     Case: 11-51226       Document: 00512113360         Page: 1     Date Filed: 01/15/2013




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

                                                                            FILED
                                                                         January 15, 2013

                                       No. 11-51226                        Lyle W. Cayce
                                                                                Clerk

MICHELLE MARTINEZ; MARIO MARTINEZ, JR., A Minor, By and
Through Next Friend Mario Martinez, Sr.; MARIO MARTINEZ,

                                                  Plaintiffs - Appellants,
v.

MAVERICK COUNTY; TOMAS HERRERA, As Maverick County Sheriff in
His Individual Capacity; ROBERTO SIFUENTES, Maverick County Sheriff’s
Deputy in His Individual Capacity; MARCOS JESUS RIVERA, Maverick
County Sheriff’s Deputy in His Individual Capacity; OSVALDO LOPEZ,
Maverick County Sheriff’s Deputy in His Individual Capacity,

                                                  Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Western District of Texas
                           U.S.D.C. No. 2:08-CV-77-AM


Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
       This appeal arises out of the events leading up to and following the arrest
of Plaintiff-Appellant Michelle Martinez subsequent to a traffic stop in Eagle
Pass, Texas. Martinez and her husband and son appeal the district court’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51226

dismissal of claims and grant of summary judgment for the defendants on her
42 U.S.C. § 1983 claims and state law claims. For substantially the same
reasons as the district court, which adopted the magistrate judge’s report and
recommendations, we AFFIRM.
       Various Maverick County Deputies (the “Deputies”) were involved in an
incident following an attempted traffic stop of Martinez for misdemeanor traffic
violations. Martinez resisted arrest and attempted to flee in her vehicle at a
high speed. A deputy pursued, using several techniques to stop her, including
maneuvering her vehicle off the road and shooting her tires. Martinez continued
to flee in her vehicle, nearly hitting another officer who had arrived in the area
to assist.    Fearing for their safety and that of others in the surrounding
community, the Deputies shot at Martinez’s vehicle 15 to 18 times. One of these
shots struck her in the neck, injuring her and rendering her a quadriplegic.
       On appeal, Martinez essentially challenges the entirety of the district
court’s ruling on her substantive claims:1
       1. Denial of Medical Care. We agree with the district court that Martinez
failed to state a claim for denial of medical care against any defendant.
Martinez did not allege the existence of any additional harm beyond her original
injury occasioned by the Deputies’ alleged failure to provide or summon medical
help immediately. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1985).




       1
          Martinez waived any challenge to the denial of her motion for remand (challenging
procedure, not subject-matter jurisdiction) by not timely moving for remand. See 28 U.S.C.
§ 1447(c); Baris v. Sulpico Lines, Inc., 932 F.2d 1540, 1543 (5th Cir. 1991). We agree with the
district court that Martinez’s husband and her son failed to establish standing by not putting
forth facts implicating a right of recovery separate from the alleged violations of Martinez’s
personal rights. See Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir. 1986).

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                                        No. 11-51226

       2. Sheriff’s Office2 Policy or Custom. Nor did Martinez sufficiently allege
the existence of an unconstitutional policy or custom of the Maverick County
Sheriff’s Office resulting in a violation of her rights, as required to state a claim
against it. See Piotrowski v. City of Houston, 237 F.3d 567, 578–81 (5th Cir.
2001). While Martinez made wide-ranging conclusory allegations of corruption
within the Sheriff’s Office, she failed to identify any injury-causing policy or to
establish that her injuries were the direct result of any such policies. See id. at
578; see also Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).
       3. Inadequate Training. Martinez’s claim of constitutionally inadequate
training against the Sheriff’s Office was not supported with sufficient evidence
suggesting      that    the   County      deviated      from    state-mandated        training
requirements, or that its training was constitutionally deficient. In order to
avoid summary judgment, she needed to demonstrate “at least a pattern of
similar violations arising from training that is so clearly inadequate as to be
obviously likely to result in a constitutional violation.” Burge v. St. Tammany
Parish, 336 F.3d 363, 370 (5th Cir. 2003) (internal quotation marks and citation
omitted).3 She did not do so, and therefore summary judgment was appropriate.


       2
           Liability under § 1983 for a supervisor may exist based either on “personal
involvement in the constitutional deprivation,” or “a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.” Thompkins v. Belt, 828 F.2d
298, 304 (5th Cir. 1987). Since Martinez’s complaint did not allege that Sheriff Herrera had
personal involvement in the events leading to her injury, the district court properly dismissed
the Fourth and Fourteenth Amendment claims against him, as the complaint lacked
allegations that sufficiently tied the constitutional violations to Sheriff Herrera’s alleged
wrongful conduct. In sum, the individual-capacity suit against Sheriff Herrera fails because
nothing in the record shows that he had any direct, personal involvement in the Martinez
incident. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). Because an
official-capacity suit is a suit against a municipality, that aspect of Martinez’s suit is
subsumed in the municipal liability discussion herein.
       3
          To the extent that single-incident liability retains viability as a theory of municipal
liability after Thompson v. Connick, 131 S. Ct. 1350 (2011), a question we need not decide, it
would not apply here. Martinez asserts that the Sheriff’s Office had a “policy” of engaging in
pretextual traffic stops and falsifying official records. She has not alleged facts sufficient to

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                                       No. 11-51226

       4. Individual Deputies’ Qualified Immunity Defense. Martinez also failed
to rebut the Deputies’ qualified immunity defense by showing that the Deputies’
use of force was excessive or objectively unreasonable. See Ontiveros v. City of
Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). An officer’s use of deadly force is
presumptively reasonable, and thus presumptively not in violation of the
constitution, when the officer reasonably believes that the suspect poses a threat
of serious harm to the officer or to others. See id. The Deputies were reasonable
to believe that Martinez’s erratic attempts to flee posed a threat of serious harm
to themselves and the surrounding community, making qualified immunity on
the excessive force claims and summary judgment appropriate.
       5. Official Immunity Under Texas Law. Finally, we agree with the district
court that the Deputies and Sheriff Herrera were entitled to official immunity
under Texas law on Martinez’s state law claims. See City of Lancaster v.
Chambers, 883 S.W.2d 650, 653-58 (Tex. 1994).                  Maverick County is also
immune from Martinez’s tort claims. See TEX. CIV. PRAC. & REM. CODE §§
101.021, 101.055, 101.057. The limited waiver to state immunity in the Texas
Tort Claims Act does not apply unless the state employee is personally liable to
the claimant under Texas law. See TEX. CIV. PRAC. & REM. CODE § 101.021;
DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995). Because the Deputies
and Sheriff Herrera are entitled to official immunity, there is no waiver of the
County’s immunity.
       AFFIRMED.

show that the unconstitutional consequences of the alleged Sheriff’s Office policies “could be
so patently obvious that a [governmental entity] could be liable under § 1983 without proof of
a pre-existing pattern of violations.” See id. at 1361. Moreover, in addition to culpability,
there must be a direct causal link between the municipal policy and the constitutional
deprivation. Pietrowski, 237 F.3d at 580. Thus, even if there were such policies, Martinez has
not brought forth facts that would establish that her injuries resulting from the force used to
stop her from fleeing were the direct result of any such policies. See Brown, 520 U.S. at 403.



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