# Hunter v. City of Houston, Texas

> District Court, S.D. Texas · September 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10674707

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10674707

## How later opinions describe it (automated extraction)

- declining to give claim further consideration where plaintiff had not created a genuine issue of material fact on the existence of a constitutional violation

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10674707. Public record. Not legal advice.