Hmeid v. Nelson Coleman Correctional Center

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BASHIR IBRAHIM HMEID CIVIL ACTION

VERSUS NO. 18-3449

NELSON COLEMAN CORRECTIONAL MAGISTRATE JUDGE

CENTER, ET AL. JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTION

This is a civil action brought by Bashir Ibrahim Hmeid under 42 U.S.C. § 1983

(“Section 1983”) against the Nelson Coleman Correctional Center (“Coleman”), Deputy

Charles Floyd (“Floyd”), Deputy David Bailey (“Bailey”), Lieutenant Rocco Dominic

(“Dominic”) and Sergeant Darryl Richardson (“Richardson”). Hmeid originally asserted

six claims: (1) While incarcerated in Coleman on August 17, 2017, Deputies Floyd and

Bailey, Lieutenant Dominic and Sergeant Richardson used excessive force against him

when they tased and beat him during a strip search. (2) He did not receive adequate medical

care for a wrist injury that existed before he was incarcerated or for the injuries he suffered

on August 17, 2017. (3) His privacy rights were violated in the Coleman bathroom and

shower areas, and the food and the jail are cold. (4) Jail officials tampered with his mail.

(5) Coleman inmates do not receive adequate recreation time. (6) State Department of

Corrections (“DOC”) and parish inmates should not be housed together because parish

inmates are disruptive. Record Doc. No. 4 (Complaint at ¶ V).

On May 22, 2018, I conducted a telephone conference in this matter. Participating

were plaintiff pro se and Steven Mauterer, counsel for defendants. Plaintiff was sworn and

testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),

and its progeny. After the Spears hearing and pursuant to my order, defense counsel

submitted to me the videotape of the subject incident and the incident report that plaintiff

referred to during his testimony, and I reviewed them. Record Doc. Nos. 16, 18–20. On

August 15, 2018, I issued a report and recommendation in which I recommended that

plaintiff’s claims naming the jail as a defendant and concerning his medical care,

conditions of confinement, mail tampering, recreation time and housing classification

against the individual defendants be dismissed with prejudice. Record Doc. No. 21 at p. 41.

I further recommended that further proceedings were required as to plaintiff’s excessive

force claim against the individual defendants. Id. at p. 42. The presiding district judge

adopted my report and recommendation on October 10, 2018, and ordered that a

preliminary conference be conducted to determine (1) if counsel should be appointed from

this court’s Civil Pro Bono Panel to represent plaintiff in this matter and (2) if all parties

consent to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

Record Doc. No. 22.

The preliminary conference was conducted on November 1, 2018. Record Doc. No.

25. At the conference, all parties orally consented to proceed before a United States

Magistrate Judge pursuant to 28 U.S.C. § 636(c), and plaintiff requested appointment of

counsel. Id. Counsel was subsequently appointed to represent plaintiff in this matter.

Record Doc. No. 26. This matter was then referred to a United States Magistrate Judge for

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all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written

consent of all parties. Record Doc. Nos. 27, 28.

Defendants’ Motion for Summary Judgment, Record Doc. No. 47, is now pending

before me. Record Doc. No. 47. Plaintiff filed a timely opposition memorandum. Record

Doc. No. 51. Defendants were permitted to file a reply. Record Doc. Nos. 52, 53, 54.

Having considered the complaint, the record, the submissions of the parties and the

applicable law, IT IS ORDERED that the motion is DENIED for the following reasons.

I. UNDISPUTED MATERIAL FACTS

The following material facts are accepted as undisputed solely for purposes of the

pending motions for summary judgment.

On August 17, 2017, Hmeid was an inmate at Coleman. Record Doc. Nos. 21 at p.

2; 56 at p. 4. On August 17, 2017, St. Charles Parish Sheriff’s Deputies including

defendants Floyd, Bailey, Dominic and Richardson conducted a search of Pod C6,

plaintiff’s dorm at Coleman, in response to the smell of smoke emanating from the dorm.

Record Doc. Nos. 47-5 at pp. 34-36; 47-6 at pp. 14, 17. Of the named defendants, only

Richardson and Dominic were authorized to carry and use a taser gun on the date of the

incident. Record Doc. Nos. 47-3 at p. 27; 47-4 at p. 21; 47-5 at p. 13; 47-6 at p. 32; 47-9

at p. 2.

As part of the search on August 17, 2017, correctional officers, including

defendants, began to conduct strip searches of the inmates in Pod C6. Record Doc. No. 47-

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4 at p. 34. Plaintiff’s particular strip search procedure took place in the dorm shower area.

Record Doc. No. 56 at p. 9. The incident was recorded on video by a prison surveillance

camera. Record Doc. No. 20. During the search, Hmeid removed his clothes and proceeded

to face the wall, raise his arms, squat and cough several times. Record Doc. Nos. 47-4 at

pp. 56–57, 58–62; 47-5 at pp. 45; 56 at pp. 9–10. At some point during the search,

defendant Richardson unholstered and pointed his taser at plaintiff. Record Doc. Nos. 47-4

at p. 34; 47-5 at p. 60. Soon after, Richardson grabbed Hmeid’s left arm, and plaintiff was

taken to the floor of the shower, surrounded by five guards and handcuffed. Record Doc.

Nos. 47-4 at p. 35; 56 at pp. 11; 63–64; 20 (Video Footage at Time Stamp 00:31:46).

After Hmeid was handcuffed, he was escorted from Pod C6 to the booking area, and

then to a segregation cell. Record Doc. Nos. 47-4 at p. 35; 47-5 at pp. 61, 63. Plaintiff’s

handcuffs were removed once in the segregation cell. Id. at p. 63. An officer again

instructed plaintiff to perform the strip search procedure by bending at the waist. Record

Doc. No. 20 (Video Footage at Time Stamp 1:00:30). Hmeid squatted instead of bending

at the waist as instructed. Id.

Plaintiff received medical treatment for injuries after the incident. Record Doc. Nos.

47-7 at pp. 1–2, 4; 56 at pp. 15–16. The medical report provides that Hmeid suffered

“abrasions to [right] shoulder, [left] index finger, [left and right knee], due to [an]

altercation with deputies.” Record Doc. No. 47-7 at p. 4.

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II. ANALYSIS

A. Legal Standards for Summary Judgment Motion

Summary judgment is proper “if 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 a

judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing

Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate

time for discovery and upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which the party

will bear the burden of proof at trial.” Id. A party moving for summary judgment bears the

initial burden of demonstrating the basis for summary judgment and identifying those

portions of the record, discovery and any affidavits supporting the conclusion that there is

no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then the

nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence

of a genuine issue of material fact. Id. at 324.

A genuine issue of material fact exists if a reasonable jury could return a verdict for

the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The

substantive law identifies which facts are material. Id. Material facts are not genuinely

disputed when a rational trier of fact could not find for the nonmoving party upon a review

of the record taken as a whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

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475 U.S. 574, 587 (1986); Equal Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d

475, 481 (5th Cir. 2014). “[U]nsubstantiated assertions,” “conclusory allegations,” and

merely colorable factual bases are insufficient to defeat a motion for summary judgment.

See Anderson, 477 U.S. at 249–50; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994).

Significantly for present purposes, in ruling on a summary judgment motion, a court

may not resolve credibility issues or weigh evidence. Delta & Pine Land Co. v. Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008). Furthermore, a court must

assess the evidence, review the facts, and draw any appropriate inferences based on the

evidence in the light most favorable to the party opposing summary judgment. See Tolan

v. Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th

Cir. 2001). Yet, a court only draws reasonable inferences in favor of the nonmovant “when

there is an actual controversy, that is, when both parties have submitted evidence of

contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en

banc) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

After the movant demonstrates the absence of a genuine dispute, the nonmovant

must articulate specific facts and point to supporting, competent evidence that may be

presented in a form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill.,

140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must

create more than “some metaphysical doubt as to the material facts.” Matsushita, 475 U.S.

at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue,

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the moving party may simply point to insufficient admissible evidence to establish an

essential element of the nonmovant’s claim in order to satisfy its summary judgment

burden. See Celotex, 477 U.S. at 322–25; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a

genuine issue for trial that could support a judgment in favor of the nonmovant, summary

judgment must be granted. See Little, 37 F.3d at 1075–76.

B. Plaintiff’s Excessive Force Claim

Hmeid alleges that he was tased, taken to the ground, surrounded by officers, and

then kicked and punched by defendants after being handcuffed. Record Doc. Nos. 4

(Complaint at ¶ V); 56 at pp. 8–15. Defendants assert that plaintiff was neither tased nor

kicked or beaten. Record Doc. Nos. 47-3 at p. 117–18; 47-4 at pp. 64–65; 47-5 at p. 59–60;

47-6 at pp. 41–43. They concede only that they used some measure of force to restrain

plaintiff and handcuff him because in their view he presented a threat to the safety and

discipline of the facility by not complying with the strip search procedure and resisting

being handcuffed. Record Doc. Nos. 47-1 at p. 5; ; 47-3 at pp. 118–121; 47-4 at pp. 34–35,

62–63.

The United States Supreme Court has “held that ‘the use of excessive physical force

against a prisoner may constitute cruel and unusual punishment [even] when the inmate

does not suffer serious injury.’” Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (quoting Hudson

v. McMillian, 503 U.S. 1, 4 (1992)). The Supreme Court in Wilkins confirmed that the

standards it established in Hudson remain the law.

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The “core judicial inquiry,” we held [in Hudson], was not whether a certain

quantum of injury was sustained, but rather “whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” 503 U.S. at 7, 112 S. Ct. 995; see also Whitley

v. Albers, 475 U.S. 312, 319-321 . . . (1986). “When prison officials

maliciously and sadistically use force to cause harm,” the Court recognized,

“contemporary standards of decency always are violated . . . whether or not

significant injury is evident. . . .” Hudson, 503 U.S. at 9 . . . .

. . . . As we stated in Hudson, not “every malevolent touch by a prison

guard gives rise to a federal cause of action.” 503 U.S. at 9 . . . . “The Eight

Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily

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.” Ibid. (some internal quotation marks omitted). An inmate who

complains of a “push or shove” that causes no discernible injury almost

certainly fails to state a valid excessive force claim. Ibid. (quoting Johnson

v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

Id. at 37–38.

The Supreme Court in Wilkins “left open the possibility of dismissal where the

injury conclusively shows that the force applied was not unconstitutional.” Williams v.

Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010) (citing Wilkins, 130 S. Ct. at 1180) (emphasis

added). Wilkins confirmed that Hudson remains the touchstone for evaluating claims under

the Eighth Amendment. Thus, the Fifth Circuit’s prior cases that relied on Hudson continue

to provide binding legal standards for this court.

Under the Eight Amendment and Section 1983, the appropriate inquiry is “whether

force was applied in a good faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6; accord Petta v.

Rivera, 143 F.3d 895, 901 (5th Cir. 1998); Flowers v. Phelps, 956 F.2d 488, 491 (5th Cir.

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1992). Plaintiff need not show a significant injury to establish a constitutional violation;

however, the extent of injury may be considered in determining whether the force used was

malicious, wanton or unnecessary. Hudson, 503 U.S. at 7; Flowers, 956 F.2d at 491. In

addition, “[t]he Eight 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.’” Siglar v. Hightower, 112

F.3d 191, 193 (5th Cir. 1997) (quoting Hudson, 503 U.S. at 9–10).

The law thus

require[s] a plaintiff asserting an excessive force claim to have suffered at

least some form of injury . . . . [W]e do not permit a cause of action for every

contact between a citizen and a police officer. In just about every

conceivable situation, some amount of force or contact would be too nominal

to constitute a constitutional violation. When the force used is insufficient

to satisfy the legal standard necessary for recovery, the amount of force is de

minimis for constitutional purposes.

Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999) (quotation omitted). To determine

whether injury caused by excessive force is more than de minimis for constitutional

purposes, the context in which the force was used and all the surrounding circumstances

must be examined. Id.

“To prevail on an excessive force claim at summary judgment, a plaintiff must

present evidence that would allow a reasonable jury to find the following: ‘(1) an injury (2)

which resulted directly and only from a use of force that was clearly excessive, and (3) the

excessiveness of which was clearly unreasonable.” Fennell v. Quintela, 393 Fed. App’x.

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150, 154 (5th Cir. 2010) (citing Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.

2009) (quotation marks omitted)).

In this case, the sworn testimony of plaintiff obtained during the Spears hearing

conflicts directly with the sworn statements of defendants, creating various issues of

disputed material fact which preclude summary judgment. It is undisputed that plaintiff

suffered injuries as a direct result of the incident at issue in this case. Record Doc. Nos. 47-

7 at pp. 1–2, 4; 56 at pp. 15–16. As to whether there was a use of force that was clearly

excessive and unreasonable, the parties dispute a variety of facts, which include but are not

limited to whether plaintiff (1) defied or complied with defendants’ commands that he bend

at the waist and spread his buttocks cheeks during the strip search; (2) cursed and/or

threatened the officers during the strip search; (2) physically resisted the officers’ attempts

to handcuff him; (3) was tased at all; and (4) was kicked, punched and beaten after he was

handcuffed and not resisting. Record Doc. No. 56 at pp. 8–15, 37–38; Record Doc. Nos.

47-3 at pp. 48, 115–17, 121–23; 47-4 at pp. 34–35, 54–56, 64–65, 69; 77–79; 47-5 at p.

59–60, 69; 47-6 at pp. 31, 41–43.

Defendants argue that the video evidence “corroborates their testimony and refutes

[plaintiff’s] statements,” and that the medical records and nurse’s testimony establish that

plaintiff was not tased. Record Doc. No. 47-1 at pp. 6, 8. On summary judgment, however,

a court must view the evidence in the light most favorable to the opposing party, drawing

all inferences in his favor, so long as they are not blatantly contradicted or utterly

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discredited by other evidence. The video does not clearly depict either taser use or what

occurred during the time after one of the deputies grabs Hmeid’s arm and plaintiff is taken

to the ground and handcuffed, because Hmeid is obscured by the officers surrounding him

and audio, if any, of what is being said cannot clearly be heard. The nurse’s testimony that

Hmeid did not have taser prongs embedded in his skin and did not complain about being

tased does not utterly discredit Hmeid’s testimony that he was struck by “[a] type of a

string or some type of metal thing” that “got struck on me but they was (sic) pulled out fast

. . . .” Record Doc. No. 56 at p. 40. Whether the video and other materials defendants

submit in support of their motion for summary judgment corroborate defendants’ version

of the incident, as opposed to plaintiff’s, is a matter for the factfinder to determine at trial

by weighing the evidence and determining the credibility of the conflicting testimony.

Neither the video nor the medical records undisputedly resolve the basic and material

factual disputes in this case, including whether plaintiff was resisting defendants’ orders,

unnecessarily tased (as he testifies) and then kicked and punched after he was restrained

in handcuffs.

This case mirrors Bourne v. Gunnels, 921 F.3d 484 (5th Cir. 2019), in which the

Fifth Circuit reviewed the district court’s judgment in defendants’ favor and remanded the

case for further proceedings.

[W]e must view the evidence in the light most favorable to [plaintiff],

drawing all inferences in his favor, so long as they are not “blatantly

contradicted” or “utterly discredited” by a video recording. The video does

not depict what occurred during the five minutes between defendants’

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entering the cell and [plaintiff’s] leaving it. Though the video and other

materials defendants submit in support of their motion for summary judgment

may well establish the constitutionality of defendants’ use of force before

entering the cell, or their use of force in taking [plaintiff] to the ground, they

do not resolve all genuine disputes of material fact regarding the use of force

after [plaintiff] was restrained in his cell. [Plaintiff] and defendants offer

competing versions of what occurred during the use of force and whether

defendants applied force after [plaintiff] stopped resisting and was restrained.

Defendants assert that [plaintiff] resisted, thus requiring the use of force in

a good faith effort to maintain or restore discipline, a contention that is

supported by the defendants’ yelling “stop resisting” in the video recording.

But [plaintiff] opposes those characterizations with his own sworn

declaration and the unsworn declarations of other inmates, asserting that

because he was restrained and not resisting, the use of force was malicious

and sadistic for the very purpose of causing harm. The video does not resolve

the dispute, so there remains a genuine dispute of material fact.

Bourne, 921 F.3d at 492–93. In this instance, I cannot conclude that either the video or the

medical evidence is so clear that Hmeid’s sworn testimony should be disregarded.

The presence of numerous disputes of material fact concerning plaintiff’s excessive

force claim precludes summary judgment. See Fennell, 393 F. App’x 150, 152, 155 (5th

Cir. 2010) (fact issues precluded summary judgment where inmate alleged that prison

officer grabbed handcuffed inmate’s wrists and twisted them, resulting in injury, while his

arms were confined in a cell’s food tray slot); Watts v. Smart, 328 F. App’x 291, 292,

293–94 (5th Cir. 2009) (evidence that defendants struck prisoner without provocation while

he was in restraints created genuine fact issues whether force applied was excessive); Pena

v. Rio Grande City, 879 F.3d 613, 619–20 (5th Cir. 2018) (tasing inappropriate when it is

unclear whether plaintiff was resisting); Lewis v. Downey, 581 F.3d 467, 475–78 (7th Cir.

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2009) (an officer’s use of a taser gun on a non-compliant inmate was not de minimis, and

a genuine issue of material fact precluded summary judgment).

Importantly, defendants argue they are entitled to qualified immunity. Record Doc.

No. 47-1 at pp. 14–15. “Qualified immunity is an immunity from suit rather than a mere

defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quotation omitted).

Thus, “[a] good-faith assertion of qualified immunity alters the usual summary judgment

burden of proof, shifting it to the plaintiff to show that the defense is not available.” King

v. Handorf, 821 F.3d 650, 653–54 (5th Cir. 2016) (internal quotation marks and citations

omitted). “The plaintiff must rebut the defense by establishing that the official’s allegedly

wrongful conduct violated clearly established law and that genuine issues of material fact

exist regarding the reasonableness of the official’s conduct.” Id. at 654 (quoting Gates v.

Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008)). “To

negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not

present ‘absolute proof,’ but must offer more than ‘mere allegations.’” Id. (quoting Manis

v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).

“To evaluate whether a government official is entitled to qualified immunity, we

conduct a two-prong inquiry: we ask (1) whether the undisputed facts and the disputed

facts, accepting the plaintiffs’ version of the disputed facts as true, constitute a violation of

a constitutional right, and (2) whether the defendant's conduct was ‘objectively reasonable

in light of clearly established law.’” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)

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(citing Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir.2001)).“This [second]

inquiry turns on the “objective legal reasonableness of the action, assessed in light of the

legal rules that were clearly established at the time it was taken.” Pearson, 555 U.S. at 244

(2009) (citing Wilson v. Layne, 526 U.S. 603, 614 (1999) (internal quotation marks

omitted) and Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“[Q]ualified immunity operates to

ensure that before they are subjected to suit, officers are on notice their conduct is

unlawful”)). The United States Supreme Court has repeatedly instructed courts “not to

define clearly established law at a high level of generality.” Mullenix v. Luna, 136 S.Ct.

305, 308 (2015) (per curium). Instead, “the dispositive question in this step of the qualified-

immunity analysis is ‘whether the violative nature of particular conduct is clearly

established.’” Cleveland v. Bell, 2019 WL 4385487, at *3 (5th Cir. 2019) (quoting

Mullenix, 136 S.Ct. at 308) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011))).

Regarding [qualified immunity], “the core judicial inquiry” “whenever prison

officials stand accused of using excessive physical force in violation of the

Cruel and Unusual Punishments Clause” is “whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Courts analyze (1) “the extent of [the] injury

suffered,” (2) “the need for [the] application of force,” (3) “the relationship

between that need and the amount of force used,” (4) “the threat reasonably

perceived by the responsible officials,” and (5) “any efforts made to temper

the severity of a forceful response.” “The amount of force that is

constitutionally permissible . . . must be judged by the context in which that

force is deployed.” Courts must “decide excessive force claims based on the

nature of the force rather than the extent of the injury.” An inmate need not

establish a “significant injury” to pursue an excessive force claim because

“[i]njury and force ... are only imperfectly correlated, and it is the latter that

ultimately counts.”

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Bourne, 921 F.3d at 491–92 (citing Hudson, 503 U.S. at 6–7 (internal quotation marks and

citation omitted), Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998), Ikerd v. Blair, 101

F.3d 430, 434 (5th Cir. 1996) and Wilkins v. Gaddy, 559 U.S. 34, 34, 37–38 (2010) (per

curiam)).

As noted above, plaintiff has presented evidence that, taken in the light most

favorable to him, indicates that he was tased by officers when he was not resisting or

threatening and after he complied with their order to bend at the waist, and then was kicked

and beaten after he was handcuffed. Record Doc. No. 56 at pp. 8–15, 37–38. Material fact

issues exist as to whether defendants’ conduct was objectively reasonable in light of clearly

established law. Fifth Circuit case law indicates that the Eighth Amendment prohibits

kicking and/or beating a prisoner when he is restrained and tasing him when it is unclear

whether he is resisting. See Fennell, 393 F. App’x at 152, 155; Darden v. City of Fort

Worth, 880 F.3d 722, 729–31 (5th Cir. 2018) (noting that police bodycam footage did not

clearly contradict plaintiff’s claim that he was not resisting when taser used); Pena, 879

F.3d at 619–20; Lewis, 581 F.3d at 475–78; Bourne, 921 F.3d at 492 (summary judgment

was precluded when plaintiff presented evidence that he was “on the cell floor, handcuffed

[and] shackled, and not a threat at [the] point” that correctional officers hit him in the head

and body); Watts, 328 F. App’x 291, 292, 293–94 (5th Cir. 2009) (potential

unconstitutional policy of excessive force in circumstances where defendants struck

prisoner while he was in restraints); Saenz v. G4S Secure Sols. (USA), Inc., 224 F.Supp.

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3d 477, 484 (W.D. Tex. 2016) (dragging prisoner by handcuffs across the floor for 18

minutes while restrained is not objectively reasonable); Kitchen v. Dallas County, 759 F.3d

468, 479 (5th Cir. 2014) (kicking, stomping and choking a subdued inmate could constitute

a violation of the inmate’s constitutional rights).

In addition, Fifth Circuit case law seems to indicate that, even when a plaintiff is

resisting, other methods of subduing him are required before tasing is appropriate.

See Cadena v. Ray, 728 Fed. App’x 293, 297 (5th Cir. 2018) (internal brackets omitted)

(“Here, four officers helped ‘take down’ [plaintiff], and the video evidence clearly shows

that he nonetheless continued to resist handcuffing. Only after the [o]fficers tried

conventional methods to subdue [plaintiff] did [defendant] intervene with the taser.”)

(emphasis added); Pratt v. Harris Cty., Tex., 822 F.3d 174, 182 (5th Cir. 2016)

(“[defendant] Medina used his taser only after [defendant] Lopez’s efforts to subdue

[plaintiff] were ineffective. . . . neither officer used their taser as the first method to gain

[plaintiff’s] compliance. . . . The record shows that both officers responded with measured

and ascending actions that corresponded to [plaintiff’s] escalating verbal and physical

resistance.”) (internal quotation marks and brackets omitted) (citing Poole v. City of

Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).

Plaintiff has submitted evidence, principally in the form of his own sworn testimony,

that would support a finding that defendants’ alleged conduct constituted a violation of the

Eighth Amendment’s prohibition against excessive force. Although the credibility of

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plaintiff’s testimony is subject to substantial question in light of the nature and weight of

the countervailing evidence, that is a finding for the factfinder at trial, not the court on

summary judgment. Because material fact disputes preclude a finding that their conduct

was objectively reasonable, defendants’ qualified immunity defense cannot prevail on

summary judgment. See Clark v. Massengill, 641 F. App'x 418, 420 (5th Cir. 2016);

Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir.2015) (citing Anderson v. McCaleb, 480

Fed.Appx. 768, 773 (5th Cir.2012) (per curiam), and Autin v. City of Baytown, 174

Fed.Appx. 183, 185 (5th Cir.2005)); Bourne, 921 F.3d at 492.

III. CONCLUSION

In summary, the testimony concerning the material facts of the incident presents

stark contrast. Hmeid testified that his initial resistance to the strip search procedure was

mild and verbal only, but that he ultimately submitted. He swears that he was tased, then

punched and kicked after he was handcuffed, restrained and offering no resistance.

Defendants testify that they did not fire a taser at plaintiff. They deny striking him in any

way after he was handcuffed. They state that plaintiff defied their orders during the strip

search and that his disobedience posed a security threat while they worked in the cell area

to address the smoke issue, necessitating the restrained takedown and handcuffing they

executed. The nurse who attended to Hmeid after the incident testified that she saw no

indication of a tasing and that Hmeid did not complain that he was tased.

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The visual evidence is inconclusive and subject to competing inferences. The video

shows Hmeid saying something that cannot be heard during the strip search. It appears to

show a red dot on Hmeid’s shoulder, which defendants admit was a taser being aimed at

plaintiff, but they deny that he was ever tased. When Hmeid is brought to the floor, the

officers surrounding him obscure the view, making it unclear whether they struck Hmeid

after he was restrained. A photograph of Hmeid’s injuries after the incident shows a small

wound that may or may not have been caused by a taser. For all the foregoing reasons, IT

IS ORDERED that defendants’ motion for summary judgment, Record Doc. No. 47, is

DENIED.

New Orleans, Louisiana, this__18th _ day of October, 2019.

JOSEPH C. WILKINSON, JR.

UNITED STATES MAGISTRATE JUDGE

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