Smith, Jr. v. Barnes

UNITED STATES DISTRICT COURT March 13, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

CHARLES R. SMITH, JR., §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 4:17-2236

§

SGT. BARNES, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

In this civil rights action, Plaintiff Charles R. Smith, Jr., proceeds pro se and in

forma pauperis. Smith sues seven defendants in connection with his arrest on May 4,

2017. Defendants have moved for summary judgment and dismissal of all claims against

them. See Dkt. 56, Dkt. 60, Dkt. 61. Smith has not responded to the motions, and the

time to respond has expired. The motions are ripe for decision. After reviewing the

pleadings, the motions and briefing, the applicable law, and all matters of record, the

Court concludes that summary judgment should be granted for Defendants and all of

Smith’s claims should be dismissed for the reasons explained below.

I. BACKGROUND

Smith sues four Houston Police Department (“HPD”) officers involved in his

arrest: Sergeant Barnes, Officer Fimbinger, Officer Littler, and Officer Jurecek.1 He also

sues the City of Houston and two HPD supervisory officials, Lieutenant C.A. Granger

and Captain D.B. Edwards. His complaint alleges that all Defendants violated his rights

1 Fimbinger was not served with process and has not appeared in this case (Dkt. 20).

under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States

Constitution. He also brings claims under Texas law for assault, aggravated assault,

criminal conspiracy, and engaging in organized criminal activity (Dkt. 39, at 5).2

On or about May 4, 2017, Smith was arrested for theft on Aldine Bender Road in

Houston. Defendants have submitted the HPD offense report from Smith’s arrest (Dkt.

61-3). Smith states that, at the time he was apprehended, he was leaning over into the

passenger seat of an HPD “bait truck” that he had stolen (Dkt. 39, at 3; id. at 9 (Plaintiff’s

declaration)). He recounts that he “looked up and realized the vehicle was totally

surrounded by a large number of police officers on foot and in vehicles” (id.). The HPD

offense report contains the officers’ statements that Smith attempted to flee on foot and to

escape into another vehicle that was next to the “bait truck” (see, e.g., Dkt. 61-3, at 13).

Smith claims that he was compliant with officer’s instructions, exited the vehicle as

instructed, was unarmed, and did not evade or flee from the officers (Dkt. 39, at 3).

Smith alleges that Defendants Barnes, Fimbinger, Littler, and Jurecek aggressively

threw him to the ground and used force against him, even after he had been handcuffed:

Plaintiff was aggressively thrown to the ground by a group of officers later

identified by Internal Affairs . . . . as [Barnes, Fimbinger, Littler, and

Jurecek]. Then that group of officers punched, kicked, struck, and twisted

Plaintiff’s right arm into a position that caused great pain in his wrist and

shoulder. Plaintiff sustain[ed] injuries to his head, neck, back, right

shoulder, right wrist, and right knee during this attack.

While in the process of being handcuffed and lying prone on the ground,

2 Throughout this memorandum opinion, the Court’s citations to specific pages in the

record refer to the pagination of docket entries on the Court’s electronic case-filing (“ECF”)

system.

this group of four officers continued their attack in a rage of aggression that

was a wanton and unnecessary infliction of pain that was both malicious

and sadistic.

(id. at 3-4, ¶¶ 8-9). See id. at 10 (alleging in declaration that he “felt multiple strikes

from several different directions” and experienced “tremendous pain”). The officers’

narratives in the offense report state that, after Smith came out of the bait vehicle, they

gave him multiple commands to get on the ground; that Smith did not comply with the

officers’ instructions; that officers forced Smith to the ground; that Smith kept his hands

under his stomach despite officers’ commands to show them his hands; and that the

officers forcefully pulled Smith’s hands out from under his body in order to handcuff him

behind his back (see Dkt. 61-3, at 11-12 (Jurecek’s narrative); id. at 13 (Littler’s

narrative); id. at 14-15 (Fimbinger’s narrative); id. at 16-17 (Barnes’ narrative)). The

officers argue that the force used against Smith to gain control over his hands was

reasonable and necessary to effect his arrest (Dkt. 61, at 10).3

The events surrounding Smith’s arrest were recorded by the officers’ body

cameras and vehicle cameras, and Defendants have submitted 16 video recordings (Dkt.

64). Two of the videos capture the officers apprehending Smith. In one video, which is

approximately four minutes long, the officer with the camera arrives on the scene while

other officers are yelling commands at two suspects, one of whom is Smith (Dkt. 64,

3 The HPD offense report states that Smith was arrested for automobile theft and for

evading arrest (Dkt. 61-3, at 4). Defendants point to public records as evidence that Smith was

indicted on both charges, that he pleaded guilty to theft, and that the prosecution dismissed the

evasion charge as part of the plea agreement. Dkt. 61, at 10 & nn. 1 & 2 (citing Harris County

records). Smith maintains that the evasion charge was “dismissed for lack of evidence.” See Dkt.

39, at 3 (“Plaintiff alleges Defendants maliciously added the charge of evading arrest in an

attempt to justify their excessive use of force”). This factual dispute is not material to the

dispositive issues before the Court.

0215-FIMBINGER, at 02:10-2:15). The other suspect is visible complying with the

officers’ instructions to get on the ground (id.). Although the video is mostly obscured as

officers apprehend Smith, the audio captures officers yelling “get on the ground” multiple

times (id. at 2:16-2:26). Smith’s head then comes into the frame as he gets to the ground

(id. at 2:26), and the audio captures officers instructing the suspect to get his “hands out”

at least seven times (id. at 2:27-2:35). Smith is then visible face down in the parking lot

as officers handcuff him behind his back (id. at 2:36-3:00). The video captures no use of

force after officers gain control of Smith’s hands. The second video, which is

approximately 11 minutes long, reflects the same events (id. 0219-KRISTI BARNES 1,

at 3:20-4:10).

Smith claims that, because the four officers used unreasonable force against him

during the arrest, he “nearly lost consciousness when some object or someone struck his

head and his head struck the ground” (Dkt. 39, at 4). He alleges that he continues to

suffer from his physical injuries and that he receives unspecified ongoing treatment (id. at

5). He also alleges that he suffers from post-traumatic stress disorder due to the trauma

of the incident (id.). The HPD offense report states that Smith did not complain of

injuries (Dkt. 61-3, at 12, 13, 17).

Smith sues Defendants Edwards and Granger, HPD supervisory officials, alleging

that they failed to prevent or stop the attack and “did nothing to train these officers to not

violate arrestees’ rights” (Dkt. 39, at 4). Edwards and Granger present affidavits averring

that, although they were HPD supervisors, they did not supervise the officers who are

Defendants in this action at the time Smith was arrested and had no personal involvement

in the arrest (Dkt. 60, at 8; Dkt. 60-1; Dkt. 60-2).

Smith also sues the City of Houston and alleges that the City’s policies and

ordinances violated his constitutional rights by permitting officers to assault compliant

arrestees (Dkt. 39, at 6).

II. STANDARDS OF REVIEW

A. The PLRA and Pro Se Pleadings

Because the plaintiff is an inmate proceeding in forma pauperis, the Court is

required by the Prison Litigation Reform Act (“PLRA”) to scrutinize the claims and

dismiss the complaint at any time, in whole or in part, if it determines that the complaint

“is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or

“seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.

§§ 1915A(b), 1915(e)(2)(B); see also 42 U.S.C. § 1997e(c) (providing that the court

“shall on its own motion or on the motion of a party dismiss an action” if it is satisfied

that the complaint is “frivolous, malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such relief”). A

claim is frivolous if it lacks any arguable basis in law or fact. Samford v. Dretke, 562

F.3d 674, 678 (5th Cir. 2009). “A complaint lacks an arguable basis in law if it is based

on an indisputably meritless legal theory.” Rogers v. Boatright, 709 F.3d 403, 407 (5th

Cir. 2013) (internal quotation marks and citation omitted). “A complaint lacks an

arguable basis in fact if, after providing the plaintiff the opportunity to present additional

facts when necessary, the facts alleged are clearly baseless.” Id. (internal quotation marks

and citation omitted).

In reviewing the pleadings, the Court is mindful of the fact that Plaintiff proceeds

pro se. Complaints filed by pro se litigants are entitled to a liberal construction and,

“however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal

quotation marks and citation omitted). Even under this lenient standard a pro se plaintiff

must allege more than “‘labels and conclusions’ or a ‘formulaic recitation of the elements

of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation

omitted). Regardless of how well-pleaded the factual allegations may be, they must

demonstrate that the plaintiff is entitled to relief under a valid legal theory. See Neitzke v.

Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th

Cir. 1997).

B. Summary Judgment—Rule 56

Defendants have moved for summary judgment. Rule 56 of the Federal Rules of

Civil Procedure mandates the entry of summary judgment “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). Once the movant presents

a properly supported motion for summary judgment, the burden shifts to the nonmovant

to show with significant probative evidence the existence of a genuine issue of material

fact. Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). “A fact is

‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit

under governing law.” Id. “An issue is ‘genuine’ if the evidence is sufficient for a

reasonable jury to return a verdict for the nonmoving party.” Id. The nonmoving party

must present specific facts which show “the existence of a genuine issue concerning

every essential component of its case.” Firman v. Life Ins. Co. of N. Am., 684 F.3d 533,

538 (5th Cir. 2012) (citation and internal quotation marks omitted).

In deciding a summary judgment motion, the reviewing court must “construe all

facts and inferences in the light most favorable to the nonmoving party.” Dillon v.

Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal citation and quotation marks

omitted). However, the non-movant cannot avoid summary judgment simply by

presenting “conclusional allegations and denials, speculation, improbable inferences,

unsubstantiated assertions, and legalistic argumentation.” Jones v. Lowndes Cnty., 678

F.3d 344, 348 (5th Cir. 2012) (internal citation, alteration and quotation marks omitted);

see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Likewise,

Rule 56 does not impose upon the Court a duty to sift through the record in search of

evidence to support a party’s opposition to summary judgment. Evidence not referred to

in the response to the motion for summary judgment is not properly before the Court,

even if it exists in the summary judgment record. Malacara v. Garber, 353 F.3d 393,

405 (5th Cir. 2003).

Although Plaintiff is proceeding pro se, “the notice afforded by the Rules of Civil

Procedure and the local rules” is considered “sufficient” to advise a pro se party of his

burden in opposing a summary judgment motion. Martin v. Harrison County Jail, 975

F.2d 192, 193 (5th Cir. 1992). Even a pro se plaintiff must specifically refer to evidence

in the summary judgment record in order to place that evidence properly before the court.

Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 & n.9 (5th Cir. 2016); E.E.O.C. v.

Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (“Despite our general willingness to

construe pro se filings liberally, we still require pro se parties to fundamentally abide by

the rules that govern the federal courts. Pro se litigants must properly . . . present

summary judgment evidence”) (internal citation and quotation marks omitted).

III. ANALYSIS

Smith’s complaint (Dkt. 39) alleges that Defendants violated the Fourth, Fifth,

Eighth, and Fourteenth Amendments to the United States Constitution. He also brings

claims under Texas law for assault, aggravated assault, criminal conspiracy, and engaging

in organized criminal activity. Fimbinger was not served with process and has not

appeared in this lawsuit (Dkt. 20). All other Defendants seek summary judgment on all

of Smith’s claims. Smith has not responded to the summary judgment motions.

A. Qualified Immunity

Defendants Barnes, Littler, and Jurecek have invoked qualified immunity, and the

plaintiff bears the burden to negate the defense. See Hanks v. Rogers, 853 F.3d 738, 744

(5th Cir. 2017). Determination of qualified immunity requires a bifurcated analysis: first,

the court must decide “whether the undisputed facts and the disputed facts, accepting the

plaintiffs’ version of the disputed facts as true, constitute a violation of a constitutional

right”; and second, the court must determine “whether the defendant’s conduct was

objectively reasonable in light of clearly established law.” Carroll v. Ellington, 800 F.3d

154, 169 (5th Cir. 2015) (internal quotation marks and citation omitted); see Thompson v.

Mercer, 762 F.3d 433, 437 (5th Cir. 2014). Qualified immunity protects “all but the

plainly incompetent or those who knowingly violate the law.” Pratt v. Harris Cty., Tex.,

822 F.3d 174, 181 (5th Cir. 2016) (internal citation and quotation marks omitted). “If

officers of reasonable competence could disagree as to whether the plaintiff’s rights were

violated, the officer’s qualified immunity remains intact.” Hanks, 853 F.3d at 744

(internal citations and quotation marks omitted).

A reviewing court may address the two prongs of the qualified immunity analysis

in any sequence, depending on the circumstances of the particular case at hand. Pearson

v. Callahan, 555 U.S. 223, 236 (2009); Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir.

2017). Given the posture of this case, the Court proceeds to analyze the merits of

Plaintiff’s constitutional claims.

B. Fourth Amendment Excessive Force Claim

Smith alleges that Defendants Barnes, Fimbinger, Littler, and Jurecek used

excessive force against him during his arrest for auto theft. He sues the officers in both

their individual and official capacities.4 This claim arises under the Fourth Amendment

4 Smith’s claims against the officers in their official capacities are treated as claims against

the City of Houston, see Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), and are discussed

below.

to the United States Constitution. Section 1983, 42 U.S.C. § 1983, provides a vehicle for

a claim against a person “acting under color of state law,” such as a law enforcement

officer, for a constitutional violation. See Pratt, 822 F.3d at 180; Townsend v. Moya, 291

F.3d 859, 861 (5th Cir. 2002).

The Fourth Amendment guarantees the right to be free from excessive force

during an arrest. To succeed on the merits of a Fourth Amendment claim, a plaintiff must

show (1) an injury that (2) “resulted directly and only from a use of force that was clearly

excessive to the need,” the excessiveness of which was (3) objectively unreasonable.

Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018) (internal quotation marks and citation

omitted); see Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016); Poole v. City of

Shreveport, 691 F.3d 624, 627-28 (5th Cir. 2012). Because some use of force by law

enforcement is reasonable when necessary to effect an arrest, a court must decide whether

the force used was clearly excessive to the need. See Scott v. Harris, 550 U.S. 372, 382-

83 (2007). The court must evaluate the use of force “from the perspective of a reasonable

officer on the scene,” and not “with the 20/20 vision of hindsight.” Griggs, 841 F.3d at

312.

The court’s Fourth Amendment inquiry is fact-intensive and focuses on whether

the officers’ actions were objectively reasonable, considering the particular circumstances

at the time force was used. Id. In assessing objective reasonableness, courts look to the

severity of the crime at issue, whether the suspect poses an immediate threat to the safety

of the officers or others, and whether the suspect is actively resisting arrest or attempting

to flee. Graham v. Conner, 490 U.S. 386, 396 (1989); Westfall, 903 F.3d at 547. The

officer’s motive or intention is irrelevant to the inquiry. Graham, 490 U.S. at 397.

The Supreme Court has held that, on summary judgment, a court may rely on

video evidence in appropriate circumstances.5

1. Barnes, Littler, and Jurecek

Defendants Barnes, Littler, and Jurecek have moved for summary judgment.

Smith alleges that Defendants violated his constitutional rights when they “aggressively”

threw him to the ground and then “punched, kicked, struck, and twisted Plaintiff’s right

arm into a position that caused great pain in his wrist and shoulder” (Dkt. 39, at 3). He

also alleges that, “[w]hile in the process of being handcuffed and lying prone on the

ground, this group of four officers continued their attack in a rage of aggression” (id.).

Defendants argue that the force used against Smith to gain control over his hands was

reasonable and necessary to effect his arrest. They present the HPD offense report to

demonstrate that Smith attempted to flee and that he refused to present his hands for

cuffing (Dkt. 61-3).

Both Smith and Defendants urge the Court to rely on the video evidence.

Although Smith claims that the video recordings support his claims and show the

officers’ “attack” continuing after he was on the ground (Dkt. 39, at 3), the videos do not

5 Scott, 550 U.S. at 380-81 (“Respondent’s version of events is so utterly discredited by

the record that no reasonable jury could have believed him. The Court of Appeals should not

have relied on such visible fiction; it should have viewed the facts in the light depicted by the

videotape”); see Darden v. City of Fort Worth, Tex, 880 F.3d 722, 729-30 (5th Cir. 2018) (“a

court should not discount the nonmoving party's story unless the video evidence provides so

much clarity that a reasonable jury could not believe his account”).

show officers using force on Smith after he surrendered his hands for cuffing. See Dkt.

64, 0215-FIMBINGER, at 02:15–3:00; id. 0219-KRISTI BARNES 1, at 3:20-4:10.

Rather, the video evidence generally corroborates the offense report, demonstrating that

officers gave multiple commands for Smith to get on the ground and then to surrender his

hands before they were able to effect the arrest (id.).

Smith has not responded to the summary judgment motion and has failed to

demonstrate a genuine issue of material fact as to whether Defendants’ actions were

objectively reasonable given the totality of the circumstances. See Westfall, 903 F.3d at

847; Griggs, 841 F.3d at 312. The video evidence does not demonstrate a genuine issue

of material fact as to whether Defendants’ position conduct was objectively reasonable or

whether they violated clearly established law. Smith’s bare allegations in his pleadings

are insufficient to defeat summary judgment. See Firman, 685 F.3d at 538; Jones, 678

F.3d at 348. Defendants therefore are entitled to summary judgment on Smith’s Fourth

Amendment claim and, for the same reasons, on qualified immunity grounds.

2. Fimbinger

Fimbinger has not appeared in this lawsuit. The Court examines whether Smith’s

claims against him are appropriately dismissed as frivolous under 28 U.S.C.

§ 1915(e)(2)(B) (“the court shall dismiss the case at any time if the court determines that

. . . the action . . . is frivolous”). A complaint “lacks an arguable basis in fact” and is

frivolous if, “after providing the plaintiff the opportunity to present additional facts when

necessary, the facts alleged are clearly baseless.” Rogers, 709 F.3d at 407 (internal

quotation marks and citation omitted); see Samford, 562 F.3d at 678.

Smith’s allegations against him are the same as those against Barnes, Littler, and

Jurecek (Dkt. 39, at 3). He urges the Court to rely on the video evidence. As stated

above, the video evidence does not support his claims or demonstrate a genuine issue of

material fact as to his required Fourth Amendment showing against any officer, including

Fimbinger. Moreover, the HPD offense report submitted by other Defendants contains

Fimbinger’s narrative, completed on the same day as the arrest, which states that Smith

refused to obey the officers’ command to get on the ground, resisted the officers as they

attempted to handcuff him, and that officers “had to force his hands behind his back in

order to detain him” (Dkt. 61-3, at 14).

Given the HPD documentary and video evidence contradicting Smith’s claims

against Fimbinger, his conclusory allegations of force are insufficient to state a non-

frivolous claim for relief under the Fourth Amendment standards listed above. See 28

U.S.C. § 1915(e)(2)(B); Iqbal, 556 U.S. at 678; Wilburn v. Shane, 193 F.3d 517 (5th Cir.

1999) (upholding summary judgment for defendants because “based on the objective

factors of [the plaintiff’s] medical records . . . [the plaintiff’s] allegations are

implausible”). His claim against Fimbinger therefore is dismissed as frivolous under 28

U.S.C. § 1915(e)(2)(B).

C. Other Constitutional Claims

Smith asserts also claims under the Fifth, Eighth, and Fourteenth Amendments to

the United States Constitution. Defendants seek summary judgment on all claims.

Smith articulates no factual basis for a claim under the Fifth Amendment. To the

extent he intends to bring a due process claim, the Fifth Amendment’s due process

protections apply only against federal actors. Blackburn v. City of Marshall, 42 F.3d 925,

930 n.3 (5th Cir. 1995). Although the Fifth Amendment also protects against self-

incriminating statements during custodial interrogation, see Illinois v. Perkins, 496 U.S.

292, 296 (1990) (citing Miranda v. Ariz., 384 U.S. 436 (1966)), Smith alleges no facts

that would be relevant to such a claim.

Moreover, the Eighth and Fourteenth Amendments do not apply to Smith’s claims.

The Fourteenth Amendment applies to claims by pretrial detainees, and the Eighth

Amendment applies to claims of excessive force by convicted inmates. See Kingsley v.

Hendrickson, 135 S. Ct. 2466 (2015) (Fourteenth Amendment); Hudson v. McMillian,

503 U.S. 1 (1992) (Eighth Amendment). Because Smith was an arrestee at the time of

the alleged use of force against him, rather than a convicted inmate or a pretrial detainee,

the Fourth Amendment applies to his claims.

Smith fails to demonstrate a genuine issue of material fact as to any claim under

the Fifth, Eighth, or Fourteenth Amendments. Defendants therefore are entitled to

summary judgment on these claims.

D. Claims against Supervisory Officers

Smith alleges that Granger and Edwards, as supervisors of the arresting officers,

failed to prevent the use of force against him and failed to discipline or train the officers

involved in his arrest (Dkt. 39, at 4). Because Smith sues Edwards and Granger in their

official capacity only, his claims are treated as claims against the City. See Graham, 473

U.S. at 165-66. Those claims are discussed in the following section of this

memorandum.

However, even if Smith had sued Granger and Edwards in their individual

capacities, his claim would be subject to dismissal on this summary judgment record. A

supervisory official may be held liable under § 1983 “only if (1) he affirmatively

participates in the acts that cause the constitutional deprivation, or (2) he implements

unconstitutional policies that causally result in the constitutional injury.” Porter v. Epps,

659 F.3d 440, 446 (5th Cir. 2011) (internal quotation marks and citations omitted). See

Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006) (“[t]here is no vicarious

or respondeat superior liability of supervisors under section 1983”). A failure-to-

supervise or failure-to-train claim also requires a showing of deliberate indifference by

the supervisor. See Westfall, 903 F.3d at 552; Porter, 659 F.3d at 446 (a plaintiff “must

show that the supervisor acted, or failed to act, with deliberate indifference to violations

of others’ constitutional rights committed by their subordinates” (internal quotation

marks, alterations, and citation omitted) (emphasis original)).

In this case, Edwards and Granger present evidence that they were not involved in

the arrest and did not supervise the officers who arrested Smith (Dkt. 60-1, Dkt. 60-2).

Smith has not responded to Defendants’ summary judgment motions and fails to

articulate any facts that could support a failure-to-supervise or failure-to-train claim

under the authorities cited above. His allegations that Edwards and Granger failed to

prevent or stop the attack, or that they “did nothing to train these officers to not violate

arrestees’ rights” (Dkt. 39, at 4), are conclusory and insufficient to prevent summary

judgment. See Jones, 678 F.3d at 348. Additionally, Smith pleads no specific facts that

could support a claim that Edwards or Granger were deliberately indifferent to an alleged

violation of his rights. See Westfall, 903 F.3d at 552. Summary judgement therefore is

warranted for Edwards and Granger.

E. Claims Against the City

Smith claims that the City of Houston’s “policies and ordinances” violate his

rights. A city can be liable under § 1983 only if its official policy or custom causes the

deprivation of a federal right, and not on a theory of respondeat superior. Monell v. New

York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Valle v. City of Houston, 613

F.3d 536, 541 (5th Cir. 2010). A plaintiff must identify: “(1) an official policy (or

custom), of which (2) a policymaker can be charged with actual or constructive

knowledge, and (3) a constitutional violation whose moving force is that policy or

custom.” Id. at 541-42 (internal citation and quotation marks omitted). The existence of

an official policy or custom can be shown through “evidence of an actual policy,

regulation, or decision that is officially adopted and promulgated by lawmakers or others

with policymaking authority.” Id. at 542.

Smith alleges in his complaint that the City has “policies and ordinances” that

direct or allow HPD officers to “assault subdued and cooperative arrestees” (Dkt. 39, at

6). The City has submitted its use-of-force policy which limits officers to “only the

amount of force reasonably necessary to protect themselves or others, to effect an arrest,

or to bring an incident under control, even if under the circumstances the law would

allow the use of greater force” (Dkt. 56-8, at 2). It also argues that the video evidence

does not support Smith’s allegations that his Fourth Amendment rights were violated.

Smith has not responded to the City’s summary judgment motion and fails to

demonstrate a genuine issue of material fact on the issue. His conclusory allegation in his

pleadings that the City had a policy to “assault” arrestees is insufficient to defeat

summary judgment. See Jones, 678 F.3d at 348. To the extent Smith brings claims

against the City for failure to train, supervise, or discipline police officers, he also fails to

direct the Court’s attention to any evidence that the City had a relevant policy that

violated his rights. Again, conclusory allegations in his pleadings are insufficient to

defeat summary judgment. See id.

F. State Law Claims

Finally, Smith brings claims against all Defendants for “assault, aggravated

assault, criminal conspiracy, and engaging in organized criminal activity under the laws

of Texas,” citing to Texas Penal Code § 22.01 (assault), § 22.02 (aggravated assault),

§ 15.02 (criminal conspiracy), § 71.02 (organized crime). See Dkt. 39, at 5-6.

Defendants have invoked official and governmental immunity.6

To the extent Smith brings claims in this lawsuit that Defendants violated the

Texas Penal Code, his claims must be dismissed because he does not provide any basis

for inferring that the criminal statutes he cites create a private right of action. See Brown

v. de la Cruz, 156 S.W.3d 560, 567 & n.39 (Tex. 2004); Van Duzer v. U.S. Bank Nat’l

Ass’n, 995 F. Supp. 2d 673, 699 (S.D. Tex. 2014).

6 See Dkt. 61, at 15 (Defendants Barnes, Littler, and Jurecek claim official immunity from

liability for Smith’s state law claims); Dkt. 56, at 16 (the City invokes governmental immunity as

to any intentional torts).

To the extent Smith intended to bring civil claims against Defendants under state

law, those claims will be dismissed without prejudice. In appropriate cases, a district

court may exercise supplemental jurisdiction over “claims that are so related to claims in

[an action within the court’s original jurisdiction] that they form part of the same case or

controversy under Article III of the United States Constitution.” See 28 U.S.C.

§ 1367(a). Because the Court has dismissed all of Smith’s claims over which it has

original jurisdiction, the Court now declines to exercise supplemental jurisdiction over

his state law claims. See Bass v. Parkwood Hospital, 180 F.3d 234, 246 (5th Cir. 1999);

Robertson v. Neuromedical Center, 161 F.3d 292, 296 (5th Cir. 1998) (“Certainly, if the

federal claims are dismissed before trial, . . . the state claims should be dismissed as

well”) (internal citation and quotation marks omitted).

IV. CONCLUSION

For the reasons stated above the Court ORDERS that:

1. The motion for summary judgment filed by the City of Houston (Dkt. 56) is

GRANTED.

2. The motion for summary judgment filed by Edwards and Granger (Dkt. 60)

is GRANTED.

3. The motion for summary judgment filed by Barnes, Littler, and Jurecek

(Dkt. 61) is GRANTED. Smith’s claim against Fimbinger is dismissed under 28 U.S.C.

§ 1915(e)(2)(B).

4. All of Plaintiff’s federal claims are DISMISSED with prejudice.

5. To the extent Plaintiff brings civil claims against Defendants under Texas

law, his claims are DISMISSED without prejudice under 28 U.S.C. § 1367(c)(3).

SIGNED this day 13th day of March, 2020.

George C. Hanks Jr.

United States District Judge

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