UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GUADALUPE DIAZ, ET AL.,

Plaintiffs,

VS.

OFFICER ROLANDO CARBALLO and

OFFICER DON ALEXANDER,

Defendants.

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)

)

) CIVIL ACTION NO.

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) 3:05-CV-2084-G

)

) ECF

)

)

MEMORANDUM OPINION AND ORDER

Before the court are the motions of the defendants, Rolando Carballo

(“Carballo”) and Don Alexander (“Alexander”) (“the defendants”), for partial

summary judgment and the defendants’ objections to the plaintiffs’ summary

judgment evidence. For the reasons set forth below, the defendants’ objections are

sustained and their motions for partial summary judgment are granted.

I. BACKGROUND

The plaintiffs in this action, Guadalupe Diaz (“Diaz”) and Eva Diaz, brought

this suit against Carballo and Alexander, pursuant to 42 U.S.C. § 1983, alleging
1 The defendants seek summary judgment only as to one of Diaz’s claims;

Eva Diaz’s claim for loss of consortium is not challenged by the defendants in their

motions.

2 While Diaz’s claims against the individual defendants are different, both

motions for partial summary judgment rely on identical arguments. Consequently,

they will be referred to together throughout this discussion. Any differences between

the two motions will be noted where relevant.

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violations of Diaz’s constitutional rights under the Fourth Amendment, specifically

that the officers’ arrest was wrongful and that Carballo used excessive force. See

Plaintiffs’ Second Amended Original Complaint (“Complaint”) ¶ 1. Eva Diaz, the

plaintiff’s spouse, seeks compensation for loss of consortium.1

 Id.

The defendants seek partial summary judgment on Diaz’s wrongful arrest

claim, arguing in the alternative that there was probable cause under the

circumstances to support the arrest, or, if the court finds no probable cause, that the

defendants are entitled to qualified immunity. See generally Defendant Don

Alexander’s Motion for Partial Summary Judgment and Defendant Rolando

Carballo’s Motion for Partial Summary Judgment (collectively, “Defendants’

Motions”).2

A. The Plaintiffs’ Version of the Facts

According to Diaz, early in the morning on October 23, 2003, Diaz was “at a

house he had recently purchased.” See Complaint ¶ 6. After leaving the house, Diaz

“walked a short distance down a public alley on his way to his truck which he had

parked a short distance away.” Id. When Diaz approached his truck, “he heard
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footsteps approaching and fearing that he was about to be robbed, opened the drivers

side door of his truck, and with his left hand, secreted his wallet in the storage

compartment of the rear drivers side door.” Id. Diaz then avers that “[a]s he stood

up and prepared to enter his truck he was shot by Defendant Carballo.” Id. Diaz

then drove to the hospital where he received medical treatment. Id. ¶ 8. Diaz

contends that officers Carballo and Alexander conspired together and concocted a

false story in order to arrest Diaz for the crime of assaulting a police officer. Id. ¶ 9. 

Diaz was arrested while in the hospital. Id. ¶ 10.

B. The Defendants’ Version of the Facts

The defendants present a much different version of the facts. Officers Carballo

and Alexander allege that around 2:00 a.m. on October 26, 2003, they were

dispatched, after a 9-1-1 call, to investigate a suspected prowler. See Brief in Support

of Carballo’s Motion for Partial Summary Judgment (“Carballo’s Brief”) at 2; Brief in

Support of Alexander’s Motion for Partial Summary Judgment (“Alexander’s Brief”)

at 2. The call was made by Gilbert Cipriano (“Cipriano”), the owner of a house

adjacent to a property Diaz had recently purchased. Id. The officers arrived on the

scene fifteen minutes later and spoke with Cipriano, who explained that “someone

was in the back yard area and refused to leave.” Id. During their investigation,

Carballo “observed a person, later identified as Diaz, lurking along the property line

adjoining the alley. Diaz then ran away from Carballo and refused to surrender as
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commanded by Carballo. Carballo followed the suspect to McVey street . . . where a

pickup truck was parked.” Carballo’s Brief at 2. Carballo insists that Diaz ignored

his commands to stop and entered his truck, whereupon Carballo and Diaz “engaged

in a physical struggle to extract Diaz from the truck.” Id. at 3. While grabbing

Carballo, Diaz allegedly accelerated in the truck, dragging Carballo, at which point

Carballo drew his service pistol and fired one shot, hitting Diaz in the neck and

shoulder. Id. Diaz drove away to the hospital, where he was later placed under arrest

for aggravated assault on a public servant. Id.

On the basis of these contested facts, Diaz alleges that Alexander and Carballo

violated 42 U.S.C. § 1983 by denying Diaz his rights under the Fourth Amendment

to the United States Constitution. See Plaintiffs’ Complaint ¶ 1. Specifically, Diaz

alleges that the actions of the defendants in procuring Diaz’s arrest deprived Diaz of

his right under the Fourth Amendment to be free from an unreasonable arrest. Id.

¶ 13. 

II. ANALYSIS

A. Legal Standard for Summary Judgment

Summary judgment is proper when the pleadings and evidence before the court

show that no genuine issue exists as to any material fact and that the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see also Celotex

Corporation v. Catrett, 477 U.S. 317 (1986). The disposition of a case through
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summary judgment “reinforces the purpose of the Rules, to achieve the just, speedy,

and inexpensive determination of actions, and, when appropriate, affords a merciful

end to litigation that would otherwise be lengthy and expensive.” Fontenot v. Upjohn

Company, 780 F.2d 1190, 1197 (5th Cir. 1986). While all of the evidence must be

viewed in a light most favorable to the nonmovants, Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Company, 398 U.S. 144,

158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will

satisfy the nonmovants’ summary judgment burden. Calbillo v. Cavender Oldsmobile,

Inc., 288 F.3d 721, 725 (5th Cir. 2002) (citing Little v. Liquid Air Corporation, 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc)). A genuine issue of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248.

The movants make the necessary showing by informing the court of the basis

of their motions and by identifying the portions of the record which reveal there are

no genuine material fact issues. Celotex, 477 U.S. at 323. The pleadings, depositions,

admissions, and affidavits, if any, must demonstrate that no genuine issue of material

fact exists. FED. R. CIV. P. 56(c). 

If the movants make the required showing, the nonmovants must then direct

the court’s attention to evidence in the record sufficient to establish that there is a

genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this
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burden, the “opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v.

Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovants must

show that the evidence is sufficient to support a resolution of the factual issue in their

favor. Anderson, 477 U.S. at 249. When conflicting evidence is presented, the court

is not permitted to make credibility determinations regarding the evidence. See

Lindsey v. Prive Corporation, 987 F.2d 324, 327 (5th Cir. 1993). The nonmovants

cannot survive a motion for summary judgment, however, by merely resting on the

allegations in their pleadings. Isquith for and on behalf of Isquith v. Middle South Utilities,

Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988); see also Celotex,

477 U.S. at 324.

B. Summary Judgment Evidence

1. Evidentiary Standard on Motion for Summary Judgment

A party seeking summary judgment may rely on any form of evidence listed in

Rule 56(c). See Celotex, 477 U.S. at 324. While the form of the summary judgment

evidence need not be admissible, the content of the evidence must meet evidentiary

requirements. See Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997) (finding

that the hearsay statements in an affidavit were “incompetent summary judgment

evidence”). Thus, for example, while an affidavit has limited admissibility at trial, it

is sufficient evidence to support or defeat a motion for summary judgment even
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though inadmissible statements in the affidavit, such as hearsay statements, may not

be considered by the court. See id. 

2. Defendants’ Objections to the Plaintiffs’ Summary Judgment Evidence

Together with the plaintiffs’ response to the defendants’ motions for partial

summary judgment, the plaintiffs filed an appendix consisting of two medical reports,

an affidavit from the plaintiff Diaz, and excerpts from the deposition of Carballo. See

Appendix to Plaintiffs [sic] Response to Defendants [sic] Motion for Summary

Judgment (“Plaintiffs’ Appendix”). The defendants have objected to each of the

documents contained in the appendix, and the plaintiffs have not responded to the

defendants’ objections. 

a. Medical Reports of Dr. Marple and Dr. Tchorz

The defendants object to the plaintiffs’ incorporation of the medical reports of

Dr. Tchorz and Dr. Marple. See Defendants Rolando Carballo’s and Don Alexander’s

Objections to Plaintiffs’ Summary Judgment Appendix, Motion to Strike, and Brief in

Support (“Defendants’ Objections”) at 2 (objecting to Plaintiffs’ Appendix at 1-5). 

The defendants argue the medical reports are unauthenticated and constitute hearsay,

and as such the reports are not proper summary judgment evidence. See Defendants’

Objections at 2. Additionally, the defendants allege the reports fail to meet the

requirements for expert testimony under FED. R. EVID. 702. Id. Finally, the
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defendants argue that the reports are irrelevant to the issue of wrongful arrest -- the

only issue before the court on this motion. Id.

The court agrees with the defendants that the medical reports are irrelevant to

the issue being considered. See Waggoner v. City of Garland, Texas, 987 F.2d 1160

(5th Cir. 1993) (disregarding summary judgment evidence as irrelevant). The reports

speak only to the issue of excessive force, not wrongful arrest, and thus they will not

be considered. The defendants’ objection to consideration of the medical reports on

this motion is sustained.

b. The Affidavit of Guadalupe Diaz

The defendants also object to the affidavit of Guadalupe Diaz in its entirety,

maintaining that there is “no basis” for admitting an affidavit without a proffer that

the translation was accurate, or that the unidentified translator was competent to

perform the Spanish-to-English translation. Defendants’ Objections at 2-3.

Citing Cruz v. Aramark Services, Inc., 213 Fed. Appx. 329 (5th Cir. 2007), the

defendants argue that because the affidavit does not meet the standards set out by

the Fifth Circuit for treating a translator as a “conduit,” the court should not consider

the affidavit. Defendants’ Objections at 2-3; Cruz, 213 Fed. Appx. at 334. In Cruz,

the Fifth Circuit upheld the district court’s decision to reject an affidavit that had

been translated from Spanish to English. Id. Except in unusual circumstances, “an

interpreter is no more than a language conduit and therefore does not create an
3 Diaz’s affidavit states only that “I have had someone translate into

Spanish the contents of this affidavit and all of the facts herein are true and correct.” 

Affidavit of Guadalupe Diaz, located in Plaintiffs’ Appendix at 6. 

4 While Diaz’s affidavit will not be considered, the court notes that the

defendants have each included in their appendices an excerpt from Diaz’s sworn

deposition. See Appendix in Support of Defendant Don Alexander’s Motion for

Partial Summary Judgment (“Alexander’s Appendix”) at 17-19; Appendix in Support

of Defendant Rolando Carballo’s Motion for Partial Summary Judgment (“Carballo’s

Appendix”) at 17-19. The excerpt, identical in both appendices, provides proper

evidentiary support for the facts set forth in Diaz’s affidavit. The court will consider

the deposition excerpt as evidence supporting Diaz’s position.

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additional level of hearsay.” Id. at 333 (quoting United States v. Cordero, 18 F.3d

1248, 1253 (5th Cir. 1994)). However, in Cruz the Fifth Circuit explained that when

“determining whether to treat a translator as a mere conduit, the [court] looks to: 

(1) which party supplied the interpreter; (2) whether the interpreter had any motive

to mislead or distort; (3) the interpreter’s qualifications and language skill; and

(4) whether actions taken subsequent to the conversation were consistent with the

statements as translated.” Cruz, 213 Fed. Appx. at 334. The plaintiffs here have

submitted no information about who the translator is or what the translator’s

qualifications or skills are.3

 Additionally, while it seems likely that the interpreter was

supplied by the plaintiffs’ attorney, the court cannot be certain of this because no

information regarding the translator’s identity has been provided. Considering these

factors, the court finds that the affidavit is not proper summary judgment evidence,

and the defendants objection to it is sustained.4
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c. Deposition Testimony of Rolando Carballo

The defendants next object to the plaintiffs’ inclusion of a portion of the oral

deposition testimony of Carballo. See Defendants’ Objections at 4-5. Defendants’

counsel objected to the question because the question called for speculation. Id. The

court agrees that the question calls for improper speculation and will sustain the

defendants’ objection and exclude that portion of Carballo’s deposition from

consideration. See Hugh Symons Group, plc v. Motorola, Inc., 292 F.3d 466, 468 (5th

Cir.) (noting that unsupported speculation is not competent summary judgment

evidence), cert. denied, 537 U.S. 950 (2002).

C. Qualified Immunity to § 1983 Claims

On the basis of the summary judgment evidence provided, the court now turns

to an examination of the plaintiffs’ wrongful arrest claim in light of the defendants’

assertions of qualified immunity.

“Qualified immunity shields an officer from suit when [ ]he makes a decision

that, even if constitutionally deficient, reasonably misapprehends the law governing

the circumstances [ ]he confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004)

(citing Saucier v. Katz, 533 U.S. 194, 206 (2001)); see Mace v. City of Palestine, 333

F.3d 621, 623 (5th Cir. 2003). The existence of qualified immunity is a policy

decision which weighs the vindication of individuals’ rights against society’s needs for

effective government. See Elliott v. Perez, 751 F.2d 1472, 1476-78 (5th Cir. 1985). 
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The need for effective government outweighs individual rights to this extent – some

justified claims will necessarily be dismissed in the interest of freeing public officials

“to exercise their duties and functions without fear of having their attentions

distracted by the subsequent claims of unhappy or unsuccessful litigants.” Id. at

1478.

“Qualified immunity operates . . . to protect officers from the sometimes ‘hazy

border between excessive and acceptable force.’” Saucier, 533 U.S. at 206 (citing

Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000)). “The qualified

immunity defense ‘gives ample room for mistaken judgments’ by protecting ‘all but

the plainly incompetent or those who knowingly violate the law.’” Gibson v. Rich, 44

F.3d 274, 277 (5th Cir. 1995) (citation omitted). Government officials are entitled

to the defense of qualified immunity “if their decision was reasonable, albeit

mistaken.” Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (per

curiam) (citation omitted), cert. denied, 511 U.S. 1019 (1994). Generally, the court is

to determine as a matter of law if an officer’s acts were reasonable. Mangieri v. Clifton,

29 F.3d 1012, 1015-16 (5th Cir. 1994); Lampkin, 7 F.3d at 434-35.

When determining the officers’ claims of qualified immunity, this court must

employ a two-step analysis. Mace, 333 F.3d at 623. First, this court must determine

whether the plaintiffs have sufficiently pleaded facts that, if proven to be true, show

that Carballo’s and/or Alexander’s conduct violated a clearly established
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constitutional right. See id. Second, if the court determines that there is a

constitutional violation, the court must consider whether “it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” Id.

at 623-24. If the court determines that it would not be clear to a reasonable officer in

Carballo’s and/or Alexander’s situation, the officers are entitled to immunity.

If a factual dispute exists that is material to the resolution of the questions of

whether the officers acted in an objectively reasonable manner, the issue of qualified

immunity may be resolved by the fact finder. Lampkin, 7 F.3d at 435. A motion for

summary judgment on a claim of qualified immunity requires the court to “highlight

evidence that, if interpreted in the light most favorable to the plaintiffs, identifies

conduct by the defendant that violated clearly established law.” Castillo v. City of

Weslaco, 369 F.3d 504, 506 (5th Cir. 2004). If summary judgment is denied, the

court should include in its analysis “‘the factual scenario it believes emerges from

viewing the summary judgment evidence in the light most favorable’ to the

plaintiff[s].” Id. at 507. By analyzing such a factual scenario, the court is not issuing

a finding or opinion as to the facts surrounding the incident. Rather, the court is

merely describing one potential course of events and conduct that, if proved true,

would preclude the defendants’ qualified immunity claims. See id.
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D. The Plaintiffs’ Claim

1. Wrongful Arrest

Diaz’s cause of action for wrongful arrest arises under 42 U.S.C. § 1983 and

the Fourth Amendment to the United States Constitution. Section 1983 provides a

remedy for plaintiffs who have suffered a violation of their constitutional rights. The

Fourth Amendment requires that an arrest be supported by either a properly issued

warrant or probable cause. Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001). 

An arrest unsupported by a properly issued warrant or probable cause is not only

wrongful but also a constitutional violation. Dennis v. Warren, 779 F.2d 245, 247

(5th Cir. 1985). A warrantless arrest is unlawful and in violation of the Fourth

Amendment if it is unsupported by probable cause. Flores v. City of Palacios, 381 F.3d

391, 402 (5th Cir. 2004). Probable cause exists “when the totality of facts and

circumstances within a police officer’s knowledge at the moment of arrest are sufficient

for a reasonable person to conclude that the suspect had committed or was

committing an offense.” Id. (quoting United States v. Levine, 80 F.3d 129, 132 (5th

Cir. 1996)). Therefore, the defendants are entitled to qualified immunity if a

reasonable officer in their positions could have believed that, in light of the totality of

the facts and circumstances of which they were aware, it was probable that Diaz had

committed or was committing an offense. See Glenn, 242 F.3d at 313. 
5 EVADING ARREST OR DETENTION. (a) A person commits an

offense if he intentionally flees from a person he knows is a peace officer attempting

lawfully to arrest or detain him.” TEX. PENAL CODE ANN. § 38.04(a) (Vernon 2003).

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The defendants argue that there was probable cause to arrest Diaz for the

offense of evading detention or arrest.5

 See Carballo’s Brief at 7; Alexander’s Brief at

7. It is not necessary that the defendants demonstrate probable cause for the arrest of

assault on a public servant -- the actual offense Diaz was arrested for. See Devenpeck v.

Alford, 543 U.S. 146, 153 (2004) (explaining that a warrantless arrest is justified

where the facts known to the officer provide probable cause to believe a crime has

been committed, even where the offense charged is not closely related to the offense

for which the officer has probable cause). Therefore, it is only necessary that the

defendants show probable cause to arrest Diaz for any offense, in this instance,

evading arrest or detention. Under Texas law, a peace officer is allowed to effect a

warrantless arrest where the officer has probable cause to believe that the arrestee has

committed an offense “in his presence or within his view.” TEX. CODE CRIM. PROC.

§ 14.01(b) (Vernon 2005).

Viewing the facts in a light most favorable to the plaintiffs and based on the

totality of the circumstances within the defendants’ knowledge, the court finds that

the defendants had probable cause to arrest Diaz for the offense of evading arrest or

detention. The defendants were responding to a 9-1-1 call by Cipriano at a very late

hour, and were directed by Cipriano to investigate the poorly lit area along the fence
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line at the rear of the Cipriano’s property. See Carballo’s Brief at 7; Alexander’s Brief

at 7. Diaz argues that there is a fact issue regarding the events, but even if his version

is taken as true, both Carballo and Alexander would have had probable cause to arrest

him for fleeing the scene in his truck. As the Fifth Circuit noted in United States v.

Alexander, 559 F.2d 1339, 1343 (5th Cir. 1977), cert. denied, 434 U.S. 1078 (1978),

“[t]he observation of unusual activity for which there is not a legitimate, logical

explanation can be the basis for probable cause.” Moreover, “[c]onduct innocent in

the eyes of the untrained may carry entirely different ‘messages’ to the experienced or

trained observer.” United States v. Clark, 559 F.2d 420, 424 (5th Cir.), cert. denied,

434 U.S. 969 (1977). Here, as the situation appeared to the defendants, taking into

consideration the 9-1-1 call, the late hour, the fact that the incident took place in a

dark alley, and that the defendants did not know the property was owned by Diaz,

the court finds that Carballo and Alexander had probable cause to arrest Diaz for

evading arrest or detention. 

Therefore, because the plaintiffs have not demonstrated a constitutional

violation for wrongful arrest, the defendants are entitled to qualified immunity on

this claim and their motions for partial summary judgment must be granted.
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III. CONCLUSION

For the reasons stated above, the defendants’ objections to the plaintiffs’

summary judgment evidence are SUSTAINED, and the defendants’ motions for

partial summary judgment are GRANTED. 

SO ORDERED.

October 12, 2007.