Case 1:15-cv-00052-RP Document 26 Filed 05/20/16 Page 1 of 20

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GEORGE TRAMMELL

v.

KEVIN FRUGE, In His Individual And Official

Capacity; MIKE KROGMANN, In His Individual

And Official Capacity; BRIAN NEVEU, In His

Individual And Official Capacity; E.F.

DELAROSA, In His/Her Individual And Official

Capacity; HUNTER WEBB, In His Individual

And Official Capacity; M. GARZA, In His/Her

Individual And Official Capacity; SHELBY

INGLES, In Her Individual And Official Capacity;

CITY OF ROUND ROCK, TEXAS; AND JOHN
DOES 1-5;

CIVIL ACTION NO. 1:15-cv-00052-RP

MOTION FOR SUMMARY JUDGMENT ON BEHALF OF

DEFENDANT CITY OF ROUND ROCK
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
NOW COMES Defendant, CITY OF ROUND ROCK, by and through its attorneys of
record, and files this its Motion for Summary Judgment and would respectfully show the Court
as follows:
I.
Statement of the Case1
Plaintiff has filed this lawsuit alleging that certain individual Defendants deprived him of
his constitutional rights guaranteed by the Fourth Amendment of the United States Constitution.
(Plaintiffs Complaint 47-48).

Plaintiff also sues the City of Round Rock (hereinafter

sometimes referenced as RR) for an unconstitutional policy or custom of inadequate training

Summary Judgment evidence for this Motion is contained n the separate Appendix filed with the Motion for
Summary Judgment of Fruge, Garza, Ingles and Neveu. All references to Exhibits refer to the exhibit number in
that Appendix which is incorporated here by reference.

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and supervision of the officers. (Plaintiffs Complaint 50-51; Ex. K interrogatory number 14).
The City denies those claims.
II.
Factual Background
On January 21, 2013 at approximately 12:00 a.m. the Round Rock PD received a 911 call
about a motorcycle rider who had left the El New Goal Post club, laid down the bike in a crash,
and was believed to be intoxicated. (Ex. A, Attachment 2 & 3, Ex. G, Ex. J). Round Rock PD
officers were dispatched to the scene. (Ex. A, Ex. B, Ex. C, Ex. D).
Round Rock Police Officer Kevin Fruge arrived on the scene first. (Ex. A, Attachment 2
& Attachment 3). Several pedestrians at the club directed Fruge across the street to where he
located the suspect we now know as George Trammell. (Ex. A, Attachment 2, Ex. J). Officer
Fruge exited his car and went to the motorcycle where the suspect was standing. (Ex. A,
Attachment 2 & 3; Ex. J). According to the Complaint, the entire arrest (or as he characterizes it,
assault) is captured on video from the responding officers dash cams. (Plaintiffs Complaint
34). On Officer Fruges video, Fruge and Trammell are on the left side of the screen. Officer
Fruge is polite and courteous in his interactions when he approached the Plaintiff, as confirmed
on the dash cam video. (Ex. A, Attachment 3 & 4). Fruge did not know the suspect. (Ex. A).
Fruge asked Trammell to stop away from the bike which is akin to asking a motorist to exit his
vehicle. He asked him what was going on and Trammell said he had just parked his bike.
(Ex. A, Attachment 3). Trammell denied wrecking it. (Id.) As Fruge spoke with Mr. Trammell
he smelled a strong odor of alcoholic beverages coming from him, his speech was slurred, he
swayed and his eyes were bloodshot. (Ex. A, Attachment 2 & 3, Ex. H, Ex. J). All of those
observations are consistent with Fruges training and experience that a person exhibited those

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symptoms is likely intoxicated. (Ex. A, Attachment 1 & 2, Ex. H, Ex. J). Fruge was concerned
with Trammel being a danger to himself or others. (Ex. H).
On his dash cam, Officer Fruge can be heard asking Mr. Trammell how much he had to
drink tonight at least twice. (Ex. A, Attachment 3 at 14:342; Plaintiffs Complaint 20-24). He
said, A whole lot of nothing. (Ex. A, Attachment 3 at 14:36; Plaintiffs Complaint 20-24).
Officer Fruge asked him how much that was and he told him he would not answer. (Ex. A,
Attachment 3 at 14:39; Plaintiffs Complaint 25). On the video, Trammell can also be seen
taking his jacket or vest off. (Ex. A, Attachment 3, at 14:32, Attachment 4 at 14:34). Officer
Fruge then instructed Trammell to walk toward him and he said, No. (Ex. A, Attachment 3 at
14:44; Plaintiffs Complaint 27). Officer Fruge told Trammell to put his hands behind his back
and he stated, I am not answering your questions. (Ex. A, Attachment 3 at 14:48; Plaintiffs
Complaint 28). Trammell did not walk toward Officer Fruge or put his hands behind his back as
previously instructed. (Ex. A, Attachment 4 at) Officer Fruge believed he had probable cause for
public intoxication. (Ex. A, Attachment 2, 3 & 4; Ex. H, Ex. J). Officer Fruge then walked
toward the suspect, reached for and grabbed Trammells right hand to handcuff him. (Ex. A,
Attachment 3 at 14:47). The situation was fluid and unpredictable. Trammell pulled away from
him and leaned his body in the opposite direction. (Ex. A, Attachment 4 at 14:45). The dash cam
video also shows Trammell in a fighting stance with his arms raised. (Ex. A, Attachment 4 at
14:47). Trammel is also heard saying he is not going to jail on Officer Garzas mic.3 (Ex. A,
Attachment 4 at 14:46; Ex. C). Trammell also said F_ _k you when they reached for his hand.
(Ex. A, Attachment 4 at 14:49).

2
3

The times referenced are to the time stamp on the respective videos.
Garzas mic is volp 2 on Ingles dash cam Ex. A, Attachment 4.

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At this point, Fruge responded to Trammells resistance with a knee strike to his right
thigh to stun him and to help take him to the ground for handcuffing. (Ex. A, Attachment 4). By
this time, Officers Marciano Garza and Shelby Ingles were also on scene behind Fruge and
moved in to help control the suspect. (Ex. A, Attachment 4, Ex. C, Ex. D, Ex. J). On Officer
Ingles camera, she is on the right and Garza is on the left. Officer Brian Neveu also arrived to
assist. (Ex. A, Ex. B, Ex. C, Ex. D). After Trammell pulled away from Fruge, Officer Ingles
tried to grab the suspects left hand. (Ex. A, Attachment 4, Ex. D). He pulled away. Officer
Garza placed the Plaintiff in a headlock in order to direct him to the ground. (Ex. A, Attachment
4, Ex. C).
On the ground, Mr. Trammell clenched both hands under his chest. (Ex. A, Ex. B, Ex. C)
He did not follow repeated commands to remove his hands from underneath him, to show his
hands and to put his hands behind his back. (Ex. A, Attachment 3, 4 & 5, Ex. B, Ex. C, Ex. D).
The officers asked him multiple times to put his hands behind his back and he refused to comply.
(Id.) At one point he states F--k you, you assholes and bitch. (Ex. A, Attachment 3 & 4; Ex. B,
Ex. C, Ex. D). He also told the Defendants he was a police officer. (Ex. A, Attachment 4). The
officers are heard asking his companion if he has any weapons. (Ex. A attachment 4 at 15:18).
On the video, you can hear Plaintiff tell the officers his arm was fused. (Ex. A, Attachment 4 at
15:49, Ex. B). On the night of the arrest, it was not clear to the officers what he was saying. (Ex.
B). Mr. Trammels companion told them his arm was fused. (Ex. A, Attachment 4 at 15:56;
Plaintiffs Complaint 34).
While on the ground, Officer Neveu directed two or three knee strikes to Trammells left
arm or thigh to stun him, to try to get him to loosen his arms so he could pull his left arm from
under him, and gain control of his hands. (Ex. B). These strikes caused the Plaintiff to relax his

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left arm and Neveu was able to remove the left arm from under his body. (Ex. B). Once both
arms were removed, the officers handcuffed his hands behind his back. (Ex. A, Ex. B, Ex. C, Ex.
D). The suspect is handcuffed at approximately the time when Officer Fruge can be seen on the
video leaving and walking toward Trammells female companion. (Ex. A, Attachment 4 at 16:10;
Plaintiffs Complaint 34). The entire action to take custody of Trammell lasted between a
minute and a half and two minutes. (Ex. A, Attachment 3 & 4). After talking with Trammells
companion, Officer Fruge tells the suspect he is under arrest for Public Intoxication. (Ex. A, Ex.
H & Ex. J).
Trammell can be observed on Officer Ingles dash cam while Officer Marciano is
processing him. (Ex. A, Attachment 4). EMS was called to the scene, but according to those
records Trammell refused transport. (Ex. F). The EMT personnel noted Trammell had alcohol on
his breath and did not appear to have any serious injuries. (Ex. F). Trammell was transported and
booked into the Williamson County Jail. (Ex. B & Ex. I).
III.
Summary Judgment Standard
Summary judgment should be granted when the moving party shows there is no genuine
issue of material fact and is entitled to judgment as a matter of law. Speaks v. Triodora Lloyd
P.T., 838 F.2d 1436, 1438-39 (5th Cir. 1988). Fed. R. Civ. P. 56(c). The evidence presented is
reviewed in the light most favorable to the non-moving party only if there is a genuine dispute as
to those facts. Scott v. Harris, 127 S.Ct. 1769 (2007). When it appears from the entire record
that there is no genuine issue of material fact; and the record taken as a whole could not lead a
rational trier of fact to find for that party, the moving party is entitled to a judgment as a matter
of law. Richter v. Merchs. Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996); See e.g.,
Matsushita Electric Industrial Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.

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1348, 1356 (1986) (purpose of summary judgment is to pierce the pleadings and assess the proof
in order to see whether there is a genuine need for trial).
This standard for determining whether to grant summary judgment is not merely
whether there is a sufficient factual dispute to permit the case to go forward, but whether a
rational trier of fact could find for the non-moving party based upon the record evidence before
the Court. James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990).
IV.
Summary Judgment Evidence
The summary judgment evidence consists of the following: (1) Affidavit of Kevin Fruge
and attachments (Ex. A); (2) Affidavit of Brian Neveu and attachments (Ex. B); (3)
Affidavit of Marciano Garza and attachments (Ex. C); (4) Affidavit of Shelby Ingles and
attachments (Ex. D); (5) Affidavit of Commander Robert Rosenbusch and attachments (Ex.
E); (6) Records from Williamson County EMS (Ex. F); (7) 911 call (Ex. G);
(8) Misdemeanor Complaint/Affidavit of Kevin Fruge (Ex. H); (9)

Williamson County

Booking Sheet for Trammell (Ex. I); (10) Complaint/Affidavit of Kevin Fruge for resisting
arrest (Ex. J); (11) Plaintiffs Answers to Written Interrogatories from the City of Round
Rock (Ex. K); and (12) Medical records concerning Mr. Trammells medical condition from
Central Texas Veterans Healthcare Service (Ex. L). In addition, the exhibits attached to Rec.
Doc. # 24 are incorporated here also.
This evidence shows that the Plaintiff has not and cannot establish a constitutional claim
against the City. Accordingly, the Court should grant Defendants Motion for Summary
Judgment.

Further, because the claims against the individual officers fail for the reasons

expressed in their motions, no claim can be made against the City.

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V.
Grounds for Summary Judgment for City
The City is entitled to Summary Judgment because:
1.

City policies, including the Response to Resistance policy are constitutional.

2.

There is no evidence of any policy or informal custom among rank-and-file

officers of using excessive force during arrests, and even if such did existwhich
the City deniesthere is no evidence that the final policymaker condoned it.

3.

There is no evidence that a final policymaker promulgated any official policy, or

condoned any custom that was the moving force causing the alleged excessive
force incident in question, or any violation of Trammells Fourth Amendment, or
other legal rights.

4.

Plaintiff cannot prove that a final policy maker acted with deliberate indifference
to any policy, or any custom, that was the moving force of any violation of
Trammells Fourth Amendment or other legal rights.
VI.
Argument and Authorities Regarding the City of Round Rock

A.

1983 Claims
1.

Elements of 1983 Municipal Liability: Generally

Municipal liability under 1983 cannot rest on agency principles or respondeat superior.
Monell v. New York Department of Social Services, 436 U.S. 658, 690-94 (1978); Board of the
County Commrs v. Brown, 520 U.S. 397, 403 (1997). Municipal liability requires: (1) official
policy, (2) of which final policymaker can be charged with actual or constructive knowledge, and
(3) there is a constitutional violation and the moving force of that violation is the policy.
Henry v. City of Taylor, 2008 WL 255 7489 *7 (WD 2008) citing Pineda v. City of Houston, 291
F.3d 325, 328 (5th Cir. 2002). To establish a 1983 cause of action against a local governmental
entity, the plaintiff must demonstrate that action pursuant to official municipal policy of some

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nature caused a constitutional tort. Jett v. Dallas Independent School District, 491 U.S. 701,
729 (1989) (emphasis added) (quoting Monell, 436 U.S. at 691).
Locating a policy ensures that a municipality is held liable only for those deprivations
resulting from the decisions of its duly constituted legislative body or of those officials whose
acts may fairly be said to be those of the municipality. Brown, 520 U.S. at 403-04. Thus,
[o]nly those municipal officers who have final policymaking authority may by their actions
subject the government to 1983 liability. City of St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988) (plurality opinion) (emphasis added).
In Brown, the test is set out as follows:
It is not enough for a 1983 plaintiff to identify conduct properly attributable to
the municipality. The plaintiff must also demonstrate that, through its deliberate
conduct, the municipality was the moving force behind the injury alleged. That
is, a plaintiff must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link between the
municipal action and the deprivation of federal rights.
520 U.S. at 403.
In the present action, Trammell avers that the City has liability because: (1) It has failed
to train its officers and (2) It has failed to supervise its officers. (Plaintiffs Complaint 50-51,
Ex. K, Interrogatory No. 14).
2.

No Unconstitutional City Policy Permitting Wrongful Arrest or Excessive Force

Plaintiff does not, and cannot, point to any official written city policy authorizing or

condoning city police to use excessive force against any suspect. In addition, the Departments
Response to Resistance policy is facially valid. (Ex. E, Attachment 1). It does not authorize
violation of the Fourth Amendment or any law. Based upon the formal policies adopted by RR
related to officers response to resistance, it cannot be said that the City has a policy indifferent
to the conduct of its officers regarding the use of force. (Ex. E, Rec Doc. 24 Ex. A). Trammell

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cannot establish an unconstitutional policy that authorized the deprivation of any federal right
either.
Generally, a single isolated incident of alleged excessive force or wrongful arrest like
here does not and cannot establish a city policy or custom condoning such alleged behavior. To
show the existence of an informal custom with the force of law, the Plaintiffs must prove that the
Citys final policymaker was deliberately indifferent to a persistent, widespread pattern of
similar incidents. Henry v. City of Taylor, 2008 WL 2557489 *7 (W.D. Texas 2008) affd at
336 Fed. Appx. 410 (5th Cir. 2009)(citing Pineda v. City of Houston, 291 F.3d 325, 329-31 (5th
Cir. 2002)), Peterson v. City of Ft. Worth, 588 F. 3d 838, 847 (5th Cir. 2009), Tolan v. Cotton,
2015 WL 5310801 (S.D. Texas 2015). 4 There is no such pattern of unconstitutional conduct that
can be alleged in this case; nor can any be proven.

Any argument to the contrary is

indistinguishable from respondeat superior liability, which the Supreme Court has repeatedly
rejected.
Proof of more than a single instance of the lack of training or supervision causing a
violation of constitutional rights is also normally required before a claim for lack of training or
supervision constitutes deliberate indifference. Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003);
Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir. 1998); Belt, 828 F.2d at 304-305. The
Plaintiff must generally demonstrate at least a pattern of similar violations. Gabriel v. City of
Plano, 202 F.3d 741, 745 (5th Cir. 2000), Snyder, 142 F.3d at 798. Furthermore, the inadequacy

See also Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998) (reapplying rule that a failure-to-train claim had to be
based upon more than one instance); Berry v. MeLemore, 670 F.2d 30, 32 (5th Cir. 1982) (single improper arrest is
not systematic abuse constituting a custom); Mossey v. City of Galveston, 94 F. Supp. 2d 793, 800 (S.D. Tex. 2000)
(evidence of three prior citizen complaints against officer accused of excessive force failed to show that the city had
a history of using abusive and unconstitutional tactics in apprehending suspects, noting that the mere existence of
previous citizens complaints does not suffice to show a municipal custom of permitting or encouraging excessive
force) (quoting Mettler v. Whitledge, 165 F .3d 1197, 1205 (8th Cir. 1999)).

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of training must be obvious and obviously likely to result in a constitutional violation. City of
Canton, 109 S.Ct. at 1205 n.10 (1989).
In our review of cases from within the Fifth Circuit, we find a solitary case that has found
municipal liability for failure to train or supervise based on a single incident. See Brown v. Bryan
County, 219 F.3d 450 (5th Cir. 2000). (Brown III). The Brown case has a complicated procedural
history involving multiple levels of appeals, requests for rehearing en banc, and re-writing of
opinions allegedly to avoid en banc review. Brown at 468 470. Moreover, the facts regarding
the background of the officer sued for excessive force clearly distinguish him from the officers
sued in this case. For example, the defendant in the Bryan County case was kin to the sheriff. Id
at 458. It made it very unlikely his training or lack thereof got lost in the crowd. Id. The
deputy had an immature background that was well known to the sheriff. Id. Moreover, he was in
violation of the terms of his probation and had an outstanding warrant (Id. at 455), which would
show a pressing need for more training. Also, he was in service only a matter of weeks before
the incident-giving rise to that lawsuit. Another key difference between Brown III and the
present action is that the deputy in Brown III had not had the training mandated by the State of
Oklahoma to secure a peace officer license. In the present action, all the individual Defendants
have state mandated training as is required to secure their peace officer license. (Ex. A, Ex. B, Ex.
C & Ex. D; Rec. Doc. 24 Ex. A, Ex. B & Ex. C). Plainly, the officers in this case do not have the
background or lack of training of the deputy in Brown III and the Brown III case is limited and
distinguishable.
Trammell claims that four separate incidents establish an unconstitutional pattern, policy
or custom of excessive force by the RR Police Department. (Plaintiffs Response to Motion to

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Dismiss, p. 2). Those are: Sullivan5 v. Round Rock, No. 1-14-Cv-349-LY (3/21/14 incident date),
Parsons v. Marmarinos et. al., 1:14-CV-01122 LY (2/27/12 incident date), this case (1/21/2013
incident date) and an uncharged incident involving Officer Ben Johnson after the Trammell
incident. (Id.) None of those incidents involve any of the individual defendants sued in this case.
In fact, none of the officers sued in this case have been the subject of suits for excessive force
while employed with RR before this incident occurred. An additional case, uncited by the
Plaintiff presently pending involves Marciano Garza, a defendant in this case. (See: Alexander v.
Round Rock et. al. 1:15-CV-00617-SS). However, the Magistrate has recommended that case
should be dismissed. (Alexander v. Round Rock et. al. 1:15-CV-00617-SS Rec. Doc #28)
Moreover, that incident occurred on 9/26/2013, after the Trammell incident. It could not have put
the City on notice of a problem before Trammell because it happened eight months after the
incident giving rise to this suit. Another ongoing action not cited by the Plaintiff is Turner v. RR
1:15-cv-00939-RP. It does not involve any of the officers sued by Trammell and is ongoing.
Moreover, that incident occurred 7/20/2015, some two and a half years after Trammell. It could
not have put the City on notice of an unconstitutional policy in Trammell either. Both Sullivan
and the uncharged matter with Officer Johnson were after Trammell also. They could not be
evidence the City was deliberately indifferent to an unconstitutional policy before those incidents
occurred.

Only the Parsons case occurred before Trammell.

Yet it has been settled and

dismissed. It was not a DWI call but a family violence call and is not similar to the present case.
None of these matters have led to judgments establishing the veracity of any of the claims
alleged. They do not establish a pattern of deliberate indifference to the rights of citizens to be
free from unreasonable seizures.

5

The Court can take judicial notice of the Sullivan, Alexander, Parsons and Turner cases from the Western District.

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In considering this claim, it must be noted that there were 43,466 traffic-related contacts
and 416 DWI arrests by RR police in 2013. (Ex. E). To establish municipal policy, prior
incidents must have occurred for so long or so frequently that objectionable conduct becomes the
known and accepted practice of the governing body. Webster v. City of Houston 735 F. 2d. 838,
842 (5th Cir. 1984). It also requires sufficiently numerous prior incidents. McConney v. City of
Houston, 863 F.2d 1180, 1184 (5th Cir. 1989)6. In the absence of proof of a repeated pattern of
misconduct, specifically known of and tolerated by the department, the Plaintiff cannot establish
a viable cause of action for an alleged failure to supervise, train or for a ratification of any such
unconstitutional policy. Davis v. City of North Richland Hills, 406 F.3d 375 (5th Cir. 2005).
3.

All Individual Defendants Hold State Licenses so Failure to Train Claim is not
Actionable
The Court can and should take judicial notice of the fact that Texas statutes provide that

all peace officers in Texas, including all of the individual defendants sued here and other officers
of RR are required to complete training and licensing requirements of the Texas Commission on
Law Enforcement (TCOLE) before serving as a police officer. See Texas Occupations Code
2701.251, 1701.253.
TCOLE is required to establish and maintain training programs for peace officers. In
order to obtain and maintain a peace officers license in Texas, each officer must meet TCOLE
standards. Through the Occupation Code, the Legislature has mandated that TCOLE establish a
statewide comprehensive education training program on civil rights which covers the laws of the
state and of the United States pertaining to peace officers in Texas for all licensed law

6

Peterson v. City of Fort Worth, 588 F.3d 838, 850-851 (5th Cir. 2009)(27 complaints in four years did not constitute
sufficient evidence of pattern rising to the level of a policy), Pineda v. City of Houston, 291 F. 3d 325, 329 (5th Cir.
2002)(11 incidents of warrantless entry did not support pattern of unconstitutional warrantless entry). McIntosh v.
Smith, 690 F. Supp.2d 515, 532 (S.D. Tex. 2010)(single other incident of misconduct over twenty years prior not
legally sufficient to raise issue of custom.)

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enforcement officers in the Texas. Tolan v. Cotton at *2. Thus, all law enforcement officers in
Texas receive training that has been deemed adequate by the State of Texas to prepare officers to
competently perform the duties of their office. Id. Moreover, the licensing and training standards
established by TCOLE have been found to comply with constitutional requirements and are
adequate to enable Texas peace officers to deal with unusual and recurring situations peace
officers encounter. Benavides v. County of Wilson, 955 F. 2d 968, 973 (5th Cir. 1992).
Each of the individual defendants Trammell has sued maintained state issued peace
officer licenses issued by TCOLE. (Ex. A, Ex. B, Ex. C, Ex. D; Rec. Doc. 24 Ex. A, Ex. B, Ex.
C). That license granted to peace officers by TCOLE generally establishes officers were
adequately trained. Benavides at 973, Also see: Conner v. Travis County, 209 F. 3d 794, 798 (5th
Cir. 2000); Zarnow v. Wichita Falls, 614 F.3d 161, 171 (5th Cir. 2010)(citing Connor v. Travis
County, 209 F.3d 794, 798 (5th Cir. 2000)); Haywood v. City of Elgin, 2014 WL 4929311 *8-9
(W.D. 2014)(Summary judgment granted to city on failure to train claim because officers held
state licenses and there was no showing that this was not adequate for officers to deal with
recurring situations)(citing Benavides v. County of Wilson, 955 F. 2d 969, 973 (5th Cir. 1992);
Chacon v. City of Austin, 2013 WL 2245139 (W.D. 2013) (citing Sanders-Burns v. City of Plano,
594 F.3d 366, 382 (5th Cir. 2010)). Each of the individual defendants have been licensed over ten
years. (Id.)
There is no evidence that the RR officers sued in this case were trained any less than
what is required by law, that there has been a pattern of similar incidents involving excess force
by these officers before Trammel while employed at RR, or that the City of Round Rocks
alleged failure to train reflects a deliberate or conscious choice to endanger the constitutional
rights of citizens. Accordingly, the Plaintiffs claims for inadequate training against the City

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should be dismissed. Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998), Benevides v.
County of Wilson, 955 F.2d 968, 973 (5th Cir. 1992) (Because jailers were certified, plaintiff must
show that this legal minimum of training was inadequate to enable the deputies to deal with
recurring situations faced by jailers and peace officers); Huong v. City of Port Arthur, 961 F.
Supp. 103 (E.D. Tex. 1997); Gonzales v. Westbrook, 118 F. Supp. 2d 728 (W.D. Tex. 2000);
Davis v. Montgomery County, 2009 W.L. 1226904 (S.D. Tex. 2009).
The summary judgment proof contained in the Appendix as Exhibits A, B, C, D;
and in Rec. Doc. 24- Ex. A, Ex. B, and Ex. C establishes that each of the City of Round Rock
officers sued here were properly licensed by the State of Texas at all relevant dates, and were in
fact well trained law enforcement officers. Tex. Occupations Code 1701.051. Accordingly, the
Court should dismiss Plaintiffs failure to train claims.
4.

No Claim for Failure to Supervise Here

Plaintiff also pleads that RR is liable for a failure to supervise. (Plaintiffs Complaint
50-51; Ex. K interrogatory number 14). Under 1983, supervisory officials and units of
government are not liable for the actions of subordinates on any theory of vicarious liability.
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). A failure to supervise is evaluated as a
failure to train. Davis v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2001).
In this case the claims for failure to supervise, like those involving failure to train are
without merit. As noted above, each of the individual defendants Trammel has sued are licensed
by TCOLE and have maintained those licenses for extended periods. That means they have
received training that has been deemed adequate by the State to prepare them to competently
prepare them to perform the duties of their office. Moreover, a use of force report was prepared
by the supervisor and reviewed. (Rec. Doc. 24 Ex. A) For these reasons, as well as others, the

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Motion for Summary Judgment should be granted with regard to the allegations of failing to
supervise. In addition there is no evidence the City was conscious of any alleged failure to
supervise and deliberately indifferent to it.
5.

Relevant Final Policymaker

To establish Municipal liability, a party must show the City was conscious of the alleged
policy deficiency. In his Complaint, the Plaintiff does not clearly allege or identify any relevant
final policymakers. For possible constitutional violations by a municipality, what matters is
the identity and involvement of the final policymaker, not intermediate level policymakers. See
Church v. City of Huntsville, 30 F.3d 1332, 1343 (11th Cir. 1994) (the imposition of municipal
liability requires a decision by the final policymaker, not a principal one); Flores v. Cameron
County, 92 F.3d 258, 269 (5th Cir. 1996) (lower-level de facto policymaker was not the countys
final policymaker).
Identifying the Citys final policymaker in the relevant area of municipal government
presents a question of state law. Jett, 491 U.S. at 737; Worsham v. City of Pasadena, 881 F.2d
1336, 1340 n.8 (5th Cir. 1989). The Plaintiff has not established who the final policy maker is.
Nonetheless, Plaintiff cannot show that the City promulgated any official city policy, or
condoned any informal custom of employing excessive force against any suspect arrested in
Round Rock. Nor is the Departments response to resistance policy constitutionally infirm. (Ex.
H).
In order to satisfy the cause in fact requirement, a plaintiff must establish that the custom
or policy was the moving force behind the constitutional violation at issue, or that the injuries
resulted from the execution of the official policy or custom. Doe v. Dallas Indep. Sch. Dist., 153
F.3d 211, 215-16 (5th Cir. 1998), Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167

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(5th Cir. 1997). That is, a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between the municipal
action and the deprivation of federal rights. Board of County Commissioner of Bryan County,
Oklahoma v. Brown, 117 S.Ct. 1382, 1388 (1997). Or, as the Supreme Court most recently
articulated, To satisfy the statute [1983], a municipalitys failure to train its employees in a
relevant respect must amount to deliberate indifference to the rights of persons with whom the
[untrained employees] come into contact. Connick v. Thompson, 131 S. Ct 1350 (2011) Thus,
the required degree of culpability for municipal liability is deliberate indifference to the actual
harms caused by the policy.
4.

No Proof of Deliberate Indifference by Final Policymaker

There is not any serious allegation or evidence that the City through a Final Policymaker
was deliberately indifferent to the rights of George Trammell with regard to any policy or any
widespread, persistent custom of rank-and-file officers employing excessive force against any
suspect. In the absence of such evidence, no claim against the City can be maintained.
The Plaintiff identifies the failure to train officers and supervise officers as the policies at
issue. (Ex. K, Interrogatory No. 14). But, a municipality may be held liable under 1983 for
policies or for failing to adopt a policy only when that failure rises to the level of deliberate
indifference to the need for such a policy. That also applies to allegations of unconstitutional
policies. Given that TCOLE licensing presumes licensees are adequately trained to deal with
usual and recurring situations peace officers face, the City must not be deliberately indifferent to
Constitutional rights for relying on such licensing. Under the deliberate indifference test, a
governmental entity can only be held liable if, in the light of the duties assigned to specific
officers or employees, the need for such a policy is so obvious, and the absence of such a policy

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so likely to result in violations of constitutional rights, that the governmental entities

policymakers can reasonably be said to have been deliberately indifferent to the need for the
policy, or the constitutional infirmity of an existing policy. City of Canton v. Harris, 489 U.S.
378, 389 (1989). Indeed, mere negligence by policymakers in the face of unconstitutional
behavior by municipal employees is insufficient itself to establish municipal liability under
1983. Johnson v. Deep E. Tex. Regional Narcotics Trafficking Task Force, 379 F.3d 293, 309
(5th Cir. 2004), Doe v. Dallas Independent School District, 153 F.3d 211, 217 (5th Cir. 1998). In
this action, there is no evidence the City of Round Rock was deliberately indifferent to citizens
rights, unconstitutional policies, or a need for policies the Plaintiff asserts may have been
required. Nor is there evidence that such policies, or lack thereof was a moving force behind the
alleged constitutional violation.
5.

Plaintiff must and cannot establish a connection between any policy and
injury

In order to satisfy causation for municipal liability, a plaintiff must establish that the
custom or policy was the moving force behind the constitutional violation at issue, or that the
injuries resulted from the execution of the official policy or custom. Doe v. Dallas Indep. Sch.
Dist., 153 F.3d 211, 215-16 (5th Cir. 1998), Spiller v. City of Texas City, Police Dept., 130 F.3d
162, 167 (5th Cir. 1997). That is, a plaintiff must show that the municipal action was taken with
the requisite degree of culpability and must demonstrate a direct causal link between the
municipal action and the deprivation of federal rights. Board of County Commissioner of Bryan
County, Oklahoma v. Brown, 117 S.Ct. 1382, 1388 (1997). Or, as the Supreme Court most
recently articulated, to satisfy the statute [1983], a municipalitys failure to train its employees
in a relevant respect must amount to deliberate indifference to the rights of persons with whom
the [untrained employees] come into contact. Connick v. Thompson, 131 S. Ct 1350 (2011).

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Thus, the required degree of culpability for municipal liability is deliberate indifference to the
actual harms caused by the policy.
Here, the allegations of the Citys liability contained in Plaintiffs pleadings and proof do
not meet the requirements that the city was deliberately indifferent to the precise harm Plaintiffs
claims. Nor is there any proof that a policy or lack of a policy directly caused a constitutional
violation to this Plaintiff. Therefore, Plaintiff has failed to properly allege and prove a claim
against the City and the claims should be dismissed. See: Celotex, 477 U.S. at 325.
B.

The City of Round Rock Has No Liability for Plaintiffs Claims on Facts Here
In order to hold a unit of government like the City of Round Rock, liable for a

Constitutional rights claim under 1983 for the misconduct of one of its employees, the Plaintiff
must first show that a constitutional right was violated. Becerra v. Asher, 105 F.3d 1042, 1048
(5th Cir.), cert. denied, 118 S.Ct. 82 (1997). The lack of a constitutional violation by any
employee in this case proves fatal to Plaintiffs Fourth Amendment claims against the city. Los
Angeles v. Heller, 475 U.S. 796, 798-799 (1986). For a full explanation of why the claims fail
against the officers, see Defendant Fruge, et al.s Motion for Summary Judgment and Krogmann
et. al.s Motion for Summary Judgment.
Subsequent to Heller, different circuits have offered differing interpretations on when an
individual defendants immunity may defeat municipal liability. In Brown v. Lyford, 243 F.3d
185 (5th Cir. 2001), Justice Higginbotham interpreted Heller to mean that if the plaintiff does not
show any violation of his constitutional rights by the individual defendant, then there exists no
liability to pass through to the unit of government. Id. at 191. The Eighth Circuit has interpreted
Heller to mean that the municipality has no liability if there is no constitutional violation by the
individual defendant. Abbott v. City of Crocker, 30 F.3d 994 (8th Cir. 1994); Praprotnik v.

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St. Louis, 798 F.2d 1168, FN3 (8th Cir. 1986). Similarly, the Sixth Circuit determined that Heller
means there are no grounds upon which to impose liability on a municipality unless there is a
constitutional injury by the individual defendant. Doe v. Sullivan County, Tennessee, 956 F.2d
545, 553 (6th Cir. 1992). Similarly, in Mace v. City of Palestine, the Fifth Circuit determined that
where an individual defendants use of force was not objectively unreasonable and he is entitled
to qualified immunity, the city was entitled to summary judgment for Monell claims. 333 F.3d
621, 625 (5th Cir. 2003).
As this authority establishes, the Plaintiffs claims against the City are barred because no
individual defendant violated Mr. Trammells constitutional rights.
VI.
Conclusion
Trammells claims for failure to train and supervise are defeated as a matter of law based
upon the evidence here before the Court. This summary judgment should be granted.
The summary judgment motion of the officers establishes that there is no liability on their
part for any of Plaintiffs claims. Because no individual claims exist, the City cannot have liability
either.
Prayer
Defendant prays the Court grant this Motion in whole or in part and for such other relief at
law or equity to which they may be entitled.

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Respectfully submitted,
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
512/476-4600
512/476-5382 (Fax)
/s/ Mike Thompson, Jr.
By:
Archie Carl Pierce
State Bar No. 15991500
Mike Thompson, Jr.
State Bar No. 19898200
Christopher A. Shuley
State Bar No. 24046839
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of May, 2016, a copy of Defendants Motion was
electronically filed on the CM/ECF system which will automatically serve a Notice of Electronic
Filing on the following attorney of record and I served the foregoing document with attachments
on the following counsel via express delivery:
Casey Law Office, P.C.
Stephen Casey
Casey Law Office, P.C.
595 Round Rock West Drive, Suite 102
Round Rock, Texas 78681

Mike Thompson, Jr.

Mike Thompson, Jr.

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