Opinion filed July 15, 2021

In The

Eleventh Court of Appeals __________

No. 11-19-00266-CV

__________

PETER KLASSEN, Appellant

V.

GAINES COUNTY, TEXAS, AND GAINES COUNTY DEPUTY 

SHERIFFS KEN KETRON AND CLINT LOW, Appellees

On Appeal from the 106th 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 an order granting a Rule 91a motion to dismiss and 

alternative motion for summary judgment. See TEX. R. CIV. P. 91a. Peter Klassen, 

Appellant, sued Appellees Gaines County and two Gaines County deputy sheriffs, 

Ken Ketron and Clint Low (collectively referred to as Appellees).

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 Klassen alleged

that Deputy Ketron and Deputy Low used excessive force against him, resulting 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. 
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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 court 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 calls concerning an 

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 transaction. 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, the 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 Klassen placed his hands on the ground as he was falling down. Officer Ketron 

then used his body weight against Klassen to move Klassen into 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 election of remedies 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. 
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Claims Act (TTCA), which the trial court granted. See TEX. CIV. PRAC. & REM.

CODE ANN. § 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. Thereafter, Klassen filed a second amended petition against Gaines County, 

Deputy Low, and Deputy Ketron. This petition was virtually the same as Klassen’s

original and first amended petitions, except that Klassen also alleged that dismissing 

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 motion to dismiss and alternative 

motion for summary judgment. 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, we first note the 

evidentiary limitations imposed on both Rule 91a motions and motions for summary 

judgment. Generally, Rule 91a provides for the dismissal of baseless causes of 

action that have no basis in law or fact on motion and without evidence. TEX. R.

CIV. P. 91a.1, a.6. The 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 TEX. R. CIV. 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, Appelleesfiled a Rule 91a motion to dismiss that alternatively requested 

summary judgment on the same grounds. The trial court’s order granting Appellees’
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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 requested.” This statement clearly indicates that the 

trial court considered evidence beyond the pleadings, which it could only do if it 

granted summary judgment, not a Rule 91a motion. See TEX. R. CIV. P. 91a.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 discretion 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 any 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. Knott, 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. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 

S.W.3d 254, 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 affirmative 
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defense. Sci. Spectrum, 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 issues 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

In 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 entirety of Klassen’s first 

issue focuses 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 

petition 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 not
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apply to federal claims, he misinterprets the trial court’s holdings. The trial court 

initially held that the election of remedies provision of the TTCA only bars 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. We overrule 

Klassen’s first issue. 

II.A. Excessive Force Claim

In his second issue on appeal, Klassen contends that he sufficiently alleged 

and 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 reasonable and not excessive under 

the circumstances was in 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 Fourth or 

Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 394 (1989). 

Where, 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 Appellees, 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 TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.057, .106(e) (West 2019). 
7

characterized as one invoking the protections of the Fourth 

Amendment, which guarantees citizens the right “to be secure in their 

persons . . . against unreasonable . . . seizures” of the person. 

Id. (alterations in original) (quoting U.S. CONST. 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 particular case, including’

(1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect poses 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 Graham, 490 U.S. at 396). Although this determination 

requires careful attention to the facts and circumstances of the case, “when 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 stage, . . . 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.” In these 

types of cases, we are usually required to adopt the plaintiff’s version of the facts.
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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, the 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.” Id. 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 assaulted 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 dangerous 

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 on 
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the record, we conclude that Appellees conclusively proved that Deputy Ketron’s 

conduct was neither objectively unreasonable nor 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)). Generally, “‘[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 (5th 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 genuine 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, it 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 732); see also City of Escondido, Cal. v. Emmons, 139 

S. Ct. 500, 503 (2019) (“The Court of Appeals should have asked whether clearly 
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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 established.”). 

Klassen relies upon Harris County v. Nagel for the assertion that “cases 

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 cases 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 was possibly armed). Absent any 

authority clearly indicating that such facts are unlawful, Klassen fails to rebut the 

second prong of the qualified immunity 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. 
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Klassen did not offer the opinion of his expert as summary judgment evidence. 

The expert’s opinion was not attached to Klassen’s response to Appellees’ motion 

for summary judgment. See TEX. R. CIV. 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. To 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. TEX. R. CIV. 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, although 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., Tex., 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, 480–81
12

(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)). As 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 assuming 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 TEX. R. CIV. 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, 2021

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.