Hallmark v. City of Fredericksburg
| Decision Date | 30 October 2002 |
| Docket Number | No. 04-01-00595-CV.,04-01-00595-CV. |
| Citation | 94 S.W.3d 703 |
| Parties | Vern HALLMARK, Appellant, v. CITY OF FREDERICKSBURG, Lt. Steve Wetz, Sgt. Elgin Durst, and Officer Felix Castaneda, Appellees. |
| Court | Texas Court of Appeals |
Paula K. Williamson, Harry J. Skeins, Jr., Skeins & Williamson, P.C., Fredericksburg, for Appellant.
Charles S. Frigerio, Hector X. Saenz, Law Offices of Charles S. Frigerio, P.C., San Antonio, for Appellee.
Sitting: ALMA L. LÓPEZ, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
Opinion by: KAREN ANGELINI, Justice.
Vern Hallmark appeals the trial court's grant of summary judgment in favor of the City of Fredericksburg ("City"), Lt. Steve Wetz, Sgt. Elgin Durst, and Officer Felix Castaneda. According to Hallmark, the trial court erred in dismissing his 42 U.S.C. § 1983 claim and his tort claims for trespass, assault and battery, and intentional infliction of emotional distress. We affirm in part, reverse and remand in part, and reverse and render in part.
In reviewing the grant of a motion for summary judgment, we look at the facts in the light most favorable to the nonmovant. In the light most favorable to Hallmark, the facts surrounding the incident in question are as follows: In preparation for a softball game, Lt. Steve Wetz, Sgt. Elgin Durst, and Officer Felix Castaneda, along with several other law enforcement officers, were practicing hitting softballs. As they were practicing, they hit several softballs into Hallmark's adjacent R.V. park; one ball, in particular, hit a horse trailer. The owner of the trailer complained to Hallmark, who, in response, walked onto the field and asked the officers to cease hitting softballs. According to Hallmark, the officers refused and informed him (1) that Hallmark "had better return to the R.V. park" or he "would have `big trouble;' " (2) that they were "financially able to fix any property they might damage;" and (3) that as police officers on city property, they "could do as they wanted."
Hallmark returned to his R.V. park and called the police station to complain, but was unable to speak with anyone. He was, however, able to make an appointment for the next morning at 8:00 a.m. with Assistant Chief Oestreich concerning the officers' activities. That same evening, an officer hit another softball onto Hallmark's property. After Hallmark picked up the softball, Lt. Wetz walked up to the property line and asked Hallmark to return the softball. Hallmark replied that he would return the softball to Assistant Chief Oestreich the following morning. Lt. Wetz threatened to arrest Hallmark if he did not return the softball immediately. In response to this demand, Hallmark walked away, but was blocked by Lt. Wetz and two other officers, Castaneda and Durst. Holding the softball in both of his hands behind his back, Hallmark was encircled by the three officers and grabbed from behind. Hallmark's hands were forcibly pulled from the softball by one of the officers, causing Hallmark's finger to break. After forcibly taking the softball, the officers left Hallmark's property without saying anything further.
Meeting with Assistant Chief Oestreich the following morning, Hallmark demanded the names of the three officers who assaulted him. Oestreich replied, "That would never happen." In response, Hallmark sued the City for violating his constitutional rights under section 1983 and sued Lt. Steve Wetz, Sgt. Elgin Durst, and Officer Felix Castaneda for trespass, assault and battery, intentional infliction of emotional distress, and for violating his constitutional rights under section 1983.
A party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant, assuming all evidence favorable to the nonmovant as true. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548-49.
A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of the plaintiff's cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence that would raise a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).
In Monell v. Department of Social Services, 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a governmental entity can be found liable under section 1983 only if the entity itself causes the constitutional violation at issue. Because respondeat superior or vicarious liability is not a basis for recovery under section 1983, a municipality may not be held liable under section 1983 solely because it employs a tortfeasor. Gonzales v. Westbrook, 118 F.Supp.2d 728, 733 (W.D.Tex.2000). It is only when the execution of the government's policy or custom inflicts the injury that the governmental entity may be held liable. Id.
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 can 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. Gonzales, 118 F.Supp.2d at 734; see Turner v. Upton County, 915 F.2d 133, 136 (5th Cir.1990). Hallmark alleges the former, rather than the latter. As to the former, 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. Gonzales, 118 F.Supp.2d at 734. However, sufficiently numerous prior incidents of official misconduct may tend to prove a custom and accession to that custom by municipal policymakers. Id.
As evidence that his constitutional rights were violated as a result of a custom or policy of the City, Hallmark points to the deposition testimony of Chief of Police Dennis Rhoten and Assistant Chief Paul Oestreich. Chief Rhoten testified that the actions of Wetz, Durst, and Castaneda were actions of reasonable police officers and that their actions did not violate any of the City's policies and procedures:
Hallmark emphasizes similar testimony given by Assistant Chief Oestreich:
(emphasis added). While Rhoten and Oestreich testified that the conduct of the three officers did not violate a policy or custom, they did not, however, testify about an official policy or custom that deprived Hallmark of his constitutional rights; the record is devoid of evidence of any City policy allowing officers to use excessive force. See Gonzales, 118 F.Supp.2d at 739. Moreover, there is no evidence of similar incidents. See id. Nor is there any indication in the record that it was routine for other officers, or even the three officers accused of wrongdoing here, to engage in the conduct of which Hallmark complains. See id. Hallmark, therefore, has presented no summary judgment evidence that he sustained a deprivation of his constitutional rights as a result of an official policy, practice, or custom of the City. The trial court correctly granted summary judgment on Hallmark's section 1983 claim against the City.
It is well-settled that a suit against a public official in his "official capacity" is, in effect, a suit against the municipality or governmental entity the official represents. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Esteves v. Brock, 106 F.3d 674, 677 (5th Cir.1997). Accordingly, Hallmark's claims against Defendants Wetz, Durst, and Castaneda in their official capacities are actually claims asserted against the City, a named-defendant. Consequently, such claims are duplicative. Kentucky, 473 U.S. at 167 n. 14, 105 S.Ct. 3099. Thus, as we have upheld the granting of the summary judgment in favor of the City, the summary judgment in favor of Wetz, Durst, and Castaneda in their official capacities should also be upheld.
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