HAYWOOD v. CITY OF EL PASO TEXAS (2025)

ORDER

On this day, the Court considered Defendants City of El Paso (the “City”), El Paso Police Department (“EPPD”), and Gregory K. Allen's Motion for Summary Judgment (“City Motion”), ECF No. 185; and Officers Michael Otero, Isaac Guevara, Kevin McKinney, Jacob Kiesel, Maria De la Paz Gonzalez, and Ruben Escajeda's (collectively, the “Officers”) Joint Motion for Summary Judgment (“Officers’ Motion”), ECF No. 186.For the reasons below, the City Motion is GRANTED, and the Officers’ Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

The following facts are undisputed unless otherwise noted.¹ This case concerns Plaintiff William Haywood's claim that the Officers used excessive force against him during two separate arrests in 2018 and 2019. See 4th Am. Compl. (“FAC”) ¶¶ 19–82, ECF No. 111.

A. 2018 Arrest

The first arrest occurred on April 27, 2018, when Guevara attempted to conduct a traffic stop on Haywood's vehicle because it had an incorrect license plate. Resp. City Mot. 9, ECF No. 191. Because he had an open container of alcohol in his vehicle, Haywood panicked and fled from Guevara, driving through a red light. Id. at 9–11; see Pl.’s Dep. 49:4–14, ECF No 191-1. Soon afterward, however, Haywood crashed, causing his vehicle's airbags to deploy. Resp. City Mot. 14.

The parties dispute what happened next. Defendants assert that after Haywood crashed, he fled from his vehicle on foot and Guevera “yelled for [Haywood] to stop and chased” after him. Resp. Officers’ Mot. 15–17, ECF No. 190. After Guevara gave chase, Haywood “look[ed] back, stopped, turned and faced the officer, squared-up on the officer using a wide stance, clenched both fists with his arms out to his sides, chest up and out [as if he] was ready to fight the officer.” Id. at 17. The Officers emphasize that Haywood is a large man, standing approximately six feet four inches tall, and weighing roughly 300 pounds.² Id. The Officers claim that Guevara “ran at full sprint toward [Haywood],” blocked his punch, and struck him in the face. Id. at 17, 19; see also Pl.’s Dep. 7:22–8:4. Guevara then grabbed Haywood, threw him to the ground, “and in defense, struck [Haywood] in the face and head with hammer fists and other strikes until [Haywood] stopped fighting” him. Resp. Officers’ Mot. 20; Resp. City Mot. 19. Then, Guevara grabbed Haywood's left wrist as Escajeda and Otero arrived on scene to assist in the arrest. Resp. Officers’ Mot. 21.

Haywood, however, contends that after he crashed, he exited his vehicle, turned around, and put his hands up, following commands given by a “Black officer.” Id. at 16–17; see Pl.’s Dep. 33:5–7. Haywood asserts that he never threatened or attempted to fight any of the officers. Resp. Officers’ Mot. 18; Resp. City Mot. 18–19. After Haywood turned around, the Black officer came behind him, wrapped an arm around his neck, “and began to choke” him. Pl.’s Dep. 30:12–15, 31:1–2. That officer attempted to pull Haywood to the ground, and Officer Escajeda then arrived and “kicked the back of [his] knees,” which caused him to fall facedown to the ground. Id. at 30:16–24, 33:18–20. The two officers grabbed Haywood's arms and twisted them behind his back; while they were doing so, other officers arrived on scene. Id. at 31:2–9. One of those officers kicked Haywood in his face, another kicked him in the side of his face, and the Black officer holding one of Haywood's arms placed a knee on his back and started punching the left side of his face. Id. at 31:8–20, 33:25–34:12. Then, after one of the officers had handcuffed Haywood, all the officers started kicking him. Id. at 31:23–32:3. And one officer slammed his face into the ground three times, knocking out some teeth. Id. at 32:5–10, 34:23–35:8,38:10–13. Haywood testified that he believes, but is not certain because he was face down, that it was the Black officer that slammed his face into the ground. See id. The officers continued to kick and punch Haywood until he passed out. Id. at 32:11–14.

When he regained consciousness, Haywood asserts he was lying in a puddle of his own blood. Id. at 32:15–19. At this point, the Black officer asked him why he ran. Id. at 32:22–33:2, 35:21–36:4. Haywood told the officer that he did not run, at which point the officer asked him if he ran because he had a weapon. Id. at 36:5–6. When Haywood denied having a weapon, the officer placed a pocketknife on the ground by Haywood, and said, “You have what ․ I say you have.” Id. at 36:8–19.

Both parties agree that Haywood was then transported to a hospital to be treated for injuries sustained during the arrest, where he was “minimally cooperative” during medical exams. Resp. City Mot. 19, 22; Resp. Officers’ Mot. 22. Haywood received stitches for cuts above his right eye, near his left eye, and on his lip. Pl.’s Dep. 49:15–50:14. After the arrest, Haywood's eyes were swollen and bruised; he testified that, ever since then, his right-eye vision occasionally becomes blurry. Id. at 50:22–51:19. Additionally, during the arrest Haywood's legs and ribs were bruised, his meniscus was torn, skin was torn off one of his arms, and he permanently lost three teeth. Id. at 38:8–13; 51:20–53:23.

While Haywood was at the hospital, Escajeda and Otero were posted as guards in his hospital room. Resp. Officers’ Mot. 23. Defendants assert that Haywood was “belligerent and aggressive toward” both officers, requiring them “to restrain [Haywood] on the bed with hand restraints and place a spit mask” on him. Id. at 23; Resp. City Mot. 20. Haywood admits that he “exchanged words” with Escajeda in the hospital but maintains that he did not do anything physically aggressive or threatening to him or Otero. Pl.’s Dep. 97:18–98:2. Nevertheless, Haywood avers that while he was lying on a hospital bed, Escajeda walked up to him without provocation, placed a towel over his face, and punched him three times in the head. See Pl.’s Dep. 39:20–40:6. After Haywood was released from the hospital, Escajeda and Otero transported him to a police station. Resp. City Mot. 4. And Haywood asserts that when the two Officers were putting him in their patrol vehicle, they unnecessarily choked and pushed him. Pl.’s Dep. 42:17–43:20.

Criminal charges were filed against Haywood following this arrest but were ultimately dismissed. Resp. City Mot. 23; City Mot. 9. Haywood filed a complaint about the Officers’ use of force with EPPD's Internal Affairs (“IA”) Department, which, in the course of investigating the charge, interviewed Haywood and the involved officers. Resp. City Mot. 29, 33. The IA Department did not take corrective action against any officers following its investigation because it determined Haywood's allegations were unfounded. Id. at 32.

B. 2019 Arrest

The second incident occurred on April 27, 2019, when Otero and Kiesel stopped Haywood's vehicle because it did not have a front license plate. Resp. City Mot. 23; Resp. Officers’ Mot. 12. Haywood stopped, and Otero approached Haywood and asked for his driver's license and proof of insurance. Resp. Officers’ Mot. 12. Both parties agree that after stopping the vehicle, Otero asked Haywood for consent to search the vehicle, and Haywood consented. Id. at 13. The officers eventually located a bag under the vehicle's rear seats that contained a large sum of money. Id. at 15; Resp. City Mot 24.

The parties disagree as to what occurred during the traffic stop. Defendants assert that Otero “noticed a small streak of a white powdery substance on the driver's sidevisor,” which later tested as cocaine. Resp. Officers’ Mot. 13; Resp City Mot. 23, 25. Haywood disputes that there was a white streak on the visor, asserting it was only after the two officers had checked his vehicle three times that they claimed there was a substance on the vehicle's visor. Resp. City Mot. 24. Haywood claims that while Otero was arresting him, Oteropushed him unnecessarily and applied excessive pressure to the handcuffs, fracturing Haywood's pinky finger. Pl.’s Dep. 60:23–62:25. And Haywood recounts that Otero stated, while using this force, “That's what you get for filing charges and fucking with the Northeast Gang Unit.” Id. at 62:2–5.

Haywood was arrested for failure to have a front license plate. Resp. City Mot. 25. While he was being booked, he received medical treatment for the fracture to his finger. Pl.’s Dep. 66:11–17. Haywood did not file an IA complaint regarding the 2019 arrest. Resp. City Mot. 33.

C. Procedural History

Haywood initiated this case on April 27, 2020, bringing claims against Defendants under 42 U.S.C. § 1983. In two different orders, the Court dismissed some of Haywood's initial claims. See generally Oct. 26, 2021, Order, ECF No. 93; July 20, 2022, Order, ECF No. 127. Currently pending are (1) claims for excessive force during the 2018 arrest against Officers Otero, Guevara, McKinney, De la Paz Gonzalez, and Escajeda and the John and Jane Doe Supervisors and Officers, FAC ¶¶ 160–69; July 20, 2022, Order 6–11; (2) claims for excessive force during the 2019 arrest against Officers Otero and Kiesel, FAC¶¶ 170–79; Oct. 26, 2021, Order 11–14; (3) Monell claims against the City and Allen, FAC ¶¶ 203–18; (4) claims against the John and Jane Doe Officers and Supervisors for failing to intervene, id. ¶¶ 219–23; and (5) common-law claims against the City and Allen for negligent hiring, negligent retention, negligent supervision, and negligent infliction of emotional distress, id. ¶¶ 224–34.

The City filed its Motion on May 16, 2024, arguing for dismissal with prejudice of all claims against the City, Allen, and EPPD. City Mot. 6–7. Haywood filed a Response, to which the City filed a Reply, ECF No. 195. Officers Otero, Guevara, McKinney, Kiesel, Gonzalez, and Escajeda filed the Officers’ Motion on May 20, 2024, seeking dismissal with prejudice of all excessive force charges. Officers’ Mot. 11–12. After Haywood filed his Response, Officers Gonzalez, Guevara, and McKinney filed a Reply (“Joint Reply”), ECF No. 196, Officer Escajeda filed a Reply (“Escajeda Reply”), ECF No. 199, and Officers Otero and Kiesel filed a Reply (“Otero & Kiesel Reply”), ECF No. 200.

II. DISCUSSION

A. Summary Judgment Standard

A court must enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996).

“[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046–47 (5th Cir. 1996). To show the existence of a genuine dispute, the non moving party must support its position with citations to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ․, admissions, interrogatory answers, or other materials[,]” or show “that the materials cited [by the movant] do not establish the absence ․ of a genuine dispute, or that [the moving party] cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c).

The court resolves factual controversies in favor of the non moving party, but factual controversies require more than “conclusory allegations,” “unsubstantiated assertions,” or “a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the non moving party and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 478–79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). Thus, the ultimate inquiry in a summary judgment motion is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.

B. Qualified Immunity Standard

The doctrine of qualified immunity shields government officials from liability “so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017)(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “When a defendant invoke squalified immunity, the burden shifts to the plaintiff to” show that the defense does not apply. Id. (quoting Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)). A plaintiff seeking to defeat qualified immunity must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Id. at 847–48 (quotingMorgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011)).

A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”Lincoln, 874 F.3d at 848 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “This inquiry ‘does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.’ ”Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The law can be clearly established despite “notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.”Id. (quoting Flores v. City of Palacios, 381 F.3d 391, 400 (5th Cir. 2004)).

C. Analysis: Motion to Exclude

Before considering the parties’ substantive arguments, the Court first addresses the Officers’ argument that any evidence produced by Haywood in response to their Motion must be excluded. Officers’ Mot. 11. The Officers assert that at the time they filed their Motion, Haywood had not responded to any of their written discovery requests nor made himself available for a deposition. Officers’ Mot. 11.

The only piece of evidence Haywood produced in response to the Motions for Summary Judgment is a transcript of his own deposition, which was taken on May 20, 2024, the day the Officers’ Motion was filed. See Resp. to Officers’ Mot. Ex. A, ECF No. 190-1; Resp. to City Mot. Ex. A, ECF No. 191-1. Counsel for Haywood admit that some of Defendants’ “discovery demands were not responded to,” but argue that their failure to produce the requested discovery is justified because (1) the discovery requests were submitted to Haywood's prior counsel, and (2) Defendants never filed a motion to compel a response. Resp. Officers’ Mot.8–10. Haywood's counsel also aver that they were never contacted by opposing counsel regarding those discovery requests after the initial request on March 29, 2023, and the absence of such communications or the filing of a motion to compel indicates that opposing counsel also “forgot about them.” Id. at 9–10. Regarding Haywood's deposition, Haywood's counsel attest that “[n]one of the Defendant [Officers’ attorneys] have ever sent [Haywood] a Deposition Notice requesting such a deposition,” but rather that “the first and only such Deposition Notice” was sent by the City on May 7, 2024. Id. at 10.

The Court has discretion to impose sanctions under Federal Rule of Civil Procedure 37(b)(2)(A)(ii)–(vii) if a party or its attorney “fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). Here, pursuant to the Final Amended Scheduling Order, ECF No. 172, all fact discovery closed on January 30, 2024; expert discovery closed on March 30; and dispositive motions were due by May 14, id. at 1. And because the Final Amended Scheduling Order came after several other lengthy extensions of case management deadlines, the Court warned the parties it would “grant no further extensions of the deadlines set in this Order.” Id. Haywood's counsel thus plainly flouted the deadline set in the Final Amended Scheduling Order by failing to make Haywood available for a deposition until May 20, nearly four months after fact discovery closed. Therefore, Haywood or his counsel may be subject to sanctions under Rule 37(b)(2).

In determining whether to exclude evidence as a sanction under Rule 37, the Court considers“(1) the importance of the excluded testimony, (2) the explanation of the party for its failure to comply with the court's order, (3) the potential prejudice that would arise from allowing the testimony, and (4) the availability of a continuance to cure such prejudice.”Harmon v. Ga. Gulf Lake Charles L.L.C., 476 F. App'x 31, 36 (5th Cir. 2012) (quoting EEOC v. Gen. Dynamics Corp., 999 F.2d 113, 115 (5th Cir. 1993)). Courts have “wide latitude in determining the appropriate sanction for failure to comply with discovery and, especially, for failure to comply with a [c]ourt's [o]rders.” Chisesi v. AAA/Auto Club Fam. Ins. Co., No. 08-cv-3707, 2009 WL 2447791, at *2 (E.D. La. Aug. 10, 2009). A district court may appropriately “bar the disobedient party from introducing certain evidence,” dismiss the case, and hold parties or their counsel “personally liable for expenses ․ caused by the failure to comply with discovery orders.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763 (1980) (citations omitted). But when specific evidence is highly material to the disobedient party's case, courts should not exclude it without first “consider[ing] the possibility of lesser sanctions.” Gen. Dynamics Corp., 999 F.2d at 117 (citations omitted).

1. Importance of Excluded Testimony

First, the Court finds that the deposition is highly important because it is the only evidence submitted in response to the Motions for Summary Judgment. If the Court excludes this evidence, it would be “tantamount to a dismissal” of the case. Id. Simply put, without the deposition, Haywood's claims cannot proceed. With it, some of them may. Therefore, this factor weighs strongly against excluding Haywood's deposition.

2. Explanation for Failure to Comply

Second, Haywood's counsel have not offered a legitimate explanation for their failure to comply with the fact-discovery deadline. Counsel state that “[n]one of the Defendant [Officers’ attorneys] have ever sent [Haywood] a Deposition Notice,” and aver that “the first and only such Deposition Notice” was sent by the City on May 7. Resp. Officers’ Mot. 10. The Officers’ counsel have not rebutted this assertion by producing a deposition notice that formally complies with Federal Rule of Civil Procedure 30(b)(1). Even so, this does not excuse Haywood's counsel from timely arranging his deposition, both because counsel was on actual notice that Defendants wished to depose Haywood and because Haywood—not the Officers—is the party who relies on the deposition testimony to oppose summary judgment.

Over the course of this litigation, counsel for Haywood repeatedly assured the Court that they were working to arrange Haywood's deposition. In the Joint Motion to Extend the Discovery Deadline, ECF No. 157, filed on August 18, 2023, Attorney Joseph Cannizzo Jr. stated that he was coordinating with FCI Forrest City, the institution where Haywood is currently incarcerated, and working “to schedule [Haywood's] deposition.” Id. at 2. And at the Show Cause Hearing held on November 2, 2023, Mr. Cannizzo represented to the Court that he was aware that Haywood needed to be deposed and that he would work with staff at FCI Forrest City to coordinate a deposition. See Nov. 2, 2023, Minute Entry, ECF No. 171. At that same hearing, Mr. Cannizzo agreed to the January 30 deadline for fact discovery. See id.

Furthermore, Defendants have submitted numerous emails showing that Haywood's counsel were asked repeatedly to arrange a deposition with Haywood that complied with the discovery deadline. In a June 22, 2023, email to Mr. Cannizzo and the Officers’ counsel, the City's counsel stated that he wanted to depose Haywood and asked Mr. Cannizzo to determine when Haywood would be available. Joint Reply Ex. B, ECF No. 196-2. On December 21, 2023, the City's counsel again emailed Mr. Cannizzo and asked him to provide Haywood's availability for a deposition. Officers’ Mot. Ex. B, at 4–5, ECF No. 186-3. The City's counsel followed up on that request twice more on January 4 and January 11, 2024. Id. at 3–4. Mr. Cannizzo eventually responded on January 12 and asked for opposing counsel's availability, promising that he would coordinate a deposition. Id. at 1. The City's counsel responded on January 19 with potential dates. Joint Reply Ex. C, ECF No. 196-3. The Officers’ counsel then followed up on March 30, asking Mr. Cannizzo to “[p]lease provide us with potential dates” for the deposition. Id. Ex. D, ECF No. 196-4. A month later, on April 30, Haywood's other attorney, Mr. Jackson, emailed opposing counsel and stated that he was handling the depositions, rather than Mr. Cannizzo, and asked for another deposition notice. Id. Ex. E, at 2, ECF No. 196-5.

In sum, Haywood's counsel repeatedly assured the Court before the close of discovery that they were working to facilitate Haywood's deposition. Mean while, Defendants’ counsel first requested Haywood's deposition over a year ago and then assiduously followed up to schedule it. Haywood's counsel's attempt to deflect responsibility for their client's untimely deposition by pointing to the absence of a formal deposition notice is thus disingenuous.

Even so, the Court assumes, without finding, that the formal requirements of a deposition notice must be strictly complied with. But the “party who wants to depose a person” is the one who bears the obligation of issuing a deposition notice. Fed. R. Civ. P. 30(b)(1). Here, that party is Haywood, not the Officers. The issue here is whether the Court should grant the Officers’ request to exclude Haywood's deposition transcript from the summary judgment record because the deposition was taken four months after the expiration of the fact discovery deadline in the Final Amended Scheduling Order. As discussed previously, without the deposition transcript, Haywood has no evidence with which to oppose summary judgment. It is illogical for Haywood's attorneys to blame opposing counsel's failure to timely issue Haywood a formal deposition notice for their own failure to obtain that deposition prior to the deadline. Again, the Court assumes that a failure to properly notice a deposition may warrant exclusion of subsequent deposition testimony. But Haywood inverts this standard, seeking to prevent exclusion of his untimely deposition by blaming Defendants for not timely noticing it. Because the lack of a formal deposition notice in no way explains Haywood's counsel's failure to timely depose their own client, this factor weighs heavily in favor of sanctioning Haywood's attorneys.

3. Prejudice

Third, Defendants will be minimally prejudiced if the Court does not exclude Haywood's deposition. The Court recognizes that, by waiting to depose Haywood until after the dispositive-motion deadline had passed, Haywood's counsel effectively prevented Defendants’ counsel from incorporating arguments based on Haywood's testimony when preparing their Motions. However, Defendants have submitted Reply Briefs in which they address Haywood's arguments, which are entirely based on his testimony. And no Defendant has requested to supplement or re-file their Motions for Summary Judgment in light of newly discovered facts unearthed during Haywood's deposition. To be sure, this long-pending case has been plagued by delay. That delay was occasioned in substantial part by Haywood's counsel's protracted failure to make their client available for deposition. But apart from delay, Defendants will at most be slightly prejudiced if Haywood's testimony is not excluded. This factor thus weighs in favor of sanctions to compensate for the delay, but against the exclusion of Haywood's testimony.

4. Availability of a Continuance

Fourth, because the crux of any prejudice to Defendants is delay, it would be exacerbated—not cured—by a continuance. Indeed, a continuance would be “but another episode in a long series of delays” which have characterized this matter. See May 14, 2024, Order 2, ECF No. 181. This case is over four years old, and during that time “the parties have repeatedly missed deadlines and failed to diligently litigate this case.” Id. at 1. The Court discussed its concerns about the snail's pace of this litigation at the November 2 Show Cause Hearing, and explicitly told all parties that the deadlines set in the Final Amended Scheduling Order would not be extended. The Court continues to find further extensions to be unwarranted. Accordingly, this factor favors ordering sanctions rather than granting a continuance.

5. Weighing the Factors and Appropriate Sanctions

Weighing all factors, the Court does not find it appropriate to exclude Haywood's deposition testimony. The deposition transcript is the sole piece of evidence Haywood relies on at this stage. Therefore, and because there is no indication that Haywood himself bears any responsibility for his counsel's dereliction of their discovery obligations, the Court does not de facto dismiss Haywood's case by excluding his evidence. See Gen. Dynamics Corp., 999 F.2d at 117. Indeed, “sanctions less severe than the complete dismissal of a claim [are] normally the appropriate mechanism for courts to use in disciplining delinquent lawyers.” Id.; see also Razvi v. Dall. Fort Worth Int'l Airport, No. 21-10016, 2022 WL 4298141, at *7 (5th Cir. Sept. 16, 2022).

In that vein, the Court cannot ignore the utter lack of diligence and candor displayed by Haywood's counsel. Haywood's counsel was aware for over a year that Defendants wished to depose Haywood. Mr. Cannizzo represented to the Court as far back as August 2023 that he was attempting to arrange that deposition. And Mr. Cannizzo was told at the Show Cause Hearing that he was expected to work with FCI Forrest City to schedule Haywood's deposition. Rather than doing so, Haywood's counsel waited until nearly four months after the close of fact discovery—until after the dispositive-motions deadline had passed—to depose Haywood. Against this backdrop, counsel's assertion that they were unaware Haywood needed to be deposed until May lacks credibility.

This behavior by Haywood's counsel undoubtedly merits sanctions.³ But the only sanction requested by the Officers is the exclusion of Haywood's deposition, which, as discussed, is inappropriate because it would amount to a sanction on Haywood, rather than his attorneys, by de facto dismissing his case. Nevertheless, “[i]nstead of or in addition to any other sanction” for failure to obey a scheduling order, “the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney's fees—incurred because of any noncompliance ․ unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 16(f)(2).For the reasons discussed, the Court does not find Haywood's attorneys’ noncompliance with the discovery deadline in the Final Amended Scheduling Order to be substantially justified, nor, for the same reasons, would an award of expenses be unjust. Accordingly, the Officers’ motion for sanctions is granted in part. The law firm employing Haywood's counsel, Lento Law Group, shall pay all reasonable costs and attorneys’ fees incurred by Defendants in the course of arranging and attending Haywood's untimely deposition, which was taken after the close of discovery in violation of the Final Amended Scheduling Order.

D. Analysis: Motions for Summary Judgment

Defendants seek summary judgment on all claims. See Officers’ Mot. 11; City Mot. 6–7. The Officers argue Haywood has not produced evidence showing that any officer used excessive force during either arrest and that, even if he has, they possess qualified immunity from liability for such actions. Officers’ Mot. 9–11. The City also argues that Haywood has not produced evidence showing the Officers used excessive force. City Mot. 11–13. And the City argues it is not liable under Monell v. Department of Social Services of New York, 436 U.S. 658(1978), nor under Texas common law, for improperly hiring, training, supervising, or disciplining its police officers. City Mot. 13–24. Haywood argues that he has produced evidence showing a genuine dispute of material fact as to whether the Officers used excessive force, see Resp. Officers’ Mot. 29–35, and whether the City is liable under Monell, see Resp. City Mot. 42–46.

1. Excessive Force Claims Against the Individual Officers

Defendants argue Haywood has not produced sufficient evidence showing he suffered any injuries caused by an excessive use of force, nor that any individual officer's use of force was objectively unreasonable. Officers’ Mot. 9–10; City Mot. 12. The Officers also argue that Haywood has not shown that the officers are individually, rather than collectively, responsible for any of his injuries. Officers’ Mot. 10–11. Haywood responds that there is sufficient evidence showing that each officer's use of force during each incident was objectively unreasonable. See Resp. Officers’ Mot. 31–35; Resp. City Mot. 36–42.

The Fourth Amendment prohibits police officers from using excessive force in the course of their duties. Collier v. Montgomery, 569 F.3d 214, 218 (5th Cir. 2009) (citing Colston v. Barnhart, 130 F.3d 96, 102 (5th Cir. 1997)). An excessive-force claim must show that officers are individually, rather than collectively, responsible for any excessive use of force. See Oct. 26, 2021, Order 9–10; Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir. 2007) (citations omitted). To establish such a claim, a plaintiff must show “(1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3)the excessiveness of which was clearly unreasonable.” Collier, 569 F.3d at 218 (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)).

An injury is cognizable if it is more than de minimis and results “from a degree of force that is constitutionally impermissible.” Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008) (citations omitted). The consideration of whether an officer's use of force was objectively reasonable “depends on the facts and circumstances of the particular case.” Id. Key facts and circumstances include the three Graham factors: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (quotingGraham v. Connor, 490 U.S. 386, 396 (1989)). Reasonableness “is ‘judged from the perspective of a reasonable officer on the scene,’ instead of the ‘20/20 vision of hindsight.’ ” Allen v. Hays, 65 F.4th 736, 744 (5th Cir. 2023) (quoting Cloud v. Stone, 993 F.3d 379, 384 (5th Cir. 2021)).

Haywood's claims for excessive force arise from four distinct incidents: the 2018 arrest, Haywood's hospitalization following that arrest, his placement in a patrol vehicle after he was released from the hospital, and the 2019 arrest.

a. Haywood has not produced evidence showing that McKinney, Gonzalez, or Kiesel used excessive force.

Beginning with Haywood's claims against McKinney, Gonzalez, and Kiesel, the Officers argue Haywood has not shown that McKinney or Gonzalez inflicted any injuries on him during the 2018 arrest because “at no point during [Haywood's] deposition did he name [McKinney or Gonzalez] or testify that [their] actions resulted in his injuries.” Joint Reply 9–10; Officers’ Mot. ¶ 18. And the Officers similarly argue that Haywood has not produced any evidence showing that Kiesel used any force against him during the 2019 arrest. Otero & Kiesel Reply 11–12.

Because the Officers have invoked qualified immunity, Haywood must affirmatively establish that it does not apply to proceed with his § 1983 claim. See Lincoln, 874 F.3d at 847. Haywood has not produced any evidence showing that McKinney or Gonzalez were present during the 2018 arrest. See generally Pl.’s Dep. Nor does the police report indicate that either officer was present during the arrest. See Police Reports 28, ECF No. 186-4. Because Haywood has produced no evidence showing that McKinney or Gonzalez violated his constitutional right to be from an excessive use of force, he has not carried his burden at the first step of the qualified-immunity analysis. See Bush, 513 F.3d at 500–01.

Haywood has also not produced any evidence showing that Kiesel used any force against him during the 2019 arrest; the only time Haywood testified about Kiesel was to say that Kiesel “showed up” during the traffic stop. Pl.’s Dep. 60:9–13. And though the police report states that Kiesel was present during the 2019 traffic stop and arrest, nothing indicates Kiesel used force against Haywood or witnessed Otero or any other officer use force against Haywood. See generally Police Reports 10. Thus, there is no evidence to support an excessive force claim against Kiesel, even under a bystander-liability theory, which would require that he knew “a fellow officer [was] violating an individual's constitutional rights” and failed to intervene to stop it. Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (citations omitted); see also July 20, 2022, Order 9–10.

Accordingly, the Officers’ Motion is granted as to Haywood's claims against McKinney, Gonzalez, and Kiesel, which are dismissed with prejudice.

b. There is a genuine dispute as to whether Guevara used excessive force during the 2018 arrest.

The Officers similarly argue Haywood has not shown that Guevara was responsible for injuries he suffered during the 2018 arrest, because “at no point during [Haywood's] deposition did he name [Guevara] or testify that [Guevara's] actions resulted in his injuries.” Joint Reply 8; Officers’ Mot. ¶ 18. The Officers acknowledge that Haywood testified about injuries caused by a “Black officer,” but maintain that, because Haywood did not testify to the identity of that officer, his claim for that officer's excessive force must fail because “[p]ersonal involvement is an essential element of a civil rights cause of action.” Joint Reply 9–10 (quoting Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)).

Haywood testified that a “Black officer” was on scene in 2018 immediately after Haywood crashed his vehicle, and that it was this officer who initially commanded him to put his hands up. Pl.’s Dep. 29:20–30:8, 33:5–7. Haywood testified that after he put his hands up, the Black officer wrapped an arm around his neck and choked him, even though Haywood had not fled from the scene of the crash or resisted arrest. Id. at 30:3–16, 33:8–9. Haywood then recounted that, after the Black officer and Escajeda had taken him to the ground, the Black officer twisted one of Haywood's arms behind his back, placed a knee on his back, and started punching Haywood in the head. Id. at 31:1–20, 33:25–34:12. And Haywood averred that after he was handcuffed, the same Black officer stayed on top of him and slammed his face into the ground repeatedly, causing him to lose three teeth. Id. at 32:5–10, 35:1–8, 38:10–13.

As the Officers argue, Haywood did not identify the “Black officer” by name during his deposition. See generally Pl.’s Dep. But Haywood also relies on the police report as evidence, Resp. Officers’ Mot. 8, which establishes that Guevara was both the first officer on scene during the 2018 arrest and the officer who initially attempted to place Haywood under arrest, see Police Reports 27–28. The police report further tracks Haywood's testimony about the Black officer's actions because it states that Guevara was the first officer to make contact with Haywood and that Guevarra initially struck Haywood in the head, threw him to the ground, and then repeatedly punched him in the head. Id. at 28. Viewing all evidence in a light favorable to Haywood, the summary of events in the police report combined with his testimony about the officer who initially contacted him could, in combination, allow a reasonable jury to find Guevara was the “Black officer” identified by Haywood during his deposition. See Morris v. Normand, No. 14-cv-2312, 2016 WL 5801235, at *9 (E.D. La. Oct. 5, 2016) (considering at summary judgment whether a police report corroborated or contradicted a deposition).

Turning to whether Haywood has shown that Guevaraused excessive force, the Officers do not dispute that Haywood lost multiple teeth during his encounter with Guevara. See Pl.’s Dep. 32:5–10, 35:1–8; 38:2–13; see generally Joint Reply (not addressing this element). Therefore, Haywood has shown the existence of a non-minor injury. Bush, 513 F.3d at 501.

As to whether Guevara's use of force was clearly excessive and unreasonable, courts consider the “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (quotingGraham, 490 U.S. at 396). Here, while Guevara attempted to stop Haywood for a traffic offense, Haywood crashed his car. Resp. City Mot. 9–11, 14; Pl.’s Dep. 49:4–14. After the crash, Haywood exited the vehicle, and maintains that he did not threaten Guevera or anyone else—rather, he complied with Guevara's commands and put up his hands. Resp. Officers’ Mot. 16–17; Pl.’s Dep. 33:5–7. Despite this lack of resistance, Haywood maintains that Guevara choked him, threw him to the ground, punched him repeatedly, and slammed his head into the ground, knocking out three of his teeth and rendering him unconscious, all while he was handcuffed. Pl.’s Dep. 30:12–15, 31:1–2, 33:25–34:12, 32:5–10, 34:23–35:8.

It is clearly established in the Fifth Circuit that it is excessive and unreasonable to throw someone to the ground who is neither resisting arrest nor combative. Tucker v. Shreveport, 998 F.3d 165, 175 (5th Cir. 2021) (“As of 2013, it was clearly established that ‘violently slam[ming] an arrestee who is not actively resisting arrest’ is a constitutional violation.” (alteration in original) (citations omitted)); Aguilar v. Robertson, 512 F. App'x 444, 450 (5th Cir. 2013) (finding at summary judgment it was unreasonable to tackle the plaintiff to the ground when he had not committed a serious crime and was not resisting arrest).So too with slamming a handcuffed person's face or head into a hard surface. See Bush, 513 F.3d at 501. Indeed, most uses of force on a suspect who has been handcuffed and subdued are excessive and unreasonable. See, e.g., Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir. 2015) (citations omitted). Therefore, Haywood's testimony that he was pushed to the ground and beaten when he was not resisting arrest, and even after he was handcuffed, is sufficient to overcome Guevara's assertion of qualified immunity at the summary judgment stage.

Of course, Guevara's version of events is much different. He maintains that Haywood fled on foot after he crashed and then attempted to fight Guevara, rather than yielding. See Officers’ Mot. ¶ 15;Police Reports 28. But this only creates a genuine dispute of material fact as to whether Haywood was resisting arrest and attempting to fight Guevara. If that proves to be the case, then Guevara's use of force could be considered reasonable. See Tucker, 998 F.3d at 181–82 (discussing when certain uses of force are “reasonably necessary in order to obtain compliance” (citations omitted)). But because Haywood has provided evidence that Guevara employed excessive force during the 2018 arrest and because existing caselaw clearly established that this use of force was excessive, there is a genuine dispute of material fact. Accordingly, the Officers’ Motion is denied as to the excessive force claim against Guevara.

c. There is a genuine dispute as to whether Escajeda used excessive force during the 2018 arrest, at the hospital, and in the patrol car.

Escajeda also argues Haywood has not produced evidence showing that he used excessive force. See Officers’ Mot. ¶ 18; Escajeda Reply 10–12. Escajeda claims the evidence only shows that he “was lawfully arresting an individual who disregarded police officers, attempted to flee in a vehicle and was involved in an accident as a result.” Escajeda Reply 10. In that context, Escajeda maintains that kicking Haywood “to get him on the ground and holding him down to effectuate an arrest [was] reasonable,” id., especially because Haywood was a large individual, at six feet five inches and approximately 320 pounds, id. at 11. The only evidence Escajeda relies on is the police report and Haywood's deposition. See generally Officers’ Mot.; Escajeda Reply.

Haywood testified that Escajeda kicked out his legs from under him while Guevara was choking him. Pl.’s Dep. 33:10–20. Then, once Haywood was on the ground, Escajeda grabbed one of his arms and kept him on the ground while other officers kicked Haywood. Id. at 34:1–3, 34:17–22. Haywood also testified that, while he was at the hospital, Escajeda approached him while he was handcuffed to a bed, covered his face with a towel, and punched him in the head three times, simply because Haywood told him, “If you take these handcuffs [off me], you wouldn't be able to do nothing.” Id. at 39:20–40:5, 40:21–41:2. And Haywood testified that, while Escajeda and Otero were putting Haywood into their patrol vehicle to transport him to a police station, Escajeda violently pushed Haywood into the back seat, climbed in on top of him, and started choking him. Id. at 43:2–20.

Haywood's testimony could allow a jury to reasonably infer that Escajeda used excessive force. Regarding the arrest, a jury could infer that the injuries Haywood suffered to his face and leg were caused by Escajeda kicking his leg and punching his face during the 2018 arrest. See Bone v. Dunna way, 657 F. App'x 258, 262 (5th Cir. 2016) (finding cognizable injuries of “bruising and a swollen cheek”). Haywood has thus established the first element of injury. Bush, 513 F.3d at 501. As for the second and third elements, it is well-established that it is excessive and unreasonable to slam someone who is not resisting arrest to the ground. See Tucker, 998 F.3d at 175 (citations omitted). Indeed, “in the absence of overt physical resistance to being handcuffed ․ or the prospect of flight,” forcefully slamming a subject to the ground “violate[s] clearly established law.” Id. at 175–76.

Of course, Escajeda argues that his use of force was reasonable given Haywood's previous attempt to flee by vehicle and the fact that Haywood is a large man. Escajeda Reply 10–11. But these are not the only “facts and circumstances” relevant to whether Escajeda's use of force was reasonable. Bush, 513 F.3d at 501. Also relevant is that Guevara initiated a stop on Haywood for a traffic offense. See Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (finding relevant that a subject was stopped for a “minor traffic violation” rather than a more serious crime). And Haywood has testified that, at the time Guevara and Escajeda used force, he was not resisting arrest in any way or ignoring the Officers’ commands. Pl.’s Dep. 30:3–15. Throwing Haywood on the ground and beating him when he had his hands in the air, had complied with commands, and was not resisting arrest is clearly established to be excessive. Darden v. City of Fort Worth, 880 F.3d 722, 731–32 (5th Cir. 2018). Of course, “a jury may ultimately conclude that [Haywood] did not comply with the officers’ commands and was actively resisting arrest,”id. at 732, but at this stage Haywood's testimony creates a genuine dispute of material fact as to whether Escajeda's use of force during the 2018 arrest was excessive and reasonable.

Additionally, the Officers have not shown nor even argued that Escajeda used a reasonable amount of force against Haywood either at the hospital or while placing Haywood into the patrol vehicle. See generally Officers’ Mot.; Joint Reply. A reasonable jury could infer that the injuries inflicted to Haywood's head were, in part, caused by Escajeda's use of force at the hospital, especially because no facts indicate that Escajeda needed to punch Haywood, who was handcuffed to the bed. See Bone, 657 F. App'x at 263. And while Haywood admits to being argumentative at the hospital, Pl.’s Dep. 40:21–41:2, that fact alone does not make reasonable Escajeda's decision to punch Haywood in the head multiple times. See Bone, 657 F. App'x at 263. Indeed, the Fifth Circuit has long held that it is excessive to employ force against a subject who is offering “verbal resistance” only. Id. (collecting cases).That Haywood was restrained and hospitalized makes Escajeda's use of force in response to verbal resistance all the more unjustified.

And the Officers have identified no evidence indicating that Haywood was resisting arrest when Otero and Escajeda put him in their patrol vehicle after they left the hospital. See generally Officers’ Mot.; Joint Reply. Rather, the only evidence on this point is Haywood's testimony that he had difficulty getting into the vehicle because of the handcuffs, his size, and his injuries, and the officers lost patience with him and proceeded to shove him into the vehicle and choke him. Pl.’s Dep. 42:6–25. Haywood also testified that the choking injured him: He was having trouble breathing when he arrived at the police station, causing officers there to call an ambulance for him, which transported him to another hospital where he was treated for several hours. Id. at 44:4–46:2. Haywood's testimony could allow a jury to decide that he suffered a cognizable injury, because the evidence does not show there was any reason for Escajeda and Otero to choke Haywood while placing him in their patrol vehicle. See Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999) (finding qualified immunity inapplicable when the arresting officer choked the plaintiff without having a legitimate reason to do so, causing “dizziness, loss of breath, and coughing”). And Haywood's testimony could allow a jury to conclude that Escajeda used unreasonable, excessive force against Haywood when placing him in the patrol vehicle, given his lack of resistance. See Bone, 657 F. App'x at 263; Darden, 880 F.3d at 730 (“[A] court should not discount the non moving party's story unless ․ evidence provides so much clarity that a reasonable jury could not believe his account.”).

The Court therefore finds Haywood has produced sufficient evidence to create a genuine dispute as to whether Escajeda used excessive force when, in 2018, he placed Haywood under arrest, guarded him at the hospital, and put him into the patrol vehicle. Accordingly, the Officers’ Motion is denied as to the excessive-force claim against Escajeda.

d. There is a factual dispute as to whether Otero used excessive force during the 2019 arrest.

Last, Otero argues Haywood has not produced evidence showing that he used any force against Haywood during the 2018 arrest or at the hospital afterward. See Otero & Kiesel Reply 8–9. Otero also argues that Haywood has not shown that his use of force during the 2019 arrest was excessive or that he suffered more than a de minimis injury. Id. at 10–11.

The police report shows that Otero was present during the 2018 arrest, see Police Reports 29, but Haywood has produced no evidence showing that Otero specifically used any force against him or inflicted any of his injuries, see generally Pl.’s Dep. Haywood did testify, however, that Otero was present when Escajeda repeatedly punched Haywood in the head at the hospital. Pl.’s Dep. 40:9–25. And Haywood avers that after they left the hospital, both Escajeda and Otero violently pushed him into their patrol vehicle and choked him when he had difficulty getting in. Id. at 42:6–43:20. Finally, Haywood claims that while Otero was placing handcuffs on him during the 2019 arrest, Otero “started squeezing real hard” and fractured Haywood's right pinky finger. Id. at 61:14–62:18. As a result, Haywood's finger is permanently crooked, and he sporadically feels enough pain in his right wrist that he has to wear a brace for days at a time. Id. at 62:17–63:7.

First, because Haywood did not testify that Otero caused any of his injuries or failed to intervene to prevent him being injured by others during the 2018 arrest, he has not shown that a reasonable jury could find Otero liable for injuries resulting from the force used during that arrest. See Meadours, 483 F.3d at 421 (holding that civil-rights claims must be established against officers individually).

Second, Haywood testified that both Otero and Escajeda pushed him into their patrol vehicle and then choked him after he was released from the hospital. Pl.’s Dep. 42:6–43:20. Therefore, for the same reasons discussed above, Haywood has produced evidence that could allow a jury to find that Otero's use of force was unreasonable and excessive, given Haywood's lack of resistance or any other legitimate purpose for which to choke him. Meadours, 483 F.3d at 422 n.3 (stating courts need not “conduct a separate analysis for each officer in those cases where their actions are materially indistinguishable”).

Third, turning to Otero's presence at the hospital at the time Escajeda punched Haywood in the head, Haywood has not produced evidence showing that Otero is liable under a bystander-liability theory. A by standing officer may be liable for another's unconstitutional actions if the officer “(1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.”Whitley, 726 F.3d at 646 (citations omitted). In other words, the officer must not only have been present at the scene, but must also have acquiesced to the violation of a constitutional right. Id. at 646–47.

Haywood has not produced evidence showing that Otero acquiesced to Escajeda's use of force against Haywood. Haywood testified that Otero was sitting in the hospital, “being smug” and “making rude comments.” Pl.’s Dep. 40:9–15. But Haywood then testified that it was sometime after Otero's rude comments that Escajeda became angry and punched him three times. See id. at 40:16–41:2. Haywood did not testify that Otero was still in the room while Escajeda punched him; nor does anything indicate, if Otero was present, that he had an opportunity to prevent Escajeda from punching Haywood. See Garrett v. Crawford, No. 5:15-CV-261-XR, 2016 WL 843391, at *9–10 (W.D. Tex. Mar. 1, 2016) (stating that to determine whether an officer “acquiesced” to excessive force, courts should “consider the duration of the alleged use of force and the location of the suspect in relationship to the observing officer” (citation omitted)). Absent evidence that Otero acquiesced to Escajeda's use of force, Haywood cannot proceed to trial on an excessive-force claim against Otero on the basis of bystander liability.

Fourth, Haywood testified that, during the 2019 arrest, Otero applied enough force while placing handcuffs on Haywood to fracture his right pinky finger; as a result, Haywood's finger is permanently crooked, and he feels recurring pain in his right wrist. Pl.’s Dep.62:17–63:7. The Fifth Circuit has held that, while “minor, incidental injuries that occur in connection with the use of handcuffs ․ do not give rise to a constitutional claim for excessive force,” when handcuffs are applied tightly enough to cause long term damage, that injury may be cognizable under § 1983. Deville, 567 F.3d at 168–69 (quoting Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007)). Here, Haywood has sufficiently established the first element of injury by testifying that Otero's application of handcuffs caused long-term damage, especially because the record does not indicate that Haywood was resisting arrest. Id.; Bone, 657 F. App'x at 263.

As to whether this use of force was excessive and objectively unreasonable, the Court again considers the three Graham factors. See Bush, 513 F.3d at 501. No evidence shows that a severe crime was at issue—Haywood was stopped and arrested for not having a front license plate. See Police Reports 10. Additionally, the police report does not show that Haywood resisted Otero during the stop or arrest, nor that he posed an immediate danger to anyone. Id. In fact, Haywood testified that he only started verbally objecting to Otero's use of force after Otero fractured his pinky. See Pl.’s Dep. 61:14–62:5. On these facts—which, on the current record, are uncontroverted—a jury could reasonably conclude that, by using so much force while applying the handcuffs as to fracture Haywood's finger, Otero used an excessive amount of force that was clearly established to be unreasonable. See Oct. 26, 2021, Order (first citing Hanks v. Rogers, 853 F.3d 738, 746 (5th Cir. 2017); and then citing Blakely v. Andrade, 360 F. Supp. 3d 453, 480 (N.D. Tex. 2019)).

In sum, the Officers’ Motion is granted as to claims based on Otero's role in the 2018 arrest and on Escajeda's use of force at the hospital. But the Officers’ Motion is denied as to Haywood's claims based on Otero's use of force while putting him in the patrol vehicle in 2018 and during the 2019 arrest.

2. Monell Claims

The City argues that it is entitled to summary judgment on Haywood's Monell claims because he has not produced any evidence of an unconstitutional policy or custom regarding the City's hiring, training, supervision, investigation, or discipline of its police officers. City Mot. 13–23. The City also argues that, even if Haywood has sufficiently demonstrated an actionable policy, he has not shown that such a policy was the moving force behind the Officers’ use of excessive force, nor has he identified a policymaker responsible for such a policy. Id. at 23–24.

In Monell, the Supreme Court held a municipality can be directly liable under § 1983 if “the action that is alleged to be unconstitutional implements or executes a policy ․ officially adopted and promulgated by that [municipality's] officers.” 436 U.S. at 690. To state a Monell claim, a plaintiff must identify: “(1) an official policy (or custom), of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose ‘moving force’ is that policy or custom.” Valle v. City of Houston, 613 F.3d 536, 541–42 (5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)).

An “official policy or custom” is most clearly established through a formal directive officially adopted and promulgated by a policymaker. See Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984), rev'd on other grounds, 739 F.2d 993 (5th Cir. 1984). In the absence of a formal directive, a plaintiff may instead point to “[a] persistent, widespread practice of city officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.”Pineda, 291 F.3d at 328 (quoting Webster, 735 F.2d at 841). Generally, a custom is established by showing a pattern of similar conduct that has “occurred for so long and with such frequency that the course of conduct demonstrates the governing body's knowledge and acceptance of the disputed conduct.” Barnes v. City of El Paso, 677 F. Supp. 3d 594, 608 (W.D. Tex. 2023) (quoting Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010)). Such a pattern “requires similarity and specificity”—past incidents must be described with specificity and sufficiently similar to the unconstitutional conduct complained of by the plaintiff. Id. (quoting Est. of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).

In the FAC, Haywood asserts a number of Monell claims. Haywood alleges that the City failed to “properly train, supervise, and discipline” its officers, exhibiting deliberate indifference to resulting violations of constitutional rights. FAC ¶ 205. Haywood asserts that the City maintained a policy that ratified excessive uses of force by neglecting “to investigate allegations of excessive force” or “discipline officers for violations of policy related to excessive force.” See id.¶ 207; see also id.¶¶ 203–218. And Haywood alleges that various statistics and actions by EPPD Police Chief Gregory K. Allen demonstrate the existence of a widespread municipal custom of using excessive force. See id.¶¶ 86–159. The City never challenged the sufficiency of Haywood's Monell claims at the pleadings stage. See Oct. 26, 2021, Order 5 n.5.

However, at summary judgment, Haywood must do more than merely allege the existence of municipal policies or customs for which the City may be liable—he must provide evidence of such policies or customs. Fed. R. Civ. P. 56(c). Haywood must produce evidence in the record, such as “depositions, documents, electronically stored information, affidavits or declarations, stipulations ․, admissions, interrogatory answers, or other materials,” that establish a genuine dispute of material fact as to whether the City has a custom or policy that was the moving force behind the Officers’ excessive force. Id.

Yet Haywood has not produced any evidence indicating that an official policy, custom, or pattern of conduct caused the Officers’ use of force. See generally Resp. Officers’ Mot.; Resp. City Mot. Haywood instead makes the conclusory argument that “[a]ppropriately trained, supervised, or instructed officers would not” have used excessive force in the way that Guevara, Escajeda, and Otero arguably did. Resp. City Mot. 43. And Haywood cites only the reports and statistics alleged in the FAC when arguing for the existence of a pattern of constitutional violations sufficient to hold the City liable under Monell. Id. at 43–44. Haywood did not, however, produce any such reports or statistics, thus preventing the Court from confirming their authenticity or assessing whether they suffice under the rigorous standards applicable to Monell claims. Haywood also assures the Court that he will produce an expert at trial who “will provide testimony that will speak to the unconstitutionality of the City's policies.” Id. at 45. But Haywood does not identify this expert, much less provide some competent evidence of the expert's testimony, such as a report or deposition transcript.

In federal court, it is black letter law that a plaintiff must provide more than “allegations” and “unsubstantiated assertions” to defeat summary judgment on a claim. Little, 37 F.3d at 1075; Fed. R. Civ. P. 56(e). Here, Haywood only relies on unsubstantiated assertions about the existence of an official policy, custom, or pattern. See generally Resp. City Mot. Allegations in a complaint and vague references to the possibility of an expert testifying at trial fall far short of evidence establishing a genuine dispute of material fact. Accordingly, the Court grants the City Motion as to the Monell claims.

3. Claims against EPPD, Chief Allen, and John and Jane Does

The City also argues the Court should dismiss Haywood's claims against EPPD and Allen. City Mot. 11. The City asserts that EPPD does not have a jural identity separate from the City, id. at 10, and that Haywood's claims against Allen are duplicative of his claims against the City, id. at 10–11. Haywood concedes both points. See Resp. City Mot. 36.

Additionally, Haywood has not sought to substitute named defendants for the John and Jane Doe Officers and Supervisors. Haywood's deadline to join new parties elapsed long ago. See Dec. 2, 2020, Scheduling Order 2, ECF No. 36. And despite years in which to conduct discovery, Haywood has not identified the John and Jane Doe Officers, nor sought additional time to do so. Colle v. Brazos County, 981 F.2d 237, 243 n.20 (5th Cir. 1993) (affirming the dismissal of fictitious defendants after they were not identified and served after three years of discovery). Accordingly, the Court grants the City Motion and dismisses all claims against EPPD, Chief Allen, and the John and Jane Doe Officers and Supervisors.

4. Common Law Claims

Last, the City argues that, to the extent Haywood asserts state-law claims against the City for negligent hiring, negligent retention, and negligent supervision, the City enjoys governmental immunity from such claims because Haywood did not file a notice of claim within six months of the accrual of those claims, as required by state law. City Mot. 24 (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.101). The City also argues that it is immune from Haywood's claims to the extent they sound in intentional torts. Id. at 25. Haywood offers no response to these arguments, and it is unclear whether he even intends to proceed with his common law claims. See generally Resp. City Mot.

In any event, entities of municipal government in Texas, such as the City, are entitled to governmental immunity from state law claims. Rivera v. City of San Antonio, No. 5:06-cv-235-XR, 2006 WL 3340908, at *15 (W.D. Tex. Nov. 15, 2006). “The [Texas Tort Claims Act (‘the TTCA’)] waives a city's governmental immunity for damage claims arising from its governmental functions, including police actions, but only to the extent specified in the Act.” Id. (citing Tex. Civ. Prac. & Rem. Code § 101.0215). And the TTCA does not waive immunity for negligent hiring, training, supervision, and retention claims. Id. “Also excluded from the TTCA are allegations against a governmental unit arising out of the same conduct that formed the basis of the intentional tort claims against its employee.” Goodman v. Harris County, 571 F.3d 388, 394 (5th Cir. 2009) (citing Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001)). Thus, under any interpretation of Haywood's common law claims against the City, they are barred by governmental immunity. The City's Motion is therefore granted as to these claims, which are dismissed with prejudice.

III. CONCLUSION

For the foregoing reasons, the City Motion, ECF No. 185, is GRANTED. Haywood's claims against the City of El Paso, Texas; the El Paso Police Department; and Gregory K. Allen are DISMISSED with prejudice.

IT IS FURTHER ORDERED that the Officers’ Motion, ECF No. 186, is GRANTED in part and DENIED in part. All of Haywood's excessive-force claims against McKinney, Gonzalez, and Kiesel, as well as the excessive-force claims against Otero arising out of the 2018 arrest and the subsequent incident at the hospital are DISMISSED with prejudice. Excessive force claims against Guevara, Escajeda, and Otero remain pending.

IT IS FURTHER ORDERED that Haywood's claims against the John and Jane Doe Officers and Supervisors are DISMISSED with prejudice.

IT IS FURTHER ORDERED that, pursuant to the Court's June 11, 2024, Order, ECF No. 193, Haywood SHALL obtain local counsel for trial, who shall enter an appearance on the docket by no later than January 15, 2025. To constitute local counsel in compliance with this Order, the attorney must (1) be admitted to practice in the United States District Court for the Western District of Texas; and (2) maintain an office within the boundaries of the El Paso Division.

IT IS FURTHER ORDERED that Defendants shall FILE a detailed accounting of costs and attorneys’ fees incurred in connection with Haywood's deposition by no later than January 15, 2025.

IT IS FURTHER ORDERED that Lento Law Group shall either (1) PAY the costs and fees specified in Defendants’ accounting or (2) FILE a brief setting forth any objections to the accounting, by no later than February 5, 2025.

IT IS FURTHER ORDERED that, in the event Lento Law Group files an objection to the accounting, Defendants may FILE a response brief by no later than February 19, 2025.

The Court will issue a Trial Preparation Order separately.

SO ORDERED.

FOOTNOTES

1.   Pursuant to the Court's Standing Order Regarding Motions for Summary Judgment, Defendants attached Proposed Undisputed Facts (“PUF”) to their Motions. See Officers’ PUF, ECF No. 186-1; City's Mot. 27–32. And Haywood has submitted responses to both PUFs. See Resp. City Mot. 9–35, ECF No. 191; Resp. Officers’ Mot. 12–27, ECF No. 190. The Court has reviewed all PUFs and PUF Responses and references them as appropriate throughout this Order.

2.   Haywood himself testified that he was six feet five inches tall and weighed somewhere around 310 or 320 pounds. Pl.’s Dep. 7:22–8:4.

3.   The Court acknowledges that greater fault lies with Mr. Cannizzo rather than Mr. Jackson, as Mr. Jackson did not notice an appearance on Haywood's behalf until April 14, 2024. See Notice Appearance, ECF No 179. However, because both attorneys are or were employed by Lento Law Group during their representation of Haywood, the Court assesses sanctions on Lento.