UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40037
Summary Calendar
PRIMITIVO RAMIREZ, LIBRADA G. RAMIREZ,
and MICHELLE RAMIREZ, by and through
her Next Friend, PRIMITIVO RAMIREZ,
Plaintiff-Appellants,
versus
CITY OF ROBSTOWN, TEXAS, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(CA-C-93-42)
(August 30, 1995)
Before POLITZ, Chief Judge, GARWOOD and STEWART, Circuit Judges.
POLITZ, Chief Judge:*
Primitivo Ramirez, individually and on behalf of the minor
Michelle Ramirez, and Librada G. Ramirez appeal an adverse grant of
summary judgment in their 42 U.S.C. § 1983 action against the City
of Robstown, Texas, and several city and state law enforcement
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
officers. Finding no error, we affirm.
Background
On July 1, 1991 Sergeant J.B. Talley of the Robstown Police
Department received information from a confidential informant that
a man named Arturo Ramirez possessed heroin and cocaine papers and
had been seen at a local residence on Ohio Street. Jorge-Luis
Aguilar, an agent with the Texas Department of Public Safety, drove
the informant by the residence to confirm information for a
warrant. Talley completed an affidavit based on the information
thus acquired and a search and arrest warrant was issued. The
warrant described the premises and authorized a search of 1010 Ohio
Street, rear. The residence, however, where Arturo Ramirez's
parents lived, backs up to Ohio Street but faces and has the
address 1013-B Indiana Street. There is another residence within
the enclosing fence which bears the 1010 Ohio Street address, and
the agent wrongfully assumed that the Ramirez house to the rear
thereof was 1010 Ohio Street, rear.
Arturo's parents, Primitivo and Librada Ramirez, were at home
with their minor granddaughter Michelle when the warrant was
executed by Talley, Aguilar, and city police officers Julian
Olivera, Noe Garza, and Albert Garcia. At the beginning of the
search, Olivera pointed a gun at Primitivo, pushed him down on the
bed, and placed him in handcuffs. The cuffs were removed about 10
minutes later at Primitivo's request. Primitivo sustained no
bumps, bruises, or cuts. An officer entered Michelle's room and
briefly pointed a gun at her while she followed his instructions to
2
close her curtains; the officer did not touch Michelle. Librada
testified that the officers did not harm or hurt her, or treat her
roughly in any way. The Ramirezes suffered only mild distress as
a result of the search.1 Arturo was not found on the premises.
Pertinent to the present appeal, the instant action was filed
against the City of Robstown, Garza, Garcia, Olivera, Talley, and
Aguilar, alleging, inter alia, a claim under 42 U.S.C. § 1983 for
fourth amendment violations based on an invalid warrant and the
excessive use of force.2 The district court granted summary
judgment for the defendants on these claims, determining that there
had not been an unlawful entry and that the police officers were
entitled to qualified immunity on the excessive use of force claim.
The court dismissed the claims against the City of Robstown,
finding that no constitutional rights had been violated. The
Ramirezes timely appealed.
Analysis
We review the grant of summary judgment de novo.3 The
Ramirezes assert that the court erred in dismissing their unlawful
entry claim, alleging first that the search warrant was based on
1
Injuries included Primitivo's fright, nervousness, and
embarrassment during the search, and the fleeting pain in his arms
while handcuffed and briefly restrained; Librada's continuing
agitation; and Michelle's fright, nightmares, and distrust of
police officers.
2
The court also granted summary judgment on the Ramirez's
claims under 42 U.S.C. §§ 1981, 1985, and 1986; alleged violations
of substantive due process; equal protection; and state law
defamation and negligent infliction of emotional distress.
3
Davis v. Parker, 58 F.3d 183 (5th Cir. 1995).
3
unreliable, unverified information. Looking to the totality of the
circumstances,4 we conclude that the affidavit upon which the
search warrant was based was not simply a "barebones" affidavit.
The affidavit demonstrated the informant's veracity by attesting
that within the previous six month period the informant had given
the affiant true and correct information leading to the arrest of
drug dealers.5 The affidavit was based on the informant's personal
knowledge and adequately demonstrated a basis for such knowledge.6
The warrant properly issued.
The Ramirezes also contend that the warrant was facially
defective. The warrant misstated the Ramirez address but by
reference to the affidavit described their residence with
sufficient particularity as follows:
A building used as a dwelling in the 1000 block of
Ohio Street, Robstown, Nueces County, Texas. The
dwelling is on the southside of Ohio Street facing North.
The dwelling is white in color. The dwelling is on the
same lot with a dwelling that is beige in color with
brown trim and this dwelling has the numbers 1010 on the
front of the dwelling. The suspect dwelling is southwest
of 1010 Ohio Street, Robstown, Texas. The address to
1010 Ohio Street, rear, Robstown, Nueces County, Texas to
include the dwellings surroundings curtlidge [sic] and
vehicle(s) on property.
The record is devoid of any evidence which would indicate that
the officers knew or should have known that the Ramirez residence
4
United States v. Fisher, 22 F.3d 574 (5th Cir.) (explaining
that sufficiency of affidavit determined by looking to totality of
circumstances including confidential informant's veracity,
reliability, and basis of knowledge), cert. denied, 115 S.Ct. 529
(5th Cir. 1994).
5
United States v. Laury, 985 F.2d 1293 (5th Cir. 1993).
6
Fisher.
4
-- set off slightly from 1010 Ohio Street and located within the
same chain link fence -- would have a different address.7 Further,
inasmuch as Sergeant Aguilar accompanied the confidential informant
to the residence and was one of the officers executing the warrant,
"there was no possibility the wrong premises would be searched."8
The Ramirezes next challenge the district court's ruling that
the officers were entitled to qualified immunity on the excessive
use of force claim. Our review of the record convinces us that a
jury could not have concluded that there was anything more than a
de minimus use of force.9 Neither the brief pointing of a gun at
Primitivo or Michelle,10 the temporary handcuffing of Primitivo, nor
any other actions taken during the search were, under the
circumstances, clearly excessive to the need for such actions.11
7
Maryland v. Garrison, 480 U.S. 79 (1987); Richardson v.
Oldham, 12 F.3d 1373 (5th Cir. 1994).
8
United States v. Gordon, 901 F.2d 48, 50 (5th Cir.)
(upholding validity of warrant where executing officer was also the
affiant) (quoting United States v. Burke, 784 F.2d 1090, 1093 (11th
Cir.), cert. denied, 476 U.S. 1174 (1986)), cert. denied, 498 U.S.
981 (1990).
9
See Knight v. Caldwell, 970 F.2d 1430 (5th Cir. 1992)
(explaining that de minimus uses of physical force not entitled to
constitutional protection), cert. denied, 113 S.Ct. 1298 (1993).
10
See Hinojosa v. City of Terrell, Tex., 834 F.2d 1223 (5th
Cir. 1988) (finding no evidence that officers' pointing of gun was
grossly disproportionate to need for action), cert. denied, 493
U.S. 822 (1989).
11
A plaintiff can prevail on a constitutional excessive force
claim only by proving (i) an injury; (ii) resulting directly and
only from the use of force that was clearly excessive to the need;
and (iii) the excessiveness was objectively unreasonable. See
Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989), abrogated by Harper
v. Harris County, Tex., 21 F.3d 597 (5th Cir. 1994). Although
Johnson originally required a showing of significant injury, this
5
The officers were entering an unknown dwelling and did not know
what or who they would encounter there; they confronted the
situation with a minimal amount of force. The fact that the
Ramirezes suffered only the mildest of injuries as a result of the
search further persuades us that any use of force was not
constitutionally excessive.12 Accordingly, the court did not err
in determining that the defendants were entitled to qualified
immunity.13
The Ramirezes finally challenge the dismissal of their claims
against the City of Robstown. A city cannot be held liable under
section 1983 unless a constitutional violation was caused by an
official policy or custom.14 Because no constitutional rights were
violated, the claims against the city were dismissed properly.
The judgment of the district court is AFFIRMED.
requirement was overruled by the Supreme Court in Hudson v.
McMillian, 503 U.S. 1 (1992). See Harper.
12
See Knight; Norman v. Taylor, 25 F.3d 1259, 1262 (4th Cir.
1994) (reading Hudson to hold that "de minimus injury can serve as
conclusive evidence that de minimus force was used."); Moore v.
Holbrook, 2 F.3d 697 (6th Cir. 1993).
13
An official is entitled to qualified immunity unless he has
violated a clearly established constitutional right, and his
behavior, judged by the law at the time of the incident, was not
objectively reasonable. Spann v. Rainey, 987 F.2d 1110 (5th Cir.
1993).
14
See Monell v. Dept. Social Services of New York, 436 U.S. 658
(1978).
6