Opinion filed July 15, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00266-CV
__________
PETER KLASSEN, Appellant
V.
GAINES COUNTY, TEXAS, AND GAINES COUNTY DEPUTY
SHERIFFS KEN KETRON AND CLINT LOW, Appellees
On Appeal from the 106th District Court
Gaines County, Texas
Trial Court Cause No. 19-08-18199
MEMORANDUM OPINION
This is an appeal from an order granting a Rule 91a motion to dismiss and
alternative motion for summary judgment. See TEX. R. CIV. P. 91a. Peter Klassen,
Appellant, sued Appellees Gaines County and two Gaines County deputy sheriffs,
Ken Ketron and Clint Low (collectively referred to as Appellees).1 Klassen alleged
that Deputy Ketron and Deputy Low used excessive force against him, resulting in
1
Klassen also sued Wallach Construction/PB Materials Holding Inc. as well as Tyler Wallach,
Johnny Neufeld, and Walter Ziemann personally. However, they are not parties to this appeal, and their
claims are not relevant to our analysis of the issues presently before us. Therefore, we focus solely on the
claims against Gaines County, Deputy Low, and Deputy Ketron.
serious bodily injury. Appellees filed a Rule 91(a) motion to dismiss and alternative
motion for summary judgment, which the trial court granted.
On appeal, Klassen contends that (1) the trial court erred in granting
Appellees’ motion because there was a basis in law and fact for his § 1983 claim,
(2) the trial court erred in ruling that no excessive force was used against him by
Appellees, (3) the trial court erred in failing to consider his expert’s opinion, and
(4) the trial court erred in granting Appellees’ motion to dismiss because Gaines
County is responsible for the deprivation of Appellant’s rights. We affirm.
Background Facts
Deputy Ketron and Deputy Low responded to 9-1-1 calls concerning an
escalating dispute between Klassen and Tyler Wallach, Johnny Neufeld, and Walter
Ziemann—three men from a construction company with whom Klassen entered into
a business transaction. When Deputies Low and Ketron arrived at the scene, the
three men gave the deputies their account of what had happened, informing the
deputies that Klassen had assaulted them and threatened to go get a gun. As Klassen
exited the office, the deputies instructed Klassen to put his hands up, turn around,
and get on the ground. Klassen placed his hands in the air, turned around, and knelt
on the ground. Deputy Ketron then attempted to move Klassen into a prone position,
but Klassen placed his hands on the ground as he was falling down. Officer Ketron
then used his body weight against Klassen to move Klassen into a prone position.
This caused Klassen to strike his chin on the ground, knocking out several teeth and
breaking his jaw. 2
Klassen sued Appellees under various state and federal tort causes of
action. Gaines County filed a motion to dismiss Deputies Ketron and Low from
Klassen’s state law claims under the election of remedies provision of the Texas Tort
We also note that, after the deputies observed Appellant’s injury, they called EMS to come
2
check on Klassen, even though Klassen stated that he did not need medical assistance.
2
Claims Act (TTCA), which the trial court granted. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.106(e) (West 2019). Appellees also filed a motion for summary
judgment, contending that the remaining federal claims against Deputies Ketron and
Low and state law claims against Gaines County should be dismissed. The trial
court granted the motion, leaving only the federal claims to remain against Gaines
County. Thereafter, Klassen filed a second amended petition against Gaines County,
Deputy Low, and Deputy Ketron. This petition was virtually the same as Klassen’s
original and first amended petitions, except that Klassen also alleged that dismissing
Deputies Ketron and Low was “legally incorrect” and attached as exhibits transcripts
of the 9-1-1 calls, a portion of the summary judgment hearing, and an expert’s
opinion that the force was indeed excessive. In response to Klassen’s second
amended petition, Appellees filed a Rule 91a motion to dismiss and alternative
motion for summary judgment. The trial court granted the motion, dismissing with
prejudice all remaining claims against Appellees. This appeal followed.
Standard of review
In order to determine the appropriate standard of review, we first note the
evidentiary limitations imposed on both Rule 91a motions and motions for summary
judgment. Generally, Rule 91a provides for the dismissal of baseless causes of
action that have no basis in law or fact on motion and without evidence. TEX. R.
CIV. P. 91a.1, a.6. The trial court must decide a Rule 91a motion based solely on the
pleading of the cause of action, together with any exhibits permitted by Rule 59. Id.
R. 91a.6; see TEX. R. CIV. P. 59. In contrast, a court’s duty in ruling on a motion for
summary judgment is to “examine the entire record in the light most favorable to
the nonmovant.” Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782
(Tex. 2007) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)).
Here, Appellees filed a Rule 91a motion to dismiss that alternatively requested
summary judgment on the same grounds. The trial court’s order granting Appellees’
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motion expressly stated, “[a]fter examining the pleadings, the Court’s file and
previous holdings, of which the Court took judicial notice, the motions before the
Court, including any responses thereto, together with applicable authorities, the
Court determined that Defendants Gaines County, Texas, Ken Ketron, and Clint
Low are entitled to the relief requested.” This statement clearly indicates that the
trial court considered evidence beyond the pleadings, which it could only do if it
granted summary judgment, not a Rule 91a motion. See TEX. R. CIV. P. 91a.6.
Accordingly, we treat the trial court’s order as granting Appellees’ alternative
motion for summary judgment.
“We review the trial court’s grant of summary judgment de novo.” Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). However, a trial court’s decision
to exclude or admit summary judgment evidence is reviewed for an abuse of
discretion. Id. (citing Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex.
2017)). An abuse of discretion exists only when the court’s decision is made without
reference to any guiding rules and principles. U-Haul Int’l, Inc. v. Waldrip, 380
S.W.3d 118, 132 (Tex. 2012). “An appellate court must uphold the trial court’s
evidentiary ruling if there is any legitimate basis for the ruling.” Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). When the trial court’s
order does not specify the grounds for its summary judgment, we will affirm it if any
of the theories are meritorious. Knott, 128 S.W.3d at 216.
A party moving for traditional summary judgment bears the burden of proving
that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508
S.W.3d 254, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a
defendant must conclusively negate at least one essential element of the cause of
action being asserted or conclusively establish each element of an affirmative
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defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Evidence is conclusive only if reasonable people could not differ in their
conclusions. City of Keller, 168 S.W.3d at 816. If the movant initially establishes a
right to summary judgment on the issues expressly presented in the motion, then the
burden shifts to the nonmovant to present to the trial court any issues or evidence
that would preclude summary judgment. See City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).
In reviewing both traditional and no-evidence summary judgments, we
consider the evidence in the light most favorable to the nonmovant, indulging every
reasonable inference in favor of the nonmovant and resolving any doubts against the
movant. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); City of
Keller, 168 S.W.3d at 824.
Analysis
I.A. Relevance of Rule 91a Contentions
In his first issue on appeal, Klassen contends that the trial court erred in
granting Appellees’ Rule 91a motion to dismiss because there was both a basis in
law and fact for his claims against Gaines County, Deputy Ketron and Deputy Low.
With the exception of the following TTCA discussion, the entirety of Klassen’s first
issue focuses on the pleading requirements under a Rule 91a motion to dismiss.
However, because we interpret the court’s order as granting the defendant’s
alterative motion for summary judgment, whether Klassen’s second amended
petition sufficiently demonstrated a basis in law and fact under a Rule 91a motion is
irrelevant to our analysis.
I.B. Texas Tort Claims Act
Klassen also asserts in his first issue that the trial court erred in dismissing the
case based on the TTCA because the Act does not apply to Klassen’s federal
excessive force claim. While Klassen is correct in stating that the TTCA does not
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apply to federal claims, he misinterprets the trial court’s holdings. The trial court
initially held that the election of remedies provision of the TTCA only bars Klassen’s
state law claims against Deputies Ketron and Low. As such, the trial court ordered
that “all state law claims filed against Defendants Ken Ketron and Clint Low be
dismissed with prejudice pursuant to Section 101.106(e) of the Texas Civil Practice[]
and Remedies Code” (emphasis added). Moreover, there is no evidence that the trial
court dismissed Klassen’s federal claims against Gaines County based on the
governmental immunity granted to it by the TTCA. 3 Klassen’s federal claims
remained wholly unaffected by the court’s application of the TTCA. We overrule
Klassen’s first issue.
II.A. Excessive Force Claim
In his second issue on appeal, Klassen contends that he sufficiently alleged
and proved a constitutional violation of his right to be free from excessive force.
While Klassen also phrases his second issue to primarily address Appellees’
Rule 91a motion instead of their alternative motion for summary judgment, Klassen
expressly asserts that “[t]he trial court erred when it ruled that there was not
excessive force by the Appellees.” The only instance in which the trial court
expressly held that the amount of force used was reasonable and not excessive under
the circumstances was in the first summary judgment hearing. Thus, we interpret
Klassen’s second issue as attacking the trial court’s initial ruling that the force was
not excessive.
Generally, a party may bring an excessive-force claim under the Fourth or
Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 394 (1989).
Where, as here, the excessive force claim arises in the context of
an arrest or investigatory stop of a free citizen, it is most properly
3
Because Klassen does not contend on appeal that the trial court erred in dismissing any or all of
the state law claims against Appellees, we decline to discuss whether the TTCA properly bars Klassen’s
state law claims. Although, a brief review of the TTCA plainly shows that Klassen’s state law claims were
properly dismissed. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.057, .106(e) (West 2019).
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characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right “to be secure in their
persons . . . against unreasonable . . . seizures” of the person.
Id. (alterations in original) (quoting U.S. CONST. amend IV). To establish a Fourth
Amendment excessive-force claim, a plaintiff must “show that [he] suffered (1) an
injury that (2) resulted directly and only from the use of force that was excessive to
the need and that (3) the force used was objectively unreasonable.” Flores v. City
of Palacios, 381 F.3d 391, 396 (5th Cir. 2004). Here, the parties primarily dispute
the third element. Accordingly, we focus our analysis on whether Appellees met
their summary judgment burden to conclusively prove that the force used was not
objectively unreasonable.
Determining whether the force used was objectively unreasonable “‘requires
careful attention to the facts and circumstances of each particular case, including’
(1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect poses an immediate
threat to the safety of the officers or others,’ and (3) ‘whether he is actively resisting
arrest or attempting to evade arrest by flight.’” Trammell v. Fruge, 868 F.3d 332,
340 (5th Cir. 2017) (quoting Graham, 490 U.S. at 396). Although this determination
requires careful attention to the facts and circumstances of the case, “when facts are
undisputed and no rational factfinder could conclude that the officer acted
unreasonably, [a court] can hold that an officer acted reasonably as a matter of law.”
Lytle v. Bexar Cty., Tex., 560 F.3d 404, 412 (5th Cir. 2009); see Scott v. Harris, 550
U.S. 372, 381, n.8 (2007) (“At the summary judgment stage, . . . once we have
determined the relevant set of facts and drawn all inferences in favor of the
nonmoving party to the extent supportable by the record, . . . the reasonableness of
[the defendant’s] actions . . . is a pure question of law.” ).
Klassen contends that the deputies brutally attacked him, threw him “to the
ground violently,” and then “jumped on his back and handcuffed him.” In these
types of cases, we are usually required to adopt the plaintiff’s version of the facts.
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See Scott, 550 U.S. at 380. However, this general rule may change if the record
contains video evidence capturing the events. See id. When the record contains
video evidence of the events and “opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.” Id.
Here, the video evidence plainly shows that, after the deputies ordered
Klassen to get on the ground, Klassen began to kneel. Deputy Ketron placed his
hands on Klassen’s back to move Klassen into a prone position. As Klassen was
moving forward, Klassen placed his hands out in front of him. Deputy Ketron then
used his body weight to secure Klassen on the ground and handcuff him. No
reasonable person could, after viewing the video recording of the incident, find that
Deputy Ketron threw Klassen to the ground or jumped on Klassen’s back to
handcuff him. Therefore, we “view[] the facts in the light depicted by the
videotape.” Id. at 381. In this light, we cannot hold that Deputy Ketron’s conduct
was objectively unreasonable.
Moreover, Deputies Ketron and Low arrived at the scene after being advised
that Klassen had assaulted other individuals by hitting them and throwing chairs at
them, had threatened to get a gun, and had prevented some of the other individuals
from leaving for a period of time. We do not consider whether Klassen actually had
a gun on his person, or even threatened to get a gun, because the reasonableness of
an officer’s conduct is determined “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.” Lytle, 560 F.3d at 412
(quoting Graham, 490 U.S. at 396). From the deputies’ viewpoint, it was objectively
reasonable for them to assume that Klassen may have been armed and dangerous
when approaching him. Finally, Deputy Ketron only used his body weight against
Klassen for just enough time to handcuff him, lasting only a few seconds. Based on
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the record, we conclude that Appellees conclusively proved that Deputy Ketron’s
conduct was neither objectively unreasonable nor excessive.
II.B. Qualified Immunity
Regardless, the trial court did not err in dismissing Deputies Ketron and Low
because Klassen failed to rebut Appellees’ assertion of qualified immunity.
“[O]fficers are entitled to qualified immunity under [42 U.S.C.] § 1983 unless
(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness
of their conduct was ‘clearly established at the time.’” District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 556 U.S. 658, 664
(2012)). Generally, “‘[a] good-faith assertion of qualified immunity alters the usual
summary judgment burden of proof,’ shifting it to the plaintiff to show that the
defense is not available.” Valencia v. Davis, 836 F. App’x 292, 297 (5th Cir. 2020)
(quoting Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)). To rebut the
defense, a plaintiff must establish “that the official’s allegedly wrongful conduct
violated clearly established law and that genuine issues of material fact exist
regarding the reasonableness of the official’s conduct.” Id. (quoting King v.
Handorf, 821 F.3d 650, 654 (5th Cir. 2016)).
Assuming arguendo that the deputies violated a federal statutory or
constitutional right, Klassen does not cite to any relevant case law indicating that the
law was clearly established with regard to whether the conduct at issue was unlawful.
Under the second prong of this test, it is the plaintiff’s burden to find a case in his
favor that “defines the contours of the right in question with a high degree of
particularity.” Id. (quoting Delaughter v. Woodall, 909 F.3d 130, 139 (5th Cir.
2018)). “For example, the plaintiff’s burden at step two is not satisfied by broadly
stating that ‘citizens are protected against unjustified, excessive police force.’” Id.
(quoting Cass, 814 F.3d at 732); see also City of Escondido, Cal. v. Emmons, 139
S. Ct. 500, 503 (2019) (“The Court of Appeals should have asked whether clearly
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established law prohibited the officers from stopping and taking down a man in these
circumstances[,] [i]nstead [of] saying only that the ‘right to be free of excessive
force’ was clearly established.”).
Klassen relies upon Harris County v. Nagel for the assertion that “cases
clearly established that officers use excessive force if they apply significant pressure
to a person who is hogtied.” 349 S.W.3d 769, 785 (Tex. App.—Houston [14th Dist.]
2011, pet. denied). However, Nagel and the cases of other jurisdictions relied upon
by Nagel are patently distinguishable from the facts before us. See generally id.
Here, Klassen was not hogtied, incapacitated, or in any way subdued before
Deputy Ketron used his body weight to place Klassen in a prone position. Once
Deputy Ketron was able to put handcuffs on Klassen, the use of force ceased.
Moreover, the deputies had reason to believe that Klassen had just been involved in
an assault, would not let certain individuals leave the premises, and was potentially
armed. See Valencia, 836 F. App’x at 297 (holding that the defendant failed to show
clearly established law that prohibited an officer’s use of force where the defendant
was unrestrained at the time of force and the officers were informed that the
defendant had been involved in a bar fight and was possibly armed). Absent any
authority clearly indicating that such facts are unlawful, Klassen fails to rebut the
second prong of the qualified immunity test, and we hold that the trial court did not
err in dismissing all claims against Deputies Ketron and Low. We overrule
Klassen’s second issue on appeal.
III. Exclusion of Evidence
In his third issue on appeal, Klassen contends that the trial court erred when it
did not consider his expert’s report/opinion, which Klassen contends would have
created a material fact issue as to whether Deputy Ketron’s use of force was
excessive or objectively unreasonable. We disagree.
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Klassen did not offer the opinion of his expert as summary judgment evidence.
The expert’s opinion was not attached to Klassen’s response to Appellees’ motion
for summary judgment. See TEX. R. CIV. P. 166a(c). Therefore, any failure by the
trial court to consider the opinion of Klassen’s expert as summary judgment
evidence was not erroneous. To the extent that Klassen contends the trial court erred
in failing to consider the expert’s opinion when the court considered the Rule 91a
motion, the trial court’s failure to consider such evidence was proper. Pursuant to
Rule 91a.6, a court “may not consider” such evidence when ruling on a Rule 91a
motion. TEX. R. CIV. P. 91a.6. We overrule Klassen’s third issue.
IV. Failure to Train
In his fourth issue on appeal, Klassen contends that the trial court erred in
granting the defendant’s Rule 91a motion and alternative motion for summary
judgment in favor of defendant Gaines County because the evidence supports a
finding that Gaines County failed to adequately train Deputies Ketron and Low with
regard to the use of force. We disagree.
Klassen correctly notes that, although qualified immunity may shield
Deputies Ketron and Low from liability, a state or municipality enjoys no protection
based on the qualified immunity of its officials or employees; the doctrine of
qualified immunity only applies to “individuals.” See Alberti v. Sheriff of Harris
Cty., Tex., 978 F.2d 893, 895 (5th Cir. 1992). Thus, a plaintiff may assert liability
against a county for a § 1983 claim based on, among other things, a custom or policy
of inadequate training, supervision, discipline, screening, or hiring. Snow v. City of
El Paso, Tex., 501 F. Supp. 2d 826, 831 (W.D. Tex. 2006) (citing Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978) (adopted policy);
Johnson v. Moore, III, 958 F.2d 92, 94 (5th Cir. 1992) (persistent or widespread
practice); City of Canton, Ohio v. Harris, 489 U.S. 378, 385–87 (1989) (inadequate
training or failure to train); Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81
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(1986) (actions or decisions by a municipal policymaker with “final policymaking
authority”)). However, where there is no constitutional violation on the part of the
municipality’s officials, the municipality cannot be held liable for the plaintiff’s
injury. See Cook v. Hopkins, 795 Fed. App’x 906, 917–18 (5th Cir. 2019) (citing
City of L.A. v. Heller, 475 U.S. 796, 799 (1986)). As we concluded earlier, the trial
court properly ruled that the use of force by Deputy Ketron was not excessive.
Because Klassen suffered no constitutional injury at the hands of Appellees, Gaines
County cannot be held liable for any failure to train its deputies. See id.
Even assuming arguendo that Klassen suffered a constitutional injury, when
viewed under the light most favorable to Klassen, the record is devoid of any
evidence that would support the existence of any of the elements of a failure-to-train
claim. See TEX. R. CIV. P. 166a(i); Hutcheson v. Dallas Cty., Tex., 994 F.3d 477,
482 (5th Cir. 2021) (outlining the elements of a failure-to-train claim). We overrule
Klassen’s fourth issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
July 15, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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