Case: 17-10968      Document: 00514790191         Page: 1    Date Filed: 01/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 17-10968                             FILED
                                  Summary Calendar                     January 10, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
MICHAEL BAZAN,

                                                 Plaintiff-Appellant

v.

ROBERT WHITFIELD, of Yoakum County Sheriff Department, Plains, Texas;
KELLY WILLIAMSON, of Yoakum County Sheriff Department, Plains, Texas,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:15-CV-185


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Michael Bazan, Texas prisoner # 1467471, proceeding pro se and in
forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983
against Robert Whitfield and Kelly Williamson, each an officer with the
Yoakum County Sheriff’s Department.                 He claims that, in May 2014,
Williamson conducted an unconstitutional search of his vehicle. In a separate



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 17-10968

incident occurring in September 2014, he claims that Whitfield employed
excessive force when his vehicle struck Bazan during the course of a traffic stop
immediately following a high-speed pursuit.
      Whitfield and Williamson moved for summary judgment, arguing that
there was no genuine issue of material fact that their actions did not rise to
the level of constitutional violations and that they were protected by qualified
immunity. They submitted videotapes, declarations, incident reports, witness
statements, and photographs in support of their contentions. Bazan opposed
their motion. In support of his claims, Bazan submitted a sworn declaration
and answers to a questionnaire issued by the magistrate judge. The district
court granted the defendants’ summary judgment motion and dismissed
Bazan’s complaint.
      We review de novo the district court’s summary judgment ruling. Hyatt
v. Thomas, 

, 176 (5th Cir. 2016).             Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). “A dispute is genuine if the summary judgment evidence is
such that a reasonable jury could return a verdict for the [non-movant].” 

(internal quotation marks and citation omitted). We “review
evidence in the light most favorable to the nonmoving party, but conclusional
allegations and unsubstantiated assertions may not be relied on as evidence
by the nonmoving party.” Carnaby v. City of Houston, 

, 187 (5th
Cir. 2011).
      Bazan claims that Williamson’s warrantless search of his vehicle during
the course of the traffic stop in May 2014 was unconstitutional because
Williamson did not have probable cause.          However, the uncontroverted
summary judgment evidence showed that Williamson smelled marijuana



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                                 No. 17-10968

emanating from the vehicle, which provided him with sufficient probable cause
to conduct a warrantless search. See United States v. Reed, 

, 149
(5th Cir. 1989); United States v. Villarreal, 

, 937 (5th Cir. 1978).
Accordingly, there is no genuine issue of material fact that Williamson’s search
of the vehicle did not violate Bazan’s constitutional rights.
      Regarding the incident that occurred in September 2014, the dashcam
video submitted by Whitfield, which is corroborated by other evidence, shows
that Bazan was driving a vehicle that committed a traffic violation, and
Whitfield activated his emergency lights to conduct a traffic stop. Instead of
pulling over, Bazan’s vehicle increased to a high rate of speed, and Whitfield
pursued it. After a high-speed pursuit that lasted approximately 30 seconds,
Bazan suddenly stopped his vehicle. In quick sequence, as Whitfield’s vehicle
approached the driver’s side of Bazan’s vehicle, Bazan opened his driver’s side
door and exited his vehicle; Whitfield’s car then struck him. Bazan claims that
when he exited his vehicle, he raised his arms in an attempt to surrender and
that Whitfield had plenty of time to stop but intentionally hit him instead.
      On their face, Bazan’s version of events appear to create a factual
dispute; however, in light of the dashcam video, his version is “so utterly
discredited by the record that no reasonably jury could have believed him.”
Scott v. Harris, 

, 378 (2007).            Bazan’s speculative and
unsubstantiated allegations that the dashcam video was somehow doctored or
altered are insufficient to create a material fact. See Waddleton v. Rodriguez,
__F. App’x__, 

, *4 (5th Cir. Sept. 7, 2018); Freeman v. Sims,
558 F. App’x 412, 413 (5th Cir. 2014). Because the dashcam video establishes
that Whitfield did not intentionally strike Bazan, Bazan cannot establish a
claim for the unconstitutional use of excessive force. See Young v. City of
Killeen, Texas, 

, 1353 (5th Cir. 1985); cf. Kingsley v. Hendrickson,



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                                  No. 17-10968

, 2472 (2015) (accidental discharge of a taser or accidentally
falling on a detainee is not excessive force).
      Based on the foregoing, Bazan has not raised a genuine issue of material
fact regarding whether his constitutional rights were violated. The district
court’s judgment granting summary judgment to the defendants and
dismissing Bazan’s complaint is hereby AFFIRMED.            Bazan’s motion for
appointment of counsel is DENIED.




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