Boston v. Harris Cnty., CIVIL ACTION H-11-1566

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtMELINDA HARMON
PartiesDON BOSTON, SHARONDA JOHNSON, AND SUNSHINE RANDLE, Plaintiffs, v. HARRIS COUNTY, TEXAS; B. KATRIB, Individually; and J. DENHAM, Individually, Defendants.
Decision Date26 March 2014
Docket NumberCIVIL ACTION H-11-1566

and J. DENHAM, Individually, Defendants.



SIGNED: March 26, 2014


Pending before the Court in the above referenced case, alleging attempted unlawful detention without reasonable suspicion and use of excessive force in violation of the Fourth Amendment1 and 42 U.S.C. § 1983 and assault and battery under Texas common law against Harris County Sheriff's Office Deputies B. Katrib ("Katrib") and J. Denham ("Denham"), in their individual capacities, and failure to supervise and/or train, against Harris County, Texas, are (1) a motion for summary judgment from Katrib

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and Denham (#42) and (2) a motion for summary judgment from Defendant Harris County, Texas (#43).

In Plaintiff Don Boston's ("Boston'") response (#52 at pp. 1-2) to Katrib's and Denham's motion, Boston states that he is abandoning his claims for unlawful detention and state-law assault and battery. However, Plaintiff Sunshine Randle ("Randle"), who is proceeding pro se, has made no such statement and has not filed a response to the motion for summary judgment, so the Court addresses these claims anyway.

Plaintiff Sharonda Johnson ("Johnson") has voluntarily dismissed with prejudice all her claims against Defendants. #41 and 44.

After reviewing the record and the applicable law, the Court concludes for the reasons stated below that both motions for summary judgment should be granted.

I. Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to

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find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which movant bears the burden of proof at trial; a "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).

If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir. 1994). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323. The nonmovant may not rely merely on allegations, denials in a pleading or unsubstantiated assertions that a fact issue exists, but must set forth specific facts showing the existence of a genuine issue of

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material fact concerning every element of its cause(s) of action. Morris v. Covan World Wide Moving, Inc, 144 F.3d 377, 380 (5th Cir. 1998). Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

"'[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .'" State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986). "Nor is the 'mere scintilla of evidence' sufficient; 'there must be evidence on which the jury could reasonably find for the plaintiff.'" Id., quoting Liberty Lobby, 477 U.S. at 252. The Fifth Circuit requires the nonmovant to submit "'significant probative evidence.'" Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d 194, 197 (5th Cir. 1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999), citing Celotex, 477 U.S. at 322, and Liberty Lobby, 477 U.S. at 249-50.

The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the

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nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13.

It is well established in the Fifth Circuit that "[a] federal court may not grant a 'default' summary judgment where no response has been filed." Bradley v. Chevron U.S.A., Inc., No. Civ. A. 204CV092J, 2004 WL 2847463, *1 (N.D. Tex. Dec. 10, 2004), citing Eversley v. MBank of Dallas, 843 F.2d 172, 174 (5th Cir. 1988); Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). Nevertheless, 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. Id. at *1 and n. 2, citing id.; see also Thompson v. Eason, 258 F. Supp. 2d 508, 515 (N.D. Tex. 2003)(where no opposition is filed, the nonmovant's unsworn pleadings are not competent summary judgment evidence and movant's evidence may be accepted as undisputed). See also Unum Life Ins. Co. of America v. Long, 227 F. Supp. 2d 609 (N.D. Tex. 2002)("Although the court may not enter a 'default' summary judgment, it may accept evidence submitted by [movant] as undisputed."); Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996)("A summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence.").

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II. Factual Allegations of
the First Amended Original Complaint (#14)

Plaintiffs Don Boston and Sunshine Randle sue Katrib and Denham, both officers of the Harris County Sheriff's Department, in their individual capacities, and Harris County, Texas. Plaintiffs allege that on or about January 19, 2012, they were in a vehicle in the parking lot of the Cambridge Crossing Apartments in Houston, Texas waiting for a friend when Katrib suddenly approached the vehicle and, without identifying himself, pounded on the driver's side front windshield with the butt of a gun. Startled and confused, Boston put the car in reverse. Plaintiffs claim that they never saw Katrib or Denham nor heard them give any orders. Neither Katrib nor Denham had a flashlight and Plaintiffs claim they were unaware of the officers' presence. Thus Plaintiffs had no reason to stop backing out of the parking spot.

Plaintiffs assert that without warning or provocation, Katrib and Denham started shooting at their vehicle, and some bullets hit Plaintiffs. Fearing for their lives, Plaintiffs raced out of the parking lot and called the police. The complaint alleges that Katrib and Denham, "knowing they had just made a grave mistake," did not follow. An ambulance met Plaintiffs along their route and took them to the hospital. Police detained them and for the first time they were informed that Katrib and Denham were undercover police officers.

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III. Causes of Action

Plaintiffs first claim that Defendants, jointly and severally, deprived Plaintiffs of their rights under the Fourth Amendment and § 1983 by violating their expectation of privacy and security and their right to be free from excessive force during a search and seizure by an unlawful detention2 and by use of excessive and/or deadly force in the course of the alleged arrest and/or investigatory stop and in the officers' unlawful assault, beating and shooting of Plaintiffs. They further claim that Harris County is liable for failing to supervise and/or train its officers. Furthermore, they claim that the County failed to discipline Katrib and Denham for their conduct, thereby sanctioning their actions and their custom, practice and/or policy (1) of using excessive and oftentimes deadly force to effect otherwise routine arrests, (2) of ignoring the serious need for training and supervision of officers in regard to reasonable use of force, and (3) of failing to adequately train and supervise its employees and officers regarding the availability of alternative ways to detain people. Plaintiffs claim that the County had actual or constructive knowledge of each practice, custom and/or policy before this incident...

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