Valderas v. City of Lubbock

• Decision Date: 21 May 2019
• Docket Number: No. 18-11023,18-11023
• Citation: 937 F.3d 384
• Parties: Paul Anthony VALDERAS, Plaintiff - Appellant v. CITY OF LUBBOCK, a political subdivision; Billy Mitchell, individually and his official capacity, Defendants - Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

937 F.3d 384

Paul Anthony VALDERAS, Plaintiff - Appellant

v.CITY OF LUBBOCK, a political subdivision; Billy Mitchell, individually and his official capacity, Defendants - Appellees

No. 18-11023

United States Court of Appeals, Fifth Circuit.

FILED May 21, 2019

Daniel A. Dailey, Kingdom Litigators, Inc. A Public Interest Law Firm, Dallas, TX, for Plaintiff - Appellant.

Jeffrey Clay Hartsell, City Attorney's Office for the City of Lubbock, Lubbock, TX, for Defendant - Appellee City of Lubbock.

David Leslie Kerby, Esq., Camie Wade, Thompson & Kerby Law Office, Lubbock, TX, for Defendant - Appellee Billy Mitchell.

Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.

PER CURIAM:

Paul Valderas appeals the district court's grant of summary judgment in favor of Officer Billy Mitchell dismissing Valderas's 42 U.S.C. § 1983 excessive force claim. Valderas contends that there were genuine issues of material fact regarding whether Officer Mitchell was reasonable in using deadly force. Valderas further contends that the district court abused its discretion by accepting Mitchell's motion to strike a significant portion of Valderas's summary judgment evidence. We conclude that Valderas has failed to present a genuine issue of material fact regarding his excessive force claim. We further conclude that the district court did not abuse its discretion in granting Officer Mitchell's motion to strike certain evidence and statements offered by Valderas in summary judgment proceedings. Consequently, we AFFIRM the judgment of the district court.

I.

This case arises out of the events surrounding the arrest of Paul Valderas on the night of January 26, 2017, pursuant to a felony arrest warrant issued for Valderas's violation of parole. It is undisputed that during the arrest, Valderas was shot three times (out of the five successive shots fired) by Officer Billy Mitchell, resulting in Valderas's partial paralysis.¹

Leading up to this event, a Confidential Informant (CI) working with the Lubbock Police Department allegedly contacted Valderas about purchasing drugs and agreed to meet Valderas at a residence. Later that night Valderas exited the residence to meet with the occupants of a car that had parked in front of the residence. The CI sat in the passenger seat.² Valderas was talking to the CI through the passenger window of the parked car when he saw a vehicle approaching at a high rate of speed with its bright lights on.

The vehicle in question transported an arrest team including Officer Mitchell, Sergeant Don Billingsley, and Investigator Daniel Merritt. They were planning to take Valderas into custody pursuant to an outstanding felony warrant for his arrest. The arrest team was notified that Valderas was considered armed and dangerous. The officers were also briefed that Valderas had recently evaded police in a motor vehicle, and that he had a violent and lengthy criminal history. The plan was to apprehend Valderas as he exited the residence.³

Valderas claims that he feared he would be ambushed and robbed, so he took the gun in his hand from his waistband as the car approached. All three officers testified that they saw Valderas pull a gun from his waistband. According to Valderas, as he was pulling his gun from his waistband, the CI told him that it was the police, so he threw the gun into the car.⁴ Investigator Merritt yelled, "Gun!" Nearly simultaneously, Officer Mitchell exited the car, drew his weapon, and yelled, "Police!"⁵ Officer Mitchell fired five shots at Valderas, striking him three times.

The entire incident, from the time that the police vehicle began approaching until Valderas was shot, did not last more than ten seconds. Officer Mitchell testified that he did not see Valderas discard the weapon before opening fire. The two other officers testified to the same. Investigator Merritt testified, however, that he later found the gun inside the car.

II.

Valderas filed this civil complaint against Officer Mitchell, officially and individually, and the City of Lubbock, alleging excessive force in violation of 42 U.S.C. § 1983.⁶ Officer Mitchell moved for summary judgment on grounds of qualified immunity as to the claim against him in his individual capacity, asserting that his use of force was objectively reasonable because he reasonably believed that Valderas possessed a gun and was a threat to everyone present, including the two innocent bystanders in the car next to Valderas.

Also apropos to this appeal, Officer Mitchell filed a motion before the district court, titled "Motion for Leave to File Reply Brief, Objections and Motion to Strike and Exclude Inadmissible Portions of Plaintiff's Summary Judgment Evidence and Unsupported Assertions." In his motion, Officer Mitchell (1) requested leave to file his reply brief; (2) objected to eleven of Valderas's exhibits filed in response to the motion for summary judgment as inadmissible and not competent summary judgment evidence; (3) objected to certain assertions by Valderas as unsupported; and (4) moved to strike based on each of these objections. In response, Valderas opposed the motion, arguing that the motion was not filed in compliance with Northern District of Texas Local Rule 7.1; that is, that Officer Mitchell's counsel allegedly failed to properly conference with Valderas's counsel prior to filing the motion—contrary to the recited certification of conference.

The district court granted Officer Mitchell's motion to strike, noting that Valderas failed to contest the arguments raised in the motion to strike, and it found, without further explanation, that each objection Mitchell raised was meritorious. In the same ruling, the district court concluded that Officer Mitchell was entitled to qualified immunity and granted his motion for summary judgment. Accordingly, the district court entered judgment dismissing the claims against Officer Mitchell.

III.

Valderas now appeals the district court's grant of summary judgment on the issue of qualified immunity. Valderas argues that the use of deadly force is confined to the moment of the threat, which he contends ceased when Valderas threw the gun in the car. Valderas points to the allegedly "inconsistent" descriptions of the location of Valderas's gun in Officer Mitchell's sworn statement on January 29, 2017 and in his December 27, 2017 affidavit as evidence that Officer Mitchell knew that Valderas was no longer armed and that the threat had ceased. Valderas also emphasizes that Sgt. Billingsley confronted the same facts as Officer Mitchell but did not fire his weapon; and he argues that this restrained conduct establishes that Officer Mitchell acted unreasonably. Additionally, he says that all three bullets struck him in the back, supporting his contention that he was fleeing when the shots were fired. Lastly, Valderas challenges the district court's decision to strike certain evidence he submitted in opposition to Officer Mitchell's motion for summary judgment.

IV.

We first address the standard of review. We review a grant of summary judgment de novo, applying the same standard as the district court. Tiblier v. Dlabal , 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Coliseum Square Ass'n v. Jackson , 465 F.3d 215, 244 (5th Cir. 2006) ). "Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Rogers v. Bromac Title Servs. , 755 F.3d 347, 350 (5th Cir. 2014) (quoting Fed. R. Civ. P. 56(a) ). There exists a genuine dispute of material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "We construe all facts and inferences in the light most favorable to the nonmoving party." Murray v. Earle , 405 F.3d 278, 284 (5th Cir. 2005) (citing Hart v. O'Brien , 127 F.3d 424, 435 (5th Cir. 1997) ). But "[s]ummary judgment may not be thwarted by conclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence." McFaul v. Valenzuela , 684 F.3d 564, 571 (5th Cir. 2012) (citing Hathaway v. Bazany , 507 F.3d 312, 319 (5th Cir. 2007) ).

"Further, although courts view evidence in the light most favorable to the nonmoving party, they give greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene." Griggs v. Brewer , 841 F.3d 308, 312 (5th Cir. 2016) (citing Carnaby v. City of Houston , 636 F.3d 183, 187 (5th Cir. 2011) ). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

A good-faith qualified immunity defense alters the usual summary judgment burden of proof. Although we view the evidence in the light most favorable to the nonmoving party, the plaintiff bears the burden of demonstrating that a defendant is not entitled to qualified immunity. Trent v. Wade , 776 F.3d 368, 376 (5th Cir. 2015) (citing Kovacic v. Villarreal , 628 F.3d 209, 211 (5th Cir. 2010) ). "To negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present ‘absolute proof,’ but must offer more than ‘mere allegations.’ " Ontiveros v. City of Rosenberg , 564 F.3d 379, 382 (5th Cir. 2009) (quoting Reese v. Anderson , 926 F.2d 494, 499 (5th Cir. 1991) ).

Discretionary matters, including the district court's application of local rules in disposing of motions, are reviewed under an abuse of discretion standard. Victor F. v. Pasadena Indep. Sch. Dist. , 793 F.2d 633, 635 (5th Cir. 1986).

V.

We now turn to address the substance of Valderas's claim. When evaluating a claim of qualified immunity "we engage in a two-part inquiry asking: first, whether...