# Baber v. Harris County Precinct 4 Sheriff

> District Court, S.D. Texas · April 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10676584

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** April 27, 2023
- **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/10676584

## How later opinions describe it (automated extraction)

- holding that the Court “need not rely on the plaintiffs description of the facts where the record discredits that description but should instead consider the facts in the light depicted by the videotape”

## Opinion text

Southern District of Texas
ENTERED
April 27, 2023
UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk
SOUTHERN DISTRICT OF TEXAS
_ HOUSTON DIVISION

JOHNNY BABER, §
(TDCJ #2335688), §

_ Plaintiff, §

vs. . § CIVIL ACTION NO. H-21-900
§ .
HARRIS COUNTY PRECINCT 4 §
SHERIFF, et al., §
§ □
Defendants. §
MEMORANDUM OPINION AND ORDER
While he was a state inmate, Johnny Baber, proceeding pro se and in forma
pauperis, filed a Prisoner’s Civil Rights Complaint under 42 U.S.C. § 1983 alleging
that multiple officers from the Harris County Sheriff's Office, Harris County
Precinct 1 Constable’s Office, and Harris County Precinct 4 Constable’s Office used
excessive force against him during an arrest. (Dkt. 1, pp. 3-4). At the Court’s
request, Baber supplemented his complaint with a More Definite Statement (Dkt. 8),
and a Supplemental More Definite Statement. (Dkt. 13). After screening the
complaint under 28 U.S.C. § 1915A(b), the Court dismissed the action as to five of
the defendants and ordered service of process on the remaining four defendants: Eric
Batton, Sergio Torres, Glenn Salisbury, and Byron Kizzee. (Dkt. 23). Batton,

Torres, and Salisbury answered the complaint,' (Dkts. 44, 45, 46), and filed a joint
motion for summary judgment. (Dkt. 49). Baber responded to the motion, (DKt.
51), and the defendants filed a reply. (Dkt. 53). Based on the motion, the response
and reply, the summary judgment evidence, all matters of record, and the law, the
Court grants the defendants’ motion for summary judgment and dismisses Baber’s
complaint for the reasons explained below.
I. BACKGROUND .
On April 2, 2019, two officers from the Harris County Precinct 1 Constable’s
Office conducted a traffic stop of 59-year-old Johnny Baber based on a report from
Baber’s former girlfriend that he was stalking her. (Dkt. 49-1, p. 2). In his sworn
More Definite Statement, Baber alleges that he initially stopped his SUV, but he
then panicked because there were bright lights shining ‘in his eyes and he was
concerned for his safety. (Dkt. 9, p. 1). He wanted to go to his house, where his son
was waiting, to submit to the stop. (/d. at 2). Baber then fled the trafficstop and led
police—including officers from the Precinct 1 Constable’s Office, the Precinct 4
Constable’s Office, and. the Harris County Sheriff's Office—on a 12-mile, high- □
speed chase through portions of northwest Harris County. (Ud.). At one point during
the chase, officers tried to stop Baber by deploying spike strips across the road, but

Despite multiple attempts at two different addresses, service of process on Byron
Kizzee was returned unexecuted. (Dkts. 24, 3)

_ Baber continued driving even after his SUV was partially disabled. (d.).
When Baber neared his house, he pulled into a cul-de-sac and tried to flee on
foot; however, a fence blocked the end of the road, and Baber was unable to jump it.
(Id.). Baber admits in his sworn Supplemental More Definite Statement that he was
carrying a firearm at that time, which he tried unsuccessfully to throw over the fence.
(Dkt. 13, p. 8). According to Baber, when the firearm fell to the ground, he turned
around, put his hands in the air, and surrendered. (/d.).
At that point according to Baber, several officers rushed at him and knocked
him to the ground with no warning or commands. (Dkt. 9, p. 2). The officers began
hitting him in the face and kneeing him in his side. (Id.). According to Baber, he

was not offering any resistance at that time. Ud.) The officers rolled him onto his □
stomach and placed him in handcuffs. (/d.). Then, while Baber was lying face down
in handcuffs and no longer offering any resistance, Torres and Salisbury. each tased
him in the back. (/d. at 2-3). Batton also punched him several times in the face and
neck after he was handcuffed and no longer resisting. (/d. at 3).
Baber was subsequently charged with evading arrest with a vehicle and felon
in possession of a firearm. (Dkt. 13, pp. 1, 6). He seeks damages for the pain and
suffering he endured because of the taser strikes and punches, as well as for the
emotional trauma he allegedly suffers because of the excessive force. (Dkts. 9, p. 4;
13, p. 5). □
.

.

The defendants answered Baber’s complaint and then filed a motion for

summary judgment. In support of that motion, they filed the incident investigation
report and supplemental report from the night of the arrest, along with their
individual affidavits. (Dkts. 49-1, 49-2, 49-3, 49-4, 49-5). These reports and sworn
testimony indicate that the police were initially called by Baber’s former girlfriend,
who reported that Baber had two active felony arrest warrants—one for a violation
of parole and the other for burglary of a habitation with the attempt to commit a
crime—and that he was currently across the street from her house at a storage
facility, driving a red SUV. (Dkt 49-1, pp. 4-5). She also reported that Baber was
known to carry a firearm. (Dkt. 49-2, p. 8).
The responding deputies confirmed that Baber had outstanding warrants, saw
ared SUV leaving the storage facility, and conducted a traffic stop. (Dkts. 49-1, p.
5; 49-2, p. 8). Baber initially stopped and got out of the SUV, but when the officers
started to approach him, he began yelling and waving his arms. (/d.). Baber then
got back into the SUV and fled from the officers at a high rate of speed. (/d.).
The officers gave chase. (Dkt 49-1, p. 5). During the chase, officers twice
deployed spike strips across Baber’s path, but Baber continued to flee. (Dkt. 49-2,
p. 2). The chase ended approximately twelve miles later in a residential
neighborhood when officers cornered Baber in a cul-de-sac. (Dkts. 49-1, p. 5; 49-2,
p. 2).

Once Baber was cornered, Salisbury saw him bail out of the SUV and flee
with a firearm in his hand. (Dits. 49-1, p. 5; 49-2, p. 4; 49-3, p. 2). Batton also saw
Baber run from the SUV with “unknown objects clasped in both hands.” (Dkt. 49-
5, p. 2). Baber fled on foot until he reached an eight-foot-tall privacy fence. (Dkts.
‘49-1, p. 5; 49-2, p. 4; 49-3, p. 2). When Baber could not jump the fence, he turned
back toward the pursuing officers and pointed a small caliber firearm in Batton’s
direction. (Dkt. 49-5, p. 3). Batton raised his firearm, but before he could fire,

Kizzee tackled Baber, knocking him to the ground and knocking the firearm out of
his hand in the process. (Dkts. 49-3, p. 3; 49-5, p. 3).

Once on the ground, Baber resisted the officers who were trying to handcuff
him by thrashing his body, jerking his arms, and kicking his legs. (Dkts. 49-5, p. 3;
49-4, p.3). He was also repeatedly yelling, “Kill me.” (Dkt. 49-3, p. 3). To attempt
to stop Baber from resisting, Salisbury fired his taser once into the center of Baber’s
back. (Dkt. 49-3, p. 3). Because Baber was still resisting, Torres also fired his taser

once into Baber’s lower back. (Dkt. 49-4, p. 3). Torres additionally used a “drive
stun” technique on Baber’s lower back to ensure that the taser hit would be effective.
(Id.). Because Baber would not move his right arm out from under his body and
concerned that he might be trying to hide a second weapon, Batton delivered two or
three closed fist strikes to Baber’s jaw and neck to try to stop the resistance. (Dkt.
49-5, p. 3). After the tasers were deployed and the punches delivered, Salisbury was

able to get Baber’s right arm behind him and secure him in handcuffs. (Dkt. 49-3,
p. 3). Neither Salisbury nor Torres used their tasers after Baber was handcuffed, and
Batton denies striking Baber after he was handcuffed. (Dkts. 49-3, p. 3; 49-4, p. 3;
49-5, p. 3). Once Baber was secured, the firearm was recovered a short distance

away. (Dkt. 49-2, p. 9).
In addition to these reports and affidavits, the defendants filed a video
recording of portions of the events of April 2, 2019. (Dkt. 49-6). The video shows
multiple officers pursuing a red suv at high speed through the streets of Harris

County. (/d. at 17:45-24:11). Audio of the officers’ radio transmissions indicates
that a helicopter was also assisting in the pursuit. (/d. at 18:23). Less than thirty
seconds after the SUV stops in the cul-de-sac, Baber is tackled to the ground, where
he can be seen resisting the officers. (Jd. at 24:04-24:30). Audio captures the sound
of the taser being deployed, while the video shows Baber struggling against an
officer who is trying to pull Baber’s right arm out from under his body. (/d.). Less
than one minute later, Baber is secured in handcuffs and all of the officers step away.

(Id. at 25:18). No additional tasers are fired, and the officers are no longer on the
ground with Baber. (/d.). A short time later, Baber is escorted toward a patrol car,
walking under his own power. (Jd. at 27:45-27:57).
In his response to the defendants’ motion, Baber admits that his initial
attempts to flee were “ill-advised.” (Dkt. 51, p. 1). He also admits that he made an

“imprudent decision” to flee on foot. Ud. at 1-2), However, he denies that he had a
firearm in his hand when he fled from the SUV. (/d. at 2). He also alleges that once
he could not jump the fence, he turned around and peacefully submitted to the arrest
with further resistance. (/d. at 2-3). He asserts that he posed no threat to the officers
when they tackled him to the ground and tased him and that the defendants’ use of
tasers ‘and closed-fist punches at that time was excessive force. (/d. at 4). He also
alleges that factual disputes about the existence of the firearm and when the force
used should preclude entry of summary judgment in favor of the defendants.
(Id at4-5)
In their reply, the defendants point out that Baber previously admitted in his

sworn Supplemental More Definite Statement that he was carrying a firearm when
he fled on foot from the SUV. (Dkt. 53, p. 6). They also assert that the video belies
Baber’s contention that he peacefully surrendered to the officers. U/d.). They argue
that when considered in light of all the evidence, their actions were reasonable and
they should be entitled to summary judgment. (Id. at 8-10).
IL. LEGAL STANDARDS
A. Actions Under 42 U.S.C. § 1983

Baber filed his complaint against the defendants under 42 U.S.C. § 1983.
“Section 1983 does not create any substantive rights, but instead was designed □□
provide a remedy for violations of statutory and constitutional rights.” Lafleur v.
7

Texas Dep’t of Health, 126 F.3d 758, 759 (Sth Cir. 1997) (per curiam); see also
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). To state a valid claim under
§ 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution

or laws of the United States, and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988); Gomez v Galman, 18 F.4th 769, 775 (Sth Cir. 2021) (per curiam).
The dispute in this case focuses on the first element: whether the defendants violated
Baber’s constitutional rights.
B. Summary-Judgment Standard
The defendants have filed a motion for summary judgment. “Summary -
judgment is appropriate only if ‘the movant shows that there is no genuine issue as
to any material fact and the movant is entitled to judgment as a matter of law.”
Tolan v. Cotton, 572 U.S. 650, 656-57 (2014) (per curiam) (quoting FED. R. Civ. P.
56(a)). “The movant bears the burden of identifying those portions of the record it
believes demonstrate the absence of a genuine issue of material fact.” Triple Tee □
Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (Sth Cir. 2007) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-25 (1986)). “A fact is material if its resolution could
affect the outcome of the action.” Dyer v. Houston, 964 F.3d 374, 379 (Sth Cir.
2020) (quoting Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134,
134 (5th Cir. 2010)). “A dispute is genuine if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Westfall v. Luna, 903 F.3d
534, 546 (Sth Cir. 2018) (cleaned up).
When considering a motion for summary judgment, the Court must view all
evidence and draw all inferences “in the light most favorable to the [nonmoving]
party.” Tolan, 572 U.S. at 657 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970)); see also Dyer, 964 F.3d at 380. However, if record evidence clearly ©
contradicts the plaintiffs version of events, the Court “should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.” Waddleton

v. Rodriguez, 750 F. App’x 248, 253-54 (5th Cir. 2018) (per curiam) (quoting Scott

v. Harris, 550 U.S. 372, 380 (2007)). This is particularly true when there is video
evidence. When video evidence exists, the Court will “view|] the facts in the light
depicted by the videotape.” Salazar v. Molina, 37 F.4th 278, 280 (Sth Cir. 2022)
(quoting Scott, 550 U.S. at 381), cert. denied, No. 22-564, 2023 WL 3046124 (Apr.
24, 2023); see also Betts v. Brennan, 22 F.4th 577, 582 (Sth Cir. 2022) (“[W]e assign
greater weight, even at the summary judgment stage, to the video recording taken at
the scene.”); Carnaby v. City of Houston, 636 F.3d 183, 187 (Sth Cir. 2011) (“A
court of appeals need not rely on the plaintiff's description of the facts where the
record discredits that description but should instead consider the facts in the light
depicted by the videotape.”). The Court “will not adopt facts that are clearly
contradicted by the video.” Waddleton, 750 F. App’x at 254 (citing Scott, 550 U.S.
9

at 378).
If the moving party satisfies its initial burden, the burden shifts to the opposing

party to point to evidence that shows that genuine disputes of material fact exist. See
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (en banc). This burden
cannot be satisfied with conclusory allegations or unsubstantiated assertions. □□□
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586
(1986)). Instead, the nonmoving party must identify specific facts in the record that
show that there is a genuine issue for trial. Jd. (citing Celotex, 477 U.S. at 325). “If
the nonmoving party fails to meet this burden, the motion for summary judgment
must be granted.” Jd. at 1076.
C. Pro Se Pleadings
Because Baber is representing himself, the Court construes his pleadings
liberally, subjecting them to “less stringent standards than formal pleadings drafted

. lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But even
under this lenient standard, self-represented litigants must still “abide by the rules
that govern the federal courts.” E.E.0.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (Sth
Cir. 2014) (quoting Frazier v. Wells Fargo Bank, N.A., 541 F. App’x 419, 421 (Sth
Cir. 2013)). “Pro se litigants must properly plead sufficient facts that, when liberally
construed, state a plausible claim to relief, serve defendants, obey discovery orders,
present summary judgment evidence, file a notice of appeal, and brief arguments on
10

appeal.” Jd. (footnotes omitted). |
Ill. DISCUSSION
A. Excessive Force .
Arrestees like Baber have the right under the Fourth Amendment to be free □
from the use of excessive force. See Brousseau v. Haugen, 543 US. 194, 197
(2004). However, “the right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of areeicnl coercion or threat thereof to
effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). Therefore, to prevail on

an excessive force claim under the Fourth Amendment, the arrestee must prove that
he suffered an “(1) injury (2) which resulted directly and only fom a use of force
that was clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.” Malbrough v. Stelly, 814 F. App’x 798, 802-03 (Sth Cir. 2020)
(quoting Ramirez v. Knoulton, 542 F.3d 124, 128 (Sth Cir. 2008)); see also Deville
y. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009).
The critical question in a Fourth Amendment excessive force case is whether
the force used to effect the particular seizure or arrest was “reasonable.” Graham,
490 U.S. at 396. Whether the force used was reasonable “depends on the facts and
circumstances of the particular case.” Cooper v. Brown, 844 F.3d 517, 524-25 (Sth
Cir. 2016). The relevant facts and circumstances include “the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of the officers
11

or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396. Moreover, because police officers must make
split-second decisions in “tense, uncertain, and rapidly evolving” situations, the
Court considers the reasonableness of the force used from the perspective of a
reasonable officer on the scene “rather than with the 20/20 vision of hindsight.” Id.
at 396-97. Considering these factors in light of the summary judgment evidence in
this case compels the Court to conclude that the force used by the defendants against
Baber was not unreasonable. .
1. Severity of the Crime
The first Graham factor is “the severity of the crime at issue.” Jd. at 396.
Baber was initially stopped based on allegations of stalking and the existence of two
outstanding felony warrants. He fled from the initial traffic stop and led officers on

atwelve-mile, high-speed chase through a large portion of northwest Harris County,
posing a threat not only to the officers in pursuit but also to pedestrians and other
motorists in the area. When Baber was cornered in a cul-de-sac in a residential
neighborhood, he fled on foot while carrying a firearm, posing further risks to both
the officers and innocent bystanders. He was subsequently charged with evading
arrest with a vehicle and felon in possession of a firearm.
In general, “leading law enforcement in a high-speed chase through a heavily
populated area is a serious crime that puts at risk not only the lives of Plaintiff and
12

the officers but also those of the general public.” Salazar, 37 F.4th at 281-82.

Indeed, the Fifth Circuit has found “far less dangerous offenses to be ‘serious’ for

purposes of the first Graham factor.” Id. at 282 (citing Cooper, 844 F.3d at 522
(finding DUI to be a serious offense); Brothers v. Zoss, 837 F.3d 513, 519 (Sth Cir.
2016) (DUI and interfering with the duties of a public servant are serious offenses)).
Because of Baber’s high-speed flight, as well as his possession of a firearm while
doing so, this factor weighs against finding that the defendants’ use of force was
unreasonable.
2. Threat to Safety
The second Graham factor is “whether the suspect poses an immediate threat
to the safety of the officers or others.” Graham, 490 U.S. at 396. Baber argues that
he was attempting to peaceably surrender and posed no threat to anyone’s safety
when the defendants tased and punched him. He asserts that in determining whether
he posed a threat, the Court should not consider any of the events that occurred
before he ceased his flight at the fence. (Dkt. 51, p. 4).
However, the Fifth Circuit has explicitly rej ected this argument, explaining:
Salazar’s position [that the court should not consider his actions before
his surrender] comports with neither common sense nor our precedent.
_ First, as a matter of common sense, what preceded the surrender
matters. A reasonable officer will have little cause to doubt the
apparent surrender of a compliant suspect who has not engaged in
dangerous or evasive behavior. But when a suspect has put officers and
bystanders in harm’s way to try to evade capture, it is reasonable for
13

officers to question whether the now-cornered suspect’s purported
surrender is a ploy. That’s especially true when a suspect is
unrestrained, in close proximity to the officers, and potentially in
possession of a weapon.
Salazar, 37 F.4th at 282; see also Scott, 550 U.S. at 383 (considering all of the
circumstances involved in Harris’s ten-mile, high-speed flight from the pursuing
officers in determining whether the force used to actually seize him was
unreasonable); Escobar v. Montee, 895 F.3d 387, 394-95 (Sth Cir. 2018) (allowing
the court to consider all of the circumstances that indicated that the suspect might
still be a threat despite his apparent surrender).
Baber also argues that whether he had a firearm when he fled on foot is a
disputed issue of fact that precludes summary judgment. (Dkt. 51, p. 2). But Baber
admitted in his sworn Supplemental More Definite Statement that he had the firearm
in his hand when he fled the SUV and that he tried unsuccessfully to throw it over
the fence before turning to face the pursuing officers. (Dkt. 13, p. 8). A party cannot
create a genuine issue of material fact sufficient to avoid summary judgment by
contradicting his own prior sworn statements. See Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795, 806 (1999); In re Deepwater Horizon, 857 F.3d 246, 250 (Sth

Cir. 2017). The Court will credit Baber’s initial sworn testimony on this point over
his unsworn and contradictory allegations made in response to the defendants’:
motion.
14

The summary judgment evidence and undisputed facts show that the officers
initially stopped Baber based on two outstanding felony warrants and a current
mileaanion of stalking. Baber fled from that initial stop and led officers on an
extended high-speed chase, refusing to stop even after spike strips partially disabled
the SUV. When he found himself trapped in a cul-de-sac, Baber fled on foot with a
firearm in hand and ceased his flight only when he could not scale a fence. At that
point, the defendants could rightly question whether Baber’s purported surrender
was a ploy and could reasonably believe that some force was necessary to subdue
and arrest him. This Graham factor weighs against a finding that the defendants

. used excessive force in arresting Baber.
3. Active Resistance or Flight □
The third Graham factor is “whether [the suspect] is actively resisting arrest
or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The Fifth Circuit
has concluded that this factor “largely folds into the second. If [the suspect] may
have posed a threat, then he also might have attempted to flee.” Escobar, 895 F.3d
at 396.
The evidence before the Court shows that Baber led multiple officers on an
extended high-speed chase on heavily traveled roads in Harris County before trying
to escape on foot while carrying a firearm. Only an eight-foot privacy fence stopped
Baber’s flight. These facts made it reasonable for the defendants to fear that Baber
15

still sought to escape and weigh against any finding that the force used was
excessive.
In his reply, Baber contends that even if the use of some force was reasonable
when making the arrest, the force became excessive when the defendants beat and
tased him after he was handcuffed. (Dkt. 51, p. 4). But the video evidence
contradicts Baber’s assertion that force was used at that point. Instead, the video
shows that Baber was tased and punched only while he was still resisting and before
the officers were able to secure him in handcuffs. (Dkt. 49-6 at 24:30-25:18). Once
Baber was secured in handcuffs, the taser was not fired again and the officers all
stepped away from him. (/d.- at 25:18). The Court will not accept Baber’s’ .
unsupported allegations that are contradicted by the video evidence. See Carnaby,
636 F.3d at 187 (holding that the Court “need not rely on the plaintiffs description
of the facts where the record discredits that description but should instead consider
the facts in the light depicted by the videotape”). The third Graham factor supports
the reasonableness of the defendants’ use of force to subdue and handcuff Baber.
In sum, when the defendants decided to deploy their tasers and fists against
Baber, he had just fled from a traffic stop, led the police on a twelve-mile, high-
speed chase, attempted to flee on foot while brandishing a firearm, and finally

- attempted to jump an eight-foot privacy fence. These events could reasonably cause
the defendants to be concerned about the sincerity of Baber’s purported surrender.
16

The totality of the force deployed—two tasings and two closed-fist punches—was
not objectively unreasonable when considered in light of all of these facts. The
defendants’ actions were not an unreasonable use of force under the circumstances
and did not turn Baber’s lawful arrest into an unreasonable seizure under the Fourth
Amendment. The defendants are entitled to summary judgment in rereerver on
Baber’s excessive force claim. .

B. Qualified Immunity
Alternatively, even if there was some evidentiary basis upon which to
conclude that the defendants’ use of force was urireasonable, they would be entitled
to summary judgment under the doctrine of qualified immunity. “[Qlualified
immunity shields officials from civil liability so long as their conduct ‘does not
violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). A right is clearly
established when its existence is “sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Reichle v.
Howards, 566 U.S. 658, 664 (2012) (cleaned up). In the context of a high-speed
chase, “the law must be so clearly established that—in the blink of an eye, in the
middle of a high-speed chase—every reasonable officer would know . . .
immediately” that his actions were violating the law. Morrow v. Meachum, 917 F.3d
17 :

870, 876 (Sth Cir. 2019).
When a government official moves for summary judgment on the basis of
qualified immunity, “the burden then shifts to the plaintiff, who must rebut the
defense by establishing a genuine fact [dispute] as to near the official’s allegedly
wrongful conduct violated clearly established law.” Dyer, 964 F.3d at 380
(alteration in original) (quoting Brown v. Callahan, 623 F.3d 249, 253 (Sth Cir.

_ 2010)); see also Ramirez v. Escajeda, 44 F 4th 287,.291 (Sth Cir. 2022). “This
burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by only a scintilla of
evidence.’” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (Sth Cir. 2005)
(quoting Little, 37 F.3d at 1075). Instead, the nonmoving party must identify
specific evidence in the record and explain how that evidence supports that party’s
claim. See Willis v. Cleco Corp., 749 F.3d 314, 317 (Sth Cir. 2014).
Baber does not meet this burden. He admits that he had active felony warrants
for his arrest when the initial traffic stop occurred. He admits that he fled from he
officers after the initial stop. He admits that he led officers on a twelve-mile, high-
speed chase and that he tried to flee on foot after stopping his SUV. He admits that
he had a firearm in his hand as he fled. While he alleges that he had stopped resisting
before Salisbury and Torres deployed their tasers and before Batton punched him,
the video evidence shows that Baber was still resisting when the tasers were
18

deployed and that the taser shots ended as soon as he was securely handcuffed. (Dkt.
49-6 at 24:30-25:18). While Baber might be correct that the use of tasers after he

was handcuffed would be excessive force, the evidence does not show that those are
the facts here. And even if this Court were to find that either the second taser shot

or the punches were unnecessary—a finding this Court does not make—“[n]ot every
push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers” constitutes excessive force. Hudson v. McMillian, 503 U.S. 1, 9 (1992)
(citation omitted). Baber’s prior flight, his possession ofa firearm, and his active ©

resistance to the arresting eaicee supported the use of some force to gain his
compliance. While the alleged munen and second taser shot may have prosred| the
line of excessiveness, given the threat posed by Baber’s actions and the need
secure him, they did not clearly do so.
Baber fails to point to evidence sufficient to show a factual dispute material -

to the issue of whether the defendants violated clearly established law in using the
force they did, and his unsupported assertions that the taser shots and punches were
unnecessary are insufficient. Even ifthe force used was constitutionally excessive,
the defendants would be entitled to summary judgment in their favor on the basis of
qualified immunity.
C. Defendant Kizzee .
The Court initially ordered service on Deputy Kizzee through the Harris
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County Precinct 4 Constables Office. (Dkt. 23). Service on Kizzee was returned
unexecuted with a notice that he is no longer employed by that office. (Dkt. 24).
The Court ordered the Constables Office to provide its last-known address for

Kizzee. (Dkt. 29). After receiving that information, (Dkt. 34), the U.S. Marshals
attempted to serve Kizzee at his last-known address, but service was again returned
unexecuted. (Dkt. 39). As of the date of this Order, the Court has been unable to

serve Kizzee with the summons and complaint. Until Kizzee is properly served, he
is not a proper party to this case, and the Court a not enter a default or a default
judgment against him. See, e.g., Thompson v. Johnson, 348 F. App’x 919, 923 (Sth
Cir. 2009) (per curiam); Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933,
937 (Sth Cir. 1999) (holding that until a defendant is served with the summons and
complaint, “the defendant has no duty to answer the complaint and the plaintiff
cannot obtain a default judgment”); Broadcast Music, Ine. v. M.T.S. Enters., Inc.,
811 F.2d 278, 282 (Sth Cir.1987) (“No person need defend an action nor suffer
judgment against him unless he has been served with process and properly brought
before the court.”’). .

However, the issues raised in the defendants’ motion for summary judgment
apply equally to Kizzee. The Fifth Circuit has held that when one defending party
establishes that the plaintiff has no cause of action, the defense can be applied to the
benefit of other, similarly situated defendants. See Lewis v. Lynn, 236 F.3d 766, 768 ©
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(5th Cir. 2001) (quoting United States v. Peerless Ins. Co., 374 F.2d 942, 945 (4th
Cir. 1967)). Because the evidence shows that all of the defendants were present at
the same scene of Baber’s arrest and because the summary judgment evidence shows

. that the remaining defendants are entitled to qualified immunity, Kizzee—as a
similarly situated defendant—would likewise be entitled to qualified immunity.
Baber’s claim against Kizzee, based on the same allegations of excessive force that
apply to the other defendants, fails for the same reason. His claims against Kizzee

be dismissed as barred by qualified immunity. .
IV. CONCLUSION

. Based on the forecoiies the Court ORDERS as follows:
1. The defendant’s motion for summary judgment, (Dt. 49), is GRANTED.
2. This action is DISMISSED with prejudice. =

3. Any pending motions are DENIED as moot.

The Clerk shall provide a copy of this order to the parties. .
SIGNED at Houston, Texas on ( Af A. ZT , 2023.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10676584. Public record. Not legal advice.