MEMORANDUM ORDER

A. JOE FISH, United States District Judge.

Before the court are (1) the motions of the defendants Chris Roberts ("Roberts"), Susan Bitney ("Bitney"), (collectively, the "individual defendants") and the City of Irving, Texas (the "City") for summary judgment; (2) the motion of Roberts to dismiss certain of the plaintiff Leonard Gerald Singer's ("Singer's") claims against him; and (3) the motion of Bitney and the City to dismiss certain of Singer's claims made against them. For the following reasons, all of these motions are granted.

I. BACKGROUND

Singer has sued Irving Police Officers Roberts and Bitney, along with the City, for claims arising out of his arrest on February 8, 1997 at 208 Santa Fe Trail in Irving, Texas. See First Amended Complaint ("Complaint") ¶ 4; Brief in Support of Defendants Chris Roberts, Susan Bitney and the City of Irving, Texas' Motion for Summary Judgment ("Brief") at 1.

On that date, Roberts and Bitney, while in their marked patrol vehicle, stopped Singer's car. See Complaint ¶ 4; Motion for Summary Judgment of Defendants Chris Roberts, Susan Bitney and City of Irving ("Motion") at 4, ¶ 1. They had been dispatched to a "suspicious person" in a vehicle and informed that the vehicle had the license plate number matching that of Singer's car. Motion at 5, ¶¶ 4, 5. During the stop, Singer does not dispute that Roberts discovered a baggie of marijuana and a glass stem in Singer's pants pockets while he was conducting a " Terry frisk" of Singer to ascertain if he had any weapons. Complaint ¶¶ 6-8; Motion at 5, ¶¶ 8-11.

As Singer puts it, he "then attempted to evade arrest," and Roberts threw him to the ground. Complaint ¶ 9. The defendants aver that Singer resisted arrest by pushing Bitney, starting to run, and then hitting Bitney three times in the chest and Roberts once in the jaw as they attempted to prevent his escape after the three had fallen to the ground. Motion at 6, ¶¶ 13-18. While Singer was on the ground, fighting with the individual defendants, Bitney sprayed him with pepper spray. Complaint ¶ 10; Motion at 6, ¶¶ 20. During the time that he was struggling with the officers, Singer complains that Roberts "forcefully and repetitively bounced his body weight on and off of [Singer]'s back, while violently slamming his fists into [Singer]'s midsection when they were body to body." Complaint ¶ 11. Singer also alleges that Roberts slammed his head into the road. Id. ¶ 12. Roberts and Bitney then handcuffed Singer (he alleges that he had been rendered unconscious by this time) and placed him in their car. Id. ¶¶ 13-15. The defendants deny that they used any force against Singer after he was handcuffed, or that he ever lost consciousness. Motion at 7, ¶¶ 23, 24.

After Roberts and Bitney had placed Singer in the back of their patrol car, all parties agree that Singer refused to spit out something he was chewing on, even after Roberts and Bitney demanded that he spit it out. Complaint ¶¶ 16-17; Motion at 7, ¶¶ 25, 26. There followed a somewhat lengthy struggle between the two officers and Singer, as they attempted to force open Singer's mouth against his will. Complaint ¶¶ 18-22. The individual defendants maintain that they were concerned that Singer might have been chewing on drugs or some other contraband, and that they used what techniques were necessary to prevent Singer from swallowing something which might endanger himself. Motion at 7, ¶¶ 25-30. After this struggle, Roberts and Bitney then took Singer to jail, where he alleges that they denied him timely medical treatment for some twelve hours after he was booked into the Irving jail. Complaint ¶¶ 24-32. According to Singer, the defendants had pried one of the fillings from his teeth while they were attempting to get his mouth open, and he was suffering from numerous injuries when he arrived at the City jail as a result of his fighting with the defendants. Complaint ¶¶ 120, 26-29. The defendants aver that Singer was evaluated at the scene by City Emergency Medical personnel, who then released him to be taken to jail. Motion at 9, ¶ 39. This examination was done in compliance with the Police Department's guidelines regarding the use of pepper spray. Id. at 10, ¶ 47.

On February 26, 1998, Singer pled nolo contendre in the 195th Criminal District Court of Dallas County, Texas, in Cause No. F-97-01520-N, styled State of Texas v. Leonard Singer, to the felony offense of Assault on a Public Servant. Brief at 2. At the time that Singer entered his plea, he signed a Judicial Confession which expressly stipulated that he

unlawfully, then and there, intentionally, knowingly and recklessly cause[d] bodily injury to SUSAN BITNEY, hereinafter called complainant, by striking complainant with his hand, and at the time of the offense and assault, complainant was a public servant, namely an IRVING POLICE OFFICER, and complainant was lawfully discharging an official duty and defendant knew said complainant was a public servant.

II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment

Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving parties are entitled to judgment as a matter of law. FED. R, CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

Movants for summary judgment make such a showing by informing the court of the basis of their motion and by identifying the portions of the record which reveal there are no genuine material fact issues to support the nonmovant's case. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).

Once the movants make this showing, the nonmovant may not rest on the allegations in his pleadings. Celotex, 477 U.S. at 324; FED. R. CIV. P. 56(e). Rather, he must direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must present evidence sufficient to support a resolution of the factual issue in her favor. Anderson, 477 U.S. at 257.

While all of the evidence must be viewed in a light most favorable to the plaintiff as the motion's opponent, id. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy his summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) ( en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the individual defendants and the City is proper if, after adequate time for discovery, Singer fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

B. Singer's Excessive Force Claim Against Roberts and Bitney

"Public officials acting within the scope of their official duties are shielded from civil liability by the qualified immunity doctrine." Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999). Government officials are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 768 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). However, before this court reaches the issue of qualified immunity, it must decide whether Singer has stated a claim for a violation of a constitutional right. Sappington v. Bartee, 195 F.3d 234, 236 (5th Cir. 1999). "Thus, if it becomes evident that the plaintiff has failed to state or otherwise to establish a claim, then the defendant is entitled to dismissal on that basis." Id. at 236 (quoting Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995)).

The defendants here argue that Singer's plea of no contest to the charge of assault on a public servant bars his excessive force claim as a matter of law. See Brief at 5-7. The Fifth Circuit has had at least two prior occasions to discuss the preclusive effect of a criminal conviction for assaulting an officer on a section 1983 plaintiff's claim for excessive force. In Hudson v. Hughes, 98 F.3d 868, 870 (5th Cir. 1996), Hudson had been arrested for a variety of offenses and convicted of being a felon in possession of a firearm and for battery of a police officer. He subsequently filed a section 1983 suit against the District Attorney's Office, the City of New Orleans, and several of the arresting officers, asserting claims of excessive force, false arrest, ineffective assistance of counsel, and claims based on the condition of the jail. Id. at 870-871. Hudson alleged that during his arrest, a police officer incited a K-9 dog to bite him while he was lying down, kicked him and hit him with a flashlight. Id. at 870. In his complaint, Hudson expressly alleged that he was "brutally beaten during his arrest, that excessive force was used, and that these acts were unconstitutional." Id. at 871.

The Fifth Circuit began its analysis of Hudson's case by considering the impact of Heck v. Humphrey, 512 U.S. 477 (1994), on the facts before it. In Heck, the Supreme Court ruled that a section 1983 claim that effectively attacks the constitutionality of a conviction or imprisonment does not accrue until that conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Hudson, 98 F.3d at 872 (quoting Heck, 512 U.S. at 487). According to the Supreme Court, "[w]e think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement. . . ." Hudson, 98 F.2d at 872 (quoting Heck, 512 U.S. at 486). "The maturity of a section 1983 claim therefore depends on `whether a judgment in [the plaintiff's] favor . . . would necessarily imply the invalidity of his conviction.'" Hudson, 98 F.3d at 872 (quoting Heck, 512 U.S. at 486).

The Hudson court then went on to uphold the district court's ruling that Heck precluded Hudson's section 1983 claim based on excessive force used by the officers during his arrest. Id. at 872. Hudson was arrested and convicted of battery of an officer, and self-defense is a justification defense to the crime of battery of an officer in Louisiana. Id. at 873 (citing Louisiana v. Blancaneaux, 535 So.2d 1341 (La.App. 1988) (discussing justification defense to battery of officer conviction)). To make out a justification defense, Hudson would have had to show that his use of force against the arresting officers was both reasonable and necessary to prevent a forcible offense against himself. See id. at 873. Because self-defense was a justification defense to the crime on which Hudson was convicted, Hudson's claim that the officers who arrested him used excessive force would, if proved, necessarily imply the invalidity of his arrest and conviction for battery of an officer. "This is true because the question whether the police applied reasonable force in arresting [Hudson] depends in part on the degree of his resistance, which in turn will place in issue whether his resistance (the basis of his conviction for assaulting a police officer) was justified, which, if it were, necessarily undermines that conviction." Id. at 873.

In Sappington, 195 F.3d at 234, the Fifth Circuit decided a similar case in which an arrestee convicted of aggravated assault of a police officer had brought a section 1983 action against several of the arresting officers, alleging excessive force, among other things. The court reviewed both the Heck and the Hudson decisions, and then expressly discussed the TEXAS PENAL CODE and its provisions relating to the offense of aggravated assault and any defenses thereto. Id. at 235-37. The district court had reasoned that the arrestee's conviction for assaulting the officer did not necessarily imply the invalidity of his criminal conviction because under Texas law, unlike Louisiana law, the use of force to resist arrest is justified only if, among other elements, the arresting peace officer uses unnecessary force "before the actor offers any resistance." Id. at 236 (quoting TEX. PEN. CODE § 9.31(c)(1)). The Fifth Circuit disagreed, however, on the grounds that Sappington's criminal conviction for aggravated assault necessarily implied that the arresting officer did not use excessive force. Id. at 237. The court wrote:

Conviction for aggravated assault required proof that Sappington caused "serious bodily injury." TEX. PEN. CODE § 22.02(a)(1). We hold as a matter of law that the force Sappington claims was used cannot, under Heck, be deemed excessive. Under Texas law, any person can use force up to and including deadly force "to protect himself against the other's use or attempted use of unlawful deadly force." TEX. PEN. CODE § 9.32(3)(A). "Deadly force" is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." TEX. PEN. CODE § 9.01(3). Further, a peace officer is justified in using deadly force in the course of an arrest if he reasonably believes that there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the officer or another if the arrest is delayed. TEX. PEN. CODE § 9.51(c)(2). Sappington's criminal conviction required proof that he caused serious bodily injury to Garcia. Garcia was justified in using force up to and including deadly force to resist the assault and effect an arrest. As a matter of law, therefore, the force allegedly used by Garcia cannot be deemed excessive.

The analyses of Hudson and Sappington are equally applicable to the case at bar. Sections 22.01(a)(1) and (b)(1) of the Texas Penal Code (the "Code") set forth the elements of the felony offense of Assault on a Public Servant. They read:

§ 22.01. Assault

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another. . . .

* * *

(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:

(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant. . . .

TEX. PEN. CODE § 22.01(a)(1), (b)(1) (Vernon 1994).

The Code also provides for the defense of "Self Defense" to such an offense. Specifically, Section 9.31 of the Code provides:

(c) The use of force to resist an arrest or search is justified;

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

TEX. PEN. CODE § 9.31(c) (Vernon 1994).

Thus, self defense is a defense to the crime of assault on a public servant, and Singer's excessive force claim against the defendants is barred by the same principles underlying the Fifth Circuit's Sappington and Hudson decisions. See, e.g., Evans v. State, 876 S.W.2d 459, 464-65 (Tex.App.-Texarkana 1994, no writ) (suspect's attempted assertion of self-defense as justification to charge of aggravated assault on a peace officer). Just as in Hudson and Sappington, Singer here seeks to recover for the alleged use of excessive force by Roberts and Bitney in connection with his arrest. Like the plaintiffs in the two other cases, however, Singer has already been convicted of assaulting the arresting officer during the course of the arrest. Singer has stipulated under oath that he caused bodily injury to Officer Bitney by striking her with his hand; that at the time of the assault she was a City police officer discharging an official duty; and that he knew she was a public servant. Since Singer's assertion that Roberts and Bitney used excessive force while apprehending him would, if proved, necessarily imply the invalidity of his arrest and conviction for Assault on a Public Servant, his excessive force claim is precluded as a matter of law.

C. Singer's Claims Against the City

To hold a municipality accountable for a violation of constitutional rights, a plaintiff must show: (1) that the municipal employee violated his clearly established constitutional rights with subjective deliberate indifference; and (2) that this violation resulted from a municipal policy or custom adopted and maintained with objective deliberate indifference. Olabisiomotosho v. City of Houston, 185 F.3d 521, 528-29 (5th Cir. 1999). Inasmuch as this court has already decided that Singer does not state a § 1983 claim against Roberts or Bitney, and Singer has claimed that the City's liability flows from the actions of the individual defendants, Singer's claims against the City fail as well. See id. at 529.

D. Singer's Eighth Amendment Claims

It is well settled that pre-trial detainees may not bring an action based upon the Eighth Amendment. See, e.g., Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996) ("The protections of the Eighth Amendment against cruel and unusual punishment are limited in scope to convicted prisoners and do not apply to pretrial detainees. . . ."); Thibodeaux v. Bordelon, 740 F.2d 329, 334 (5th Cir. 1984) (same). "The Supreme Court has made it clear that the eighth amendment protects only those who have been convicted of a crime." Thibodeaux, 740 F.2d at 334. The basis of Singer's complaint is the incident on February 8, 1997, which resulted in his arrest and detention at the City jail. In light of the fact that Singer had not, at the time of the incident in question, been convicted of a crime or incarcerated as a result of the conviction, he has — as a matter of law — no cognizable action under the Eighth Amendment.

E. Singer's Claims Under the Texas Constitution

As a result of the February 8, 1997, incident, Singer seeks to recover money damages from the defendants under Article 1 § 10 and Article 1 § 13 of the Texas Constitution. Complaint ¶¶ 35-36. Singer has not made a claim for equitable relief. The Fifth Circuit has stated that:

The Texas Supreme Court has specifically rejected the implication of a Bivens-type action for damages under the state constitution. Rather, the only remedy afforded by that constitution is equitable relief from governmental actions taken in violation of its dictates.

In view of the fact that Singer is only seeking to recover money damages herein, his claims under the Texas Constitution must be dismissed as a matter of law.

III. CONCLUSION

SO ORDERED.