     Case: 15-20237   Document: 00513550552     Page: 1   Date Filed: 06/16/2016




                        REVISED June 16, 2016

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

                                                                    FILED
                                                                  June 15, 2016
                                 No. 15-20237
                                                                  Lyle W. Cayce
                                                                       Clerk
RICARDO SALAZAR-LIMON, Individually and as Next Friend of EFS,

             Plaintiff - Appellant

v.

CITY OF HOUSTON; CHRIS C. THOMPSON,

             Defendants - Appellees




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


Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Ricardo Salazar-Limon (“Salazar”) appeals the judgment dismissing his
42 U.S.C. § 1983 claims, which alleged that Officer Chris C. Thompson of the
Houston Police Department (“HPD”), in Houston, Texas, applied excessive and
unreasonable deadly force during his arrest, causing Salazar to be partially
paralyzed. Salazar also asserted a claim, under Monell v. New York City Dept.
of Social Services, 436 U.S. 658 (1978), against the City of Houston based on
the same conduct and injuries. The district court granted qualified immunity
to Officer Thompson in his individual capacity (finding that Salazar’s
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                                   No. 15-20237
constitutional rights had not been violated during the arrest) and also denied
Salazar’s claims under Monell. Salazar appealed. We AFFIRM.
                                           I.
      In reviewing an appeal from a summary judgment, we “view the facts in
the light most favorable to the non-moving party and draw all reasonable
inferences in its favor.” See Deville v. Marcantel, 567 F.3d 156, 163–64 (5th
Cir. 2009).
      On October 29, 2010, around midnight, Salazar was driving on Houston’s
Southwest Freeway. Three other men were in his truck. Salazar had drunk
at least four or five beers in the previous two hours—and had the remainder of
the 12–pack with him in the truck.
      Officer Thompson observed Salazar’s truck weaving between lanes and
speeding in excess of the posted limit. In response, Officer Thompson turned
on his lights and sirens, and Salazar pulled over on the right shoulder of the
elevated overpass, next to a low retaining wall. About two feet separated the
freeway wall from the passenger side of Salazar’s truck. Officer Thompson
parked his patrol car about four feet behind Salazar’s truck. Before getting out
of the patrol car, Officer Thompson ran a search on Salazar’s license plate to
see if the truck was stolen; it was not.
      Officer Thompson approached the driver’s window of Salazar’s truck and
asked Salazar for his license and proof of insurance. Lacking a U.S. license,
Salazar complied by giving Officer Thompson his Mexican driver’s license.
Officer Thompson returned to his patrol car and checked the driver’s license,
which showed Salazar had no open warrants or charges pending against him.
Officer Thompson then returned to the driver’s window of Salazar’s truck,
asking Salazar to step out. Salazar complied, walked to the back of his truck,
and stood next to Officer Thompson in the space between the back of the truck
and the front of the patrol car.
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                                       No. 15-20237
       Officer Thompson and Salazar dispute certain details of what happened
next, but it is undisputed that: 1) Officer Thompson tried to handcuff Salazar;
2) Salazar resisted; 3) a brief struggle ensued (in which neither party was
injured); 1 and 4) after the brief struggle, Salazar pulled away, turned his back
to Officer Thompson, and walked away along the retaining wall and the
passenger side of his truck.
       At this point, Officer Thompson pulled out his handgun and ordered
Salazar to stop. Salazar did not immediately comply and took “one or two”
more steps. Officer Thompson testified he then saw Salazar turn left and reach
toward his waistband, which was covered by an untucked shirt that hung
below his waist. 2 Further, Officer Thompson testified that he perceived the
combination of Salazar’s actions to be consistent with a suspect retrieving a
weapon from his waistband. Officer Thompson fired a single shot, hitting
Salazar in the right lower back.
       Upon inspection, Officer Thompson determined that Salazar was not
armed. Salazar survived, but the gunshot wound left him partially paralyzed.
        Salazar was charged with, and pleaded nolo contendere to, resisting
arrest and driving while intoxicated.
       In Texas state court, Salazar sued Officer Thompson, the City of
Houston, and various HPD officials, alleging constitutional and state-law
violations. The defendants timely removed the case. Salazar dismissed his
claims against all of the HPD officers, except Officer Thompson.                       Officer



       1 Salazar contends in his briefing that he did not “struggle” with Officer Thompson at
any point. Salazar alleged in his complaint, however, that he had a “brief struggle” with
Officer Thompson after Officer Thompson pulled out his handcuffs. Salazar was convicted
on his nolo contendere plea to resisting arrest. The charging instrument alleged that Salazar
“push[ed] [Officer Thompson] with his hand.”
       2 Salazar disputes the direction of the turn, or indeed that he was turning at all at the

time he was shot. This factual dispute does not preclude summary judgment for the reasons
noted infra.
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                                  No. 15-20237
Thompson moved for summary judgment, asserting qualified immunity. The
City of Houston moved for summary judgment, asserting Salazar’s failure to
sufficiently plead Monell liability as a matter of law.
      Addressing Salazar’s Fourth Amendment claims against Officer
Thompson, the district court determined that “Salazar [] pointed to no
summary judgment evidence contradicting Thompson’s testimony that he shot
because, when Salazar reached for his waistband and turned toward him, he
believed that Salazar had a gun and would shoot.” Salazar-Limon v. City of
Houston, 97 F. Supp. 3d 898, 909 (S.D. Tex. 2015). The district court thus
concluded that Officer Thompson’s use of deadly force was not excessive under
the circumstances and that Salazar’s constitutional rights were not violated,
and accordingly granted qualified immunity to Officer Thompson, dismissing
the claims against him. See id.
      Turning to Salazar’s Monell claims against the City of Houston, the
district court granted the City of Houston’s summary judgment motion based
on the insufficiency of Salazar’s claims as a matter of law. Specifically, the
district court denied Salazar’s Monell claims because the “constitutional
violation of a municipal official is a prerequisite to municipal liability,” and
Salazar “ha[d] not raised a factual dispute material to determining whether
[his] constitutional rights were violated.”      Id. at 910 (emphasis added)
(citations omitted). Thus, “[w]ithout an underlying [constitutional] violation,”
the district court held, “the § 1983 claims against the municipality fail.” Id.
      Salazar appealed to this Court, arguing that the district court erred in
granting Officer Thompson and the City of Houston’s motions because
genuinely disputed material facts precluded summary judgment. Accordingly,
Salazar argues that the district court’s grant of summary judgment was error




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                                       No. 15-20237
and that the judgment should be reversed and remanded for trial against
Officer Thompson and the City of Houston. 3
                                              II.
       We review the district court’s grant of summary judgment de novo, also
applying the same standards as the district court. See Newman v. Guedry, 703
F.3d 757, 761 (5th Cir. 2012). Summary judgment is only appropriate if “there
is no genuine issue as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “On a motion for summary judgment, [we] must view the facts in the
light most favorable to the non-moving party and draw all reasonable
inferences in its favor.” Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir.
2009). “As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
                                             III.
       To establish a claim under § 1983, “a plaintiff must (1) allege a violation
of a right secured by the Constitution or laws of the United States and
(2) demonstrate that the alleged deprivation was committed by a person acting
under color of state law.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013),
cert. denied, 134 S. Ct. 1935 (2014). Additionally, “[c]laims under § 1983 may
be brought against persons in their individual or official capacity, or against a
governmental entity.” Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir.
2009)).




       3Salazar does not appeal the district court’s dismissal of his other federal (conspiracy)
and state-law (negligence against Officer Thompson in his official capacity, negligence
against the City of Houston, and loss of consortium) claims.
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                                   No. 15-20237
      A municipality and/or its policymakers may be held liable under § 1983
“when execution of a government’s policy or custom . . . by those whose edicts
or acts may fairly be said to represent official policy, inflicts the [constitutional]
injury. . . .” Monell, 436 U.S. at 694; see also Peterson v. City of Fort Worth,
588 F.3d 838, 847 (5th Cir. 2009) (requiring plaintiffs asserting Monell-liability
claims to show “(1) an official policy (2) promulgated by the municipal
policymaker (3) [that was also] the moving force behind the violation of a
constitutional right”).
                                         A.
      First, we turn to Salazar’s claims against Officer Thompson. Salazar
contends that the district court erred by resolving disputed issues of material
fact, and on that basis, by granting Officer Thompson qualified immunity,
holding that Officer Thompson did not use excessive or unreasonable force in
Salazar’s arrest.
      Because Officer Thompson was sued in his individual capacity, he
asserted the defense of qualified immunity. See Goodman, 571 F.3d at 395;
Salazar-Limon, 97 F. Supp. 3d at 900. When evaluating a qualified immunity
defense, we conduct a “well-known” two-prong inquiry. Bazan ex rel. Bazan v.
Hidalgo Cty., 246 F.3d 481, 490 (5th Cir. 2001). “In order to overcome a
qualified immunity defense, a plaintiff must allege a violation of a
constitutional right, and then must show that ‘the right was clearly established
. . . in light of the specific context of the case.’” Thompson v. Mercer, 762 F.3d
433, 437 (5th Cir. 2014) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
      Thus, “[a]t summary judgment, it is the plaintiff’s burden to rebut a
claim of qualified immunity once the defendant has properly raised it in good
faith.” Cole v. Carson, 802 F.3d 752, 757 (5th Cir. 2015). And, “[t]his is a
demanding standard.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir.
2015), cert. denied, 136 S. Ct. 1517 (2016) (emphasis added). “Put simply,
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                                   No. 15-20237
qualified immunity protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
      Moreover, “[t]his burden is not satisfied with ‘some metaphysical doubt
as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated
assertions,’ or by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citations omitted). And, although
“[w]e resolve factual controversies in favor of the nonmoving party,” we do so
only “when there is an actual controversy, that is, when both parties have
submitted evidence of contradictory facts.” Id. (emphasis added). Accordingly,
we do not, “in the absence of any proof, assume that the nonmoving party could
or would prove the necessary facts” to survive summary judgment. Id. (citing
Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990)).
      Turning to the constitutional claim here, Salazar contends that Officer
Thompson violated his Fourth Amendment rights by applying excessive force
during his arrest.
      To establish a claim of excessive force under the Fourth Amendment,
Salazar “must demonstrate: ‘(1) [an] injury, (2) which resulted directly and
only from a use of force that was clearly excessive, and (3) the excessiveness of
which was clearly unreasonable.” Deville, 567 F.3d at 167 (quoting Tarver v.
City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)). “Excessive force claims are
necessarily fact-intensive.” Id.
      “The ‘[u]se of deadly force is not unreasonable when an officer would
have reason to believe the suspect poses a threat of serious harm to the officer
or others.’” Carnaby v. City of Houston, 636 F.3d 183, 188 (5th Cir. 2011)
(quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)). And, this
“inquiry is confined to whether the [officer or another person] was in danger at


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                                         No. 15-20237
the moment of the threat that resulted in the [officer’s use of deadly force].”
Rockwell v. Brown, 664 F.3d 985, 993 (5th Cir. 2011) (citation omitted).
       Salazar contends that the district court erred because it resolved
disputed issues of material fact in Officer Thompson’s favor. Specifically,
Salazar asserts that the district court erred by finding that: 1) the highway
was dimly lit; 2) Officer Thompson adequately warned Salazar prior to the
shooting; 3) Salazar turned sharply towards Thompson; and 4) Salazar reached
for his waistband, making threatening movements with his hands.
       Of the four issues, only one need be addressed—whether Salazar reached
for his waistband before being shot. Unless Salazar has presented competent
summary judgment evidence that he did not reach toward his waistband (for
what Officer Thompson perceived to be a weapon), Officer Thompson’s decision
to shoot was not a use of unreasonable or excessive deadly force. 4
       Here, the record evidence shows that Officer Thompson testified that:
1) he saw Salazar reach for his waistband; 2) his view of Salazar’s waistband
was obscured (either by Salazar’s low-hanging shirt, the angle at which
Salazar turned, or some combination of the two); and 3) he perceived Salazar’s
movements to be consistent with those of an arrestee reaching for a concealed
weapon. In the proceedings before the district court, however, Salazar did not


       4  See Deville, 567 F.3d at 167 (we must “consider . . . ‘the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.’”) (emphasis
added) (citing Graham, 490 U.S. at 396); Carnaby, 636 F.3d at 188 (“The ‘[u]se of deadly force
is not unreasonable when an officer would have reason to believe the suspect poses a threat
of serious harm to the officer or others.’”) (citation omitted); Rockwell, 664 F.3d at 993 (“The
excessive force inquiry is confined to whether the [officer or another person] was in danger
at the moment of the threat that resulted in the [officer’s use of deadly force].”) (citation
omitted); Manis v. Lawson, 585 F.3d 839, 844 (5th Cir. 2009) (“This court has found an
officer’s use of deadly force to be reasonable when a suspect moves out of the officer’s line of
sight such that the officer could reasonably believe the suspect was reaching for a weapon.”)
(citations omitted); see also Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 385 (5th Cir.
2009); Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991); Young v. City of Killeen, TX, 775
F.2d 1349, 1352–53 (5th Cir. 1985).
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                                       No. 15-20237
deny reaching for his waistband; 5 nor has he submitted any other
controverting evidence in this regard. To the point, Salazar has not presented
any competent summary judgment evidence to controvert or challenge Officer
Thompson’s testimony noted above. And, in the absence of such controverting
evidence, we cannot assume that Salazar “could or would prove the necessary
facts” to survive summary judgment. Little, 37 F.3d at 1075 (citing Lujan, 497
U.S. at 888).
       Thus, based on our precedent and the undisputed facts, considering the
totality of the circumstances—which include Salazar’s resistance, intoxication,
his disregard for Officer Thompson’s orders, the threat he and the other three
men in his truck posed while unrestrained, and Salazar’s actions leading up to
the shooting (including suddenly reaching towards his waistband)—it seems
clear that it was not unreasonable for an officer in Officer Thompson’s position
to perceive Salazar’s actions to be an immediate threat to his safety. 6 And, it
follows that it was not “clearly excessive” or “unreasonable” for Officer
Thompson to use deadly force in the manner he did to protect himself in such
circumstances. 7


       5  See Salazar-Limon, 97 F. Supp. 3d at 906 (“uncontroverted record evidence shows
that Salazar . . . reached for his waistband before Thompson fired”); id. at 906–07
(“undisputed summary judgment evidence shows that: . . . as [Salazar] walked away from
Officer Thompson toward his own truck, he reached toward his waistband”).
        6 Furthermore, we note that, in the context of the facts of this case, it is immaterial

whether Salazar turned left, right, or at all before being shot. Specifically, we have never
required officers to wait until a defendant turns towards them, with weapon in hand, before
applying deadly force to ensure their safety. See, e.g., Manis, 585 F.3d at 844 (“This court
has found an officer’s use of deadly force to be reasonable when a suspect moves out of the
officer’s line of sight such that the officer could reasonably believe the suspect was reaching
for a weapon.” (collecting cases)); Mendez v. Poitevent, No. 15-50790, ___ F.3d ___, 2016 WL
2957851 at * (May 19, 2016) (qualified immunity applies to shooting of fleeing suspect who
had physically clashed with officer leaving officer disoriented and with impaired vision);
Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997) (qualified immunity applies to shooting
without warning after suspect struggled with two officers knocking them to the ground while
resisting arrest).
        7 See cases cited supra note 4.

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                                       No. 15-20237
       Accordingly,      we    agree     with        the   district    court   that   Salazar’s
constitutional rights were not violated; and, we hold that the district court did
not err in granting Officer Thompson qualified immunity.
                                                B.
       We next turn to Salazar’s claims against the City of Houston. Salazar
asserts three theories of municipal liability under Monell: 1) unofficial policy,
custom or practice for failure to discipline; 2) unofficial policy, custom or
practice for failure to train and/or supervise; and 3) ratification. 8
       Because Salazar has not shown a violation of his constitutional rights,
however, all of his Monell claims against the City of Houston fail as a matter
of law. See Peterson, 588 F.3d at 847 (requiring plaintiffs asserting Monell-
liability claims to show “(1) an official policy (2) promulgated by the municipal
policymaker (3) [that was also] the moving force behind the violation of a
constitutional right”) (emphasis added).
                                              IV.
       In sum, the record evidence, read in the light most favorable to Salazar,
does not show that his Fourth Amendment rights were violated. Thus, the
district court’s judgment is, in all respects
                                                                                 AFFIRMED.




       8 Salazar also argues that the HPD use of force policy is “facially deficient” because it
uses the term “imminent threat,” as opposed to “immediate threat.” See Deville, 567 F.3d at
167 (“whether the suspect poses an immediate threat to the safety of the officers or others”)
(citing Graham, 490 U.S. at 396). In short, this argument is meritless as municipalities are
not required to incorporate specific language from our case law, or that of the Supreme Court,
in order to satisfy Monell.
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