# Hanson v. Texas Department Of Criminal Justice

> District Court, S.D. Texas · November 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10677158

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** November 7, 2023
- **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/10677158

## How later opinions describe it (automated extraction)

- finding that the plaintiff's “own sworn declaration, medical records documenting his injuries resulting from the use of force, and unsworn declarations of inmates who allegedly witnessed the event” were sufficient to raise a genuine issue of material fact

## Opinion text

Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT November 07, 202%
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

MILES S. HANSON, JR., §
Plaintiff, :
v. CIVIL ACTION NO. H-20-386
CHARLES K. CHEGE, and :
JOHN HERSHISER, III, §
Defendants.
MEMORANDUM AND ORDER
At all times relevant to this case, Miles S. Hanson, Jr. was an inmate in Wynne Unit of the
Texas Department of Criminal Justice (“TDCJ’), and the defendants were corrections officers at
the Wynne Unit. Hanson filed suit under 42 U.S.C. § 1983 alleging that the defendants used
excessive force, and exhibited deliberate indifference to Hanson’s safety and to his serious
medical needs. He seeks compensatory and punitive damages.
The defendants now each move for summary judgment. Based on the pleading€*the
motions, Hanson’s responses, the record, and the applicable law, defendant Charles K. Chege’s
motion is granted, and defendant John Hershiser, III’s motion is granted in part and denied in
part. The reasons for this decision are set out below.

I. Background
On January 27, 2018, Hanson got into a fight with his cellmate. Chege Motion for
Summary Judgment (“CMSJ”) (Docket Entry No. 55), Exh. A at 23:15-22. Chege responded to
the fight. CMSJ, Exh. D at 1402.

Chege escorted the cellmate from the scene, CMSJ, Exh. A at 24:19-25:12, 28:18-20,
29:21-30:12, and defendant Hershiser cuffed Hanson’s hands behind his back and then escorted
him toward the unit infirmary. Jd. at 25:16-21, 32:6-12. Hershiser held Hanson by the shirt, id.
at 20:11-21:8, 32:10-17. Hanson contends that this was not proper procedure. They approached
a stairway, and Hanson fell down a flight of stairs. He alleges that one of the defendants either
pushed him, or that he fell because Hershiser was not properly supporting him while walking in
hand restraints. It is undisputed that Hanson fell down the stairs and suffered serious physical
injuries. /d. at 35:10-36:14.
After EMS arrived, Hanson had to be resuscitated. CSJM, Exh. D at 1402. He was
taken to Huntsville Memorial Hospital where he received 19 staples in his head and more than 20
stitches around his right eye. He was then life flighted to Memorial Hermann Hospital in
Houston where he underwent surgery to repair multiple fractures to his neck and spine. He also
suffered a broken nose and a fractured knee.

Il. Standard of Review
Summary judgment is appropriate if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact” and therefore judgment is appropriate as a matter of law.
Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the “evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Anderson y. Liberty Lobby, 477 U.S. 242, 255 (1986). Once the movant presents evidence
demonstrating entitlement to summary judgment, the nonmovant must present specific facts

showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986).
If the movant ... meet[s] th[e] burden [of demonstrating the
absence of a genuine issue of material fact], the nonmovant must
go beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial.
This burden is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by “unsubstantiated
assertions, or by only a scintilla of evidence. We resolve factual
controversies in favor of the nonmoving party, but only when there
is an actual controversy, that is, when both parties have submitted
evidence of contradictory facts. We do not, however, in the
absence of any proof, assume that the nonmoving party could or
would prove the necessary facts.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (citations and internal quotation
marks omitted),

Hit. Analysis
Hanson contends that the defendants violated his Eighth Amendment rights when one of
them used excessive force by pushing him down the stairs or, in the alternative, exhibited
deliberate indifference to his safety by failing to properly support and restrain him while
escorting him down the stairs. He further contends that both defendants exhibited deliberate
indifference to his serious medical needs by delaying in calling for medical help after he fell.

A. Motion to Supplement
As a preliminary matter, defendant Hershiser moves for leave to supplement his motion
for summary judgment with his deposition transcript. Hanson opposes the motion because
Hershiser fails to cite to any particular portion of his deposition in support of his motion for

summary judgment as required by Fed. R. Civ. P. 56(c)(1)(A). In the alternative, Hanson cites
specific portions of the deposition that he claims support his position and urges the Court to
consider these if the motion is granted.
Because Hershiser’s deposition serves to create a more complete record, the motion to
supplement (Docket Entry No. 82) is granted. The Court will consider relevant portions of the
deposition.

B. Excessive Force
In assessing a claim that a prison official used excessive force, the question to be
answered is “whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503
U.S. 1, 7 (1992)(internal quotation marks and citations omitted).
The Fifth Circuit has identified several factors to consider:
1. the extent of the injury suffered;
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.
Hudson v. Millian, 962 F.2d 522, 523 (Sth Cir. 1992).

1. Defendant Chege
Citing Hanson’s deposition testimony, defendant Chege argues that he did not escort
Hanson, was not present when Hanson fell, and therefore cannot be liable for any use of
excessive force causing the fall. CMSJ, Exh. A at 30:10-16, 32:6-12.
Hanson does not dispute that Chege did not accompany him. Instead, Hanson complains

that a witness who, according to Hanson, stated that Hershiser accompanied Hanson, has not
been made available for a deposition. Hanson acknowledges that this witness identified
Hershiser as the officer accompanying Hanson and identifies no basis to believe that this witness
would contradict Hanson’s own identification of Hershiser as the accompanying officer.
Hanson further argues that Chege may have seen Hershiser holding Hanson by the shirt
instead of grasping Hanson’s arm, as required by TDCJ policy. Even if true, this argument
suggests either than Chege was negligent in not speaking up or, if Chege was in a supervisory
position, that he is responsible for the misconduct of his subordinate. Neither argument is
sufficient to withstand summary judgment.
As noted above, the Supreme Court has held that a claim of excessive force must show
that the force was applied “maliciously and sadistically to cause harm.” Hudson, 503 U:S. at 7.
Hanson’s response does not suggest that Chege applied force at all.
To the extent that Hanson argues that Chege’s failure to speak up amounts to deliberate
indifference to a serious risk of harm, the argument also fails. “Deliberate indifference” is more
than mere negligence, .but “something less than acts or omissions for the very purpose of causing
harm or with knowledge that harm will result.” Farmer v. Brennan, 511 U.S. 825, 835 (1994).
The record, however, makes clear that Chege left the scene with Hanson’s cellmate before
Hanson and Hershiser left. There is no basis for inferring that Chege saw how Hershiser was
holding Hanson because Chege was already gone. Hanson makes no argument supporting a
claim that that Chege deliberately ignored a substantial risk of injury.
Finally, if Hanson intends to argue that Chege was in a supervisory role and therefore
bears responsibility for Hershiser’s alleged misconduct, the claim also fails. It is well

established that supervisory officials cannot be held vicariously liable under 42 U.S.C. § 1983
for acts of their subordinates on a theory of respondeat superior. Monell v. Dept of Soc. Servs.,
436 U.S. 658, 692 (1978). For these reasons, Chege is entitled to summary judgment on
Hanson’s excessive force claim.

2. Defendant Hershiser
Hershiser argues that, while Hanson alleges that he was pushed down the stairs, he
testified that the last thing he remembered was walking toward the stairs with his hands
restrained behind his back before waking up in the hospital six days later. HMSJ, Exh. A at
33:19-34:4. Hanson responds that the record shows the existence of at least one witness —
another inmate -- who claims to have seen Hershiser push Hanson down the stairs. Hanson
states that he has requested the deposition of this witness, but that TDCJ has not produced him.
Hanson submits his own sworn declaration identifying the witness, and identifying another
witness’s statement suggesting that Hanson was pushed. See Response to HMSJ (Docket No.
69), Exh. A. This is sufficient to demonstrate the existence of a genuine issue of material fact.
See Bourne v. Gunnels, 921 F.3d 484, 492-93 (5 Cir. 2019)(finding that the plaintiff's “own
sworn declaration, medical records documenting his injuries resulting from the use of force, and
unsworn declarations of inmates who allegedly witnessed the event” were sufficient to raise a
genuine issue of material fact). Hershiser is not entitled to summary judgment on Hanson’s
excessive force claim.

C. Deliberate Indifference
Hanson alleges that the defendants delayed by several minutes calling for medical help

after he fell down the stairs. He contends that this alleged delay constitutes deliberate
indifference to his serious medical needs in violation of his Eighth Amendment rights. Hanson
also argues as an alternative to his excessive force claim that Hershiser was deliberately
indifferent to his safety by holding him by the sleeve while escorting him.
The Eighth Amendment “establish[es] the government's obligation to provide medical
care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103
(1976). Thus, an Eighth Amendment violation may occur where “denial of medical care may
result in pain and suffering which no one suggests would serve any penological purpose.” Jd.
To rise to the level of a constitutional violation, however, prison officials must exhibit deliberate
indifference to the prisoner’s serious medical needs. Farmer v. Brennan, 511 U.S. 825, 828
(1994). “Deliberate indifference” is more than mere negligence, .but “something less than acts or
omissions for the very purpose of causing harm or with knowledge that harm will result.”
Farmer, 511 U.S. at 835. Rather, deliberate indifference requires that the defendant be
subjectively aware of a substantial risk of serious harm to the inmate and recklessly disregard
that risk. Jd. at 829, 836.
Deliberate indifference is an extremely high standard to meet...
[T]he plaintiff must show that the officials “refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.”
Domino v. Texas Dep’ of Crim. Justice, 239 F.3d 752, 756 (5" Cir. 2001)(quoting Johnson v.
Treen, 759 F.2d 1236, 1238 (5" Cir. 1985)).

1. Defendant Chege
Chege argues that he cannot have been deliberately indifferent because he was not

present when Hanson fell, CMSJ, Exh. A at 30:10-16, 32:6-12, and did not see Hanson fall, id.,
Exh, B at 39:23-40:2. Indeed, if Chege was unaware of Hanson’s fall and resulting injuries, he
cannot have been deliberately indifferent to the medical needs arising from those injuries.
Hanson presents no evidence contradicting his testimony that Chege was not present
because he was escorting Hanson’s cellmate. Instead, he argues that the defendants had failed
to produce Hershiser for deposition by the time of Hanson’s response, and have failed to produce
video of the incident. But Hanson himself testified that Chege escorted the cellmate and left
before Hanson and Hershiser left the cell. Hanson’s response therefore comes down to the hope
that some as yet undisclosed evidence would contradict Hanson’s own testimony. This
hypothetical argument is not sufficient to raise a genuine issue of material fact. Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994). Chege is entitled to summary judgment on the
deliberate indifference claim.

2. Defendant Hershiser
Hanson claims that Hershiser was deliberately indifferent both to Hanson’s safety and to
his medical needs.

a. Medical Needs
The record contains evidence that Hershiser applied pressure to Hanson’s head laceration
after Hanson fell, and that a corrections Lieutenant who was on the scene promptly called for
medical attention. CSMJ, Exh. D at 402. Hanson presents no evidence to the contrary and
does not even address the evidence on this claim in his response to Hershiser’s summary
judgment motion. Because the undisputed evidence shows that Hershiser promptly attempted to

provide first aid and that medical personnel were immediately called to the scene, there is no
genuine issue of material fact as to whether Hershiser was deliberately indifferent to Hanson’s
serious medical needs, and Hershiser is entitled to summary judgment on this claim.

b. Safety
As an alternative to his excessive force claim, Hanson contends that Hershiser exhibited
deliberate indifference to his safety by failing to abide by TDCJ policy and maintaining a secure
hold on Hanson, instead holding him by the shirt so that he was unable to stop Hanson’s fall on
the stairs.
[A] prison official violates the Eighth Amendment only when two
requirements are met. First, the deprivation alleged must be,
objectively, sufficiently serious, ... a prison official's act or
omission must result in the denial of the minimal civilized measure
of life's necessities. For a claim (like the one here) based on a
failure to prevent harm, the inmate must show that he is
incarcerated under conditions posing a substantial risk of serious
harm.
Farmer v. Brerman, 511 U.S. 825, 834 (1994)Gnternal quotation marks and citations omitted).
The official must also be deliberately indifferent to the risk of serious harm. Deliberate
indifference requires that the defendant be subjectively aware of a substantial risk of serious
harm to the inmate and recklessly disregard that risk. Jd. at 829, 836.
On the current record, the evidence shows that, contrary to TDCJ policy, Hershiser held
Hanson by the shirt. Hershiser knew that Hanson’s hands were restrained behind his back,
making it impossible for Hanson to use his hands to break a fall. It is reasonable to infer that
Hershiser also knew that they would be walking down stairs with its attendant risk of falling. It
is therefore entirely possible that a factfinder could conclude that, in failing to maintain a secure

hold, Hershiser recklessly disregarded the risk that Hanson would fall and be unable to protect
himself. Hershiser is not entitled to summary judgment on this claim.

D. Qualified Immunity
Both defendants argue that they are qualifiedly immune from liability for Hanson’s
claims. “The doctrine of qualified immunity shields public officials . . . from damages actions
unless their conduct was unreasonable in light of clearly established law.” Elder v. Holloway,
510 U.S. 510, 512 (1994). The Fifth Circuit has held that, to overcome qualified immunity,
“pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question
about), the conclusion for every like-situated, reasonable government agent that what the
defendant is doing violates federal law in the circumstances.” Pierce v. Smith, 117 F.3d 866,
882 (5" Cir. 1997) (internal quotation marks and citation omitted),
As discussed above, defendant Chege is entitled to summary judgment on the merits of
Hanson’s claims; there is no genuine issue of material fact that Chege did not violate Hanson’s
rights. Therefore, no qualified immunity analysis is necessary with regard to Chege.
There is, however, a genuine issue of fact as to whether Hershiser pushed Hanson down
the stairs or exhibited deliberate indifference to Hanson’s safety by holding Hanson incorrectly
and in violation of TDCJ policy while he walked down the stairs with his hands restrained
behind him. There can be no serious claim that the use of excessive force was not clearly
established as an Eighth Amendment violation long before the incident giving rise to this
lawsuit. See, e.g., Hudson v. McMillian, 503 U.S. 1 (1992). Similarly, it has long been
established that deliberate indifference to an inmate’s safety violates the Eighth Amendment.
See, e.g., Farmer v. Brennan, 511 U.S. 825, 835 (1994).
10

At this juncture, there are genuine questions regarding Hershiser’s conduct as he escorted
Hanson which could allow a jury to find that Hershiser either used excessive force or was
deliberately indifferent to Hanson’s safety. Because either finding would establish the violation
of a clearly established constitutional right, Hershiser is not entitled to qualified immunity.

IV. Conclusion
For the foregoing reasons, it is ORDERED as follows:
1. Defendant Hershiser’s Motion to Supplement his motion for summary judgment
(Docket Entry No. 82) is GRANTED;
2. Defendant Chege’s Motion for Summary Judgment (Docket Entry No. 55) is
GRANTED and all claims against Chege are DISMISSED WITH PREJUDICE; and
3. Defendant Hershiser’s Motion for Summary Judgment (Docket Entry No. 56) is
GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to Hanson’s
claim that Hershiser was deliberately indifferent to his serious medical needs, and that claim is
DISMISSED WITH PREJUDICE. The motion is in all other respects DENIED.
SIGNED at Houston, Texas on NOV 0 7 2023

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10677158. Public record. Not legal advice.