# Mendez v. Jones

> District Court, S.D. Texas · September 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10674880

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT September 22, 2021
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
BROWNSVILLE DIVISION

SANDRA MENDEZ, individually, §
and as the Independent Administrator §
for the Estate of Mark Anthony Galvan, §
Plaintiff, §
§
v. § Civil Action No. 1:21-cv-80
§
SERGEANT JOHN JONES, §
OFFICER MARIO ALVARADO, §
OFFICER CELESTE RIVERA, and the §
CITY OF BROWNSVILLE, §
Defendants. §

MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION

The Court is in receipt of “Defendant City of Brownsville, Texas’ and Sergeant John
Jones, Officer Mario Alvarado and Officer Celeste Rivera in Their Official Capacities’ Rule
12 Motion to Dismiss for Failure to State a Claim for Relief” and “Defendants’ Sergeant
John Jones, Officer Mario Alvarado, Officer Celeste Rivera in Their Individual Capacities’
Rule 12 Motion to Dismiss for Failure to State a Claim for Relief” (the “Motions”). Dkt.
Nos. 8, 9. For the reasons provided below, it is recommended that the Court: 1) GRANT
both Motions; 2) DISMISS WITH PREJUDICE (a) Plaintiff’s
§ 1983 excessive force claim under the Fourth Amendment against the City of Brownsville
and against Sergeant John Jones, Officer Mario Alvarado, and Officer Celeste Rivera in
their official capacities (collectively, “City Defendants”), (b) Plaintiff’s § 1983 excessive
force claim under the Fourth Amendment against Sergeant Jones, Officer Mario
Alvarado, and Officer Celeste Rivera in their individual capacities (collectively,
“Individual Defendants”), (c) Plaintiff’s § 1983 excessive force claim under the Fourteenth
Amendment against City Defendants, (d) Plaintiff’s § 1983 excessive force claim under
the Fourteenth Amendment against Individual Defendants, and (e) Plaintiff’s § 1983
family unit destruction claim under the Fourteenth Amendment against all Defendants;
and 3) DENY (a) Plaintiff’s request for punitive damages on all claims against City
Defendants, and (b) Plaintiff’s request for punitive damages on her §1983 Fourth and
Fourteenth Amendment claims against Individual Defendants.

I. Venue and Jurisdiction
Venue is proper in this Division and District because the purported events giving
rise to Plaintiff’s claims occurred here. See Dkt. No. 1 at 4-8 (describing events and
omissions occurring in Cameron County, Texas); 28 U.S.C. § 1391(b)(2) (noting that a
civil action may be brought in the judicial district where “a substantial part of the events
or omissions giving rise to the claims occurred”). The Court has federal question subject
matter jurisdiction over Plaintiff’s claims alleging violations of 42 U.S.C. § 1983. See Dkt.
No. 1 at 8-9; 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States.”).

II. Background and Procedural History
This is a Fourth Amendment unreasonable seizure case brought under 42 U.S.C.
§ 1983 arising out of a police chase and shooting that resulted in the death of Mark
Anthony Galvan. Dkt. No. 1 at 4-8. On June 17, 2019 at 1:37 a.m., in response to a call
regarding an assault allegation, Officer Mario Alvarado pulled over a vehicle Galvan was
driving on Medical Street in Brownsville, Texas. Dkt. No. 12-1 at 13. Galvan stated to
Alvarado that he had argued with his girlfriend and left her residence. Dkt. No. 1 at 4.
Galvan failed to produce his driver license upon request. Id. Alvarado subsequently asked
Galvan to get out of his vehicle five times. Id. Galvan did not comply; rather, he shifted
his vehicle’s gear and fled from Alvarado at a high rate of speed. Id.
Sergeant John Jones and Officer Celeste Rivera joined Alvarado, and the officers
pursued Galvan to the dead end of the same street, after which Alvarado exited his patrol
vehicle and demanded that Galvan stop his vehicle. Id. at 5. Galvan then turned his

vehicle around and, seeing that the officers’ patrol vehicles had blocked in his vehicle,
drove toward Alvarado. Id. Galvan then drove onto the front lawn of a residential
property. Id. Alvarado then attempted to open the driver’s door of Galvan’s vehicle. Id.
Jones advised Alvarado to not stand in front of Galvan’s vehicle. Id.
While still on the lawn, Galvan accelerated forward and turned left,1 and all three
officers then discharged their weapons at Galvan. Id. Galvan’s vehicle then struck
Rivera’s patrol vehicle and came to a standstill. Id. Galvan raised his hands in the air,
and the officers stopped shooting. Id. at 6. However, Galvan then lowered his hands and
drove into Rivera’s patrol vehicle a second time, and Alvarado and Jones then discharged
their weapons at Galvan again. Id. Galvan then accelerated and drove his vehicle away
from the scene, scraping Jones’ patrol vehicle in the process. Id. at 6-7. Alvarado pursued

Galvan onto Boca Chica Boulevard in an eastward direction and then discovered that
Galvan had crashed into a palm tree. Id. at 7. Alvarado called emergency medical
services, and later that day, Galvan died from the gunshot wounds. Id. at 8.
On June 14, 2021, Plaintiff filed her Complaint, in which she asserts the following
claims:2 (a) § 1983 excessive force claim under the Fourth Amendment against City

1 Presumably, Galvan turned left in an attempt to drive back onto the street in an effort to flee.
2 Plaintiff sets forth her claims in three sections, the first of which contains four claims, the second of which
contains one claim, and the third of which contains two claims. Dkt. No. 1 at 8-9. For clarity, the Court
reorganizes Plaintiff’s claims.
Defendants; (b) § 1983 excessive force claim under the Fourth Amendment against
Individual Defendants; (c) § 1983 excessive force claim under the Fourteenth Amendment
against City Defendants; (d) § 1983 excessive force claim under the Fourteenth
Amendment against Individual Defendants; (e) § 1983 family unit destruction claim
under the Fourteenth Amendment against all Defendants; (f) wrongful death claim

against all Defendants; and (g) survival claim against all Defendants. Dkt. No. 1 at 8-9.
On July 2, 2021, Defendants filed the Motions. Dkt. Nos. 8, 9. Defendants did not
move to dismiss Plaintiff’s claims involving allegations of wrongful death and survival of
cause of action.3 On July 23, 2021, Plaintiff filed a joint response to both Motions. Dkt.
No. 12. On August 2, 2021, Defendants filed replies. Dkt. Nos. 13, 14.

III. Legal Standards
A. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a cause of action
if the plaintiff fails “to state a claim upon which relief can be granted.” FED. R. CIV. P.
12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v.

Iqbal, 556 U.S. 662, 678-80 (2009), the Supreme Court found that Rule 12(b)(6) must be
read in conjunction with Rule 8(a). Richter v. Nationstar Mortgage, LLC, Civil Action
No. H–17–2021, 2017 WL 4155477, at *1 (S.D. Tex., 2017). Rule 8(a) requires “a short
and plain statement of the claim showing that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(2). To withstand a Rule 12(b)(6) challenge, then, a complaint must contain

3 Although not specified in Complaint, the Court assumes without deciding, that Plaintiff is attempting to
plead a claim under §§ 71.002 and 71.021 of the Texas Civil Practice & Remedies Code.
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
544, 570. This means that a complaint, taken as a whole, “must contain either direct or
inferential allegations respecting all the material elements necessary to sustain recovery
under some viable legal theory[.]” Id. at 562.
“[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. 544, 555 (citing Papasan v. Allain, 478
U.S. 265, 286 (2007)). “Factual allegations must be enough to raise a right to relief above
the speculative level ... on the assumption that all of the allegations in the complaint are
true (even if doubtful in fact).” Id. In Twombly, the Supreme Court stressed that it did
not impose a probability standard at the pleading stage; however, an allegation of a mere
possibility of relief does not satisfy the requirement of Rule 8(a)(2) that the “plain
statement” of a claim include factual “allegations plausibly suggesting (not merely
consistent with)” an entitlement to relief. Id. at 557. A court also need not accept as true
“conclusory allegations, unwarranted factual inferences, or legal conclusions[.]” Plotkin
v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citing Southland Sec. Corp. v.

INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
B. 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress [. . .]
42 U.S.C. § 1983. Section 1983 does not create substantive rights. Instead, it creates a
private right of action to redress violations of federal law, such as the Fourth Amendment
or Fourteenth Amendment, perpetrated by those acting under color of state law. Colson
v. Grohman, 174 F.3d 498, 504 n. 2 (5th Cir. 1999). A plaintiff seeking relief under § 1983
must show the following: 1) the conduct complained of was committed under color of

state law; and 2) the conduct deprived the plaintiff of rights secured by the Constitution
or laws of the United States. See Hernandez v. Maxwell, 905 F.2d 94, 95 (5th Cir. 1990)
(citing Daniel v. Ferguson, 839 F.2d 1124, 1128 (5th Cir. 1998)). In interpreting the
phrase “under color of . . . State [law,]”, the United States Supreme Court has explained
as follows:
[A]ccording to the traditional definition of “acting under color of state law,”
the defendant in a § 1983 action must have “exercised power ‘possessed by
virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L. Ed.
1368 (1941)). In other words, “the deprivation must be caused by the
exercise of some right or privilege created by the [s]tate or by a rule of
conduct imposed by the [s]tate or by a person for whom the State is
responsible.” Lugar v. Edmundson Oil Co., 457 U.S. 922, 936, 102 S.Ct.
2744, 73 L.Ed.2d 482 (1982)....“State employment is generally sufficient to
render the defendant a state actor.” West, 487 U.S. at 49.

Boyter v. Brazos Cnty., No. H-09-4132, 2011 WL 1157455, at *7 (S.D. Tex., Mar. 28, 2011).
C. Municipal Liability Under Monell
There is a distinction between Fourth Amendment claims made against
government officials for actions taken under color of state law and Fourth Amendment
claims made against government entities. While Fourth Amendment claims filed against
government officials are deemed individual liability claims, § 1983 suits filed against
those same individuals but asserting liability against their government employer are
deemed official capacity suits. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
Provided there has been sufficient due process, a lawsuit against government officials in
their official capacity are “in all respects other than name, to be treated as a suit against
the entity[.]” Id. at 166.
To prevail on a § 1983 excessive force claim under the Fourth Amendment against
a municipality, or against both government officials and their municipality employer, “the

plaintiff must show that [1] there was either an official policy or an unofficial custom, [2]
adopted by the municipality, [3] that was the moving force behind the claimed
constitutional violation.” Duvall v. Dallas Cnty, Tex., 631 F.3d 203, 209 (5th Cir. 2011)
(citing Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 694 (1978)). In
Monell v. Dep’t of Soc. Serv. of City of New York, the Court held that a local government
cannot be sued under § 1983 for an injury inflicted solely by its employees. Monell, 436
U.S. at 694. In that case, employees of the Department of Social Services and the Board
of Education of the City of New York filed suit against the Department and its
Commissioner, the Board and its Chancellor, and the City of New York and its mayor. Id.
at 660-61. The employees alleged that the Board and the Department compelled pregnant
employees to take unpaid leaves of absence before such leaves were medically necessary.

Id. The Second Circuit Court of Appeals affirmed the district court’s holding that the
municipality was immune from the plaintiffs’ § 1983 claims. Id. at 662.
The Supreme Court found that, while municipalities could not be held liable under
a respondeat superior theory, Congress intended municipalities to be included among
those persons to whom § 1983 applies. Id. at 690-91. In finding that the municipal entity
defendants’ immunity defense failed and that the plaintiffs could therefore sue the
municipal entity defendants directly, the Court held that “it is when execution of a
government’s policy or custom . . . inflicts the injury that the government as an entity is
responsible under § 1983” and that “[s]ince this case unquestionably involves official
policy as the moving force of the constitutional violation . . . we must reverse the judgment
below.” Id. at 694-695.
Municipalities “are not vicariously liable under § 1983 for their employees'
actions.” Connick v. Thompson, 563 U.S. 51, 60 (2011). An action which is not “‘pursuant

to official municipal policy’” does not create liability for a municipality. Id. at 60 (quoting
Monell, 436 U.S. at 691). An action is pursuant to official policy if it is a decision of a
government’s lawmakers, an act of its policymaking officials, or in line with “practices so
persistent and widespread as to practically have the force of law.” Id. at 61.
Liability can be created, “[i]n limited circumstances,” for a government’s failure to
train employees concerning “their legal duty to avoid violating citizens' rights.” Id. This
is when a government entity’s culpability is “most tenuous,” and an entity is only liable if
it has been deliberately indifferent to its citizens’ rights. Id. For a Fourth Amendment
§ 1983 claim based specifically on a failure to train, the Fifth Circuit requires proof
concerning “(1) whether there was an inadequacy in the City’s training policy; (2) whether
the City was deliberately indifferent in its adoption of that policy; or (3) whether the

inadequate training policy directly caused the constitutional violation allegedly
suffered[.]” Darden v. City of Fort Worth, Texas, 808 F. App'x 246, 249 (5th Cir. 2020).
A § 1983 claim against a municipality based on a failure to train typically requires
a showing of a “pattern of similar constitutional violations by untrained employees.” Id.
at 62. However, “in a narrow range of cases,” there are violations of constitutional rights
which are so predictable that a previous pattern is not needed. Bd. of Cty. Comm'rs of
Bryan Cty., Okl. v. Brown, 520 U.S. 397, 409 (1997). For instance, arming police officers
with firearms and requiring them to arrest fleeing felons makes “the need to train officers
in the constitutional limitations on the use of deadly force []‘so obvious’” that failure to
do so creates liability. City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10 (1989).
D. Individual Liability and Qualified Immunity

In response to a § 1983 excessive force claim under the Fourth Amendment against
municipal employees in their individual capacities, the municipal employees may assert
a qualified immunity defense. Qualified immunity “shield[s] [government agents] 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.”
Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)) (alterations in original). This immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). “Qualified immunity . . . should be addressed by a district court in the early stages
of litigation.” Murray v. Earle, 2008 WL 1744257, at *4 (5th Cir. Apr. 11, 2008) (per
curiam) (unpublished opinion) (citing Siegert v. Gilley, 500 U.S. 226, 231 (1991).
In deciding a dispositive motion that raises a qualified immunity defense, a court
must determine: (1) whether the facts alleged are sufficient to make out a violation of a

constitutional right; and (2) whether the right at issue was clearly established at the time
of the government official's alleged misconduct. See Pearson v. Callahan, 555 U.S. 223,
236 (2009); see also Bradyn S. v. Waxahachie Indep. Sch. Dist., 407 F. Supp. 3d 612,
622–23 (N.D. Tex. 2019) (in which the district court stated a plaintiff’s burden to defeat
a defendant’s qualified immunity defense raised in a motion to dismiss). “To defeat or
overcome an official's qualified immunity defense, a plaintiff's complaint must allege
specific facts that, if proved, would show that the official's conduct violated clearly
established constitutional or statutory rights.” Bradyn, 407 F.Supp.3d at 624 (N.D. Tex.
2019); May v. City of Arlington, Texas, 398 F.Supp.2d 68, 85 (N.D. Tex. 2019).
For a right to be clearly established, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L.Ed. 2d 523 (1987).

Although this does not mean that “a case directly on point” is required, “existing
precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L.Ed. 2d 1149 (2011). “The
central concept is that of ‘fair warning’: The law can be clearly established ‘despite notable
factual distinctions between the precedents relied on and the cases then before the Court,
so long as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.’” Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013)
(quoting Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc)). What is
“required to overcome a claim of qualified immunity ... [is] not that the specific police
action [has] been held unlawful, but only that it be apparent ‘in the light of pre-existing
law’ that such action would be unlawful.” Wagner v. Bay City, 227 F.3d 316, 323 (5th Cir.

2000) (citing Anderson, 483 U.S. at 640).

IV. Discussion
The Defendants have made numerous arguments in moving for the dismissal of
most of Plaintiff’s claims for failure to state a claim upon which relief can be granted and
further argue that Individual Defendants are entitled to qualified immunity. The Court
addresses each argument pertaining to the dismissal of a particular type of claim without
regard to whether the argument was raised by a particular Defendant. A number of
identical issues pertain to multiple Defendants, and Plaintiffs have been given sufficient
opportunity to address each argument.
A. Plaintiff’s § 1983 Excessive Force Claim Under the Fourth
Amendment Against City Defendants (Monell Claim)

For the reasons below, Plaintiff’s Fourth Amendment claim against City
Defendants fails. Lawsuits against government officials in their official capacity assert
liability against their employer and are “in all respects other than name, to be treated as
a suit against [their employer.]” Graham, 473 U.S. at 165. Thus, the Court must
determine whether Plaintiff’s Fourth Amendment claim against City Defendants states a
claim for which relief can be provided.
In her Complaint, Plaintiff alleges Brownsville is liable for the death of Galvan due
to deliberate indifference in its “policies, procedures, protocols and customs []including
but not limited to inadequate training and discipline[.]” Dkt. No. 1 at 2-3. Specifically,
Plaintiff alleges the following:
Firing gunshots at a moving vehicle is unreasonable, violates common
sense, and goes against basic police protocols and procedures. Not only does
such a tactic expose the public to the possibility of being shot, but in the
event the driver is killed or incapacitated, the police will have then
successfully turned the vehicle into an unguided aimless missile, which
would then further expose the public to being run over.

Id. at 6. Plaintiff also alleges the following:

Utilizing deadly force on a suspect who is attempting to flee is excessive,
since it is more force than is reasonably necessary to effectuate an arrest.

. . .

These officers fired their weapons as a direct result of Brownsville’s
deficient training, supervision, and discipline, or because they were trained
to do so. Such deficient training and/or policies demonstrate deliberate
indifference to Mr. Galvan’s rights and directly caused his death.

Id. at 8-9.
In their Motions, Defendants assert that Plaintiff fails to allege a specific policy or
custom of Brownsville of using unconstitutional excessive force in the seizure of suspects.
Dkt. No. 8 at 4. Defendants also assert that Plaintiff has failed to allege any facts in
support of her Fourth Amendment claim based on Brownsville’s purported failures to
discipline and supervise its police officers. Dkt No. 8 at 4.

Defendants also assert that Plaintiff fails to plead sufficient facts showing that the
training procedures of the Brownsville Police Department were inadequate or that it was
deliberately indifferent in adopting the training policy. Dkt. No. 8 at 5-6. Defendants
further argue that Plaintiff fails to identify a specific training program or specific
inadequacies in the officers’ training. Dkt. No. 8 at 6. Defendants also argue that Plaintiff
fails to allege that Brownsville acted indifferently or allege any past purported
unconstitutional uses of unreasonable force. Dkt. No. 8 at 6.
In her response, Plaintiff asserts that her Complaint should survive City
Defendants’ Motion because she alleges therein that the officers, in accordance with their
training by the Brownsville Police Department, used unreasonable force by firing their
weapons on Galvan when he attempted to flee arrest. Dkt. No. 1 at 8-9; Dkt. No. 12 at 13.

Plaintiff also alleges that Brownsville’s deficient training, supervision, and discipline
caused the shooting. Dkt. No. 1 at 8-9; Dkt. No. 12 at 13.
Pursuant to the Fourth Amendment, the “right of the people to be secure in their
persons . . . against unreasonable searches and seizures, shall not be violated[.]” U.S.
Const. Amend. IV. “Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects . . . any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights . . . secured by the
Constitution and laws, shall be liable to the party injured[.]” 42 U.S.C. § 1983.
To prevail on her Fourth Amendment claim against City Defendants, Plaintiff must
identify the following: (1) an official policy or custom, of which (2) a policymaker can be
charged with actual or constructive knowledge, and (3) a constitutional violation whose
“moving force” is that policy or custom. Valle v. City of Houston, 613 F.3d 536, 541-42
(5th Cir. 2010) (citing Pineda v. City of Houston, 291 U.S. F.3d 325, 328 (5th Cir. 2002);

Trammell v. Fruge, 868 F.3d 332, 344 (5th Cir. 2017); see also Duvall v. Dallas Cnty,
Tex., 631 F.3d 203, 209 (5th Cir. 2011) (citing Monell v. Dep't of Soc. Serv. of City of New
York, 436 U.S. 658, 694 (1978); see also Pierre v. Oginni, No. 3:17-CV-0259, 2018 WL
4220848, at *3 (S.D. Tex. Sept. 5, 2018) (in which the Court granted the § 1983
defendant’s motion to dismiss based on the plaintiff’s failure to articulate facts supporting
each element of his claim). Here, Plaintiff fails to allege any specific facts that show that
the officers’ use of deadly force was a constitutional violation or that it was carried out
due to a specific policy of Brownsville. Thus, to the extent Plaintiff asserts a Fourth
Amendment claim based on Brownsville’s alleged failure to discipline or supervise, such
claim fails.
To prevail on her Fourth Amendment claim based specifically on a failure to train,

Plaintiff must show the following: (1) the training procedures of the municipality’s
policymaker were inadequate; (2) the municipality’s policymaker was deliberately
indifferent in adopting the training policy; and (3) the inadequate training policy directly
caused the plaintiff’s injury. Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996); Trammell,
868 F.3d at 344-45 (5th Cir. 2017).
Plaintiff cites Sanchez v. Gomez and Brown v. Bryan County, OK in support of her
argument that her Complaint states a claim for relief. However, in Sanchez, the district
court denied the municipality’s motion to dismiss because the plaintiff in that case had
“pleaded facts suggesting the need [for specific training] was apparent long ago” and
“highlighted nine different occasions over the last four years where [the municipality’s
police officers] appear to be utterly unprepared for various encounters with individuals
suffering from mental health crises.” Sanchez v. Gomez, 283 F.Supp.3d 524, 547 (W.D.
Tex. 2017). The municipality in Sanchez is clearly distinguishable from Brownsville

because Plaintiff has not alleged a specific pattern of incidents wherein Brownsville police
officers appear to be obviously unprepared for encounters with fleeing suspect drivers.
In Brown, the Fifth Circuit affirmed a jury verdict for a plaintiff arrestee on her
§ 1983 claim against a municipality based on a failure to train. Brown v. Bryan County,
OK, 219 F.3d 450, 458 (5th Cir. 2000). In that case, a police officer of the defendant
municipality pulled over the vehicle in which the arrestee was riding and removed the
arrestee, allegedly using excessive force to do so. Id. at 454. The arrestee did not attempt
to flee. Id. The Fifth Circuit found that the jury could have reasonably determined that
the defendant police department’s decision to not provide any mandatory law
enforcement training to any of its officers could have been the moving force behind the
newly-employed police officer’s use of unreasonable force. Id. at 458. The Brown

plaintiff is distinguishable from Galvan because Galvan did not stop his vehicle; rather,
he attempted to flee twice.
Plaintiff has not pleaded a pattern of similar constitutional violations, as is
“‘ordinarily necessary’” to state a claim against a government entity for a failure to train.
Connick, 563 U.S. at 62 (quoting Bryan Cty., 520 U.S. at 409). Plaintiff therefore relies
on “‘single-incident’” liability, which requires showing that failure to train will “so
obviously” cause government officials to “make wrong decisions that failing to train them
amounts to ‘a decision by the city itself to violate the Constitution.’” Connick, 563 U.S. at
71 (quoting Canton, 489 U.S. at 395). The Supreme Court has held that the need for
training regarding the use of deadly force is obvious. Canton, 489 U.S. at 390 n.10.
However, proof that an “injury or accident could have been avoided if an officer had had
better or more training” is insufficient to prevail on an excessive force claim against a
government entity. Canton, 489 U.S. at 391. Plaintiff has not pleaded facts specific

enough to show that the purported failure to train “so obviously” caused the officers to
make allegedly wrong decisions. Connick, 563 U.S. at 71.
Moreover, it is undisputed that Jones advised Alvarado to not reach his hand into
Galvan’s vehicle while Galvan was in the process of fleeing. Dkt. No. 1 at 4. Jones also
advised Alvarado to not stand in front of the vehicle. Id. Thus, Jones’ statements
constitute at least some evidence of training with respect to confronting suspects fleeing
in a vehicle.
Plaintiff asserts that Brownsville should have trained the officers to never shoot at
fleeing felons or moving vehicles. Dkt. No. 1 at 6 and 8. However, as a matter of law,
neither of these assertions is unconstitutional per se. Mullenix v. Luna, 577 U.S. 7, 15
(2015) (where the Supreme Court stated that it had “never found the use of deadly force

in connection with a dangerous car chase to violate the Fourth Amendment[.]”)
Plaintiff’s Complaint lacks specific details concerning the proximity of the vehicle
to the officers and the dangers the officers faced. Dkt. No. 1 at 5-6. However, Galvan
clearly fled from the initial traffic stop, drove to a dead end, and then drove erratically
near the officers who were on foot. Id. Galvan clearly then drove onto a residential front
lawn, and despite that Alvarado placed his hand on the driver’s side door handle, Galvan
accelerated his vehicle away from the officers and toward an area where other citizens
may have been located. Id. Thus, as Plaintiff has not specifically pleaded facts showing
that Brownsville’s training policy was inadequate, that it was deliberately indifferent in
adopting the training policy, or that the policy directly caused Plaintiff’s injury, Plaintiff’s
Fourth Amendment claim based on Brownsville’s alleged failure to train fails.
B. Plaintiff’s § 1983 Excessive Force Claim Under the Fourth
Amendment Against Individual Defendants

Plaintiff’s Fourth Amendment claim against Individual Defendants also fails.
Plaintiff alleges that Individual Defendants’ use of deadly force against a suspect who
attempted to flee is excessive because it is more force than reasonably necessary to
effectuate an arrest. Dkt. No. 1 at 8. Individual Defendants assert the defense of qualified
immunity in their Motion to Dismiss; they assert that Plaintiff fails to plead sufficient
facts regarding each Officer’s conduct that, if true, constitute a violation of a clearly
established constitutional right.4 Dkt. No. 9 at 3. Individual Defendants further cite
multiple Supreme Court opinions, including Plumhoff v. Rickard and Mullenix v. Luna,
in which the Court upheld the qualified immunity of police officers who fired their
weapons at fleeing vehicles. Dkt. No. 9 at 7.
In response, Plaintiff asserts that “the complaint permits the reasonable inference
that the officers intentionally got in the way of a fleeing vehicle . . . prior to using deadly

4 Although Individual Defendants brief their arguments in the context of their contention that Plaintiff has
failed to state a claim on which relief can be granted, the Court concludes that it should first address whether
Individual Defendants are entitled to qualified immunity. This is because “[q]ualified immunity . . . should
be addressed by a district court in the early stages of litigation.” Murray v. Earle, 2008 WL 1744257, at *4
(5th Cir. Apr. 11, 2008) (per curiam) (unpublished opinion) (citing Siegert v. Gilley, 500 U.S. 226, 231
(1991). “One of the most salient benefits of qualified immunity is protection from pretrial discovery, which
is costly, time-consuming, and intrusive.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (citing Helton
v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986)). In this circuit, it is established that “[d]iscovery . . . must
not proceed until the district court first finds that the plaintiff’s pleadings assert facts which, if true, would
overcome the defense of qualified immunity.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir.
1995). If Individual Defendants are entitled to qualified immunity, the Court must dismiss Plaintiff’s claims
against them without reaching the other grounds of their Motion. If Individual Defendants are entitled to
qualified immunity as to some but not all claims, the Court can narrow its analysis of the Motion to the
claims for which Individual Defendants are not entitled to qualified immunity.
force.” Dkt. No. 12 at 15. Plaintiff also cites several distinguishable cases in which officers
placed themselves in danger with respect to the § 1983 plaintiff’s moving vehicle. Dkt.
No. 12 at 12-13 (citing Smith v. City of Killeen, 2018 WL 1199949, at *8 (W.D. Tex. Mar.
8, 2018) and Edmond v. City of New Orleans, 20 F.3d 1170, 1170 (5th Cir. 1994)).
Pursuant to the Fourth Amendment, the “right of the people to be secure in their

persons . . . against unreasonable searches and seizures, shall not be violated[.]” U.S.
Const. Amend. IV. “Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects . . . any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights . . . secured by the
Constitution and laws, shall be liable to the party injured[.]” 42 U.S.C. § 1983.
Individual Defendants invoked qualified immunity and have moved to dismiss
Plaintiff’s § 1983 claims; jurisprudence in this area is well settled. “[G]overnment officials
performing discretionary functions generally are shielded 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.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Qualified immunity applies to state officials sued for constitutional

violations under § 1983. See id. at 818 n. 30 (citing Butz v. Economou, 438 U.S. 478, 504
(1978)); Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). “When a defendant invokes
qualified immunity, the burden shifts to the plaintiff to demonstrate the inapplicability of
the defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
In ruling on a qualified immunity defense, the Court must determine the following:
(1) whether the undisputed and disputed facts, accepting the plaintiff’s version of the
disputed facts as true, constitute a violation of a constitutional right; and (2) whether the
defendant’s conduct was objectively reasonable under established law. Carroll v.
Ellington, 800 F.3d 154, 169 (5th Cir. 2015). Qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.” Pratt v. Harris Cty., Tex.,
822 F.3d 174, 181 (5th Cir. 2016). Further, “[i]f officers of reasonable competence could
disagree as to whether the plaintiff’s rights were violated, the officer’s qualified immunity
remains intact.” Hanks, 853 F.3d at 744. A court may address the two prongs of the

qualified immunity analysis in any sequence. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
In Plumhoff v. Rickard, the Supreme Court held that three police officers who used
deadly force to terminate a vehicle chase acted reasonably, on an objective basis, when
they fired a total of fifteen shots into a vehicle driven by a suspect who attempted to flee
after failing to produce his driver’s license during a traffic stop. Plumhoff v. Rickard; 572
U.S. 765, 769-70, 777 (2012). After the Plumhoff driver initially fled, his vehicle collided
with a police car and came temporarily to a standstill. Id. at 770. He then placed his car
into reverse, made a one hundred eighty-degree arc, and began driving away in the
opposite direction. Id. The police officers then fired their weapons, which resulted in the
driver crashing into a building and dying. Id. Significantly, the Supreme Court found

that “[u]nder the circumstances at the moment when the shots were fired, all that a
reasonable police officer could have concluded was that [the driver] was intent on
resuming his flight[. . .]” and that “[the driver’s] conduct even after the shots were fired—
as noted, he managed to drive away despite the efforts of the police to block his path—
underscores the point.” Id. at 777.
In Brosseau v. Haugen, the Supreme Court held that a police officer, who used
deadly force to prevent a suspect from fleeing arrest in a vehicle, did not violate the
suspect’s Fourth Amendment right. Brosseau v. Haugen, 543 U.S. 194, 196-97, 201
(2004). Significantly, the Supreme Court found that, at the time of the shooting, the
police officer feared for the safety of “any other citizens who might be in the area.” Id. at
197 (emphasis added).
In this case, none of the Individual Defendants intentionally placed themselves in
front of Galvan’s fleeing vehicle. Moreover, Jones advised Alvarado to not reach his hand

into Galvan’s vehicle while Galvan was in the process of fleeing. Dkt. No. 1 at 4. Jones
also advised Alvarado to not stand in front of the vehicle. Id. Thus, none of the Individual
Defendants had intentionally placed themselves in danger at the time they fired their
weapons.
Plaintiff fails to show that the Individual Defendants acted unreasonably or that
the facts constitute a violation of a clearly established constitutional right. Individual
Defendants are analogous to the three Plumhoff police officers because both sets of
officers fired at a driver who, after failing to produce a license at a traffic stop, initially
fleeing, and coming to a temporary standstill, accelerated his vehicle in an attempt to
continue fleeing. Dkt. No. 1 at 5; Plumhoff, 572 U.S. at 770. The circumstance faced by
Individual Defendants is also analogous to the one faced by the Brosseau officer because,

at the time of the shooting, the driver had already attempted to flee at a high rate of speed
and would attempt to continue to flee toward an area in which other citizens might be
located. Thus, like the Supreme Court in Plumhoff and Brosseau, this Court finds that
Plaintiff has failed to show that Individual Defendants acted unreasonably under
established law or that the facts constitute a violation of Galvan’s Fourth Amendment
rights.
C. Plaintiff’s § 1983 Claims Under the Fourteenth Amendment

Plaintiff also asserts the following § 1983 claims alleging: 1) excessive force under
the Fourteenth Amendment against City Defendants; 2) excessive force under the
Fourteenth Amendment against Individual Defendants; and 3) family unit destruction
under the Fourteenth Amendment against all Defendants. Dkt. No. 1 at 8, 9. Critically,
Plaintiff does not plead that Galvan was a pretrial detainee. Dkt. No. 1 at 4-8. The Fourth
Amendment, rather than the Fourteenth Amendment, is the appropriate standard under
which to analyze excessive force allegations in which the plaintiff is not a pretrial detainee.
Brothers v. Klevenhagen, 28 F.3d 452, 456 (5th Cir. 1994). The Supreme Court has held
that “[w]here a particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government behavior, ‘that
Amendment, not the more generalized notion of “substantive due process,” must be the
guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989)). Thus, all three of Plaintiff’s § 1983 claims
based on alleged Fourteenth Amendment violations fail.
D. City Defendants’ Request for Dismissal of Punitive Damages
Request

Municipalities are immune from the imposition of punitive damages. Skyy v. City
of Arlington, 712 Fed. Appx. 396, 401 (5th Cir. 2017). City Defendants request that the
Court deny Plaintiff’s punitive damages request. Dkt. No. 8 at 10. Plaintiff does not object
to this request. Thus, Plaintiff’s request for punitive damages on all claims asserted in the
Complaint against City Defendants should be denied.
E. Individual Defendants’ Request for Dismissal of Punitive
Damages Request

Individual Defendants request that the Court deny Plaintiff’s request for punitive
damages on all claims. Dkt. No. 9 at 9-10. As set forth above, Plaintiff’s Fourth
Amendment and Fourteenth Amendment claims fail. Thus, Plaintiff’s request for
punitive damages on her § 1983 Fourth and Fourteenth Amendment claims against
Individual Defendants should be denied.

V. Recommendation
For the reasons above, it is recommended that the Court: 1) GRANT both Motions;
2) DISMISS WITH PREJUDICE (a) Plaintiff’s § 1983 excessive force claim under the
Fourth Amendment against City Defendants, (b) Plaintiff’s § 1983 excessive force claim
under the Fourth Amendment against Individual Defendants, (c) Plaintiff’s § 1983
excessive force claim under the Fourteenth Amendment against City Defendants, (d)
Plaintiff’s § 1983 excessive force claim under the Fourteenth Amendment against
Individual Defendants, and (e) Plaintiff’s § 1983 family unit destruction claim under the
Fourteenth Amendment against all Defendants; and 3) DENY (a) Plaintiff’s request for
punitive damages on all claims against City Defendants, and (b) Plaintiff’s request for
punitive damages on her §1983 Fourth and Fourteenth Amendment claims against
Individual Defendants.

VI. Notice to Parties

A party’s failure to file written objections to the proposed findings, conclusion, and
recommendation in a Magistrate Judge’s Report and Recommendation within fourteen
days after being served with a copy shall bar that party, except upon grounds of plain
error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court, provided that the party has been served with
notice that such consequences will result from failure to object. Douglass v. United Servs.
Auto. Ass'n, 79 F.3d 1415 (5 Cir. 1996) (en banc), superseded by statute on other
grounds; 28 U.S.C. § 636(b)(1).

SIGNED on this 22nd day of September, 2021, at Brownsville, Texas.

Igr cio/Torteya, III
UnitedStates Magistrate Judge

22/22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10674880. Public record. Not legal advice.