Baugh v. Ragnow

UNITED STATES DISTRICT COURT March 31, 2022

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

VICTORIA DIVISION

CARL BAUGH, §

§

Plaintiff, §

§

v. § Civil Action No. 6:20-CV-00007

§

CITY OF PORT LAVACA, TEXAS §

and individually, COLIN RANGNOW, §

ERIC SALLES, JUSTIN KLARE, §

and JOHN AND JANE DOES, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiffs Carl and Melissa Baugh filed this lawsuit against Chief of Police Colin

Rangnow, Lieutenant Eric Salles, and Sergeant Justin Klare (the “Officers”), and the City

of Port Lavaca, Texas (the “City”) (collectively, the “Defendants”), raising claims under

42 U.S.C. § 1983 as well as Texas state law claims. (Dkt. No. 1). The Defendants filed a

Motion to Dismiss Based on Lack of Standing and Motion for Final Summary Judgment.

(Dkt. No. 29). The Baughs did not respond. For the following reasons, the Court

GRANTS the Defendants’ Motion.

I. BACKGROUND

The facts of this case, as described by the Defendants,1 are as follows. The Baughs’

neighbor, Jerry Shelton, hired movers to transport a mobile home onto his property on

1 When the nonmovant does not file a response to the motion for summary judgment, the

court may accept as undisputed the statement of facts in the motion for summary judgment.

Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); Morgan v. Fed. Express Corp., 114 F. Supp.

3d 434, 437 (S.D. Tex. 2015) (collecting cases).

September 28, 2017. (Id. at ¶ 2). This required the use of a road abutting the Baughs’

property. The status of the road was the subject of litigation at that time. (Id. at ¶ 2 n.2).

Carl Baugh claimed the road was a private drive that he owned, not a public easement.

(Id.). Because Carl Baugh had previously attempted to prevent access to the road, one of

the movers requested the presence of police officers while they moved the mobile home

onto Shelton’s property. (Id. at ¶ 2). Lieutenant Salles and Officer Arreguin were

dispatched to the scene. (Id.).

When the movers began transporting the mobile home, Carl Baugh expressed his

disapproval. Carl Baugh started by recording the events on his phone and at times stood

close enough to the movers that he was in the path of the mobile home being transported.

(Id. at ¶¶ 3–4). Lieutenant Salles attempted to escort Carl Baugh out of the mobile home’s

path, but Carl Baugh pushed his hands away. (Id. at ¶ 3). At one point, the movers

removed a survey stake from the ground so it would not be damaged by the mobile home.

(Id. at ¶ 4). This caused Carl Baugh to shout and attempt to replace the stake, again

putting him in the path of the mobile home. (Id.). Lieutenant Salles attempted to escort

Carl Baugh out of the way once again, but Carl Baugh refused to comply and pushed

Lieutenant Salles. (Id.).

Lieutenant Salles directed Carl Baugh to put his hands behind his back, but Carl

Baugh refused to comply and physically resisted. (Id.). Because of his continued

resistance, Officer Arreguin and Lieutenant Salles placed Carl Baugh on the ground and

handcuffed him, all while Carl Baugh continued to physically resist.2 (Id.); (Dkt. No. 30-

7). It appears that Melissa Baugh was a bystander to these events, though it is unclear

how, if at all, she was involved. See (Dkt. No. 29 at ¶ 4); (Dkt. No. 1 at ¶ 32). Chief

Rangnow arrived on the scene after Carl Baugh had already been handcuffed. (Dkt. No.

29 at ¶ 4); (Dkt. No. 30-10 at ¶ 6). Chief Rangnow asked Lieutenant Salles about the events

that had transpired and determined there was nothing more for him to do at that time.

(Dkt. No. 30-10 at ¶ 6). Carl Baugh was handcuffed for approximately thirty minutes.3

(Dkt. No. 29 at ¶ 4).

II. RULE 12(B)(1) MOTION TO DISMISS

The Defendants devote a portion of their Motion to arguing that Melissa Baugh’s

claims should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure

for lack of standing. (Dkt. No. 29 at ¶¶ 7–9). The Clerk of Court previously dismissed

Melissa Baugh from this action on March 31, 2020 because Melissa Baugh was not listed

in the Complaint caption. See (Dkt. No. 1 at 1). That said, Melissa Baugh is listed as a

plaintiff in the body of the Complaint. (Id. at ¶ 6). The Baughs have not objected to

2 The Complaint states that it was Officer Klare who assisted Lieutenant Salles. (Dkt. No.

1 at ¶ 34). But as stated in his declaration, Officer Klare was off duty and did not respond to the

scene on September 28, 2017. (Dkt. No. 29-6 at ¶ 7). Officer Arreguin is not a defendant in this

lawsuit. Additionally, the Complaint frequently references “Defendant Obregon.” (Dkt. No. 1 at

¶¶ 56, 66, 79). Obregon—whoever that may be—is also not named as a defendant in this case.

The Baughs have not explained who Obregon is or what relevance Obregon has to this case.

3 The Complaint additionally makes passing references to Carl Baugh sleeping in his

vehicle, being arrested for public intoxication, having his vehicle towed, and checking on the

condition of a relative. (Dkt. No. 1 at ¶¶ 56, 66, 72). It is entirely unclear based on the Complaint

what relevance these facts have to this lawsuit. Further, the facts alleged in the Complaint do not

constitute summary judgment evidence. Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010)

(“[T]he nonmoving party cannot survive a summary judgment motion by resting on the mere

allegations of its pleadings.”).

Melissa Baugh’s termination from the docket, but because there has been no formal

request or ruling on the matter, the Court addresses the Defendants’ Rule 12(b)(1) motion

to dismiss Melissa Baugh’s claims.

It is axiomatic that, to have standing, a “plaintiff must have suffered an injury in

fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351

(1992) (quotations omitted). To claim a violation of her constitutional rights under

Section 1983, Melissa Baugh is required “to prove some violation of [her] personal rights.”

Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir. 1986); cf. Barker v. Halliburton Co., 645 F.3d

297, 300 (5th Cir. 2011) (“A third party may not assert a civil rights claim based on the

civil rights violations of another individual.”). The Court finds that Melissa Baugh has

not demonstrated a violation of her personal constitutional rights.4 See Coon, 780 F.2d at

1160–61.

Likewise, Melissa Baugh has not suffered an injury with respect to the state law

claims raised in the Complaint. (Dkt. No. 1 at ¶¶ 73–84). The Baughs have not provided

any evidence that Melissa Baugh suffered an injury. Indeed, it is difficult to determine

how Melissa Baugh was involved in the events of this case. The Complaint’s only specific

factual mention of Melissa Baugh is that Carl Baugh “had [Melissa] go get the paperwork

proving the land was his[.]” (Id. at ¶ 32).

4 The Complaint begins by alleging that the Defendants infringed the Baughs’ right to

exclude others from their property. (Dkt. No. 1 at ¶¶ 1–3). But the Baughs state no cause of action

with respect to this allegation. The Court, therefore, does not decide Melissa Baugh’s standing to

raise such a claim.

The Court finds that Melissa Baugh has not suffered an injury in fact with respect

to the claims raised in the Complaint. See Lujan, 504 U.S. at 560, 112 S.Ct. at 2136.

Accordingly, the Court grants the Defendants’ Rule 12(b)(1) motion to dismiss Melissa

Baugh’s claims for lack of standing.

III. MOTION FOR SUMMARY JUDGMENT

A. LEGAL STANDARD

Summary judgment is appropriate when there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A material fact is one that might affect the outcome of the suit under governing

law,” and “a fact issue is genuine if the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d

605, 611 (5th Cir. 2018) (quotations omitted). The moving party “always bears the initial

responsibility of informing the district court of the basis for its motion,” and identifying

the record evidence “which it believes demonstrate[s] the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2253, 91 L.Ed.2d

265 (1986). “If the moving party fails to meet [its] initial burden, the motion [for summary

judgment] must be denied, regardless of the nonmovant’s response.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).

If the movant meets this burden, the nonmovant must then come forward with

specific facts showing there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d

538 (1986). The nonmovant must “go beyond the pleadings and by [the nonmovant’s]

own affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial.” Nola Spice Designs,

LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (citations omitted). “The

nonmovant must identify specific evidence in the record and articulate the precise

manner in which that evidence supports his or her claim.” Carr v. Air Line Pilots Ass’n,

Int’l, 866 F.3d 597, 601 (5th Cir. 2017) (per curiam) (cleaned up). “If the evidence is merely

colorable, or is not significantly probative,” summary judgment is appropriate. Parrish v.

Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019) (citation omitted).

In reviewing a motion for summary judgment, the district court must view the

evidence in the light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist.,

113 F.3d 528, 533 (5th Cir. 1997). This means that factual controversies are to be resolved

in the nonmovant’s favor, “but only when . . . both parties have submitted evidence of

contradictory facts.” Little, 37 F.3d at 1075.

B. DISCUSSION

1. Section 1983 Claims Against the Officers

Carl Baugh (hereinafter, “Baugh”) first raises several claims under 42 U.S.C.

§ 1983.5 To prevail under Section 1983, Baugh must show that he has been deprived of a

right secured by the Constitution or the laws of the United States by persons acting under

color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56

5 In addition to the claims addressed here, the Complaint makes passing references to the

deprivation of Baugh’s property rights. (Dkt. No. 1 at ¶¶ 1–3, 42). The Court need not address

inadequately developed arguments. See United States v. Stevens, 487 F.3d 232, 242 n.1 (5th Cir.

2007).

L.Ed.2d 185 (1978). Baugh alleges three constitutional violations by the Officers:

(1) excessive force; (2) “false arrest and/or false imprisonment”; and (3) malicious

prosecution. (Dkt. No. 1 at ¶¶ 44–57). Baugh raises these claims against each of the

Officers in their individual capacities and against the City on a municipal liability theory.

(Id. at ¶¶ 8, 10–12, 58–69). The Court addresses each claim in turn.

a. Excessive Force

Baugh claims that the Officers used excessive force against him in violation of the

Fourth Amendment at the time of his arrest. (Dkt. No. 1 at ¶ 44). The Officers contend

there is no genuine issue of material fact as to Baugh’s excessive force claim because

Baugh’s injury was de minimis and, even if not, the force used against Baugh was “neither

excessive to the need, nor objectively unreasonable under the circumstances.” (Dkt. No.

29 at ¶¶ 19–20). Additionally, the Officers claim that Baugh’s excessive force claim

against Chief Rangnow and Sergeant Klare fails because they were not involved in

applying force against Baugh. (Id. at ¶¶ 13–14).

To prevail on a Fourth Amendment excessive force claim under Section 1983, a

plaintiff must show “(1) injury, (2) which resulted directly and only from a use of force

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

Buehler v. Dear, ____ F.4th ____, ____, 2022 WL 619584, at *5 (5th Cir. 2022) (citation

quotations omitted). While a significant injury is not required, the injury must be more

than de minimis. Id. Whether the force used was excessive “depends on the facts and

circumstances of each particular case,” and the reasonableness of the force “must be

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

20/20 vision of hindsight.” Craig v. Martin, 26 F.4th 699, 705 (5th Cir. 2022) (internal

quotations omitted). Courts should consider “the severity of the crime at issue; whether

the suspect poses an immediate threat to the safety of the officers or others, and whether

[the suspect] is actively resisting arrest[.]” Id. (citations omitted). Additionally, there is

no Section 1983 cause of action “based on the conduct of subordinates,” and “[p]ersonal

involvement is an essential element of a civil rights cause of action.” Thompson v. Steele,

709 F.2d 381, 382 (5th Cir. 1983); see also Murphy v. Kellar, 950 F.2d 290, 292 n.7 (5th Cir.

1992) (“It is necessary to specify the personal involvement of each defendant in a cause

of action under § 1983.”).

Baugh asserts that the Officers fractured his wrist and that he suffered severe nerve

damage. (Dkt. No. 1 at ¶ 36). But he has supplied no evidence to support this. The

Officers claim that Baugh sustained only a de minimis injury and provide three pieces of

evidence in support. (Dkt. No. 29 at ¶ 19). First, they point to post-arrest photos, which

show a gap between Baugh’s wrists and the handcuffs—contradicting Baugh’s injury

claims. (Dkt. No. 30-4). Second, they point to the affidavit of Officer Salles, who swears

he used “no more than balance displacement and hands on techniques akin to wrestling”

to arrest Baugh. (Dkt. No. 29-5 at ¶ 13). Last, they point to Baugh’s medical records.

(Dkt. No. 30-6). They argue the records reflect chronic carpal tunnel syndrome— not an

injury from wearing handcuffs. (Id.).

The Officers further claim that even if Baugh’s injury was more than de minimis,

the force applied was reasonable. The Officers provide Lieutenant Salles’s declaration,

in which he describes applying force only after Baugh assaulted him and asserts that he

used the least amount of force possible to restrain Baugh in the face of Baugh’s resistance.

(Dkt. No. 29-5 at ¶¶ 9–10). The Officers also provide the expert report of Senior Police

Officer David M. Lopez, who states that the Officers “used the least amount of force

needed to place Mr. Baugh into custody.” (Dkt. No. 30-5 at 8).

Finally, the Officers argue that Chief Rangnow and Sergeant Klare were not

personally involved in the events surrounding Baugh’s arrest—they were not even

present when Baugh was arrested. (Dkt. No. 29 at ¶¶ 13–14). In support of their

contention that Chief Rangnow and Sergeant Klare were not involved—or even present—

at the time of Baugh’s arrest, the Officers introduce declarations from both Chief

Rangnow and Sergeant Klare stating as much. (Dkt. No. 30-10 at ¶ 6); (Dkt. No. 29-6 at

¶ 7). For this reason, the Officers contend, Baugh’s excessive force claim against Chief

Rangnow and Sergeant Klare fails.

The Court finds that there is no genuine dispute of material fact exists with respect

to Baugh’s excessive force claim. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2253. The

evidence demonstrates that Baugh’s injuries were either de minimis or did not result from

the use of force. See Buehler, ____ F.4th at ____, 2022 WL 619584, at *5 (“We have tossed

out an excessive-force allegation where, for example, the most substantial injury claimed

by the arrestee was that she suffered bruising on her wrists and arms because the

handcuffs were applied too tightly, reasoning that minor, incidental injuries that occur in

connection with the use of handcuffs to effectuate an arrest do not give rise to a

constitutional claim for excessive force.” (cleaned up)).

And while that evidence alone defeats Baugh’s excessive force claim, the evidence

further demonstrates that the force Lieutenant Salles used was reasonable. (Dkt. No. 29-

5 at ¶¶ 9–10, 13); (Dkt. No. 30-5 at 8). Baugh assaulted Lieutenant Salles, and in response,

Lieutenant Salles used the least amount of force necessary to restrain Baugh. Baugh,

therefore, has not presented evidence that the force was clearly excessive and

unreasonable. See Buehler, ____ F.4th at ____, 2022 WL 619584, at *5. Though the crime

for which the Officers applied force against Baugh was not particularly severe, neither

was the force they applied because it was “measured and ascending.” See id. at *7–8. The

Court’s finding that Lieutenant Salles’s force was not excessive is also supported by the

fact that Baugh posed a potential threat to the Officers, others, and (by continuing to stand

in the path of the mobile home) himself, as well as the fact that he was “actively resisting

arrest.” See Craig, 26 F.4th at 705.

Finally, Chief Rangnow and Sergeant Klare were not even present at the time of

Baugh’s arrest. Without evidence that Chief Rangnow and Sergeant Klare were involved

in applying excessive force, Baugh’s claim against these Officers fails. See Cass v. City of

Abilene, 814 F.3d 721, 728–29 (5th Cir. 2016) (per curiam).

Because the Officers have met their burden by presenting evidence that

demonstrates the absence of a genuine issue of material fact, the burden shifts to Baugh

to come forward with evidence showing there is a genuine issue for trial. See Nola Spice

Designs, 783 F.3d at 536. Baugh did not file a response or otherwise provide such

evidence. Accordingly, the Court grants summary judgment in favor of the Officers on

Baugh’s Section 1983 claim for excessive force.

b. False Arrest and False Imprisonment

Baugh also argues that the Officers violated his Fourth Amendment rights by

arresting him without probable cause. (Dkt. No. 1 at ¶¶ 51–52). The Officers claim that

probable cause supported Baugh’s arrest because Baugh unlawfully resisted arrest. (Dkt.

No. 29 at ¶¶ 15–16).

“[T]o state a § 1983 claim for false arrest/false imprisonment, [the plaintiff] must

plausibly allege that [the defendant] did not have probable cause to arrest him.” Arnold

v. Williams, 979 F.3d 262, 269 (5th Cir. 2020) (internal quotations omitted). In Texas, a

“person commits an offense if he intentionally prevents or obstructs a person he knows

is a peace officer . . . from effecting an arrest . . . by using force against the peace officer[.]”

Tex. Penal Code § 38.03(a). It is no defense that the arrest was unlawful. Id. § 38.03(b).

“In Texas, the act of resisting can supply probable cause for the arrest itself.” Ramirez v.

Martinez, 716 F.3d 369, 376 (5th Cir. 2013).

The Officers claim that Baugh unlawfully resisted arrest. As an additional source

of probable cause, they claim that Baugh assaulted Lieutenant Salles. See Tex. Penal Code

§ 22.01(b)(1). In support, they provide: (1) Lieutenant Salles’s declaration describing how

Baugh pushed and struck Lieutenant Salles when he attempted to escort Baugh out of the

crew members’ way, (Dkt. No. 29-5 at ¶ 9); (2) a video captured by Lieutenant Salles’s

body cam and another from one of the movers showing Baugh’s resistance, (Dkt. No. 30-

7); (Dkt. No. 29-4); (3) declarations of the movers describing that they saw “Baugh swing

backhanded and hit” Lieutenant Salles and that Baugh continued to “fight the officers”

as they attempted to restrain him, (Dkt. No. 29-7 at ¶¶ 12–14); (Dkt. No. 29-8 at ¶¶ 12–

14); and (4) the expert report of Senior Police Officer David M. Lopez who describes the

assault and resistance based on his review of the video evidence, (Dkt. No. 30-5 at 7).

This evidence demonstrates that there is no genuine issue of material fact on

Baugh’s “false arrest and/or false imprisonment” claim. The arrest was lawful because

it was based on probable cause.6 See Buehler, ____ F.4th at ____, 2022 WL 619584, at *7

(“[T]he great weight of Texas authority indicates that pulling out of an officer’s grasp is

sufficient to constitute resisting arrest for purposes of Texas Penal Code § 38.03(a)[.]”

(cleaned up)). The Officers have carried their initial burden. See Celotex, 477 U.S. at 323,

106 S.Ct. at 2253. As a result, the burden shifts to Baugh to present evidence that there is

a genuine issue for trial. See Nola Spice Designs, 783 F.3d at 536. He has not done so.

Accordingly, the Court grants summary judgment in favor of the Officers on Baugh’s

Section 1983 claim for false arrest and false imprisonment.

c. Malicious Prosecution

Baugh also “pleads a cause of action for malicious prosecution under § 1983.”

(Dkt. No. 1 at ¶ 57). The Officers argue that this is not a cognizable claim.7 (Dkt. No. 29

at ¶ 22). The Officers are correct.

6 As discussed above with respect to the excessive force claim, the fact that Chief Rangnow

and Sergeant Klare had no personal involvement in Baugh’s arrest also provides an alternative

basis for granting summary judgment for them on this claim. See Thompson, 709 F.2d at 382.

7 The Officers also point out that Baugh alleges his Section 1983 malicious prosecution

claim based upon the elements of a Texas state law malicious prosecution claim. (Dkt. No. 29 at

¶ 22). Baugh separately raises a state law malicious prosecution claim later in his Complaint.

(Dkt. No. 1 at ¶¶ 81–82). The Court addresses Baugh’s separate state law malicious prosecution

claim below.

The Fifth Circuit does not recognize a “constitutional right to be free from

malicious prosecution.” Morgan v. Chapman, 969 F.3d 238, 246 (5th Cir. 2020). This is

because “claims under § 1983 are only ‘for violation[s] of rights locatable in constitutional

text.’” Id. at 245 (quoting Castellano v. Fragozo, 352 F.3d 939, 953–54 (5th Cir. 2003) (en

banc)). Therefore, actions that “happen to correspond to the tort of malicious

prosecution” may “result in an unreasonable search or seizure,” in which case “those

claims may be asserted under § 1983 as violations of the Fourth Amendment. But that

makes them Fourth Amendment claims cognizable under § 1983, not malicious

prosecution claims.” Id. at 245–46.

The Court already addressed Baugh’s Fourth Amendment claims under Section

1983. His separate claim under Section 1983 for malicious prosecution is not cognizable.

See id. Accordingly, the Court grants summary judgment in favor of the Officers.

d. Qualified Immunity

In addition to the Officers’ arguments that their actions did not violate Baugh’s

constitutional rights, the Officers raise the defense of qualified immunity. (Dkt. No. 29 at

¶¶ 23–26). Qualified immunity protects government officials performing discretionary

functions from civil liability for damages as long as their conduct does not violate clearly

established constitutional rights. Buehler, ____ F.4th at ____, 2022 WL 619584, at *5. To

resolve a qualified immunity claim, a court must “decide whether the facts alleged make

out a violation of a constitutional right.” Id. (cleaned up). The court must also decide

“whether the right at issue was clearly established at the time of defendant’s alleged

misconduct.” Id. (cleaned up). “To defeat a claim of qualified-immunity, the plaintiff has

the burden to demonstrate the inapplicability of the defense.” Mayfield v. Currie, 976 F.3d

482, 486 (5th Cir. 2020) (citations omitted).

The Court has already determined that Baugh failed to satisfy the first step because

it concluded that the Officers did not violate Baugh’s constitutional rights. But even if

that were not the case, summary judgment in the Officers’ favor would still be warranted

because the Officers’ actions—even if they were unlawful—did not violate a clearly

established right.

“The ‘clearly established’ prong is difficult to satisfy.” Cunningham v. Castloo, 983

F.3d 185, 191 (5th Cir. 2020). To be clearly established, a right must be “sufficiently clear

that every reasonable official would have understood that what he is doing violates that

right.” Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per

curiam) (citation omitted). Courts should not “define clearly established law at a high

level of generality.” Id. at 12, 136 S.Ct. at 308 (citation omitted). The “inquiry must be

undertaken in light of the specific context of the case, not as a broad general proposition.”

Id. (internal quotations omitted). Rather, courts should “frame the clearly established law

question with specificity and granularity.” Brown v. Tarrant County, 985 F.3d 489, 495 (5th

Cir. 2021) (cleaned up). “Such specificity is especially important in the Fourth

Amendment context, where the Court has recognized that it is sometimes difficult for an

officer to determine how the relevant legal doctrine, [such as] excessive force, will apply

to the factual situation the officer confronts.” Mullenix, 577 U.S. at 12, 136 S.Ct. at 308

(cleaned up).

In addition to arguing that qualified immunity is unconstitutional and violates the

separation of powers, Baugh asserts that the “constitutional right to be free from

unreasonable search and seizure and [his] right to privacy . . . was clearly established at

the time of Defendants’ actions.” (Dkt. No. 1 at ¶¶ 70, 72). This argument is the very

definition of characterizing the right at “a high level of generality.” See Mullenix, 577 U.S.

at 12, 136 S.Ct. at 308. Without more, Baugh has failed to meet his burden of

demonstrating that the Officers violated a clearly established right. See Mayfield, 976 F.3d

at 486. Thus, even assuming for the sake of argument that the Officers’ actions violated

Baugh’s constitutional rights, the Officers’ qualified immunity defense would still

necessitate summary judgment in their favor.

2. Section 1983 Municipal Liability

Baugh also brings a Section 1983 claim against the City of Port Lavaca. (Dkt. No.

1 at ¶¶ 58–69). Municipalities are “persons” under Section 1983. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690–91, 98 S.Ct. 2018, 2035–36, 56 L.Ed.2d 611 (1978). But no

municipal liability exists under the doctrine of respondeat superior, so a plaintiff must

show that the municipality’s policy or custom caused the constitutional violations. World

Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752–53 (5th Cir. 2009).

The City correctly cites a threshold ground on which it is entitled to summary

judgment for this claim. Where no constitutional violation occurred, the City cannot be

liable. See Saenz v. Heldenfels Bros., Inc., 183 F.3d 389, 392–93 (5th Cir. 1999) (citing City of

Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986) (per

curiam)). This is because if “a person has suffered no constitutional injury at the hands

of the individual police officer, the fact that the departmental regulations might have

authorized the use of constitutionally excessive force is quite beside the point.” Heller, 475

U.S. at 799, 106 S.Ct. at 1573 (emphasis in original). Because the Court has determined

that the Officers in this case did not violate Baugh’s constitutional rights, summary

judgment in favor of the City is proper. See Buehler, ____ F.4th at ____, 2022 WL 619584,

at *14 (“A policy, practice, or custom claim against a municipality cannot proceed unless

the plaintiff has suffered an underlying constitutional violation, and the force used in

effectuating [this plaintiff’s] arrest did not violate the Constitution.” (cleaned up)).

That said, Baugh fails to establish municipal liability even if the Officers’ actions

did violate his constitutional rights. To state a claim for municipal liability based on the

misconduct of an employee, the plaintiff must allege facts showing “(1) an official policy

(2) promulgated by the municipal policymaker (3) was the moving force behind the

violation of a constitutional right.” Peña v. City of Rio Grande City, 879 F.3d 613, 621 (5th

Cir. 2018) (citations omitted).

With respect to the first element—official policy—Baugh appears to advance three

theories: (a) an informal custom or practice; (b) inadequate training and supervision; and

(c) ratification of the Officers’ allegedly unlawful conduct. (Dkt. No. 1 at ¶¶ 58–69).

Baugh’s first and second theories fail for the same reason. In raising his municipal

liability claim, Baugh does not identify any instance of unlawful conduct by the City

except for the events in this case. This is insufficient when raising a municipal liability

claim based on an informal custom or practice. See Ratliff v. Aransas County, 948 F.3d 281,

285 (5th Cir. 2020) (“To plead a practice so persistent and widespread as to practically

have the force of law, [the plaintiff] must do more than describe the incident that gave

rise to his injury.” (cleaned up)). It is also generally insufficient when raising a municipal

liability claim based on inadequate training or supervision.8 See Sanders-Burns v. City of

Plano, 594 F.3d 366, 382 (5th Cir. 2010) (“Claims of inadequate training generally require

that the plaintiff demonstrate a pattern.”).

Baugh’s third theory—ratification of the Officers’ allegedly unlawful conduct—

does not require specific allegations beyond a single incident. Under this theory, Baugh

alleges that the City’s policymakers “had the opportunity to review the unlawful conduct

of Defendants, and upon review, determined that the Defendants acted in conformance

to its official policies or otherwise ratified their conduct.” (Dkt. No. 1 at ¶ 66).

“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.” Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir. 2017) (internal quotations

omitted). But ratification “is limited to extreme factual situations.” Id. (citations omitted).

8 The Supreme Court “left open the possibility that, in a narrow range of circumstances, a

pattern of similar violations might not be necessary to show” the deliberate indifference necessary

to successfully bring a failure-to-train claim. Connick v. Thompson, 563 U.S. 51, 63, 131 S.Ct. 1350,

1361, 179 L.Ed.2d 417 (2011) (internal quotations omitted). The Supreme Court “posed the

hypothetical example of a city that arms its police force with firearms and deploys the armed

officers into the public to capture fleeing felons without training the officers in the constitutional

limitation on the use of deadly force.” Id. Since police frequently attempt to arrest fleeing felons

and the likelihood that an officer lacking specific tools to handle such a situation will violate

constitutional rights, the Supreme Court theorized that a city’s decision not to train the officers

about the constitutional limits of the use of deadly force could reflect the city’s deliberate

indifference to such a highly predictable consequence. Id. at 63–64. Nevertheless, there are no

facts in this case suggesting that the City failed to offer relevant training at all to its officers or

that the City ignored a highly predictable consequence. Thus, the events of this case do not rise

to the level of the Supreme Court’s hypothetical such that it would invoke the “single-incident”

liability for a failure-to-train municipal liability claim on which the Supreme Court opined.

Obvious violations of clearly established law can rise to this level, Young v. Bd. of

Supervisors of Humphreys Cnty., 927 F.3d 898, 903 (5th Cir. 2019), but as already discussed

above in the qualified immunity section, the Officers’ actions did not violate clearly

established law. Nor were the Officers’ actions otherwise so “extreme” as to provide the

basis for a ratification theory of municipal liability. Compare Grandstaff v. City of Borger,

767 F.2d 161, 168, 171 (5th Cir. 1985) (finding ratification when officers “poured” gunfire

onto a truck and killed an innocent rancher) with Snyder v. Trepagnier, 142 F.3d 791, 798

(5th Cir. 1988) (refusing to find ratification when an officer shot a fleeing suspect in the

back); accord Peterson v. City of Fort Worth, 588 F.3d 838, 848 (5th Cir. 2009).

Because Baugh has not demonstrated an official policy by the City under any of

his three theories, the Court does not determine whether the official policy was

promulgated by the municipal policymaker or if the official policy was the moving force

behind the constitutional violation. See Peña, 879 F.3d at 621. Accordingly, the Court

grants summary judgment in favor of the City on Baugh’s Section 1983 municipal liability

claim.

3. Texas State Law Claims

Finally, Baugh alleges state law claims for false arrest and false imprisonment,

intentional infliction of emotional distress, assault and battery, malicious prosecution,

and abuse of official capacity. (Dkt. No. 1 at 73–84). In response, the Officers principally

rely on official immunity under Texas law. (Dkt. No. 29 at ¶ 42). The City relies on

sovereign immunity. (Id. at ¶ 43). The Court agrees with the Defendants.

At the outset, the Court dismisses Baugh’s claim for abuse of official capacity

because no such claim exists. “Abuse of Official Capacity” is codified as a state crime

under Section 39.02 of the Texas Penal Code, and “Official Oppression” is codified as a

state crime under Section 39.03 of the Texas Penal Code. But the Texas Penal Code does

not create private causes of action. Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.—

San Antonio 2002, no pet.).

Baugh’s false arrest and false imprisonment, intentional infliction of emotional

distress, and assault and battery claims are all raised against the Officers alone, and his

malicious prosecution claim is raised against all the Defendants. (Dkt. No. 1 at ¶¶ 73–

82). As the Officers point out, they are entitled to official immunity. See (Dkt. No. 29 at

¶ 42). Under Texas law, government officials are entitled to immunity from suit “for

matters arising from the performance of their discretionary duties, as long as they are

acting in good faith and within the scope of their authority.” Wren v. Towe, 130 F.3d 1154,

1160 (5th Cir. 1997) (per curiam) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653

(Tex. 1994)). “The ‘good faith’ test applied by Texas law in determining official immunity

is evaluated under substantially the same standard used for qualified immunity

determinations in § 1983 actions.” Meadours v. Ermel, 483 F.3d 417, 424 (5th Cir. 2007). As

stated above, the Court finds that the Officers’ actions were reasonable, and their actions

were within the scope of their authority.9 Accordingly, the Court grants summary

judgment in favor of the Officers on Baugh’s state law claims. See Wren, 130 F.3d at 1160.

That leaves only Baugh’s malicious prosecution claim against the City. Suits under

the Texas Tort Claims Act in federal court can only be brought against a government

entity if it has expressly waived sovereign immunity. Sherwinski v. Peterson, 98 F.3d 849,

851–52 (5th Cir. 1996). The Texas Tort Claims Act expressly retains immunity for

intentional torts. Tex. Civ. Prac. & Rem. Code § 101.057(2). Malicious prosecution is an

intentional tort in Texas. City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—

Houston [1st Dist.] 1995, no writ); accord Humphrey’s v. City of Ganado, 467 F. App’x 252,

256–57 (5th Cir. 2012) (per curiam). Thus, the Court finds that the City has not waived

sovereign immunity for this claim. Accordingly, the Court grants summary judgment in

favor of the City.

IV. CONCLUSION

The Court grants the Defendants’ Motion. Specifically, the Court GRANTS the

Defendants’ Rule 12(b)(1) motion to dismiss claims by Plaintiff Melissa Baugh for lack of

standing. (Dkt. No. 29). The Court also GRANTS the Defendants’ Motion for Summary

Judgment. (Id.). The Court DISMISSES WITHOUT PREJUDICE Plaintiff Melissa

Baugh’s claims under Rule 12(b)(1) and Plaintiff Carl Baugh’s state law malicious

9 Additionally, because Baugh’s claim of malicious prosecution is raised against all the

Defendants, including the City, (Dkt. No. 1 at ¶ 82), this claim is also barred as to the Officers

under the Texas Tort Claims Act because it is raised against both a governmental unit and its

employees. Tex. Civ. Prac. & Rem. Code § 101.106(e). Baugh’s malicious prosecution claim

against the City is addressed below.

prosecution claim against the City of Port Lavaca.!° The Court DISMISSES WITH

PREJUDICE Plaintiff Carl Baugh’s remaining claims.

It is SO ORDERED.

Signed on March 30, 2022.

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

10 Claims that are dismissed for lack of subject matter jurisdiction are dismissed without

prejudice. See Mitchell v. Bailey, 982 F.3d 937, 944 (5th Cir. 2020). Lack of Article III standing

deprives a federal court of subject matter jurisdiction. See Ortiz v. Am. Airlines, Inc., 5 F.Ath 622,

627 (5th Cir. 2021) (“Standing is a component of subject matter jurisdiction.” (citation omitted)).

Similarly, claims implicating the Eleventh Amendment are dismissed without prejudice because

the Eleventh Amendment deprives the Court of subject matter jurisdiction. See Planned

Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 450 (5th Cir. 2022) (observing that “the Eleventh

Amendment generally deprives federal courts of jurisdiction” over certain suits); United States v.

Texas ‘Tech Univ., 171 F.3d 279, 285 n.9 (5th Cir. 1999) (“While the Supreme Court has left this

question open, [the Fifth Circuit] has repeatedly referred to the Eleventh Amendment's restriction

in terms of subject matter jurisdiction.”).

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