The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 28, 2007
Charles R. Fulbruge III
No. 05-20718 Clerk
Summary Calendar
ALEJANDRO SANTIAGO,
Plaintiff - Appellant
versus
CITY OF HOUSTON and OFFICER RICHARD PEDERSON,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
(No. 4:04-CV-1103)
Before SMITH, WIENER, and OWEN Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Alejandro Santiago appeals the district
court’s order granting summary judgment in favor of Defendants-
Appellees, the City of Houston (the “City”) and Officer Richard
Pederson (“Pederson”). Santiago also appeals the district court’s
denial of his motion to enlarge discovery. We affirm.
I. Facts and Proceedings
Santiago lived with his two siblings and their spouses and
*
Under 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
children in an apartment on the second floor of a two-story
apartment building in Houston. In July 2003, Santiago’s brother
allowed a co-worker, Pete Flores Cervantes (“Cervantes”), to store
a bag at the apartment. When Cervantes returned the following
evening to retrieve his belongings, he and Santiago got into a
heated discussion. Cervantes left the apartment building and
reported to nearby police officers that a man in the apartment
complex had pointed a gun at him.
Four police officers —— Griffin, Hernandez, Topper, and
Pederson —— went to the apartment complex to investigate the
report. Hernandez, Griffin, and Topper went upstairs and stood on
a balcony outside of Santiago’s apartment, while Pederson remained
in the courtyard in front of the apartment. Hernandez reported
seeing movement behind the blinds at the front of the apartment and
hearing someone answer from inside. He also reported seeing
someone’s hand stick through the window blinds holding what
appeared to be a small silver pistol. Pederson stated that he saw
the incident, but he described the gun as a blue steel pistol.
Pederson and Griffin yelled to the other officers that a gun was
present. Hernandez ordered the individual to drop the weapon and
come out of the apartment with his hands up. The hand and gun then
disappeared behind the blinds.
The officers next saw a hand holding a pistol protruding from
the apartment’s front window; the gun was aimed at the officers on
the balcony. Hernandez, Griffin, and Topper attempted to take
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cover. When he saw a firearm aimed at his fellow officers,
Pederson drew his gun and rapidly fired eight shots at the
apartment’s front window, hitting Santiago once in the chest and
severely injuring him. As a result of the injury, Santiago
underwent multiple surgeries and remained in the hospital for four
months. He continues to receive treatment for these injuries.
After the shooting, the officers conducted a thorough search
of the area, but no firearm was found. Santiago contends that the
officers never informed him of their presence and that he never had
a gun. He was nevertheless charged with “deadly conduct” on the
basis of the officers’ statements that he pointed the gun at
Cervantes.
In March 2004, Santiago filed a complaint against Defendants-
Appellants in the Southern District of Texas, asserting various
civil rights and state law tort violations. In July 2005, the
district court granted Defendants-Appellants’ motion for summary
judgment. The court held that Santiago’s § 1983 unlawful arrest
and excessive force claims against Pederson failed, because (1)
Pederson acted with probable cause in arresting Santiago, and (2)
the officer’s use of force was reasonable in light of the perceived
threat. As for the City, the court held that Santiago had failed
to demonstrate a municipal policy to support his claim. The court
also concluded that Santiago’s state law claims failed, because the
City had not waived its sovereign immunity to this type of claim.
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Santiago timely appealed.1
II. ANALYSIS
A. Standard of Review
We review the district court’s decision to grant summary
judgment de novo.2 A motion for summary judgment should be granted
only when there is no genuine issue of material fact.3 In
determining whether there is a genuine issue of material fact, we
view all facts and draw all inferences therefrom in favor of the
non-moving party.4 We review the district court’s order denying
Santiago’s request for additional time in which to conduct
discovery for abuse of discretion.5
B. Qualified Immunity
Santiago asserts that Pederson falsely arrested him and
subjected him to unreasonable force. Pederson counters, and the
district court held, that he is entitled to qualified immunity. To
determine whether a public official is entitled to qualified
immunity, the court asks (1) whether the plaintiff has alleged a
1
In August 2006, Santiago’s appeal was dismissed for
want of prosecution because he had failed timely to file record
excerpts. The case was reopened in October of that year.
2
American Int’l Specialty Lines Ins. Co. v. Canal Indem.
Co., 352 F.3d 254, 260 (5th Cir. 2003).
3
Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d
233, 235 (5th Cir. 2003).
4
Id.
5
Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156,
161 (5th Cir. 2006).
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violation of a constitutional right and (2) whether the defendant’s
conduct was objectively reasonable in light of the clearly
established law at the time of the incident.6
Santiago’s claim that he was falsely arrested fails, as
Pederson had probable cause to arrest him. “Probable cause exists
when the totality of the facts and circumstances within a police
officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed an
offense.”7 Here, the district court correctly determined that the
information provided to the officers by Cervantes and the
subsequent occurrences at the apartment complex gave Pederson
sufficient information on which to deduce that Santiago had engaged
in “deadly conduct.”
Pederson is also entitled to qualified immunity on Santiago’s
excessive force claim. To state such a claim, a plaintiff must
allege: “(1) an injury, which (2) resulted directly and only from
the use of force that was clearly excessive to the need; and the
excessiveness of which was (3) objectively unreasonable.”8 Here,
assuming arguendo that Santiago has satisfied his burden with
respect to the first of these two elements, his claim still must be
6
McClendon v. City of Columbia, 305 F.3d 314, 322–23
(5th Cir. 2002).
7
Haggerty v. Tex. S. Univ., 391 F.3d 653, 655-56 (5th
Cir. 2004) (internal quotation marks omitted).
8
United States v. Sipe, 388 F.3d 471, 480 n.22 (5th Cir.
2004).
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dismissed, as we cannot say that Pederson’s conduct was objectively
unreasonable.
“It is objectively unreasonable to use deadly force ‘unless it
is necessary to prevent [a suspect’s] escape and the officer has
probable cause to believe that the suspect poses a significant
threat of death or serious physical injury to the officer or
others.’”9 Cervantes had reported that a man in the apartment
complex had pointed a firearm at him. Several officers, including
Pederson, reported seeing a firearm aimed at the officers on the
balcony from the front window. Based on these observations,
Pederson had probable cause to believe that Santiago posed a
significant threat of death or serious physical injury to the
officers on the balcony.
C. Municipal Liability
In a claim against a municipality under § 1983, a plaintiff
must demonstrate (1) a municipal policy or custom existed; (2)
governmental policy makers actually or constructively knew of its
existence; (3) a constitutional violation occurred; and (4) through
the municipality’s deliberate conduct, the custom or policy was the
moving force behind the violation.10 The district court correctly
granted summary judgment on the § 1983 claim against the City, as
9
Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.
2004) (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)).
10
Meadowbriar Home for Children, Inc. v. G.B. Gunn, 81
F.3d 521, 532 (5th Cir. 1996).
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Santiago failed to introduce evidence of a municipal policy or
custom.
Santiago’s state law claims against the City also must be
dismissed. Relying on the Texas Tort Claims Act, Santiago asserts
that the City has waived its governmental immunity for Pederson’s
conduct. “The Texas Tort Claims Act provides a limited waiver [of
governmental immunity] when personal injury or death is caused by
a ‘use of tangible personal or real property if the governmental
unit would, were it a private person, be liable to the claimant
according to Texas law.”11 Assuming arguendo that Santiago’s
injuries were caused by the “use of tangible personal or real
property,” the City nevertheless is immune, as it is not
vicariously liable for Pederson’s conduct in light of our
conclusion that Pederson is entitled to qualified immunity.12 To
the extent Santiago also asserts under Texas law that the City
negligently failed to carry out one of its established policies, as
discussed above, Santiago has not cited any specific city policy.
D. Extension of Time for Discovery and Opposition to the Motion
Santiago contends that the district court abused its
discretion in denying his motion for additional time for discovery.
11
Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex.
2005) (quoting TEX. CIV. PRAC. & REM. CODE § 101.021(2)).
12
DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.
1995) (Governmental entities are “not liable under section
101.021(2) for the negligence of [their] employee when the
employee has no liability because of official immunity.”).
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He argues that an extension was necessary because his original
attorney, Mr. Walsh, died, requiring Santiago to find new counsel.
The attorney who filed Santiago’s opposition to the summary
judgment motion, Muñoz, however, had previously indicated to the
district court that both he and Walsh represented Santiago, and
Muñoz’s signature appears on the complaint. Although Muñoz
apparently informed Santiago that he did not have the expertise to
represent him on this case following Walsh’s death, Santiago did
not obtain new counsel, and Muñoz remained counsel of record. And,
the district court did extend the deadline by which Santiago was to
file his opposition to the summary judgment motion. Moreover,
Santiago fails to explain the type of information he believes he
would have obtained through additional discovery, and does not
articulate how such information would have created a genuine issue
of material fact. In light of these facts, the district court did
not abuse its discretion in denying the motion.
For the foregoing reasons, the denial of that motion and the
judgment of the district court are, in all respects,
AFFIRMED.
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