The opinion
March 22, 2023
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JANE DOE, on behalf of § CIVIL ACTION NO
M.F., § 4:19-cv-01297
Plaintiff, §
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
HARRIS COUNTY §
PRECINCT SIX §
CONSTABLE SYLVIA §
TREVINO and §
BRANDIN GLISPY, §
Defendants. §
ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
The motion by Defendant Sylvia Trevino for summary
judgment is granted. Dkt 77. All other motions are denied
as moot. See Dkts 76 & 81.
1. Background
This action for violation of civil rights arises from the
sexual assault of Plaintiff Jane Doe by Defendant Brandin
Glispy in April 2017. Glispy was then a sergeant for Harris
County Precinct Six. He allegedly assaulted another
woman several months earlier in January 2017. Defendant
Sylvia Trevino was serving as constable for the precinct at
these times.
The details of Doe’s sexual assault by Glispy aren’t in
dispute. While on patrol the night of April 24, 2017, Glispy
stopped Doe three separate times, purportedly for a broken
headlight. Glispy directed Doe on the third stop to a dark
and secluded parking lot, where he sexually assaulted her.
The assault began on the pretext of a pat-down search. See
Dkt 77-11.
Doe testified in her deposition that she reported the
sexual assault to “law enforcement or 911” when she
returned home that night. Dkt 77-10 at 3. The Houston
Police Department arrested Glispy a short time later and
opened an investigation led by Detective Latonia Bailey.
See Dkts 77-11, 77-12 & 90, Ex 4 at HC 1293. Precinct Six
was also informed of the allegation against Glispy. Its
Internal Affairs Division conducted a separate investiga-
tion led by Sergeant Paul Fernandez. See Dkts 77-12 & 90,
Ex 4 at HC 1273. Trevino suspended Glispy within a day of
the assault and terminated his employment within three
days. Dkt 77-6 at 14–15.
HPD’s criminal investigation culminated in Glispy’s
conviction in state court in 2018. He was sentenced to eight
years imprisonment. See Dkt 90, Exs 3 & 4 at HC 1297.
He’s still serving his sentence and hasn’t appeared in this
matter.
Glispy allegedly sexually assaulted a different woman,
identified as D.R., in January 2017. The HPD report on
Glispy’s assault of Doe indicates that Glispy first met D.R.
while patrolling Heatherbrook Apartments as an off-duty
officer and later assaulted her in the restroom of a nearby
Popeye’s restaurant. See Dkt 90, Ex 4 at HC 1277–1278.
The parties dispute when Precinct Six became aware of
this other alleged assault. Trevino testified in her
deposition that she didn’t learn of the allegation until after
she learned of Glispy’s assault of Doe. Dkt 77-6 at 8.
Fernandez also so testified. Dkt 92-1 at 8:9–10. Doe has
submitted several items of evidence—subject to objections
by Trevino addressed below—to call that testimony into
question. These include:
o First, the HPD report by Detective Bailey,
which contains notes from an interview with
Sergeant Fernandez. There, Fernandez
reportedly said that he received a similar
allegation against Glispy from a third party in
January 2017 and tried but failed to “reach out
to the alleged complainant.” Dkt 90, Ex 4 at
HC 001273.
o Second, deposition testimony by D.R. in her
civil lawsuit, which indicates that the assault
may have been reported to and investigated by
Precinct Six before April 2017. Dkt 90, Ex 5
at PDF 8, 13.
o Third, testimony of Detective Bailey from
Glispy’s criminal trial, in which Bailey
confirms that she learned through her
investigation that a complaint had been made
to Precinct Six in January 2017. Dkt 90, Ex 5
at PDF 29, 56.
o Fourth, the statement by Michael Pappillion, a
former lieutenant for Precinct Six. He says that
an allegation of assault against Glispy was
discussed at a command-staff meeting that
both he and Trevino attended in March 2017.
Dkt 90, Ex 8.
Precinct Six policy and related testimony also suggests
that, if any report of sexual assault had been made to
Precinct Six, then Trevino would have been made aware
of it. The policy states, “The Office of Internal Affairs will
immediately notify the Constable of serious complaints or
a pattern of complaints against the Agency or its
employees,” such as a complaint of “sexual harassment.”
Dkt 77-13 at 2. And Fernandez at his deposition testified,
“Any allegation regarding an employee would be told to
[Constable Trevino].” Such complaints, he said, go “to her
first.” Dkt 92-1 at 14:14–15.
Jane Doe sued Glispy for the sexual assault. She also
sued several others for (in essence) failing to prevent it.
Dkt 16. These included Harris County, Constable Trevino,
former Constable Heliodoro Martinez, and the Lynd
Company (which manages the Heatherbrook Apartments).
The claims against Martinez, Harris County, and the Lynd
Company were dismissed early in this action. Dkt 54. That
leaves only the claims brought against Glispy and Trevino
under Section 1983.
Trevino now moves for summary judgment on the
claim against her, which proceeds on a supervisory-liability
theory. She asserts qualified immunity. Dkt 77. Doe and
Trevino each also object to each other’s summary-judgment
evidence. See Dkts 86 at 4–5 & 94. There are also separate
motions to exclude each other’s expert witnesses. See
Dkts 76 & 81.
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).
Important here, a “good-faith assertion of qualified
immunity alters the usual summary judgment burden of
proof, shifting it to the plaintiff to show that the defense is
not available.” Valencia v Davis, 836 F Appx 292, 297
(internal quotations omitted); see also Batyukova v Doege,
994 F3d 717, 724. To rebut the defense, the plaintiff must
establish “that the official’s allegedly wrongful conduct
violated clearly established law and that genuine issues of
material fact exist regarding the reasonableness of the
official’s conduct.” Valencia, 836 F Appx at 297, quoting
King v Handorf, 821 F3d 650, 654 (5th Cir 2016).
3. Summary judgment evidence
The Fifth Circuit holds, “Generally, the admissibility of
evidence on a motion for summary judgment is subject to
the usual rules relating to form and admissibility of
evidence.” Munoz v International Alliance of Theatrical
Stage Employees and Moving Picture Machine Operators of
the United States and Canada, 563 F2d 205, 213 (5th Cir
1977) (citation omitted). “The burden is on the proponent
to show that the material is admissible as presented or to
explain the admissible form that is anticipated.” Smith v
Palafox, 728 F Appx 270, 275 n 3 (5th Cir 2018) (quoting
advisory committee note to 2010 amendment to Rule 56).
Trevino objects to all evidence that might suggest she
was aware of the January 2017 sexual assault of D.R.
before the April 2017 assault of Doe. Dkt 94. This includes:
o First, the HPD incident report containing the
statement by Fernandez. Trevino objects on the
grounds that it contains hearsay within
hearsay and isn’t properly authenticated. Id
at 10–12.
o Second, the deposition testimony by D.R. in her
state-court lawsuit. Trevino objects on the
grounds that it wasn’t produced before
discovery closed, D.R. wasn’t timely identified
as a person likely to have discoverable
information, and the deposition isn’t a part of
the record of this case. Id at 8–9, 12–14.
o Third, the trial testimony by Detective Bailey
in Glispy’s criminal case. Trevino objects on the
same grounds as the deposition testimony. Id
at 8–9, 14.
o Fourth, the statement by Pappillion. Trevino
objects on the grounds that it isn’t properly
verified, wasn’t produced before discovery
closed, and contains both hearsay and
statements not based on personal knowledge.
Id at 8–9, 14–20.
Given the proponent’s burden, courts routinely sustain
objections to summary-judgment evidence when the
proponent fails to respond. See Sivertson v Citibank,
2019 WL 2519222, *5 (ED Tex) (collecting cases). Quite
problematic here, then, is the fact that Doe hasn’t
responded to any of these objections filed months ago. Her
counsel has thus waived opposition to these objections and
otherwise has failed to show that the subject evidence is
admissible. See ibid. In addition, the factual contentions
and legal arguments within Trevino’s brief on objections
are entirely unrebutted. They are thus assumed to be valid.
Trevino’s objections are sustained for the reasons
stated in her brief and due to Doe’s failure to respond and
oppose. Dkt 94. The exclusion of these items of evidence
means summary judgment will be granted in favor of
Trevino, as discussed next. Doe’s objections to Trevino’s
evidence and the pending motions to strike needn’t be
considered.
4. Analysis
Trevino contends that she’s entitled to qualified
immunity as against Doe’s claims against her. Dkt 77.
Analysis of qualified immunity on summary judgment
proceeds on two prongs. See Aguirre v City of San Antonio,
995 F3d 395, 406 (5th Cir 2021); see also Batyukova,
994 F3d at 724–25 (5th Cir 2021). A court must first ask
“whether the facts, taken in the light most favorable to the
party asserting the injury, show the officer’s conduct
violated a federal right.” Aguirre, 995 F3d at 406, quoting
Tolan v Cotton, 572 US 650, 655–56 (2014). If the plaintiff
establishes a violation of a federal right, a court must then
determine whether the right was “‘clearly established’ at
the time of the violation.” Tolan, 572 US at 656, quoting
Hope v Pelzer, 536 US 730, 739 (2002).
The ruling above makes clear that Doe lacks
admissible evidence demonstrating that Trevino violated a
federal right. As such, only the first question need be
addressed.
a. Failure-to-act claim
Doe’s primary allegation is that Trevino failed to
discipline or supervise Glispy after having learned of a
prior sexual-assault allegation against him, and that her
failure to do so resulted in Doe’s assault. Trevino argues in
reply, “There is no competent summary judgment evidence
that Trevino had any personal knowledge that Glispy had
sexually assaulted other women prior to Plaintiff or that he
would sexually assault Plaintiff when he pulled her over
for a traffic stop.” Dkt 92 at 4–5. As a result, she argues,
Doe can’t show that Trevino acted with deliberate
indifference to her rights, as necessary for a supervisory-
liability claim.
This is correct. “In order to establish supervisor
liability for constitutional violations committed by
subordinate employees, plaintiffs must show that the
supervisor acted, or failed to act, with deliberate
indifference to violations of others’ constitutional rights
committed by their subordinates.” Peña v City of Rio
Grande City, 879 F3d 613, 620 (5th Cir 2018) (cleaned up).
Deliberate indifference is “a stringent standard of fault,”
one requiring proof that a municipal actor “disregarded a
known or obvious consequence of his action.” Porter v Epps,
659 53d 440, 446 (5th Cir 2011) (citation omitted).
Doe argues that a genuine issue of fact exists as to
whether Trevino disregarded a known or obvious risk of
failing to discipline or supervise Glispy. See Dkt 86 at 12–
13. But this argument depends entirely on whether
Trevino learned of the sexual assault that Glispy allegedly
committed against D.R. before she learned of the assault
he committed against Doe. And in this respect, Doe points
only to the comments by Fernandez contained in the HPD
report. That report is inadmissible, however, given Doe’s
failure to take issue with Trevino’s objections to it. All
other evidence potentially suggesting that Trevino was
aware of the earlier allegation has been ruled inadmissible
for the same reason.
As a result, Doe proffers no admissible evidence to
support a conclusion that Trevino knew of the alleged prior
assault before April 2017. Nor does she identify any other
evidence indicating that it would have been obvious to her
that Glispy was at risk of sexually assaulting a woman in
the course of his employment.
All of this together means that Doe can’t support her
assertion that Trevino acted with deliberate indifference in
failing to train or supervise Glispy.
Summary judgment will be granted on this claim.
b. Stop-and-frisk claims
Doe also claimed in her complaint that Trevino failed
to train deputies regarding stop-and-frisk practices during
traffic stops, and that she “promulgated a policy and
custom under which unconstitutional [stop-and-frisk]
practices occurred.” Dkt 16 at ¶¶ 68, 70. Trevino moves on
these claims in her motion. Dkt 77 at 14–17. Doe doesn’t
address them in response. See Dkt 86. Nor does she offer
any evidence indicating that Trevino failed to train
deputies on stop-and-frisk policies or promulgated a policy
that resulted in unconstitutional behavior by deputies.
Summary judgment will be granted on these claims.
5. Conclusion
The objections by Defendant Sylvia Trevino to the
summary judgment evidence submitted by Plaintiff Jane
Doe are SUSTAINED. Dkt 94.
Trevino’s motion for summary judgment is GRANTED.
Dkt 77.
All other pending motions are DENIED AS MOOT. See
Dkts 76 & 81.
Upon entry of this order, only the claim against Glispy
will appear to remain. If Doe wishes to seek entry of default
against him, she may do so on appropriate motion.
SO ORDERED.
Signed on March 22, 2023, at Houston, Texas.
Che 0 Frc =
Hon. Charles Eskridge
United States District Judge