UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 98-41357
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ISMAEL ARREOLA, JR.; PAMELA CANCINO,
Plaintiffs-Appellants,
VERSUS
ZAPATA COUNTY TEXAS; A.A. FIGUEROA,
Individually and in his Official Capacity
as Employee and/or Agent of Zapata county;
JOSE VILLA REAL, Individually and in his
Official Capacity as Employee and/or Agent
of Zapata County,
Defendants-Appellees.
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Appeal from the United States District Court
For the Southern District of Texas
USDC No. L-96-CV-111
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November 30, 2000
Before: GOODWIN1, GARWOOD and JONES, Circuit Judges.
PER CURIAM:2
1
Circuit Judge of the Ninth Circuit, sitting by designation.
2
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
Plaintiffs Ismael Arreola, Jr. and Pamela Cancino sued Jose Villareal, A.A.
Figueroa, and Zapata County for alleged civil rights violations arising out of an
incident in which Villareal threatened and intimidated the plaintiffs with a gun and
attempted to arrest Arreola. The plaintiffs now appeal the summary judgment for
the County.3 We affirm.
We uphold the grant if the “pleadings, deposition, answers to interrogatories,
and admissions on file, together with affidavits, if any, show that there is no genuine
issue 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 Cowart v. Ingall’s Shipbuilding, 213
F.3d 261 at 263-64.
The plaintiffs challenge the district court’s decision to disregard the affidavits
of Arreola and Michael Brinegar. “Unsupported allegations or affidavit or
deposition testimony setting forth ultimate or conclusory facts and conclusions of
law are insufficient to defeat a motion for summary judgment.” Martin v. John W.
Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). While Arreola’s
47.5.4.
3
The district court resolved the plaintiffs’ claims against Figueroa before trial, and against
Villareal during trial. The appeal does not reach those claims, and the county is the only
remaining defendant.
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affidavit makes broad statements alleging the prevalence of excessive force in
making arrests by officers in Zapata County, and deficiencies in the County’s
training of law enforcement officers, he fails to establish any causal relationship
between these generalities and his claim against the County. Similarly, Brinegar
states his view that the County failed to comply with appropriate practice without
supporting this assertion with specific facts. Brinegar provides no evidence in
support of his opinion. His recital of his personal qualifications as an expert witness
sheds no light on any fact in this case. See Benavides v. County of Wilson, 955 F.2d
968, 973 (5th Cir. 1992) (requiring that assertions by an expert witness cannot be
“uprooted in factual foundation or proven expertise”). There was no error in
disregarding the affidavits of Arreola and Brinegar.
The plaintiffs attempt to impose vicarious liability upon the County because
the county prosecutor had hired Villareal, and retained him as an investigator, after
Villareal had earned a reputation as a beligerant and aggressive bully, who when off
duty, and intoxicated, had fired his county-supplied hand gun at an
individual during a confrontation at a private social affair. Because the events out
of which this claim arose also occurred at a private party, where the off-duty
investigator again produced a weapon and fired at or near the plaintiffs, the plaintiffs
contend that Villareal was acting under color of law and in the course of his
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employment. There was, however, no evidence that Villareal was acting in any
official capacity, but was simply a rogue employee, off duty, intoxicated, and again
misbehaving. There was no error in concluding Villareal was not on duty, and was
not acting in the course or scope of his employment.
We also affirm the summary judgment on the adequacy of the County’s
training policy. The County produced substantial evidence that all employees
received training on the proper use of force and firearms. Although Villareal
himself testified that, as an employee, he did not receive proper training in firearms,
civil rights, and the use of alcohol prior to an earlier shooting incident, in which he
was involved, the plaintiffs did not establish that Villa real’s alleged training
deficiency persisted after the earlier episode. In any event, plaintiffs failed to show
any causal connection between Villareal’s training and supervision while an
employee of the county and Villareal’s conduct as a private citizen when he was off
duty at a private social gathering and not working for the county in any capacity
when the events out of which the claim arose took place.
The plaintiffs have not identified a disputed material fact to support a claim
that the county had a policy or practice which encouraged officers to employ
excessive force while on duty, and clearly nothing to connect the county with
causing Villareal to misbehave while on his own time at a private party.
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Plaintiffs attempted to impose vicarious liability upon the county by proof of
four incidents in three years in which citizens were injured or endangered by
intentional or negligent misconduct of unidentified law enforcement officers. When
officers misbehave while on duty, see Fraire v. City of Arlington, 957 F.2d 1268,
1278 (5th Cir. 1992). See also Brown v. Bryan County, OK, 219 F.3d 450, 474 (5th
Cir. 2000) (“[T]he plaintiff must establish something more than a single instance of
injury or an isolated case of one poorly trained employee.”).
Three of the plaintiffs’ proffered four prior instances of excessive force used
by County sheriff’s officers were of slight relevance in this case because Villareal
had not worked for the sheriff. Villareal’s employment, when he was on duty, was
as an investigator for the prosecuting attorney’s office, not the sheriff. Plaintiffs
offered evidence that Villareal himself had been charged with prior misconduct
involving a firearm, allegedly firing his County-issued gun at one Victor Salinas.
Accordingly, there was some evidence that some branch of County government had
notice of Villareal’s potential for engaging in dangerous misconduct, when off duty.
He had been disciplined, and had returned to duty. But the events leading to this
litigation arose at a private party where Villareal was apparently drinking and
behaving in an irresponsible manner as a private citizen.
The County’s failure to act on its knowledge of prior misbehavior might have
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been relevant in a claim against the County arising out of misconduct on the part of
Villareal in the context of the course of his employment as an investigator for the
prosecuting attorney. However, Villareal was off duty and the employment
relationship was not causally related to the plaintiffs’ injury. See Languirand v.
Hayden, 717 F.2d 220, 226 (5th Cir. 1983) (observing that plaintiffs bringing § 1983
actions alleging police misconduct “must show that the defendant was adequately
put on notice of prior misbehavior”) (citing McClelland v. Facteau, 610 F.2d 693,
697 (10th Cir. 1979)). In one case of an off duty officer
involved in a barroom affray, the Supreme Court determined that certiorari had been
improvidently granted, and dismissed the employer’s petition when it appeared that
the defendant local government had treated the episode as within the scope of
employment and had paid workmen’s compensation benefits to the off duty officer
for injuries he sustained in the affray. See Belcher v. Stengel, et al. 429 U.S. 118
(1988). Plaintiffs have produced no evidence of any linkage between the behavior
of Villareal and his employment.
The three other prior acts of excessive force were committed by Sherriff’s
Office employees while on duty, but there was no evidence that these episodes were
caused by a county-wide failure to train and supervise officers across the payroll of
the County. The relevant § 1983 inquiry need not be restricted to the particular
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office in which the alleged violation took place, but for the purpose of holding the
County liable for misconduct of an employee or a former employee, the plaintiff
must show some causal connection between the employment and the injury.
The summary judgment in favor of the County is
AFFIRMED
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