Jacobson-Boettcher v. Dowdy

UNITED STATES DISTRICT COURT March 03, 2021

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

PENNY JACOBSON-BOETTCHER, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 4:18-CV-853

§

SERGEANT WILLIAM DOWDY, et al, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the Court are two Motions for Summary Judgment, one filed by

Defendants William Dowdy (“Dowdy”) and Jacob Walker (“Walker”) (Dkt. 47) and one

filed by Defendant Harris County (“Harris County”). (Dkt. 49) After carefully reviewing

the motions, responses, replies, applicable law, and the entire summary judgment record,

both motions are GRANTED.

I. FACTUAL BACKGROUND

In light of the summary judgment standard, which will be discussed below, the

following facts are established by the summary judgment record. In the early morning

hours of October 23, 2016, Plaintiff Penny Jacobson-Boettcher (“Jacobson-Boettcher”)

and her husband, Isaiah Boettcher (“Boettcher”) (collectively “Boettchers”) were at Mo’s

Place Bar in Katy, Texas. (Dkt. 54-A at p. 2) Jacobson-Boettcher bumped another patron

near the dance floor who complained about her to the bar’s management. At that point,

Jacobson-Boettcher was asked to leave the bar, first by Richard Steele, a bouncer

employed by the bar, and then by Deputy Mook (“Mook”), an off-duty Harris County

Sherriff’s deputy in uniform who was working security at the bar. According to

Jacobson-Boettcher, the Boettchers walked outside the bar with Steele and Mook and

waited for the manager of the bar, Mo Jr., to bring them their tab. (Dkt. 54-A at pp. 2–3)

As Jacobson-Boettcher walked outside, she asked Steele and Mook multiple times

why she had to leave since she had done nothing wrong. Jacobson-Boettcher specifically

testified that she told Mook something to the effect of “This is bullshit. I didn’t do

anything wrong.” (Dkt. 47-1 at 129: 11–20) Mo Jr. testified that after he came outside, he

told Boettcher that Jacobson-Boettcher needed to call it a night and go home as he

believed that she had had too much to drink and that if she had another drink “she might

be a danger to herself and others.” (Dkt. 47-4 at 57:17–24) Mo Jr. testified that Mr.

Boettcher agreed with him, but Jacobson-Boettcher thought she was “totally sober and

fine.”1 (Dkt. 47-4 at 58:10–13) Jacobson-Boettcher then got into a discussion with Mook

in which she accused Mook of having raped her about 20 years ago. (Dkt. 47-1 at 101:5–

102:4)

At the time nearby, Defendant Sergeant William Dowdy (“Dowdy”), another off-

duty Harris County Sherriff’s deputy in uniform who was working security at the bar,

heard this discussion and walked over to the group. Dowdy testified that what first drew

his attention to Jacobson-Boettcher “was her level of intoxication, the way she was acting

1 Mo Jr. testified, “I said -- I even pulled [Mr. Boettcher] to the side and was like, ‘Dude, man,

your wife is going to get in trouble. You know, she keeps running her mouth and cursing at the

police officers and doing this and flailing her arms around. She looks like she's about to hit them.

She’s going to get put in a pair of handcuffs.’ I was like, ‘Be the man of the relationship and just

get her out of here.’ He's like, ‘Easy for you to say. I've tried that before. She'll beat me up when

I get home if I try to do anything. I have to take her side no matter what. You know, my marriage

will be tarnished.’ I was like, ‘Whatever.’” (Dkt. 47-4 at 62:8–20)

and the things she was talking about.” (Dkt. 47-5 at 28:6–8) He testified that she was

acting erratically, “flailing her arms towards [Mook]” and screaming, “hollering” and

“yelling” at Mook with “a lot of profanity.” (Dkt. 47-5 at 28:10–14, 29:3–6) Dowdy

described Jacobson-Boettcher as appearing “disheveled” with “bloodshot eyes.” Her

speech was “slow and slurred, she was not listening to anything anybody was having to

say other than what she” had to say. (Dkt. 47-5 at 29:16–22) Dowdy testified that his

request to Jacobson-Boettcher to “calm down” was met by more profanity laced

language, “you know, it was ‘fuck you’, basically.” (Dkt. 47-5 at 29:3–6) While she first

told Dowdy that Mook raped her, she later implied that Dowdy has also raped her. (Dkt.

47-5 at 39:4–11) Dowdy said that she was starting to draw a crowd and becoming

disorderly in a public place while intoxicated. (Dkt. 47-5 at 29:9–14)

Dowdy testified that Boettcher “deescalated” the encounter by telling Mook and

Dowdy that they would leave. (Dkt. 47-5 at 32:12–15) The Boettchers settled their bill

and Boettcher left to get the truck from the parking lot. Jacobson-Boettcher did not go

with him and waited for his return. She testified that because of her medical condition of

rheumatoid arthritis and “raw” feet she could not walk all the way to where the truck was

parked. (Dkt. 47-1 at 104:24–105:5) Dowdy considered the encounter over and walked

away. (Dkt. 47-5 at 32:12–15)

Jacobson-Boettcher testified that when her husband arrived, she and Mook were

still “exchanging words.” (Dkt. 54-1 at p. 4) Dowdy testified that he was walking outside

the bar when he saw Jacobson-Boettcher screaming at her husband as he tried to get her

into the truck. Dowdy testified that she “was very agitated, very distraught.” Dowdy

approached them and told her to get into the truck or she was going to jail. (Dkt. 47-5 at

35:12–18, 43:21–44:2) Dowdy also testified that as Jacobson-Boettcher was about to get

into the truck, she turned around just two feet away from Dowdy. She put her hands

together like they were handcuffed, thrust them in Dowdy’s face, barely missing hitting

him, and said “Arrest me motherfucker.” (Dkt. 47-5 at 35:12–23) She was then

handcuffed by Dowdy.2 After she was handcuffed Jacobson-Boettcher informed Dowdy

of several medical issues including rheumatoid arthritis, neck issues, and that her “feet

were raw.” (Dkt. 54-1 at p. 5)

Dowdy then started to lead Jacobson-Boettcher to his patrol car as Mr. Boettcher

followed them. Dowdy testified that because Jacobson-Boettcher’s balance was unsteady,

he asked her to sit on the curb so she could “maintain her balance, not fall.” (Dkt. 47-5 at

39:4–11) Dowdy testified that Jacobson-Boettcher refused to sit down and screamed,

"Fuck you, I'm not getting on the ground so you and him can rape me again." She began

pointing to Mook and screaming “he raped me, he raped me.” (Dkt. 47-5 at 39:9–15)

Dowdy testified that Jacobson-Boettcher was “very, very unsteady on her feet and not

able to maintain her own balance.” Dowdy testified that he was trying to maintain control

of the handcuffs when she fell forward into the trash can knocking the lid off but not

falling on to the ground. According to Dowdy, he then held her against the trash and used

his arm to brace her on top of the trash can so she could not wiggle away and possibly

fall. (Dkt. 47-5 at 40:2–14) Dowdy testified that Jacobson-Boettcher was “very

2 Dowdy testified that he asked Boettcher “Why couldn't you help us get her in the vehicle and

just leave?” and that Boettcher responded, “Honestly, sir, if I were to put her in the vehicle, you

would probably be taking us both to jail.” (Dkt. 47-5 at 37:13–16)

flamboyant yelling and screaming at everybody.” As Dowdy called for back up to assist

him, Jacobson-Boettcher attempted to wander off while in handcuffs. Dowdy testified

that she then broke free from his grip on the handcuffs and fell and hit the pavement.

(Dkt. 47-5 at 41:3–42:11) Jacobson-Boettcher testified that she lost consciousness for

maybe one or two minutes after the fall. (Dkt. 47-1 at 150:19–22) Dowdy testified that as

he was trying to get her to her feet, there were many people in their immediate vicinity

and deputies began responding to a fight going on in the same parking lot. (Dkt. 47-5 at

45:15–18)

Defendant Walker, a Harris County Sheriff’s deputy who had been on patrol on

the night of the incident received a call for assistance and arrived on the scene. As

Dowdy and Walker lifted Jacobson-Boettcher up and started to move her to the patrol

car, she became “dead weight” in their arms. (Dkt. 47-5 at 46:15–20) As they led her to

the car, Jacobson-Boettcher continued to scream and resist their attempt to move her. On

the way to the car, Jacobson-Boettcher tripped over her feet, falling to the ground and

pulling the deputies to the ground with her in the middle of a driving lane in the parking

lot. All three were injured in the fall. Walker was eventually able to drag Jacobson-

Boettcher out of the driving lane and into the patrol car.

Once in the car Jacobson-Boettcher kicked the car door, refused to pull her legs in

and had to be pulled from the opposite door into the patrol car. Jacobson-Boettcher began

to beat her head against the car window and vomited in the back seat of the patrol car.

When an ambulance came to take Jacobson-Boettcher to the hospital, the

emergency medical technicians believed her to be intoxicated and noted that she was

belligerent and smelled of alcohol. Jacobson-Boettcher cursed and swore at the

emergency medical technicians who tried to help her. She called the female technician a

“bitch,” threw her arms around, used the word “fuck” and “yelled a lot.” (Dkt. 47-2 at

para. 8) She also was uncooperative with EMS, pulled off the blood pressure cuff, and

initially refused medical treatment. (Dkt. 47-2 at paras. 6, 11)

When the ambulance arrived at the hospital, Jacobson-Boettcher refused

treatment so that she could take pictures of her injuries, returned home, and then went

back to the hospital for treatment. As a result of the incident, Jacobson-Boettcher claims

to have experienced numerous physical and mental damages including bruises, nerve

injury, memory loss, tendonitis, PTSD, depression, and insomnia. (Dkt. 54 at p. 11)

Jacobson-Boettcher testified that that at no time did she “swing, flail, run, trip” or

“refuse” orders by any officer. She also denied being drunk or that she was arguing with

anyone at the time she was being arrested. (Dkt. 54-1 at p. 5) Other than admitting to

using what she described as “a bad word”—“bullshit”—to Mook, she denies having used

profanity during her arrest. (Dkt. 47-1 at 129:11–16) Jacobson-Boettcher states that due

to her health issues, she did not have “the physical prowess, strength or any thought” to

resist arrest. (Dkt. 54-1 at p. 6) Jacobson-Boettcher asserts that the civilian eyewitnesses

to her arrest and the sheriff deputies on the scene—including Dowdy and Walker— who

have testified to the contrary are “liars.” She asserts at the time she was being taken to the

patrol car she was having flashbacks to her alleged rape and this was the cause of her

actions in the patrol car.3 Jacobson-Boettcher testified that she was “unintentionally rude,

irritable and agitated” towards the EMS personnel, which she attributes to medical shock

from what she had just experienced. (Dkt. 54-1 at p. 9)

Subsequently Jacobson-Boettcher filed this lawsuit under 43 U.S.C. § 1983

alleging that Dowdy and Walker violated her rights under the Fourth Amendment to the

United States Constitution by using excessive force during her arrest and unlawfully

arresting her.

In the pending motions, Dowdy and Walker move for summary judgment

contending that Jacobson-Boettcher’s claims against them are barred by qualified

immunity; Harris County has moved for summary judgment on the grounds that no

violation of Jacobson-Boettcher’s rights has occurred and that Jacobson-Boettcher has

failed to identify and prove that any policy, practice, or custom of Harris County caused a

deprivation of her rights.4 The Court will address these arguments below.

II. APPLICABLE LAW

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure Rule 56, summary judgment is appropriate

“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.” Celotex Corp. v. Catrett, 477 U.S.

3 The summary judgment record establishes that Jacobson-Boettcher has a documented history of

emotional and mental health issues. She has been treated for depression and has been diagnosed

with PTSD. (Dkt. 47-1 at 30:14–32:15)

4 Jacobson-Boettcher concedes that she does not have adequate evidence to prove her municipal

liability claims against Harris County and does not oppose Harris County’s motion for summary

judgment. (Dkt. 55)

317, 322‒24 (1986). “A genuine dispute of material fact exists when the ‘evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Burrell v.

Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (quoting Anderson v.

Liberty Lobby, 477 U.S. 242, 248 (1986)). A fact is material if “its resolution could affect

the outcome of the action.” Nunley v. City of Waco, 440 F. App’x 275, 277 (5th Cir.

2011). The court must view the facts and draw all reasonable inferences in the light most

favorable to the nonmoving party. Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th

Cir. 2018).

“Where the non-movant bears the burden of proof at trial, ‘the movant may merely

point to the absence of evidence and thereby shift to the non-movant the burden of

demonstrating . . . that there is an issue of material fact warranting trial.” Kim v. Hospira,

Inc., 709 F. App’x 287, 288 (5th Cir. 2018) (quoting Nola Spice Designs, L.L.C. v.

Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)). If the movant produces evidence

that tends to show that there is no dispute of material fact, the nonmovant must then

identify evidence in the record sufficient to establish the dispute of material fact for trial.

Celotex, 477 U.S. at 321‒23.

The nonmovant must “go beyond the pleadings and by her own affidavits, or by

depositions, answers to interrogatories and admissions on file, designate specific facts

showing that there is a genuine issue of material fact for trial.” Giles v. Gen. Elec. Co.,

245 F.3d 474, 493 (5th Cir. 2001) (citing Celotex, 477 U.S. at 324). “This burden will not

be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertion, or by only a scintilla of evidence.’” Jurach v.

Safety Vision, L.L.C., 642 F. App’x 313, 317 (5th Cir. 2016) (quoting Boudreaux v. Swift

Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). Likewise, a party's self-serving and

unsupported statement in an affidavit will not defeat summary judgment where the

evidence in the record is to the contrary. Smith v. Sw. Bell Tel. Co., 456 Fed. App'x 489,

492 (5th Cir. 2012) ("[W]e have repeatedly held that self-serving statements, without

more, will not defeat a motion for summary judgment, particularly one supported by

plentiful contrary evidence."); United States v. Lawrence, 276 F.3d 193, 197 (5th Cir.

2001); In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000); see also Scott v. Harris, 550 U.S.

372, 380 (2007) ("When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a summary judgment

motion.)

B. Qualified Immunity

The doctrine of qualified immunity protects government officers from civil

liability in their individual capacities if their conduct does not violate clearly established

federal statutory or constitutional law of which a reasonable person would have

known. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Once raised as a defense, the

plaintiff has the burden to demonstrate that qualified immunity should be pierced. Brown

v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). This inquiry requires a two-part analysis,

in which the court determines (1) whether the official violated a statutory or

constitutional right, and (2) whether the unlawfulness of the official's conduct was

"clearly established" at that time. District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018); Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). A right is "clearly established"

only where pre-existing law "dictate[s], that is truly compel[s] (not just suggest[s] or

allow[s] or raise[s] a question about), the conclusion for every like-situated, reasonable

government agent that what the defendant is doing violates federal law in these

circumstances." Sama v. Hannigan, 669 F.3d 585, 591 (5th Cir. 2012). Even if a

defendant's conduct actually violates a plaintiff's constitutional rights, the defendant is

entitled to qualified immunity unless "all reasonable officials in the defendant's

circumstances would have then known that the defendant's conduct violated the plaintiff's

rights." Carroll v. Ellington, 800 F. 3d 154, 169 (5th Cir. 2015). In the context of a

summary judgment motion like the one here, to avoid summary judgment on the officers'

claim of qualified immunity, the plaintiff must demonstrate that there is a genuine issue

of material fact regarding whether a constitutional violation took place and must show

that under clearly established law provided that the officer's conduct was objectively

unreasonable. Zarnow v. City of Wichita Falls, 500 F.3d 401, 408 (5th Cir. 2007).

C. Municipal Liability Under 42 U.S.C. § 1983

“Section 1983 provides a remedy against ‘any person’ who, under color of state

law, deprives another of rights protected by the Constitution.” Collins v. City of Harker

Heights, Tex., 503 U.S. 115, 120 (1992). A local government may not be sued under

Section 1983 for the deprivation of rights guaranteed by the Constitution or federal law

inflicted solely by its employees or agents. See Monell v. New York City Dept. of Soc.

Servs., 436 U.S. 658, 691 (1978) (“[A] municipality cannot be held liable under § 1983

on a respondeat superior theory.”) However, “when execution of a government’s policy

or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy, inflicts the injury,” the government agency is liable

under Section 1983. Id.

To state a claim against a municipality under Section 1983, “a plaintiff must show

that (1) an official policy (2) promulgated by the municipal policymaker (3) was the

moving force behind the violation of a constitutional right.” Peterson v. City of Fort

Worth, 588 F.3d 838, 847 (5th Cir. 2009).

“An official policy is either (1) a policy statement, ordinance,

regulation, or decision that is officially adopted and promulgated by the

municipality’s lawmaking officers or by an official to whom the lawmakers

have delegated policy-making authority; or (2) a persistent, widespread

practice of officials or employees, which, although not authorized by

officially adopted and promulgated policy, is so common and well-settled

as to constitute a custom that fairly represents the municipal policy. Actual

or constructive knowledge of such custom must be attributable to the

governing body of the municipality or to an official to whom that body has

delegated policy-making authority.”

McIntosh v. Smith, 690 F. Supp. 2d 515, 530 (S.D. Tex. Feb. 2, 2010) (citing

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)).

A local government’s decision not to train certain employees about their

legal duty to avoid violating citizens’ rights can only be considered an official

government policy where the failure to train amounts to “deliberate indifference” to the

rights of persons with whom the employee comes into contact. Connick v. Thompson, 563

U.S. 51 (2011) “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of

County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 410 (1997).

III. ANALYSIS

A. Dowdy and Walker Are Entitled to Qualified Immunity Regarding the

Excessive Use of Force Claim

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

during an arrest. Under the first prong of the qualified immunity analysis, to establish a

claim for violation of the Fourth Amendment’s prohibition on excessive force, Jacobson-

Boettcher must show (1) she suffered an injury that (2) “resulted directly and only from a

use of force that was clearly excessive to the need,” (3) the excessiveness of the force

was objectively unreasonable. Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018)

(internal quotation marks and citations omitted).

Here, Jacobson-Boettcher has failed to establish a claim against Dowdy and

Walker for use of excessive force. “Excessive force claims are necessarily fact-intensive;

whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and

circumstances of each particular case.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.

2009) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The court must evaluate

the use of force by these officers “from the perspective of a reasonable officer on the

scene,” and not “with the 20/20 vision of hindsight.” Griggs v. Brewer, 841 F.3d 308,

312 (5th Cir. 2016). In Graham v. Connor, the Supreme Court identified three factors—

the "Graham factors"—that courts should consider when assessing whether a particular

use of force was reasonable: (1) the severity of the crime at hand, (2) whether the suspect

posed an immediate threat to the safety of the officers or others, and (3) whether the

suspect was actively resisting arrest or attempting to flee. 490 U.S. at 389.

Considering the summary judgment evidence in the instant case under the

Graham factors, the Court finds that a jury could not reasonably conclude that the force

used against Jacobson-Boettcher was excessive and thus constituted a violation of her

constitutional rights. Assuming that the first Graham factor might weigh against the

immediate use of force in Jacobson-Boettcher’s arrest, here once she was under arrest the

other two factors clearly and overwhelmingly establish that Dowdy and Walker are

immune from this lawsuit. Under the second Graham factor, the summary judgment

evidence establishes that Jacobson-Boettcher’s conduct not only posed an immediate

threat to the safety of the officers and bystanders, but that she actually caused the officers

harm by actively resisting arrest and pulling them to the ground by dropping in their arms

as “dead weight” while they attempted to bring her to the patrol car. Next, under the

third Graham factor, the summary judgment evidence establishes that no reasonable jury

could find that the force used was excessive to the need.

Here, the summary judgment evidence corroborates the testimony of Dowdy and

Walker regarding the material facts supporting the reasonableness of the force used to

bring Jacobson-Boettcher to the patrol car when she was injured. The statements and

testimony of the civilian eyewitnesses including two bar patrons, one of whom

videotaped part of the encounter, Mo Jr. and medical technicians, as well as hospital

intake records and limited videotape of the incident establish that Jacobson-Boettcher 1)

was extremely intoxicated; 2) was combative, even flailing her arms at officers and

bystanders until she was handcuffed; 3) was acting erratically by cursing, yelling and

screaming at those around her; 4) tried to get away from Dowdy even while handcuffed

and after Dowdy had allegedly placed a firmer grip on her; 5) despite her medical

conditions and alleged inability to resist, succeeded in getting away for Dowdy’s grip

before Walker came to assist him; 6) fell not once but twice while she was either

attempting to get away from the officers or prevent them from moving her; and 7) Dowdy

and Walker were injured as a result of her second fall. The summary judgment record

also establishes the urgency of the need to move Jacobson-Boettcher out of the area as

quickly as possible because of the developing fight nearby in the parking lot and the need

for the officers to come to the assistance of the deputies involved in stopping that fight.

The Court finds that Jacobson-Boettcher’s self-serving deposition and affidavit

testimony contradicting these facts—which are completely unsubstantiated by any other

evidence in the summary judgment record—are insufficient to create a material issue of

fact as to the reasonableness of the force used against her by Dowdy and Walker.5 The

Court is not required to accept as true a nonmovant's conclusory allegations, speculation,

or unsubstantiated assertions of fact that are either entirely unsupported by the summary

judgment record, or are supported by a mere scintilla of evidence. Chaney v. Dreyfus

Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage Co. v. Sunbelt

Fruit & Vegetable Co., 336 F.3d 410, 413 (5th Cir. 2003). A nonmovant’s self-serving

and unsupported testimony will not defeat summary judgment where the evidence in the

5 For these same reasons, the Court also finds Boettcher’s self-serving and conclusory affidavit

testimony—including but not limited to statements that everyone who does not agree with his

wife’s version of events is a “liar” is not competent summary judgment evidence and the Court

will not accept these statements as true for purposes of ruling on the pending motion.

record is to the contrary. See In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000); Clark v.

Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (citing Duffy v. Leading

Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995)).

Here, the Court will not accept as true Jacobson-Boettcher’s unsubstantiated and

conclusory statements regarding her conduct for purposes of ruling on the pending

summary judgment motion. The Court also finds that even if Jacobson-Boettcher had told

Dowdy and Walker of her medical conditions after she was handcuffed as she claims,

under the facts of this case, that knowledge would not make their use of force

unreasonable. Accordingly, the Court finds that Dowdy and Walker did not violate

Jacobson-Boettcher’s constitutional rights and these defendants are entitled to qualified

immunity as to Jacobson-Boettcher’s excessive force claims.

B. Dowdy and Walker Are Entitled to Qualified Immunity Regarding the

False Arrest Claim

Whether a plaintiff has established a claim for false arrest and satisfied the first

prong of the qualified immunity analysis turns on whether "a reasonable officer could

have believed the arrest to be lawful, in light of clearly established law and the

information the officer possessed." Hunter v. Bryant, 502 U.S. 224, 227

(1991). An officer violates the Fourth Amendment if an arrest is made without a proper

arrest warrant or probable cause. Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th

Cir. 1994) (citations omitted); see also Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.

1994). Here, it is undisputed that Dowdy and Walker acted without the benefit of a

warrant. Thus, the Court's inquiry focuses on the existence of probable cause to support

the arrest.

“Probable cause exists when the totality of the facts and circumstances within a

police officer’s knowledge at the moment of arrest are sufficient for a reasonable person

to conclude that the suspect had committed or was committing an offense.” Resendiz v.

Miller, 203 F.3d 902, 903 (5th Cir. 2000). “If there was probable cause for any of the

charges made . . . then the arrest was supported by probable cause, and the claim for false

arrest fails.” Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).

“An officer may conduct a warrantless arrest based on probable cause that an

individual has committed even a minor offense, including misdemeanors.” Deville, 567

F.3d at 165 (citing Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)). Moreover,

“evidence that the arrestee was innocent of the crime is not necessarily dispositive of

whether the officer had probable cause to conduct the arrest because probable cause

requires only a probability or substantial chance of criminal activity, not an actual

showing of such activity.” Id. Accordingly, an officer’s own testimony regarding the

occurrence of an arrestable violation can by itself support a finding of probable cause,

even in the face of the plaintiff’s denial of that violation. Id.

Here, Dowdy had probable cause to arrest Jacobson-Boettcher for public

intoxication and for criminal trespass. Dowdy and Walker reasonably believed Jacobson-

Boettcher to have been publicly intoxicated and their testimony on this fact is supported

by competent summary judgment evidence. Jacobson-Boettcher also admits that she had

been asked to leave the bar by both Steele and Mook and that she was standing in front of

the bar entrance arguing with them about why she had been asked to leave when she was

arrested. (Dkt. 54-A at 2–3) These facts gave Dowdy probable cause to arrest Jacobson-

Boettcher for either public intoxication or criminal trespass or both. Courts have

consistently held that an “arrest does not violate the Fourth Amendment if the officer

making the arrest has probable cause to arrest the defendant for any crime, regardless of

whether the defendant can be lawfully arrested for the crime which the officer states or

believes he is making the arrest.” U.S. v. Bain, 135 F. App’x 695, 696 (5th Cir. 2005)

(citing Devenpeck v. Alford, 543 U.S. 146 (2004)). Accordingly, the Court finds that

Jacobson-Boettcher cannot establish a claim for false arrest and Dowdy and Walker are

entitled to qualified immunity from this lawsuit.

C. Jacobson-Boettcher’s municipal liability claim against Harris County

fails because she did not create a genuine issue of material fact regarding

whether she suffered a constitutional violation.

There can be no municipal liability under Section 1983 unless the plaintiff

suffered a constitutional violation. As discussed above, the Court finds that Dowdy and

Walker did not violate Jacobson-Boettcher’s constitutional rights. Furthermore Jacobson-

Boettcher has not identified an official policy or custom that led to her alleged

constitutional violation nor a policymaker with actual or constructive knowledge of that

policy or custom. See Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).

Accordingly, there can be no municipal liability against Harris County, and it is entitled

to judgment in this case as a matter of law.

IV. CONCLUSION

For the reasons discussed above, the motion for summary judgments are

GRANTED.

SIGNED at Houston, Texas, this 3rd day of March, 2021.

Heerae Plo

GEORGE C. HANKS, JR.

UNITED STATES DISTRICT JUDGE

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