# Walker v. City Of Houston

> District Court, S.D. Texas · September 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10675823

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675823

## How later opinions describe it (automated extraction)

- 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
- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675823. Public record. Not legal advice.