Covarrubias v. City of Brownsville ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40090
(Summary Calendar)
PEDRO COVARRUBIAS, JR.,
Plaintiff-Appellant,
versus
CITY OF BROWNSVILLE, TEXAS; ET AL.,
Defendants,
CITY OF BROWNSVILLE, TEXAS; VICTOR RODRIGUEZ,
Chief of Police, City of Brownsville;
RAYMUNDO SALINAS, JR., City of Brownsville Police Officer,
Individually and in his official capacity,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(B-96-CV-195)
--------------------
October 20, 2000
Before HIGGINBOTHAM, WIENER, BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Pedro Covarrubias appeals the grant of
summary judgment in favor of the City of Brownsville and
Brownsville Police Officer Raymundo Salinas as to Covarrubias’s
state-law claims. Our review is de novo, see St. Paul Mercury Ins.
Co. v. Fair Grounds Corp., 123 F.3d 336, 338 (5th Cir. 1997), and
*
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that this opinion should not be published and is not precedent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.
we apply the familiar test for summary judgment set forth in
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
We reject the defendants’ claims that the City is entitled to
sovereign immunity. Salinas’s alleged tortious acts arise not from
the formulation of policy by the City, which would entitle the City
to immunity, but from the execution of that policy. See State v.
Terrell, 588 S.W.2d 784, 787 (Tex. 1979); Bridges v. Robinson, 20
S.W.3d 104, 107, 114 (Tex. App. 2000).
With respect to Salinas’s official immunity, however, there
are genuine issues of material fact regarding his good faith, so
summary judgment is precluded. As an initial matter, we disagree
with the plaintiff’s contention that the “good faith” test of City
of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994), should
be limited to cases involving police pursuit. The Texas courts of
appeal have consistently declined to restrict Chambers to its facts
and have applied it in a variety of contexts. See, e.g., City of
Beverly Hills v. Guevara, 911 S.W.2d 901, 904 (Tex. App. 1995);
Murillo v. Gomez, 881 S.W.2d 199, 202 (Tex. App. 1994). We rely on
these decisions as setting forth Texas law on this matter. See
Texas Dep’t of Hous. & Community Affairs v. Verex Assurance, Inc.,
68 F.3d 922, 928 (5th Cir. 1995).
The question in this case, therefore, is are there genuine
fact issues whether a reasonably prudent officer could have
believed that his actions were appropriate in light of clearly
established law and the information he possessed at the time his
conduct occurred. See Guevara, 911 S.W.2d at 904. According to
2
the testimony of Robert Nixon, the manner in which Officer Salinas
restrained Covarrubias - placing him face down on the rear floor of
his squad car - was not appropriate. Neither was it reasonable,
according to Mr. Nixon, to ignore Covarrubias’s complaints about
fire ants and the burning he felt while on the floor. Mr. Nixon
testified that there were other, preferable options for restraining
Mr. Covarrubias, such as restraining his feet or having another
officer sit in the car with him.
Contrary to the defendants’ assertions, Mr. Nixon’s deposition
testimony shows that he did consider the risk involved and the
potential harm, as required under the Chambers balancing test. See
Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex. 1997). Mr.
Nixon noted both the danger that Mr. Covarrubias posed to himself
and to the police vehicle, as well as the risk of harm to Mr.
Covarrubias, such as restricted breathing or choking, involved in
placing him face-down on the rear floor of the squad car. Mr.
Nixon expressed the opinion in his affidavit that no reasonable
officer could have believed that it was appropriate to ignore
Covarrubias’s complaints of burning and continue transporting him
in that manner. Mr. Nixon offered the same opinion in deposition
testimony that no reasonable officer would have transported
Covarrubias in such a manner. Thus, Mr. Nixon’s testimony as a
whole is sufficient to establish the presence of a genuine issue of
material fact on the question whether Officer Salinas acted in good
faith. See Wadewitz, 951 S.W.2d at 466-67. We shall not consider
the defendants’ contention that Mr. Nixon’s testimony is unreliable
3
under the Supreme Court’s standard in Kumho Tire Co. v. Carmichael,
525 U.S. 137 (1998), as they failed to raise this issue in the
district court. See Williamson v. United States Dep’t of
Agriculture, 815 F.2d 368, 383 (5th Cir. 1987).
The defendants have the burden of demonstrating good faith,
see Chambers, 883 S.W.2d at 653, but they fail to point to any
evidence establishing good faith or otherwise negating Mr. Nixon’s
testimony. In fact, they do not argue at any point in their brief
that Officer Salinas acted in good faith. Although we imply no
opinion as to the ultimate resolution of this question, we conclude
that there are genuine issues of material fact as to Officer
Salina’s good faith such that summary judgment should not have been
granted.
Accordingly, we vacate the district court’s order granting
summary judgment and remand this matter for further proceedings.
VACATED AND REMANDED.
4