Chavez v. Alvarado

• Decision Date: 22 July 2021
• Docket Number: Civil Action No. H-21-867
• Citation: 550 F.Supp.3d 439
• Parties: Leantha Rose CHAVEZ, et al., Plaintiffs, v. Luis ALVARADO, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

550 F.Supp.3d 439

Leantha Rose CHAVEZ, et al., Plaintiffs,

v.Luis ALVARADO, et al., Defendants.

Civil Action No. H-21-867

United States District Court, S.D. Texas, Houston Division.

Signed July 22, 2021

Roberto Omar Cantu, Sean Alan Roberts, Roberts Markland LLP, Houston, TX, for Plaintiff Leantha Rose Chavez.

Sean Alan Roberts, Roberts Markland LLP, Houston, TX, for Plaintiffs Jennifer Rae Thomson, Leigha Rose-Marie Wise, Joaquin Salvador Antoni Chavez, Jessica Chavez.

Christy L. Martin, City of Houston Legal Department, Houston, TX, for Defendant City of Houston.

MEMORANDUM AND OPINION

Lee H. Rosenthal, Chief United States District Judge

When law enforcement officers are required to interact with individuals suffering from acute episodes of mental illness, the encounters too often end badly. This case is no exception. Nicolas Chavez was under treatment for mental illness and experiencing acute symptoms when he was shot and killed by Houston police officers. Chavez's family has sued some of the officers involved, the Houston Police Department, and the City of Houston. The City has moved to dismiss under Rule 12(b)(6), the plaintiffs have responded, and the City has replied. (Docket Entry Nos. 14, 15, 16). The court heard argument on the motion.

Based on the motion, the response, the pleadings, the arguments of counsel, and the applicable law, the court grants the motion to dismiss. The claims against the Houston Police Department and the police officers in their official capacities are dismissed, with prejudice. The claims on behalf of Chavez's estate are dismissed, without prejudice and with leave to amend within 14 days of the probate court's ruling on the appointment of an estate representative or administrator. The § 1983 claims against the City based on excessive force, deprivation of life and liberty without due process, and failure to train, are dismissed, without prejudice and with leave to amend by August 13, 2021 . The plaintiffs may also amend their complaint to assert § 1983 claims against the police officers in their individual capacities by August 13, 2021 . All other claims are dismissed, with prejudice, because further amendment would be futile.

The reasons for these rulings are explained below.

I. Background¹

Around 9:00 p.m. on April 21, 2020, three people called 911 seeking help for a man walking near a freeway exit, "throwing himself in front of cars," and apparently experiencing a "mental breakdown." (Id. at ¶¶ 26–32). Other 911 callers reported that the man was "yelling and screaming and jumping over fences," was "bleeding," and was holding "a metal tube of some sort." (Docket Entry No. 12-1 at 2:17, 3:04; Docket Entry No. 12 at ¶ 38).²

Chavez was a patient of the Harris Center for Mental Health and IDD (Intellectual and Developmental Disabilities). (Docket Entry No. 12 at ¶ 21). He struggled with mental illness and urges to self-harm. (Id. at ¶ 22).

Sergeant Benjamin LeBlanc and officers Luis Alvarado, Kevin Nguyen, Patrick Rubio, and Omar Tapia responded to the 911 calls. When they arrived, Chavez was crouching behind a telephone pole, between a parking-lot wheel block and a wooden fence. (Docket Entry No. 12 at ¶ 44; Docket Entry No. 12-1 at 4:13). Chavez rocked back and forth, then fell to the ground screaming. The plaintiffs allege that Chavez had stabbed himself with a piece of rebar he was holding. (Docket Entry No. 12 at ¶¶ 44–48).

LeBlanc, the commanding officer, drew his taser and instructed the other officers to do the same. (Id. at ¶¶ 52–58; Docket Entry No. 12-1 at 4:19). Chavez cursed at the officers. (Docket Entry No. 12 at ¶ 60). LeBlanc aimed his taser at Chavez and said, "Hey bud. Hey bud. We're here to help you, man." Chavez responded, "No you're not." (Id. at ¶ 64; Docket Entry No. 12-1 at 4:26-29).

Chavez stood up and began pacing the parking lot, and the officers continued speaking with him. (Id. at 4:38; Docket Entry No. 12 at ¶¶ 66–70). Officer Tapia repeatedly told Chavez to "[g]et on the ground," and asked Chavez his name. (Docket Entry No. 12 at ¶ 71; Docket Entry No. 12-1 at 4:44, 4:51). Chavez shouted, "I'm a MHMRA patient and I feel like dying."³ (Docket Entry No. 12 at ¶ 78; Docket Entry No. 12-1 at 5:08). Chavez continued pacing while Tapia asked him to sit down. Chavez told the officers to "shoot"; Tapia responded, "No one's shooting. Calm down." (Docket Entry No. 12-1 at 5:15–18). Chavez began backing away from the officers, flailing his arms. Alvarado followed with his taser drawn and again told Chavez to "get on the ground." (Id. at 5:36; Docket Entry No. 12 at ¶¶ 84–98).

As Chavez continued backing away slowly, with one hand on his head and the other extended at his side, one officer shot him with a nonlethal "beanbag" shotgun. (Docket Entry No. 12-1 at 5:46; Docket Entry No. 12 at ¶¶ 108–12). A "beanbag shotgun" is "a 12-gauge shotgun that fires beanbag rounds at a rate of about 90 m.p.h." Meadours v. Ermel , No. CIV.A. H-04-102, 2005 WL 1923596, at *1 (S.D. Tex. Aug. 10, 2005), aff'd , 483 F.3d 417 (5th Cir. 2007). Although not classified as lethal force, beanbag shotguns "can cause death or serious bodily injury." Id. Officers then ordered Chavez to "[g]et on the ground now." (Docket Entry No. 12-1 at 5:51). Chavez shouted "yeah," and an officer shot again. (Id. at 5:53; Docket Entry No. 12 at ¶ 120). Chavez shouted, "another one," and LeBlanc told the other officers, "y'all, taser him." (Docket Entry No. 12-1 at 5:54–56; Docket Entry No. 12 at ¶ 124). Alvarado fired his taser, hitting Chavez. (Docket Entry No. 12 at ¶ 129).

Despite the blows, Chavez continued pacing the parking lot. He walked toward one of the officers, swinging his arms aggressively. (Docket Entry No. 12-1 at 6:12). One officer shouted that Chavez had "a knife in his hand." The plaintiffs deny that a knife was present. (Id. ; Docket Entry No. 133). The officers told Chavez to "calm down." (Docket Entry No. 12-1 at 6:19). Chavez stopped walking toward the officers and, walking backwards, began striking himself. Tapia told Chavez to "[s]top cutting [him]self." (Id. at 6:20; Docket Entry No. 12 at ¶¶ 134–35). Chavez continued pacing and striking himself. After a short time, he walked toward the officers, telling them to "shoot." (Docket Entry No. 12-1 at 6:40–44; Docket Entry No. 12 at ¶¶ 138–40).

By this time, Deputy Art Garduño of the Harris County Precinct 6 Constable's Office had arrived to assist the officers. (Docket Entry No. 12 at ¶ 145). Chavez began walking toward Garduño, who fired his taser. (Id. at ¶¶ 147–51). As Garduño fired, LeBlanc shot Chavez twice with his service pistol. (Id. at 158; Docket Entry No. 12-1 at 8:35–40). Other officers, including Nancy Leija, fired their tasers as well. (Docket Entry No. 12 at ¶¶ 165–67; Docket Entry No. 12-1 at 8:55–9:03). After LeBlanc shot Chavez, Leija put her "fully spent" taser on the ground. (Docket Entry No. 12 at ¶ 168).

The body camera video does not show what happened in the next 30 seconds, although it does provide audio. The officers repeatedly told Chavez "don't move," "get down," and "get on the ground." (Docket Entry No. 12-1 at 9:04–34). When the video resumes, Chavez is lying on the ground, on his back, several feet from the officers. Officer Leija's spent taser was between Chavez and Officer Tapia. Chavez shouted, "fuck you, kill me." (Id. at 9:35–36). According to the complaint, Chavez continued holding a "small piece of rebar." (Docket Entry No. 12 at ¶ 177).

Tapia told Chavez to "drop that knife." Chavez responded by saying, "no, fuck you," and "kill me." Chavez continued to lay on his back, telling the officers to "just put [him] away." (Docket Entry No. 12-1 at 10:04–08, 10:24; Docket Entry No. 12 at ¶ 186). The officers asked Chavez to "please comply with us, please comply." (Docket Entry No. 12-1 at 10:26). Chavez again asked the officers to kill him. (Id. at 10:30; Docket Entry No. 12 at ¶ 188).

After rolling on the ground for a few minutes, Chavez sat up on his knees and looked at the officers, who ordered him to "not get up." (Docket Entry No. 12-1 at 10:44). Chavez shouted "Shoot me. What the fuck you scared of? Can't kill a Mexican-Chinese?" (Id. at 10:46; Docket Entry No. 12 at ¶ 202). Minutes later, Officer LeBlanc told Chavez: "[w]e want to get you the medical help you need man, but you got to allow us to do it." (Docket Entry No. 12-1 at 11:02). Chavez rocked back and forth, occasionally hitting himself. Officer Joseph Adovasio asked Chavez to "talk" with them, and Chavez responded with another "fuck you." (Id. at 11:36). Adovasio responded: "[t]hat's fine, you can be mad at me," and Chavez shouted, "Jane I love you, but I'm not spending the rest of my years in prison." (Id. at 11:37–41). Adovasio asked "who is that," and Chavez responded "I ain't no snitch." (Id. at 11:48). Adovasio again asked who "Jane" was and said that he "was trying to help [Chavez] out." (Id. at 11:54). Chavez responded, "Fuck you, I'm going to die tonight." (Id. at 11:55; Docket Entry No. 12 at ¶ 208). Adovasio responded, "that's not what we want." (Docket Entry No. 12-1 at 11:59).

Officer Adovasio continued asking Chavez to talk to him, and Chavez continued responding with curses. (Id. at 12:04–06). Adovasio repeatedly told Chavez that he was there to help, but that Chavez had to let him help. (Id. at 12:07–40). After a short time, Chavez jumped up and began running toward some of the officers. One officer fired a bean-bag round at Chavez, and Officer Nguyen shot Chavez with his duty weapon. (Id. at 12:55–13:13; Docket Entry No. 12 at ¶¶ 211–14).

Chavez fell to the ground and began crawling on his knees toward the officers. (Docket Entry No. 12-1 at 13:37). Chavez stopped several feet from the officers and threw the piece of metal rebar that he had been holding toward them. (Id. at 13:44, 14:13; Docket Entry No. 12 at ¶¶ 217–20). Chavez then pulled on the taser wires that were stuck in him, pulling Officer Leija's spent taser toward...