Brewer v. Geerdes

IN THE UNITED STATES DISTRICT COURT September 28, 2020

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

CALVIN DEWAYNE BREWER, §

(TDCJ #2069355) §

§

Plaintiff, §

/ § CIVIL ACTION NO. H-19-1219

VS. §

§

TAYLOR J. GEERDES, et al., §

§

Defendants. §

MEMORANDUM AND ORDER

Calvin Dewayne Brewer, a Texas Department of Criminal Justice inmate, (TDCJ

#2069355), filed a civil action under 42 U.S.C. § 1983, alleging excessive force in the prison where

he was incarcerated. The defendants moved for summary judgment on the basis of qualified

immunity, and Brewer responded. (Docket Entries Nos. 23, 24, 25, 26). Based on a careful review

of the pleadings, the motion and response, the record, and the applicable law, the court grants the

motion and enters a separate order dismissing this action with prejudice. The reasons are explained

below.

I. Background and Procedural History

Brewer filed this action in February 2019. He alleges that on September 18, 2018, the

defendants, correctional guards at the Estelle Unit, punched him several times, fracturing multiple

bones in his body. Docket Entry No. 1 at 4. In the grievances Brewer attached to his complaint,

he alleges that the incident started when he asked Officer Gregory whether and when his

commissary restriction would be lifted and, if not, if he could get an I-60 form to file a

grievance. Docket Entry No. 1-1 at 1. Brewer alleges that Gregory told him to move out of the

hallway or he would receive a disciplinary case. Id. Gregory then asked Brewer for his

identification card, but Brewer refused because an inmate count was in process. Id.

Brewer alleges that at this point, another guard, Officer Geerdes, came up and told Brewer

that he was lucky he would not be going to the A-wing, a more restrictive housing unit. Id. When

Brewer said that he did not care about that, Geerdes told him that he would be taken to A-wing

and ordered him to “cuff up.” Id. A third guard, Officer Goodall, joined and also ordered Brewer

to “cuff up.” Id. Brewer told Goodall that he thought the others would hurt him and asked Goodall

to get a video camera to film any force that might be used. Id. Goodall agreed and asked for a

video camera. Id.

Brewer alleges that while they waited, Geerdes put his hands around his handcuffs as if

they were brass knuckles and told Brewer that he intended to use the makeshift weapon against

him. Id. Brewer began trying to explain to Goodall what had happened before Goodall walked

up. At that point, Brewer alleges, Gregory punched him repeatedly — between two to six times

— in the face. Id.; Docket Entry No. 1 at 3-4. Brewer alleges that Geerdes then hit him with the

makeshift brass knuckles. Docket Entry No. 1 at 4.

In his grievances, Brewer alleges that a “gang of other C.O.s with [Geerdes] just punched

me down and after putting me in cuffs they slammed me to the ground.” Docket Entry No. 1-1 at

1. In his complaint, however, Brewer alleges that another guard, Officer Valdez, was the second

person to hit him after Gregory. Docket Entry No. 1 at 4. Brewer alleges in his complaint that

when he was on the ground, another guard, Officer Lopez, sat on his back, making it hard for him

to breathe. Id. Brewer alleges that after he was handcuffed and shackled and being escorted

towards the A-wing pass through the hallways by North Gate 1, another guard, Officer Villegas,

slammed him into the ground. Id. Brewer’s complaint does allege that Goodall participated in the

use of force against him, but it does not describe what Goodall did. Id.

Brewer alleges that he suffered three rib fractures and a broken wrist. Id. Brewer also

alleges that Valdez wrote a false disciplinary report against him. Id. Brewer seeks compensatory

damages for pain and suffering and for an order protecting him from retaliation. See id.

The defendants attached to their summary judgment motion, (Docket Entry Nos. 23, 24,

25), several reports on the use of force, Brewer’s medical records before and after the use of force,

pictures of Brewer immediately after the use of force, and a video recording of the incident.

Brewer filed a response to the motion, attaching several of the same records. See Docket Entry

No. 26. The record is analyzed under the legal standards that apply.

II. The Legal Standards

A. Summary Judgment

A district court “shall grant summary judgment 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 court considering a motion for summary judgment must consider all facts and

evidence in the light most favorable to the nonmoving party.” Haverda v. Hays Cty., 723 F.3d

586, 591 (5th Cir. 2013). “However, to avoid summary judgment, the non-movant must go beyond

the pleadings and come forward with specific facts indicating a genuine issue for trial.” LeMaire

v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). The nonmovant must “make a

sufficient showing of an essential element of the case to which [he] has the burden of

proof.” Id. He “must set forth specific facts to establish that there is a genuine issue for trial, but

where the evidential submissions lack probative value as to a genuine issue, summary judgment is

appropriate.” Id.

The substantive law determines what facts are “material.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A material fact issue exists “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id.; see Capital Concepts Props. 85-1 v.

Mut. First, Inc., 35 F.3d 170, 174 (5th Cir. 1994). “However, ‘the mere existence of a scintilla of

evidence in support of the plaintiff’s position will be insufficient [to preclude summary judgment];

there must be evidence on which the jury could reasonably find for the plaintiff.’” Doe v. Dallas

Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998) (quoting Anderson, 477 U.S. at 252) (alteration

in original). Rule 56, however, does not impose a duty on the district court to sift through the

record in search of evidence to support the nonmoving party. See Carr v. Air Line Pilots Ass’n

Int’l, 866 F.3d 597, 601 (5th Cir. 2017). The nonmovant must identify specific evidence in the

record and articulate how the evidence supports the nonmovant’s claim. Id. Conclusory

statements, speculation, and unsubstantiated assertions cannot defeat a motion for summary

judgment. RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

B. Qualified Immunity

Qualified immunity protects government officials from civil liability in their individual

capacity to the extent that their conduct does not violate clearly established statutory or

constitutional rights. See Mote v. Walthall, 902 F.3d 500, 505 (5th Cir. 2018). “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. Valderas v. City of Lubbock, 937 F.3d 384,

389 (5th Cir. 2019).

A plaintiff seeking to overcome qualified immunity must show: “(1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the

time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731 (2011). Courts of appeal are

free to decide which of the two prongs of the qualified immunity analysis to address first. Id.; see

also Camreta v. Greene, 563 U.S. 692 (2011) (“[I]t remains true that following the two-step

sequence—defining constitutional rights and only then conferring immunity—is sometimes

beneficial to clarify the legal standards governing public officials.”). The second prong is satisfied

only if “the state of the law at the time of the incident provided fair warning to the defendants that

their alleged [conduct] was unconstitutional.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (internal

quotation marks omitted).

III. Discussion

The defendants argue that they are entitled to qualified immunity because Brewer does not

point to evidence supporting an inference that their actions were objectively unreasonable,

considering the totality of the circumstances they faced. See Docket Entry No. 23. The defendants

argue that Brewer has not pointed to record evidence that could impart an inference that they acted

maliciously and sadistically, for the purpose of causing harm; instead, they argue that the evidence

shows that, under the Hudson factors, the force they used did not cause more than de minimis harm

and was limited to what was needed to control Brewer after he disobeyed orders to submit to

restraints and took an aggressive stance against them. They argue that the evidence also shows

that they took steps to minimize the amount of force they used. Id.

In his response, Brewer argues both that the use of force was obviously unconstitutional

and that there are genuine factual disputes material to determining whether the force was

unconstitutionally excessive. See Docket Entry No. 26. Brewer argues that the record shows that

he suffered injuries that were more than de minimis and that the defendants’ actions were not

objectively reasonable. Id. He argues that the video does not show him resisting after he was

restrained, or any use of force. Id. Brewer argues that the officers disregarded his complaints of

injury and pain immediately after the use of force, again, not captured on the video. Id.

A. Qualified Immunity and Excessive Force

It was clearly established when the use of force occurred that a prisoner has the right to be

free from having excessive force used against him. See Poole v. City of Shreveport, 691 F.3d 624,

627 (5th Cir. 2012). To raise a factual dispute as to excessive force, a plaintiff must point to

evidence showing: (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. Id. at 628. The

inquiry is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying intent or motivation.”

Graham v. Connor, 490 U.S. 386, 398 (1989). The use of force must be evaluated “from the

perspective of a reasonable officer. . . , rather than with the 20/20 vision of hindsight.” Poole, 691

F.3d at 627 (quoting Graham, 490 U.S. at 397).

In evaluating the use of force in a prison, 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.’” See McCoy v. Alamu, 950 F.3d 226, 230 (5th Cir. 2020) (citing Hudson v.

McMillian, 503 U.S. 1, 7 (1992)). Courts examine: (1) the extent of the injury suffered; (2) the

need for applying force against the prisoner; (3) the relationship between the need for force and

the amount applied; (4) the threat that could be reasonably perceived by the prison officials; and

(5) any efforts made to temper the severity of a forceful response. See Hudson, U.S. at 7. The use

of force must be considered in context. The court’s determination is based on the nature of the

force more than on the extent of the injury. See Bourne v. Gunnels, 921 F.3d 484 (5th Cir. 2019).

B. The Summary Judgment Record

The summary judgment evidence includes several reports, medical records before and after

the incident, photos of Brewer after the use of force, and the video that shows the actions taken

after Brewer was handcuffed.

1. The Use of Force Reports

a. Officer Goodall’s Report

Goodall’s statement describes Brewer as provoking the use of force by disobeying officers’

orders and acting aggressively in the hallway by North Gate 1. See Docket Entry No. 23-1 at 8,

16-17. According to Goodall, after Brewer took an aggressive stance against the officers, Gregory

hit Brewer three to four times in the head and face. Ortiz, Geerdes, Valdez, and Goodall then used

an unspecified amount of force to bring Brewer to the ground. Captain McMurrey arrived and

helped secure Brewer. While the officers were trying to secure Brewer’s right side, Brewer

reportedly bit Valdez’s hand and right leg. Geerdes applied the hand restraints and Villegas, who

had joined the others, helped secure Brewer’s legs. The video recording started at that point, when

Brewer was already lying on the floor. Goodall narrated the video. The guards pulled Brewer to

his feet and were escorting him toward the A-wing when, according to the guards and confirmed

by the recording, he tried to pull away from Villegas and Clement. These officers forced Brewer

back down to the ground, then back to his feet to continue escorting him toward the A-wing.

Brewer was verbally abusive, but he did not try to pull away again.

Once in the A-wing, Brewer’s restraints were removed. He was medically screened in the

A-wing and photographed. The photographs and medical records show that Brewer had a

superficial scratch, but he neither reported nor showed signs of other injuries. Goodall then read

aloud and gave Brewer the UOF-2 Officer Participant Statement Goodall had written.

b. Officer Clement’s Report

Clement stated in his report that he had arrived in the hallway outside North Gate 1 to

relieve Valdez, and was helping escort Brewer toward the A-wing when Brewer lunged at the

officers. See Docket Entry No. 23-1 at 10-11. Clement and Villegas pushed Brewer to the ground.

Brewer was then brought to A-wing without further incident, medically cleared, and Clement

returned to his duties.

c. Officer Geerdes’s Report

Geerdes’s report stated that he and Goodall gave Brewer several orders to allow them to

place him in restraints. See Docket Entry No. 23-1 at 13-14. Brewer refused and instead took an

aggressive stance and verbally threatened the officers. Gregory punched Brewer in the head, and

Brewer returned the punches. Geerdes, Goodall, Valdez, Ortiz, Gregory, and McMurrey brought

Brewer to the floor. Geerdes and McMurrey put Brewer’s arms in restraints while Valdez applied

the leg restraints. Villegas and Clement then lifted Brewer off the floor and began escorting him

toward the A-wing. When they approached the Central Desk in the hallway by North Gate 1,

Brewer lunged at the staff. Villegas and Clement took Brewer to the ground. When he was

subdued, they continued towards the A-wing. Brewer was verbally abusive to the staff as they

went through the hallway. At the A-wing, Brewer was medically cleared. There was no sign of

any significant injury.

Geerdes saw Goodall read and give Brewer his offender participation statement. Geerdes

then returned to his normal duties.

d. Officer Gregory’s Report

Gregory’s report stated that he was assigned to the Central Desk when he responded to a

report that Brewer was creating a disturbance in the hallway near North Hall Gate 1. See Docket

Entry No. 23-1 at 19-20. Gregory stated that he saw Brewer refuse orders to submit to restraints,

take his glasses off, and assume an aggressive stance toward the officers. Gregory punched Brewer

three to four times, and Brewer punched back. Valdez and Ortiz responded and helped Gregory

apply downward pressure to bring Brewer to the ground. As Valdez relieved Gregory, he saw the

other officers continue to escort Brewer towards the A-wing. Gregory went to the unit infirmary,

but he was not injured in the scuffle.

e. Captain McMurrey’s Report

Captain McMurrey’s report states that he was walking toward the Central Desk when he

saw the struggle between officers and Brewer at North Gate 1. See Docket Entry No. 23-1 at 22-

23. McMurrey saw officers trying to get a resisting Brewer on the floor. McMurrey came to help.

He saw Brewer resist the officers’ orders to submit to restraints. McMurrey helped Goodall, Ortiz,

Valdez, and Geerdes bring Brewer to the ground. Brewer continued to resist as the officers tried

to restrain his arms and legs. McMurrey helped secure Brewer’s leg restraints.

McMurrey was relieved and returned to the Central Desk to help in the inmate count. As

Brewer passed in front of the Central Desk with his officer escort, he kicked towards the officers

and verbally abused them. McMurrey saw Villegas and Clement use downward pressure to place

Brewer on the ground. Once Brewer calmed down, the officers continued escorting him to the A-

wing.

f. Officer Ortiz’s Report

Ortiz’s report states that he approached the North Gate 1, where he saw Brewer in a verbal

confrontation with several guards. See Docket Entry No. 23-1 at 25-26. Brewer was given several

orders to submit to restraints. Instead, he assumed a defensive posture, clenched his hands, and

told the officers to come get him. Gregory approached and hit Brewer on both sides of the upper

body. Brewer fought back. Other guards tried to bring Brewer to the ground. Valdez succeeded

in pulling Gregory out of Brewer’s grasp. Brewer resisted being placed in restraints, and managed

to get a set of keys from one of the guards. Brewer refused to release the keys when asked, and

Ortiz managed to get them away from Brewer. After Brewer was restrained, the video camera that

the guards had asked for arrived. Goodall narrated the recording. Ortiz walked away and returned

to his normal duties.

g. Officer Valdez’s Report

Valdez’s report states that he and Ortiz were walking from the chapel when they saw

Brewer in the North Gate 1 hallway. Brewer was being verbally abusive to the staff. See Docket

Entry No. 23-1 at 29-30. Valdez saw that Goodall was the supervisor on the scene, accompanied

by McMurrey, Geerdes, and Gregory. Goodall gave Brewer orders to submit to restraints. Brewer

instead backed away, clenched his fists, and said, “get the camera cus y’all gonna have to whoop

me.” Goodall asked for the video camera, but before it came, Brewer made an aggressive

movement towards the officers. Gregory hit Brewer in the upper body, and Brewer returned the

blows.

Goodall, Geerdes, and Ortiz came to Gregory’s aid by trying to place Brewer on the

ground. Valdez pulled Gregory away from Brewer to prevent him from landing more blows, while

other officers tried to secure Brewer with restraints. When Valdez was helping apply the

restraints, Brewer bit his left hand and tried to bite his right leg. Valdez returned to his normal

duties after Brewer was restrained.

h. Officer Villegas’s Report

Villegas’s report states that he responded to a use of force in progress. Villegas helped

apply the leg restraints to Brewer. See Docket Entry No. 23-1 at 32-33. After Brewer was

restrained, Villegas helped escort Brewer toward the A-wing. Brewer began to pull towards, and

verbally assault, Gregory when he was being escorted through the hallways past the Central

Desk. Villegas and Clements brought Brewer to the ground. After Brewer calmed down, they

pulled him back to his feet. Brewer was brought to A-wing. Villegas removed the restraints and

went back to his normal duties.

i. Officer Graham’s Report

Graham’s report states that he was the officer sent to fetch the video camera to record the

use of force incident. See Docket Entry No. 23-1 at 35. He recorded while Goodall narrated. The

recording continued as Brewer was escorted to the A-wing. The recording showed Brewer pull

away from Villegas and Clement. The officers took him to the ground and then pulled him back

on his feet after he was removed and became calm. Once in the A-wing, Brewer’s restraints were

removed, and he received a medical examination. Goodall then read Brewer the offender

participation statement.

2. Medical Records

The Estelle Unit clinic records for June 17, 2018, show that Brewer came to the clinic with

an injured finger from playing basketball. See Docket Entry No. 24 at 108. Brewer was instructed

to rest his hand and told that he would be scheduled for an X-ray. Id. at 112. On June 27, Brewer

missed a scheduled clinic appointment. See id. at 81. On August 14, Brewer was again seen at

the Estelle Unit clinic about his finger. See id. at 62. An X-ray was ordered at the UTMB hospital.

Id. at 65. On August 17, Brewer was seen at UTMB for a possible hand fracture. See id. at 8-16.

X-rays and tests showed a fracture in the fifth metacarpal with sclerosis and callus formation along

the fracture line that were consistent with healing. Id. at 8.

On September 17, Brewer missed a clinic appointment that had been scheduled to follow

up on his hand. See id. at 79. The use-of-force incident occurred the following day, September

18. LVN Sessions checked Brewer for injuries. See Docket Entry No. 23-1 at 62-64; Docket

Entry No. 24 at 105. Medical records show that Sessions found no sign of injury. Sessions noted

that Brewer told her that his hands “tingled,” but he denied an injury from the use of force.

On September 25, Estelle Unit clinic records show that Brewer reported wrist and rib pain.

Docket Entry No. 24 at 101. Brewer was able to bend forward, backwards, squat, twist his

abdomen, and rotate his wrist. Id. Brewer was given Tylenol for pain management and told to

revisit the clinic for further evaluation. Id. at 102.

On October 1, Brewer was seen at the Estelle Unit clinic after he complained of pain and

swelling in the wrist and ribs. See id. at 72. The exam notes state that Brewer’s ribs looked

symmetrical and that he was able to hold deep breaths for three seconds. Id. Brewer had full range

of motion and strength in his wrist, but he did have moderate swelling. Id. The treating physician

ordered an X-ray and Tylenol for pain management. Id.

On October 9, 2018, Brewer was seen at UTMB after he continued to complain of right

wrist swelling and rib pain. See Docket Entry No. 23-1 at 14-15; Docket Entry No. 24 at 24. The

exam noted that X-rays of the left and right ribs showed no pneumothorax, but they did show callus

formation on the right lateral seventh through ninth rib fractures. Docket Entry No. 24 at 24.

Brewer’s hand also showed subacute healing of a proximal metacarpal fracture with a

superimposed chronic distal fifth metacarpal fracture but no wrist deformation or fracture. Id. A

November 6, 2018, follow-up exam at UTMB showed a remote healed fifth metacarpal bone with

deformity but no acute boney abnormalities. See id. at 44.

On February 1, 2019, Brewer missed clinic appointments that had been scheduled because

he was still complaining of wrist and hand pain. See id. at 77, 78. On February 20, 2019, Brewer

was again seen for hand pain. An X-ray showed a healed fifth metacarpal fracture. See id. at 66-

68.

3. The Video Recording and Post-Incident Photographs

The use-of-force video recording does not show the initial use of force. See Docket Entry

No. 25. The recording begins after Brewer was on the ground and in hand and leg restraints. The

recording then shows the officers helping Brewer stand back up with Officers Villegas and

Clements escorting him towards the A-wing. When Brewer was next to the Central Desk, the

video shows him move towards the desk. The escorting officers promptly take him to the ground.

Once he is calm, the officers again help Brewer get to his feet and continue escorting him toward

the A-wing. Brewer is heard threatening those escorting him.

When the group arrived at the A-wing, the officers put Brewer in a holding area and

removed his restraints. Brewer was seen by L.V.N. Sessions and he was photographed. Goodall

then read Brewer an incident report.

The photos of Brewer after the incident show a cut or abrasion on his right ring finger. The

photos also show indentation marks on Brewer’s wrists, without any broken skin, where he was

handcuffed. See Docket Entry No. 23-1 at 74, 75. The photographs do not show swelling in the

wrist or hand, back, or rib areas. See id. at 72-75. No other injuries are shown. Id.

C. The Motions Filed by Valdez, Ortiz, and Goodall

Brewer alleges that Valdez struck him several times and wrote a report falsely alleging that

Brewer bit Valdez. Docket Entry No. 1 at 4. Brewer alleges that Ortiz restricted his breathing by

sitting on his back. Id. Brewer alleges that Goodall participated in the use of force against him,

but Brewer does not describe Goodall’s actions. Id.

1. Valdez

Brewer’s allegations against Valdez are conclusory, vague, and unsupported by the record

evidence. The descriptions of Valdez’s actions come primarily from the complaint and the

response to the motion for summary judgment, but they do not describe Valdez’s actions in detail.

In the complaint, Brewer alleges that Valdez “struck me several times in excessive use of force,

wrote false report which resulted in fractured bones and sent to high security.” See Docket Entry

No. 1 at 3. In the response to the motion for summary judgment, Brewer states that “Valdez joined

in and wrote me a false report which had me sent to high security for a year[.]” See Docket No.

26 at 2.

The record does not support these allegations. First, the record reflects that Valdez reported

his bite injury in the post-altercation medical examination and his use of force report. Other

officers involved in the use of force recall Brewer biting Valdez. These officers reported that

Valdez did not use force against Brewer but instead pulled Gregory off Brewer while other officers

tried to apply leg and wrist restraints. Second, even assuming that Valdez did punch Brewer, the

record shows that these punches were in response to Brewer’s refusal to submit to restraints. Third,

the record shows that the use of force occurred when the officers were trying to place restraints on

a resisting Brewer. Finally, the record shows that Valdez took steps to temper the amount of force

the officers used. For example, Valdez pulled Gregory off Brewer. The video shows that Valdez

did not use force after Brewer was in restraints. Brewer’s claims against Valdez cannot survive

the qualified immunity defense because the record shows that, as a matter of law, the force Valdez

used was objectively reasonable in the circumstances.

2. Ortiz

Brewer alleges that Ortiz briefly sat on his back while restraining him, restricting his

breathing, until Brewer was secured in restraints. The record shows that Ortiz’s actions were

within the limits of qualified immunity. The amount of force he used was limited in time and

degree, and it ended as soon as Brewer was restrained. The undisputed facts in the record show

that the force Ortiz used was consistent with securing a resisted prisoner; the need for the use of

force was apparent; the amount of force used was limited; and Ortiz did not use force after Brewer

was secure. The claims against Ortiz are denied.

3. Goodall

Similarly, Brewer’s allegations and the record do not support the conclusion that Goodall

violated Brewer’s rights. The record shows that Goodall grabbed Brewer’s legs while he was

resisting efforts to restrain him. Goodall helped secure Brewer’s legs until the video camera

arrived. The record also shows that Goodall narrated the use of force video recording, and did not

participate in any use of force while the camera was recording. Goodall cannot be liable for the

actions of other officers on this record, and the actions he personally took were objectively

reasonable. The claim against Goodall is denied.

D. Geerdes

Brewer alleges that Geerdes put his hands around his handcuffs as if they were brass

knuckles and told Brewer that the makeshift brass knuckles were for him. Docket Entry No. 1 at

3-4. Brewer alleges that Geerdes hit Brewer with the make-shift brass knuckles after Gregory hit

Brewer. Id.

Similar to the other defendants, Brewer’s allegations against Geerdes are conclusory and

not supported by the evidence in the record. For example, no part of the use-of-force reports

discuss Geerdes hitting Brewer or using handcuffs as brass-knuckles. Instead, the record shows

that Geerdes took an active role in taking Brewer to the ground but that he did not use additional

force after restricting Brewer’s arms. Brewer’s body photos do not show scratches, scrapes,

redness, or bruising that would be consistent with the use of makeshift brass knuckles. Considering

the Hudson factors, the record does not support or reference that Geerdes used force maliciously

to inflict pain. Geerdes’s use of force against Brewer was to help bring him to the ground and put

him in restraints after he resisted commands to allow the officers to apply the restraints. Once

Brewer was in restraints, Geerdes did not apply force.

Brewer had broken ribs from the overall use of force. This is consistent with being taken

forcibly to the ground, which the record shows was objectively reasonable because Brewer was in

an aggressive stance, verbally abusive, and refused orders to allow officers to put him in restraints.

The record does not support an inference that Brewer was injured from any use of the makeshift

brass knuckles he alleges Geerdes threatened. The broken ribs did not require medical treatment

beyond the pain pills Brewer received, and they did not cause lasting injury or prolonged pain.

Brewer did not have marks, lesions, or bruising that would suggest an unreasonably forceful

application of handcuffs. The lack of marks or injuries linked to Geerdes’s use of force indicates

that the amount of force used was reasonable in relation to the need. The claim against Geerdes is

denied.

E. Gregory

Brewer alleges that Gregory punched him two to six times in the face. Docket Entry No.

1 at 3-4. The record supports the allegations that Gregory punched Brewer in the face or upper

body area. Multiple use of force reports cite Gregory as punching Brewer in the face or upper

body area after Brewer refused commands to submit to restraints. But, the record shows that this

use of force ended when other officers brought Brewer to the ground and Valdez pulled Gregory

back. The record does not support an inference that Gregory continued to use force after the need

to restore order when Brewer refused to submit to restraints.

Gregory did not apply force against Brewer after Brewer was restrained, which indicates

an effort to minimalize the severity of the force. Brewer’s broken ribs are clearly from the overall

use of force. Brewer complained only of pain and slight difficulty breathing. Brewer did not have

marks, lesions, or bruising on his face or upper body as a result of Gregory’s use of force. The

lack of marks or injuries directly linked to Gregory’s use of force indicates that the amount of force

used was not objectively unreasonable in relation to the need. The use of force was in reaction to

Brewer’s refusal to submit to restraints and after he had taken an aggressive stance against Geerdes,

Goodall, and Gregory. The claim against Gregory is denied.

F. Villegas

Brewer alleges that, while he was handcuffed and shackled, Villegas slammed him into the

ground. Docket Entry No. 1 at 4. The video and record show that Brewer was put on the ground

while in handcuffs as he was escorted past the Central Desk and lunged toward the officers. The

record does not support an inference that this use of force was objectively unreasonable or that it

was done maliciously or sadistically.

The use-of-force reports state that Brewer moved towards Gregory before being taken

down. These reports also state that no further force was used against Brewer once he was on the

ground. The video is consistent; it shows that after Brewer lunged towards the Central Desk, the

guards escorting him took him to the ground. The video does not show additional force. While

Brewer does maintain that he “sa[i]d what [he] sa[i]d to [] Gregory [when] [he] was already past

him[,]” that does not negate or contradict the actions shown on the video. See Docket Entry No.

1-1 at 3. Brewer’s conclusory statements that the force used was excessive do not raise factual

disputes material to determining that the force used was objectively reasonable, given Brewer’s

active resistance to being escorted to the A-wing, his actions towards the guards before he was

escorted, and his lunging towards the officers escorting him — including an officer involved in the

earlier altercation. The claims against Gregory are dismissed.

IV. Conclusion

The claims against the defendants are dismissed because they are entitled to qualified

immunity. Defendants’ motion for summary judgment, (Docket Entry No. 23), is GRANTED.

Final judgment is entered by separate order.

SIGNED on September 25, 2020, at Houston, Texas.

Lee H. Rosenthal

Chief United States District Judge

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