Opinion
Civil Action No. 5:03-CV-006-C.
May 4, 2004.
ORDER
Came to be considered on this day, the Motion for Summary Judgment with Brief in Support filed by Defendants Justin Jones and Kathy Boyd on March 31, 2004. Plaintiff Mackey has filed a response and objections, and his own Motion for Summary Judgment.
To the extent that Plaintiff has attempted to add new allegations and defendants in his response to the motion for summary judgment, Plaintiff is admonished that he may not amend his pleadings at this late date in the proceedings. The Court has not considered the new allegations and will not allow Plaintiff to amend his complaint by adding new defendants.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that an individual acting "under color of law" caused the deprivation of a right secured by the United States Constitution. 42 U.S.C. § 1983; Scott v. Moore, 85 F.3d 230, 232 (5th Cir. 1996). Plaintiff alleges that Defendants Jones and Boyd violated his Eighth Amendment rights by (1) using excessive force against him on January 11, 2002, and March 26, 2002, in retaliation for Plaintiff filing grievances against Defendant Jones, and (2) failing to intervene to protect him from the use of force on March 26, 2002.
Plaintiff's claims against Defendants Jones and Boyd in their official capacities as employees of the TDCJ were dismissed pursuant to the doctrine of sovereign immunity by Order dated September 16, 2003.
In Defendants' motion for summary judgment, they argue that (1) Plaintiff failed to allege facts sufficient to support his claims of excessive use of force because he failed to demonstrate more than de minimis injuries and the force was used in a good faith effort to restore order; (2) there is no chronology of events sufficient to support Plaintiff's claims of retaliation; (3) Plaintiff failed to allege facts sufficient to support his failure-to-protect claims against Defendant Boyd; and (4) both Defendants Jones and Boyd are entitled to qualified immunity.
STANDARD OF REVIEW Summary Judgment
A motion for summary judgment permits a court to resolve a lawsuit without conducting a trial if the court determines (1) there is no genuine dispute as to any material facts and (2) the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The Fifth Circuit has summarized the summary judgment standard in Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999):
The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of a genuine issue of material fact. If the moving party carries its initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of a genuine issue of material fact. This showing requires more than some metaphysical doubt as to the material facts. While the party opposing the motion may use proof filed by the movant to satisfy its burden, only evidence — not argument, not facts in the complaint — will satisfy the burden.Id. at 465 (internal citations and quotations omitted).
The moving party satisfies the requirement to demonstrate the absence of a genuine issue of material fact by either (1) submitting evidentiary documents that negate the existence of some material element of the non-moving party's claim, or (2) merely pointing out the absence of evidence to support the non-moving party's claim, if the non-moving party will bear the burden of proof on that claim at trial. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Although the evidence and all reasonable inferences to be drawn therefrom must be considered in the light most favorable to the nonmoving party, he "may not rest on the mere allegations or denials of [his] pleadings, but must respond by setting forth specific facts indicating a genuine issue for trial." Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000) (quoting Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999)).
A district court does not have to limit the basis for summary judgment to the facts listed in a motion for summary judgment but may grant summary judgment on facts not briefed by the moving party if the non-moving party has notice of the issue. Turco v. Hoechst Celanese Chem. Group, Inc., 101 F.3d 1090, 1093 (5th Cir. 1996).
Qualified Immunity
"The doctrine of qualified immunity serves to shield . . . government official[s] from civil liability for damages based upon the performance of discretionary functions if the official[s'] acts were objectively reasonable in light of then clearly established law." Thompson v. Upshur County, TX, 245 F.3d 447, 456 (5th Cir. 2001) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "The bifurcated test for qualified immunity asks whether the plaintiff has alleged a violation of a clearly established right and, if so, whether the defendant[s'] conduct was objectively unreasonable." Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). Thus, when a defendant has filed a motion for summary judgment raising the defense of qualified immunity, a court must first determine whether the facts, "[t]aken in the light most favorable to the party asserting the injury," establish that the defendant officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).
A prisoner-plaintiff bears the burden of defeating a defendant prison official's claim to qualified immunity. Al-Raid v. Ingle, 69 F.3d at 33.
"If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. at 201. If the plaintiff has established the violation of a constitutional right, however, a court must then determine whether the right was "clearly established at the time of incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of that then clearly established law." Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Saucier v. Katz, 533 U.S. at 201. See Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997) (holding that the first inquiry "will generally involve analysis at a higher level of generality than the second, which focuses not only on the state of the law at the time of the complained of conduct, but also on the particulars of the challenged conduct and/or of the factual setting in which it took place").
"`Clearly established' means that `the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates'" the plaintiff's constitutional rights. Thompson v. Upshur, 245 F.3d at 457 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, 533 U.S. at 202.
A defendant official's "acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the United States Constitution or the federal statute as alleged by the plaintiff." Thompson v. Upshur, 245 F.3d at 457 (emphasis in original). "The `defendant's circumstances' includes facts know[n] to the defendant," but "because qualified immunity turns only upon the objective reasonableness of the defendant's acts, a particular defendant's subjective state of mind has no bearing on whether that defendant is entitled to qualified immunity." Id. (emphasis in original).
Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff filed a Motion for Summary Judgment on February 10, 2004, and argued that because his pleadings demonstrate that the "great weight of the evidence" is in his favor, he is entitled to summary judgment. Plaintiff did not support his motion with a sworn affidavit or any evidence.
The Court has reviewed the pleadings and all summary judgment evidence but finds that Plaintiff has failed to demonstrate that he is entitled to judgment as a matter of law. Accordingly, Plaintiff's Motion for Summary Judgment should be denied in all things.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
"The Eighth Amendment imposes on prison officials a duty to provide humane conditions of confinement and to take reasonable steps to ensure the [health and] safety of those confined." Lawson v. Dallas County, 112 F. Supp.2d 616, 634 (N.D. Tex. 2000) (citing Farmer v. Brennan, 511 U.S. 825, 831, 833 (1994)). To establish a violation of the Eighth Amendment, a prisoner must show that he was "incarcerated under conditions posing a substantial risk of serious harm" to his health or safety and the prison official acted with a "sufficiently culpable state of mind," that is, with deliberate indifference. Farmer v. Brennan, 511 U.S. at 834.
"Deliberate indifference is an extremely high standard to meet." Domino v. Texas Dept. of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. at 837. "Under exceptional circumstances, a prison official's knowledge of a substantial risk of harm may be inferred by the obviousness of a substantial risk." Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under [the Supreme Court] cases be condemned as the infliction of punishment" in violation of the Eighth Amendment. Farmer v. Brennan, 511 U.S. at 838. Moreover, a prison official "who actually knew of a substantial risk to [an inmate's] health or safety may be found free from liability if [he] responded reasonably to the risk, even if the harm ultimately was not averted." Id. at 844.
1. Excessive Use of Force
"In the Fifth Circuit, to succeed on an excessive force claim, the plaintiff bears the burden of showing: `(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable.'" Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (quoting Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). The plaintiff must demonstrate that the injury was more than a de minimis physical injury, but "there is no categorical requirement that the physical injury be significant, serious, or more than minor." Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999) (emphasis added). See Riley v. Dorton, 115 F.3d 1159, 1167 (5th Cir. 1997) ("An injury need not be severe or permanent to be actionable under the Eighth Amendment. . . .").
Defendant Jones argues that Plaintiff has failed to demonstrate that he suffered more than de minimis injuries and, therefore, he has failed to state a claim for an excessive use of force. Defendant Jones attached an authenticated copy of Plaintiff's TDCJ medical records; an authenticated copy of the TDCJ investigative report regarding the alleged use of force; and a sworn affidavit from Dr. Timothy Revell. In his affidavit, Dr. Revell summarized the medical records and concluded that it appeared "that there was a use of force on this inmate on the 26th of March of 2002[,]" but "there was not substantial injury done which required him to see the medical staff at the Preston Smith Unit, the Jordan Unit, or the Clements Unit on a continuing basis due to his pain." In his summary of the records, Dr. Revell noted that a nurse saw Plaintiff in the infirmary on March 26, 2002, at approximately 5:30 p.m. and she noted no swelling, bruising, or lacerations of his face. He was instructed to submit a sick call request if the condition of his neck deteriorated before he could see a provider (physician). Plaintiff did not see a physician on March 28, 2002, because there was no officer to escort him to the infirmary. Plaintiff was seen by a physician on April 9, 2002, and found to have muscle spasm in his neck. The physician ordered a C-Spine and skull x-rays, prescribed non-steroidal medication for fifteen days for the pain and robaxin for the spasm, and ordered Plaintiff to wear a c-collar for the spasm. Plaintiff filed another sick call request on June 28, 2002, complaining about the pain and stiffness in his neck. Plaintiff was then transferred to the Jordan Unit, where he was examined by Dr. Dominguez, who diagnosed Plaintiff as suffering from muscle strain, prescribed a non-steroidal anti-inflammatory medication for Plaintiff's pain, and ordered treatments of heat packs. Plaintiff was then examined by Dr. Ridge on July 30, 2002, after he was transferred to the Clements Unit. Plaintiff told Dr. Ridge that he had suffered a neck injury in March and could not move his neck properly. Although Dr. Ridge scheduled Plaintiff for an MRI on August 29, 2002, the records indicate that Plaintiff refused to go to the Montford Unit to have the MRI. Dr. Revell also noted that there was an x-ray report in the records from April 15, 2002, which showed that Plaintiff had spasms, some narrowing of the C-2 and C-3 "intervatibral" space, and chronic mastoid disease.
"`[W]henever prison officials stand accused of using excessive force, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir. 1998) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)) (emphasis added by Fifth Circuit). "[T]he absence of serious injury is quite relevant to an excessive force inquiry, but does not alone preclude relief." Id. at 839. See Gomez v. Chandler, 163 F.3d at 924 n. 4 (citing Siglar v. Hightower, 112 F.3d at 193) (leaving open the "possibility that a physical injury which is only de minimis may nevertheless suffice for purposes" of an excessive force claim under § 1983 "if the force used is of the kind `repugnant to the conscience of mankind'"). "[T]he Eighth Amendment's prohibition of cruel and unusual punishment excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort `repugnant to the conscience of mankind.'" Baldwin v. Stalder, 137 F.3d at 839 (quoting Siglar v. Hightower, 112 F.3d at 191, 193 (5th Cir. 1997) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992))).
The records indicate that Plaintiff was still suffering neck pain over five months after the use of force on March 26, 2002, and he never stopped complaining about the pain and muscle spasms during this time period. The record also shows that Defendant Jones received a reprimand from TDCJ following the investigation of his involvement in the use of force on March 26, 2002, and he has offered no summary judgment evidence to demonstrate that the use of force was necessary to restore order or maintain discipline. The Court finds that the summary judgment evidence raises genuine questions of fact regarding whether the injuries suffered by Plaintiff were de minimis and insufficient to support his claim for an excessive use of force, and genuine questions regarding whether the use of force was force used to restore or maintain discipline or force intended to maliciously cause harm. Accordingly, Defendant Jones has failed to show that he is entitled to summary judgment on Plaintiff's complaint regarding an excessive use of force on March 26, 2002.
Although Defendant Jones has also alleged that he is entitled to qualified immunity, he has failed to present any evidence to support his claim. Moreover, because there is a genuine issue of material fact regarding whether he unconstitutionally used excessive force on March 26, 2002, there is a fact question regarding whether his actions were objectively reasonable. Accordingly, Defendant Jones's claim to the defense of qualified immunity should be denied.
2. Failure to Protect
"To prevail on a section 1983 failure to protect claim, a prisoner must demonstrate that `he was incarcerated under conditions posing a substantial risk of serious harm and that [jail] officials were deliberately indifferent to his need for protection.'" Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999) (quoting Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998)). "In order to act with deliberate indifference, `the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). "[T]he `failure to alleviate a significant risk that [the official] should have perceived, but did not' is insufficient to show deliberate indifference." Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. at 838).
Defendant Boyd argues that she is entitled to summary judgment because Plaintiff has failed to demonstrate that she was deliberately indifferent to a threat to Plaintiff's safety or health on March 26, 2002. The records contain a statement from an Officer Resendez, who witnessed the incident on March 26, 2002, and observed Defendant Jones instruct Defendant Boyd to grab a video camera and follow him and the Plaintiff to administrative segregation. After the Plaintiff and Defendants arrived at administrative segregation without incident, the use of force occurred and Defendant Jones observed that the camera was not turned on. He ordered Defendant Boyd to turn on the camera and he then narrated a short summary of the incident. Defendant Boyd's statement, given on March 26, 2002, is also in the records and states that as she followed Defendant Jones and Plaintiff to administrative segregation, she was checking the battery and the type in the video camera when the "confrontation" occurred. She then turned on the video camera while Plaintiff stood against the wall and Defendant Jones narrated a short summary of the events.
There is no evidence in the record to support Plaintiff's claim that Defendant Boyd acted with deliberate indifference and he has failed to provide any evidence on summary judgment. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 527-28 (5th Cir. 1999) (holding that summary judgment was warranted where nothing in the record demonstrated that defendant subjectively knew of a substantial risk to plaintiff nor was there anything in the record which could even support an inference of a substantial risk of serious harm). The legal conclusion of deliberate indifference must rest on facts clearly evincing "obduracy and wantonness, not inadvertence or error in good faith." Whitley v. Albers, 475 U.S. 312, 319 (1986). Other than his conclusory allegations, Plaintiff has failed to offer any evidence to support his claim that Defendant Boyd deliberately failed to turn on the video camera and intervene to stop the use of force on March 26, 1999. Accordingly, the Court finds that Defendant Boyd is entitled to summary judgment on Plaintiff's claims regarding her failure to protect him from the use of force. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) ("[M]ere conclusory allegations are not competent summary judgment evidence, and such allegations are insufficient, therefore, to defeat a motion for summary judgment.").
Moreover, because Plaintiff has failed to demonstrate that Defendant Boyd violated a constitutional right, she is entitled to the defense of qualified immunity.
3. Retaliation
"To prevail on a claim of retaliation, a prisoner must establish (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his . . . exercise of that right, (3) a retaliatory adverse act, and (4) causation." McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). "Causation" requires the prisoner to show that "but for the retaliatory motive the complained of incident . . . would not have occurred." Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). "The [prisoner] must allege more than his personal belief that he is the victim of retaliation." Jones v. Greninger, 188 F.3d at 325. Thus, the prisoner "must produce direct evidence of motivation or, the more probable scenario, `allege a chronology of events from which retaliation may plausibly be inferred.'" Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)). "This places a significant burden on the [prisoner]." Woods v. Smith, 60 F.3d at 1166.
Defendant Jones argues that he is entitled to summary judgment on Plaintiff's claims of retaliation because Plaintiff has failed to demonstrate the absence of a genuine issue of material fact. King v. Dogan, 31 F.3d at 346. Defendant Jones has presented no documentary evidence that negates Plaintiff's claims of retaliation and although he argues that there is an absence of evidence supporting Plaintiff's retaliation claim, Plaintiff has alleged that he filed grievances against Defendant Jones prior to this incident and he has attached copies of these grievances to his complaint. Cf. Richardson v. McDonnell, 841 F.2d 120, 122-123 (5th Cir. 1988) (affirming a grant of summary judgment on a claim of retaliation because the prisoner "never offered any documentary or testimonial evidence to support his assertions" and thus there were no material issues of disputed fact). By failing to come forward with any evidence that refutes Plaintiff's allegations of retaliation, the Court finds that there is a genuine issue of fact regarding whether Defendant Jones acted in retaliation on March 26, 2002. Defendant Jones's motion for summary judgment and request for qualified immunity should be denied.
Plaintiff's claims against Defendant Boyd for retaliation were dismissed by Order dated September 16, 2003, for failure to state a claim.
CONCLUSION
It is, therefore, ORDERED that
1. Plaintiff Mackey's Motion for Summary Judgment is denied in all things.
2. Defendant Boyd's Motion for Summary Judgment is granted and all claims alleged against Defendant Boyd in her individual capacity for failure to protect on March 26, 2002, are dismissed with prejudice for failure to state a claim.
3. Defendant Jones's Motion for Summary Judgment is denied in all things.
Judgment pursuant to Federal Rule of Civil Procedure 54(b) shall be entered accordingly.
All relief not expressly granted is denied.
The instant civil case is set for trial on June 7, 2004, at 9:00 a.m. in the United States District Court, Lubbock, Texas.