Wilson Vs. The City of Austin; Joseph Chacon

Case 1:23-cv-00233-RP-ML Document 1 Filed 03/01/23 Page 1 of 7
FILED
Pro Se 1.5 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner)
UNITED STATES DISTRICT COURT
MAR 01 2023
CLERK, U.S. DISTRICT CLERK
for the
Westernistrict of Tx
WESTERN DISTRICT OF TEXAS
BY
OR
DEPUTY
Austin Division
1:23 CV 00233
RP
ShERMAN Wilson
)
Case No.
)
(to be filled in by the Clerk's Office)
)
Plaintiff(s)
(Write the full name of each plaintiff who is filing this complaint.
)
If the names of all the plaintiffs cannot fit in the space above,
)
Jury Trial: (check one)
Yes
No
please write "see attached" in the space and attach an additional
)
page with the full list of names.)
)
-V-
)
)
)
Austin Police Dept
)
)
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-00233-RP-ML Document 1 Filed 03/01/23 Page 2 of
7
Pro Sc 1.5 (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 ShERMAN Wilson
Address 5403 VillAgE LN
Austin
TX
78744
City
State
Zip Code
County TRAVIS
Telephone Number 512-283-3274
E-Mail Address ShERWiL635@GMAiL.com
B.
The Defendant(s)
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 Austin Police Dept Joseph ChACON
Job or Title (if known) ThE PolicE
Address 715E ath
Austin
TX
78701
City
State
Zip Code
County TRAVIS
Telephone Number 512-974-5000
E-Mail Address (if known)
Individual capacity
Official capacity
Defendant No. 2 Chief of Police Joseph ChACON
Name Joseph Chacon
Job
or Title (if known) Chief
Address 715 E 8th
Austin
TX 78701
City
State
Zip Code
County TRAVIS
Telephone Number 512-974-5000
E-Mail Address (if known)
Individual capacity
Official capacity
Page 2 of 6
Case 1:23-cv-00233-RP-ML Document 1 Filed 03/01/23 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?
Shot with Shotgun Loaded w/Bean BAGS
EXCESSIVE Force
after being ME incompliance with then orders
C.
Plaintiffs suing under Bivens may only recover for the violation of certain constitutional rights. If you
at Point Blank RAnge
are suing under Bivens, what constitutional right(s) do you claim is/are being violated by federal
officials?
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Case 1:23-cv-00233-RP-ML Document 1 Filed 03/01/23 Page 4 of
7
Pro Sc 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?
5400 Village Lane
Austin TX 78744
B.
What date and approximate time did the events giving rise to your claim(s) occur?
LAter or earlier. uncertain of exact time
June 22, 2022 approx 11 maybe 12 or
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?)
Miscellanous items including BB Pistol
Selling Handbags to neighbors T shint
Put arms Stretched out to side Done, WALK
showed up, given Wrop the Weapon Droppe
that didn't work. Someone called 911. Police
BACK words to my voice Doing it Get have onk meet
Sir I'm onboth knees well Turn around Page 4 of 6
Disabled Veteran with BAO knees
slowly
drina Braces it when Boom. Im Shot see
BACK
Case 1:23-cv-00233-RP-ML Document 1 Filed 03/01/23 Page 5 of 7
Complex Located at 5400 Village Lane, Mexican
All the neighbors 1st 2 Nd Floor of Apt
Family with Husband Wife and DAugter that
$20.00 bo Which was into to inmate
Bought Expensive 16AWdbag Michael Koors for
account at Central Booking Travis cty ,
WAS arrested and charged with 5 counts
Terroristic Threat from June 22 to July 1st
when posted Bond $2500, Atty Jesus Gabriel
Hernandez Atty for Plaintiff
Case 1:23-cv-00233-RP-ML Document 1 Filed 03/01/23 Page 6 of 7
Pro Se 1.5 (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.
Deep Busing PTSD diagnosis at
UA OlinE Teague WACO Blog 94, T Temple
Mental Health Clinic.
Blag Blaq 202 TempleTx c - JAN10,2023 23.2022 Discharge Date 3/10/23
All Mental Health Records immediately Available
V.
Relief
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.
Excessive Force claim 2.5 million punitive
FAlse Charges placed on Me to include
Damages for PAint Suffering, Dismissal of
Mental Health issues resulting from
Shotgus Blast to aldomen and RiB
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Case 1:23-cv-00233-RP-ML Document 1 Filed 03/01/23 Page 7 of 7
Pro Sc 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: 3/21/23
Signature of Plaintiff
ShermAn Wilson
Printed
Name of Plaintiff SHERMAN Wilson
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
512-783-3274
E-mail Address SheniviL635@gmail.com
Page 6 of 6
Case 1:23-cv-00233-RP Document 4 Filed 04/24/23 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SHERMAN WILSON,
§
§
Plaintiff,
§
V.
§
§
A-23-CV-233-RP-ML
AUSTIN POLICE DEPARTMENT,
§
Defendant.
§
ORDER ON IN FORMA PAUPERIS STATUS AND
REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE:
The Magistrate Court submits this Report and Recommendation to the United States
District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court
Rules of the United States District Court for the Western District of Texas, Local Rules for the
Assignment of Duties to United States Magistrate Judges.
Before the court is Plaintiff's Application to Proceed In Forma Pauperis (Dkt. #2).
Because Plaintiff is requesting permission to proceed in forma pauperis, this court must review
and make a recommendation on the merits of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e).
I.
REQUEST To PROCEED IN FORMA PAUPERIS
The court has reviewed Plaintiff's financial affidavit and determined Plaintiff is indigent
and should be granted leave to proceed in forma pauperis. Accordingly, the court hereby
GRANTS Plaintiff's request for in forma pauperis status. The Clerk of the Court shall file the
complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. §
1915(a). This indigent status is granted subject to a later determination the action should be
dismissed if the allegation of poverty is untrue or the action is found frivolous or malicious
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Case 1:23-cv-00233-RP Document 4 Filed 04/24/23 Page 2 of 5
pursuant to 28 U.S.C. § 1915(e). Plaintiff is further advised, although Plaintiff has been granted
leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court at the
conclusion of this lawsuit, as in other cases. Moore V. McDonald, 30 F.3d 616, 621 (5th Cir.
1994).
As stated below, this court has made a § 1915(e) review of the claims made in this
complaint and is recommending Plaintiff's claims be dismissed prejudice under 28 U.S.C. §
1915(e). Therefore, service upon Defendant should be withheld pending the District Court's
review of the recommendations made in this Report. If the District Court declines to adopt the
recommendations, then service should be issued at that time upon Defendant.
II.
REVIEW OF THE MERITS OF THE CLAIM
A.
Factual Background
Plaintiff Sherman Wilson sues the Austin Police Department and Chief of Police Joseph
Chacon for excessive force under § 1983. He alleges the police were called when he was selling
handbags and other items, including a BB pistol that did not work. The police officer ordered
Wilson to drop the weapon, stretch out his arms, and walk backwards to his voice, which Wilson
did. Wilson was ordered to get on the ground, but informed the officer that he was a disabled
veteran with bad knees. The officer ordered him to turn around slowly. As he was doing so,
Wilson was shot in the back at point blank range with bean bag rounds from a shotgun.
B.
Standard of Review
Because Plaintiff has been granted leave to proceed in forma pauperis, the court is
required by statute to review the Complaint. Section 1915(e)(2) provides in relevant part that
"the court shall dismiss the case at any time if the court determines that
the action or appeal
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
2
Case 1:23-cv-00233-RP Document 4 Filed 04/24/23 Page 3 of 5
seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. §
1915(e)(2). A complaint is frivolous, if it "lacks an arguable basis either in law or in fact."
Neitzke V. Williams, 490 U.S. 319, 325, (1989); Siglar V. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). A claim lacks an arguable basis in law when it is "based on an indisputably meritless
legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes
"fantastic or delusional scenarios." Id. at 327-28.
Pro se complaints are liberally construed in favor of the plaintiff. Haines V. Kerner, 404
U.S. 519, 20-21 (1972). However, pro se status does not offer a plaintiff an "impenetrable
shield, for one acting pro se has no license to harass others, clog the judicial machinery with
meritless litigation, and abuse already overloaded court dockets." Farguson V. MBank Houston
N.A., 808 F.2d 358, 359 (5th Cir. 1986).
C.
Discussion
The Austin Police Department is not an entity that can be sued. Darby V. Pasadena
Police Dep't, 939 F.2d 311 (5th Cir. 1991). Accordingly, the court construes Wilson's claim as a
claim against the City of Austin. In Monell V. Dep't of Social Services, 436 U.S. 658 (1978), the
Supreme Court held that a municipality cannot be held liable under 42 U.S.C. § 1983 solely
because its employee committed a constitutional tort. Id. at 691. Municipalities and other local
governments may incur Section 1983 liability, however, where official policy or custom causes a
constitutional violation. Bennet V. City of Slidell, 728 F.2d 762, 766 (5th Cir. 1984). For
municipal liability to attach, the plaintiff must show three elements: (1) a policymaker; (2) an
official policy; and (3) a "violation of constitutional rights whose 'moving force' is the policy or
custom." Piotrowski V. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell, 436
U.S. at 694); Johnson V. Deep East Tex. Regional Narcotics Trafficking Task Force, 379 F.3d
3
Case 1:23-cv-00233-RP Document 4 Filed 04/24/23 Page 4 of 5
293, 309 (5th Cir. 2004). In order to prevail on a municipal liability claim, a plaintiff must show
"(1) that the policy itself violated federal law or authorized or directed the deprivation of federal
rights or (2) that the policy was adopted or maintained by the municipality's policymakers with
deliberate indifference as to its known or obvious consequences." Johnson, 379 F.3d at 309.
Although Wilson alleges he was subject to excessive force, he does not allege any City policy
that was the moving force behind the use of excessive force. Accordingly, he has failed to state a
claim against the City.
Wilson also names Police Chief Chacon as a defendant. But Wilson has not alleged any
action that Chacon took or failed to take, or any policy adopted by Chacon, that led to the use of
excessive force. Accordingly, Wilson has also failed to state a claim against Chacon.
III.
ORDER AND RECOMMENDATIONS
The Magistrate Court hereby GRANTS Plaintiff's Application to Proceed In Forma
Pauperis (Dkt. #2). The Magistrate Court RECOMMENDS the District Court DISMISS
Plaintiff's cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B).
The referral of this case to the Magistrate Court should now be canceled.
IV.
WARNING
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
See Battles V. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the
Report shall bar that party from de novo review by the District Court of the proposed findings
4
Case 1:23-cv-00233-RP Document 4 Filed 04/24/23 Page 5 of 5
and recommendations in the Report and, except upon grounds of plain error, shall bar the party
from appellate review of unobjected-to proposed factual findings and legal conclusions accepted
by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas V. Arn, 474 U.S. 140, 150-53
(1985); Douglass V. United Services Automobile Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).
SIGNED April 24, 2023.
MARK LANE
my
UNITED STATES MAGISTRATE JUDGE
5
Case 1:23-cv-00233-RP Document 8 Filed 05/24/23 Page of 3
oftherm an Wilso
RECEIVED
3614 Bill Prin Rd
MAY 2 4 ZUZS
DEL VAllE Tx
CLERK. U.S. DISTRICT CLERK
WESTERN DISTRICT OF TEXAS
BY
cc
DEPUTY
78617
united States District Count guitter L ED
for Westum Protiction Texas CLERK. MAY 24 2023
Austin Division
WESTERN DI
DISTRICT LISTRICT COURT
DEPUTY CLERKE EXAS
TO Honorable judge of Said Count
now Sherman Wilson P/Aintiff
Comes Case Prose against the Austin
in police a Dept. I've been granted in
Form a Pauperis but magistrate judge
wants the CAR dismissed and
Leaves the final decision with you.
I'm l prepared to serve Defendants
that includes my Summous, Discovery
and Motion to appoint Atty. This case
inv olves Police shooting me causing
harm, injury and Loss. I guess I'm appealing
to you to orderd this case move forward
If you could view the body cams
Video you would conclude in a
Case 1:23-cv-00233-RP Document 8 Filed 05/24/23 Page 2 of 3
position manner this case has ment
Sincerely
Sherman Wilson Pw Sr
Pherman Wilson
PROTECT
AUSTIN TX 787
J614 Bill Price Rd
RIO GRANDE DISTRICT
22 MAY 2023 PM 3 L
*
*
Del VALLE TX 78617
*
*
*
SCREENED BY CSO
*
*
USA * FOREVER *
MAY 24 2023
us District Court Clerk
LOCATION
501 Wst 5 th -
Austin Tx 78701
78701-381399
Case 1:23-cv-00233-RP Document 9 Filed 05/26/23 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SHERMAN WILSON,
§
§
Plaintiff,
§
§
V.
§
1:23-CV-0233-RP
§
AUSTIN POLICE DEPARTMENT and
§
JOSEPH CHACON, Chief of Police,
§
§
Defendants.
§
ORDER
Before the Court is the report and recommendation from United States Magistrate Judge
Mark Lane concerning Plaintiff's Complaint, (Dkt. 1). (R. & R., Dkt. 4). Pursuant to 28 U.S.C. §
636(b) and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas, Judge Lane issued his report and recommendation on April 24, 2023.
(Id.). In his report and recommendation, Judge Lane recommends that the Court dismiss Plaintiff's
cause of action pursuant to 28 U.S.C. § 1915(e)(2)(b). (Id. at 4). Plaintiff filed an objection to the
report and recommendation. (Dkt. 24).
A party may serve and file specific, written objections to a magistrate judge's findings and
recommendations within fourteen days after being served with a copy of the report and
recommendation and, in doing so, secure de novo review by the district court. 28 U.S.C.
§ 636(b)(1)(C). Because Plaintiff timely objected to the report and recommendation, the Court
reviews the report and recommendation de novo. Having done so, the Court overrules each party's
objections and adopts the report and recommendation as its own order.
Accordingly, the Court ORDERS that the report and recommendation of United States
Magistrate Judge Mark Lane, (Dkt. 4), is ADOPTED.
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Case 1:23-cv-00233-RP Document 9 Filed 05/26/23 Page 2 of 2
IT IS FURTHER ORDERED that Plaintiff's case is DISMISSED.
SIGNED on May 26, 2023.
Room
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
2
Case 1:23-cv-00233-RP Document 10 Filed 05/26/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SHERMAN WILSON,
§
§
Plaintiff,
§
§
V.
§
1:23-CV-0233-RP
§
AUSTIN POLICE DEPARTMENT and
§
JOSEPH CHACON, Chief of Police,
§
§
Defendants.
§
FINAL JUDGMENT
On this day, the Court adopted United States Magistrate Judge Mark Lane's report and
recommendation concerning Plaintiff's complaint, (Dkt. 1). (R. & R., Dkt. 4). The Court's order
dismiss Plaintiff's claims.
As nothing remains to resolve, the Court renders final judgment pursuant to Federal Rule of
Civil Procedure 58.
IT IS FURTHER ORDERED that the case is CLOSED.
SIGNED on May 26, 2023.
Room
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE