankle monitor

on his right leg. The motel was known for having high drug and prostitution activity, and

plaintiff had been banned from the premises. Plaintiffresisted the officers’ efforts to arrest

and handcuff him, and he was brought under control only after one of the officers tazed him.

Plaintiff, who falsely identified himself to the officers, was found to be an unregistered sex

offender in possession of counterfeit money.

Defendants contend they are entitled to qualified immunity and move for summary

judgment dismissal of plaintiff's Fourth Amendment claims.

Yl. LEGAL STANDARDS

A. Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil Procedure, a moving party is entitled

to summary judgment if the pleadings, discovery, disclosure materials on file, and affidavits

show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The moving party has the burden of demonstrating the absence of genuine issue for trial.

Duckett v. City of Cedar Park, 950 F.2d 272, 276 (Sth Cir. 1992). The burden then shifts to

the non-moving party to show with significant probative evidence that a genuine issue of

material fact exists. Hamilton v. Segue Software, 232 F.3d 473, 477 (Sth Cir. 2000). Facts

are considered material if they might affect the outcome of the lawsuit under the governing

law. Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When considering the

evidence, all reasonable inferences are to be resolved in favor of the non-moving party.

Evans v. City of Houston, 246 F.3d 344, 348 (Sth Cir. 2001).

In opposing summary judgment, the non-movant must show more than “some

metaphysical doubt as to material facts.” Meinecke v. H&R Block of Houston, 66 F.3d 77,

81 (Sth Cir. 1995). Conclusory allegations, unsubstantiated assertions, improbable

inferences, unsupported speculation or only a scintilla of evidence will not carry this burden.

Brown v. City of Houston, 337 F.3d 539, 541 (Sth Cir. 2003). Likewise, unsupported

allegations, affidavits, or deposition testimony asserting ultimate or conclusory facts and

conclusions of law are not sufficient to defeat a motion for summary judgment. Clark v.

American’s Favorite Chicken, 110 F.3d 295, 297 (5th Cir. 1997).

Where the record, taken as a whole, indicates that no reasonable jury could return a

verdict for the non-movant, there is no genuine issue for trial and summary judgment must

be granted. Washington v. Allstate Ins. Co., 901 F.2d 1281,1286 (Sth Cir. 1990).

B. Excessive Force

To establish a claim for use of excessive force under the Fourth Amendment, a

plaintiff must establish that he experienced: (1) an injury; (2) which resulted directly and

only from the use of force which was clearly excessive to the need; and (3) the excessiveness

of which was clearly unreasonable. See Poole v. City of Shreveport, 691 F.3d 624, 628 (Sth

Cir. 2012); Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (Sth Cir. 2009). Whether the

force used is excessive or unreasonable turns on the facts and circumstances of the particular

case. See Tolan. Cotton, U.S.__, 1348. Ct. 1861, 1865 (2014); Graham v. Connor, 490

U.S. 386, 396 (1989). In Graham, the Supreme Court identified some of the factors which

a court should consider in making the determination, such as “the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham,

490 U.S. at 396. The “objective reasonableness” of a particular use of force is to be

determined in light of the facts and circumstances confronting the officer. Jd.

C. Qualified Immunity

In determining if an officer is entitled to qualified immunity, a court must engage in

a two step inquiry. Tolan, 572 U.S. at 655-56. First, the court must, by taking the facts in

the light most favorable to the party asserting the injury, determine if the facts would

establish conduct that violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201,

(2001). Next, the court must determine if the right in question was clearly established at the

time of the violation. Jd.

In assessing the reasonableness of the use of force, courts give “careful attention to

the facts and circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham,

490 U.S. at 396. The reasonableness of a particular use of force “must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Jd.; see also Rockwell v. Brown, 664 F.3d 985, 991 (Sth Cir. 2011). “The

calculus of reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary in a particular situation.”

Graham, 490 U.S. at 396-97.

At summary judgment, plaintiffs bear the burden to demonstrate that the defendant

official is not entitled to qualified immunity. Vincent v. City of Sulphur, 805 F.3d 543, 547

(Sth Cir. 2015). The court must ask whether the law so clearly and unambiguously prohibited

the officer’s conduct that every reasonable official would understand that what he is doing

violates the law. Id: see also Morgan v. Swanson, 659 F.3d 359, 371 (Sth Cir. 2011) (en

banc). It is clearly established that criminal suspects have a constitutional right to be free

from excessive force during an arrest. Tarver v. City of Edna, 410 F.3d 745, 753-54 (5th

Cir. 2005). This does not end the inquiry, however, as the Supreme Court has carefully

admonished that courts are “not to define clearly established law at a high level of

generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“We have repeatedly told courts

... not to define clearly established law at a high level of generality. The general proposition,

for example, that an unreasonable search or seizure violates the Fourth Amendment is of little

help in determining whether the violative nature of particular conduct is clearly established.”)

(citations omitted); see also Hernandez v. United States, 785 F.3d 117, 120 (Sth Cir. 2015).

To defeat qualified immunity, a plaintiff must demonstrate that “it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” Id.

(emphasis added).

il. SIMPSON MOTION

Plaintiff claims that Deputy Simpson kicked him during the incident. Simpson filed

a motion for summary judgment (the “Simpson Motion’) (Docket Entry No. 26), to which

plaintiff filed three responses (Docket Entries No. 28, 37, 42) and Simpson filed a reply

(Docket Entry No. 41).

Simpson submitted an affidavit in support of summary judgment, in which he testifies

as follows:

I am licensed as a peace officer by the State of Texas, and employed by the

Harris County Sheriff's Office as a deputy sheriff. On July 22, 2015, I was

working an extra job which had been previously approved by the Harris

County Sheriff’s Office (“the Sheriff's Office”). The extra job was located at

Motel 6, Houston Energy Corridor, 14833 Katy Freeway, Houston, Texas

77094 (“Motel 6”). Motel 6 is known for having high drug activity and

prostitution. I was wearing a regulation Sheriff's Office uniform while

working the extra job at Motel 6.

I was performing foot rounds on the south side of Motel 6 at approximately

2:45 a.m. on July 22, 2015, when I observed two officers from the Houston

Police Department (“HPD”) on the property. The HPD officers were checking

an unknown Caucasian male for warrants. There was also a female suspect

present. I walked up to assist in the investigation. During the investigation, I

learned that Plaintiff Ussery (“Plaintiff”) the Caucasian male suspect, was

not supposed to be on the property and was trespassing, which is a criminal

offense.

I observed HPD Officer Flores attempting to handcuff Plaintiff to take him

into custody on a trespassing charge. HPD Officer Flores placed one handcuff

on Plaintiffs wrist. Plaintiff began to actively resist by fighting with us. He

was swinging his arms, shouting and physically, forcefully and aggressively

pushing us away from himself with both hands. Officer Flores held onto

Plaintiffs left arm and I held onto his right arm. Plaintiff kept pushing down

with his weight, trying to throw Officer Flores and me off balance.

While this was occurring, the other HPD officer was speaking to the female

suspect. When she observed the struggle between Officer Flores, myself and

Plaintiff, the other HPD officer came to assist us, attempting to deploy the

Taser in response to Plaintiff's resistance. Plaintiff made several attempts to

kick the Taser out of the second officer’s hands. The HPD officer was able to

deploy the Taser, but it initially did not make effective contact. The HPD

officer deployed the Taser a second time to gain control of Plaintiff and

successfully handcuff him. This time, the deployment was successful. Once

under control, Plaintiff was then taken into custody.

The Houston Fire Department arrived on the scene to provide medical

treatment for any possible injuries. The Harris County District Attorney’s

Office subsequently accepted a charge against Plaintiff.

The only force I used during this incident was that necessary to respond to

Plaintiffs aggressive physical resistance to being taken into custody on a

trespassing charge. The sole force J used was that of holding Plaintiff's arm so

he could be handcuffed. At no time did I assault Plaintiff, either before he was

subdued, or after he was subdued. I did not deploy my Taser at any time. I did

not kick Plaintiff and I did not step on his face.

The force I used to restrain Plaintiff during the course of his arrest on July 22,

2015 was reasonable. At all times, I was in the scope of my employment as a

peace officer. I was performing a discretionary duty, and acted at all times in

good faith. .

(Docket Entry No. 26-1.)

Plaintiff filed three responses to Simpson’s motion for summary judgment; of the

three, only the first (Docket Entry No. 28) was timely filed. The later two responses (Docket

Entries No. 37, 42) were filed without leave of court in excess of thirty days after Simpson

filed his motion. These two responses, to the extent they relate to Simpson’s motion, will not

be considered by the Court.

In his timely-filed response to Simpson’s motion, plaintiff concedes that he

“continued to struggle” against the defendants during the incident, and that he kicked and

moved around trying to dodge the Taser firings. (Docket Entry No. 28, p. 7.) Nowhere does

he claim to have surrendered to the officers prior to the Taser deployments. Consequently,

he acknowledges that he did not submit to an arrest or handcuffs and resisted defendants’

efforts to bring him under control. He further admits that he is only assuming that Simpson

was the officer who discharged the Taser. /d., p. 8. He presents no probative summary

judgment evidence that Simpson used the Taser against him, and he fails to controvert

Simpson’s affidavit testimony that it was Miyako who fired the Taser, as well as Miyako’s

own affidavit testimony that she fired the Taser.

Moreover, plaintiff presents no probative summary judgment evidence that Simpson

kicked him or stomped on his head after he was subdued, and he fails to controvert

Simpson’s affidavit testimony that he never kicked or stomped on plaintiff's head. He

further fails to present probative summary judgment evidence, such as medical records,

establishing that Simpson’s actions during the incident caused him any injury.

Plaintiff presents no probative summary judgment evidence that Simpson used

excessive force against him during the incident, and he fails to raise a genuine issue of

material fact precluding summary judgment in Simpson’s favor. Simpson is entitled to

summary judgment as a matter of law. Simpson’s motion for summary judgment (Docket

Entry No. 26) is GRANTED and plaintiffs excessive force claims against him are

DISMISSED WITH PREJUDICE.

To the extent plaintiff claims that Simpson violated his constitutional rights by

falsifying the incident reports or failing to file a separate report, his claim raises no viable

issue of a constitutional dimension for purposes of section 1983. Simpson’s motion for

summary judgment dismissal of this claim is GRANTED and the claim is DISMISSED

WITH PREJUDICE.

To the extent plaintiff seeks monetary compensation for an allegedly unlawful arrest

and criminal charges stemming from the incident, he fails to show that the arrest and/or

ensuing criminal charges have been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such a determination, or called into

question by a federal court’s issuance ofa writ of habeas corpus. His claims are barred by

Heck v. Humphrey, 512 U.S. 477 (1994), and are DISMISSED WITH PREJUDICE to

being asserted again until the Heck conditions are satisfied.

IV. HPD MOTION

Officers Flores and Miyako filed a motion for summary judgment (the “HPD

Motion”) (Docket Entries No. 33, 35), to which plaintiff filed two responses (Docket Entries

No. 37, 42) and the defendants filed a reply (Docket Entry No. 38).

Plaintiff alleges that these defendants used excessive force against him by tazing him,

leaving scars where the Taser barbs struck him. Defendants contend that the use of force was

reasonable and necessary, and that they are entitled to qualified immunity.

Flores submitted an affidavit in support of summary judgment, in which he testifies

as follows:

On July 22, 2015 at 2:49 a.m., while on patrol with Officer Nicole Miyako, we

observed a suspicious vehicle parked illegally in the parking lot of Motel 6,

located at 14833 Katy Freeway, Houston, Texas. That area is known for

having high drug activity and prostitution. Officer Miyako and I were wearing

Houston Police uniforms.

We located the suspicious vehicle which had a female occupant, later

determined to be Cassie Ledbetter Hall. She stated that she was waiting in the

vehicle for her friend. Shortly thereafter Plaintiff approached us. Deputy

Everett Simpson, who works an approved extra job there approached and

assisted in the investigation. Simpson checked with the front desk and advised

that Plaintiff was not registered as a guest and was trespassing. We advised

him he was under arrest. Deputy Simpson and I then attempted to handcuff

Plaintiff. I placed a metal cuff on Plaintiffs left wrist, but Plaintiff refused

our commands to comply and resisted by swinging his right arm in a striking

manner at me and shouting and kicking. Simpson and I are about five feet,

nine inches tall. As Simpson and I struggled with Plaintiff who was six feet

tall and over 200 pounds, Miyako drew her Taser and warned Plaintiff to stop

resisting. Plaintiff refused our commands to stop resisting and Miyako

deployed the Taser which did not make good contact and had no effect.

Plaintiff continued to resist, and Miyako deployed her Taser again. Plaintiff

then went to the ground where he tucked his hands underneath his chest and

refused to let us complete the handcuffing. After refusing our commands to

stop resisting Miyako again deployed her Taser for a third cycle and we were

able to complete the handcuffing. Plaintiff had given us a false name. A

Constable from the Constable’s Office arrived and used a mobile AFIS to

fingerprint him and determine his real identity as Roy Ussery.

I did not nor did any other officer kick, strike, or stomp Plaintiff. No other

officer deployed a Taser. Miyako’s deployment of the Taser was consistent

with our training and General Orders and responsive to the level of resistance

posed by Plaintiff. My use of force was also consistent with our training and

General Orders and responsive to the level of resistance posed by Plaintiff.

During his custodial search, we found counterfeit currency on Plaintiff's

person. We called paramedics to the scene to remove the Taser barbs from

Plaintiff. Miyako and I transported plaintiff to central jail where the nurse

directed us to take him to Ben Taub Hospital. We drove him to Ben Taub.

At all times relevant to Plaintiff's claims, I was a public official, specifically,

a Texas Commission on Law Enforcement certified peace officer employed by

the Houston Police Department as a police officer. At all relevant times, I was

discharging my official duties, exercising my discretionary authority as a peace

officer and acting within the course and scope of my employment as a Houston

police officer. Those duties include investigating possible criminal offenses,

enforcing the laws of the State of Texas and City of Houston. I believe on this

occasion Miyako and I used reasonable force under the circumstances.

At all relevant times, I believed that my actions were lawful and justified by

the facts known to me and the applicable law relating to the Fourth

Amendment.

A reasonable police officer, possessing the information known to me at the

time, could have believed that it was lawful to investigate the suspicious

vehicle call and detain and arrest Plaintiff as officer Miyako and I did.

Therefore, my conduct as described above was objectively reasonable.

At all times during this incident, I was acting in good faith and within the

scope of my discretionary authority as a police officer. My actions leading up

to, during, and following the arrest in question were undertaken pursuant to the

exercise of the authority vested in me as a police officer of the City of

Houston. State and federal law permit detentions and arrest based upon

probable cause, and I believe that my decisions and actions were consistent

with state and federal law. I believe that all my actions on the date and time

in question were reasonable, proper, and necessary to perform my duties, and

I at no time acted with an intent to deprive Plaintiff of any of his legally

protected rights. I did not violate clearly established law of which a reasonable

person would have known. I never used excessive force upon Plaintiff and

never saw any other officer mistreat or use excessive force in his contact with

Plaintiff.

(Docket Entry No. 33-2.)

Miyako also submitted an affidavit in support of summary judgment, in which she

testifies as follows:

On July 22, 2015 at 2:49 a.m., while on patrol with Officer Xavier Flores, we

observed a suspicious vehicle illegally parked in the parking lot of Motel 6,

located at 14833 Katy Freeway, Houston, Texas. That area is known for

having high drug activity and prostitution. Officer Flores and I were wearing

Houston Police uniforms.

We located the suspicious vehicle which had a female occupant, later

determined to be Cassie Ledbetter Hall. She stated that she was waiting in the

vehicle for her friend. I observed a male, later identified as Roy Eugene

Ussery, coming down the stairs of the motel. He stated the vehicle was not his

but he would move it. I asked for his identification. He said it was in his

motel room and gave the name Paul Leslie San Salvador. Deputy Everett

Simpson, who works an approved extra job there approached and assisted in

the investigation. Deputy Simpson checked with the front desk and was

advised that Plaintiff was not registered as a guest and was trespassing.

Officer Flores and Deputy Simpson attempted to handcuff Plaintiff. Flores

placed a metal cuffon Plaintiffs left arm, but Plaintiffrefused their commands

to comply and resisted by swinging his right arm in a striking manner and

shouting and kicking. I drew my Taser and warned Plaintiff to stop resisting.

Plaintiff refused, and I deployed the Taser for a five second cycle and aimed

at his torso. The Taser did not make good contact, and the Taser had no effect.

Plaintiff continued to resist, and I deployed my Taser again for a five second

cycle. Plaintiffthen went to the ground where he tucked his hands underneath

his chest and refused to let us complete the handcuffing. As Plaintiff refused

our commands to stop resisting, I deployed my Taser for a third five second

cycle and we were able to complete the handcuffing.

I did not nor did any other officer kick, strike, or stomp on Plaintiffs person.

We called paramedics to the scene to remove the Taser barbs from Plaintiff.

Flores and I transported Plaintiff to central jail where the nurse directed us to

take him to Ben Taub Hospital. We drove him to Ben Taub.

Filed separately under seal is a true and correct copy [of] incident reports

which pertain to this incident.

At all times relevant to Plaintiff’s claims, I was a public official, specifically,