IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TODD ALEX CARO §

§

Plaintiff, §

§

VS. § NO. 3-03-CV-2800-D

§

NFN SPENCER, Police Officer, §

Addison Police Department §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant Paul Spencer has filed a motion for summary judgment in this pro se prisoner

civil rights action brought under 42 U.S.C. § 1983. For the reasons stated herein, the motion should

be granted.

I.

On January 3, 2002, Plaintiff Todd Alex Caro went to the office of his former girlfriend,

Misty Acevedo, to confront her about an alleged affair she was having with another man. (Def. MSJ

App. at 111). According to a co-worker, Carol Neimi, plaintiff pulled a handgun and fired multiple

shots at Acevedo while chasing her down the hallway of the office suite. (Id. at 80). Plaintiff

cornered Acevedo in a storeroom, where the two apparently struggled. (Id. at 111). Acevedo

grabbed a knife and stabbed plaintiff before she died of multiple gunshot and stab wounds. (Id. at

71-72, 85; Plf. MSJ App. 189). 

After hearing the gunshots, Neimi called the Addison Police Department from a nearby

convenience store. (Def. MSJ App. at 85). She reported the incident and described the suspect as

a "black man wearing a black coat and black pants." (Id. at 2, ¶ 4). Officer Paul Spencer was one

 

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of several police officers dispatched to the scene. (Id. at 126). When Spencer arrived at the office

complex, he interviewed witnesses, met with the other officers, and received additional information

about the suspect. (Id. at 2, ¶ 5 & 126-27). Spencer was told that muffled sounds and other noises

were heard coming from an area inside the suite near an exit and that spent shell casings were found

on the floor. (Id. at 2, ¶ 5 & 128-29). After receiving authorization from their commander, Spencer

and three other officers entered the suite with their guns drawn and began a deliberate search for the

suspect. (Id. at 3, ¶¶ 6-7 & 130-32). As the officers approached the storeroom, they heard a tapping

sound coming from inside. (Id. at 3, ¶ 7 & 132). Spencer described the sound as "dry cycling . . .

like someone was loading a clip into a gun." (Id. at 3, ¶ 7). At that point, one of the officers shouted

"Addison Police, come out with your hands up!" (Id. at 17). No one responded. (Id.). The officers

then entered the storeroom. (Id. at 4, ¶ 7 & 17-18). As they opened the door, the officers observed

numerous live handgun rounds and an empty cartridge box on the floor. (Id. at 4, ¶ 7 & 18).

Spencer also observed two bodies-- a female and a black male who matched the description of the

suspect-- lying face down on the floor. (Id. at 4, ¶ 7 & 18-19). The female was unconscious and

appeared to be seriously injured or dead. The male was moaning and speaking incoherently. (Id.).

According to Spencer, the suspect ignored repeated commands to show his hands. (Id. at 4, ¶ 7 &

19-20). Contrary to those instructions, the suspect lowered his hands to his waist area, made a quick

movement to his left, and started to sit up while raising his right arm from under his body. (Id. at

4, ¶ 8). Spencer observed a chrome semi-automatic pistol in the suspect's right hand pointed in his

direction. (Id. at 4-5, ¶ 8). Fearing for his safety and that of his fellow officers, Spencer yelled

"Gun!" and fired two rounds at the suspect. One round struck the suspect in the right shoulder. (Id.

at 5, ¶ 8). The second round struck the suspect in the back. (Id.). As Spencer and the other officers

 

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1

 The district judge agreed that plaintiff failed to show that the Addison Police Department was a jural entity

subject to suit. See ORDER, 3/1/04 at 1, citing Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991). In

response to that order, plaintiff sought leave to join the City of Addison as a defendant. Leave to amend was granted,

but all claims against the City were summarily dismissed because plaintiff failed to allege any facts which suggest that

a formal policy or a persistent and widespread practice was a "moving force" behind any constitutional violation. Caro

v. Spencer, No. 3-03-CV-2800-D, 2004 WL 877620 at *2 (N.D. Tex. Apr. 22, 2004), citing Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir.), reh'g en banc denied, 251 F.3d 159 (5th Cir.) (Table), cert. denied, 122 S.Ct. 53

(2001).

pulled the suspect away from the female victim and attempted to place him under arrest, he resisted

their efforts while screaming "Finish me, finish me." (Id. at 5, ¶ 9).

On November 18, 2003, plaintiff filed this civil rights action against Spencer and the

Addison Police Department under 42 U.S.C. § 1983. After screening plaintiff's complaint, the

magistrate judge recommended that the entire case be dismissed as frivolous. See Caro v. Spencer,

No. 3-03-CV-2800-D, 2003 WL 23195569 (N.D. Tex. Dec. 19, 2003). The district judge adopted

this recommendation as to the Addison Police Department, but was "unable to conclude at this

preliminary stage of the case that plaintiff will be unable to prove factually an unnecessary force

claim against Officer Spencer." See ORDER, 3/1/04 at 2.1

 Spencer now moves for summary

judgment on the grounds that the use of deadly force was objectively reasonable under the

circumstances and that plaintiff's claim is barred by the doctrine of qualified immunity. The issues

have been fully briefed by the parties and the motion is ripe for determination.

II.

Summary judgment is proper when there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue

could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck & Co.,

952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might

 

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2

 Rule 56(e) provides, in relevant part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set

forth such facts as would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated therein. 

FED. R. CIV. P. 56(e).

reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).

A summary judgment movant who does not have the burden of proof at trial must point to

the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).

The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett

v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective

burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman,

954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). The verified complaint and sworn

interrogatory answers of a pro se litigant can be considered as summary judgment evidence to the

extent such pleadings comport with the requirements of Fed. R. Civ. P. 56(e).2

 See King v. Dogan,

31 F.3d 344, 346 (5th Cir. 1994). All evidence must be viewed in the light most favorable to the

party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993). However, conclusory

statements, hearsay, and testimony based on conjecture or subjective belief are not competent

summary judgment evidence. Topalian, 954 F.2d at 1131.

A.

Plaintiff's excessive force claim must be analyzed under the "reasonableness" standard of the

Fourth Amendment to United States Constitution. See Graham v. Conner, 490 U.S. 386, 394-95,

109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). In order to establish a constitutional violation,

plaintiff must show that: (1) he suffered a significant injury; (2) resulting directly and only from the

 

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3

 Although plaintiff has submitted an affidavit and numerous documents in an appendix to his summary

judgment response, the affidavit is not made under penalty of perjury and the documents are not properly authenticated.

use of force that was clearly excessive to the need for force; and (3) the force used was objectively

unreasonable. See Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000). The court

must view the totality of the circumstances from the standpoint of a reasonable officer on the scene,

paying particular attention to "whether the suspect pose[d] an immediate threat to the safety of the

officers or others." Stroik v. Ponseti, 35 F.3d 155 157-58 (5th Cir. 1994), cert. denied, 115 S.Ct.

1692 (1995).

Spencer does not dispute that plaintiff suffered a significant injury resulting directly and only

from the use of force. However, the evidence shows that the use of force was not clearly excessive

to the need for force or objectively unreasonable under the totality of the circumstances. The court

initially observes that, other than his verified complaint and sworn interrogatory answers, none of

the evidence submitted by plaintiff is competent summary judgment evidence.3

 Moreover, by his

own admission, plaintiff does not recall the events surrounding the shooting. (See Def. MSJ App.

at 111, 118). That leaves the unchallenged testimony of Spencer and other witnesses. It is clear

from this testimony that Spencer fired two shots at a suspect in a murder investigation who ignored

repeated instructions to show his hands, appeared to pull a handgun from his waistband, and pointed

the weapon in the direction of police officers. On similar facts, the Fifth Circuit has held, as a matter

of law, that the officer was justified in using deadly force to defend himself and others. See, e.g.

Stroik, 35 F.3d at 159 (police officer justified in using deadly force when suspect pointed a gun at

him); Reese v. Anderson, 926 F.2d 494, 500-01 (5th Cir. 1991) (officer, who reasonably believed

that suspect had a gun and was about to shoot, was justified in using deadly force); Young v. City

of Killeen, Texas, 775 F.2d 1349, 1353 (5th Cir. 1985) (same); Weir v. Tramel, No. 99-10788, 2000

 

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WL 178157 at *1 (5th Cir. Jan. 25, 2000) (same); see also Reynolds v. County of San Diego, 858

F.Supp. 1064, 1072 (S.D. Cal. 1994), aff'd in relevant part, 84 F.3d 1162 (9th Cir. 1996) (noting that

case law, including Fifth Circuit decisions, demonstrates general principle that an officer may

reasonably use deadly force when he or she confronts an armed suspect whose actions indicate an

intent to attack).

In an attempt to create a fact issue, plaintiff disputes that he had a gun and argues that his

hospital records show he was unable to follow verbal commands. (See Plf. MSJ Resp. at 8, ¶ 5 &

22, ¶ 79). Neither claim is supported by the record. At least two witness either heard gunshots or

saw plaintiff chase his girlfriend down the hallway while firing shots at her. (See Def. MSJ App.

at 72, 80). In addition, multiple rounds of spent shell casings, live handgun rounds, an empty

cartridge box, and a .32 caliber semi-automatic pistol were recovered from the crime scene. (Id. at

18, 101, 106). Plaintiff's self-serving and unverified denial that he had a handgun cannot overcome

this evidence. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151, 120 S.Ct. 2097,

2110, 147 L.Ed.2d 105 (2000), quoting Liberty Lobby, 106 S.Ct. at 2513 (court should give credence

to "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the

extent that that evidence comes from disinterested witnesses"). Nor has plaintiff shown that he was

unable to follow instructions given by the police. To the contrary, his hospital records show that

plaintiff was conscious upon his arrival at the emergency room, "but would no [sic] follow any

commands." (Plf. MSJ App. at 284). This same record indicates that plaintiff could move all four

extremities, which suggests that he was physically able to pull a gun on the police officers. (Id.).

Even when viewed in the light most favorable to plaintiff, the summary judgment evidence

fails to establish a genuine issue of material fact for trial. The court determines that Spencer was

justified in using deadly force to defend himself and his fellow officers. Such force was not clearly

 

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excessive to the need for force or objectively unreasonable under the circumstances. Therefore,

Spencer is entitled to judgment as a matter of law.

 B.

Alternatively, Spencer seeks summary judgment on the grounds of qualified immunity.

Police officers are immune from suit for discretionary acts performed in good faith while acting

within the scope of their authority unless their conduct violates a "clearly established . . .

constitutional right [ ] of which a reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Because plaintiff has not proved an

underlying constitutional violation, this terminates the qualified immunity analysis. See Stuart v.

Villarreal, No. 3-01-CV-1844-D, 2003 WL 22329019 at *4 (N.D. Tex. Oct. 7, 2003) (Kaplan, J.),

rec. adopted, 2003 WL 22658203 (N.D. Tex. Nov. 7, 2003) (Fitzwater, J.) (declining to address

issue of qualified immunity where plaintiff failed to allege underlying constitutional violation).

RECOMMENDATION

Defendant's motion for summary judgment should be granted. This case should be dismissed

with prejudice. 

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

 

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DATED: August 30, 2005.

 

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