Vernon v. Gomez, et al

United States Court of Appeals
Fifth Circuit
F I L E D
August 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 05-50237
_____________________
JOE A. VERNON,
Plaintiff - Appellee,
versus
ARNULFO GOMEZ; ET AL.;
Defendants,
LIONEL GARZA, Deputy, Individually; RICHARD
P. NATIVIDAD, Deputy, Individually,
Defendants - Appellants
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_____________________
consolidated with
No. 05-50436
_____________________
JOE A. VERNON,
Plaintiff - Appellant,
versus
ARNULFO GOMEZ, Sheriff; REEVES COUNTY; LIONEL GARZA,
Deputy, Official Capacity; ISRAEL CAMPOS, Deputy;
RICHARD P. NATIVIDAD, Deputy, Official Capacity;
TOWN OF PECOS CITY; HELEN VERNON, Officer,
Defendants - Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:04-CV-12 and 4:04-CV-36
________________________________________________________________
Before JOLLY, PRADO, and OWEN, Circuit Judges.

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*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this opinion should not be published and is not precedent except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.
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PER CURIAM:*
Plaintiff Joe Vernon appeals the grant of summary judgment and
motions to dismiss against him. Deputies Natividad and Garza
appeal the denial of summary judgment on the excessive force claims
against them. We affirm the district court’s rulings as follows:
1. The dismissal of all claims against the City of Pecos for
insufficient evidence;
2. The dismissal of all claims against Reeves County for
insufficient evidence, except the claim based on the personal
involvement of Sheriff Gomez in the alleged violation of Joe
Vernon’s constitutional rights, which is addressed below;
3. The dismissal of all pendent state law claims against
Helen Vernon, Sheriff Gomez, Deputy Campos, Deputy Garza, and
Deputy Natividad, as they are barred by the Texas Torts Claims Act.
See TEX. CIV. PRAC. & REM. CODE § 101.106(a) (Vernon 2005);
4. The dismissal of the excessive force claims against Helen
Vernon and Sheriff Gomez, as there is insufficient evidence to
establish that they participated in the alleged actual use of force
against Joe Vernon, or that the alleged conspiracy to violate the
constitutional rights of Joe Vernon included an agreement to use
excessive force;

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2 Joe Vernon failed to sufficiently brief the dismissal of
these claims. Consequently, appeal of these holdings has been
forfeited.
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5. The dismissal of the claims against Helen Vernon and
Sheriff Gomez of civil conspiracy to violate Joe Vernon’s
constitutional rights with respect to excessive force;2
6. The dismissal of the claims of false arrest against
Deputies Campos and Garza based on qualified immunity, as their
“knowledge at the moment of arrest was sufficient for a person to
conclude that [Joe Vernon] had committed or was committing an
offense”, see Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir.
2001);
7. The dismissal of the claims against Deputies Campos and
Garza of civil conspiracy to violate the constitutional rights of
Joe Vernon as there is insufficient evidence to create a genuine
issue of material fact as to whether Deputy Campos or Garza was
involved in the alleged conspiracy;
8. The denial of Deputy Garza’s motion to dismiss the
excessive force claim against him on the basis of qualified
immunity, as the evidence does not conclusively establish that the
alleged use of force against Joe Vernon was objectively reasonable,
see Glenn, 242 F.3d at 312;
9. The denial of Deputy Natividad’s motion to dismiss the
excessive force claim against him on the basis of qualified
immunity, as the evidence does not conclusively establish that the

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alleged use of force against Joe Vernon was objectively reasonable,
see Glenn, 242 F.3d at 312;
We reverse the following rulings of the district court because
we find genuine issues of material fact exist that may determine
the legal liability of these defendants, or because the dismissal
of these claims was an error of law:
1. The dismissal of the claim of false arrest against Reeves
County, as there is evidence to indicate Sheriff Gomez’s direct
involvement in the alleged tortious acts against Joe Vernon, see
Turner v. Upton County, 915 F.2d 133, 137 (5th Cir. 1990);
2. The dismissal of the claim of false arrest against Helen
Vernon, as there is evidence to indicate she was a participant in
the alleged conspiracy and is thus not due qualified immunity;
3. The dismissal of the claim against Helen Vernon of civil
conspiracy to violate Joe Vernon’s Fourth Amendment right to be
free from false arrest, as there is sufficient summary judgment
evidence to suggest such a conspiracy in fact existed and that
Helen Vernon was a participant therein along with state actors, see
Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994);
4. The dismissal of the claim against Sheriff Gomez of civil
conspiracy to violate Joe Vernon’s Fourth Amendment right to be
free from false arrest, as there is sufficient summary judgment
evidence to suggest such a conspiracy in fact existed and that
Sheriff Gomez participated therein;

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5. The dismissal of the claim of false arrest against Sheriff
Gomez, as there is sufficient summary judgment evidence to suggest
that Sheriff Gomez participated in the alleged conspiracy, thus
making him liable for any tortious conduct arising from the
conspiracy, see, e.g., Hale v. Townley, 45 F.3d 914, 920 (5th Cir.
1995);
6. The dismissal of the claim of excessive force against
Deputy Campos, as there is sufficient evidence for summary judgment
purposes to suggest that he was involved in the use of force
against Joe Vernon and the evidence does not conclusively establish
that such force was objectively reasonable, see Glenn, 242 F.3d at
312;
7. The dismissal of the claim of false arrest against Deputy
Natividad, as he is not due qualified immunity on that claim as
there is sufficient summary judgment evidence indicating his
“knowledge at the moment of arrest was [in]sufficient for a person
to conclude that [Joe Vernon] had committed or was committing an
offense”, see Glenn, 242 F.3d at 313;
8. The dismissal of the claim against Deputy Natividad of
civil conspiracy to violate Joe Vernon’s Fourth Amendment right to
be free from false arrest, as there is sufficient summary judgment
evidence to suggest such a conspiracy in fact existed and that
Deputy Natividad was a participant therein.
These claims, as to which we are reversing, are remanded to
the district court for further proceedings.

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AFFIRMED in part; REVERSED in part; and REMANDED.

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