Shefeik v. Goliad County

UNITED STATES DISTRICT COURT April 05, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

VICTORIA DIVISION

MICHAEL LEEROY SHEFEIK II, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 6:18-CV-0112

§

COUNTY OF GOLIAD TEXAS §

and §

VERNON BUSBY §

and §

MICHAEL KRUCENSKI, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Pending before the Court is the defendants’, Vernon Busby (“Busby”) and Michael

Krucenski (“Krucenski”) (collectively, the “defendants”), motion for summary judgment and

brief in support. (Dkt. No. 19). The plaintiff, Michael Leeroy Shefeik, II (the “plaintiff”), filed a

response in opposition to the motion (Dkt. No. 23)1 and a supplemental declaration. (Dkt. No.

24). The defendants filed a reply to the plaintiff’s response. (Dkt. No. 25). After having

carefully considered the motion, response, reply, the record and the applicable law, the Court

determines that the defendants’ motion for summary judgment should be GRANTED.

II. FACTUAL OVERVIEW

This lawsuit stems from injuries the plaintiff allegedly sustained when the defendant

officers, Busby and Krucenski, used physical force against him during the course of an arrest

following a traffic stop on Alcalde De La Bahia Road in Goliad, Texas on December 27, 2016.

On December 26, 2018, the plaintiff filed the instant action against Goliad County, Texas and

1 The plaintiff’s objections to the defendants’ summary judgment evidence are overruled. See App. 1.

officers, Busby and Krucenski, individually, alleging claims for excessive force and municipal

liability in violation of 42 U.S.C. § 1983. On January 13, 2020, the plaintiff filed an unopposed

Stipulation of Dismissal agreeing to dismiss all of his claims against Goliad County, Texas. (See

Dkt. No. 22). On February 12, 2020, this Court entered an Order granting the plaintiff’s

Stipulation of Dismissal dismissing Goliad County, Texas as a party defendant. (See Dkt. No.

26). The individual defendants, Busby and Krucenski, now move for a summary judgment on

the plaintiff’s excessive force claim.

III. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment against a

party who fails to make a sufficient showing of the existence of an element essential to the

party’s case and on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

The movant bears the initial burden of “informing the district court of the basis for its motion”

and identifying those portions of the record “which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex, 477 U.S. at 323; see also Martinez v. Schlumber, Ltd.,

338 F.3d 407, 411 (5th Cir. 2003). Summary judgment is appropriate where the pleadings, the

discovery and disclosure materials on file, and any affidavits show “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).

If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the

pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v.

Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951,

954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must

‘identify specific evidence in the record and articulate the ‘precise manner’ in which that

evidence support[s] [its] claim[s].’” Stults, 76 F.3d at 656 (citing Forsyth v. Barr, 19 F.3d 1527,

1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed.2d 127 (1994)). It may not

satisfy its burden “with some metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at

1075 (internal quotation marks and citations omitted). Instead, it “must set forth specific facts

showing the existence of a ‘genuine’ issue concerning every essential component of its case.”

Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Intern., 343 F.3d 401, 405 (5th Cir. 2003)

(citing Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)). Thus,

“[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.’” Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 – 52 (1986)).

IV. ANALYSIS AND DISCUSSION

A. The Defendants’ Defense of Qualified Immunity

The plaintiff maintains that his Fourth Amendment rights were violated by the

defendants’ acts and/or omissions, namely their alleged unlawful assault on him and use of

excessive force. The defendants, in contrast, contend that the plaintiff’s constitutional rights

were not infringed and that their actions were objectively reasonable under the circumstances.

Consequently, they assert that they are entitled to qualified immunity.

Under the qualified immunity doctrine, governmental officers are safeguarded “from civil

liability for damages based upon the performance of discretionary functions if [their] acts were

objectively reasonable in light of then clearly established law.” Atteberry v. Nocona Gen. Hosp.,

430 F.3d 245, 253 (5th Cir. 2005) (quoting Thompson v. Upshur Cnty., 245 F.3d 447, 456 (5th

Cir. 2001)). The qualified immunity doctrine has essentially evolved to provide “protection to

all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed.2d 271 (1986) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S. Ct. 2727, 73 L. Ed.2d 396 (1982)). “When a defendant invokes [the] qualified

immunity [defense], the burden is on the plaintiff to demonstrate the inapplicability of the

defense.” Atteberry, 430 F.3d at 253 (quoting McClendon v. City of Columbia, 305 F.3d 314,

323 (5th Cir. 2002) (en banc) (per curiam)).

The Fifth Circuit has set forth a two-step analysis to govern the determination of whether

the defendants are entitled to qualified immunity. First, a court must determine “whether the

facts, either as the plaintiff alleges or as proved without dispute, establish that the officer violated

a clearly established constitutional right.” Linbrugger v. Abercia, 363 F.3d 537, 540 (5th Cir.

2004) (citing Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001)). “If no constitutional right has

been violated, the inquiry ends and the defendants are entitled to qualified immunity.” Id. If,

however, the plaintiff has alleged a violation of a clearly established constitutional right, the

court must next examine “whether the [defendants’] conduct was objectively unreasonable under

established law.” Linbrugger, 363 F.3d at 540 (citing Bazan v. Hidalgo Cnty., 246 F.3d 481, 490

(5th Cir. 2001)); accord Atteberry, 430 F.3d at 253. The Fifth Circuit “has repeatedly held that

objective reasonableness in a qualified immunity context is a question of law for the court to

decide, not an issue of fact.” Atteberry, 430 F.3d at 256 (citing Williams v. Bramer, 180 F.3d

699, 703 (5th Cir. 1999) (stating that “objective reasonableness is a matter of law for the courts

to decide, not a matter for the jury”) (other citations omitted).

B. The Plaintiff’s Fourth Amendment Claim of Excessive Force

Specifically, the plaintiff alleges that the defendants used excessive force during the

course of his arrest in violation of his Fourth Amendment rights. The Fifth Circuit has noted that

“the use of excessive force to apprehend a subject implicates the Fourth Amendment’s guarantee

against unreasonable seizures.” Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997) (citing

Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed.2d 1 (1985); Graham v. Connor, 490

U.S. 386, 109 S. Ct. 1865, 104 L.Ed.2d 443 (1989)). “To prevail on an excessive force claim, a

plaintiff must establish an: ‘(1) injury (2) which resulted directly and only from a use of force

that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.’”

Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (quoting Freeman v. Gore, 483 F.3d

404, 416 (5th Cir. 2007) (internal citation omitted). The alleged injury, though not required to be

significant, must be more than de minimis. Freeman, 483 F.3d at 416 (citing Glenn, 242 F.3d at

314). “The determination of whether a plaintiff’s alleged injury is sufficient to support an

excessive force claim is context-dependent and is ‘directly related to the amount of force that is

constitutionally permissible under the circumstances.’” Freeman, 483 F.3d 416 (quoting Ikerd v.

Blair, 101 F.3d 430, 435 (5th Cir. 1996)).

“[T]he permissibility of a particular law enforcement practice is judged by balancing its

intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate

governmental interests.” Flores v. City of Palacios, 381 F.3d 391, 398 – 99 (quoting Delaware

v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 59 L. Ed.2d 660 (1979)). “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.” Ramirez, 542 F.3d at 128 (quoting Graham, 490

U.S. at 396, 109 S. Ct. 1865). Courts must consider “the fact that police officers are often forced

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

evolving.” Id.

The standard imposed is an objective one and requires a court to inquire as to “whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting them, without regard to their underlying intent or motivation.” Ramirez, 542 F.3d at

129 (quoting Graham, 490 U.S. at 397, 109 S. Ct. 1865). In order “[t]o ‘gaug[e] the objective

reasonableness of the force used by a law enforcement officer, [a court is required to] balance the

amount of force used against the need for that force,” Flores, 381 F.3d at 399 (quoting Ikerd v.

Blair, 101 F.3d 430, 434 (5th Cir. 1996) (internal citation omitted), while “paying careful

attention to the facts and circumstances of each particular case.” Flores, 381 F.3d at 399

(quoting Graham, 490 U.S. at 396, 109 S. Ct. 1865). This balancing test requires a court to also

consider “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.” Ramirez, 542

F.3d at 129 (quoting Graham, 490 U.S. at 396, 109 S. Ct. 1865). The cases on the use of

excessive force are clear: “[t]he ‘reasonableness’ of a particular [officer’s] use of force must be

judged from the perspective of a reasonable officer on the scene, rather than with . . . hindsight.”

Ramirez, 542 F.3d at 128 (quoting Graham, 490 U.S. at 396, 109 S. Ct. 1865).

In this case, the plaintiff has tendered his own declaration which veers beyond the scope

of his Original Complaint and substantially contradicts the dashcam video contained in the

summary judgment record. Where, as here, a plaintiff’s version of the facts underlying the

parties’ dispute is largely refuted by the record, the Fifth Circuit has interpreted the Supreme

Court as requiring courts to reject the plaintiff’s discredited version of the facts in favor of facts

depicted by the video. Poole v. City of Shreveport, 691 F.3d 624, 630 — 31 (Sth Cir. 2012)

(internal citations omitted).

The evidence evinced by the dashcam video, when taken as true, establishes that: (1)

someone contacted 911 to report that the plaintiff had driven through a fence and hit something;

(2) the plaintiff provided the defendants with a false identity when stopped and questioned; (3) a

rifle was visible inside the plaintiff's vehicle; (4) the plaintiff refused to exit his vehicle, despite

being asked, and drove off when the officer attempted to open his door; (5) the defendants

pursued the plaintiff for approximately 15 miles, while the plaintiff drove erratically; (6) the

plaintiff eventually drove off the road and through a fence; (7) once the plaintiff exited his

vehicle, he ran through the woods; and (8) after apprehension, the plaintiff resisted being cuffed.

Against this background, this Court cannot say that the actions of the defendant officers

were not necessary for apprehension and did not correspond with the plaintiff's escalating

physical resistance. Because the plaintiff has failed to show that the defendants’ use of force was

clearly excessive or clearly unreasonable, the defendants are entitled to qualified immunity.

Accordingly, a summary judgment is warranted on the plaintiffs excessive force claim.

V. CONCLUSION

Based on the foregoing analysis and discussion, the defendants’ motion for summary

judgment is GRANTED.

It isso ORDERED.

SIGNED on this 3“ day of April, 2020.

KennethM.Hoyt —isti‘is—sCS

United States District Judge

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