Kovacic v. Villarreal

• Decision Date: 16 December 2010
• Docket Number: No. 10-40208,10-40208
• Citation: 628 F.3d 209
• Parties: Dan KOVACIC, Individually, and With An Interest in the Estate of Zachary Kovacic, Deceased; Elizabeth Fox, Individually, and With An Interest in the Estate of Zachary Kovacic, Deceased; Erin Michelle Kovacic, Individually, and As Next Friend of Carley Nicole Kovacic, Both With An Interest in the Estate of Zachary Kovacic, Deceased, Carley Nicole Kovacic, Minor Child With an Interest in the Estate of Zachary Kovacic, Deceased, Plaintiffs-Appellees, v. Juan VILLARREAL, Individually, and In His Official Capacity; Jose D. Rubio, Individually, and In His Official Capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

628 F.3d 209

Dan KOVACIC, Individually, and With An Interest in the Estate of Zachary Kovacic, Deceased; Elizabeth Fox, Individually, and With An Interest in the Estate of Zachary Kovacic, Deceased; Erin Michelle Kovacic, Individually, and As Next Friend of Carley Nicole Kovacic, Both With An Interest in the Estate of Zachary Kovacic, Deceased, Carley Nicole Kovacic, Minor Child With an Interest in the Estate of Zachary Kovacic, Deceased, Plaintiffs-Appellees,

v.Juan VILLARREAL, Individually, and In His Official Capacity; Jose D. Rubio, Individually, and In His Official Capacity, Defendants-Appellants.

No. 10-40208.

United States Court of Appeals, Fifth Circuit.

Dec. 16, 2010.

Kari Bannon Brock (argued), Brock & Brock, P.C., San Antonio, TX, for Plaintiffs-Appellees.

Albert Lopez (argued), Law Office of Albert Lopez, San Antonio, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiffs-appellees brought a 42 U.S.C. § 1983 claim against City of Laredo Police Officers Juan Villarreal and Jose D. Rubio to recover damages for the death of Zachary Kovacic. The issue on appeal is whether the defendants-appellants are entitled to summary judgment on the defense of qualified immunity. For the reasons stated below, we find that Officers Rubio and Villarreal are entitled to summary judgment and reverse the district court's order denying it.

STANDARD OF REVIEW

We review de novo a district court's denial of a motion for summary judgment on the basis of qualified immunity. Flores v. City of Palacios, 381 F.3d 391, 394 (5th Cir.2004). Summary judgment is applicable when it is determined that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A denial of a motion for summary judgment on the issue of qualified immunity is immediately appealable, to the extent that the district court's order turns on an issue of law. Good v. Curtis, 601 F.3d 393, 397 (5th Cir.2010).¹ Once a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that the defense is not available. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.2002). As we said in Thompson v. Upshur County, TX, 245 F.3d 447, 456 (5th Cir.2001) (quoting with approval from Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir.1997)):

"Where, as here, a section 1983 defendant pleads qualified immunity and shows he is a governmental official whose position involves the exercise ofdiscretion, the plaintiff then has the burden 'to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law.' Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.1992). We do 'not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.' Id."

Further, where as here, a defendant moves for summary judgment and correctly points to an absence of evidence to support the plaintiff's claim on an issue as to which plaintiff would bear the burden of proof at trial, then summary judgment should be granted for the defendant unless the plaintiff produces summary judgment evidence sufficient to sustain a finding in plaintiff's favor on that issue. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Johnson v. Deep East Texas Narcotics Trafficking Task Force, 379 F.3d 293, 307 (5th Cir.2004) (qualified immunity).

FACTS AND PROCEEDINGS BELOW

On August 9, 2007, Zachary Kovacic met several of his co-workers at the Cheers Cocktail Lounge (Cheers) in Laredo, Texas at around 9:30 p.m. Kovacic was working on a work crew in Laredo, and his wife and daughter had traveled from their home in Colorado to join him. After several hours at Cheers, Kovacic was escorted outside of the bar by Cheers employees. Kovacic was allegedly intoxicated and involved in an altercation with another man over a woman. At approximately 1:33 a.m., an employee of Cheers called the Laredo Police Department to notify them that there was an intoxicated person at the bar who needed to be escorted off of the premises. Several Laredo police officers arrived, including appellants Rubio and Villarreal. Kovacic, who had been handcuffed by Cheers employees, was handcuffed again by the officers and placed in the back of Officer Rubio's squad car. One of the officers contacted the Webb County Jail and was told that due to overcrowding, there was not room for a person charged only with a Class C misdemeanor, which applies to the offense of public intoxication. The officers informed the friends and relatives of Kovacic who were still at Cheers that they, the officers, were going to transport Kovacic to his hotel, the Value Inn on Loop 20. At 2:08 a.m., Kovacic was unhandcuffed and released into the parking lot of an Exxon Speedy Stop gas station at the intersection of Del Mar and Loop 20. The Speedy Stop was a convenience store/gas station which was then lighted and open to the public for business, as it was 24 hours a day. It was some five to six miles from Kovacic's hotel. The officers stated in their summary judgment affidavits that Kovacic insisted that he be dropped off at the gas station, where he would call his wife at the hotel to come pick him up. The officers left the parking lot after Kovacic got out of the car. At approximately 2:33 a.m., Kovacic was hit while walking in the roadway of Loop 20, about 1/4 mile north of the Speedy Stop, by an unknown hit-and-run driver. He did not regain consciousness and subsequently died from the injuries he thus received.² Plaintiffs presented evidence that, as later determined, Kovacic's blood alcohol at the time he was hit was .205.

Plaintiffs, who all have an interest in the estate of Zachary Kovacic, filed this actionagainst Cheers Cocktail Lounge, Officers Villarreal and Rubio, the former Laredo Chief of Police, and the City of Laredo. The original claims against appellants were under 42 U.S.C. § 1983 for false arrest, excessive force and failure to protect. The appellants filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss arguing that the plaintiffs had failed to state a valid constitutional claim. While their motion to dismiss was still pending before the district court, appellants filed a motion for summary judgment. The district court issued an order granting in part and denying in part the motion to dismiss. The court dismissed all claims against the officers save for the 42 U.S.C. § 1983 due process claim under the "special relationship" theory. The district court subsequently denied the appellants' motion for summary judgment. Appellants here interlocutorily appeal the denial of their motion for summary judgment.

DISCUSSION

Section 1983 provides a cause of action for persons who have been "depriv[ed] of any rights, privileges, or immunities secured by the Constitution and laws" of the United States by the actions of a person or entity operating under color of state law. 42 U.S.C. § 1983. Qualified immunity was created to insulate government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). To determine if a defendant is entitled to qualified immunity, this court must determine "whether the defendant's actions were objectively unreasonable in light of clearly established law at the time of the conduct in question." Freeman, 483 F.3d at 410-11. In light of the Supreme Court's decision in Pearson v. Callahan, we are permitted to consider the question of whether a defendant is entitled to qualified immunity without determining whether or not the plaintiff's constitutional rights were violated. 555 U.S. 223, 129 S.Ct. 808, 821, 172 L.Ed.2d 565 (2009).

There is a recognized substantive due process right for individuals to be free from bodily harm caused by the state, but as a general rule, there is no constitutional duty that requires state officials to protect persons from private harms. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 1004, 103 L.Ed.2d 249 (1989). The Supreme Court in DeShaney did recognize that there could be exceptions to this general rule. One of these exceptions applies when there is a "special relationship" between the individual and the state. This relationship is formed "[w]hen the state, through the affirmative exercise of its powers, acts to restrain an individual's freedom to act on his own behalf 'through incarceration, institutionalization, or other similar restraint of personal liberty'." McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir.2002) (quoting DeShaney, 109 S.Ct. at 1005). The state does have a constitutional duty to protect individuals in such relationship to the state from dangers, which in certain circumstances can include private violence. McClendon, 305 F.3d at 324.

We hold that defendants Villarreal and Rubio are entitled to qualified immunity from plaintiffs' section 1983 claim. A constitutional right is clearly established for the purposes of section 1983 only if the law is clear enough such that "a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).To determine whether state officials had "fair warning" that their conduct was unconstitutional, we consider the status of the law both in our circuit and in our sister circuits at the time of the defendants' actions. McClendon, 305 F.3d 314 at 329. The plaintiffs argue that a "special relationship" existed between Kovacic and the defendant officers because h...