                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 28, 2007

                                                         Charles R. Fulbruge III
                            No. 05-20718                         Clerk
                          Summary Calendar



ALEJANDRO SANTIAGO,

                                             Plaintiff - Appellant
versus


CITY OF HOUSTON and OFFICER RICHARD PEDERSON,

                                             Defendants - Appellees


          Appeal from the United States District Court
               for the Southern District of Texas
                       (No. 4:04-CV-1103)



Before SMITH, WIENER, and OWEN Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Alejandro Santiago appeals the district

court’s order granting summary judgment in favor of Defendants-

Appellees, the City of Houston (the “City”) and Officer Richard

Pederson (“Pederson”).   Santiago also appeals the district court’s

denial of his motion to enlarge discovery.   We affirm.



                      I. Facts and Proceedings

     Santiago lived with his two siblings and their spouses and


     *
      Under 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
children in an apartment on the second floor of a two-story

apartment building in Houston.          In July 2003, Santiago’s brother

allowed a co-worker, Pete Flores Cervantes (“Cervantes”), to store

a bag at the apartment.          When Cervantes returned the following

evening to retrieve his belongings, he and Santiago got into a

heated discussion.          Cervantes left the apartment building and

reported to nearby police officers that a man in the apartment

complex had pointed a gun at him.

     Four   police    officers    ——   Griffin,    Hernandez,    Topper,    and

Pederson —— went to the apartment complex to investigate the

report.    Hernandez, Griffin, and Topper went upstairs and stood on

a balcony outside of Santiago’s apartment, while Pederson remained

in the courtyard in front of the apartment.             Hernandez reported

seeing movement behind the blinds at the front of the apartment and

hearing someone answer from inside.               He also reported seeing

someone’s   hand    stick    through   the   window   blinds    holding    what

appeared to be a small silver pistol.         Pederson stated that he saw

the incident, but he described the gun as a blue steel pistol.

Pederson and Griffin yelled to the other officers that a gun was

present.    Hernandez ordered the individual to drop the weapon and

come out of the apartment with his hands up.          The hand and gun then

disappeared behind the blinds.

     The officers next saw a hand holding a pistol protruding from

the apartment’s front window; the gun was aimed at the officers on

the balcony.       Hernandez, Griffin, and Topper attempted to take

                                       -2-
cover.      When he saw a firearm aimed at his fellow officers,

Pederson    drew   his   gun   and   rapidly   fired   eight   shots   at   the

apartment’s front window, hitting Santiago once in the chest and

severely injuring him.          As a result of the injury, Santiago

underwent multiple surgeries and remained in the hospital for four

months.    He continues to receive treatment for these injuries.

     After the shooting, the officers conducted a thorough search

of the area, but no firearm was found.          Santiago contends that the

officers never informed him of their presence and that he never had

a gun.     He was nevertheless charged with “deadly conduct” on the

basis of the officers’ statements that he pointed the gun at

Cervantes.

     In March 2004, Santiago filed a complaint against Defendants-

Appellants in the Southern District of Texas, asserting various

civil rights and state law tort violations.              In July 2005, the

district court granted Defendants-Appellants’ motion for summary

judgment.    The court held that Santiago’s § 1983 unlawful arrest

and excessive force claims against Pederson failed, because (1)

Pederson acted with probable cause in arresting Santiago, and (2)

the officer’s use of force was reasonable in light of the perceived

threat.    As for the City, the court held that Santiago had failed

to demonstrate a municipal policy to support his claim.            The court

also concluded that Santiago’s state law claims failed, because the

City had not waived its sovereign immunity to this type of claim.



                                      -3-
Santiago timely appealed.1

                                 II. ANALYSIS

A.   Standard of Review

     We review the district court’s decision to grant summary

judgment de novo.2     A motion for summary judgment should be granted

only when    there   is    no   genuine    issue   of    material    fact.3      In

determining whether there is a genuine issue of material fact, we

view all facts and draw all inferences therefrom in favor of the

non-moving party.4        We review the district court’s order denying

Santiago’s   request      for   additional     time     in   which   to   conduct

discovery for abuse of discretion.5

B.   Qualified Immunity

     Santiago     asserts    that   Pederson    falsely      arrested     him   and

subjected him to unreasonable force.            Pederson counters, and the

district court held, that he is entitled to qualified immunity. To

determine whether a public official is entitled to qualified

immunity, the court asks (1) whether the plaintiff has alleged a

     1
          In August 2006, Santiago’s appeal was dismissed for
want of prosecution because he had failed timely to file record
excerpts. The case was reopened in October of that year.
     2
          American Int’l Specialty Lines Ins. Co. v. Canal Indem.
Co., 352 F.3d 254, 260 (5th Cir. 2003).
     3
          Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d
233, 235 (5th Cir. 2003).
     4
            Id.
     5
          Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156,
161 (5th Cir. 2006).

                                     -4-
violation of a constitutional right and (2) whether the defendant’s

conduct   was   objectively     reasonable   in   light   of   the   clearly

established law at the time of the incident.6

     Santiago’s claim that he was falsely arrested fails, as

Pederson had probable cause to arrest him.         “Probable cause exists

when the totality of the facts and circumstances within a police

officer’s knowledge at the moment of arrest are sufficient for a

reasonable person to conclude that the suspect had committed an

offense.”7    Here, the district court correctly determined that the

information     provided   to   the    officers   by   Cervantes     and    the

subsequent occurrences at the apartment complex gave Pederson

sufficient information on which to deduce that Santiago had engaged

in “deadly conduct.”

     Pederson is also entitled to qualified immunity on Santiago’s

excessive force claim.      To state such a claim, a plaintiff must

allege: “(1) an injury, which (2) resulted directly and only from

the use of force that was clearly excessive to the need; and the

excessiveness of which was (3) objectively unreasonable.”8                 Here,

assuming arguendo that Santiago has satisfied his burden with

respect to the first of these two elements, his claim still must be

     6
          McClendon v. City of Columbia, 305 F.3d 314, 322–23
(5th Cir. 2002).
     7
          Haggerty v. Tex. S. Univ., 391 F.3d 653, 655-56 (5th
Cir. 2004) (internal quotation marks omitted).
     8
             United States v. Sipe, 388 F.3d 471, 480 n.22 (5th Cir.
2004).

                                      -5-
dismissed, as we cannot say that Pederson’s conduct was objectively

unreasonable.

     “It is objectively unreasonable to use deadly force ‘unless it

is necessary to prevent [a suspect’s] escape and the officer has

probable cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer or

others.’”9     Cervantes had reported that a man in the apartment

complex had pointed a firearm at him.     Several officers, including

Pederson, reported seeing a firearm aimed at the officers on the

balcony from the front window.          Based on these observations,

Pederson had probable cause to believe that Santiago posed a

significant threat of death or serious physical injury to the

officers on the balcony.

C.   Municipal Liability

     In a claim against a municipality under § 1983, a plaintiff

must demonstrate (1) a municipal policy or custom existed; (2)

governmental policy makers actually or constructively knew of its

existence; (3) a constitutional violation occurred; and (4) through

the municipality’s deliberate conduct, the custom or policy was the

moving force behind the violation.10     The district court correctly

granted summary judgment on the § 1983 claim against the City, as


     9
             Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.
2004)     (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)).
     10
          Meadowbriar Home for Children, Inc. v. G.B. Gunn, 81
F.3d 521, 532 (5th Cir. 1996).

                                  -6-
Santiago failed to introduce evidence of a municipal policy or

custom.

     Santiago’s state law claims against the City also must be

dismissed.    Relying on the Texas Tort Claims Act, Santiago asserts

that the City has waived its governmental immunity for Pederson’s

conduct.   “The Texas Tort Claims Act provides a limited waiver [of

governmental immunity] when personal injury or death is caused by

a ‘use of tangible personal or real property if the governmental

unit would, were it a private person, be liable to the claimant

according to Texas law.”11               Assuming arguendo that Santiago’s

injuries were caused by the “use of tangible personal or real

property,”    the    City     nevertheless      is   immune,    as   it   is   not

vicariously    liable       for   Pederson’s     conduct   in    light    of   our

conclusion that Pederson is entitled to qualified immunity.12                   To

the extent Santiago also asserts under Texas law that the City

negligently failed to carry out one of its established policies, as

discussed above, Santiago has not cited any specific city policy.

D.   Extension of Time for Discovery and Opposition to the Motion

     Santiago       contends      that    the   district   court     abused    its

discretion in denying his motion for additional time for discovery.


     11
          Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex.
2005) (quoting TEX. CIV. PRAC. & REM. CODE § 101.021(2)).
     12
          DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.
1995) (Governmental entities are “not liable under section
101.021(2) for the negligence of [their] employee when the
employee has no liability because of official immunity.”).

                                         -7-
He argues that an extension was necessary because his original

attorney, Mr. Walsh, died, requiring Santiago to find new counsel.

The   attorney   who   filed   Santiago’s    opposition   to   the   summary

judgment motion, Muñoz, however, had previously indicated to the

district court that both he and Walsh represented Santiago, and

Muñoz’s   signature    appears   on   the   complaint.    Although    Muñoz

apparently informed Santiago that he did not have the expertise to

represent him on this case following Walsh’s death, Santiago did

not obtain new counsel, and Muñoz remained counsel of record.           And,

the district court did extend the deadline by which Santiago was to

file his opposition to the summary judgment motion.              Moreover,

Santiago fails to explain the type of information he believes he

would have obtained through additional discovery, and does not

articulate how such information would have created a genuine issue

of material fact.      In light of these facts, the district court did

not abuse its discretion in denying the motion.

      For the foregoing reasons, the denial of that motion and the

judgment of the district court are, in all respects,

AFFIRMED.




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