IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51226

MICHELLE MARTINEZ; MARIO MARTINEZ, JR., A Minor, By and

Through Next Friend Mario Martinez, Sr.; MARIO MARTINEZ,

Plaintiffs - Appellants,

v.

MAVERICK COUNTY; TOMAS HERRERA, As Maverick County Sheriff in

His Individual Capacity; ROBERTO SIFUENTES, Maverick County Sheriff’s

Deputy in His Individual Capacity; MARCOS JESUS RIVERA, Maverick

County Sheriff’s Deputy in His Individual Capacity; OSVALDO LOPEZ,

Maverick County Sheriff’s Deputy in His Individual Capacity,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Texas

U.S.D.C. No. 2:08-CV-77-AM

Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.

PER CURIAM:*

This appeal arises out of the events leading up to and following the arrest

of Plaintiff-Appellant Michelle Martinez subsequent to a traffic stop in Eagle

Pass, Texas. Martinez and her husband and son appeal the district court’s

United States Court of Appeals

Fifth Circuit

F I L E D

January 15, 2013

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-51226

dismissal of claims and grant of summary judgment for the defendants on her

42 U.S.C. § 1983 claims and state law claims. For substantially the same

reasons as the district court, which adopted the magistrate judge’s report and

recommendations, we AFFIRM.

Various Maverick County Deputies (the “Deputies”) were involved in an

incident following an attempted traffic stop of Martinez for misdemeanor traffic

violations. Martinez resisted arrest and attempted to flee in her vehicle at a

high speed. A deputy pursued, using several techniques to stop her, including

maneuvering her vehicle off the road and shooting her tires. Martinez continued

to flee in her vehicle, nearly hitting another officer who had arrived in the area

to assist. Fearing for their safety and that of others in the surrounding

community, the Deputies shot at Martinez’s vehicle 15 to 18 times. One of these

shots struck her in the neck, injuring her and rendering her a quadriplegic.

On appeal, Martinez essentially challenges the entirety of the district

court’s ruling on her substantive claims: 

1

1. Denial of Medical Care. We agree with the district court that Martinez

failed to state a claim for denial of medical care against any defendant. 

Martinez did not allege the existence of any additional harm beyond her original

injury occasioned by the Deputies’ alleged failure to provide or summon medical

help immediately. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1985). 

 Martinez waived any challenge to the denial of her motion for remand (challenging 1

procedure, not subject-matter jurisdiction) by not timely moving for remand. See 28 U.S.C.

§ 1447(c); Baris v. Sulpico Lines, Inc., 932 F.2d 1540, 1543 (5th Cir. 1991). We agree with the

district court that Martinez’s husband and her son failed to establish standing by not putting

forth facts implicating a right of recovery separate from the alleged violations of Martinez’s

personal rights. See Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir. 1986). 

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2. Sheriff’s Office Policy or Custom. Nor did Martinez sufficiently allege 2

the existence of an unconstitutional policy or custom of the Maverick County

Sheriff’s Office resulting in a violation of her rights, as required to state a claim

against it. See Piotrowski v. City of Houston, 237 F.3d 567, 578–81 (5th Cir.

2001). While Martinez made wide-ranging conclusory allegations of corruption

within the Sheriff’s Office, she failed to identify any injury-causing policy or to

establish that her injuries were the direct result of any such policies. See id. at

578; see also Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).

3. Inadequate Training. Martinez’s claim of constitutionally inadequate

training against the Sheriff’s Office was not supported with sufficient evidence

suggesting that the County deviated from state-mandated training

requirements, or that its training was constitutionally deficient. In order to

avoid summary judgment, she needed to demonstrate “at least a pattern of

similar violations arising from training that is so clearly inadequate as to be

obviously likely to result in a constitutional violation.” Burge v. St. Tammany

Parish, 336 F.3d 363, 370 (5th Cir. 2003) (internal quotation marks and citation

omitted). She did not do so, and therefore summary judgment was appropriate. 3

Liability under § 1983 for a supervisor may exist based either on “personal 2

involvement in the constitutional deprivation,” or “a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation.” Thompkins v. Belt, 828 F.2d

298, 304 (5th Cir. 1987). Since Martinez’s complaint did not allege that Sheriff Herrera had

personal involvement in the events leading to her injury, the district court properly dismissed

the Fourth and Fourteenth Amendment claims against him, as the complaint lacked

allegations that sufficiently tied the constitutional violations to Sheriff Herrera’s alleged

wrongful conduct. In sum, the individual-capacity suit against Sheriff Herrera fails because

nothing in the record shows that he had any direct, personal involvement in the Martinez

incident. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). Because an

official-capacity suit is a suit against a municipality, that aspect of Martinez’s suit is

subsumed in the municipal liability discussion herein.

To the extent that single-incident liability retains viability as a theory of municipal 3

liability after Thompson v. Connick, 131 S. Ct. 1350 (2011), a question we need not decide, it

would not apply here. Martinez asserts that the Sheriff’s Office had a “policy” of engaging in

pretextual traffic stops and falsifying official records. She has not alleged facts sufficient to

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4. Individual Deputies’ Qualified Immunity Defense. Martinez also failed

to rebut the Deputies’ qualified immunity defense by showing that the Deputies’

use of force was excessive or objectively unreasonable. See Ontiveros v. City of

Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). An officer’s use of deadly force is

presumptively reasonable, and thus presumptively not in violation of the

constitution, when the officer reasonably believes that the suspect poses a threat

of serious harm to the officer or to others. See id. The Deputies were reasonable

to believe that Martinez’s erratic attempts to flee posed a threat of serious harm

to themselves and the surrounding community, making qualified immunity on

the excessive force claims and summary judgment appropriate.

5. Official Immunity Under Texas Law. Finally, we agree with the district

court that the Deputies and Sheriff Herrera were entitled to official immunity

under Texas law on Martinez’s state law claims. See City of Lancaster v.

Chambers, 883 S.W.2d 650, 653-58 (Tex. 1994). Maverick County is also

immune from Martinez’s tort claims. See TEX. CIV. PRAC. & REM. CODE §§

101.021, 101.055, 101.057. The limited waiver to state immunity in the Texas

Tort Claims Act does not apply unless the state employee is personally liable to

the claimant under Texas law. See TEX. CIV. PRAC. & REM. CODE § 101.021;

DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995). Because the Deputies

and Sheriff Herrera are entitled to official immunity, there is no waiver of the

County’s immunity. 

AFFIRMED. 

show that the unconstitutional consequences of the alleged Sheriff’s Office policies “could be

so patently obvious that a [governmental entity] could be liable under § 1983 without proof of

a pre-existing pattern of violations.” See id. at 1361. Moreover, in addition to culpability,

there must be a direct causal link between the municipal policy and the constitutional

deprivation. Pietrowski, 237 F.3d at 580. Thus, even if there were such policies, Martinez has

not brought forth facts that would establish that her injuries resulting from the force used to

stop her from fleeing were the direct result of any such policies. See Brown, 520 U.S. at 403.

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