## IN THE UNI TED STAT ES COURT OF APPEALS FOR THE FIF TH CIRCU IT

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 Pla i n t iff-Appellant Michelle Martinez subsequent to a traffic stop in Eagle Pass, Texas. Martinez and her husband and son appeal the district court’s U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

## F I L E D Janu ary15 , 20 13 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm ined t hat this op inion s hould not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 

### Case: 11-51226 Document: 00512113360 Page: 1 Date Filed: 01/15/2013

### No. 11-51226

dismissal of claims and grant of summary judgment f o r the defendants on her 42 U.S.C. § 1983 claims and state law claims. For substant i a l l y t h e same

r e a sons as the district court, which adopted the magistrate judge’s report a n d recommendations, we AFFIRM. Various Maverick County Deputi e s (the “Deputies”) were involved in an incident following an attempted traffic stop of Martinez for misdemeanor traffic violations. Martinez resisted arrest a n d a t t empted 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 as s i s t. 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 appe a l, 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 medic a l 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).

Mar tine z waived any challenge to the de nial of her mot ion fo r rem and (c hallen ging 1 pr oce dur e, not sub ject -m att er juris dic tio n) by n o t t i m e l y mo ving for rem and. See 28 U. S. C. § 1447( c) ; Bari s v. Sulp ic o Line s, Inc. , 932 F.2d 1540, 1543 (5t h Cir. 1991)

. We agree wi th the dis tri ct cour t that Mar tine z’s husb and and her so n fai led to es tabl ish st andi ng by not put ting for th fac ts im pl i c a ting a right of rec overy se par ate fr om the allege d violat ions of Mar tine z’s per so nal right s. See Coon v. Le dbetter , 780 F.2d 115 8, 1160 (5t h Cir

. 1986)

. 

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### No. 11-51226

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


### t h e e x i s t e nce 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 o f H o u s t o n , 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
sugg e s t ing 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 l e a st a pattern of similar violations arising from training that is so clear l y i n a d e q uate 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

Liabili ty unde r § 1983 for a sup ervis or may exis t bas ed eit her on “p ers onal 2 involvem ent in the cons tit utio nal dep rivat ion, ” or “a suf fic ient caus al conne cti on betw een the sup ervis or’ s wr ongful cond uct and the cons tit utio nal violat ion. ” Thom pki ns v. Bel t , 828 F.2d 298, 304 (5th Cir. 1987). Sinc e Mar tine z’s com plai nt did not alle ge that She rif f H err era had per so nal involvem ent in the event s lead ing to her injury, the dis tri ct cour t pr ope rly dis mi ss ed the Fourt h and Fourt eent h Ame n d m e n t clai ms agains t him , as the com plai nt lack ed allegat ions that suf

fic ien t ly tie d the cons tit utio nal violat ions to Sher iff He rre ra’ s allege d
wr ongful cond uct

. In sum , the individu al- cap acit y sui t agains t Sher iff He rre ra fai ls beca use noth ing in the r eco rd sho ws that he had any dir ect , per so nal involvem ent in the Mar tine z incid ent. See T

h o m p s o n v
. Steel e , 709 F.2d 381, 382 (5t h Cir. 1983)

. Becaus e an off icia l-c apac ity s u i t i s a sui t agains t a mun icip alit y, that asp ect of Mar tine z’s sui t is sub sum ed in the mun icip al liabil ity dis cus sio n he rein

.

To the extent that single- incid ent liab ilit y ret ains viabilit y as a theo ry of munici pal 3 liabil ity aft er Thom

ps on v. Conni ck , 131 S. Ct. 1350 (201 1), a ques tio n we need not decid e, it
wo uld not app ly here

. Mar tine z ass ert s that the Sher iff ’s Of fic e had a “p olic y” of engaging in pr ete xtual tra ff

ic st ops and f

als ifyin g of

fic ial rec ord s. She has no t allege d fac ts s uff icie nt to 

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### No. 11-51226

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 re asonable, 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 T e x a s l a w o n Martinez’s state law claims. See City of Lancaster v. C h a m b e r s , 883 S.W.2d 650, 653-58 (Tex. 1994). Maverick County is also i m m une from Martinez’s tort claims. See T E X



### . C I V



### . P R A C



### . & R E M



### . C O D E 

### § § 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 T E X



### . C I V



### . P R A C



### . & R E M



### . C O D E 

### § 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, th e r e is no waiver of the County’s immunity. AFFIRMED.

sho w that the unc ons tit utio nal cons equenc es of the alle ged She rif f’ s O ff ice p olic ies “co uld be
so pat entl y obvious that a [gover nme ntal enti ty] coul d be liable unde r § 1983 wi thou t pr oof of
a pr e-e xist ing pat ter n of violat ions .” See id. at 1361. M ore over, in add itio n to culp abilit y, ther e mus t be a dir ect caus al link betw een the mun icip al pol icy and the cons tit utio nal dep rivat ion. Pie trow ski , 237 F.3d at 580. Thus, even if ther e we re suc h pol icie s, Mar tine z has not brou ght for th fac ts that wo uld es tabl ish that her injurie s res ulti ng fr om the for ce use d to st op her fr om fle eing we re the direc t res ult of any suc h pol icie s. See Brown , 520 U. S. at 403.



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