Harrison v. Partain

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MARCUS HARRISON,

Plaintiff,

v. No. 4:23-cv-0422-P

H. PARTAIN, ET AL.,

Defendants

OPINION AND ORDER

The Court has considered the motion of Defendants Sgt. D. Sanders,

Sgt. B. Lewis, Cpl. P. Hollie, Ofc. S. Diaz, Ofc. T. McGullam, Ofc. A.

Orozco, Jr., Ofc. A. Rosales, Ofc. G. Tassin, Ofc. D. Valenciana, and Ofc.

J. Garcia to dismiss, the response of Plaintiff, Marcus Harrison,1 the

reply, the record, and applicable authorities, and concludes that the

motion must be GRANTED.

BACKGROUND

Plaintiff filed a complaint naming 26 defendants, all appearing to be

employed at the Tarrant County jail. ECF No. 1. Because he had not

alleged sufficient facts for the Court to determine whether he should be

allowed to pursue his claims, the Court required him to file an amended

complaint. ECF No. 8. Plaintiff did so, naming fourteen Defendants.

ECF No. 9. The Court allowed him to proceed with his claims against

twelve of them and dismissed the claims against two others, making the

dismissal of those claims final. ECF Nos. 10, 11. Ten of the Defendants

have answered and filed a motion to dismiss. ECF Nos. 15, 16. The

marshal was unable to serve the remaining two, Defendants FNU

Munoz and H. Partain. ECF No. 19. The Court ordered Plaintiff to

provide information necessary to accomplish service of the summons

1 Plaintiff’s response is titled “Motion to Dismiss Defendants Claim of

Qualified Immunity.” ECF No. 28.

and amended complaint of those Defendants, cautioning that failure to

do so might result in the dismissal of Plaintiff’s claims against them.

ECF No. 21. To date, he has failed to do so, despite an extension of time.

ECF No. 23.

In sum, Plaintiff alleges that on or about February 5, 2022, while he

was incarcerated in the Tarrant County Jail, in retaliation for an earlier

request for grievance forms, he was falsely accused of starting a tray-

throwing incident. As a result, officers threw him to the ground, sprayed

him with pepper spray, and put handcuffs on him so tightly that he

suffered injuries. He was denied medical attention.

Movants filed a motion to dismiss, alleging primarily that Plaintiff

has not pleaded sufficiently to overcome their entitlement to qualified

immunity. ECF No. 15. The Court ordered Plaintiff to file a Schultea2

pleading and allowed Movants to file a supplement to their motion to

dismiss. ECF No. 20. Plaintiff filed his Schultea response. ECF No. 24.

Movants filed a supplement to their motion, ECF No. 25, and Plaintiff

filed his response. ECF No. 28. Movants have replied. ECF No. 29.

APPLICABLE LEGAL PRINCIPLES

A. Rights of Pretrial Detainees

The constitutional rights of a pretrial detainee flow from the

procedural and substantive due process guarantees of the Fourteenth

Amendment. Garza v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019).

Under the Due Process Clause, a detainee may not be punished prior to

an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 (1979).

Punishment includes deliberate indifference to serious medical needs.

Estelle v. Gamble, 429 U.S. 97, 104 (1976); Thompson v. Upshur Cnty.,

245 F.3 447, 457 (5th Cir. 2001). It also includes the use of excessive

force that amounts to punishment. Kingsley v. Hendrickson, 576 U.S.

389, 397 (2015).

For deliberate indifference to rise to the level of a constitutional

violation, the plaintiff must establish that an individual defendant knew

of and disregarded an excessive risk to the plaintiff’s health or safety.

2 Schultea v. Wood, 47 F.3d 1427, 1433–34 (5th Cir. 1995).

Farmer v. Brennan, 511 U.S. 825, 837 (1994). That is, the defendant

“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.” Id. A defendant’s “failure to alleviate a significant risk that

he should have perceived but did not” does not constitute a

constitutional violation. Id. at 838. “[D]eliberate indifference cannot be

inferred merely from a negligent or even a grossly negligent response to

a substantial risk of serious harm.” Thompson, 245 F.3d at 459. Rather,

the plaintiff must show that the defendant acted with subjective

deliberate indifference. Hare v. City of Corinth, 74 F.3d 633, 648–49 (5th

Cir. 1996) (en banc) (discussing Farmer). Deliberate indifference is an

extremely high standard to meet. Domino v. Tex. Dep’t of Crim. Justice,

239 F.3d 752, 756 (5th Cir. 2001).

In an excessive force case, a pretrial detainee need only show that

the force purposely or knowingly used against him was objectively

unreasonable. Kingsley, 576 U.S. at 397. The court makes this

determination from the perspective of a reasonable officer on the scene,

including what the officer knew at the time, not in hindsight. Id. “The

calculus of reasonableness must embody allowance for the fact that []

officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about

the amount of force that is necessary in a particular situation.” Graham

v. Connor, 490 U.S. 386, 396–97 (1989). Further, the court must defer to

policies and practices that in the judgment of jail officials are needed to

preserve order and discipline and maintain institutional security.

Kingsley, 576 U.S. at 397. Factors that may bear on the reasonableness

of the force used include:

the relationship between the need for the use of force and

the amount of force used; the extent of the plaintiff’s injury;

any effort made by the officer to temper or to limit the

amount of force; the severity of the security problem at

issue; the threat of reasonably perceived by the officer; and

whether the plaintiff was actively resisting.

Id.

B. Qualified Immunity

Qualified immunity insulates a government official from civil

damages liability when the official’s actions do not “violate clearly

established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). For a right to be “clearly established” the right’s contours must

be “sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton, 483 U.S.

635, 640 (1987). Individual liability thus turns on the objective legal

reasonableness of the defendant’s actions assessed in light of clearly

established law at the time. Hunter v. Bryant, 502 U.S. 224, 228 (1991);

Anderson, 483 U.S. at 639–40. In Harlow, the Court explained that a

key question is “whether that law was clearly established at the time an

action occurred” because “[i]f the law at that time was not clearly

established, an official could not reasonably be expected to anticipate

subsequent legal developments, nor could he fairly be said to ‘know’ that

the law forbade conduct not previously identified as unlawful.” 457 U.S.

at 818. More recently, the Court has clarified that the “violative nature

of the particular conduct [must be] clearly established.” Mullenix v.

Luna, 577 U.S. 7, 12 (2015). Although Supreme Court precedent does

not require a case directly on point, existing precedent must place the

statutory or constitutional question beyond debate. White v. Pauly, 580

U.S. 73, 79 (2017). That is, the clearly established law upon which the

plaintiff relies should not be defined at a high level of generality but

must be particularized to the facts of the case. Id. Thus, the failure to

identify a case where an officer acting under similar circumstances was

held to have violated a plaintiff’s rights will most likely defeat the

plaintiff’s ability to overcome a qualified immunity defense. Id. at 79–

80.

In assessing whether the law was clearly established at the time, the

court is to consider all relevant legal authority, whether cited by the

parties or not. Elder v. Holloway, 510 U.S. 510, 512 (1994). If public

officials of reasonable competence could differ on the unlawfulness of the

defendant’s actions, the defendant is entitled to qualified immunity.

Mullenix, 577 U.S. at 11; Malley v. Briggs, 475 US. 335, 341 (1986);

Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). A

mistake in judgment does not cause an officer to lose his qualified

immunity defense. Rather, the qualified immunity defense protects “all

but the plainly incompetent or those who knowingly violate the law.”

Hunter, 502 U.S. at 229 (quoting Malley, 475 U.S. at 343). Further, that

the officer himself may have created the situation does not change the

analysis. That he could have handled the situation better does not affect

his entitlement to qualified immunity. Young v. City of Killeen, 775 F.2d

1349, 1352–53 (5th Cir. 1985). And, “an allegation of malice is not

sufficient to defeat immunity if the defendant acted in an objectively

reasonable manner.” Malley, 475 U.S. at 341.

When a defendant relies on qualified immunity, the burden is on the

plaintiff to negate the defense. Kovacic v. Villarreal, 628 F.3d 209, 211

(5th Cir. 2010); Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir.

1994) (abrogation of qualified immunity is the exception, not the rule).

In sum, to prevail when a defense of qualified immunity is asserted, the

plaintiff must show (1) what the clearly established law at the time

required in the particular circumstances and (2) that the defendant

violated that clearly established law. The court may rest its analysis on

either prong. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Both must

be satisfied and if the plaintiff fails to establish either one, the court

need not consider the other. Dyer v. Houston, 964 F.3d 374, 380 (5th Cir.

2020); King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016). A plaintiff

does not satisfy his burden by conclusory allegations based on

speculation or unsubstantiated assertions of wrongdoing; he must point

to specific evidence in the record. Mitchell v. Mills, 895 F.3d 365, 370

(5th Cir. 2018); Williams-Boldware v. Denton Cnty., 741 F.3d 635, 643–

44 (5th Cir. 2014).

ANALYSIS

As a preliminary matter, Movants point out that Plaintiff cannot

proceed with his claims based on alleged falsified statements in a

disciplinary charge against him since he has not shown that the charge

has been resolved in his favor. Heck v. Humphrey, 512 U.S. 477, 486–87

(1994); Ordaz v. Martin, 5 F.3d 529, 1993 WL 373830, at *6 (5th Cir.

1993). As best the Court can tell, Plaintiff admits that he was given a

fair hearing on the disciplinary charge, that he was found guilty and

punishment imposed, and the discipline has not been overturned. ECF

No. 24 at 10 of 23.3

Movants also note that a prisoner does not have a federally-protected

liberty interest in having a grievance investigated or resolved to his

satisfaction. Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). See also

Staples v. Keffer, 419 F. App’x 461, 463 (5th Cir. 2011) (no constitutional

right to a grievance procedure at all); Giddings v. Valdez, No. 3:06-CV-

2384-G, 2007 WL 1201577, at *3 (N.D. Tex. Apr. 24, 2007) (any claim

arising from alleged failure to investigate grievances is indisputably

meritless). The Court understands Plaintiff’s response to be an

argument about the need for a grievance system and what might happen

without one. ECF No. 28 at 7–8. As best the Court can tell from the

pleadings, however, Plaintiff has been able to file grievances on

numerous occasions and nothing has prevented him from presenting his

claims to the Court.4 The alleged threat that Plaintiff would not be able

to file grievances or have them processed does not raise a constitutional

claim. Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) (mere

allegations of verbal abuse do not present actionable claims under

§ 1983); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (mere

threatening language and gestures of custodial officer do not, even if

true, amount to constitutional violation).

With regard to the grievance procedure, Plaintiff also says he is

“showing a conspiracy to suppression [sic] inmates from filing

complaints against bad acter [sic] officers.” ECF No. 28 at 7. To prevail

on a claim of civil conspiracy requires the plaintiff to establish (1) an

actual violation of a constitutional right and (2) that the defendants

acted in concert with the specific intent to violate that right. Cinel v.

Connick, 15 F.3d 1338, 1343 (5th Cir. 1994); Gillum v. City of Kerrville,

3 F.3d 117, 123 (5th Cir. 1993) (plaintiff must prove actual deprivation;

3 The Court notes that Plaintiff’s pages were not filed in the order he

numbered them and his page number 10 is ECF page 15 of 23.

4 Access to the courts is not prevented or hindered by interference with the

grievance process, because exhaustion of remedies is presumed in cases where

prison officials ignore grievances or interfere with the grievance process.

Johnson v. Cheney, 313 F. App’x 732, 733 (5th Cir. 2009).

conspiracy to deprive is insufficient). To plead such a claim requires

specific facts; mere conclusory allegations will not suffice. Priester v.

Lowndes Cnty., 354 F.3d 414, 423 (5th Cir. 2004); Covarrubias v.

Wallace, 907 F. Supp. 2d 808, 819 (E.D. Tex. 2012) (citing Hale v.

Harney, 786 F.2d 688, 690 (5th Cir. 1986)). That is, Plaintiff must allege

the operative facts of the conspiracy based on substantial and

affirmative allegations, not a “mere gossamer web of conclusion or

inference.” Crummer Co. v. Du Pont, 223 F.2d 238, 245 (5th Cir. 1955).

Plaintiff has failed to do so.

Plaintiff also refers to the violation of policies and alleged ethical

breaches. But allegations of failure to follow rules and regulations,

without more, do not give rise to constitutional violations. Myers v.

Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996); Quaak v. Yeager, No. Civ.

A. H-11-2100, 2012 WL 950183, at *7 (S.D. Tex. Mar. 19, 2012). The

allegations that Defendants are bad actors do not state a claim.

Movants filed a specific answer to Plaintiff’s claims, alleging in detail

what each of them did at particular times. Plaintiff’s supplemental

pleading does not respond to the particular facts asserted in the answer

other than to make conclusory allegations regarding corruption and

ethical lapses of the officers. In particular, Plaintiff does not dispute that

there was a tray-throwing disturbance and that he refused to comply

with orders to allow himself to be handcuffed. Jail officials are justified

in using force in a good-faith effort to maintain or restore discipline

when a prisoner refuses to cooperate with directives. Gonzales v. Rowe,

No. 5:20-CV-052-BQ, 2020 WL 4811005, at *3 (N.D. Tex. July 27, 2020)

(citing Minix v. Blevins, No. 6:06-CV-306, 2007 WL 1217883, at *24

(E.D. Tex. Apr. 23, 2007) (even when prisoner believes an order is

unjustified or improper, he does not have the right to disobey); Calhoun

v. Wyatt, No. 6:11-CV-4, 2013 WL 1882367, at *6 (E.D. Tex. May 2,

2013). Courts have consistently concluded that using pepper spray is

reasonable where a plaintiff refuses to comply with directives. See, e.g.,

Thomas v. Cagel, No. 4:21-CV-692-P, 2022 WL 17586547, at *7 (N.D.

Tex. Oct. 17, 2022), report and recommendation adopted, 2022 WL

17584425 (N.D. Tex. Dec. 12, 2023), appeal dism’d, No. 23-10045, 2023

WL 4546548 (5th Cir. Feb. 22, 2023); Piper v. Preston, No. 5-15-CV-

00771-FB-RBF, 2018 WL 3193819, at *6 (W.D. Tex. June 28, 2018);

Calhoun, 2013 WL 1882367, at *6. Plaintiff has not shown that the use

of pepper spray was objectively unreasonable.

With regard to medical care, Plaintiff does not deny that he was seen

by a nurse after being placed in a shower for ten minutes or that he

never filed a grievance regarding denial of medical care after the

incident in question. That Plaintiff disagreed with the medical care he

was provided, arguing that he should have been seen by a doctor instead

of a nurse, does not amount to deliberate indifference to serious medical

needs. Domino, 239 F.3d at 756.

ORDER

The motion to dismiss is GRANTED and Plaintiff’s claims against

Movants are DISMISSED pursuant to the authority of 28 U.S.C.

§§ 1915(e)(2) and 1915A(b).

The claims against Defendants Partain and Munoz are DISMISSED

for want of prosecution.5

SO ORDERED on this 15th day of September 2023.

5 The Court notes that, for the reasons discussed in this Opinion and Order,

it does not appear that Plaintiff could go forward with his claims against these

Defendants in any event.