Simms v. Richarson

IN THE UNITED STATES DISTRICT COURT US. DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS NORTIERNAILED

AMARILLO DIVISION

| MAR 20 2023 |

DONOVAN D. SIMMS, CLERK. U.S. DISTRICT CC

TDCJ-CID No. 01375638, □□

Plaintiff,

v. 2:20-CV-006-Z-BR

KENDALL T. RICHARSON,

Defendant

MEMORANDUM OPINION AND ORDER

DISMISSING CIVIL RIGHTS COMPLAINT

This matter comes before the Court on Plaintiff's civil rights claims. Plaintiff filed suit pro

se while a prisoner incarcerated in the Texas Department of Criminal Justice (“TDCJ”),

Correctional Institutions Division. See ECF No. 3. Plaintiff was granted permission to proceed in

forma pauperis. See ECF No. 5. For the reasons discussed herein, Plaintiff's Amended Complaint

is DISMISSED.

FACTUAL BACKGROUND

Plaintiff's Complaint alleges he and 47 other inmates were subjected to excessive force

through the application of chemical agents. ECF No. 3 at 4. Plaintiff alleges on August 6, 2019,

Defendants White, Rodriguez, and Madrid used chemical agents on a large group of prisoners

congregated in the day room on their way to be served lunch. See id. Plaintiff claims he is not

challenging any disciplinary proceeding resulting from the incident. Jd. According to the

Complaint, Plaintiff spoke with a TDCJ officer regarding the meal service. See id. at 56. The

discussion became heated when prisoners were informed they would not be provided the chicken

parmesan lunch other prisoners were receiving that day, but instead would only receive bologna

sandwiches, /d. Plaintiff claims that chemical agents were then used on the prisoners gathered in

the dayroom. See id. Plaintiff submitted a copy of the grievances he filed concerning this incident.

See id, at 9-12. These grievances clearly show Plaintiff received a major disciplinary case for

failing to obey an order that created a unit disturbance. Jd. at 10.

LEGAL STANDARD

When a prisoner confined in any jail, prison, or other correctional facility brings an action

with respect to prison conditions under any federal law, the Court may evaluate the complaint and

dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (Sth Cir. 1990), if it is

frivolous!, malicious, fails to state a claim upon which relief can be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A, 1915(e)(2). The

same standards will support dismissal of a suit brought under any federal law by a prisoner

confined in any jail, prison, or other correctional facility, where such suit concerns prison

conditions. 42 U.S.C. 1997e(c)(1). A Spears* hearing need not be conducted for every pro se

complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (Sth Cir. 1991).

ANALYSIS

Plaintiff's excessive-force claim does not entirely implicate the validity of his disciplinary

conviction. Rather, Plaintiffs claim that the use of force was entirely unprovoked would invalidate

! A claim is frivolous if it lacks an arguable basis in law or in fact. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).

2 Spears v. McCotter, 766 F.2d 179 (Sth Cir. 1985).

3 Green vs. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) (“Of course, our discussion of Spears should not be

interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should

be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together

with the Watson questionnaire.”). Dismissals may also be based on adequately identified or authenticated records.

Banuelos v. McFarland, 41 F.3d 232, 234 (Sth Cir. 1995).

his disciplinary conviction, but his excessive force claim is not Heck’ barred if the underlying

conviction is not necessarily invalidated. See Edwards v. Balisok, 520 U.S. 641, 647-48 (1997);

see also Hudson vy. Hughes, 98 F.3d 868, 872-73 (Sth Cir. 1996) (holding that allegations of

excessive force and false arrest are not cognizable under the doctrine in Heck if a successful civil

rights claim would call into question the validity of the plaintiff's conviction); see also Sappington

v. Bartee, 195 F.3d 234 (Sth Cir. 1999) (holding that Heck bars a civil rights claim for excessive

force and false arrest where the plaintiff has been convicted of assaulting an officer); Donnelly v.

Darby, 81 Fed. Appx. 823, 2003 WL 22794388 (Sth Cir. 2003) (unpublished per curiam) (rejecting

excessive force claims from a state prisoner who received a disciplinary conviction arising from

the same incident); Powell v. Maddox, 81 Fed. Appx. 476 (Sth Cir. 2003) (unpublished per curiam).

Here, because it is possible that, despite some need to restore discipline as a result of

Plaintiff's unruly behavior, the force used could still be considered excessive if not needed to

protect the officer, other offenders or possibly the Plaintiff. Thus, Plaintiff's claim is not Heck

barred solely on the basis of his disciplinary conviction for failure to obey an order.

Claims of excessive force to subdue convicted prisoner are analyzed under an Eighth

Amendment standard. Whitley v. Albers, 475 U.S. 312 (1986). It is clearly established law that

prison staff cannot cause the unnecessary and wanton infliction of pain. Jd. at 320. The “core

judicial inquiry” into a plaintiff's claim of excessive force under the Eighth Amendment is

“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Martin v. Seal, 510 Fed. Appx. 309, 312 (Sth Cir. 2013) (quoting

Hudson v. McMillian, 503 U.S. 1, 7 (1992)). The inquiry has two components: (1) an objective

4 Heck vy. Humphrey, 512 U.S. 477 (1994).

inquiry that asks whether the alleged wrongdoing was nontrivial and harmful enough to violate the

constitution, and (2) a subjective inquiry as to the mental state of the alleged wrongdoer. Hudson,

503 U.S. at 7-8. The courts look to five nonexclusive factors to make this determination:

1, the extent of the injury suffered;

2. the need for the application of force;

3. the relationship between this 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.

Baldwin v. Stalder, 137 F.3d 836, 839 (Sth Cir. 1998) (citing Hudson, 503 U.S. at 7). The Court

can consider these factors in any order. Jd. “Excessive force claims are necessarily fact-intensive;

whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances

of each particular case.’ ” Deville, 567 F.3d 156, 167 (Sth Cir. 2009) (quoting Graham v. Connor,

490 U.S. 386, 396 (1989)).

Plaintiff has no claim here. His allegations establish that the use of force was in response

to a disciplinary infraction (not inflicted solely and maliciously to cause harm) and, most

importantly, Plaintiff alleges solely temporary pain caused by the chemical agent and no lasting

physical injury. ECF No. 3 at 4-6. Although it would be “repugnant to the conscience of mankind”

for a correctional officer to deploy chemical agents to cause pain with no misbehavior on the part

of an inmate, the use of chemical agents deployed to curtail identified misbehavior by an inmate

when no injury occurs is simply not cognizable under Section 1983. “Short-term pain alone is

insufficient to constitute more than de minimis injury for purposes of an excessive force claim.”

Martinez v. Nueces Cnty., Tex., Civ. Action No. 2:13-CV-178, 2015 WL 65200, at *11 (S.D. Tex.

Jan. 5, 2015); accord Bradshaw v. Unknown Lieutenant, No. 02-10072, 2002 WL 31017404 (Sth

Cir. Aug. 21, 2002) (finding that inmate’s “burning eyes and skin for approximately 24 hours,

twitching of his eyes, blurred vision, irritation of his nose and throat, blistering of his skin, rapid

heartbeat, mental anguish, shock and fear as a result of the use of mace” was a “de minimis injury”

and de minimis injury does not rise to excessive force).

“No Federal civil action may be brought by a prisoner confined in a jail, prison or other

correctional facility, for mental or emotional injury suffered while in custody without a prior

showing of physical injury ... .” 42 U.S.C. § 1997e(e); see also Siglar v. Hightower, 112 F.3d

191, 193-94 (Sth Cir. 1997) (holding that a sore and bruised ear lasting for three days was de

minimus and did not meet the physical injury requirement found in the Prison Litigation Reform

Act). In order to state an Eighth Amendment claim, a prisoner must have “suffered at least some

injury.” See, e.g., Lee v. Wilson, 237 Fed. Appx. 965, 966 (Sth Cir. 2007) (unpublished) (affirming

the dismissal of a prisoner’s excessive force claim, holding the prisoner’s split lip was a de minimus

injury and the conduct was not repugnant to the conscience of mankind).

Plaintiff's claims against Defendants present on the unit as supervisors must be dismissed.

In Section 1983 suits, liability of government officials for the unconstitutional conduct of their

subordinates may not rest solely upon a theory of respondeat superior or vicarious liability.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (internal marks omitted). “Under section 1983,

supervisory officials are not liable for the actions of subordinates on any theory of vicarious

liability.” Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005); see also Mouille v. City

of Live Oak, Tex., 977 F.2d 924, 929 (Sth Cir. 1992). Absent direct personal participation in the

alleged constitutional violation, a plaintiff must prove that each individual defendant either

implemented an unconstitutional policy that directly resulted in injury to the plaintiff or failed to

properly train a subordinate employee. See Porter v. Epps, 659 F.3d 440, 446 (Sth Cir. 2011);

Thompkins v. Belt, 828 F.2d 298, 303-04 (Sth Cir. 1987). Plaintiff has failed to allege direct

involvement in the application of force by any supervisory Defendant.

CONCLUSION

The Complaint is DISMISSED.

SO ORDERED.

March W, 2023 afm

MAATHEW J. KACSMARYK

UNITED STATES DISTRICT JUDGE