Gonzales v. Westbrook

• Decision Date: 02 August 2000
• Docket Number: Civil Action No. SA-99-CA-1042-FB.
• Citation: 118 F.Supp.2d 728
• Parties: Josie GONZALES, Individually and as Mother and Next Friend and in Behalf of Tony Gonzales, a Minor, and Toby Gonzales, Individually and as Father and Next Friend and in Behalf of Tony Gonzales, a Minor, Plaintiffs, v. Chris WESTBROOK, Frio County Deputy Sheriff, in his Individual Capacity, and Frio County, Texas, Defendants.
• Court: U.S. District Court — Western District of Texas

Page 728

118 F.Supp.2d 728

Josie GONZALES, Individually and as Mother and Next Friend and in Behalf of Tony Gonzales, a Minor, and Toby Gonzales, Individually and as Father and Next Friend and in Behalf of Tony Gonzales, a Minor, Plaintiffs, v. Chris WESTBROOK, Frio County Deputy Sheriff, in his Individual Capacity, and Frio County, Texas, Defendants.

Civil Action No. SA-99-CA-1042-FB.

United States District Court, W.D. Texas, San Antonio Division.

August 2, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Curtis B. Stuckey, Stuckey & Garrigan Law Offices, Nacogdoches, TX, for Josie Gonzales, Toby Gonzales.

Charles Straith Frigerio, San Antonio, TX, for Bruce Burris, Frio County, Texas, Chris Westbrook.

AMENDED ORDER GRANTING DEFENDANT FRIO COUNTY'S MOTION FOR SUMMARY JUDGMENT

BIERY, District Judge.

This alleged excessive force case presents an opportunity for review the state of the law in these types of cases. Before the Court are defendant Frio County's Motion for Summary Judgment (docket no. 30), plaintiffs' response (docket no. 31) and Frio County's reply (docket no. 32). After careful consideration of the motion, response and reply, the pleadings on file and the entire record in this matter, the Court is of the opinion defendant Frio County's Motion for Summary Judgment should be granted and plaintiffs' claims against the County should be dismissed. Plaintiffs' claims against defendant Chris Westbrook in his individual capacity remain pending for disposition.

BACKGROUND

This is an excessive force case involving Tony Gonzales, a twelve-year-old, 87 pound boy. The minor was at a friend's home during the evening hours of Thanks-giving, 1998, when Frio County Deputy Sheriff Chris Westbrook and other officers responded to a call made by someone in the house. The deputies arrested young Mr. Gonzales, who had been drinking alcohol, for stealing beer. The juvenile was handcuffed and placed in the back of a patrol car, but escaped and began running away. Deputy Westbrook caught up with the minor and a scuffle ensued during which the boy's leg was broken. The juvenile and his parents maintain the child was on the ground when Deputy Westbrook, who weighs about 270 pounds, intentionally fell on the Tony. They further maintain Deputy Westbrook intentionally struck the minor on the head with a flashlight. Frio County and Deputy Westbrook concede contact occurred and acknowledge Tony's leg was fractured but dispute the remainder of plaintiffs' version of the facts. The County and Deputy Westbrook deny Tony was on the ground and Deputy Westbrook fell on him. They further deny Deputy Westbrook hit Tony with a flashlight. Defendants contend: "Plaintiff Tony Gonzales was tackled by Deputy Chris Westbrook in order to effectuate the arrest of the fleeing suspect."

The juvenile and his parents filed suit alleging Deputy Westbrook is individually liable for a conscious disregard of the child's right to be free from excessive force. Plaintiffs further allege the County is liable pursuant to 42 U.S.C. § 1983 for the alleged excessive force of Deputy Westbrook. Plaintiffs maintain the customs and policies of the Frio County Sheriff's Department were inadequate with respect to training and supervision and said customs and policies led to their alleged constitutional injuries. In their answer, the County and Deputy Westbrook deny Tony was subjected to any unreasonable or excessive force and maintain "if plaintiff Gonzales was injured as a result of his fleeing law enforcement as a juvenile delinquent that the sole proximate cause of his injuries were the negligent and criminal actions of minor plaintiff Tony Gonzales." Before the Court is the County's motion for summary judgment asserting there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. The County moves for summary judgment contending plaintiffs have failed to show its customs and policies are not adequate and directly resulted in the alleged constitutional deprivation of plaintiffs' rights. Plaintiffs maintain they have met their summary judgment burden of showing liability on the part of the County or, alternatively, they cannot show a custom or policy of abuse because the Frio County Sheriff's personnel records are in the custody of the Federal Bureau of Investigation ("FBI").

SUMMARY JUDGMENT STANDARD

The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir.1998). Once a proper motion has been filed, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must present affirmative evidence setting forth specific facts which show the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. All summary judgment evidence must be construed "in the light most favorable to the nonmoving party", Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993)), and the "evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Palmer v. BRG, 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505).

CUSTOM OR POLICY

In order to recover a judgment against a local governmental entity under section 1983, a plaintiff must establish he sustained a deprivation of a constitutional right as a result of some official policy, practice, or custom of that governmental entity. See Board of County Comm'rs v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 225 (5th Cir.1999). An official "policy" is most commonly defined as a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy making authority. See Baltazor v. Holmes, 162 F.3d 368, 377 (5th Cir.1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304-05 (5th Cir.1995), cert. denied sub nom., Conley v. Eugene, 517 U.S. 1191, 116 S.Ct. 1680, 134 L.Ed.2d 782 (1996). A municipal policy must be a "deliberate and conscious choice" by a municipal policy-maker. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). An official "custom" or "practice" is most commonly defined as a "persistent, widespread practice of municipal officials or employees," which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom which fairly represents municipal policy. Actual or constructive knowledge of such custom or practice must be attributable to the governing body of the municipality or to an official to whom that body has delegated policy making authority. See Baltazor, 162 F.3d at 377; Esteves v. Brock, 106 F.3d 674, 677 (5th Cir.), cert. denied, 522 U.S. 828, 118 S.Ct. 91, 139 L.Ed.2d 47 (1997); Colle v. Brazos County, 981 F.2d 237, 244-45 (5th Cir.1993); Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 92 (5th Cir.1992); Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.1992); Fields v. City of South Houston, 922 F.2d 1183, 1192 (5th Cir.1991); Matthias v. Bingley, 906 F.2d 1047, 1054 (5th Cir.1990); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985); see also Sharp v. City of Houston, 164 F.3d 923, 935 (5th Cir.1999) (evidence established municipal custom within the police department of "code of silence" regarding sexual harassment of female officers and of retaliation against female officers who complained about same).

In Monell v. Department of Social Servs., the Supreme Court held a governmental entity can be found liable under section 1983 only if the entity itself causes the constitutional violation at issue. 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Respondeat superior or vicarious liability is not a basis for recovery under section 1983. See Collins v. City of Harker Heights, 503 U.S. 115, 122-23, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); Monell, 436 U.S. at 691-94, 98 S.Ct. 2018. A municipality may not be held liable under Section 1983 solely because it employs a tortfeasor. It is only when the execution of the government's policy or custom inflicts the injury that the governmental entity may be held liable under section 1983. Brown, 520 U.S. at 403, 117 S.Ct. 1382; Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215-16 (5th Cir.1998).

A municipality can be liable for the acts of its officials under section 1983 in two circumstances: first, a municipality's final policymakers are held effectively to have made policy or condoned the creation of a custom by knowingly ratifying the unconstitutional or illegal actions of subordinate officers or employees; and, second, the municipality may be held liable for the illegal or unconstitutional actions of its final policymakers themselves as they engage in the setting of goals and the determination of how those goals will be achieved. See Turner v. Upton County, 915 F.2d 133, 136 (5th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991).

As to the first circumstance, liability based upon an officially sanctioned custom or practice, isolated instances of official misconduct by a governmental entity's nonpolicy making employees are inadequate to prove knowledge and acquiescence by the entity's policymakers. See Fraire v. City of Arlington, 957 F.2d...