     Case: 09-10817    Document: 00511183817         Page: 1    Date Filed: 07/23/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         July 23, 2010
                                    No. 09-10817
                                  Summary Calendar                       Lyle W. Cayce
                                                                              Clerk

ANGELA VASQUEZ,

                                          PlaintiffSAppellant
v.

SHELBY NOWAK CHACON, Individually,

                                          DefendantSAppellee



                  Appeal from the United States District Court
                       for the Northern District of Texas
                           USDC No. 3:08-CV-2046-M



Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Angela Vasquez filed suit under 42 U.S.C. § 1983 against Shelby Chacon,
a Dallas police officer, alleging violations of the Fourth Amendment for false
arrest, false imprisonment, and the use of excessive force. The magistrate judge
dismissed Vasquez’s suit for failure to identify evidence in the record that
supports the claim of bystander liability. We affirm.




       *
         Pursuant to 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not be published and is not precedent except under the limited circumstances set forth in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.
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                                   No. 09-10817

            I. FACTUAL AND PROCEDURAL BACKGROUND
      Vasquez called 911 to report a disturbance at her residence.            When
Officers James Ball and Chacon arrived on the scene, Vasquez approached the
officers with her dog in her arms. The officers detected alcohol on Vasquez’s
breath and suspected that she was intoxicated. When the officers told Vasquez
that there was little they could do to resolve the disturbance, she became
agitated and uncooperative. Vasquez refused to comply with the officers’ request
to return to her home. Officer Ball then placed Vasquez under arrest for public
intoxication.
      When Officer Ball attempted to handcuff Vasquez, she jerked her right
arm out of his control and the dog fell. Officer Ball, in an effort to regain control,
grabbed Vasquez’s right wrist and placed her on the hood of the patrol car.
Officer Chacon, standing on the opposite side of the patrol car, secured the dog
while Officer Ball finished handcuffing Vasquez.           The officers transported
Vasquez to a detoxification center. At no point did Vasquez request medical
assistance or complain about her arm.             After being released from the
detoxification center, a doctor determined that Vasquez’s right arm was broken.
      Vasquez filed an action in state court against Officers Ball and Chacon for
false arrest, false imprisonment, assault, and excessive force. Vasquez served
Officer Chacon but never effected service on Officer Ball.          The state court
granted leave for Vasquez to amend her petition to include claims arising under
42 U.S.C. § 1983. Vasquez amended her complaint to include claims under
§ 1983 and Officer Chacon removed the action to federal district court.
      Officer Chacon filed a motion for summary judgment, arguing that she was
entitled to qualified immunity and thus could not be held liable on a theory of


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                                  No. 09-10817

bystander liability. See White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992). The
magistrate judge recommended granting the motion for summary judgment.
Vasquez did not object to the magistrate judge’s findings or recommendation.
The district court accepted the magistrate judge’s recommendation and granted
Officer Chacon’s motion for summary judgment. Vasquez timely appealed.
                                 II. ANALYSIS
      We generally review a grant of summary judgment de novo. See ICEE
Distribs. Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 844 (5th Cir. 2006).
However, when a party fails to object to the findings of a magistrate judge within
ten days of the recommendation, we review the district court’s grant of summary
judgment for plain error. See 28 U.S.C. § 636(b)(1); Douglass v. United Serv.
Auto Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc). Plain error review
applies to the factual findings and legal conclusions of magistrate judges
accepted by the district court. Douglass, 79 F.3d at 1417. Summary judgment
would not be appropriate if there are “unobjected-to (forfeited) errors that are
plain (‘clear’ or ‘obvious’) and affect substantial rights.” Id. at 1424 (citations
omitted). In United States v. Olano, the Supreme Court explained that we have
the discretion to correct plain errors only if the “error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” 507 U.S. 725,
736 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))
(alteration in original).
      Summary judgment is appropriate when, after considering the pleadings
and other evidence on file, “there is no genuine issue as to any material fact and
. . . the moving party is entitled to a judgment as a matter of law.” F ED. R. C IV.
P. 56(c). In order to defeat summary judgment, the nonmoving party must


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identify evidence in the record that “articulate[s] the precise manner in which
that evidence supports his or her claim.” Ragas v. Tenn. Gas Pipeline Co., 136
F.3d 455, 458 (5th Cir. 1998). We view the evidence in the light most favorable
to the nonmoving party, but conclusory allegations and unsubstantiated
assertions may not be relied on as evidence by the nonmoving party. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
        In her motion for summary judgment, Officer Chacon asserted that
Vasquez had not produced evidence showing the inapplicability of the qualified
immunity defense. See Zarnow v. City of Wichita Falls, 500 F.3d 401, 407 (5th
Cir. 2007) (finding that the nonmoving party, in response to a motion for
summary judgment under qualified immunity, must produce evidence going to
show “that the defendant violated the plaintiff’s constitutional rights and that
the violation was objectively unreasonable”).      Additionally, Officer Chacon
argued that Vasquez failed to identify any evidence showing that Officer Chacon
was liable under § 1983 as a bystander to the use of excessive force. See Hale v.
Townley, 45 F.3d 914, 919 (5th Cir. 1995) (noting that the evidence necessary to
defeat summary judgment must indicate that the officer had a “reasonable
opportunity to realize the excessive nature of the force and to intervene and stop
it”).
        In response, Vasquez articulated discrepancies between Officer Chacon’s
state    and   federal   court   affidavits   purporting   to   demonstrate     the
unreasonableness of Officer Chacon’s actions.         The affidavits had three
discrepancies: (1) the state court affidavit listed 8:15 p.m. as the time of the
struggle, while the federal court affidavit listed 9:56 p.m.; (2) the state court
affidavit did not detail Officer Chacon’s location during the struggle, while the


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                                  No. 09-10817

federal court affidavit noted that Officer Chacon was standing on the opposite
side of the patrol car from Vasquez and Officer Ball; and (3) both the state and
federal court affidavits noted that Vasquez was taken to the Dallas jail when, in
fact, she was taken to the detoxification center.

      The magistrate judge, in construing the evidence in the light most
favorable to Vasquez, determined that the discrepancies noted by Vasquez failed
to create a genuine issue of material fact as to qualified immunity or bystander
liability. The magistrate judge found the first and third discrepancies to be
immaterial to Officer Chacon’s liability under § 1983. The timing of the struggle
and the type of facility that the officers took Vasquez to have no bearing on
whether Officer Chacon violated Vasquez’s constitutional rights or had a
reasonable opportunity to intervene.         The second discrepancy, although
tangentially related to Officer Chacon’s ability to intervene in the arrest, does
not show that Officer Chacon knew of the excessive force or had a reasonable
opportunity to intervene. Vasquez’s conclusory allegation that Officer Chacon’s
location during the struggle establishes that Chacon was in position to stop the
use of excessive force is, absent other evidence, insufficient to create a genuine
issue of material fact. See id.; Little, 37 F.3d at 1075.

      Vasquez now contends that when the magistrate judge disregarded the
three discrepancies, the magistrate judge did not construe the evidence in the
light most favorable to her. Vasquez cites cases from other circuits to support
her argument that a disputed issue of fact as to qualified immunity should be
decided by a jury. See Velasquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th
Cir. 2007); Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996). Vasquez’s
reliance on Velasquez and Mick is unwarranted; in both cases there were facts


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                                 No. 09-10817

indicating that the officers could have reasonably prevented the use of excessive
force. Velasquez, 484 F.3d at 1342; Mick, 76 F.3d at 1130–31. We agree with the
magistrate judge that the discrepancies noted by Vasquez do not create a
genuine issue of material fact as to the actions of Officer Chacon.          The
magistrate judge did not plainly err in recommending summary judgment.
                             III. CONCLUSION
      Because Vasquez failed to come forward with evidence to rebut qualified
immunity or substantiate her § 1983 claim, we AFFIRM the district court’s
grant of summary judgment to Officer Chacon.
      AFFIRMED.




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