Coker v. Kimbrough

IN THE UNITED STATES DISTRICT COURT August 02, 2022

Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

══════════════

NO. 3:18-CV-444

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JAMIE LEE COKER, TDCJ #01782357, PLAINTIFF,

v.

DENNIS C. GORE, ET AL., DEFENDANTS.

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MEMORANDUM OPINION AND ORDER

═══════════════════════════════════════

JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:

The plaintiff in this civil-rights action, Jamie Lee Coker, is an inmate in the

Texas Department of Criminal Justice – Correctional Institutions Division (TDCJ).

He has sued under 42 U.S.C. § 1983, alleging he was denied adequate medical care

and that a correctional officer used force against him during his hospital discharge.

Dkts. 1, 16, 24. Coker is pro se and has leave to proceed in forma pauperis.

Defendants Melveric Player and B.J. Kimbrough have moved for summary

judgment. Dkt. 54. Coker has responded. Dkt. 59. Having considered the parties’

briefing, the applicable law, and the record, the court grants the motion in part and

denies it in part.

I. BACKGROUND

The chronology underlying Coker’s claims, as summarized below, is based

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on his verified complaint and supplemental pleadings, as well as TDCJ reports and

Coker’s medical records the parties submitted as part of the summary-judgment

record.1

On February 7, 2017, Coker underwent an abdominal hernia repair surgery

at Hospital Galveston. See Dkt. 1 at 13, 28; Dkt. 16 at 2. Coker was discharged from

the hospital the following day. See Dkt. 16 at 2. TDCJ correctional officer Melveric

Player was assigned to escort Coker from his hospital room to the TDCJ transport

vehicle. See Dkt. 1 at 10. Once Officer Player informed Coker that he was being

discharged, Coker told Player that “something was wrong with [his] surgical

procedure and that he was experiencing extreme pain and was in dire need of Dr.

Gore,” the physician who performed the surgery. Dkt. 16 at 4; see also Dkt. 1 at 10.

Coker alleges that Player “refused to relay that message to [Dr.] Gore” and stated

that Dr. Gore had discharged Coker. Dkt. 16 at 4; Dkt. 1 at 10. Coker was

transported back to the Wayne Scott Unit that day. Dkt. 1 at 10.

On May 2, 2017, Coker underwent an exploratory laparotomy at Hospital

Galveston, due to complications from his previous surgery.2 See Dkt. 1 at 10, 28;

1 The court includes only those factual allegations that are relevant for the purposes

of this Memorandum Opinion and Order.

2 An “[e]xploratory laparotomy is surgery to open up the belly area (abdomen).

This surgery is done to find the cause of problems (such as belly pain or bleeding) that

testing could not diagnose. It is also used when an abdominal injury needs emergency

medical care.” Exploratory Laparotomy, Saint Luke’s,

https://www.saintlukeskc.org/health-library/exploratory-laparotomy (last visited July

25, 2022).

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Dkt. 16 at 5, 7–8. During the surgery, a surgical clip was found inside Coker’s

abdomen and was removed. See Dkt. 54-2 at 37. Coker’s incision was closed with

staples. See id. Coker describes his surgical wound as an “open wound measuring

8.5 cm X 2.5 cm X 2.5 cm that would have to heal from the inside out being cleaned

and washed out twice a day for more or less 3 months.” Dkt. 16 at 8.

Around 10:00 p.m. on May 4, two TDCJ officers woke up Coker in his

hospital room and informed him that he was being discharged. Id. at 10. The

officers told Coker that they were pressed for time, and that they would bring his

clothes and property down to the loading area so that he could get dressed down

there. Id. Coker, while handcuffed, was then taken in a wheelchair to the hospital’s

loading area. Id.; see also Dkt. 1 at 10. Coker was handed off to Officer Kimbrough,

who was one of the TDCJ officers assigned to transport Coker back to his TDCJ

unit. See Dkt. 1 at 10; Dkt. 16 at 10. The parties dispute what happened next.

According to Coker, Officer Kimbrough asked him where his clothes were,

and Coker responded that he was “rushed out” of his room and did not have time

to get dressed or collect his property. Dkt. 16 at 10. Officer Kimbrough instructed

the two officers who had brought Coker to the loading area to retrieve Coker’s

clothes and property. Id. Coker states that after the officers left to retrieve his

belongings, he remembered that his medical discharge instructions had also been

left in his hospital room, and Coker asked Officer Kimbrough if he could tell the

two officers to grab the folder containing the instructions. Id. Officer Kimbrough

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questioned why Coker had not taken the folder himself, and Coker replied that he

did not have time to do so. Id. According to Coker, Officer Kimbrough stated that

“Then I guess you won’t f****** get it then will ya!” Id. Coker then “explained about

his operation, the open wound that had to heal from the inside out and the need

for this red folder because it had instructions on how to take care of it.” Id.; see

also Dkt. 1 at 10. Officer Kimbrough allegedly replied, “You’ll get what I give you[,]

you stupid son of a b****![,]” to which Coker retorted, “F*** you[,] ya fat bastard[,]

what are you gonna do[,] beat me up while I’m handcuffed in this wheelchair[?]”

Dkt. 16 at 10. Coker asserts that Officer Kimbrough then “went off,” and tried to

throw him out of his wheelchair by “radically” shaking the chair back and forth and

“running the chair very fast and coming to an abrupt stop, for a total of three

times.” See id. at 11; Dkt. 1 at 10. Officer Kimbrough’s actions of shaking and

running with the wheelchair caused Coker’s surgical wound to tear open and bleed

to the degree that Coker’s “[hospital] gown was soaked with blood.” Dkt. 1 at 10;

Dkt. 16 at 11. Coker asserts that Kimbrough’s actions also injured his neck and

back. Dkt. 16 at 11–12.

Although the defendants have not submitted any affidavits or sworn

statements with their motion for summary judgment, they have attached several

TDCJ reports and documents relating to the incident.3 According to the documents

3 These documents include (1) a hand-written Inter-Office Communication by

Officer Jacob Gateri (who was present on the day of the incident), dated May 22, 2017

(Dkt. 54-1 at 10); (2) a typed Inter-Office Communication drafted by Shane Lemler, a

major at the Estelle Unit, dated May 22, 2017 (id. at 11); and (3) a hand-written Inter-

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the defendants submitted, after Coker was brought down to the loading area,

Officer Kimbrough spoke with him about “how to behave” on the transport back to

the TDCJ unit. See Dkt. 54-1 at 10. Coker asked Kimbrough for his discharge

papers, but Kimbrough informed Coker that, per TDCJ policy, he was not allowed

to carry his discharge papers and instead they would be “passed on to the receiving

nurse by staff.” Id. at 17. Coker then started to curse at Officer Kimbrough. Id.

Kimbrough denies touching Coker. Id. Officer Kimbrough reported that after

noticing Coker had blood stains on his gown, he called nursing staff and Coker’s

wound was redressed.4 Id. Officer Jacob Gateri, who was present at the loading

area, reported that he did not see Officer Kimbrough shake Coker’s wheelchair. Id.

at 10–11.

Coker was then transported to the Estelle Unit. Dkt. 1 at 10.

Office Communication dated May 11, 2017, by Officer Kimbrough (id. at 17).

4 There appears to be some dispute about whether Coker’s wound was redressed

by a nurse while Coker was still at the hospital. In an Inter-Office Communication about

the incident, Lemler reported:

Hospital Galveston Nurse Bryan Hicks . . . states that he reviewed [Coker]’s

chart to try and determine the nurses that redressed [Coker]’s wound, but

he was unable to do so. I did review the clinic notes in medical, but the only

notes I could find have to do with a dressing change being completed at the

Estelle Unit. None of the notes from Galveston dealt with having to redress

a wound.

Dkt. 54-1 at 11; see also id. at 12, 15. However, both Coker’s verified pleadings and the

Inter-Office Communication completed by Officer Kimbrough state that Coker’s wound

was redressed by a nurse while Coker was still at the hospital. See id. at 17; see also Dkt.

1 at 10; Dkt. 16 at 12.

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In December 2018, Coker filed a civil-rights complaint under 42 U.S.C. §

1983, alleging that the following fourteen individuals and entities violated his

constitutional rights: (1) Dr. Dennis C. Gore; (2) Bryan Collier, TDCJ Executive

Director; (3) Lorie Davis, TDCJ Director; (4) Olugbenga Ojo, Hospital

Administrator; (5) Don C. Bosco, Warden at Hospital Galveston; (6) Melverick

Player, correctional officer; (7) FNU Kimbrough, correctional officer; (8) “John

Doe (Officer Kimbrough’s partner)”; (9) Donald E. Muntz, Warden at the Wayne

Scott Unit; (10) Dr. Marcus E. Hinkle; (11) Norris D. Jackson, Warden at the Beto

Unit; (12) Cheryld Egan, P.A.; (13) the University of Texas Medical Branch

(UTMB); and (14) TDCJ. In particular, Coker alleges that Officer Player was

deliberately indifferent to his medical needs when he refused to tell Dr. Gore that

Coker was in extreme pain and that he thought something had gone wrong with

his surgery. Coker asserts that Officer Kimbrough used excessive force against him

when he tried to throw him out of his wheelchair by shaking the chair violently and

running it back and forth several times, causing Coker’s surgical wound to reopen.

He also brings a bystander liability claim against Officer John Doe, whom he

identifies as Officer Kimbrough’s partner on the day of the incident.

As relief, Coker seeks: (1) a declaration stating that his constitutional rights

were violated; (2) compensatory damages in the amount of $250,000.00 for “past,

present, and future pain, suffering and discomfort, mental anguish, and

physi[]ological harm” from the defendants; (3) punitive damages in the amount of

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$50,000.00 from Officer Kimbrough and $25,000.00 from Officer Kimbrough’s

partner; (4) exemplary damages in the amount of $200,000.00 from all of the

defendants, jointly and severally; and (5) costs. Id. at 13–14. At the court’s request,

Coker has filed two supplemental statements of his claims. See Dkts. 16, 24.

After screening Coker’s pleadings as required by the Prison Litigation

Reform Act (PLRA), 28 U.S.C. §§ 1915A, 1915(e)(2)(B), the court dismissed the

claims against Dr. Gore, Dr. Hinkle, Collier, Davis, Ojo, Bosco, Muntz, Jackson,

TDCJ, and UTMB for failure to state a claim on which relief may be granted. Dkt.

25. The court severed and transferred Coker’s claim against Egan to the Eastern

District of Texas, Tyler Division. Dkt. 26. The court then ordered Player and

Kimbrough to answer Coker’s claims against them. Dkt. 27.

Player and Kimbrough have moved for summary judgment, arguing that the

claim against Player was not properly exhausted, that the claims against both

defendants are without merit, and that the defendants are entitled to qualified

immunity. Dkt. 54. Coker has responded. Dkt. 59.

II. STANDARDS OF REVIEW

A. Motion for Summary Judgment Under FRCP 56

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of

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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v.

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Anthony, 710 F.3d 587, 594 (5th Cir. 2013). The initial burden falls on the movant

to identify “those portions of the record it believes demonstrate the absence of a

genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349

(5th Cir. 2005). The movant “may meet its burden by simply ‘pointing to an

absence of evidence to support the nonmoving party’s case.’” Boudreaux v. Swift

Transp. Co., Inc., 402 F.3d 536, 544 (5th Cir. 2005) (quoting Armstrong v. Am.

Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003)).

Once the movant presents a properly supported motion for summary

judgment, the burden shifts to the non-movant to show with significant probative

evidence the existence of a genuine issue of material fact. Hamilton v. Segue

Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). The non-moving party must

present specific facts which show “the existence of a ‘genuine’ issue concerning

every essential component of its case.” Firman v. Life Ins. Co. of N. Am., 684 F.3d

533, 538 (5th Cir. 2012) (per curiam) (quoting Morris v. Covan World Wide

Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)). “Conclusory allegations” or

“unsubstantiated assertions” do not meet the non-movant’s burden. Delta & Pine

Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008).

A reviewing court “must view the evidence introduced and all factual

inferences from the evidence in the light most favorable to the party opposing

summary judgment . . . .” Smith v. Reg’l Trans. Auth., 827 F.3d 412, 417 (5th Cir.

2016) (quoting Hightower v. Tex. Hosp. Ass’n, 65 F.3d 443, 447 (5th Cir. 1995)).

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“It is not the court’s role on summary judgment to weigh competing evidence or

make credibility determinations.” Grogan v. Kumar, 873 F.3d 273, 279 (5th Cir.

2017). Factual controversies, however, are resolved in favor of the non-movant

only when “both parties have submitted evidence of contradictory facts.”

Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (quotation omitted). Without

proof, a reviewing court will not assume that the non-movant could or would prove

the necessary facts. See McCallum Highlands, Ltd. v. Wash. Cap. Dus, Inc., 66

F.3d 89, 92 (5th Cir. 1995). Further, a court need not comb the record to find

evidence that will permit a non-movant to survive summary judgment. See Adams

v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006) (citing Ragas

v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).

Coker proceeds pro se. Courts construe pleadings filed by pro se litigants

under a less stringent standard of review. Haines v. Kerner, 404 U.S. 519, 520

(1972) (per curiam). Under this standard, “[a] document filed pro se is ‘to be

liberally construed,’ . . . and ‘a pro se complaint, however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.

97, 106 (1976)). However, “the notice afforded by the Rules of Civil Procedure and

the local rules” is considered “sufficient” to advise a pro se party of his burden in

opposing a summary-judgment motion. Martin v. Harrison Cnty. Jail, 975 F.2d

192, 193 (5th Cir. 1992). Even a pro se plaintiff must specifically refer to evidence

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in the summary-judgment record to place that evidence properly before the court.

Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 & n.9 (5th Cir. 2016); see also

E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (“Despite our general

willingness to construe pro se filings liberally, we still require pro se parties to

fundamentally abide by the rules that govern the federal courts. Pro se litigants

must properly . . . present summary judgment evidence[.]”) (cleaned up).

B. Qualified Immunity

The defendants have invoked the defense of qualified immunity, which

protects government officials “from liability for civil damages insofar as their

conduct does 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). Qualified immunity “protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

“A public official is entitled to qualified immunity unless the plaintiff

demonstrates (1) the defendant violated the plaintiff’s constitutional rights and (2)

the defendant’s actions were objectively unreasonable in light of clearly established

law at the time of the violation.” Waganfeald v. Gusman, 674 F.3d 475, 483 (5th

Cir. 2012) (quoting Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011)). The court

may consider the prongs in any order. Whitley v. Hanna, 726 F.3d 631, 638 (5th

Cir. 2013).

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“[Q]ualified immunity alters the usual summary judgment burden of proof,

shifting it to the plaintiff to show that the defense is not available.” Cass v. City of

Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (citation and internal quotation marks

omitted). After an official has asserted the defense of qualified immunity, the

burden is on the plaintiff to “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.” Gates

v. Tex. Dep’t of Protective & Regul. Servs., 537 F.3d 404, 419 (5th Cir. 2008).

III. ANALYSIS

A. Exhaustion of Administrative Remedies for the Claim

Against Player

Coker alleges that Player denied him adequate medical care when he refused

to tell Coker’s surgeon, Dr. Gore, that Coker was in “extreme pain,” that something

was wrong with his surgical procedure, and that he was “in dire need” of Dr. Gore.

The defendants argue that Player is entitled to summary judgment because Coker

failed to properly exhaust administrative remedies before filing suit. See Dkt. 54 at

5. Coker appears to argue that he exhausted this claim in Grievance No.

2017090449. See Dkt. 59 at 9.

Administrative exhaustion is mandatory under the PLRA; an inmate

bringing an action regarding prison conditions under 42 U.S.C. § 1983 or other

federal law must first exhaust all administrative remedies “as are available” before

seeking relief in federal court. 42 U.S.C. § 1997e(a); see Ross v. Blake, 578 U.S.

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632, 641 (2016); Wilson v. Epps, 776 F.3d 296, 301 (5th Cir. 2015). Thus, a prisoner

must exhaust available administrative remedies in accordance with all procedural

rules, including deadlines, as a precondition to bringing suit. Woodford v. Ngo,

548 U.S. 81, 90–94 (2006).

TDCJ has a formal two-step administrative-grievance process that is well

established. See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). A Step 1

grievance, which is reviewed by officials at the inmate’s assigned facility, must be

filed within fifteen days of the alleged incident or challenged event. See id. Once an

inmate receives a response to his Step 1 grievance, he then has ten days to file a

Step 2 grievance to appeal an unfavorable result at the state level.5 See id.; see also

Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) (outlining the two-step

procedure). A Texas prisoner must pursue a grievance through both steps to satisfy

the exhaustion requirement. See Johnson, 385 F.3d at 515.

The Fifth Circuit strictly enforces the exhaustion requirement found in the

PLRA. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010). Mere substantial

5 The inmate-grievance procedure is also set out in the TDCJ Offender Orientation

Handbook. The handbook, which is available on the TDCJ website, confirms that an

inmate has fifteen days from the date of the alleged incident to file a Step 1 grievance, and

that if the inmate is not satisfied with the Step 1 response, the inmate may appeal the Step

1 by filing a Step 2 grievance. See Texas Department of Criminal Justice, Offender

Orientation Handbook 73–74 (Feb. 2017 version), available at

https://www.tdcj.texas.gov/documents/Offender_Orientation_Handbook_English.pdf

(last visited July 25, 2022). Although the TDCJ handbook was not made a part of the

record, the court can take judicial notice of the handbook listed on the TDCJ website. See

Huskey v. Jones, 860 F. App’x 322, 325 n.3 (5th Cir. 2021) (per curiam) (explaining that

the court “may take judicial notice of grievance procedures listed on a state’s website.”)

(citing Cantwell v. Sterling, 788 F.3d 507, 509 (5th Cir. 2015) (per curiam)).

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compliance with the TDCJ grievance process is not enough to exhaust remedies as

required by § 1997e(a). Id. (“Under our strict approach, we have found that mere

‘substantial compliance’ with administrative remedy procedures does not satisfy

exhaustion[.]”); Taylor v. Burns, 371 F. App’x 479, 481 (5th Cir. 2010) (per curiam)

(“The expiration of the time for the prison to respond . . . result[s] in exhaustion

only if [the prisoner] . . . timely pursue[s] his grievance at each step of the

process.”).

The Fifth Circuit has also held that grievances must contain sufficient detail

to give prison officials fair notice and an opportunity to address the problem that

will later form the basis of a lawsuit. Johnson, 385 F.3d at 516–17. The amount of

detail necessary will likely depend upon the type of problem of which the inmate is

complaining. Id. at 517. “If an inmate claims that a guard acted improperly, we can

assume that the administrators responding to the grievance would want to know—

and a prisoner could ordinarily be expected to provide—details regarding who was

involved and when the incident occurred, or at least other available information

about the incident that would permit an investigation of the matter.” Id.

(explaining that a complaint about a correctional officer would identify a specific

person, whereas a complaint about a prison condition, such as vermin in a cell or

that commissary costs are too high, might not identify any individual).

Coker identifies Grievance No. 2017090449 as exhausting his claim against

Player. The majority of the Step 1 for Grievance No. 2017090449 concerns Coker’s

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dissatisfaction about not receiving any pain medication after his February 7, 2017,

surgery, having to ride the bus back to the unit in uncomfortable conditions, and

being in continued pain once back at the unit. See Dkt. 54-1 at 25–26. At the

conclusion of the grievance form, when asked to provide the action requested to

resolve the complaint, Coker requested: “Stop the neglect[,] treat us like humans

not cattle [and] answer the call of help when someone asks[.] [C]lean[,] sterilize

more seating[,] less overcrowding[, and] keep it clean like a hospital [is] supposed

to be.” Id. at 26. As pointed out by the defendants, Coker does not identify Player

by name in this Step 1. The only portion of the Step 1 grievance that can be

construed to concern Player is the following:

My grievance is that I was discharged and still had problems that

needed attention from a doctor[.] I repeated several times that I

needed the doctor and was told by the officer the doctor has

discharged you[,] get your stuff together you are going back to your

unit. The problem I had was that I was bloated from eating and had

not used the bathroom #2 since the 5th[.] I was admitted on the 6th[,]

operated on the 7th[,] discharged on the 8th[.] I expressed the whole

time of this problem even right before the operation I told the nurse I

haven’t used the restroom [and] she said don’t worry about it! I said I

wasn’t leaving until I talked to the doctor[.] The officer said then I’ll

have you removed by force if I have to.

Id. at 25.

Although “a plaintiff is not always required to identify a defendant by name

in his grievance, he must provide information sufficient for prison officials to

investigate his allegations.” McCoy v. Norwood, No. 7:16-cv-131-O, 2018 WL

11269229, at *3 (N.D. Tex. Nov. 9, 2018). Even assuming that the above

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description by Coker in his Step 1 references an issue he had with Player, the

summary-judgment evidence reflects that Coker did not follow up on his alleged

issue with Player in his Step 2 grievance. Instead, the Step 2 grievance solely

concerns Coker’s medical issues since his hernia surgery. See Dkt. 54-1 at 23–24.

There is no mention of Player—either by name or by his alleged actions that form

the basis of Coker’s complaint—in the Step 2 grievance.

Accordingly, Coker has not exhausted his administrative remedies because

he did not complete both a Step 1 and Step 2 grievance regarding Player’s alleged

conduct that forms the basis of his complaint, as required under TDCJ’s grievance

process. See, e.g., Bryant v. Strong, No. Civ A H-11-1586, 2013 WL 504893, at *3

(S.D. Tex. Feb. 7, 2013) (holding that plaintiff did not exhaust his claims against

TDCJ officers when plaintiff identified them by name in only his Step 2, and not

his Step 1 grievance); Whiting v. Lambert, No. 2:16-cv-261-Z-BR, 2020 WL

760409, at *7 (N.D. Tex. Jan. 23, 2020) (“Although the Court does not require that

plaintiff specifically mention all defendants by name, [plaintiff] must specifically

address each incident complained of in both steps of a grievance process to have

properly exhausted his claims.”), R&R adopted, 2020 WL 759420 (N.D. Tex. Feb.

14, 2020).

Coker’s deliberate-indifference claim against Player must be dismissed for

failure to exhaust. This claim is dismissed with prejudice. See Donahue v. Wilder,

824 F. App’x 261, 267 (5th Cir. 2020) (per curiam) (“Failure to exhaust ‘usually

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results in a dismissal without prejudice,’ but with prejudice dismissal is warranted

when it is ‘too late’ for the plaintiff to exhaust.”) (quoting Dawson v. Farms, LLC

v. Farm Serv. Agency, 504 F.3d 592, 607 (5th Cir. 2007)). Because Coker’s claim

against Player has been dismissed on exhaustion grounds, the court need not

address Player’s arguments regarding qualified immunity and the merits of Coker’s

deliberate-indifference claim.

B. Use-of-Force Claim Against Kimbrough

Coker alleges that Officer Kimbrough used excessive force against him when

he tried to throw him out of his wheelchair by violently shaking the chair back and

forth and “running the chair very fast and coming to an abrupt stop, for a total of

three times,” which caused Coker’s surgical wound to split open, soaking his

hospital gown full of blood and requiring that his wound be redressed.

“[T]he settled rule [is] that ‘the unnecessary and wanton infliction of pain …

constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’”

Payne v. Parnell, 246 F. App’x 884, 886 (5th Cir. 2007) (per curiam) (quoting

Hudson v. McMillian, 503 U.S. 1, 5 (1992)). When a prisoner claims that a prison

official’s use of force violates the Eighth Amendment’s ban on cruel and unusual

punishment, 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.” Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312 (1986)).

When determining “whether unnecessary and wanton infliction of pain was used,”

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the court looks to five relevant factors: (1) the extent of the injury suffered by the

inmate; (2) the need for the application of force; (3) the relationship between the

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. See Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998)). Although a

de minimis injury is not cognizable, “there is no categorical requirement that the

physical injury be significant, serious, or more than minor.” Gomez v. Chandler,

163 F.3d 921, 924 (5th Cir. 1999). Significantly, “[t]he amount of injury necessary

to satisfy [the] requirement of ‘some injury’ and establish a constitutional violation

is directly related to the amount of force that is constitutionally permissible under

the circumstances.” Payne, 246 F. App’x at 888 (quoting Ikerd v. Blair, 101 F.3d

430, 434 (5th Cir. 1996)).

In support of their motion for summary judgment on the excessive-force

claim, the defendants make the following brief argument:

No evidence demonstrates force was applied on Coker on May

4, 2017. Ex. A at 309–327. A search for incident reports or use[-]of[-]

force records related to the alleged May 4 incident revealed nothing.

Kimbrough did not apply force on Coker, and so no investigations

were necessary. Ex. A at 310, 312, 316, 323. Nothing in Coker’s medical

records shows he suffered an injury because of Kimbrough’s conduct.

See Ex. B. With no evidence to support his allegations about

Kimbrough’s use of force, Coker’s excessive force claim against

Kimbrough should be dismissed.

Dkt. 54 at 7. The defendants claim that there is no evidence to support an excessive-

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force claim,6 but Coker’s verified complaint (Dkt. 1) and more definite statement

(Dkt. 16)—in which he swore under penalty of perjury that the allegations

contained therein were true and correct—are competent summary-judgment

evidence. See Hart v. Hairston, 343 F.3d 762, 764 n.1 (5th Cir. 2003) (finding that

inmate’s declaration which was sworn to under penalty of perjury was competent

summary-judgment evidence) (citation omitted); Grogan, 873 F.3d at 279

(“Declarations and verified pleadings that are dated and made on penalty of

perjury . . . constitute ‘adequate summary judgment evidence.’”) (quoting Stewart

v. Guzman, 555 F. App’x 425, 431 (5th Cir. 2014) (per curiam)); Cantwell v.

Sterling, 788 F.3d 507, 509 n.1 (5th Cir. 2015) (“The ordinary rules of civil

procedure are applicable in prisoner suits. [The plaintiff] offered his testimony

under penalty of perjury and declared it to be true and correct, so it must be

credited on summary judgment.”) (citations omitted). Based on the evidence, the

record reflects a genuine factual dispute on each of the five factors.

First, the record reflects a genuine issue as to the extent of Coker’s injuries.

Coker alleges that his surgical wound was split open and had to be redressed by

nurses at the loading area, and that he suffered injuries to his neck and back. His

allegations in this suit are consistent with his statements in the inter-office

communications and his grievance, both of which were made within days of the

6 The defendants’ assertion that no incident reports exist is obviously incorrect.

Submitted as part of their own summary-judgment record are several reports created in

response to Coker’s allegation that Officer Kimbrough applied force to him while he was

in a wheelchair. See, e.g., Dkt. 54-1 at 10, 11, 17.

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alleged incident. The record therefore reflects a genuine issue of fact. In any event,

Officer Kimbrough is not entitled to summary judgment on this ground because

the court must focus on the amount of force used, rather than the amount of injury.

See Wilkins v. Gaddy, 559 U.S. 34, 38–39 (2010).

Next, the record reflects a genuine issue regarding whether force was

necessary at the time Officer Kimbrough allegedly used it, the relationship between

the need and the amount of force used, whether Kimbrough reasonably perceived

a threat, and whether Kimbrough tempered the force. In his pleadings, Coker

alleges that Officer Kimbrough was aware that Coker was recovering from surgery,

had an incision that needed to heal, and was sitting in a wheelchair while

handcuffed. Coker further alleges that Kimbrough, without apparent justification,

tried to throw him out of his wheelchair by violently shaking the chair back and

forth and running with the chair and then coming to an abrupt stop several times,

ultimately causing Coker’s incision to bleed and requiring its redressing by nurses

at Hospital Galveston. Construing the facts in Coker’s favor, he has raised a

genuine dispute of material fact as to an Eighth Amendment excessive-force claim,

as well as a factual dispute regarding his purported injuries. Officer Kimbrough is

therefore not entitled to summary judgment on the question of whether he violated

Coker’s Eighth Amendment rights.

Because the defendants have invoked the defense of qualified immunity, the

court must also determine whether Officer Kimbrough’s conduct was objectively

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reasonable in light of clearly established law. Clearly established law holds that a

prison official violates the Eighth Amendment when the official applies force

“maliciously and sadistically to cause harm” or uses force that is “wanton and

unnecessary” because it is beyond that reasonably required to maintain or restore

discipline. See Hudson, 503 U.S. at 6–7; Payne, 246 F. App’x at 886. If Officer

Kimbrough used physical force maliciously and sadistically to cause Coker harm

or force beyond that reasonably required to maintain or restore discipline, then a

reasonable officer in Kimbrough’s situation would have known that his actions

violated clearly established law. Therefore, genuine issues remain as to whether

Kimbrough is entitled to qualified immunity. The defendants’ motion for summary

judgment on the excessive-force claim against Officer Kimbrough will be denied.

C. Remaining Defendant

Coker also named “John Doe (Officer Kimbrough’s Partner)” as a defendant.

See Dkt. 1 at 5. Aside from alleging that Officer Doe violated his Eighth Amendment

rights, the complaint did not contain any factual allegations against Officer Doe.

See id. In response to the court’s request to describe Officer Doe’s personal

involvement in the constitutional violations that form the basis of his complaint,

Coker replied:

This Officer John Doe was informed of Plaintiff’s operation, knew

about Plaintiff’s open wound, know about the substantial risk of harm

and failed to respond reasonably to protect him when this excessive

force was used that was meant to cause harm rather than keep order

and was maliciously and sadistically applied knowing that the Plaintiff

was no threat to anyone with this open wound, handcuffed in a

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wheelchair in his gown and socks.

Dkt. 16 at 12. Construing the pleadings liberally, the court understands Coker to

bring a bystander-liability claim against Officer Doe.

“[A]n officer may be liable under § 1983 under a theory of bystander liability

where the officer (1) knows that a fellow officer is violating an individual’s

constitutional rights; (2) has a reasonable opportunity to prevent the harm; and

(3) chooses not to act.” Hanna, 726 F.3d at 646 (citation and internal quotation

marks omitted). “Mere presence at the scene of the alleged use of force, without

more, does not give rise to bystander liability.” Vasquez v. Chacon, No. CIV A 3:08-

cv-2406-MBH, 2009 WL 2169017, at *6 (N.D. Tex. July 20, 2009), aff’d, 390 F.

App’x (5th Cir. 2010); see also Sanchez v. Griffis, 569 F. Supp. 3d 496, 517 (W.D.

Tex. 2021) (citing Hanna, 726 F.3d at 646–47). “An officer must have had a

reasonable opportunity to realize the excessive nature of the force and a realistic

opportunity to stop it in order for the duty to intervene arise.” Vasquez, 2009 WL

2169017, at *6 (citations omitted). “In evaluating whether an officer took

reasonable measures to protect a[n] [inmate], courts have considered both the

duration of the alleged use of excessive force by other officers and the location of

the [inmate] relative to the officer against which a claimant seeks bystander

liability.” Id. (citations omitted). Further, “[i]n resolving whether a plaintiff has

sufficiently alleged a bystander liability claim [courts] also consider whether an

officer ‘acquiesced[d] in’ the alleged constitutional violation.” Hanna, 726 F.3d

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631, 647 (5th Cir. 2013) (quoting Hale v. Townley, 45 F.3d 914, 919 (5th Cir.

1995)).

Coker’s factual allegations as to Officer Doe are scant. Though Coker has

alleged that Officer Doe was present when Officer Kimbrough allegedly assaulted

him, he does not allege facts that indicate where Officer Doe was in relation to

Officer Kimbrough or that Officer Doe had foreknowledge that the attack would

happen. Nor does Coker allege the duration of Officer Kimbrough’s assault—

although, from his verified pleadings, it appears that the assault was unexpected

and did not last very long. Because Coker has failed to allege that Officer Doe had

an opportunity to prevent the use of force or that Officer Doe had sufficient time

to intervene in the assault, his bystander-liability claim is dismissed under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state claim on which relief may be granted.7

See Drumm v. Valdez, No. 3:16-cv-3482-M-BH, 2019 WL 7494443, at *7 (N.D.

Tex. Dec. 3, 2019) (dismissing plaintiff’s bystander-liability claim under §

1915(e)(2)(B) when plaintiff did not allege facts indicating where the defendant

was standing during the assault or the duration of the assault, and thereby failing

to allege how the defendant could have prevented the use of force or had sufficient

7 Under 28 U.S.C. § 1915(e)(2)(B)(ii), “the court shall dismiss the case at any time

if the court determines that . . . the action . . . is frivolous . . . or fails to state a claim on

which relief may be granted.” Although the court did not order service on this defendant,

the court observes that it does not appear that Coker has exhausted his bystander-liability

claim against Officer John Doe. In his Step 1 and Step 2 grievances about Officer

Kimbrough’s alleged use of force on May 4, 2017, Coker makes no mention of the John

Doe officer or any allegations concerning a TDCJ officer who was present but did not help

Coker. See Dkt. 1 at 31–32.

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time to intervene in the use of force), R&R adopted, 2020 WL 85163 (N.D. Tex.

Jan. 6, 2020); Skinner v. Gautreaux, No. CV 20-595-SDD-SDJ, 2022 WL 884915,

at *8 (M.D. La. Mar. 24, 2022) (dismissing bystander-liability claim when plaintiff

failed to allege that defendant had any knowledge of impending attack or the length

of time of the attack and therefore finding that plaintiff failed to allege that

defendant had an opportunity to intervene).

D. Appointment of Counsel

Coker has previously moved for appointment of counsel. See Dkt. 61. In its

order denying Coker’s request for counsel, the court stated that it would revisit the

issue on its own motion as necessary. Under Federal Rule of Civil Procedure 54(b),

a court is free to reconsider its earlier orders and decisions “for any reason it deems

sufficient . . . .” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017).

A district court may appoint counsel for an indigent inmate where a case

presents exceptional circumstances, such as a trial that “will consist in large part

of conflicting testimony so as to require skill in the presentation of evidence and in

cross examination.” Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)

(citations omitted); see also Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir.

2015). Because the assistance of trained counsel will be necessary for purposes of

a trial and any trial preparation, the court reconsiders its earlier order denying

Coker’s request for counsel and will now grant Coker’s motion for appointment of

counsel for further proceedings in this case. The court will temporarily stay this

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case until a volunteer attorney can be located and appointed as Coker’s counsel of

record. Coker’s motion for a scheduling order (Dkt. 65) is denied at this time, as

the court will issue a scheduling order once counsel is appointed.

Finally, consistent with the court’s order dated February 22, 2022, (Dkt. 62),

the Clerk is instructed to unseal the documents located at Dkt. 54 and Dkt. 54-1.

Dkt. 54-2 is to remain sealed.

* * *

For the reasons stated above, the court ORDERS as follows:

1. The motion for summary judgment filed by B.J Kimbrough and Melveric

Player (Dkt. 54) is GRANTED in part and DENIED in part.

2. Coker’s claim against Melveric Player is DISMISSED with prejudice.

3. Coker’s bystander-liability claim against Officer John Doe is

DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state claim on which relief may be granted.

4. Coker’s motion for a scheduling order (Dkt. 65) is DENIED at this time.

5. The Clerk is INSTRUCTED to unseal the documents located at Dkt. 54

and Dkt. 54-1. Dkt. 54-2 is to remain sealed.

6. This case is STAYED until the court locates a volunteer attorney to

represent Coker. Once counsel is located, the court will re-open this case

and issue a separate order for a status conference.

The clerk will provide a copy of this order to the parties.

Signed on Galveston Island this _2_n_d_ day of A u g ust , 2022.

______________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

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