IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 4, 2008
No. 07-50921 Charles R. Fulbruge III
Clerk
ANDRES ROBERTO CANO
Plaintiff-Appellant
v.
BEXAR COUNTY, TEXAS
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas, San Antonio
USDC No. 05-CA-454
Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant Andres Roberto Cano, proceeding pro se, appeals the district
court’s grant of summary judgment in favor of Bexar County, with respect to his
civil rights suit brought pursuant to 42 U.S.C. § 1983. Finding no error, we
affirm.
I. BACKGROUND
On May 21, 2003, Cano was driving on Highway 90 in San Antonio and
became involved in a “road rage” incident with another driver named Danny
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-50921
Campos. Both drivers exited the highway and pulled into a parking lot.
Sergeant Amerson of the Bexar County Sheriff’s Office observed Cano exit his
vehicle and approach Campos’s vehicle. Cano and Campos became involved in
a physical altercation. Sergeant Amerson approached them and, along with
three other Bexar County Sheriff’s Deputies, stopped the fight. While arresting
Cano, Sergeant Amerson struck Cano with his armament systems and
procedures baton (“ASP baton”). Cano was taken to the hospital and then to jail.
Cano was charged in Bexar County state court with misdemeanor assault
with bodily injury, and a jury found him guilty of assaulting Campos. He was
sentenced to 180 days in county jail, probated for 12 months, and fined $350.
His conviction was affirmed on appeal. Cano v. State of Texas, 2006 WL 47042
(Tex.App.–San Antonio Jan. 11, 2006) (unpublished), cert. denied, 127 S.Ct. 1822
(2007).
In May of 2005, Cano filed pro se the instant civil rights action in federal
district court, alleging, inter alia, use of excessive force, failure to train, and false
arrest. Cano alleged $7.5 million dollars in compensatory damages. The district
court granted his motion to proceed in forma pauperis but denied his motion for
appointment of counsel. The only defendant in this suit is Bexar County.
Cano filed a motion for judgment on the pleadings and both parties filed
a motion for summary judgment. The magistrate judge filed a 45-page report
recommending that Bexar County’s motion for summary judgment be granted
with respect to all of Cano’s claims. The magistrate judge also recommended
denying all of Cano’s pending motions. Cano filed objections to the report and
recommendation. In a 32-page order, the district court adopted the report and
recommendation and granted Bexar County’s motion for summary judgment.
Cano filed a timely notice of appeal.
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No. 07-50921
II. ANALYSIS
A. STANDARD OF REVIEW
We review the district court's grant of judgment as a matter of law de
novo, applying the same standard as the district court. Sobley v. Southern
Natural Gas Co., 210 F.3d 561, 563 (5th Cir. 2000). Judgment as a matter of law
is appropriate if “there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1). This Court
“must draw all reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
B. EXCESSIVE FORCE
Cano contends that Sergeant Amerson’s use of the ASP baton constituted
excessive force. In order for a municipality to be held liable pursuant to 42
U.S.C. § 1983, it must be established that a municipal policy or custom caused
a constitutional violation. Leatherman v. Tarrant County Narcotics Unit, 113
S.Ct. 1160, 1162 (1993). In an attempt to show such a policy, in his brief Cano
contends that the Manual of Policy and Procedure of the Bexar County Sheriff’s
Office advises: “the use of force even though there is no need for force and
a Deputy is not in danger.” (emphasis in brief). First, the purported quote
is a paraphrase and the excerpt is misleading. Section 9.02D actually provides
that:
Officers may use reasonable force to overcome resistance to the
lawful performance of duties, even though there is no immediate or
apparent danger calling for self-defense. However, officers must be
acting within the scope of their official authority. Every reasonable
opportunity to comply with the request for cooperation must be
given to the person and force used only after all other reasonable
means have failed to produce compliance.
Moreover, the manual of policy and procedure also provides that: “It is the
general policy of the Department that the use of force by an officer should be
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No. 07-50921
only that amount and degree of force which is reasonable and necessary, under
the circumstances, to perform a specific duty. . . .” § 9.02A. Section 9.02B
further provides that:
In each instance of the use of force, the officer should exhaust every
reasonable means of employing the minimum amount of force to
effect an objective before escalating to the next, more forceful
method. However, an officer is not required to engage in prolonged
combat or struggle rather than resorting to that method which will
most quickly and safely bring the situation under control.
In light of the above language, we reject Cano’s claim that Bexar County had a
formal policy for its officers to use excessive force.
Nonetheless, a municipality “may be sued for constitutional deprivations
visited pursuant to governmental ‘custom’ even though such a custom has not
received formal approval through the body’s official decisionmaking channels.”
Monell v. Dept. of Soc. Serv., 436 U.S. 658, 691-92 (1978). Attempting to
demonstrate such a custom, Cano submitted newspaper articles describing
incidents involving the Bexar County Sheriff’s Office. Newspaper articles,
however, are hearsay and therefore do not constitute competent summary
judgment evidence. Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir.
2005).
Additionally, Cano submitted evidence of internal affairs investigations
with respect to the Bexar County Sheriff’s deputies dated from 1990 to after the
instant incident. Of course, the investigations subsequent to the instant incident
are not relevant because such incidents “could not have informed [Bexar]
County’s judgment” with respect to the instant claim. Barkley v. Dillard
Department Stores, 2008 WL 1924178 (5th Cir. May 2, 2008) (unpublished).
Further, this Court has explained that the “plaintiff must demonstrate at least
a pattern of similar incidents in which the citizens were injured.” Estate of
Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir.
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No. 07-50921
2005) (internal quotation marks and footnote omitted). “Prior indications cannot
simply be for any and all ‘bad’ or unwise acts, but rather must point to the
specific violation in question.” Id. (footnote omitted). Thus, the internal affairs
investigations that did not involve claims of excessive force are not relevant.
After winnowing out the irrelevant internal affairs investigations, we are left
with less than a dozen claims of excessive force during a 15-year time frame.
None of which were found to have merit. We have held that evidence of eleven
instances of purportedly unconstitutional conduct in a large metropolitan police
force was insufficient to create a fact issue regarding a pattern of illegality that
would constitute an unwritten municipal custom. See Pineda v. City of Houston,
291 F.3d 325, 329 (5th Cir. 2002) (involving warrantless searches). We therefore
conclude that the evidence of internal affairs investigations fails to create a fact
issue with respect to a pattern of use of excessive force in the instant case.1
Cano also submitted an affidavit executed by a member of the San Antonio
Police Department, Sergeant Rakun. In his affidavit, Sergeant Rakun opined
that he had investigated the instant use of force and concluded that Sergeant
Amerson used excessive force on Cano. Even assuming for purposes of this
appeal, that Cano was the victim of excessive force in this instance, he has failed
to make a sufficient showing that there was a persistent pattern or custom
excessive force. See Pineda, 291 F.3d at 329 (explaining that “one act is not itself
a custom” and “[t]here must be a persistent and widespread practice”) (internal
quotation marks and footnote omitted). The district court properly granted
summary judgment with respect to Cano’s claim of excessive force.2
1
Cano also contends that although the Bexar County Sheriff’s Office found that none
of the citizen’s complaints were meritorious from 2000-2003, a nationwide study indicates that
12 percent of excessive force claims are found to be meritorious. This statistic does not
demonstrate a pattern of use of excessive force by Bexar County deputies.
2
Because Cano has failed to demonstrate a pattern of excessive force, his claim that
the Sheriff had a custom of failing to discipline deputies for use of excessive force also fails.
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No. 07-50921
C. FAILURE TO TRAIN OFFICERS
Cano next claims that the Sheriff’s Office failed to train its officers in the
use of the ASP baton and that failure caused his injury. To succeed on this
claim, Cano must show that “(1) the supervisor either failed to supervise or train
the subordinate official; (2) a causal link exists between the failure to train or
supervise and the violation of the plaintiff’s rights; and (3) the failure to train or
supervise amounts to deliberate indifference.” Smith v. Brenoettsy, 158 F.3d
908, 911-12 (5th Cir. 1998).
The Sheriff’s Office provided an affidavit executed by Deputy Chief Ian
Lovestock, who is the Director of the Bexar County Sheriff’s Office’s Training
Academy. The affidavit provides that all deputies must hold the basic peace
officer license and that training for such license is regulated by the State of
Texas. There are also continuing education requirements mandated after an
officer obtains a peace officer license. The Bexar County Sheriff’s Office’s
Training Academy is in operation year round and offers over 100 different
classes. There is training in “use of force” and instructions that prohibit
excessive force. The deputies are also required to take the ASP baton
certification course.
Additionally, the Sheriff’s Office submitted the course materials for the
ASP baton certification course. The Sheriff’s Office also submitted the
academy’s training log, which provides the classes taught, the number of
students and the hours training received.
Nonetheless, Cano contends that the training is deficient because it does
not instruct “when the weapon can be directed at vital bodily areas.” Supervisor
liability under § 1983 requires a showing of the supervisor’s “deliberate
indifference to the known or obvious fact that such constitutional violations
would result” and “[t]hat generally requires that a plaintiff demonstrate at least
a pattern of similar violations.” Johnson v. Deep East Texas Regional Narcotics,
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No. 07-50921
379 F.3d 293, 309 (5th Cir. 2004) (internal quotation marks and citation
omitted). Accordingly, even assuming for purposes of this appeal that there is
a fact issue as to the first and second requirements listed above, there is no
showing of a pattern of injuries inflicted by the incorrect use of the ASP baton.
The district court properly granted summary judgment on this claim.
D. FALSE ARREST
Cano also brought a false arrest claim, asserting there was a pattern and
practice of Fourth Amendment violations. Bexar County responds that Heck v.
Humphrey, 512 U.S. 477 (1994), bars Cano’s claim for false arrest. Heck teaches
that in a § 1983 action, if “a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence . . . the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.” Id. at 487. Cano’s conviction was affirmed on
direct appeal, and he makes no assertion that it has been invalidated in a post-
conviction proceeding.
Although there are circumstances in which false arrest claims would not
necessarily imply the invalidity of a conviction, see Mackey v. Dickson, 47 F.3d
744, 746 (5th Cir. 1995), that is not true here. In this case, Deputy Amerson
arrested Cano based on his observations of Cano’s interaction with the victim of
the assault. In other words, Cano’s conduct that gave rise to probable cause to
arrest is also the conduct that forms the basis of his conviction. Therefore,
because a judgment in favor of Cano would necessarily imply the invalidity of his
assault conviction, Heck bars this claim.
E. APPOINTMENT OF COUNSEL
Cano next argues that the district court erred in denying him appointed
counsel. In general, there is no right to counsel in a § 1983 case. However, a
district court has the discretion to appoint counsel if it would advance the proper
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No. 07-50921
administration of justice. 28 U.S.C. § 1915; Ulmer v. Chancellor, 691 F.2d 209,
213 (5th Cir. 1982). A district court is not required to appoint counsel in a §
1983 case unless exceptional circumstances are shown. Ulmer, 691 F.2d at 212.
In determining whether such circumstances exist, we look to the complexity of
the case and the abilities of the plaintiff. Branch v. Cole, 686 F.2d 264, 266 (5th
Cir. 1982). In the case at bar, we are not persuaded that exceptional
circumstances have been shown. Thus, the district court did not abuse its
discretion in refusing to appoint counsel.
Cano also challenges other actions or omissions on the part of the district
court, including granting Bexar County a continuance, failure to hold a hearing,
and evidentiary challenges. We have reviewed the record and concluded that
Cano has failed to show that the district court abused its discretion.
III. CONCLUSION
For the above reasons, we AFFIRM the district court’s grant of summary
judgment.
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