# Silvas v. Lt. Hinajosa

> District Court, S.D. Texas · June 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10674378

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** June 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10674378

## How later opinions describe it (automated extraction)

- concluding that a sore, bruised ear lasting for three days, was considered to be de minimis injuries
- affirming district court’s finding that de minimis injuries including abrasions to hands and knees, some pain in the back and neck, and unspecified problems with asthma sustained in the process of being arrested and handcuffed did not support excessive force claim
- explaining that an individual arrested for a parole violation could be considered a pretrial detainee rather than a convicted prisoner

## Opinion text

UNITED STATES DISTRICT COURT June 17, 2021
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
CORPUS CHRISTI DIVISION

JULIAN G. SILVAS, §
§
Plaintiff, §
VS. § CIVIL NO. 2:19-cv-376
§
LT HINOJOSA, et al, §
§
Defendants. §

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Plaintiff Julian G. Silvas, a former detainee appearing pro se and in forma pauperis,
has filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Pending before the
Court is a motion for summary judgment filed by Defendant Sergeant Zackery Brown. (D.E.
71). The referral of this motion to Magistrate Judge Julie K. Hampton is TERMINATED.
For the reasons stated herein, the Court GRANTS Brown’s summary judgment motion.
I. JURISDICTION
The Court has federal question jurisdiction over this civil action pursuant to 28 U.S.C.
§ 1331.
II. PROCEDURAL BACKGROUND
Plaintiff’s claims in this lawsuit arise in connection with being taken into custody at
the Nueces County Jail (NCJ) in Corpus Christi, Texas, on both a new criminal charge and a
parole violation. At the Court’s direction, Plaintiff presented his claims in a Comprehensive
Amended Complaint filed on April 7, 2020. (D.E. 27).
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Plaintiff named the following NCJ officials in his Comprehensive Amended
Complaint: (1) Lieutenant Hinojosa; (2) Sergeant Perez; (3) Sergeant Syler; (4) unknown
medical staff; (5) Sergeant Warner; (6) Lieutenant Gomez; and (7) Sergeant Brown. (D.E.

27, p. 3). He sought comprehensive damages and his felonies removed from the record.
(D.E. 27, p. 5). Plaintiff subsequently filed a supplemental complaint naming Sergeant
Wilson as well as Defendants Hinojosa, Perez, and Brown. (See D.E. 30).
On March 10, 2020, Magistrate Judge Hampton conducted a Spears1 hearing, where
Plaintiff was given an opportunity to explain his claims. On July 2, 2020, Magistrate Judge

Hampton issued a Memorandum and Recommendation (M&R), recommending that the
Court only retain Plaintiff’s excessive force claim against Brown in his individual capacity.
(D.E. 42). The Court subsequently adopted the M&R. (D.E. 53).
On January 28, 2021, Brown filed a motion for summary judgment. (D.E. 71).
Plaintiff has filed several responses and objections to the summary judgment motion. (D.E.

77, 79, 84, 86, 87).
III. SUMMARY JUDGMENT EVIDENCE
Brown offers the following summary judgment evidence:
● Affidavit of Brown (D.E. 71-1, p. 2).
● Affidavit of Daniel Perez (D.E. 71-1, pp. 3-4).

● Inmate Communication Forms (D.E. 71-1, pp. 5-13).

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

2
● Incident Reports Involving Plaintiff (D.E. 71-1, pp. 14-28).
● December 14, 2019 Medical Records for Plaintiff (D.E. 71-1, pp. 29-30).
● Excerpt of NCJ Inmate Rules and Regulations Handbook (D.E. 71-1, p. 31).

Plaintiff, in turn, offers the following summary judgment evidence:
● Plaintiff’s verified Comprehensive Amended Complaint (D.E. 27).
● Transcript of the June 1, 2020 Spears Hearing (D.E. 35).

● Plaintiff’s Declarations (D.E. 78; D.E. 79, pp. 1-2).

● Affidavits of Plaintiff and Perez as well as portions of the Use of
Force/Injury Report and Plaintiff’s medical records (D.E. 79-1).

● Plaintiff’s Inmate Communication Form, dated December 15, 2019
(D.E. 87-1, p. 1).

● Plaintiff’s Inmate Communication Form, dated November 18, 2020
(D.E. 87-1, p. 3).

● Plaintiff’s Inmate Communication Form, dated November 24, 2020
(D.E. 87-1, p. 4).

● Plaintiff’s Mental Health Records, dated March 3, 2021 (D.E. 87-3).

A. Use of Force Evidence
On December 14, 2019, Brown was alerted to an incident involving Plaintiff spitting
on another inmate’s cell window in an attempt to incite a fight. (D.E. 71-1, p. 2). Brown
stated in his affidavit that:
● As he approached Plaintiff’s cell, he noticed a liquid appearing to be
saliva on the inmate’s cell door window.

● He went to Plaintiff’s cell and noticed Plaintiff wearing socks wrapped
around his hands and his head.
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● Plaintiff refused his orders to remove the altered clothing items and
began to clench his hands into a fist and breathe heavily.

● When he attempted to calm Plaintiff down, Plaintiff responded that he
was the sheriff and was mad he could not be released from the jail.

● Plaintiff confessed to Brown that he had spit on the other inmate’s cell
window door.

● After determining that Plaintiff should be moved to a different unit due
to inciting a fight, Brown ordered Plaintiff to gather his possessions.

● Plaintiff refused to comply with his orders.

● He then ordered Plaintiff to stand up and place his hands behind his
back.

● Plaintiff responded by standing up, chest bumping Brown, and stating
that he would not be moved.

● Brown advised Plaintiff that he would defend himself should Plaintiff
attempt any form of threat against him.

● After Brown attempted to place Plaintiff’s hands behind his back,
Plaintiff intentionally chest bumped him again.

● Brown proceeded to place Plaintiff on the ground and ordered him to
place his hands behind his back.

● Plaintiff refused to comply and instead attempted to swing at Brown
with his right hand.

● With the assistance of other officers, Brown was able to place hand
restraints on Plaintiff.

(D.E. 71-1, p. 2).
In connection with the Use of Force Report, Officers Dzierzanski, Guerrero, and
Fielder provided statements reflecting that each of them had assisted Brown in placing
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restraints on Plaintiff. (D.E. 71-1, pp. 23-25; D.E. 79-1, pp. 3-4, 6). Brown and two other
officers stated that Plaintiff was taken to medical and was cleared of any significant injuries,
having only sustained minor redness to the right side of his face. (D.E. 71-1, pp. 2, 23-24).

Plaintiff, in turn, testified at the Spears hearing that: (1) on December 14, 2019, Brown
assaulted him by slamming him against the wall and to the ground as well as punching him
five to fifteen times; (2) he did not fight back or otherwise resist; (3) he suffered a busted lip,
numerous bumps and bruises on his head, and a cracked tooth; and (4) Brown’s assault also
caused him to bleed heavily from his mouth. (D.E. 35, pp. 26-29).

B. Grievance Evidence
The NCJ Inmate Rules and Regulations permit inmates to file a grievance anytime
they have been subjected to violations of their civil rights. (D.E. 71-1, p. 31). For most
situations, the NCJ Inmate Rules and Regulations require an inmate to proceed through three
informal steps where the inmate writes the duty sergeant, the shift lieutenant, and the

pertinent captain. (D.E. 71-1, p. 31).
If the problem is still unresolved, the inmate is directed to “begin the formal grievance
procedure by sending a request form to the I.G. (Inmate Grievance) Investigators.” (D.E. 71-
1, p. 31). Under the NCJ Rules and Regulations, “[a]n inmate request form is not a formal
grievance form.” (D.E. 71-1, p. 31). Lastly, these rules and regulations direct the inmate to

“write straight to the I.G. Office instead of the three supervisors mentioned above” if the
grievance issue “concerns allegations of assault by a county employee.” (D.E. 71-1, p. 31).

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On December 15, 2019, Plaintiff completed an Inmate Communication Form (ICF), in
which he set forth his assault allegations against Brown. (D.E. 71-1, p. 8). Plaintiff
complained that Brown came to his cell, asked what was wrong with him, and told him he

would be moved. (D.E. 71-1, p. 8). Plaintiff further wrote that, after he refused to move and
stood up, Brown rushed him, slammed him into a wall, and punched him several times
causing him to bleed. (D.E. 71-1, p. 8). On the ICF, Plaintiff checked off the box where he
requested the services of a grievance officer. (D.E. 71-1, p. 8). Plaintiff’s December 15,
2019 ICF includes the following written response by an NCJ officer:

After careful review of camera footage, you were seen refusing to pack up
when being told and then were seen licking another inmate’s cell door then
seen throwing a liquid substance on another inmate. Sgt. Brown removed you
from your cell due to being aggressive. You were seen by medical and cleared
with no injuries.

(D.E. 71-1, p. 8).
C. Medical Evidence
A clinical Progress Note, dated December 14, 2019, reflects that Plaintiff was
escorted to the intake nursing unit for evaluation following Brown’s use of force. (D.E. 71-
1, p. 29). According to the clinical notes, Plaintiff’s evaluation revealed: (1) a pea size pink
area on his scalp line with no swelling; (2) a nickel size pink area of skin on his left side
temporal area with minimal swelling; and (3) Plaintiff refused to permit an evaluation of his
mouth and teeth. (D.E. 71-1, p. 30). The clinical notes did not detail any other injury to
Plaintiff. (D.E. 71-1, p. 30).

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IV. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine

issue exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court
must examine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Id. at 251-52.

In making this determination, the court must consider the record as a whole by
reviewing all pleadings, depositions, affidavits, and admissions on file, and drawing all
justifiable inferences in favor of the party opposing the motion. Caboni v. Gen. Motors
Corp., 278 F.3d 448, 451 (5th Cir. 2002). The court may not weigh the evidence or evaluate
the credibility of witnesses. Id. Furthermore, affidavits or declarations “must be made on

personal knowledge, [shall] set out facts that would be admissible in evidence, and [shall]
show that the affiant or declarant is competent to testify to the matters stated.” Fed. R. Civ.
P. 56(c)(4); see also Cormier v. Pennzoil Expl. & Prod. Co., 969 F.2d 1559, 1561 (5th Cir.
1992) (per curiam) (refusing to consider affidavits that relied on hearsay statements); Martin
v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per curiam) (stating

that courts cannot consider hearsay evidence in affidavits and depositions). Unauthenticated
and unverified documents do not constitute proper summary judgment evidence. King v.
Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam).
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The moving party bears the initial burden of showing the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
demonstrates an absence of evidence supporting the nonmoving party’s case, then the burden

shifts to the nonmoving party to come forward with specific facts showing that a genuine
issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). To sustain this burden, the nonmoving party cannot rest on the mere allegations
of the pleadings. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. at 248. “After the nonmovant
has been given an opportunity to raise a genuine factual issue, if no reasonable juror could

find for the nonmovant, summary judgment will be granted.” Caboni, 278 F.3d at 451. “If
reasonable minds could differ as to the import of the evidence, . . . a verdict should not be
directed.” Anderson, 477 U.S. at 250-51.
V. DISCUSSION
A. Exhaustion

In his summary judgment motion, Brown seeks dismissal of Plaintiff’s excessive
force claim against him for failure to exhaust his administrative remedies. (D.E. 71, pp. 6-7).
The Prison Litigation Reform Act, 42 U.S.C. § 1997e, provides:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.

42 U.S.C. § 1997e(a).
The exhaustion requirement applies to all inmate suits about prison life, whether
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involving general circumstances or specific incidents. Porter v. Nussle, 534 U.S. 516, 532
(2002); Clifford v. Gibbs, 298 F.3d 328, 330 (5th Cir. 2002). Moreover, a prisoner is
required to exhaust his administrative remedies even if damages are unavailable through the

grievance process. Booth v. Churner, 532 U.S. 731, 734 (2001); Wright v. Hollingsworth,
260 F.3d 357, 358 (5th Cir. 2001). A prisoner must complete the administrative review
process in accordance with all procedural rules, including deadlines, as a precondition to
bringing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 83 (2006). Because
exhaustion is an affirmative defense, inmates are not required to plead or demonstrate

exhaustion in their complaints. Jones v. Bock, 549 U.S. 199, 215 (2006).
Prisoners, however, are only required to exhaust administrative remedies that are
actually “available” to them. Davis v. Fernandez, 798 F.3d 290, 294 (5th Cir. 2015). An
administrative remedy is considered unavailable when officials are “unable or consistently
unwilling to provide any relief,” the administrative remedy scheme is “so opaque that it

becomes, practically speaking, incapable of use” by an ordinary prisoner, or “when prison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation or intimidation.” See Ross v. Blake, 136 S. Ct. 1850, 1859–
61 (2016).
Nueces County has an inmate grievance procedure. (D.E. 71-1, p. 31). According to

the NCJ grievance procedure, inmates are allowed to file a grievance anytime they allege
they have been subjected to a violation of civil rights. (D.E. 71-1, p. 31). The grievance
procedure sets forth an informal process whereby the inmate is directed to contact various
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NCJ officials to resolve the issue. (D.E. 71-1, p. 31). The grievance procedure also indicates
that: “[I]f the grievance concerns allegations of assault by a county employee, then write
straight to the I.G. office.” (D.E. 71-1, p. 31).

The competent summary judgment evidence presented in this case shows that Plaintiff
completed an ICF on December 15, 2019, with respect to his excessive force allegations
against Brown. (D.E. 71-1, p. 8). The NCJ grievance procedure specifies, however, that an
ICF is not a formal grievance form and that the formal grievance procedure begins by
submitting a grievance form. (D.E. 71-1, p. 31).

No evidence has been presented to show that Plaintiff submitted a formal grievance
form to a grievance officer with regard to his complaints against Brown. Nevertheless, the
competent summary judgment evidence demonstrates that Plaintiff sought to bring his
excessive force claim against Brown in accordance with the NCJ grievance procedure. By
checking off the “Grievance Officer” box in his December 15, 2019 ICF, Plaintiff properly

attempted to bypass the informal process and directly complain to the I.G. office as
contemplated by the NCJ Rules and Regulations. See Milligan v. Nueces Cnty. Texas, No.
2:18-CV-188, 2019 WL 8323678, at *4 (S.D. Tex. Nov. 19, 2019) (finding that inmates at
the NCJ must select “Grievance Officer” on the ICF to bypass the informal grievance
procedures on assault claims and contact the I.G. office directly).

Despite following the NCJ procedure, there is no evidence presented showing that
NCJ officials facilitated Plaintiff’s ability to present his allegations in a formal grievance
form. Rather, the competent summary judgment evidence establishes that on December 16,
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2019, an NCJ officer responded in an informal fashion to Plaintiff’s ICF complaints by
effectively denying relief. (D.E. 71-1, p. 8). It is unclear from the evidence presented why
Plaintiff received the December 16, 2019 response in the absence of Plaintiff being permitted

to submit his allegations through a formal grievance form, especially considering his
allegations referenced an assault by an NCJ official.
Plaintiff’s complaints as set forth in the December 15, 2019 ICF at first blush appear
to place NCJ prison officials on notice of such a claim, and an NCJ official issued a response
to such complaints. See Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004) (explaining

that a grievance “should be considered sufficient to the extent that the grievance gives
officials a fair opportunity to address the problem that will later form the basis of the
lawsuit”). However, with regard to the unusual circumstances arising in this case, factual
issues exist as to whether NCJ officials arbitrarily processed Plaintiff’s December 15, 2019
ICF through an informal response as opposed to the formal NCJ grievance procedure for

considering complaints of assault against NCJ officers.
By handling Plaintiff’s complaints through such an informal process, genuine issues
of fact exist on the issue of whether NCJ officials intentionally thwarted Plaintiff’s ability to
exhaust the remedies available to him through the NCJ grievance procedure. In light of these
disputed issues of fact as to whether the NCJ grievance procedure was made available to

Plaintiff, Brown’s summary judgment motion is denied on the issue of exhaustion. The
Court now turns to consider the merits of Plaintiff’s excessive force claim against Brown.

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B. Qualified Immunity
Brown moves for summary judgment as to Plaintiff’s excessive force claim on the
grounds he is entitled to qualified immunity. (D.E. 71, pp. 8-12). Government officials

performing discretionary duties can respond to § 1983 claims by asserting qualified
immunity. Rich v. Palko, 920 F.3d 288, 293-94 (5th Cir. 2019) (citing Haverda v. Hays
Cnty., 723 F.3d 586, 598 (5th Cir. 2013)).
“Qualified immunity attaches when an official’s conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would have

known.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 577 U.S. 7,
11 (2015)). Government officials are given “breathing room to make reasonable but
mistaken judgments” and “all but the plainly incompetent or those who knowingly violate
the law” are protected. Stanton v. Sims, 571 U.S. 3, 6 (2013) (citations omitted). Qualified
immunity “represents the norm, and courts should deny a defendant immunity only in rare

circumstances.” Rich, 920 F.3d at 294; Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir.
2019) (Courts “must think twice before denying qualified immunity.”).
The usual summary judgment burden of proof is altered in the case of a qualified
immunity defense. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). When a
government official has pled the defense of qualified immunity alleging the actions taken

were in good faith and within the scope of discretionary authority, the burden is on the
plaintiff to establish that the official’s conduct violated clearly established law. Id. Plaintiff
cannot rest on pleadings but instead must show a genuine issue of material fact concerning
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the reasonableness of the official’s conduct. Id.; Bazan v. Hidalgo Cnty., 246 F.3d 481, 489-
90 (5th Cir. 2001).
To survive summary judgment on the issue of qualified immunity, a plaintiff must

satisfy two independent inquiries. First, whether viewing the summary judgment evidence in
the light most favorable to plaintiffs, the defendants violated the plaintiffs’ constitutional
rights. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007); Delaughter v. Woodall, 909
F.3d 130, 137-38 (5th Cir. 2018). If the court determines “that the alleged conduct did not
violate a constitutional right, [the] inquiry ceases because there is no constitutional violation

for which the government official would need qualified immunity.” Lytle v. Bexar Cnty.,
Tex., 560 F.3d 404, 410 (5th Cir. 2009) (citation omitted). If there is a genuine dispute of
material fact regarding whether there was a constitutional rights violation, the court then asks
whether defendants’ actions were objectively unreasonable in light of the clearly established
law at the time of the constitutional violation. Freeman, 483 F.3d at 411; Haggerty v. Tex. S.

Univ., 391 F.3d 653, 655 (5th Cir. 2004) (The second prong requires courts to “ask whether
the right was clearly established—that is, whether ‘it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.’”) (citation omitted).
If the court answers both questions in the affirmative, the government official is not
entitled to qualified immunity. Lytle, 560 F.3d at 410. Courts are permitted to exercise

discretion in determining the order in which to analyze the two-part qualified immunity test.
Pearson v. Callahan, 555 U.S. 223, 236 (2009); Dyer v. Houston, 964 F.3d 374, 380 (5th
Cir. 2020) (citations omitted).
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At this stage, the qualified immunity inquiry requires a court to “accept the plaintiff’s
version of the facts (to the extent reflected by proper summary judgment evidence) as true.”
Haggerty, 391 F.3d at 655; Tolan v. Cotton, 572 U.S. 650, 651, 657-59 (2014). “If, upon

viewing the evidence in the light most favorable to the [plaintiff], reasonable public officials
could differ on the lawfulness of the defendant’s actions, the defendant is entitled to
qualified immunity.” Id. (“This inquiry is an objective one, not dependent on the particular
officer’s subjective beliefs.”) (citation omitted).
Plaintiff claims that Brown used excessive force against him on December 14, 2019.

Plaintiff’s excessive force claim arises under the Fourteenth Amendment because the
incident occurred while he was confined at the NCJ during all relevant times as both a
pretrial detainee and on a parole violation. See Kingsley v. Hendrickson, 576 U.S. 389, 396–
97 (2015) (abrogating lower courts’ application of Eighth Amendment excessive force
standards to pretrial detainees); Mitchell v. Cervantes, 453 F. App’x 475, 477 n.1 (5th Cir.

2011) (explaining that an individual arrested for a parole violation could be considered a
pretrial detainee rather than a convicted prisoner).
To sufficiently state an excessive force claim, “a pretrial detainee must show only that
the force purposefully and knowingly used against him was objectively unreasonable.” Id.
“[O]bjective reasonableness turns on the ‘facts and circumstances of each particular case.’”

Id. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The reasonableness of the
force used must be assessed “from the perspective and with the knowledge of the defendant
officer” and with “deference to policies and practices needed to maintain order and
14
institutional security.” Id. at 399–400. In determining the objective reasonableness of an
officer’s use of force, a court should consider the following factors: (1) the relationship
between the need for the use of force and the amount of force used; (2) the extent of the

plaintiff’s injury; (3) any effort made by the officer to temper or limit the amount of force;
(4) the severity of the security problem at issue; (5) the threat reasonably perceived by the
officer; and (6) whether the plaintiff was actively resisting. Id. at 397.
Furthermore, to establish an excessive force claim, a plaintiff must demonstrate that
the conduct resulted in more than de minimis injury. See Westfall v. Luna, 903 F.3d 534, 548

(5th Cir. 2018) (citing Brooks v. City of W. Point, 639 F. App’x 986, 990 (5th Cir. 2016));
see also Galada v. Payne, 421 F. App’x 460, 462 (5th Cir. 2011) (citing Glen v. City of
Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (affirming dismissal on summary judgment of
pretrial detainee’s excessive force claim where he failed to allege he suffered any physical
injury)); Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (“An inmate who complains of a push or

shove that causes no discernible injury almost certainly fails to state a valid excessive force
claim.” (internal quotation marks omitted)).
Brown contends that, after consideration of the relevant five factors, the evidence
demonstrates no excessive force was used against Plaintiff. (D.E. 71, pp. 9-11). He
contends, therefore, that Plaintiff has failed to overcome Brown’s entitlement to qualified

immunity. Plaintiff responds that the evidence presented in this case is sufficient to allow
this case to go to trial. (D.E. 77, p. 2-3; D.E. 84, p. 1; D.E. 87, pp.1-2).

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Brown has submitted competent summary judgment evidence to show that: (1)
Plaintiff confessed to Brown that he spit on the other inmate’s cell window door; (2) Plaintiff
refused to comply with Brown’s orders to gather his possessions and move to another cell;

(3) Plaintiff actively resisted Brown’s attempts to restrain him by chest bumping Brown
twice and taking a swing at him; (4) Brown forced Plaintiff to the ground; and (5) other
officers assisted Brown in restraining him. (D.E. 71-1, pp. 2, 23-25).
In contrast, Plaintiff testified at the Spears hearing that Brown assaulted him by
slamming him against the wall and to the ground as well as punching him five to fifteen

times and that he did not fight back or otherwise resist. (D.E. 35, pp. 26-29). Plaintiff
testified further that Brown’s use of force caused him to bleed heavily from the mouth as
well as suffer a busted lip, numerous bumps and bruises on his head, and a cracked tooth.
(D.E. 35, pp. 26-29). Plaintiff, however, does not substantiate his claims of such serious
injuries with medical records or other evidence.

In his affidavit, Brown stated that Plaintiff was taken to medical where it was
discovered that he only had minor redness to the right side of his face and was cleared of any
injuries. (D.E. 71-1, p. 2). Other officers echoed Brown’s testimony in their statements
provided as part of the Use of Force investigation. (D.E. 71-1, pp. 23-24). Objective
medical records show that Plaintiff was evaluated shortly after the use of force where it was

revealed that he only had minor redness on his scalp line and left side of his face with
minimal to no swelling reported. (D.E. 71-1, p. 29).

16
The objective medical records demonstrate that any injuries suffered in connection
with the use of force on December 14, 2019, were no more than de minimis. See Gobert v.
Caldwell, 463 F.3d 339, 347 n. 24 (5th Cir. 2006) (“‘Medical records of sick calls,

examinations, diagnoses, and medications may rebut an inmate’s [civil rights] allegations’”);
Wilburn v. Shane, 193 F.3d 517, 1999 WL 706141, at *1 (5th Cir. Aug. 20, 1999) (finding it
“implausible that the hospital would not have recorded the severe injuries” that plaintiff
alleged in an excessive force case); see also Brooks, 639 F. App’x at 990 (affirming district
court’s finding that de minimis injuries including abrasions to hands and knees, some pain in

the back and neck, and unspecified problems with asthma sustained in the process of being
arrested and handcuffed did not support excessive force claim); Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997) (concluding that a sore, bruised ear lasting for three days, was
considered to be de minimis injuries). Plaintiff, therefore, has no basis for a Fourteenth
Amendment excessive force claim due to the lack of an actionable injury.

Furthermore, consideration of the five factors set forth in Kinglsey demonstrates that
Brown’s use of force was objectively reasonable. Plaintiff acknowledged in his December
15, 2019 ICF that: (1) Brown came to his cell and told him he would be moved; and (2)
Plaintiff refused to move and instead stood up. (D.E. 71-1, p. 8). Plaintiff’s statements in
the ICF are consistent with Brown’s affidavit testimony, which detailed Plaintiff’s refusal to

comply with his orders to gather his possessions and move to another cell.
Even assuming that Plaintiff did not actively resist Brown’s attempts to restrain him,
the unrebutted summary judgment evidence demonstrates in the absence of any significant
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injury to Plaintiff that Brown deployed force in a reasonable manner as well as tempered in
severity for the purpose of gaining Plaintiff's compliance with his direct orders. Indeed,
“(t]he Fifth Circuit has consistently found no excessive force where prison officials employ
force against inmates refusing to comply with orders.” Schneider v. Kaelin, No. C. 12-233,
2013 WL 1867611, at *5 (S.D. Tex. Apr. 21, 2013) (citing Thomas v. Comstock, 222 F.
App’x 439, 442 (Sth Cir. 2007) (per curiam)).
Accordingly, even when viewing the evidence in a light most favorable to Plaintiff,
there is no genuine dispute of any material fact regarding whether excessive force in
violation of the Fourteenth Amendment was used against Plaintiff on December 14, 2019, by
Brown. Thus, Brown is entitled to qualified immunity as well as summary judgment with
respect to Plaintiff's excessive force claim.
VI. CONCLUSION
For the reasons set forth above, IT IS ORDERED that Brown’s motion for summary
judgment (D.E. 71) is GRANTED and that Plaintiff's Fourteenth Amendment claim of
excessive force against Brown is DISMISSED with prejudice.
It is so ORDERED.
SIGNED this 17th day of June, 2021.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10674378. Public record. Not legal advice.