Fowler V. Edward Jaramillo

Case 1:23-cv-00920-DII Document 1 Filed 08/04/23 Page 1 of 7
Pro Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner)
FILED
UNITED STATES DISTRICT COURT
2023 AUG -4 PM 3:07
for the
CLERK. US DISTRICT COURT
WESTERN DISTRICT OF TEXAS
Western District of Texas
BY
CR
Austin Division
1:23 CV00920 DII
)
Case No.
Derek Samuel Fowler
)
(to be filled in by the Clerk's Office)
)
Plaintiff(s)
)
(Write the full name of each plaintiff who is filing this complaint.
)
Jury Trial: (check one)
Yes
No
If the names of all the plaintiffs cannot fit in the space above,
please write "see attached" in the space and attach an additional
)
page with the full list of names.)
)
-V-
)
)
)
Edward Jaramillo#8408
)
)
Defendant(s)
)
(Write the full name of each defendant who is being sued. If the
)
names of all the defendants cannot fit in the space above, please
)
write "see attached" in the space and attach an additional page
with the full list of names. Do not include addresses here.)
COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
(Non-Prisoner Complaint)
NOTICE
Federal Rules of Civil Procedure 5.2 addresses the privacy and security concerns resulting from public access to
electronic court files. Under this rule, papers filed with the court should not contain: an individual's full social
security number or full birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of an individual's
birth; a minor's initials; and the last four digits of a financial account number.
Except as noted in this form, plaintiff need not send exhibits, affidavits, grievance or witness statements, or any
other materials to the Clerk's Office with this complaint.
In order for your complaint to be filed, it must be accompanied by the filing fee or an application to proceed in
forma pauperis.
Page 1 of 6
Case 1:23-cv-00920-DII Document 1 Filed 08/04/23 Page 2 of 7
Pro Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner)
I.
The Parties to This Complaint
A.
The Plaintiff(s)
Provide the information below for each plaintiff named in the complaint. Attach additional pages if
needed.
Name
Derek Samuel Fowler
Address
6803 N. NAVARRO unit 181
Victoria
TX
77904
City
State
Zip Code
County
Victoria
Telephone Number
512-947-3979
E-Mail Address
Derekfowler7126gmail.com
B.
The Defendant(s)
Derekfowler 712 Gmail.com
Provide the information below for each defendant named in the complaint, whether the defendant is an
individual, a government agency, an organization, or a corporation. For an individual defendant,
include the person's job or title (if known) and check whether you are bringing this complaint against
them in their individual capacity or official capacity, or both. Attach additional pages if needed.
Defendant No. 1
Name
Edward Jaramillo
Job or Title (if known)
Austin police officer
Address
715 E. 8th St
Austin
TX
78701
City
State
Zip Code
County
Travis
Telephone Number
E-Mail Address (if known)
Individual capacity
Official capacity
Defendant No. 2
Name
Job or Title (if known)
Address
City
State
Zip Code
County
Telephone Number
E-Mail Address (if known)
Individual capacity
Official capacity
Page 2 of 6
Case 1:23-cv-00920-DII Document 1 Filed 08/04/23 Page 3 of 7
Pro Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner)
Defendant No. 3
Name
Job or Title (if known)
Address
City
State
Zip Code
County
Telephone Number
E-Mail Address (if known)
Individual capacity
Official capacity
Defendant No. 4
Name
Job or Title (if known)
Address
City
State
Zip Code
County
Telephone Number
E-Mail Address (if known)
Individual capacity
Official capacity
II.
Basis for Jurisdiction
Under 42 U.S.C. § 1983, you may sue state or local officials for the "deprivation of any rights, privileges, or
immunities secured by the Constitution and [federal laws]." Under Bivens V. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), you may sue federal officials for the violation of certain
constitutional rights.
A.
Are you bringing suit against (check all that apply):
Federal officials (a Bivens claim)
State or local officials (a § 1983 claim)
B.
Section 1983 allows claims alleging the "deprivation of any rights, privileges, or immunities secured by
the Constitution and [federal laws]." 42 U.S.C. § 1983. If you are suing under section 1983, what
federal constitutional or statutory right(s) do you claim is/are being violated by state or local officials?
4th Amendment
C.
Plaintiffs suing under Bivens may only recover for the violation of certain constitutional rights. If you
are suing under Bivens, what constitutional right(s) do you claim is/are being violated by federal
officials?
Page 3 of 6
Case 1:23-cv-00920-DII Document 1 Filed 08/04/23 Page 4 of 7
Pro Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner)
D.
Section 1983 allows defendants to be found liable only when they have acted "under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia."
42 U.S.C. § 1983. If you are suing under section 1983, explain how each defendant acted under color
of state or local law. If you are suing under Bivens, explain how each defendant acted under color of
federal law. Attach additional pages if needed.
III.
Statement of Claim
State as briefly as possible the facts of your case. Describe how each defendant was personally involved in the
alleged wrongful action, along with the dates and locations of all relevant events. You may wish to include
further details such as the names of other persons involved in the events giving rise to your claims. Do not cite
any cases or statutes. If more than one claim is asserted, number each claim and write a short and plain
statement of each claim in a separate paragraph. Attach additional pages if needed.
A.
Where did the events giving rise to your claim(s) occur?
302 E. 6th St. Austin, Texas
B.
What date and approximate time did the events giving rise to your claim(s) occur?
September 18th, 2021 12:53 A.M.
C.
What are the facts underlying your claim(s)? (For example: What happened to you? Who did what?
Was anyone else involved? Who else saw what happened?)
on September 18th 2021 officer Edward
Joramillo delivered several closed fist
punches to my face causing a broken
orbital socket and bloody nose requiring
Surgery to remedy. EMS and other
officers on the scene saw the
Page 4 of 6
incident occur.
Case 1:23-cv-00920-DII Document 1 Filed 08/04/23 Page 5 of 7
Pro Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner)
IV.
Injuries
If you sustained injuries related to the events alleged above, describe your injuries and state what medical
treatment, if any, you required and did or did not receive.
Under went facial reconstructive
surgery which was necessary to repair my
Orbital eye Socket fractured, nese fracture,
V.
Relief permanent nerve damage to eyelid, bloody nose,
State briefly what you want the court to do for you. Make no legal arguments. Do not cite any cases or statutes.
If requesting money damages, include the amounts of any actual damages and/or punitive damages claimed for
the acts alleged. Explain the basis for these claims.
I request from the court monetary
relief compensation in the amount of
$ 5,000,000 for reimbursement of medical
bill coSt, past and future pain and sufferring,
permanent disfigurement and nerve damage, violation
of my civil rights, punitive damages to punish and
send a Strong message to hopefully deter
future ads and create policy change
to deter this type of conduct in
future to other potential Victims, and
loss of wages. Emotional distress. Page 5 of
6
Case 1:23-cv-00920-DII Document 1 Filed 08/04/23 Page 6 of 7
Pro Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner)
VI.
Certification and Closing
Under Federal Rule of Civil Procedure 11, by signing below, I certify to the best of my knowledge, information,
and belief that this complaint: (1) is not being presented for an improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; (2) is supported by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the
requirements of Rule 11.
A.
For Parties Without an Attorney
I agree to provide the Clerk's Office with any changes to my address where case-related papers may
be
served. I understand that my failure to keep a current address on file with the Clerk's Office may result
in the dismissal of my case.
Date of signing:
07/27/2023
Signature of Plaintiff
pere Tweer
Printed Name of Plaintiff
Derek SAmuel Fowler
B.
For Attorneys
Date of signing:
Signature of Attorney
Printed Name of Attorney
Bar Number
Name of Law Firm
Address
City
State
Zip Code
Telephone Number
E-mail Address
Page 6 of 6
Case 1:23-cv-00920-DII Document 1 Filed 08/04/23 Page 7 of 7
Generated: Aug 4, 2023 3:01PM
Page 1/1
COURT
FOR
THE
EMERGENCY
XD
03LINN
swal
U.S. District Court
Texas Western - Austin
Receipt Date: Aug 4, 2023 3:01PM
Derek Fowler
6803 N. Navarro, Unit #181
Victoria, TX 77904
Rcpt. No: 1118
Trans. Date: Aug 4, 2023 3:01PM
Cashier ID: #CR
CD Purpose
Case/Party/Defendant
Qty
Price
Amt
200
Civil Filing Fee-Non-Prisoner
1
402.00
402.00
Amt
CD Tender
MO
Money Order
#0008201751
08/4/2023
$402.00
Total Due Prior to Payment:
$402.00
Total Tendered:
$402.00
Total Cash Received:
$0.00
Cash Change Amount:
$0.00
Comments: 1:23cv920 Fowler V. Jaramillo
Clerk, U.S. District Court - Austin Division - 501 West Fifth Street, Suite 1100, Austin, TX 78701 - (512) 916-5896 - www.txwd.uscourts.gov
Case 1:23-cv-00920-DII Document 1-1 Filed 08/04/23 Page 1 of 1
JS 44 (Rev. 06/17)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except
as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Derek Samuel Fowler
Edward Jaramillo
(b)
County
of
Residence
of
First
Listed
Plaintiff
Victoria
County of Residence of First Listed Defendant
Travis
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY)
NOTE:
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number)
Attorneys (If Known)
II. BASIS OF JURISDICTION
(Place an "X" in One Box Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES
(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only)
and One Box for Defendant)
1 U.S. Government
3 Federal Question
PTF
DEF
PTF
DEF
Plaintiff
(U.S. Government Not a Party)
Citizen of This State
1
1
Incorporated or Principal Place
4
4
of Business In This State
2 U.S. Government
4 Diversity
Citizen of Another State
2
2 Incorporated and Principal Place
5
5
Defendant
(Indicate Citizenship of Parties in Item III)
of Business In Another State
Citizen or Subject of a
3
3 Foreign Nation
6
6
Foreign Country
IV. NATURE OF SUIT
(Place an "X" in One Box Only)
Click here for: Nature of Suit Code Descriptions.
CONTRACT
TORTS
FORFEITURE/PENALTY
BANKRUPTCY
OTHER STATUTES
110 Insurance
PERSONAL INJURY
PERSONAL INJURY
625 Drug Related Seizure
422 Appeal 28 USC 158
375 False Claims Act
120 Marine
310 Airplane
365 Personal Injury -
of Property 21 USC 881
423 Withdrawal
376 Qui Tam (31 USC
130 Miller Act
315 Airplane Product
Product Liability
690 Other
28 USC 157
3729(a))
140 Negotiable Instrument
Liability
367 Health Care/
400 State Reapportionment
150 Recovery of Overpayment
320 Assault, Libel &
Pharmaceutical
PROPERTY RIGHTS
410 Antitrust
& Enforcement of Judgment
Slander
Personal Injury
820 Copyrights
430 Banks and Banking
151 Medicare Act
330 Federal Employers'
Product Liability
830 Patent
450 Commerce
152 Recovery of Defaulted
Liability
368 Asbestos Personal
835 Patent Abbreviated
460 Deportation
Student Loans
340 Marine
Injury Product
New Drug Application
470 Racketeer Influenced and
(Excludes Veterans)
345 Marine Product
Liability
840 Trademark
Corrupt Organizations
153 Recovery of Overpayment
Liability
PERSONAL PROPERTY
LABOR
SOCIAL SECURITY
480 Consumer Credit
of Veteran's Benefits
350 Motor Vehicle
370 Other Fraud
710 Fair Labor Standards
861 HIA (1395ff)
490 Cable/Sat TV
160 Stockholders' Suits
355 Motor Vehicle
371 Truth in Lending
Act
862 Black Lung (923)
850 Securities/Commodities/
190 Other Contract
Product Liability
380 Other Personal
720 Labor/Management
863 DIWC/DIWW (405(g))
Exchange
195 Contract Product Liability
360 Other Personal
Property Damage
Relations
864 SSID Title XVI
890 Other Statutory Actions
196 Franchise
Injury
385 Property Damage
740 Railway Labor Act
865 RSI (405(g))
891 Agricultural Acts
362 Personal Injury
Product Liability
751 Family and Medical
893 Environmental Matters
Medical Malpractice
Leave Act
895 Freedom of Information
REAL PROPERTY
CIVIL RIGHTS
PRISONER PETITIONS
790 Other Labor Litigation
FEDERAL TAX SUITS
Act
210 Land Condemnation
440 Other Civil Rights
Habeas Corpus:
791 Employee Retirement
870 Taxes (U.S. Plaintiff
896 Arbitration
220 Foreclosure
441 Voting
463 Alien Detainee
Income Security Act
or Defendant)
899 Administrative Procedure
230 Rent Lease & Ejectment
442 Employment
510 Motions to Vacate
871 IRS-Third Party
Act/Review or Appeal of
240 Torts to Land
443 Housing/
Sentence
26 USC 7609
Agency Decision
245 Tort Product Liability
Accommodations
530 General
950 Constitutionality of
290 All Other Real Property
445 Amer. w/Disabilities
535 Death Penalty
IMMIGRATION
State Statutes
Employment
Other:
462 Naturalization Application
446 Amer. w/Disabilities
540 Mandamus & Other
465 Other Immigration
Other
550 Civil Rights
Actions
448 Education
555 Prison Condition
560 Civil Detainee
Conditions of
Confinement
V. ORIGIN
(Place an "X" in One Box Only)
1 Original
2 Removed from
3
Remanded from
4 Reinstated or
5 Transferred from
6 Multidistrict
8 Multidistrict
Proceeding
State Court
Appellate Court
Reopened
Another District
Litigation
Litigation
(specify)
Transfer
Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 USC 1983
VI. CAUSE OF ACTION
Brief
description of cause: Defend punched me several times injuring me requiring
surgery
VII. REQUESTED IN
CHECK IF THIS IS A CLASS ACTION
DEMAND $
CHECK YES only if demanded in complaint:
COMPLAINT:
UNDER RULE 23, F.R.Cv.P.
5,000,000
JURY DEMAND:
Yes
No
VIII. RELATED CASE(S)
IF ANY
(See instructions):
JUDGE
DOCKET NUMBER
DATE
SIGNATURE OF ATTORNEY OF RECORD
08/04/2023
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
Case 1:23-cv-00920-DII Document 4 Filed 09/11/23 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DEREK SAMUEL FOWLER,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:23-cv-920
§
EDWARD JARAMILLO #8408,
§
Defendant.
§
DEFENDANT OFFICER'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES
TO THE HONORABLE JUDGE PRESIDING:
Officer Edward Jaramillo of the Austin Police Department, ("Defendant Officer") files this Answer
denying all claims, and asserting Affirmative Defenses to Plaintiff's Complaint [DOC 1].
Pursuant to Rules 8 and 12 of the Federal Rules of Civil Procedure, Defendants respectfully show
the Court the following:
ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendant Officer responds to each of the specific
averments in Plaintiff's Complaint as set forth below. To the extent that Defendant Officer does not address
a specific averment made by Plaintiff, Defendant expressly denies that averment.
1
COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
(Non-Prisoner Complaint)
With regard to the NOTICE and other pre-printed official language contained within the
subparagraphs and subheadings included under this section, no response is required, as this portion of the
COMPLAINT does not contain any factual or liability allegations. To the extent any response is required,
1
Paragraph numbers in Defendant's Answer correspond to the paragraphs of the Complaint For Violation of Civil
Rights (Non-Prisoner Complaint) Pro Se 15.
Case 1:23-cv-00920-DII Document 4 Filed 09/11/23 Page 2 of 5
the Defendant denies the allegations, and further denies that Plaintiff has any valid or supportable basis for
any recovery of any type or nature.
I. THE PARTIES TO THIS COMPLAINT
A. The Plaintiff(s):
With regard to this section of the pre-printed official form, no response is required, as this portion
of the NON-PRISONER CIVIL RIGHTS COMPLAINT does not contain any factual or liability
allegations. To the extent any response is required, Defendant admits that Derek Samuel Fowler is the
named plaintiff in this case. Defendant is without sufficient knowledge to form a belief as to Plaintiff's
present address. Any remaining allegations are denied. Defendants further expressly deny that Plaintiff has
any valid or supportable basis for any recovery of any type or nature.
B. Defendant(s):
Defendant No. 1:
Defendant Edward Jaramillo admits that at all relevant times, he was an officer with the Austin
Police Department. Defendant further expressly denies that Plaintiff has any valid or supportable basis for
any recovery of any type or nature.
II. BASIS OF JURISDICTION
With regard to this section of the pre-printed official form, no response is required, as this portion
of the COMPLAINT does not contain any factual or liability allegations. To the extent any response is
required, the Defendant admits that Plaintiff is seeking relief under 42 U.S.C. Section 1983 and the
Fourth Amendment but denies that Plaintiff is entitled to relief under those provisions.
III. STATEMENT OF CLAIM
A.
Defendant officer admits that the Austin Police Department responded to and
provided law enforcement support at or near the property address identified.
B. Defendant officer admits that he and other APD officers were flagged down and
responded to a request for assistance at approximately 12:53 a.m. on September 18,
Defendant Officer's Original Answer
Page 2 of 5
Case 1:23-cv-00920-DII Document 4 Filed 09/11/23 Page 3 of 5
2021.
C. Defendant officer admits that, in response to Plaintiff assuming a threatening stance,
he struck Plaintiff in the face more than once and that EMS and other APD officers
were on scene. Defendant officer denies the remainder of the allegations in
Paragraph C.
IV. INJURIES
Defendant officer admits that Plaintiff appeared to have a bloody nose. Defendant officer is
without sufficient information as to the remaining allegations in Paragraph IV and therefore denies the
same.
V. RELIEF
With regard to this section of the pre-printed official form. Defendant officer denies liability for
the damages sought in Paragraph V. of the pre-printed form and denies Plaintiff is entitled to the relief
requested.
AFFIRMATIVE DEFENSES
1.
Defendant officer denies any deprivation under color of statute, ordinance, custom, or
abuses of any rights, privileges, or immunities secured to the decedent by the United States
Constitution, state law, or 42 U.S.C. § 1983, et seq.
2.
Defendant officer hereby invokes the doctrine of Qualified Immunity and Official
Immunity. Defendant officer discharged his respective obligations and public duties in
good faith, and would show that his respective actions were objectively reasonable in light
of the law and the information possessed at that time.
3.
The incident in question and any claimed action resulting harm to Plaintiff was caused or
contributed to by Plaintiff's own conduct.
4.
Defendant pleads that he had legal justification for each and every action taken by them
Defendant Officer's Original Answer
Page 3 of 5
Case 1:23-cv-00920-DII Document 4 Filed 09/11/23 Page 4 of 5
relating to this incident.
5.
Defendants assert the affirmative defense that Plaintiffs failed to mitigate damages, if any,
and assert this failure to mitigate as both an affirmative defense and as a reduction in the
damage amount, if any, due Plaintiff.
6.
To the extent Defendants did not address a specific averment made by Plaintiff in his
Amended Complaint, Defendants expressly deny all such averments.
DEFENDANT'S PRAYER
Defendant officer prays that all relief requested by Plaintiff be denied, that the Court
dismiss this case with prejudice, and that the Court award any additional relief to which he is
entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF OF LITIGATION
/s/ Meghan L. Riley
Meghan L. Riley
Assistant City Attorney
State Bar No. 24049373
meghan.riley@austintexas.gov
City of Austin
P. O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2458
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
Defendant Officer's Original Answer
Page 4 of 5
Case 1:23-cv-00920-DII Document 4 Filed 09/11/23 Page 5 of 5
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Texas Rules of Federal Procedure, this 11th day of September,
2023.
Via First Class Regular Mail and Certified Mail:
Derek Samuel Fowler (pro se)
6803 N. Navarro, Unit 181
Victoria, TX 77904
Derekfower712@gmail.com
Telephone: (512) 947-3979
PLAINTIFF PRO SE
/s/ Meghan L. Riley
MEGHAN L. RILEY
Defendant Officer's Original Answer
Page 5 of 5
Case 1:23 CV
CV-920
nt
ed 09/28/23 Pa
Mail body:
PAGE
I, Derek Fowler, had sent some of the medical records regarding my claim to the city when I gave them notice through the
website. The entirety of the records will be disclosed in the discovery phase. I was not actively resisting arrest OF causing a safety
threat to Jaramillo at the time he punched me and I can show the court the body camera footage of the incident.
2023 SEP 28
P.M
Next, I will address the defendants affirmative defense of qualified immunity. The standard for dismissing a complaint under Rule
12(c) is the same as a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)great Plains Tr.
Co.
V. Morgan Stanley Dean Witter & Co., , 313 F.3d 305, 312-13 (5th Cir. 2002). The standard requires the complainto contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' Ashcroft V. lqbal 556 U.S. 662,
678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. V. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007).
To overcome the officers qualified immunity defense, a plaintiff must allege facts showing that
the officer (1) "violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the
challenged conduct." Ashcroft V. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Because the officer
invoked a qualified immunity defense, the burden shifts to the plaintiff to show the officer violated his clearly established rights.
Cass V. City of Abilene 814 F.3d 721, 729, 732-33 (5th Cir. 2016). A right is clearly established when it is defined "with
sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct." McClendon V. City of Columbia 305
F.3d 314,331 (5th Cir. 2002). The court must determine "whether the violative nature of particular conduct is clearly established."
al-Kidd , 563 U.S.at 742, 131 S.Ct. 2074 (emphasis added). So, although a plaintiff does not need to identify a case "directly on
point" to meet this burden, he must identify caselaw that "place[s] the statutory or constitutional question beyond debate." Id. at
741, 131 S.Ct. 2074.
I can identify caselaw that specifically addresses the conduct in question through a case directly on point that is extremely similar
in nature. It's included in this response with highlighted sections. The case outlines all elements and shows that this particular
conduct is not protected under the qualified immunity doctrine. Therefore, I ask the court to deny the defendants motion for
summary judgment and to allow the case to proceed.
Respectfully submitted,
Derek Samuel Fowler
09/27/2023
Case 1:23-cv-00920-DII Document 5 Filed 09/28/23 Page of 7
Civil Action No. 4:18-cv-00340-P
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION
Vasquez V. Landon
Decided Feb 25, 2020
Civil Action No. 4:18-cv-00340-P
excessive use of force. Rather, the Court believes
a jury needs to view this footage and other
02-25-2020
relevant evidence and live testimony to determine
JOSE VASQUEZ, Plaintiff, V. JUSTIN LANDON
for themselves whether Vasquez's constitutional
et al., Defendants.
rights were violated. The presence of the fact issue
created by the body camera footage is sufficient to
Mark T. Pittman UNITED STATES DISTRICT
deny summary judgment.
JUDGE
BACKGROUND
MEMORANDUM OPINION AND ORDER
A. Officer Landon's Account of
Before the Court is Defendant Justin Landon's
Arrest
Motion for Summary Judgment (ECF No. 52), in
Officer Landon begins his factual account by
which Officer Landon seeks summary judgment
introducing himself and the call that led to him
on the issue of qualified immunity-a defense
being at the scene of the incident in question.
asserted in response to Plaintiff Jose Vasquez's
Def.'s MSJ Br. at 3, ECF No. 53. The call
excessive-force claim. Also before the Court are
happened at approximately 12:24 a.m. reporting
Vasquez's Response (ECF No. 65) and Officer
that Vasquez was threatening his neighbor with a
Landon's Reply (ECF No. 66). Having considered
knife and Officer Landon was dispatched to the
the motion, briefing, and applicable law, the Court
scene. Def.'s MSJ Appx., (Landon Decl.) at 1-2,
finds that Officer Landon's Motion for Summary
ECF No. 54. Officer Landon then takes a break
Judgment should be and hereby is DENIED.
from describing this incident to describe another
BODY CAMERA FOOTAGE
encounter that he had with Vasquez a month
earlier as well as to recount Vasquez's day leading
At the outset, the Court highlights the significance
up to the arrest. See Def.'s MSJ Br. at 3-6.
I
of the body camera footage submitted by Officer
1
Landon. See ECF No. 55. In order to grant
The Court acknowledges the impact that an
summary judgment. the Court must find that no
encounter a month prior may have on a
reasonable juror could find that Officer Landon
police officer approaching a hostile
situation. However, the relevance of
violated Vasquez's constitutional rights. Officer
Vasquez's activities during the day prior to
Landon characterizes the strike of Vasquez as a
the incident is not apparent to the Court
"distractionary slap." and Officer Landon claims it
especially because Landon did not learn of
2
was acceptable conduct given the *2 situation.
those things until depositions were being
Upon viewing the video alongside the other
taken in this case.
summary judgment evidence, it is not clear to the
Court that Officer Landon's conduct constituted an
appropriate "distractionary slap" and was not an
casetext
1
Case Document 2620 of 7
Officer Landon was the first officer to arrive on
4
*4 Landon recognized that he did not know where
scene, shortly followed by two other officers.
the knife was, that the sister was approaching the
Def.'s MSJ Appx. at 1-2. Officer Landon
scene and arguing with officers, and that there
approached Vasquez at the bed of a truck after
were other potential threats in the area as well. Id.
being pointed in that direction by people yelling
The situation was tense, and Officer Landon felt
3
and pointing. Id. Vasquez matched the
the urge to detain Vasquez as quickly and
description Officer Landon had been given and
effectively as possible. Id.
Officer Landon recognized him from the earlier
At this time, Officer Landon realized he was too
encounter. Id. Officer Landon recalls seeing
close to Vasquez to deploy his Taser and that he
Vasquez making a throwing motion, wondering
would need to abandon that option. Id at 3, 18.
whether Vasquez was throwing the reported knife,
Consequently, he dropped his Taser and chose to
and being uncertain as to whether Vasquez was
administer a "distractionary strike," as trained by
still armed. Id. Being unsure, Officer Landon
Fort Worth Police Department, in order to subdue
pulled his Taser, pointed it at Vasquez, and
and gain compliance of suspects who are posing a
repeatedly shouted for Vasquez to put his hands
threat and not complying with commands. Id at 3,
up. Id. at 7. Other officers arrived at the scene and
16-17, 84. This training teaches officers that such
issued similar commands. Id.
a strike can quickly gain compliance by startling a
Officer Landon testifies it was at this moment that
suspect and allowing other control tactics to be
Officer Rogers's body camera began recording.
effectively employed. Id. Officer Landon
Def.'s MSJ Appx. at 2, 10. He briefly explains the
describes the types of strikes the training included
operation of the body camera and some of the
and that the training instructs officers to us
lapses in audio. Id. Officer Landon also draws
"maximum force" in order to prevent the need for
attention to the video showing him lead the effort
a second strike. Id.
to instruct Vasquez and deescalate the situation,
Officer Landon describes his strike of Vasquez as
mentioning that the other officers corroborate his
"simple but forceful." Def.'s MSJ Br. at 10.
claims that multiple instructions were given to
According to Officer Landon, the strike was an
Vasquez to put his hands up. Id.
open-handed slap across Vasquez's face that
Officer Landon recounts that Vasquez, who was
glanced across Vasquez's nose, causing a nose
"admittedly intoxicated" at the time, responded to
bleed. Officer Landon claims that the video and
the officers' instructions by putting his hands on
three still shots that he included in his brief clearly
the top of the bed of the pickup truck and just
show that the strike was a slap and nothing more.
looking at Officer Landon. Id. Vasquez then
Def.'s MSJ Appx. at 7. Following this "slap,"
reached into the bed of the pickup and picked up a
Vasquez was put in handcuffs and arrested. Id. at
beer, opened it, and took a sip, all while ignoring
5. Officer Landon goes on to describe the post-
the officers' repeated demands to raise his hands.
arrest events, such as the paramedic diagnosis on
Id. During this exchange, Vasquez's sister is
the scene, the criminal matter that followed, and
purported to approach while yelling at the officers
the reports filed by various. See generally Def.'s
and is told to get back by Officer Rogers. Id.
5
MSJ Br. at 12-16.
Officer Landon notes that he was getting close to a
B. Vasquez's Account of Arrest
suspect who was possibly armed with a knife, who
On the night of July 16, 2017, six Fort Worth
had allegedly threatened his neighbors that night,
Police Department officers responded to a call
who was likely intoxicated, and who had a history
involving Vasquez. First Am. Compl. 2, ECF No.
of noncompliance with the police. Id at 3. Officer
35. Vasquez was surrounded by four of these
casetext
2
Case
7
officers when Officer Landon approached him
dispositive motion deadline of June 30, 2019, and
with his Taser drawn and pointed at Vasquez. See
Officer Landon timely filed this Motion for
Body Camera Video, ECF No. 55. Two other
Summary Judgment. Vasquez subsequently
officers also had their department-issued firearms
responded and Officer replied. The Motion has
drawn and pointed at Vasquez. Id. Vasquez was
been fully briefed and is ripe for the Court's
directed to put his hands in the air where the
review.
officers could see them. Vasquez asserts that he
LEGAL STANDARD
complied with these instructions even though he
had a beer in his hand, which he was never
Summary judgment is appropriate if the movant
instructed to drop. Pl.'s MSJ Appx. (Vasquez
shows "there is no genuine dispute as to any
Depo.) at 135, ECF No 65-1.
material fact and the movant is entitled to
judgment as a matter of law." FED. R. CIV. P.
After Vasquez complied with instructions, one of
56(a); Norwegian Bulk Transp. A/S V. Int'l Marine
the officers holstered their firearm. Id. at 141-43.
Terminals Partnership, 520 F.3d 409, 411 (5th Cir.
Officer Landon then dropped his Taser and struck
2008). "A court must be satisfied that no
Vasquez in the face "without warning or reason."
reasonable trier of fact could find for the
Id. Vasquez fell to the ground where he was
nonmoving party or. in other words, that the
handcuffed without issue. Vasquez's nose was
evidence favoring the nonmoving party is
busted and bloody and the Medstar paramedics
insufficient to enable a reasonable jury to return a
who responded believed that his nose was broken.
verdict in her favor." Norwegian Bulk Transp. A/S,
Pl.'s MSJ Appx. at 47. Vasquez states that his nose
520 F.3d at 411-12 (internal quotation marks and
was broken as a result of the strike from Officer
citations omitted).
Landon. Pl.'s MSJ Appx. at 68.
The "usual summary judgment burden of proof" is
Vasquez claims that Officer Landon went on to
altered when the movant asserts a qualified
falsify his report of the arrest by claiming that
immunity defense. Brown V. Callahan, 623 F.3d
Vasquez was noncompliant with officer
249. 253 (5th Cir. 2010). When a government
instructions and that is what prompted the "open
official pleads qualified immunity, the burden
hand strike." First Am. Compl. at 3. Vasquez goes
shifts to the plaintiff to demonstrate the defense's
on to describe the different reports and statements
inapplicability by "establishing a genuine fact
given following the incident which he then cites
7
issue as to #7 whether the official's allegedly
later during the summary judgment stage of this
wrongful conduct violated clearly established
case. See id. at 3-6. Following the
law." Brown, 537 F.3d at 253; Club Retro, L.L.C.
abovementioned events and investigation, Vasquez
V. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). The
6
filed the current suit. *6
court must view all facts and reasonable
PROCEDURAL BACKGROUND
inferences drawn from the record "in the light
most favorable to" a plaintiff opposing the motion,
Vasquez filed this suit on May 4, 2018. See ECF
but the plaintiff cannot rest on conclusory
No. 1. On June 19, 2018, Officer Landon
allegations or assertions. Heinsohn V. Carabin &
answered and asserted the affirmative defense of
Shaw. P.C.. 832 F.3d 224. 234 (5th Cir. 2016):
qualified immunity. See ECF No. 6. The Court
Poole V. City of Shreveport, 691 F.3d 624, 630
subsequently issued a scheduling order outlining
(5th Cir. 2012).
the deadlines for handling the qualified immunity
defense. See ECF No. 9. The Parties filed a series
OBJECTIONS
of amendments to the Complaint and Answer
A. Objection 1
(ECF Nos. 35 & 40, respectively). The Court set a
casetext
3
/ Case L:23-69-00920-D11 Filed 09/28/23 Page 25 2020 Of 7
Officer Landon first objects to "virtually all of
admissible form"). Rule 56(e) permits a proper
Plaintiff's summary judgment evidence." Reply at
summary judgment motion to be opposed by any
1, ECF No. 66. The basis of this global objection
of the kinds of evidentiary materials listed in Rule
is that all of Vasquez's appendix (ECF No. 51)
56(c), except the mere pleadings themselves. Id.;
should be struck because he did not underline,
FED. R. CIV. P. 56. Accordingly, Officer Landon's
highlight, or cite to the entire 383-page appendix.
objection to the typed notes is hereby
Id. at 2. Officer Landon's first objection is
OVERRULED.
OVERRULED.
ANALYSIS
B. Objection 2
"The doctrine of qualified immunity protects
Officer Landon next objects to pages 230-31 of
government officials 'from liability for civil
Vasquez's Appendix, which contains deposition
damages insofar as their conduct does not violate
excerpts from the deposition of Officer Zachary
clearly established statutory or constitutional
Ferrell. Landon asserts that the questions posed to
rights of which a reasonable person would have
Officer Ferrell call for speculation and are not
known.'" Pearson v. Callahan, 555 U.S. 223, 231
supported by personal knowledge, making the
(2009) (quoting Harlow V. Fitzgerald, 457 U.S.
statements irrelevant. See id. at 3. The question
800, 818 (1982)). The Supreme Court has
asked, "[t]hat was not a slap, correct[,]" refers not
"mandated a two-step sequence for resolving
to Officer Ferrell's own recollection of the night of
government officials' qualified immunity claims."
the incident, but rather to Officer Ferrell's
Pearson V. Callahan, 555 U.S. 223. 232 (2009).
impression of the situation after viewing the video
9
We *) must determine (1) "whether the facts that a
during the deposition. Asking the officer his
plaintiff has alleged
make out a violation of a
impressions of what he saw in the video does not
constitutional right" and (2) "whether the right at
call for speculation and is not requiring the officer
issue was 'clearly established' at the time of
to make a response without personal
defendant's alleged misconduct." Id. In the
knowledge, as Officer Ferrell had in fact just
excessive force context, a constitutional violation
watched the video. Therefore, Officer Landon's
is clearly established if no reasonable officer could
objection to pages 230-31 of Vasquez's appendix
believe the act was lawful. See Manis V. Lawson,
is hereby OVERRULED.
585 F.3d 839, 846 (5th Cir. 2009). Courts are
"permitted to exercise their sound discretion in
C. Objection 3
deciding which of the two prongs of the qualified
Finally, Officer Landon objects to Vasquez's
immunity analysis should be addressed first in
attachment of the "typed notes of a detective" as
light of the circumstances in the particular case at
exhibits to depositions. Reply at 3. Officer Landon
hand." Pearson, 555 U.S. at 236. However,
argues that the typed notes, attached at pages 158-
deciding the two prongs in order "is often
88, 252-82, and 353-83, are "hearsay, hearsay
beneficial." Id.
within hearsay, and not authenticated." Id. A
Officer Landon contends the summary judgment
nonmoving party is not required to produce
evidence in a form that would be admissible at
evidence establishes he is entitled to qualified
immunity under both prongs of the defense. To
trial in order to avoid summary judgment. Celotex
overcome the defense, Vasquez has the burden to
Corp. V. Catrett, 477 U.S. 317, 324 (1986); see
direct the Court to evidence establishing a genuine
also Maurer V. Independence Town, 870 F.3d 380,
dispute of material fact as to whether (1) Officer
384 (5th Cir. 2017) (holding that at the "summary
Landon "violated a federal constitutional or
judgment stage, evidence need not be
statutory right and that (2) the violated right was
authenticated or otherwise presented in an
casetext
4
Virgauez Case Document No 18-CV-00340-F Filed 09/28/23 Fox Feb 25 2020) 6 of
Page
7
clearly established at the time of the challenged
Vasquez's excessive force claim is "analyzed
conduct." Escarcega V. Jordan. 701 F. App'x 338,
under the Fourth Amendment's 'objective
341 (5th Cir. 2017).
reasonableness" standard." Graham V. Connor. 490
U.S. 386. 396 (1989). To determine the objective
A.
Violation of a Constitutional
reasonableness of the force used, a court must
Right: Excessive Force Claim
balance "the amount of force used against the need
With respect to the first prong, Vasquez alleges
for that force, taking the perspective of a
Officer Landon violated his Fourth Amendment
reasonable officer on the scene without the 20/20
right by using excessive force in apprehending and
vision of hindsight." Poole, 691 F.3d at 628
arresting him. To prevail on an excessive-force
(internal quotations omitted). Considerations
claim, a plaintiff must show "(1) injury, (2) which
include the severity of the offense, whether the
resulted directly and only from a use of force that
suspect posed an immediate threat to the safety of
was clearly excessive, and (3) the excessiveness of
the officer or others, and whether the suspect
which was clearly unreasonable." Cooper V.
resisted or attempted to evade arrest. Graham, 490
Brown. 844 F.3d 517. 522 (5th Cir. 2016) (quoting
11 U.S. at 396. *11
Elizondo V. Green. 671 F.3d 506. 510 (5th Cir.
a. Severity of the Crime
10
2012)). *10
On the night of the incident in question, Fort
1. Injury/Causation
Worth officers were responding to a call alleging
The parties do not dispute whether there was an
that Vasquez was threatening his neighbors with a
injury or what caused that injury. Vasquez
knife. See Br. Supp. MSJ at 3, ECF No. 53. The
contends that the strike by Officer Landon broke
nature of the call on its own is enough to raise
his nose. See Am. Compl. at 3, ECF No. 35.
concern for Officer Landon as he approached this
Officer Landon asserts that the only injury
situation and weighs in favor of finding the use of
incurred by Vasquez was a minor bloody nose. See
a strike to the face reasonable.
Br. Supp. MSJ at 12, ECF No. 53. But regardless
b. Immediate Safety Threat and Resisting Arrest
of the extent of the injury, there is no debate that
Vasquez has set forth sufficient evidence to satisfy
There is evidentiary support that Vasquez posed an
the injury element of his excessive force claim.
immediate safety threat to the officers or anyone
See Appx. at 68. ECF No. 65-1.
surrounding him and whether Vasquez was
resisting arrest or refusing to obey Officer Landon
Further, there is no dispute as to the cause of the
or any other officers' instructions. As noted above,
injury. Neither Officer Landon nor Vasquez offer
responding to an aggravated assault call is
an alternate cause of Vasquez's injured nose,
accompanied by certain inherent dangers, and
acknowledging that the injury was caused by the
Officer Landon reasonably suggests that he was
slap/strike from Officer Landon. Because it is
uncertain whether Vasquez still had the knife
clear that Vasquez suffered an injury to his nose
when he arrived on the scene and encountered
and that the injury occurred due to the strike from
Vasquez. See id. at 6, ECF No. 53. Officer Landon
Officer Landon, these elements of an excessive
claims that Vasquez was noncompliant with his
force claim are satisfied.
orders and refused to raise his hands in the air
2. Clearly Excessive and Clearly Unreasonable
when directed to do SO. See id. at 8. ECF No. 53. It
Use of Force
is the totality of these circumstances-the
environment. behavior, and "noncompliance"-
that prompted Officer Landon to administer a
"distractionary strike." Br. Supp. MSJ at 10, ECF
casetext
5
Vacase Document Page 25 2020) of
7
No. 53 Vasquez counters with evidence that he
have known that he could not have used that
did in fact have his hands in the air as instructed
amount of force on a suspect such as Vasquez,
and that Officer Landon still struck him
who was arguably not resisting arrest. This right
unexpectedly and for no apparent reason. Pl.'s
was clearly established at the time of Officer
Resp. at 6, ECF No. 65.
Landon's conduct.
Although both parties provide testimonial
Again, the issue of qualified immunity turns on
evidence to bolster their case, the Court finds most
the level of resistance and danger Vasquez
compelling the body camera footage from the
exhibited. Based on the summary judgment
12 scene. The video shows Vasquez 12 surrounded
record, a reasonable jury could find that Vasquez
by police officers, appearing to have his hands in
was not actively resisting arrest and thus that
the air. but it is unclear whether he is holding
13
Officer Landon used excessive force in
anything. See ECF No. 55. Seemingly out of
striking him. For that reason, the Court finds that
nowhere, Officer Landon delivers a serious blow
Officer Landon's Motion for Summary Judgment
to Vasquez that the Court would not label as a
should be and hereby is DENIED.
distractionary slap. The Court fails to see any
CONCLUSION
signs of danger from Vasquez or any attempt to
resist arrest. Indeed, a jury could reasonably
Because on this summary judgment record there is
conclude that Vasquez was not actively resisting
a genuine fact issue as to whether the Officer
arrest and likewise that Officer Landon used
Landon's allegedly wrongful conduct violated
excessive force by striking him. The Court
clearly established law, the Court finds that
believes that this evidence presents a genuine
Officer Landon's Motion for Summary Judgment
issue of material fact that precludes granting
should be and hereby is DENIED.
summary judgment in favor of Officer Landon
SO ORDERED on this 25th day of February,
receiving qualified immunity in this case.
2020.
B. Violated Right was Clearly
/s/
Established
Mark T. Pittman
The Court now turns to the second prong
whether the right violated was clearly established
UNITED STATES DISTRICT JUDGE
at the time of the violation. Pearson. 555 U.S. at
232. Case law makes clear that when an arrestee is
not actively resisting arrest the degree of force an
officer can employ is reduced. Darden V. City of
Fort Worth, Texas, 880 F.3d 722. 731 (5th Cir.
2018). The Fifth Circuit has found that a police
officer uses excessive force when the officer
strikes, punches, or violently slams a suspect who
is not resisting arrest. Id. Officer Landon should
casetext
6