Opinion filed July 15 , 202 1



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 9

- 00 266

- CV

__________ PETER KLASSEN , Appellant
V.
GAINES COUNTY , TEXAS , AND GAINES COUNTY DEPUTY SHERIFFS KEN KETRON AND CLINT LOW , Appellee s

On Appeal from the 106 th District Court Gaines County, Texas Trial Court Cause No. 19

- 08

- 18199

M E M O R A N D U M O P I N I O N
This is an appeal from a n order granting a Rule 91a moti on to dismiss and alternative motion for summary judgment

. See T EX

. R. C IV

. P . 91a. Peter Klassen , Appellant, sued Appellees Gaines Count y and two Gaines County d eputy sheriffs , Ken Ketron and Clint Low (collectively referred to as Appellees )

. 1 Klassen alleged
that Deputy Ketron and Deputy Low used excessive force against him , resul ting in

1 Klassen also sued Wallach Construction/PB Materials Holding Inc. as well as Tyler Wallach, Johnny Neufeld, and Walter Ziemann personally. However, they are not parties to this appeal , and their claims are not relevant to our analysis of the issues presently before us. Therefore, we focus solely on the claims against Gaines County, Deputy Low, and Deputy Ketron.2 serious bodily injury

. Appellees filed a Rule 91(a) motion to dismiss and alternative motion for summary judgment , which the trial court granted

. On appeal , Klassen contends that (1) the trial court erred in granting Appellees’ motion because there was a basis in law and fact for his § 1983 claim, (2) the trial court erred in ruling that no excessive force was used against him by Appellees , (3) the trial cou rt erred in failing to consider his expert’s opinion, and (4) the trial court erred in granting Appellees ’ motion to dismiss because Gaines County is responsible for the deprivation of Appellant’s rights. We affirm.
Background Facts Deputy Ketron and Deputy Low responded to 9

- 1

- 1 call s concerning a n escalating dispute between Klassen and Tyler Wallach, Johnny Neufeld, and Walter
Ziemann

— three men from a construction company with whom Klassen entered into

a business transactio n

. When Deputies Low and Ketron arrived at the scene, the three men gave the deputies their account of what had happened , informing the deputies that Klassen had assaulted them and threatened to go get a gun . As Klassen
exited the office , t he deputies instructed Klassen to put his hands up, turn around , and get on the ground. Klassen placed his hands in the air , turned around , and knelt

on the ground. Deputy Ketron then attempted to move Klassen into a prone position,
but K l assen placed his hands on the ground as he was falling down. Officer Ketron
then use d his body weight against Klassen to move Klassen in to a prone position

. This caused Klassen to strike his chin on the ground, knocking out several teeth and breaking his jaw. 2
Klassen sued Appellees under various state and federal tort causes of
action

. Gaines County filed a motion to dismiss Deputies Ketron and Low from
Klassen’s state law claims under the e lection of r emedies provision of the Texas Tort

2 We also note that , after the deputies observed Appellant’s injury, they called EMS to come check on Klassen, even though Klassen stated that he did not need medical assistance.3 Claims Act (TTCA) , which the trial court granted

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 101.106(e) (West 2019 ). Appellees also filed a motion for summary judgment , contending that the remaining federal claims against Deputies Ketron and
Low and state law claims against Gaines County should be dismissed

. The trial court granted the motion , leaving only the federal claims to remain against Gaines County

. The reafter, Klassen filed a second amended petition against Gaines County, Deputy Low, and Deputy Ketron

. Th is petition was virtually the same as Klassen’s original and first amended petition s , except that Klassen also alleged that dismiss ing Deputies Ketron and Low was “legally incorrect” and attached as exhibits transcripts
of the 9

- 1

- 1 calls, a portion of the summary judgment hearing, and an expert’s opinion that the force was indeed excessive. In response to Klassen’s second amended petition, Appellees filed a Rule 91a m otion to d ismiss and a lternative

m otion for s ummary j udgme nt. The trial court granted the motion, dismissing with prejudice all remaining claims against Appellees

. This appeal followed. Standard of review In order to determine the appropriate standard of review, w e first note th e evidentiary limitations imposed on both Rule 91a motions and motions for summary judgment

. Generally, Rule 91a provide s for the dismissal of baseless causes of
action that have no basis in law or fact on motion and without evidence. T EX

. R.
C IV

. P. 91a .1 , a

. 6

. T he trial court must decide a Rule 91a motion based solely on the pleading of the cause of action, together with any exhibits permitted by Rule 59. Id.
R. 91a .6 ; see T EX

. R. C IV

. P . 59. In contrast, a court’s duty in ruling on a motion for summary judgment is to “ examine the entire record in the light most favorable to
the nonmovant

. ” Yancy v. United Surgical Partners Int ’ l , Inc. , 236 S.W.3d 778, 782 (Tex. 2007) (quoting City of Keller v. Wilson , 168 S.W.3d 802, 824 (Tex. 2005) )

. Here, Appellees filed a Rule 91a motion to dismiss that alternatively requested summary judgment on the same grounds

. The trial court’s order granting Appellees ’4 motion expressly stated , “[a] fter examining the pleadings, the Court ’ s file and previous holdings, of which the Court took judicial notice, the motions before the
Court , including any responses thereto, together with applicable authorities, the Court determined that Defendants Gaines County, Texas, Ken Ketron, and Clint Low are entitled to the relief reque sted. ” This statement clearly indicates that the
trial court considered evidence beyond the pleadings , which it could only do if it grant ed summary judgment, not a Rule 91a motion

. See T EX

. R. C IV

. P. 91 a. 6

. Accordingly, we treat the trial court’s order as granting Appellees ’ alternative motion for summary judgment.

“ We review the trial court ’ s grant of summary judgment de novo. ” Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins.
Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003)). However, a trial court ’ s decision to exclude or admit summary judgment evidence is reviewed for an abuse of
discretion. Id. (citing Starwood Mgmt., LLC v. Swaim , 530 S.W.3d 673, 678 (Tex. 2017)). An abuse of disc retion exists only when the court ’ s decision is made without reference to any guiding rules and principles. U

- Haul Int ’ l, Inc. v. Waldrip , 380 S.W.3d 118, 132 (Tex. 2012). “An appellate court must uphold the trial court ’ s evidentiary ruling if there is a ny legitimate basis for the ruling.” Owens

- Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998). When the trial court ’ s order does not specify the grounds for its summary judgment, we will affirm it if any
of the theories are meritorious. Kn ott , 128 S.W.3d at 216. A party moving for traditional summary judgment bears the burden of proving that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. T EX

. R. C IV

. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co. , 508
S.W.3d 2 54, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a defendant must conclusively negate at least one essential element of the cause of action being asserted or conclusively establish each element of an affirmative5 defense. Sci. Spectr um, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997). Evidence is conclusive only if reasonable people could not differ in their
conclusions. City of Keller , 168 S.W.3d at 816. If the movant initially establishes a right to summary judgment on the issu es expressly presented in the motion, then the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin
Auth. , 589 S.W.2d 671, 678

– 79 (Tex. 1979). In reviewing both traditional and no

- evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the

movant. Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013) ; City of
Keller , 168 S.W.3d at 824. Analysis
I.A. Relevance of Rule 91a Contentions
I n his first issue on appeal , Klassen contends that the trial court erred in granting Appellees ’ Rule 91a motion to dismiss because there was both a basis in law and fact for his claims against Gaines County, Deputy Ketron and Deputy Low. With the exception of the following TTCA discussion, the entir ety of Klassen’s first
issue focuse s on the pleading requirements under a Rule 91a motion to dismiss. However, because we interpret the court’s order as granting the defendant’s alterative motion for summary judgment, whether Klassen’s second amended peti tion sufficiently demonstrated a basis in law and fact under a Rule 91a motion is
irrelevant to our analysis.
I.B. Texas Tort Claims Act
Klassen also asserts in his first issue that the trial court erred in dismissing the

case based on the TTCA because the Act does not apply to Klassen’s federal
excessive force claim. While Klassen is correct in stating that the TTCA does not6 apply to federal claims, he misinterprets the trial court’s holdings. The trial court initially held t hat the election of remedies provision of the TTCA only ba rs Klassen’s state law claims against Deputies Ketron and Low

. As such, the trial court ordered
that “all state law claims filed against Defendants Ken Ketron and Clint Low be dismissed with prejudice pursuant to Section 101.106(e) of the Texas Civil Practice []
and Remedies Code” (emphasis added). Moreover, there is no evidence that the trial court dismissed Klassen’s federal claims against Gaines County based on the governmental immunity granted to it by the TTCA. 3 Klassen’s federal claims remained wholly unaffected by the court’s application of the TTCA

. W e overrule
Klassen’s first issue.
II.A. Excessive Force Claim In his second issue on appeal, Klassen contends that he sufficiently alleged

a nd proved a constitutional violation of his right to be free from excessive force.
While Klassen also phrases his second issue to primarily address Appellees ’
Rule 91a motion instead of their alternative motion for summary judgment , Klassen expressly asserts that “[t] he trial court erred when it ruled that there was not excessive force by the Appellees. ” The only instance in which the trial court expressly held that the amount of force used was reasonabl e and not excessive under
th e circumstances was i n the first summary judgment hearing. Thus, we interpret
Klassen’s second issue as attacking the trial court’s initial ruling that the force was
not excessive. Generally, a party may bring an excessive

- force claim under the F ourth or
F ourteenth A mendment. See Graham v. Connor , 490 U.S. 386, 39 4 (1989)

. W here, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly

3 Because Klassen does not contend on appeal that the trial court erred in dismissing any or all of the state law claims against Appellee s , we decline to discuss whether the TTCA properly bars Klassen’s state law claims. Although , a brief review of the TTCA plainly shows that Klassen’s state law claims were properly dismissed. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §§ 101. 057, . 106(e) (West 2019 ).7 characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secur e in their persons

. . . against unreasonable

. . . seizures” of the person.
Id

. (alterations in original) (quoting U.S. C ONST

. amend IV). To establish a Fourth
Amendment excessive

- force claim, a plaintiff must “show that [ he ] suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable .” Flores v. City of Palacios , 381 F.3d 391, 396 (5th Cir. 2004). Here, the parties primarily dispute
the third element

. Accordingly, we focus our analysis on whether Appellees met their summary judgment burden to conclusively prove that the force used was not objectively unreasonable. Determining whether the force used was objectively unreasonable “ ‘ requires careful attention to the facts and circumstances of each p articular case, including ’ (1) ‘ the severity of the crime at issue, ’ (2) ‘ whether the suspect pose s an immediate threat to the safety of the officers or others, ’ and (3) ‘ whether he is actively resisting arrest or attempting to evade arrest by flight. ’ ” Trammell v. Fruge , 868 F.3d 332, 340 (5th Cir. 2017) (quoting Graha m , 490 U.S. at 39 6). Although this determination requires careful attention to the facts and circumstances of the case, “w hen facts are undisputed and no rational factfinder could conclude that the officer acted unreasonably, [ a court ] can hold that an officer acted reasonably as a matter of law. ” Lytle v. Bexar Cty., Tex. , 560 F.3d 404, 412 (5th Cir. 2009) ; see Scott v. Harris , 550
U.S. 372, 381 , n.8 (2007) ( “ At the summary judgment stag e , . . . once we have
determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record

, . . . the reasonableness of [the defendant’s] actions

. . . is a pure question of law. ” ).
Klassen contends that the deputies brutally attacked him , threw him “ to the ground violently,” and then “jumped on his back and handcuffed him.” I n these types of cases , we are usually required to adopt the plaintiff ’ s version of the facts.8 See Scott , 550 U.S. at 380. However, this general rule may change if the record
contains video evidence capturing the events. See id

. When the record contains
video evidence of the events and “opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment .” Id

. Here, t he video evidence plainly shows that , after the deputies ordered Klassen to get on the ground, Klassen began to kneel

. Deputy Ketron placed his
hands on Klassen’s back to move Klassen into a prone position

. As Klassen was moving forward, Klassen placed his hands out in front of him

. Deputy Ketron then used his body weight to secure Klassen on the ground and handcuff him. No
reasonable person could, after viewing the video recording of the incident, find that Deputy Ketron threw Klassen to the ground or jumped on Klassen’s back to
handcuff him

. Therefore, we “ view [] the facts in the light depicted by the videotape. ” I d

. at 381. In this light , we cannot hold that Deputy Ketron’s conduct

was objectively unreasonable

. Moreover, Deputies Ketron and Low arrived at the scene after being advised
that Klassen had assault ed other individuals by hitting them and throwing chairs at
them , had threatened to get a gun, and had prevented some of the other individuals from leaving for a period of time. We do not consider whether Klassen actually had

a gun on his person , or even threatened to get a gun, because the reasonableness of
an officer’s conduct is determined “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Lytle , 560 F.3d at 412 (quoting Graham , 490 U. S. at 396 ). From the deputies’ viewpoint , it was objectively
reasonable for them to assume that Klassen may have been armed and dangero us when approaching him

. Finally , Deputy Ketron only used his body weight against
Klassen for just enough time to handcuff him , lasting only a few seconds. Based on9 the record, we conclude that Appellees conclusively proved that Deputy Ketron’s
conduct was neither objectively unreasonable n or excessive. II.B. Qualified Immunity Regardless , the trial court did not err in dismissing Deputies Ketron and Low
because Klassen failed to rebut Appellees ’ assertion of qualified immunity

.

“ [O]fficers are entitled to qualified immunity under [42 U.S.C.] § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time. ’ ” District of Columbia v. Wesby , 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards , 556 U.S. 658, 664 (2012))

. Gene rally, “ ‘[ a ] good

- faith assertion of qualified immunity alters the usual summary judgment burden of proof, ’ shifting it to the plaintiff to show that the
defense is not available.” Valencia v. Davis , 836 F. App ’ x 292, 297 (5 th Cir. 2020) (quoting Cass v. City of Abilene , 814 F.3d 721, 728 (5th Cir. 2016) )

. To rebut the defense, a plaintiff must establish “ that the official ’ s allegedly wrongful conduct violated clearly established law and that genuin e issues of material fact exist regarding the reasonableness of the official ’ s conduct.” Id. (quoting King v. Handorf , 821 F.3d 650, 654 (5th Cir. 2016) )

. Assuming arguendo that the deputies violated a federal statutory or constitutional right , Klassen does not cite to any relevant case law indicating that the law was clearly established with regard to whether the conduct at issue was unlawful

. Under the second prong of this test, i t is the plaintiff ’ s burden to find a case in his
favor that “defines the contours of the right in question with a high degree of particularity .” Id. (quoting Delaughter v. Woodall , 909 F.3d 130, 139 (5th Cir. 2018) ). “ For example, the plaintiff ’ s burden at step two is not satisfied by broadly stating that ‘ citizens are protected against unjustified, excessive police force. ’” Id. (quoting Cass , 814 F.3d at 7 32 ) ; see also City of Escondido, Cal. v. Emmons , 139
S. Ct. 500, 503 (2019) (“The Court of Appeals should have asked whether clearly10 established law prohibited the officers from stopping and taking down a man in these circumstances[,] [i]nstead [of] saying only that the ‘right to be free of excessive force’ was clearly esta blished.”)

. Klassen relies upon Harris County v. Nagel for the assertion that “ c ases clearly established that officers use excessive force if they apply significant pressure to a person who is hogtied. ” 349 S.W.3d 769, 785 (Tex. App.

— Houston [14th Dist.]
2011 , pet. denied )

. However, Nagel and the case s of other jurisdictions relied upon by Nagel are patently distinguishable from the facts before us. See generally id

. Here, Klassen was not hogtied, incapacitated, or in any way subdued before Deputy Ketron used his body weight to place Klassen in a prone position. Once Deputy Ketron was able to put handcuffs on Klassen, the use of force ceased. Moreover, the deputies had reason to believe that Klassen had just been involved in an assault, would not let certain individuals leave the premises, and was potentially
armed. See Valencia , 836 F. App ’ x at 297 (holding that the defendant failed to show clearly established law that prohibited an officer’s use of force where the defendant
was unrestrained at the time of force and the officers were informed that the defendant had been involved in a bar fight and w as possibly armed). Absent any authority clearly indicating that such facts are unlawful , Klassen fail s to rebut the second prong of the qualified immunit y test , and we hold that the trial court did not

err in dismissing all claims against Deputies Ketron and Low. We overrule Klassen’s second issue on appeal.
III. Exclusion of Evidence In his third issue on appeal, Klassen contends that the trial court erred when it
did not consider his expert ’s report/opinion , which Klassen contends would have
created a material fact issue as to whether Deputy Ketron’s use of force was
excessive or objectively unreasonable

. We disagree.11 Klassen did not offer the opinion of his expert as summary judgment evide nce. The expert’s opinion was not attached to Klassen’s response to Appellees’ motion for summary judgment. See T EX

. R. C IV

. P. 166a(c). Therefore, any failure by the trial court to consider the opinion of Klassen’s expert as summary judgment
evidence was not erroneous. T o the extent that Klassen contends the trial court erred
in failing to consider the expert’s opinion when the court considered the Rule 91a
motion , the trial court’s failure to consider such evidence was proper. Pursuant to Rule 91a.6, a court “may not consider” such evidence when ruling on a Rule 91a
motion. T EX

. R. C IV

. P. 91a.6. We overrule Klassen’s third issue.
IV. Failure to Train In his fourth issue on appeal, Klassen contends that the trial court erred in granting the defendant’s Rule 91a motion and alternative motion for summary judgment in favor of defendant Gaines County because the evidence supports a finding that Gaines County failed to adequately train Deputies Ketron and Low with regard to the use of force

. We disagree. Klassen correctly notes that , a lthough qualified immunity may shield Deputies Ketron and Low from liability, a state or municipality enjoys no protection based on the qualified immunity of its officials or employees ; the doctrine of qualified immunity only applies to “individuals.” See Alberti v. Sheriff of Harris Cty

. , Te x. , 978 F.2d 893, 895 (5th Cir. 1992). Thus , a plaintiff may assert liability against a county for a § 1983 claim based on , among other things, a custom or policy of inadequate training, supervision, discipline, screening, or hiring

. Snow v. City of
El Paso, Tex

. , 501 F. Supp. 2d 826, 831 (W.D. Tex. 2006) ( citing Monell v. Dep’t of
Soc

. Servs

. of City of New York , 436 U.S. 658, 694 (1978) (adopted policy);
Johnson v. Moore, III , 958 F.2d 92, 94 (5th Cir. 1992) (persistent or widespread practice); City of Canton, Ohio v. Harris , 489 U.S. 378, 385

– 87 (1989) (inadequate training or failure to train); Pembaur v. City of Cincinnati , 475 U.S. 469, 480

– 8112 (1986) (actions or decisions by a municipal policymaker with “final policymaking authority”) )

. However, where there is no constitutional violation on the part of the municipality’s officials, the municipality cannot be held liable for the plaintiff’s injury

. See Cook v. Hopkins , 795 Fed. App’x 906, 917

– 18 (5th Cir. 2019) (citing City of L.A. v. Heller , 475 U.S. 796, 799 (1986) )

. A s we concluded earlier, the trial

court properly ruled that the use of force by Deputy Ketron was not excessive.
Because Klassen suffered no constitutional injury at the hands of Appellees , Gaines County cannot be held liable for any failure to train its deputies

. See id

. Even a ssuming arguendo that Klassen suffered a constitutional injury , when
viewed under the light most favorable to Klassen, the record is devoid of any evidence that would support the existence of any of the elements of a failure

- to

- train
claim. See T EX

. R. C IV

. P. 166a(i) ; Hutcheson v. Dallas Cty. , Tex. , 994 F.3d 477, 482 (5th Cir. 2021) (outlining the elements of a failure

- to

- train claim)

. We overrule
Klassen’s fourth issue. This Court’s Ruling
We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

July 15 , 202 1 Panel consists of: Bailey, C.J., Trotter , J., and W illiams, J

.