Walker v. City Of Houston

September 13, 2022

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DWAYNE WALKER, § CIVIL ACTION NO.

Plaintiff, § 4:19-cv-04454

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

CITY OF HOUSTON, §

et al, §

Defendants. §

OPINION AND ORDER

GRANTING SUMMARY JUDGMENT

The motions for summary judgment by Defendants are

granted. Dkts 37 & 38.

1. Background

Plaintiff Dwayne Walker brought this action against

officers of the Houston Police Department and the City of

Houston pursuant to 28 USC § 1983, asserting claims for

the violation of his rights under the Fourth and Fourteenth

Amendments. He alleges excessive use of force against

Officer Shane C. Privette, bystander liability against

Officers Dalton T. Webb and Steven Kirkland Hein, and

various theories of municipal liability against the City of

Houston. Walker also brought a supervisor-liability claim

against a putative John Doe, which was dismissed at

hearing for failure to prosecute such action. Dkt 59.

Underlying this action are “buy/bust” operations

conducted by HPD narcotics division officers in North

Houston on the evening of November 14, 2017. As part of

those operations, non-party undercover Officer M.B.

Parker approached an individual later identified as

Walker. See Dkts 39-23 (Parker reports) & 39-40 (HPD

investigation report).

Parker asked whether Walker could supply him with

crack cocaine, to which Walker agreed. Walker entered

Parker’s vehicle, and the pair drove to an address known

for drug activity. At Walker’s request, they picked up a

woman along the way later identified as Heather Asbury.

Once they arrived at the address, Walker exited the vehicle

and returned with what Parker believed to be crack

cocaine. Parker then gave the arrest signal to surveillance

officers, who instructed uniformed Officers Privette and

Webb to arrest Walker for “delivery of a controlled

substance.” Dkts 39-23 (Parker reports) & 39-40 (HPD

investigation). Parker then drove Walker and Asbury to a

gas station and parked at a gas pump. Dkt 39-23.

The events that followed were captured on the body-

cameras of Privette and Webb, as well as on that of

non-party Officer J.D. Pavlika. Dkts 39-2 & 50-1 at 2

(Privette video); 39-16 & 50-1 at 1 (Webb video); 39-8 &

50-1 at 12 (Pavlika video). Additional footage was captured

by security cameras at the gas station. Dkts 39-18 (gas

station video 1) & 39-19 (gas station video 2). Walker

himself relies primarily upon this evidence, thus implicitly

agreeing that the video footage is the best evidence in this

case. See generally Dkt 49. And indeed, the Fifth Circuit

instructs lower courts to view evidence proffered on

summary judgment in light of this available video

evidence. See Betts v Brennan, 22 F4th 577, 582 (5th Cir

2022), citing Scott v Harris, 550 US 372, 381 (2007);

Craig v Martin, 26 F4th 699, 704 (5th Cir 2022).

The following narrative is thus summarized from the

video evidence, predominantly relying on footage from the

Privette and Webb body-cameras. See Dkts 39-2 (Privette

video) & 39-16 (Webb video). Those videos are synced to the

same relative time, but timestamp citations designate from

which of the two videos the narrative is primarily drawn.

The narrative is supplemented by additional summary

judgment evidence where specified.

2:00 to 2:30 (Webb video). Privette arrived at the gas

station in a marked unit with Webb moments after

Parker’s vehicle and parked behind it. Webb immediately

proceeded to the rear passenger-side door. He told Walker,

who was sitting in the front passenger seat, to put his

hands on the dashboard. And he demanded Asbury exit the

vehicle. Both complied. See also Dkts 39-18 at 1:30 to 1:50

(gas station video 1). The record establishes that Walker

weighs approximately 200 pounds and stands 6 feet, 2

inches tall. See Dkts 39-11 at 2 (April 2018 medical record),

39-23 (Parker reports) & 39-40 (HPD investigation report).

2:10 to 2:50 (Privette video). Parker exited the vehicle

and passed Privette, who proceeded to the rear driver-side

door. Privette stated that he would “watch the male” (being

Walker) and moved to the front driver-side door. He then

walked around the front of the car and opened the front

passenger door. Privette first asked Walker to “scoot up

and face away” from him, but he subsequently told Walker

to exit the vehicle. As Walker exited, Privette instructed

Walker to put his hands behind his back. Rather than

immediately comply, Walker instead closed the vehicle’s

door, rotating the right side of his body around the door as

it closed. This action turned his left arm towards Privette.

2:50 to 3:20 (Privette video). Privette grabbed Walker’s

left forearm and bicep and again demanded that he put his

hands behind his back. Walker instead turned the right

side of his body away from Privette, out of Privette’s reach.

Walker twice stated that he had previously been shot in his

right arm. Privette loudly commanded Walker to put his

hands behind his back as he handcuffed Walker’s left wrist.

Walker braced his right arm against a gas station pillar.

Privette seized Walker’s right wrist and brought that arm

towards him. Walker then pulled it out of Privette’s grasp,

again turning his right side away from Privette. Walker

repeatedly made reference to “my shoulder.” Privette

issued another verbal command and seized Walker’s right

forearm, pulling it towards him. But Walker continued to

resist Privette’s attempts to put his right arm behind his

back. Privette stated, “I’m going to put you on the ground,

dude.” Walker responded that his shoulder “won’t go back,”

and asked Privette to look at his shoulder.

3:15 to 3:25 (Privette video). Privette lifted Walker’s

sleeve and observed a large scar on his right shoulder. He

stated, “Alright, I’m going to handcuff you in the front then,

okay?” In the background, Webb can be heard saying,

“Check him for weapons first.” Privette released both of

Walker’s arms, quickly felt Walker’s front waist for

weapons, and rotated himself around Walker’s right side.

See also Dkt 39-20 (Privette reports).

3:25 to 3:30 (Privette video). Walker was now facing

Parker’s truck with his left arm out of Privette’s immediate

reach. Privette seized Walker’s right forearm and twice

demanded that Walker put his hands in front of him.

Walker responded, “Hold up,” as Privette reached for his

left arm and the loose handcuff. Privette grabbed and

pulled Walker’s left forearm. Walker leaned towards

Privette—who was attempting to gain control of the loose

handcuff—then rotated his right side away from Privette.

He jerked backwards, causing Privette to lose his grasp on

Walker’s left arm. See also Dkt 39-20 (Privette reports).

3:30 to 3:40 (Privette video). Privette then attempted to

take Walker to the ground. At this point, Privette’s body-

camera was knocked off. But Privette in his report wrote,

“I attempted to take him to the ground by forcing his left

arm towards the ground by the attached handcuff and by

placing my right hand on his left arm, using it as leverage.”

The video footage from the gas station security camera

confirms this account. It also shows that Walker

maintained his balance, ultimately breaking away from

Privette, who held Walker’s left wrist by the attached

handcuff. Privette managed to swing Walker around, but

Walker still didn’t fall. Walker can also be heard repeatedly

saying, “Let me go, man.” See also Dkts 39-20 (Privette

reports), 39-18 at 3:10 to 3:15 (gas station video 1), 39-23

(Parker reports), 39-15 at 20 (Walker deposition) & 39-40

(HPD investigation report).

3:30 to 3:40 (Webb video). By this time, Webb had seen

the altercation and ran to assist Privette. Webb’s body-

camera video affords the best view, given that available

security-camera footage is distant and blurry and/or

largely blocked by a parked car. In any event, Webb tackled

Walker to the ground. An officer demands that Walker put

his hands behind his back. But Walker rolled onto his right

side and kept both hands close to his waistband, with his

left hand under his body out of the officers’ view. See also

Dkts 39-18 at 3:10 to 3:20 (gas station video 1) & 39-19

at 3:15 to 4:15 (gas station video 2).

3:40 to 3:45 (Webb video). Officer Hein had recently

arrived on the scene in another unit, and he rushed to

assist when he saw the scuffle begin. He told Walker to “do

what they say,” referring to Privette and Webb. And he

attempted to gain control over Walker’s right arm. See also

Dkts 39-22 (Hein reports) & 39-40 (HPD investigation

report). Privette stood near Walker’s legs. He then leaned

over Walker and delivered three to four knee strikes to

Walker’s body. These strikes are difficult to see on film, and

Walker doesn’t react. See also Dkt 39-18 at 3:20 to 3:30 (gas

station video 1). But all parties agree that the strikes were

delivered. See Dkts 37 at 12 (officer motion), 38 at 10 (city

motion) & 49 at 14 (Walker response); see also Dkts 39-20

(Privette reports), 39-21 (Webb reports) & 39-22 (Hein

reports). Yet Walker continued to struggle against the

officers’ attempts to restrain his arms. All the while, the

officers were issuing verbal commands to Walker to put his

hands behind his back.

3:45 to 4:25 (Webb video). Privette moved around

Walker so that his legs were adjacent to Walker’s chest,

with his right leg drawn back. He grabbed Walker’s left

bicep and shoulder with both hands, momentarily released,

and then delivered a single knee strike to Walker’s face

with his right knee. Walker immediately reacted, saying,

“He hit me in the eye. He hit me in the eye. He hit me.

Record it. Record it.” Only then did officers gain control

over both of Walker’s arms. But Walker still continued

resisting, with Privette unable to secure the handcuffs for

another thirty seconds. And another officer can be heard

telling Walker, “Quit fighting it, dude. Dude, I’m going to

pound your ass.” Privette secured the handcuffs without

any other use of force.

5:50 to 10:25 (Privette video). A search revealed that

Walker had a pair of scissors on his person. Officers at the

scene quickly called the paramedics to attend Walker’s

injuries. But officers kept Walker on the ground until

paramedics arrived, as he continued to struggle, yell, and

direct statements to officers such as “kill me” and “get your

f**king hand off me, b***h.” See also Dkts 39-20 (Privette

reports) & 39-21 (Webb reports).

32:00 to 32:55 (Webb video). Officers moved Walker to

Pavlica’s unit after paramedics assisted him. He gave

officers his name and date of birth. Prompt research then

revealed that Walker had an outstanding warrant for a

parole violation, known as a blue warrant. Walker told

Pavlica that he “already knew he had a blue warrant.”

Officer Pavlica asked, “Is that why you kind of fought a

little bit?” And Walker replied, “Ya.” Dkt 39-8 at 1:18:00

to 1:22:00, 1:30:40 to 1:31:50 (Pavlica video). Defendants

elsewhere establish by undisputed evidence that Walker

has a lengthy criminal record, and had been free on parole

for only three months after serving a thirty-year prison

sentence. See Dkt 37 at 13–14 (collecting evidence).

10:30 to 10:55 (Webb video). On later video, Privette

and Webb discussed what occurred. Referencing the knee

strike to Walker’s face, Privette stated that he “did about

four body shots before I did that.” And he continued,

stating, “I did exactly what Sarge requested.”

Walker was ultimately diagnosed with closed fractures

of the left orbital floor, nasal bone, and maxillary sinus.

Dkt 50-1 at 105 (medical records). He was also later

charged with felony delivery of a controlled substance. He

pleaded guilty on March 8, 2018. Dkt 39-24 at 3.

Walker filed a complaint with the HPD against

Privette in December 2017 alleging unlawful use of force.

The HPD Internal Affairs Division investigated, taking

statements from Lieutenant M.S. Chavez, Parker, Pavlica,

Sergeant K.E. McDaniel, Hein, Webb, and Privette. It also

reviewed medical records; response to resistance forms

created by Hein, Webb, and Privette the day of the

incident; an after-action response-to-resistance report

created by McDaniel; and Walker’s criminal history. The

IAD issued a report exonerating Privette in March 2018.

Dkt 39-40.

Walker filed this action in November 2019. Dkt 1. The

City and the Officer Defendants moved for summary

judgment after the close of discovery. Dkts 37 & 38.

Argument was heard in February 2022. Resolved there

were certain evidentiary objections by Defendants to

Walker’s summary judgment evidence. The above

narrative disregards such evidence in line with rulings

made at hearing. See Dkt 59.

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 2020). 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).

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); see also Celotex Corp v Catrett,

477 US 317, 322–23 (1986). 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. 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).

3. Analysis

All Defendants argue that no constitutional violation

occurred. See Dkts 37 at 15–17 (officer motion) & 38 at 13

(city motion). The Officer Defendants also contend that

even if one did, the claims against them are barred by

qualified immunity because “Walker had no clearly

established right to be free from minimal and necessary

force while resisting arrest and attempting to flee.” Dkt 37

at 14, 17–19.

Based upon the undisputed evidence, the involved

officers plainly didn’t violate Walker’s constitutional

rights. Argument regarding whether the right was clearly

established thus requires only the briefest of discussion.

a. Claims for use of excessive force

The Fourth Amendment of the United States

Constitution states, “The right of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.”

This guarantees protection of individuals against the use

of unreasonable force during an arrest or investigatory

stop. Tucker v City of Shreveport, 998 F3d 165, 171 (5th Cir

2021). Even so, jurisprudence in this area has long

recognized “that the right to make an arrest or

investigatory stop necessarily carries with it the right to

use some degree of physical coercion or threat thereof to

effect it.” Ibid, citing Graham v Connor, 490 US 386, 396

(1989). Consequently, a plaintiff bringing a claim

regarding excessive force must prove that (i) he suffered an

injury, (ii) the injury resulted directly and only from a use

of force that was clearly excessive, and (iii) the

excessiveness of the force was clearly unreasonable. Craig,

26 F4th at 704–05. As to the latter two aspects, the Fifth

Circuit recognizes that the inquiries into “whether a use of

force was ‘clearly excessive’ or ‘clearly unreasonable . . . are

often intertwined’” and addressed together. Darden v City

of Fort Worth, 880 F3d 722, 728 (5th Cir 2018) (citation

omitted).

Walker alleges two distinct instances of excessive

force—when Privette took him to the ground, and then

when Privette landed the knee strike to his face. Dkt 49

at 13–15. Each will be assessed in turn. The parties agree

as to both that Walker suffered an injury and that the

injury resulted from the use of force. But they disagree

about whether the use of force was clearly excessive and

clearly unreasonable.

Determining whether the force used to effectuate a

particular seizure is reasonable for purposes of the Fourth

Amendment “requires a careful balancing of the intrusion

upon the individual’s interests with the countervailing

governmental interests at stake.” Tucker, 998 F3d at 171.

This is necessarily a fact-intensive inquiry. Craig, 26 F4th

at 705. The Supreme Court thus instructs courts to

consider the totality of the circumstances, including (i) the

severity of the crime at issue, (ii) whether the suspect posed

an immediate threat to officer or public safety, and

(iii) whether he actively resisted arrest or attempted to

evade arrest by flight. Darden, 880 F3d at 728–29, quoting

Graham, 490 US at 396 (quotation marks omitted).

At a more general level, the Fifth Circuit has also

recently cautioned:

Importantly, the reasonableness of a

particular use of force must be judged from

the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision

of hindsight. Thus, not every push or shove,

even if it may later seem unnecessary in

the peace of a judge’s chambers, violates

the Fourth Amendment. Instead, the

calculus of reasonableness must embody

allowance for the fact that police officers

are often forced to make split-second

judgments—in circumstances that are

tense, uncertain, and rapidly evolving—

about the amount of force that is necessary

in a particular situation. Although all

disputed facts are construed in favor of the

non-movant in the summary judgment

context, evaluating the reasonableness of

an officer’s use of force requires considera-

tion of how a reasonable officer would have

perceived those facts.

Tucker, 998 F3d at 171–72 (cleaned up, emphasis added).

The Fifth Circuit also recognizes that officers “must

assess not only the need for force, but also the relationship

between the need and the amount of force used.” Craig, 26

F4th at 705 (quotation marks and citations omitted). And

so on the one hand, the Fifth Circuit holds, “A use of force

is reasonable if an officer uses measured and ascending

actions that correspond to a suspect’s escalating verbal and

physical resistance.” Ibid (quotation marks and citation

omitted). But on the other hand, the “speed with which an

officer resorts to force, and the failure of the officer to use

physical skill, negotiation, or even commands before

applying such force, weigh in favor of finding that the use

of force was excessive to the need.” Pena v Rio Grande City,

816 F Appx 966, 973 (5th Cir 2020, per curiam).

i. The takedown

As to the severity of the crime, it’s undisputed that the

officers had probable cause to arrest Walker for delivery of

a controlled substance. This without question is a serious

offense. See Darden, 880 F3d at 729, citing Orr v Copeland,

844 F3d 484, 493 (5th Cir 2016).

As to whether Walker posed an immediate threat to

officer or public safety, “inherent dangers” are presented to

officers when making a narcotics arrest. Darden, 880 F3d

at 729. Interdiction of drug trafficking of its nature very

often comes with the potential of encountering the threat

or actuality of violence, including the use of firearms or

other weapons. Moreover, the Fifth Circuit holds that a

suspect who refuses to turn around and be handcuffed

poses an immediate threat to officers. See Cadena v Ray,

728 F Appx 293, 296 (5th Cir 2018); Poole v City of

Shreveport, 691 F3d 624, 629 (5th Cir 2012).

The undisputed evidence assessed from a reasonable

officer’s perspective demonstrates that Walker posed a

danger both to officers and to the public. With respect to

the public, video footage shows that the gas station

maintained a steady flow of customers at the time of the

arrest. Traffic can also be seen on the road in front and to

the side of the gas station. See generally Dkts 39-18 (gas

station video 1) & 39-19 (gas station video 2). Civilians

were thus in close proximity to the action. With respect to

the officers, Walker refused to put his hands behind his

back upon instruction immediately after exiting the

vehicle. He also refused to provide Privette his hands when

Privette offered to handcuff him in front. Contrary to

assertions by Walker, Privette hadn’t searched Walker—

he had only briefly brushed his hand against Walker’s front

waistband. While this might alleviate some concern, most

areas of Walker’s body hadn’t been searched. Walker also

had a loose handcuff on his left wrist—itself potentially

dangerous. And because he faced Privette with his hands

in front, Walker had significantly more ability to maneuver

than a suspect who is facing away from an officer with his

hands behind his back.

As to whether Walker actively resisted arrest or

attempted to evade arrest by flight, the undisputed evidence

assessed from a reasonable officer’s perspective

demonstrates that Walker was actively resisting arrest at

the time of the takedown, thus justifying a use of force. The

video evidence quite plainly contradicts weak contention by

Walker that he was compliant at “all times during the

arrest.” Dkt 49 at 13. At best, Walker initially complied

with requests to put his hands on the dashboard. But he

began resisting arrest both verbally and physically almost

immediately after that. First, upon exiting the vehicle,

Walker closed the front passenger door instead of placing

his hands behind his back immediately as instructed. This

is significant because Walker essentially removed the only

obstacle in his path to escape. He then refused to place his

right hand behind his back despite repeated verbal

commands from Privette, at one point pulling his right arm

away from Privette’s grasp and turning towards him.

Notwithstanding this resistance, Privette heeded Walker’s

entreaties regarding his alleged disability. Walker then

rebuffed two additional requests by Privette to offer his

hands in front of him. The video likewise contradicts

assertion by Walker that he then simply “tensed up.”

Dkt 49 at 13. Instead, it clearly shows that Walker rotated

the right side of his body away from Privette, looked over

his right shoulder, and suddenly jerked backwards.

In sum, the totality of the circumstances establishes

that the takedown wasn’t objectively excessive or clearly

unreasonable.

ii. The knee strike to Walker’s face

As to the severity of the crime, the above analysis

pertains.

As to whether Walker posed an immediate threat to

officer or public safety, nothing that occurred after the

takedown alleviated the threat Walker posed to the officers

and the public. In fact, actions taken by Walker heightened

concerns. He refused to go to the ground, requiring the

intervention of Webb. And once on the ground, Walker kept

his hands towards his waistband with his left hand out of

sight. Recall that Privette had conducted only the briefest

of searches. And so, a reasonable officer could certainly

suspect that Walker might be reaching for a concealed

weapon such as a knife—with a pair of scissors in fact

found upon him later. See Dkt 39-2 at 6:10 to 6:14 (Privette

video).

As to whether Walker actively resisted arrest, he quite

clearly did. Walker first resisted going to the ground. And

he nearly broke completely free from Privette, who only

held Walker by the loose handcuff. Dkts 39-16 at 3:30

to 3:34 (Webb video) & 39-18 at 3:10 to 3:20 (gas station

video 1). Walker also verbally resisted, repeatedly stating,

“Let me go, man,” and “I didn’t do nothing.” Once on the

ground, Walker fought against attempts by officers to

secure his arms. Earlier knee strikes to the body were to no

avail. Indeed, even after Privette delivered the knee strike

to Walker’s face, Walker still struggled against verbal and

physical efforts by officers to bring his hands behind his

back. It took Privette almost another thirty seconds to

secure the handcuffs. Dkt 39-16 at 3:47 to 4:25 (Webb

video).

In sum, the totality of the circumstances again

establishes that the knee strike to Walker’s face wasn’t

objectively excessive or clearly unreasonable.

iii. Conclusion as to excessive force

As neither the takedown nor the knee strike to

Walker’s face were objectively excessive or clearly

unreasonable, Privette didn’t violate Walker’s Fourth

Amendment right against unreasonable seizure. In each

instance, Privette instead took “measured and ascending

actions that corresponded to” Walker’s “escalating verbal

and physical resistance.” Poole, 691 F3d at 629 (quotation

marks and citation omitted).

A number of cases from the Fifth Circuit on analogous

facts fully accord with this holding. See Cloud v Stone,

993 F3d 379, 385–86 (5th Cir 2021) (finding no excessive

force where officer tased suspect who partially turned

toward officer, refused to turn back around, and then fully

turned toward officer with loose handcuff dangling from

wrist); Carroll v Ellington, 800 F3d 154, 176 (5th Cir 2015)

(finding force “was not unreasonable” where officers struck

with hickory stick, kicked, and took down resisting suspect,

then struck with fists and tased suspect several times as

he continued to resist); Poole, 691 F3d at 625–26, 629

(finding no excessive force where officers pinned suspect to

vehicle and tased him after he backed away and repeatedly

refused to surrender his arms, and then took suspect to

ground after he kicked and screamed at officers); Cadena,

728 F Appx at 296–97 (finding no excessive force where

four officers took down suspect after suspect backed away

from officer instead of placing hands behind his back, and

then twice tased suspect after he continued to resist).

Were there any doubt about whether a violation of

constitutional right occurred, the above list of cases

certainly makes clear that no official conduct violated

clearly established law. Indeed, the Fifth Circuit in Tucker

v City of Shreveport recently granted qualified immunity to

officers who took down a suspect after he failed to promptly

pull over once officers initiated the stop, grew increasingly

physically and verbally agitated once he exited his vehicle,

and tensed up when officers attempted to place him in

handcuffs. 998 F3d at 178–180. It also found those same

officers were “at a minimum” entitled to qualified

immunity regarding their use of force after the takedown,

where they punched and kicked suspect after he “freed his

arms from the officers’ grasps,” placed “them underneath

his body,” and kicked indiscriminately. Id at 184. And the

Fifth Circuit there suggested that distraction strikes “and

even kicks designed to gain compliance to being handcuffed

are ‘measured or ascending’ responses to an actively

resisting suspect.” Id at 181.

Summary judgment will be granted as to the Section

1983 claims against Privette for excessive force in violation

of the Fourth Amendment. To the extent that Walker also

brings this claim under the Fourteenth Amendment, it

likewise fails. See Dkt 25 at ¶¶ 2, 58. The Supreme Court

requires that claims for excessive force in the course of

arrest must be analyzed under Fourth Amendment

“reasonableness” standards rather than for substantive

due process. See Graham, 490 US at 395.

b. Claims for bystander liability

The Fifth Circuit holds that an officer who didn’t

personally act against the plaintiff may yet be liable under

a bystander-liability theory where the officer knows that a

fellow officer is violating an individual’s constitutional

rights, has a reasonable opportunity to prevent the harm,

and chooses not to act. Whitley v Hanna, 726 F3d 631, 646

(5th Cir 2013). Such standard plainly requires that a fellow

officer commit a constitutional violation before another

officer may be liable for failure to intervene.

With the claim for excessive force determined to be

without merit, the bystander-liability claims against Hein

and Webb necessarily fail. Summary judgment will be

granted in their favor.

c. Claims against the City of Houston

The claims against the City likewise fail. Quite simply,

the City can’t be held liable where neither Privette nor any

of the other Officer Defendants violated Walker’s

constitutional rights. Loftin v City of Prentiss, 33 F4th 774,

783 (5th Cir 2022).

The claims also fail for the independent reason that

Walker failed to respond to the City’s motion for summary

judgment. “It is well established in the Fifth Circuit that a

federal court may not grant a ‘default’ summary judgment

when no response has been filed.” Morgan v Federal

Express Corp, 114 F Supp 3d 434, 437 (SD Tex 2015)

(quotation marks and alteration omitted), citing Eversley v

MBank of Dallas, 843 F2d 172, 174 (5th Cir 1988). But if

no response to the motion for summary judgment has been

filed, the court may find as undisputed the statement of

facts in the motion for summary judgment. Ibid. The Fifth

Circuit likewise holds that when a nonmovant bears the

burden of proof at trial, a movant may make a proper

summary judgment motion under Rule 56 by alleging that

the nonmovant has “no evidence” of its claims. Austin v

Kroger Texas LP, 864 F3d 326, 335 (5th Cir 2017,

per curiam).

Walker alleged that the City failed to have a written

policy on the use of force and/or de-escalation tactics; has a

history of incidents of excessive force; has taken “formal

and informal actions in overlooking, hiding, and/or tacitly

encouraging police misconduct of other officers”; and failed

to train its officers. Dkt 25 at 44 69-71. He bears the

burden of proof on each of these claims.

The City contends that Walker has no evidence to

support these claims. It further submits and fully

establishes that it has specific policies governing police

officers which disprove Walker’s allegations; the evidence

refutes the alleged complaint history of Privette; the

complaints proffered by Walker to establish a pattern of

officer misconduct were either unfounded or isolated

unconstitutional actions by a single officer that can’t

support a claim against the City; and the defendant officers

all met minimum training requirements under Texas law.

See Dkt 38.

The motion for summary judgment by Defendant City

of Houston will be granted.

4. Conclusion

The motion by Defendants Shane C. Privette, Dalton T.

Webb, and Steven Kirkland Hein for summary judgment is

GRANTED. Dkt 37.

The motion by Defendant City of Houston is GRANTED.

Dkt 38.

The claims asserted by Plaintiff Dwayne Walker are

DISMISSED WITH PREJUDICE.

A final judgment will issue separately.

SO ORDERED.

Signed on September 13, 2022, at Houston, Texas.

Che 0 Falke Ss

Hon. Charles Eskridg

United States District Judge

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