Case 2:14-cv-00523-RSP Document 94 Filed 09/04/17 Page 1 of 3 PageID #: 1466
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`JEANETTE LIVEZEY, ET AL.
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`ERNESTO FIERRO, ET AL.
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`v.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`MEMORANDUM ORDER
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`Currently before the Court is the Plaintiffs’ Motion for Summary Judgment (Dkt. No. 93),
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`Case No. 2:14-CV-523-RSP
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`filed on June 16, 2017 by Plaintiffs Jeanette L. Livezey, individually and as Representative of the
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`Estate of William Howard Livezey, Jr., William Harold Livezey, Susan Irene Davis, John W.
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`Livezey, and Sandra L. Hartgers (collectively, Plaintiffs). The motion seeks judgment against
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`Defendant Ernesto Fierro, who is the only remaining defendant following the dismissal of the
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`claims against The City of Malakoff and Chief Billy Mitchell.
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`The case arises out of the tragic death of William Howard Livesey, Jr. following a traffic
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`stop by Officer Fierro on Highway 31 in Navarro County. Mr. Livesey was the husband of
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`Jeanette Livezey and the father of the other Plaintiffs. Plaintiffs allege, and the summary judgment
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`evidence shows, that Fierro, who was an off-duty police officer for the City of Malakoff, used
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`excessive force in arresting Mr. Livesey. Mr. Livesey was transported from the scene via
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`ambulance, and pronounced dead shortly thereafter due to a heart attack induced by the events.
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`Fierro was later convicted of aggravated assault and other charges in connection with his role in
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`the arrest.
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`Plaintiffs, as the surviving family of Mr. Livesey, brought this action under 42 U.S.C.
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`§1983, alleging a deprivation of Mr. Livesey’s constitutional rights. Acknowledging that there is
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`Case 2:14-cv-00523-RSP Document 94 Filed 09/04/17 Page 2 of 3 PageID #: 1467
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`no respondeat superior against a municipal employer under §1983, Plaintiffs claimed that the City
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`and the Chief of Police were liable for failure to properly screen, train and supervise Fierro.
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`Unfortunately for the Plaintiffs, the U.S. Supreme Court has erected a very high bar for imposing
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`liability on those grounds. Board of County Comm'rs v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382,
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`137 L.Ed.2d 626 (1997), (wherein the Court reversed this Court for upholding a jury verdict in
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`favor of the victim of excessive force during a traffic stop on the same theory put forward by the
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`Plaintiffs here).
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`Similarly, the training and supervisions claims also require deliberate indifference to the
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`known or obvious consequences of the failure, and a pattern of inadequate training over time to
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`multiple employees, “rather than a one-time negligent administration of the program or factors
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`peculiar to the officer involved in a particular incident.” Id. at 1390. Gros v. City of Grand
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`Prairie, 209 F.3d 431, 435 (5th Cir. 2000); Estate of Davis ex rel. McCully v. City of North
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`Richland Hills, 406 F.3d 375 (5th Cir. 2005). This Court reluctantly granted a motion for
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`summary judgment in favor of The City of Malakoff and Chief Mitchell. (Dkt. No. 82). On
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`appeal, the Fifth Circuit Court of Appeals affirmed. (Dkt. No. 91).
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`In the Order granting judgment in favor of the City and the Police Chief, the Court noted
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`that this was a case “in which Plaintiffs may proceed to obtain a judgment against Officer
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`Fierro.” (Dkt. No. 82 at 4). The current motion seeks precisely that. Ernesto Fierro, despite
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`service of the motion upon him, has not filed any opposition to it. The motion is well supported
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`and the liability of former officer Fierro is indisputable, as is his causation of Mr. Livezey’s
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`death. The Court also finds that Plaintiffs have filed ample summary judgment evidence to
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`support judgment against Fierro in favor of Mrs. Livezey in the amount of $2,750,000, in favor
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`Case 2:14-cv-00523-RSP Document 94 Filed 09/04/17 Page 3 of 3 PageID #: 1468
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`of each of the four children in the amount of $750,000 each, and in favor of the Estate in the
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`amount of $521,031.63. Judgment will be entered accordingly.
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