Hunter v. City of Houston, Texas

September 29, 2021

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ERIC HUNTER, § CIVIL ACTION NO.

Plaintiff, § 4:19-cv-02521

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

CITY OF HOUSTON, et al, §

Defendants. §

OPINION AND ORDER

GRANTING MOTIONS FOR SUMMARY JUDGMENT

The motions for summary judgment filed by Defendants

City of Houston, Officer Matthew Singer, and Sergeant G.E.

Reuther are granted. Dkts 53, 55, 57.

Defendant 3B Auto Sales, LLC is dismissed from this lawsuit

for failure of service.

1. Background

This dispute arises from the repossession of a car belonging

to Plaintiff Eric Hunter. He brings claims for violation of his civil

rights against the City of Houston along with Officer Singer and

Sergeant Reuther, both of whom are members of the Houston

Police Department. He also brings claims under state law against

3B related to the repossession. Defendant Uval Vanunu is the

owner of 3B and was previously dismissed from this lawsuit when

Hunter failed to timely respond to his motion for summary

judgment. Dkt 96.

The conduct at issue began with the repossession of Hunter’s

car by Carlos Benavides, a 3B employee. Hunter saw Benavides

enter his car, so he got into the passenger seat and asked why his

car was being repossessed. Benavides explained that Hunter had

failed to make the required payments on his car loan. Hunter

asked Benavides if he could drive him to his house so that he

could pay the amount due. Benavides explained that he was

required to drive straight to the 3B dealership but could drive

Hunter home after that, if needed. Benavides thus towed

Hunter’s car to the dealership with Hunter in the passenger seat

of the tow truck. Dkt 53-1 at 25 (Benavides affidavit).

Hunter asked if he could retrieve his personal belongings,

which included his identification and other personal documents.

Vanunu told Hunter that he would give him his belongings if

Hunter signed a release form indicating his consent to the

repossession. Dkt 53-1 at 23 (Vanunu affidavit). Hunter declined.

Id at 23, 25. Vanunu and Benavides attest that Vanunu told

Hunter to leave several times after he declined to sign the consent

form. Ibid. Hunter purports to dispute this, but his affidavit is

stricken as part of the rulings below. See Dkt 68-1 at 8.

Regardless, at some point thereafter, Vanunu called the police

and reported Hunter as trespassing. Dkt 53-1 at 25.

Officer Singer responded to the call and wore a body camera.

That video was submitted with the motions for summary

judgment. See Dkt 53-1 (Exhibit C).

Singer spoke to Hunter, who was standing inside the shop.

He then spoke with Vanunu and Benavides. Bodycam, 0:02:52–

0:04:27. Vanunu told Singer that this was Hunter’s second

repossession, and that he had asked him to leave. Id at 0:05:04–

0:05:12. Benavides also stated that he had asked Hunter to leave

several times. Id at 0:07:15–0:08:25. Singer then talked to Hunter

again about the fact of repossession, which Hunter protested.

Singer stated, “This is all civil stuff. It’s got nothing to do with

me. The only thing I’m here for is you being on the property, and

they don’t want you on the property.” Id at 0:09:30–0:09:38.

Hunter requested that a supervisor be called to the scene.

Id at 0:10:28–0:10:43. Singer agreed to make such a call, while

twice telling Hunter explicitly, “You are trespassing on the

property.” Id at 0:10:43–0:10:48. Singer then called his

supervisor, Sergeant Reuther. Reuther suggested Singer call the

Houston Police Department’s Auto Dealers Division to ensure

that the repossession had been properly conducted. Id at

0:12:07–0:13:57. Singer explained that Hunter wasn’t listening to

him, and that he would try to resolve the situation without an

arrest. Id at 0:12:18–0:13:40. Reuther advised that he didn’t

believe it was necessary at that time to personally respond to the

scene. Dkt 77-1 at 12. Singer then called HPD-AD, who spoke

with Hunter and Vanunu at length. Bodycam, 0:15:39–0:40:38.

Hunter then asked Singer what would stop him “from

getting in my car and leaving with it?” Id at 0:41:18–0:41:23.

Singer responded that such action would constitute theft because

the car belongs to 3B. Id at 0:41:24–0:41:28. Hunter then stated

that 3B “basically” kidnapped him, and that he wanted to file

kidnapping charges. Singer said he would call the Harris County

District Attorney’s Office to see if they would take the charges.

Id at 0:41:47–0:42:20.

At about this time, Reuther called Singer for an update.

Singer explained that Hunter wasn’t cooperating. Reuther

advised Singer to contact the DA’s Office before arresting him.

Id at 0:44:06–0:45:17; Dkt 55-1 at 12. Singer then informed

Hunter that he would call the DA’s Office to provide both sides

of the story, including that Hunter was trespassing. Before

Stringer could make the call, Hunter asked him several questions,

which included if he was going to be arrested. Singer explained

that he would be arrested if he was still on the property when he

called the DA’s Office. Hunter went and stood just outside the

entrance gate. Bodycam, 0:46:08–0:46:50.

Singer then called the DA’s Office and explained the

circumstances, recommended that he arrest Hunter for trespass,

and relayed Hunter’s kidnapping allegations. The bodycam video

didn’t record audio of the response, but the criminal trespass

charges were apparently accepted by the DA’s Office.

See Dkt 53-1 at 12 (Reuther report); Bodycam, 0:47:31–0:52:07.

Singer then approached Hunter, who by then had apparently

called 911, complaining of Singer’s conduct and asking that

another officer come to the scene. Singer directed Hunter to

come toward him, but Hunter refused and stated that he was on

the phone with the police. Singer attempted to arrest Hunter,

telling him to put his hands behind his back. Hunter resisted,

grabbing hold of the entrance gate to prevent Singer from placing

handcuffs on him. Singer frisked him and, at a moment when

Hunter removed his hand from the fence, took him to the

ground, where Hunter continued to resist. Singer asked

Benavides for help gaining control over Hunter, and the two

eventually placed Hunter in handcuffs. Id at 0:56:48–1:00:26.

Singer then called for a supervisor on the scene regarding use

of force. Id at 1:00:29. Reuther then arrived on the scene,

generally interviewed Singer and Benavides, and approved

Stringer’s actions. Id at 1:17:26–1:24:07.

In August 2019, the DA’s Office dropped the criminal

trespass charges, explaining that it believed probable caused

existed but couldn’t be proven beyond a reasonable doubt.

Dkt 57-1 at 97 (state court motion to dismiss).

In February 2018, the HPD Internal Affairs Division

investigated an administrative complaint by Hunter in which he

alleged that Singer used excessive force. Dkt 53-1 at 28–32

(investigation summary). The investigation included a review of

Singer’s administrative statement and body-cam footage; Singer’s

response to resistance form; Reuther’s response to resistance

supervisor supplement, offense report, and after-action report;

and affidavits by Vanunu and Benavides. The investigation report

recommended Singer’s exoneration. Id at 32.

Hunter brought this lawsuit in May 2019 in Texas state court.

Dkt 1-1 at 2–24. Defendants removed, asserting federal question

jurisdiction. Dkt 1. The operative pleading is Hunter’s second

amended complaint. Dkt 18. He subsequently voluntarily

dismissed several claims as to the City of Houston, Singer, and

Reuther. Dkt 48. Those remaining include claims under state law

against 3B; a Section 1983 claim against the City of Houston for

municipal liability; and Section 1983 claims against Singer and

Reuther for individual liability.

The City, Singer, and Reuther now seek summary judgment.

Dkts 53, 55, 57. Hunter also affirmatively moved for summary

judgment on his claims. Dkt 62. But that motion was denied for

reasons stated on the record at hearing pertaining to his failure to

compile and present his supporting evidence in discernible form.

See Minute Entry of 04/16/2021.

2. Legal standard

Rule 56(a) of the Federal Rules of Civil Procedure requires a

court to enter summary judgment when the movant establishes

that “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” A fact is

material if it “might affect the outcome of the suit under the

governing law.” Sulzer Carbomedics Inc v Oregon Cardio-Devices Inc,

257 F3d 449, 456 (5th Cir 2001), quoting Anderson v Liberty Lobby

Inc, 477 US 242, 248 (1986). And a dispute is genuine if the

“evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Royal v CCC & R Tres Arboles LLC,

736 F3d 396, 400 (5th Cir 2013), quoting Anderson, 477 US at 248.

The summary judgment stage doesn’t involve weighing the

evidence or determining the truth of the matter. The task is solely

to determine whether a genuine issue exists that would allow a

reasonable jury to return a verdict for the nonmoving party.

Smith v Harris County, 956 F3d 311, 316 (5th Cir 2010), quoting

Anderson, 477 US at 248. Disputed factual issues must be resolved

in favor of the nonmoving party. Little v Liquid Air Corp, 37 F3d

1069, 1075 (5th Cir 1994). All reasonable inferences must also be

drawn in the light most favorable to the nonmoving

party. Connors v Graves, 538 F3d 373, 376 (5th Cir 2008), citing

Ballard v Burton, 444 F3d 391, 396 (5th Cir 2006).

The moving party typically bears the entire burden to

demonstrate the absence of a genuine issue of material fact. Nola

Spice Designs LLC v Haydel Enterprises Inc, 783 F3d 527, 536 (5th

Cir 2015) (quotation omitted); see also Celotex Corp v Catrett,

477 US 317, 322–23 (1986) (citations omitted). But when a

motion for summary judgment by a defendant presents a

question on which the plaintiff bears the burden of proof at trial,

the burden shifts to the plaintiff to proffer summary judgment

proof establishing an issue of material fact warranting trial.

Nola Spice, 783 F3d at 536 (quotation omitted). To meet this

burden of proof, the evidence must be both “competent and

admissible at trial.” Bellard v Gautreaux, 675 F3d 454, 460 (5th Cir

2012) (citation omitted).

3. Summary judgment evidence

A preliminary issue pertains to evidence that Hunter

submitted to defend against these motions.

Singer moves to strike all but three of the exhibits that

Hunter offered in his response. Dkt 73 at 2–9, citing Dkt 68-1

at 6–14 (Exhibit A), 22–114 (Exhibits D through H), 123–27

(Exhibits J and K), Dkts 68-2 to 68-16 (Exhibits L through UU).

The only exhibits not moved on are Exhibits B (Vanunu

affidavit), C (Benavides affidavit), and I (Singer and Reuther IAD

affidavits). Of note, Hunter filed these same exhibits in response

to the City’s motions, although there is some variance in order

and form. See Dkt 77-1 at 1–3 (exhibit list in response to the

City’s motion). He also filed a much smaller subset of the exhibits

in response to Reuther’s motion, but all of those filed are within

the objections asserted by Singer. See Dkts 79-1 to 79-4.

Hunter didn’t respond to the objections. Local Rule 7.4 in

part provides, “Failure to respond to a motion will be taken as a

representation of no opposition.” As such, the objections will be

sustained, and the exhibits will be stricken on that basis. This

includes Hunter’s own affidavit. See Dkt 68-1 at 7–14

(Exhibit A). And this means that the analysis will be guided by

evidence consisting of Singer’s bodycam video, affidavits from

Benavides, Vanunu, Singer, and Reuther, and any pertinent

exhibits offered by Defendants.

4. Claims against Officer Singer and Sergeant Reuther

Hunter brings several claims against Singer and Reuther, all

pursuant to Section 1983 and based on constitutional violations.

Singer and Reuther assert a defense of qualified immunity.

Qualified immunity protects government officials “from

liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v Callahan, 555 US

223, 231 (2009), quoting Harlow v Fitzgerald, 457 US 800, 818

(1982). The availability of qualified immunity ultimately “turns

only upon the objective reasonableness of the defendant’s acts.”

Thompson v Upshur County, 245 F3d 447, 457 (5th Cir 2001)

(quotations omitted) (emphasis in original).

On summary judgment, analysis of qualified immunity

proceeds on two prongs. See Aguirre v City of San Antonio, 995 F3d

395, 406 (5th Cir 2021); see also Batyukova v Doege, 994 F3d 717,

724–25 (5th Cir 2021). A court must first ask “whether the facts,

taken in the light most favorable to the party asserting the injury,

show the officer’s conduct violated a federal right.” Aguirre,

995 F3d at 406, quoting Tolan v Cotton, 572 US 650, 655–56

(2014). The court must view the facts in the plaintiff’s favor, but

it needn’t accept the plaintiff’s version of the facts wholesale—

especially where bodycam video depicts the events at issue. That

is, “where there is video capturing the events in question and

‘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 motion for summary judgment.’”

Valencia v Davis, 836 F App’x 292, 296 (5th Cir 2020, per curiam),

quoting Scott v Harris, 550 US 372, 380 (2007); Garza v Briones,

943 F3d 740, 744 (5th Cir 2019) (internal quotation omitted)

(plaintiff’s version of facts not to be accepted when “blatantly

contradicted and utterly discredited by video recordings”).

If the plaintiff establishes a violation of a federal right, a court

must then determine whether the right was “‘clearly established’

at the time of the violation.” Tolan, 572 US at 656, quoting Hope v

Pelzer, 536 US 730, 739 (2002). The Supreme Court holds, “A

clearly established right is one that is ‘sufficiently clear that every

reasonable officer would have understood that what he is doing

violates that right.’” Mullenix v Luna, 557 US 7, 11 (2015), quoting

Reichle v Howards, 566 US 658, 664 (2012). “This is not to say that

an official action is protected by qualified immunity unless the

very action in question has previously been held unlawful; but it

is to say that in the light of pre-existing law the unlawfulness must

be apparent.” Hope, 536 US at 739 (internal quotations and

citations omitted).

Critically, a “good-faith assertion of qualified immunity alters

the usual summary judgment burden of proof, shifting it to the

plaintiff to show that the defense is not available.” Valencia,

836 F App’x at 297 (internal quotations omitted); see also

Batyukova, 994 F3d at 724, quoting Valderas v City of Lubbock,

937 F3d 384, 388 (5th Cir 2019). To rebut the defense, the

plaintiff must establish “that the official’s allegedly wrongful

conduct violated clearly established law and that genuine issues

of material fact exist regarding the reasonableness of the official’s

conduct.” Valencia, 836 F App’x at 297, quoting King v Handorf,

821 F3d 650, 654 (5th Cir 2016).

a. Officer Singer

Hunter asserts claims against Singer for excessive force,

unlawful arrest, and retaliation under the First Amendment.

Dkt 18 at ¶¶ 69–85, 87. None may proceed to trial.

i. Excessive force

The elements of a claim for excessive force are, first, injury;

second, the injury resulted directly and only from a use of force

that was clearly excessive; and third, the excessiveness of the

force was clearly unreasonable. Taylor v Hartley, 488 F Supp 3d

517, 532 (SD Tex 2020), quoting Trammell v Fruge, 868 F3d 332,

340 (5th Cir 2017), in turn quoting Deville v Marcantel, 567 F3d

156, 167 (5th Cir 2009).

The Fifth Circuit recently and at length addressed qualified

immunity in the context of excessive-force claims:

In excessive force cases, “[t]he second prong of

the [qualified immunity] analysis ‘is [itself]

better understood as [encompassing] two

separate inquiries: whether the allegedly

violated constitutional rights were clearly

established at the time of the incident; and, if

so, whether the conduct of the defendants was

objectively unreasonable in light of that then

clearly established law.’” Tarver v City of Edna,

410 F3d 745, 750 (5th Cir 2005), quoting Felton

v Polles, 315 F3d 470, 477 (5th Cir 2002). An

officer “cannot be said to have violated a clearly

established right unless the right’s contours

were sufficiently definite that any reasonable

official in the defendant’s shoes would have

understood that he was violating it.” Plumhoff v

Rickard, 572 US 765, 778–79, (2014). “If

officers of reasonable competence could

disagree as to whether the plaintiff’s rights were

violated, the officer’s qualified immunity

remains intact.” Tarver, 410 F3d at 750.

Tucker v City of Shreveport, 998 F3d 165, 172 (5th Cir 2021).

The Fifth Circuit also stresses that this inquiry is limited to

what the pertinent officer knew at the time of the challenged

action:

When evaluating a qualified immunity defense,

courts “consider[ ] only the facts that were

knowable to the defendant officers.” White v

Pauly, 137 S Ct 548, 550 (2017, per curiam); see

also Cole, 935 F3d at 456 (“[W]e consider only

what the officers knew at the time of their

challenged conduct.”). “Facts [that] an officer

learns after the incident ends—whether those

facts would support granting immunity or

denying it—are not relevant.” Hernandez v Mesa,

137 S Ct 2003, 2007 (2017, per curiam); Brown,

623 F3d at 253 (“An official’s actions must be

judged in light of the circumstances that

confronted him, without the benefit of

hindsight.”).

Tucker, 998 F3d at 173.

Whether force is reasonable depends on the so-called

Graham factors, being first, the severity of the crime at issue;

second, whether the suspect poses an immediate threat to the

safety of the officers or others; and third, whether the suspect is

actively resisting arrest or attempting to evade arrest by flight.

Hanks v Rogers, 853 F3d 738, 745 (5th Cir 2017), quoting Graham v

Connor, 490 US 386, 396 (1989).

The force Singer used was reasonable. The underlying crime

wasn’t severe, and it can be assumed that Hunter didn’t

necessarily pose an immediate threat. Still, the bodycam video

plainly shows that he resisted arrest. And police officers may use

force to effect an arrest where the suspect actively resists. For

example, see Hutcheson v Dallas County, 994 F3d 477, 480–81

(5th Cir 2021); see also Carroll v Ellington, 800 F3d 154, 173–76

(5th Cir 2015). Beyond this, the amount of force used here to

wrestle Hunter to the ground was far less than that used in other

lawful instances. For example, see Cardena v Ray, 728 F App’x

293, 296–97 (5h Cir 2018, per curiam) (reasonable force found

where police officers tackled and tased arrestee when he resisted

being arrested for public intoxication); Hogan v Cunningham,

722 F3d 725, 733–34 (5th Cir 2013) (reasonable force found

where police officers tackled arrestee trying to close his front

door on them).

Hunter fails for much the same reason to carry his burden to

show that Singer’s conduct violated a clearly established right. See

Valencia, 836 F App’x at 299. It certainly can’t be said on these

facts that “every reasonable officer would have understood” that

the pertinent actions were unlawful. Mullenix, 557 US at 11,

quoting Reichle, 566 US at 664. This being so, “officers of

reasonable competence” could disagree on whether the force

used here was excessive. Tucker, 998 F3d at 172, quoting Tarver,

410 F3d at 750.

Summary judgment is appropriate on this claim.

ii. Unlawful arrest

To assert a valid false-arrest claim under Section 1983,

Hunter must show that Singer “did not have probable cause to

arrest him.” Anokwuru v City of Houston, 990 F3d 956, 963 (5th Cir

2021), quoting Haggerty v Texas Southern University, 391 F3d 653,

655 (5th Cir 2004) (citation omitted).

“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.”

Haggerty, 391 F3d at 655–56 (quotation omitted). And of

pertinence here, Singer is entitled to qualified immunity if “a

reasonable officer in his position could have believed that, in light

of the totality of the facts and circumstances of which [he] was

aware, there was a fair probability that [the suspect] had

committed or was committing an offense.” Id at 656, citing

Glenn v City of Tyler, 242 F3d 307, 313 (5th Cir 2001).

Whether there was probable cause requires identification and

analysis of a particular crime. Singer arrested Hunter on allegation

of both criminal trespass and resisting arrest. Dkt 57-1 at 7. A

sufficient showing of probable cause as to either one necessarily

undermines any assertion of unlawful arrest. And as to the

former, the Texas Penal Code § 30.05 provides:

Sec. 30.05. CRIMINAL TRESPASS.

(a) A person commits an offense if the person

enters or remains on or in property of another,

including residential land, agricultural land, a

recreational vehicle park, a building, or an

aircraft or other vehicle, without effective

consent and the person:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

Notice includes “oral or written communication by the owner or

someone with apparent authority to act for the owner.” Tex

Penal Code § 30.05(b)(2)(A) (emphasis added).

Singer plainly had probable cause to arrest Hunter. Hunter’s

only argument is that he was never told to leave—that is, that he

didn’t have notice. But Vanunu and Benavides attest that Hunter

was told to leave before Singer arrived. Dkt 53-1 at 23, 25.

Hunter’s only evidence to the contrary is his stricken affidavit.

See Dkt 68-1 at 8. Regardless, the bodycam video clearly shows

that Vanunu told Singer that he had previously asked Hunter to

leave the premises. Bodycam, 0:05:10–0:05:13. This alone

supports probable cause, while also mooting any argument that

Hunter tries to make about the clarity of orders to depart made

by Singer himself. As such, Hunter fails to show “that the

official’s allegedly wrongful conduct violated clearly established

law.” Valencia, 836 F App’x at 297, quoting King, 821 F3d at 654.

Indeed, given that no evidence supports Hunter’s claim that

Singer committed a constitutional violation by arresting him

without probable cause, the claim also fails on the merits.

Summary judgment is appropriate on this claim.

iii. First Amendment retaliation

The elements of a claim for retaliation under the First

Amendment are, first, the plaintiff was engaged in

constitutionally protected activity; second, the officer’s actions

injured the plaintiff such that the injury would chill a person of

ordinary firmness from continuing to engage in that activity; and

third, the officer’s allegedly unlawful actions were substantially

motivated by their opposition to plaintiff’s constitutionally

protected conduct. Alexander v City of Round Rock, 854 F3d 298,

308 (5th Cir 2017), citing Keenan v Tejada, 290 F3d 252, 258

(5th Cir 2002).

As to the first element, the bodycam video doesn’t show that

Hunter was engaged in any constitutionally protected activity that

would preclude his arrest at that time on independent and

adequate grounds. Hunter simply complains that Singer arrested

him while he happened to be on the phone with the 911

dispatcher to request that a different officer come to the scene

because he disfavored Singer. See Dkt 18 at ¶¶ 70–72, 87; Dkt 68

at 21–22. He fails to cite legal authority explaining why the First

Amendment protects this activity in the manner he suggests. This

being so, and even if sufficient causation were shown, Hunter in

no way establishes that any violation was in contravention of

clearly established law at the time it occurred.

Summary judgment is appropriate on this claim.

b. Sergeant Reuther

Hunter brought a claim against Reuther for First

Amendment retaliation. Dkt 18 at ¶ 87. But he expressly

abandoned that claim in his response to the motion for summary

judgment. Dkt 79 at 6.

He continues to assert his claim for failure to supervise.

Dkt 18 at ¶¶ 96–100. The elements of such claim are, first, the

defendant was required to supervise the offending subordinate

and failed to do so; second, a causal link exists between the

alleged failure to supervise and the alleged violation of the

plaintiff’s constitutional rights; and third, the failure to supervise

amounts to deliberate indifference to the plaintiff’s constitutional

rights. Hutcheson, 994 F3d at 482, quoting Pena v Rio Grande City,

879 F3d 613, 623 (5th Cir 2018).

As has already been shown, there’s no underlying

constitutional violation. But a failure-to-supervise claim is

derivative, meaning that it must be based on some predicate

violation. See Zimmerman v Cutler, 657 F App’x 340, 348–49 (5th

Cir 2016, per curiam), citing Hill v Carroll County, 587 F3d 230, 238

(5th Cir 2009) (declining to give claim further consideration

where plaintiff had not created a genuine issue of material fact on

the existence of a constitutional violation); see also Baker v Putnal,

75 F3d 190, 199 (5th Cir 1995). Reuther can’t be liable on this

claim where no constitutional violation resulted from his alleged

failure to supervise.

Beyond this, and to a certainty, nothing suggests—and

Hunter cites no decision—that a person having his car

repossessed has a clearly established right to have a supervisor

present on the scene. Reuther thus enjoys qualified immunity to

the extent that Hunter continues to assert otherwise.

What’s more, the facts (even in the light most favorable to

Hunter) don’t otherwise show that Reuther’s conduct violated a

federal right. There’s simply no causal link between Reuther’s

actions and any action by Singer allegedly constituting a violation

of his civil rights. Hunter specifies nothing in the conversations

between Reuther and Singer that suggests a lack of supervision

led to or allowed Singer to act as he did. Neither is there any

evidence of deliberate indifference—indeed, quite to the

contrary, the evidence shows that Reuther remained in contact

with Singer and continued to follow up on the situation. And so,

nothing suggests that Reuther “was aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists,” and that he actually drew the inference. Estate of

Davis v City of North Richmond Hills, 406 F3d 375, 385 n 48, quoting

Smith v Brenoettsy, 158 F3d 908, 912 (5th Cir 1998). The bodycam

video instead shows that all information relayed by Singer to

Reuther accurately described the circumstances without implying

a potential for serious harm.

Summary judgment is appropriate on this claim.

5. Claims against the City of Houston

Hunter asserts several constitutional claims against the City

of Houston, being failure to discipline, failure to train and

supervise, ratification of Singer’s conduct, and First Amendment

retaliation. See Dkt 18 at ¶¶ 88–95; see also Dkt 77.

Hunter doesn’t attempt to defend his claim under the First

Amendment in his response to the City’s motion for summary

judgment. The claim is thus abandoned and will be dismissed.

As to the remaining claims, they (like the claim against

Reuther) must all be based on some underlying constitutional

violation. Zimmerman, 657 F App’x at 348–49, citing Hill, 587 F3d

at 238. As established above, no such violation exists. They must

be dismissed on that basis.

Even so, they will be briefly addressed. And in that regard,

municipal liability under Section 1983 doesn’t extend merely on

a respondeat superior basis. Monell v Department of Social Services,

436 US 658, 691 (1978). The plaintiff must show that an official

policy promulgated by the municipal policymaker was the

“moving force” behind the violation of a constitutional right.

Piotrowski v City of Houston, 237 F3d 567, 578 (5th Cir 2001)

(citations omitted). “The ‘official policy’ requirement was

intended to distinguish acts of the municipality from acts of

employees of the municipality, and thereby make clear that

municipal liability is limited to action for which the municipality

is actually responsible.” Doe v Edgewood Independent School District,

964 F3d 351, 364–65 (5th Cir 2020) (emphasis in original),

quoting Pembaur v Cincinnati, 475 US 469, 479 (1986).

a. Failure to discipline

Failure to discipline isn’t a common claim, with the Fifth

Circuit appearing to have addressed it only eight times in the last

twenty years. As most recently stated, the essential elements are,

first, the municipality failed to discipline its employees; second,

that failure to discipline amounted to deliberate indifference; and

third, the failure to discipline directly caused the constitutional

violations in question. See Deville v Marcantel, 567 F3d 156, 171

(5th Cir 2009), citing Piotrowski v City of Houston, 237 F3d 567, 580

(5th Cir 2001). Hunter meets none of these elements.

Hunter’s exhibits were properly stricken because he failed to

address objections raised against them. As such, nothing

establishes that the City improperly failed to discipline Singer or

Reuther. In any event, this necessarily follows from the prior

conclusion that there’s no evidence of an underlying

constitutional violation that would require discipline.

There’s also no evidence of deliberate indifference. To

establish deliberate indifference, a plaintiff must produce “proof

that a municipal actor disregarded a known or obvious

consequence of his action.” Connick v Thompson, 563 US 51, 61

(2011), quoting Board of County Commissioners of Bryan County

Oklahoma v Brown, 520 US 397, 409–10 (1997). That “ordinarily”

requires a plaintiff to allege a pattern of similar constitutional

violations. Connick, 563 US at 62 (2011), citing Board of County

Commissioners, 520 US at 409 (1997). No evidence exists in this

record of other instances where officers weren’t disciplined in

response to clear constitutional violations, and nothing shows

that “city policymakers are on actual or constructive notice” of

such a deficiency. Connick, 563 US at 61, citing Board of County

Commissioners, 520 US at 407. Nor is there any evidence either

identifying a municipal policymaker or linking municipal action

to that policymaker. See Taylor, 488 F Supp 3d at 537–38.

The foregoing also necessarily establishes that no failure to

discipline caused a constitutional violation here.

Summary judgment is appropriate on this claim.

b. Failure to train and supervise

The Supreme Court has explained, “A municipality’s

culpability for a deprivation of rights is at its most tenuous where

a claim turns on a failure to train.” Connick, 563 US at 61 (2011)

(citation omitted). But a decision by a local government not to

train certain employees about their legal duty to avoid violating

citizens’ rights may in some circumstances rise to the level of an

official government policy for purposes of Section 1983. Id at 61.

The elements of a failure-to-train claim are the same as those

for failure to supervise, being first, the training procedures of the

municipality’s policymaker were inadequate; second, the

policymaker was deliberately indifferent in adopting the training

policy; and third, the inadequate training policy directly caused

the plaintiff’s injury. Conner v Travis County, 209 F3d 794, 796 (5th

Cir 2000), quoting Baker, 75 F3d at 200; see also Pena, 879 F3d at

623, citing Thompson, 245 F3d at 459.

Hunter’s exhibits were properly stricken for failure to

respond to asserted objections. As such, nothing establishes the

substance of the City’s training protocols as they relate to these

issues or how they’re inadequate. There’s also no evidence of any

past constitutional violations or anything that would put a city

policymaker on notice and show deliberate indifference. Nor is

there evidence showing either who the putative city policymaker

is or what he or she did. And for those reasons, there necessarily

is no evidence establishing that any deficient training by the City

caused the underlying events to occur.

Summary judgment is appropriate on this claim.

c. Ratification

The Supreme Court permits a ratification theory against a

municipality to go forward in certain limited circumstances:

[W]hen a subordinate’s decision is subject to

review by the municipality’s authorized

policymakers, they have retained the authority

to measure the official’s conduct for

conformance with their policies. If the

authorized policymakers approve a

subordinate’s decision and the basis for it, their

ratification would be chargeable to the

municipality because their decision is final.

City of St Louis v Praprotnik, 485 US 112, 127 (1988) (emphasis in

original).

On the pleadings in Covington v City of Madisonville, the Fifth

Circuit found such theory sufficiently alleged to withstand

motion to dismiss. 812 F Appx 219, 228–29 (5th Cir 2020, per

curiam). It specified as follows:

Ratification in this context requires that a

policymaker knowingly approve a subordinate’s

actions and the improper basis for those

actions. Otherwise, unless conduct is

“manifestly indefensible,” a policymaker’s

mistaken defense of a subordinate who is later

found to have broken the law is not ratification

chargeable to the municipality.

Id at 228, citing Praprotnik, 485 US at 127, Beattie v Madison County

School District, 254 F3d 595, 603 n 9 (5th Cir 2001).

Hunter’s ratification claim fails under these standards. He

again fails to identify a policymaker that ratified the conduct at

issue. Having failed to do so, he certainly fails to prove specific

facts that support an inference that the pertinent policymaker

knew of unlawful actions and approved them. To the contrary, a

policymaker must have actual knowledge of the improper basis

for the subordinate’s action and yet approve the action anyway.

See Beattie, 254 F3d at 604; see also Taylor, 488 F Supp 3d at 545.

And none of the conduct here can be characterized as manifestly

indefensible given the determination above that the conduct

didn’t violate a constitutional right that was clearly established at

the time of the violation. That is, the actions are not “‘an obvious

violation of clearly established law.” Young v Board of Supervisors of

Humphreys County, 927 P3d 898, 903 (5th Cir 2019).

Summary judgment is appropriate on this claim.

6. Claims against 3B

The docket doesn’t reflect that Hunter ever served 3B. This

was noted at hearing, and Hunter was told that he “must by

04/23/2021 direct the Court to prior proof already filed on the

docket as to service on 3B Auto Sales or it will be dismissed.”

Minute Entry of 04/16/2021. Hunter filed nothing in response.

3B will be dismissed pursuant to Rule 4(m) of the Federal

Rules of Civil Procedure.

7. Conclusion

The motions for summary judgment filed by Defendants

City of Houston, Matthew Singer, and G.E. Reuther as to the

claims filed against them by Plaintiff Eric Hunter are GRANTED.

Dkts 53, 55, 57. The claims against them are DISMISSED WITH

PREJUDICE.

The claims asserted against Defendant 3B Auto Sales, LLC

are DISMISSED WITHOUT PREJUDICE for failure of service.

The objections by Singer to exhibits are SUSTAINED, and the

pertinent exhibits are STRICKEN. Dkt 73.

SO ORDERED.

Signed on September 29, 2021, at Houston, Texas.

Che 2 Falcdy =a

Hon. Charles Eskridge

United States District Judge

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