Opinion
Civil Action No. 3:01-CV-1938-L
September 26, 2003
MEMORANDUM OPINION AND ORDER
Before the court are Defendant Jose Lozada's Motion for Summary Judgment, Defendant Ramiro Moreno's Motion for Summary Judgment, and Defendant Carlos Fernandez's Motion for Partial Summary Judgment, all filed December 6, 2002. After careful consideration of the motions, response, reply, briefs, appendices, and applicable law, the court grants in part and denies in part Defendant Ramiro Moreno's Motion for Summary Judgment; grants Defendant Jose Lozada's Motion for Summary Judgment; and grants Defendant Carlos Fernandez's Motion for Partial Summary Judgment.
I. Procedural and Factual Background
Plaintiff Elias A. Okonkwo ("Plaintiff" or "Okonkwo") filed this action pursuant to 42 U.S.C. § 1983 on September 28, 2001, against the City of Garland ("the City"), Carlos Fernandez ("Fernandez"), Jose Lozada ("Lozada"), and Ramiro Moreno ("Moreno"), collectively referred to as "Defendants." Fernandez, Lozada, and Moreno were police officers of the City at the time of the incident which serves as the basis of this action. This action finds its origin in Plaintiff's arrest on October 10, 1999. He contends that the three officers used excessive force against him; maliciously prosecuted him for driving while intoxicated, resisting transportation, and possession of drug paraphernalia; and discriminated against him because of his race. Defendants deny Plaintiff's allegations and contend that probable cause existed to arrest Plaintiff and to refer his case to the Attorney's Office. Defendants contend that they have been properly trained regarding the use of force and the laws of arrest, and that the force used against Plaintiff was reasonable and necessary. Defendants also contend that Plaintiff's claims are barred by the doctrine of qualified immunity.
The court granted summary judgment on behalf of the City on March 14, 2003, and it is no longer a party to this action.
The court, at this time, sets forth the facts it relies on in addressing Defendants' motions for summary judgment. Many underlying facts are omitted because they simply are unnecessary and irrelevant to the resolution of the pending motions. The court provides additional facts as necessary during its analysis of each of Plaintiff's claims.
Okonkwo's vehicle was stopped by Fernandez, a police officer of the City, early Sunday morning on October 10, 1999. Fernandez states he stopped Okonkwo's vehicle because it failed to stay in a single lane, and the vehicle was being operated in an unusual manner in that it unnecessarily came to a complete stop at a railroad crossing. After the vehicle was stopped, Fernandez directed Okonkwo to produce his driver licence and insurance card. Fernandez made several observations of Okonkwo and asked him to step out of his car; Okonkwo complied. By this time, Lozada, another police officer of the City, had arrived to provide backup for Fernandez. Fernandez and Lozada performed several field sobriety tests on Okonkwo to determine whether he was intoxicated. Both officers state that Okonkwo had bloodshot, watery eyes, and failed to follow Fernandez's instructions. Fernandez also states that Okonkwo was at one time swaying from side to side and front to back in a circular motion. Based upon the field sobriety tests and what he had observed regarding Okonkwo, Fernandez believed that he had been driving while intoxicated and decided to transport him to the City jail to take a breath or blood test. He handcuffed Okonkwo and placed him in the back seat of his patrol car.
Okonkwo states that he was not intoxicated and that he had drunk only one beer and this took place between 8:00 p.m. and 9:00 p.m. on October 9, 1999. Other than this one bottle of beer, Okonkwo states that he had not consumed "any sort of alcoholic beverage" for several months prior to his arrest on October 10, 1999. For purposes of summary judgment, the court accepts Okonkwo's statements as true. Under the summary judgment standard, the court must accept Okonkwo's version of the facts as true, unless there is some legal reason for not doing so.
The jail is where the use of force incident took place. Fernandez and Okonkwo agree that once Okonkwo was removed from the patrol car, Fernandez escorted Okonkwo to the rear of the car, with Okonkwo facing its trunk. At this point, Fernandez and Okonkwo's accounts of what occurred vary widely.
According to Okonkwo, Fernandez then removed a grocery bag from the front seat of his patrol car and placed it on the rear deck of the squad car. Okonkwo states that initially only one of the officers was with him near the car. At some point during the time he was required to face the rear of the squad car, the other two Defendant officers came near the police car in which he had been driven to the police station. The contents of the grocery bag were emptied on the rear deck. This grocery bag contained several small plastic bags. Each small plastic bag contained a small amount of a white powdery substance. One of the officers said to Okonkwo, "Why did you put this in my car?" Okonkwo states that he was quite surprised by this statement because he had nothing to do with the grocery bag or its contents. Before the bag was placed on the rear deck of the police car, Okonkwo had not seen or noticed it until one of the officer Defendants removed it from the front seat of the patrol car that was used to transport him to the parking lot near the jail. Okonkwo asked the officer, "How could I put that into your car while being handcuffed? Are you trying to frame me or set me up?" He received no reply. Okonkwo states that he did not place either the grocery bag or its contents into any patrol car. Okonkwo had been searched before he was placed in the patrol vehicle.
Okonkwo states that after he posed the question to Fernandez, Fernandez, without cause or provocation, struck him in the head and caused him to fall backwards and land on the pavement on his back. The rear of his head struck the pavement. All three of the Defendants participated in the conduct that knocked him to the ground. One of the officers then placed his knee into Okonkwo's chest and at the same time one or more of the Defendants placed their hands around his neck and choked him into unconsciousness. Okonkwo felt more than two hands around his neck. While he was being choked, one or more of the Defendants, without cause, sprayed pepper spray into his face and eyes. Okonkwo states that he suffered through several minutes of the infliction of unnecessary choking, extreme pain and torture. When he was on the ground, all three Defendants either kicked him or struck him several times with their fists. Okonkwo states that while he was unconscious, Defendants, using a metal chain, shackled his feet together. After several minutes, he regained consciousness and Defendants forced him to his feet, and the handcuffs were violently twisted on his hands; he was forcibly pushed and shoved into the entrance of what he later learned was the Garland Municipal Jail.
Okonkwo states that he did not resist arrest or resist being transported to jail. He further states that he did not hit, kick, or assault any of Defendants and did not attempt to do so; and he did not resist Defendants Fernandez's, Moreno's, or Lozada's police authority.
Fernandez acknowledges using force against Okonkwo, but he states it was only after Okonkwo became agitated, turned his body toward him and struck him in the chest. Okonkwo, who was heavier and taller than Fernandez, started kicking at him and moving his body in a violent way. According to Fernandez, he took Okonkwo to the ground in an effort to subdue him. Fernandez acknowledges that at some point during the altercation, he applied pepper spray to Okonkwo's face to subdue him. Fernandez states after Okonkwo was struggling with him on the ground, Moreno appeared on the scene and restrained Okonkwo's legs. Moreno states that he never hit or struck Okonkwo and did nothing more than sit on Okonkwo's legs to restrain him until they were shackled. Fernandez identifies Moreno as the only other police officer present during the altercation. Lozada states that he was not present at the jail when the altercation occurred.
Okonkwo was taken to jail and booked. He was charged with driving while intoxicated (DWI), resisting transportation, and possession of drug paraphernalia. The City did not pursue the Class C misdemeanor drug paraphernalia charge, and it was "dismissed pending higher charges." With respect to the DWI and resisting transportation charges, Okonkwo entered into a plea agreement whereby he pleaded guilty to the offense of obstruction of a passageway. The DWI and resisting transportation charges were dismissed as a result of the plea agreement on April 24, 2001. On the same day, Okonkwo voluntarily entered a plea of "nolo contendere," was placed on deferred adjudication, and assessed a fine of $600. II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Defendants' Motions for Summary Judgment
A. Plaintiffs Excessive Force Claim
1. Parties' Contentions
Plaintiff contends that all three officers used excessive force against him. Fernandez denies that he used any excessive force against Plaintiff; however, he acknowledges that a fact issue exists regarding his use of force and does not seek summary judgment on this claim. Moreno contends that this claim fails because "he did nothing more than hold the Plaintiff's legs after the altercation with Fernandez had occurred." Lozada contends that this claim fails because "he was not present during the purported incident" and therefore could not have used excessive force against Okonkwo.
2. Standard for an Excessive Force Claim
A plaintiff's claim for excessive force must be determined according to Fourth Amendment standards because "all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `subjective due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1989). The issue of reasonableness centers on whether the officer's actions are "objectively reasonable" in light of the facts and circumstances with which he is faced, without regard to the officer's underlying intent or motivation. Id. at 397. Whether the use of force is reasonable "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. In applying Graham, the Fifth Circuit uses a three-part test for § 1983 excessive force claims, requiring a plaintiff to show (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable. Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003); Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996); Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993); Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992), cert. denied, 507 U.S. 926 (1993). Injury means damage or harm to the physical structure of the body, including diseases that naturally result from the harm. Knight v. Caldwell, 970 F.2d at 1433.
3. Analysis
a. Officer Moreno
Moreno states that he observed an altercation between Okonkwo and Fernandez and that his only involvement in the incident was to assist a fellow officer by sitting on and holding Okonkwo's legs until they were shackled. He states that he never struck or hit Okonkwo. At his deposition, Okonkwo testified that he did not know which officer was whom and did not know who Moreno was at the time of the deposition. That Okonkwo could not identify Moreno is not fatal to his excessive force claim.
First, in reading excerpts of Okonkwo's deposition, the court notes that Okonkwo states that when he first got out of the patrol car in the jail parking lot, only Fernandez was present. Okonkwo, however, clearly testifies in his deposition that during the altercation, another officer was present by the use of the word "they" in several places. He knew another officer was present; he just did not know his identity. The record clearly establishes that Moreno was the other officer assisting Fernandez. Okonkwo's deposition testimony ascribes more than a passing role to Moreno in the altercation.
Second, the arrest report, which is a business record of the City, indicates that Moreno's involvement in the incident was more than what is stated in the affidavits of Fernandez and Moreno. The arrest report narrative states in part:
Elias [Okonkwo] turned around quickly and began yelling at Ofcr. stating he was being framed. Elias struck Ofcr. Fernandez in the chest with his left arm. Ofcr. Moreno observed that Elias was becoming combative and assisted Ofcr. Fernandez. Elias began to violently move from side to side and begin to kick at ofcrs. Ofcrs. continued to yell "stop resisting." Elias ignored ofcrs commands and was taken to [the] ground for his and ofcrs.' safety. Due to Elias['s] violent behavior Ofcr. Fernandez dispensed two 1 second bursts of O.C. pepper spray to Elias['s] face and eyes. Elias continued to resist for approx. 5 minutes. Ofcrs. were finally able to restrain Elias and placed leg restraints on him and escort[ed] him inside the jail.
Plaintiff's Appendix at 2. The narrative reflects that Moreno was involved in the altercation, or at least present, before Okonkwo was taken down to the ground. A fair reading of the narrative would cause one to believe or infer that Moreno assisted Fernandez in taking Okonkwo to the ground. In any event, this is a disputed set of facts, and the court must view the evidence in the light most favorable to the nonmovant.
Using this standard, the court determines that Okonkwo has created a genuine issue of material fact as to each of the three elements for an excessive force claim against Moreno. Summary judgment in Moreno's favor is therefore inappropriate.
b. Officer Lozada
Lozada contends that he cannot be liable on the excessive force claim because he was not present and not involved in the altercation. The court agrees.
As previously stated, Okonkwo did not know which officer was whom at his deposition. He could not identify them. Fernandez and Moreno indicate that they were the only officers present. Lozada states that he was not involved in the jail incident; he was present at the initial stop, but returned to his patrol duties after the stop had been completed. Okonkwo simply cannot establish, or raise a genuine issue of material fact, that Lozada participated in or was present at the altercation. In his affidavit, Okonkwo uses the term "Defendants" and states that "[a]ll three of the Defendants participated in the conduct that knocked me to the ground." This statement clearly contradicts his deposition testimony in which he stated that the transporting officer knocked him to the ground and that this officer was the only officer he saw at the time. Okonkwo fails to explain or clarify these variances between his deposition testimony and his subsequent affidavit. A party cannot "defeat a motion for summary judgment [by] using an affidavit that impeaches, without explanation, sworn testimony." S.W. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996).
For these reasons, the court determines that no genuine issue of material fact exists with respect to whether Lozada was present or participated in the altercation between the other officers and Okonkwo. Since there is no causal connection between any conduct of Lozada and the alleged harm suffered by Okonkwo, Lozada cannot be liable to Okonkwo and is entitled to judgment as a matter of law.
c. Officer Moreno and Qualified Immunity
i. Qualified Immunity Standard
Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Defendant Moreno has pleaded this defense.In deciding a motion for summary judgment that raises the defense of qualified immunity, the court must first decide "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999) (citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991)); see also Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999). The second prong of the test requires the court to make two separate inquiries: whether the right allegedly violated was clearly established at the time of the event giving rise to the plaintiff's claim, and if so, whether the conduct of the defendant was objectively unreasonable. Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999). Although many cases continue to state that the determination of the qualified immunity issue requires the application of a bifurcated test, the analytical framework for resolving issues of qualified immunity necessarily requires, or may require, a three-step analysis. See Kerr v. Lyford, 171 F.3d at 339; Evans v. Ball, 168 F.3d at 860; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995), cert. denied, 517 U.S. 1191 (1996).
Whether a defendant acted within the scope of his authority performing a discretionary function and whether a reasonable official in his position would have deemed his conduct unconstitutional are not to be considered by the court unless each part of the three-step inquiry has been answered affirmatively on behalf of the plaintiff. Kerr v. Lyford, 171 F.3d at 339. In other words, only after a plaintiff demonstrates the existence and violation of a clearly established constitutional or statutory right is the defendant required to show that he was performing a discretionary function and that a reasonable official would not have considered his actions to be unconstitutional at the time of the incident in question. Id. at 338.
A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson v. Creighton, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir. 1998); and Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997).
In Anderson v. Creighton, 483 U.S. at 641, the Supreme Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether an action is legal], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) ( citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). Qualified immunity is designed to protect from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. at 341. Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster v. City of Lake Jackson, 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson v. Creighton, 483 U.S. at 640. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances." Pierce v. Smith, 117 F.3d at 882; Stefanoff v. Hays County, 154 F.3d at 525.
ii. Officer Moreno
Moreno is not entitled to qualified immunity on Okonkwo's claim of excessive force. Okonkwo has sufficiently established that he sustained an injury on the date in question, has raised a genuine issue of material fact as to whether the use of force was clearly excessive to the need, and whether the use of such force was objectively unreasonable. If a jury were to believe that the altercation transpired in the manner that Okonkwo described; that Okonkwo sustained the injury he described; and that he did not resist the officers, it could not conclude that a reasonable officer would have believed that the use of force by Moreno was objectively reasonable under the circumstances. The disposition of this issue is based on credibility, and the court cannot make credibility assessments or weigh the evidence in deciding a motion for summary judgment. Reeves, 530 U.S. at 150. Since a genuine issue of material fact exists whether the force used by Moreno was excessive and objectively unreasonable, he is not entitled to qualified immunity. Summary judgment in favor of Moreno is not permissible on this claim.
B. Plaintiff's Malicious Prosecution Claim
1. Contentions of the Parties
Okonkwo contends that he has established all the elements of a malicious prosecution claim, or at least raised a genuine issue of material fact with respect to each of the elements of a malicious prosecution claim. Defendants contend that Okonkwo fails to raise a fact question regarding each of the elements for a malicious prosecution claim. Because of this failure, they contend the claim fails as a matter of law.
2. Standard for a Malicious Prosecution Claim
The elements of a claim for malicious prosecution include (1) a criminal action commenced against the plaintiff; (2) that the prosecution was caused by the defendants or with their aid; (3) that the action terminated in the plaintiff's favor; (4) that the plaintiff was innocent; (5) that the defendants acted without probable cause; (6) that the defendant acted with malice; and (7) that the criminal proceeding damaged the plaintiff. Kerr, 171 F.3d at 340; Taylor, 36 F.3d at 455. To survive Defendants' motions for summary judgment, Okonkwo must demonstrate either (1) the record affirmatively establishes each element of the claim, or (2) enough genuine, material factual disputes exist regarding each element that the ultimate finding of that element is the subject of a genuine, material factual dispute. Kerr, 171 F.3d at 340. The court concludes, based on the summary judgment evidence, that Okonkwo fails to establish, or raise a genuine issue of material fact, that the criminal proceedings brought against him terminated in his favor.
For a prosecution or proceeding to terminate in favor of the accused, such proceeding must "affirmatively indicate that he is not guilty" of the offense charged. Evans v. Ball, 168 F.3d 856, 859 (5th Cir. 1999). In such a case, the issue is not whether the disposition of the proceeding "fails to indicate that the accused is guilty," but whether the disposition "affirmatively indicate[s] a lack of guilt." Id. For the prosecution or proceeding to be terminated in one's favor, there cannot be a quid pro quo arrangement. Izen v. Catalina, 256 F.3d 324, 328 (5th Cir. 2001). Plea bargains or agreements to terminate the proceedings or retirement from government employment in exchange for dismissal of criminal charges does not constitute a favorable termination of a proceeding because they involve quid pro quo arrangements. Id.
3. Analysis
None of the charges against Plaintiff was terminated in his favor for purposes of a malicious prosecution claim. All were quid pro quo arrangements. The possession of drug paraphernalia charge was dismissed in light of higher charges pending. The DWI and resisting transportation charges were dismissed in exchange for Okonkwo pleading "nolo contendere" to an obstruction of passageway charge. The bottom line is that none of the prosecution proceedings terminated in favor of Okonkwo because they do not affirmatively indicate a lack of guilt on Okonkwo's part. Since Okonkwo fails to raise a genuine issue of material fact on an essential element of his malicious prosecution claim, Defendants are entitled to judgment as a matter of law on this claim.
C. Plaintiff's Race Discrimination Claim
In his Complaint, Okonkwo contends that Defendants discriminated against him because of his race and place of birth. This claim is vague and conclusory. Okonkwo has pled nothing more specific alleging racial or national origin discrimination. "To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class." Williams v. Bramer, 180 F.3d 699, 705 (5th Cir. 1999) (citations omitted). Moreover, Okonkwo has produced no evidence, direct or circumstantial, against any Defendant to establish, or create a genuine issue of material fact, that any officer intentionally discriminated against him because of his race or national origin on October 10, 1999, or thereafter. Accordingly, Defendants are entitled to judgment as a matter of law on Plaintiff's race discrimination claim.
IV. Conclusion
For the reasons stated herein, Okonkwo has failed to raise a genuine issue of material fact against Defendants regarding his claim of malicious prosecution; has failed to raise a genuine issue of material fact regarding his excessive force claim against Defendant Lozada; and has raised no genuine issue of material fact against Defendants regarding his racial discrimination claim. Okonkwo has, however, raised a genuine issue of material fact for an excessive force claim against Defendant Moreno. Accordingly, for the reasons herein stated, the court grants in part and denies in part Defendant Ramiro Moreno's Motion for Summary Judgment; grants Defendant Jose Lozada's Motion for Summary Judgment; and grants Defendant Carlos Fernandez's Motion for Partial Summary Judgment. This action is hereby dismissed with prejudice against Lozada.
In light of the court's ruling, the only remaining claim is the excessive force claim against Fernandez and Moreno. The court will issue forthwith an amended scheduling order setting this action for trial on the remaining claim.