Ballard v. Hedwig Village Police Department , 408 F. App'x 844 ( 2011 )

Case: 09-20843 Document: 00511355333 Page: 1 Date Filed: 01/19/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 19, 2011
No. 09-20843
Summary Calendar Lyle W. Cayce
Clerk
ROBERT BALLARD,
Plaintiff-Appellant
v.
HEDWIG VILLAGE POLICE DEPARTMENT; DALE EDWARD LUSK;
SPRING VALLEY POLICE DEPARTM ENT; HOUSTON POLICE
DEPARTMENT; OFFICER K9U73K20 SCHULGEN; CITY OF HOUSTON;
HAROLD HURTT, Police Chief; D.R. NECK, Officer; CITY OF HEDWIG
VILLAGE; DAVE M. BARBER, Police Chief; STEVEN WAYNE PACKARD,
Detective; FRANK SCHULGEN, Officer; CITY OF SPRING VALLEY; GARY
FINKLEMAN, Police Chief; W.G. OBENLAND, Sergeant; H. KINCAID, Officer;
MEMORIAL VILLAGES POLICE DEPARTMENT; JOHN DOE, Police Chief;
OFFICER WEBB, Unit #42; JOHN DOES, Officers,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-567
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-20843 Document: 00511355333 Page: 2 Date Filed: 01/19/2011
No. 09-20843
Robert Ballard, Texas prisoner # 00748050, filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 against numerous individuals and government
entities alleging that certain defendants violated his constitutional rights and
caused him injuries both during and after his arrest for burglary of a building.
Ballard alleged that Officer Neck, a dog handler with the Houston Police
Department K-9 unit, ordered a police dog to attack him as he was being
arrested and therefore used excessive force against him; that Officers Lusk and
Schulgen, as well as other unnamed officers who were present during the attack,
failed to prevent or to stop the use of force; that Lusk, Schulgen, and Officers
Packard and Obenland subsequently exhibited deliberate indifference to his
medical needs; and that the officers conspired to cover up the attack by
fabricating the police reports.
The district court ordered service of process only on defendants Neck,
Lusk, Schulgen, and Packard, who moved for summary judgment. The district
court denied Neck’s motion for summary judgment but granted summary
judgment in favor of Lusk, Schulgen, and Packard and entered a final judgment
as to Lusk, Schulgen, and Packard, from which Ballard now appeals. Ballard
also contends that the district court erred in failing to order service on the
various municipalities and police chiefs and in failing to allow discovery as to
those defendants.
We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009). The
summary judgment evidence reflects that Packard was not present during
Ballard’s arrest. Further, Ballard does not contend that either Lusk or Schulgen
personally used excessive force on him. Rather, he argues that the officers
present during his arrest, including Lusk and Schulgen, failed to prevent or to
stop the use of force. He has failed to point to any evidence, however, that these
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No. 09-20843
officers had a reasonable opportunity to prevent or stop the attack given that the
police dog took commands only from its handler.
Further, we take judicial notice that, during the pendency of this appeal,
a jury found that Ballard had failed to prove that Neck used excessive force
against him and that a final judgment was entered in favor of Neck. See United
States v. Herrera-Ochoa, 245 F.3d 495, 501 (5th Cir. 2001). Thus, Ballard has
failed to establish a use of excessive force from which the other officers could or
should have protected him. See Hale v. Townley, 45 F.3d 914, 919 (5th Cir.
1995).
Ballard also contends that the district court erred in granting summary
judgment in favor of Lusk, Schulgen, and Packard on his denial of medical
treatment claim. The summary judgment evidence does not indicate that the
officers should have drawn the inference that a substantial risk of serious harm
existed such that their failure to provide additional medical care to Ballard while
he was detained at the Hedwig Village jail, as Ballard alleged, constituted
deliberate indifference to his medical needs. See Farmer v. Brennan, 511 U.S.
825, 837 (1994); Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996)
(en banc). As for his claim that officers conspired to falsify police reports,
Ballard has failed to demonstrate that the district court erred in granting
summary judgment on this claim. His disagreement with the information in the
reports and with the officers’ version of events is not sufficient to show that the
officers falsified their reports or engaged in any conspiracy to do so and fails to
establish the existence of a genuine dispute about a material fact. See F ED.
R. C IV. P. 56(c)(1); Day v. Quarterman, 566 F.3d 527, 539-40 (5th Cir. 2009).
As for Ballard’s contention that the district court erred in failing to order
service on the various municipalities and police chiefs and in failing to allow
discovery as to those defendants, he has failed to show that the district court
abused its discretion. See Scott v. Monsanto Co., 868 F.2d 786, 793 (5th Cir.
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1989). In any event, even if the district court abused its discretion, any error
was harmless under the circumstances. See Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253, 265 (5th Cir. 2007).
The judgment of the district court is AFFIRMED.
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