Penaflor v. Willis

IN THE UNITED STATES DISTRICT COURT September 10, 2024

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

GALVESTON DIVISION

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No. 3:21-cv-289

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ALDO PENA PENAFLOR, SR., TDCJ # 01311140, PLAINTIFF,

v.

ANTONIO WILLIS, ET AL., DEFENDANTS.

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MEMORANDUM OPINION AND ORDER

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JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:

Aldo Pena Penaflor, Sr., an inmate in the Texas Department of Criminal

Justice – Correctional Institution Division (TDCJ) filed this lawsuit under 42

U.S.C. § 1983 alleging that two correctional officers, Antonio Willis (a/k/a Antoinio

Willis) and Devon Collins, violated his constitutional rights when they used

excessive force against him at the Memorial Unit on June 29, 2020, while both of

his hands were cuffed behind his back.1 Penaflor represents himself and has paid

the filing fee.

Willis and Collins have moved for summary judgment, seeking dismissal of

the Eighth Amendment claim against them. Dkt. 70. Penaflor has not responded

1 At the time the incident occurred, the Memorial Unit was called the Darrington

Unit.

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to the summary-judgment motion. Having considered the motion, the applicable

law, and the record, the court denies the motion.

I. BACKGROUND

A. Penaflor’s Allegations

On June 29, 2020, at around 9:30 a.m., Officer Willis was escorting Penaflor

back to his cell after a unit classification committee hearing. See Dkt. 19 at 1–2, 7;

Dkt. 6 at 5; Dkt. 7 at 1. Penaflor’s hands were handcuffed behind his back. See Dkt.

19 at 4, 6; Dkt. 7 at 1. As they were walking towards the cell, Penaflor stopped

walking for “a couple of seconds” and asked Officer Willis about his personal

property.2 Dkt. 19 at 3, 4; Dkt. 7 at 1. Penaflor emphasizes that he did not refuse

housing, disobey an order, or make any threatening moves—he simply asked about

his personal property. Dkt. 19 at 4; Dkt. 7 at 1. Officer Willis allegedly replied by

telling Penaflor to “get [his] wet back ass back to [his] cell[,] before him and his

homeboy woop me since the camera don’t work.” Dkt. 19 at 3; Dkt. 7 at 1. Officer

Willis pushed Penaflor towards the wall, and then slammed him to the ground.

Dkt. 19 at 3; Dkt. 1 at 7. Penaflor landed on his stomach. Dkt. 19 at 5; Dkt. 7 at 1.

Willis put “all [of] his weight” on Penaflor’s back and while holding Penaflor down

with his left hand, Willis punched Penaflor several times in the face with a closed

fist. Dkt. 19 at 5–6; Dkt. 7 at 1.

2 Per TDCJ policy, Penaflor had been kept away from his personal property for

several days leading up to the unit classification committee hearing. See Dkt. 19 at 3.

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Officer Collins then came running towards them and began hitting Penaflor’s head

and face with a closed fist. Dkt. 19 at 9; Dkt. 7 at 1–2. Collins and Willis stopped

punching Penaflor when they saw “rank” approach. Dkt. 19 at 5, 10; Dkt. 7 at 2.

Collins then put his knee on Penaflor’s neck and “pressed down hard[,]” and

Penaflor told him that he could not breathe. Dkt. 19 at 9; Dkt. 7 at 2. Sergeant

Annette Baker told Collins to pick up Penaflor and Penaflor was escorted to his cell.

Dkt. 19 at 9; Dkt. 7 at 2. Penaflor was later found guilty at a disciplinary hearing

for refusing to obey an order. Dkt. 19 at 25.

As a result of the excessive-force incident, Penaflor suffered a bloody nose,

a swollen and bruised face, neck pain, a headache, and pain to his wrists from the

handcuffs. Id. at 6–7, 10, 15. He also suffered damage to his pinky finger, which,

after getting an x-ray, a doctor diagnosed as “mallet finger.”3 Id. at 6, 10. Penaflor

was given a splint to straighten the finger. Id. at 6. Penaflor also alleges that he lost

36 pounds due to “emotional mental distress” related to the incident. Id. at 6, 10.

Penaflor seeks monetary damages from the defendants. Id. at 28–29; Dkt. 7 at 2.

3 The Cleveland Clinic describes mallet finger as

[A]n injury to the tendon that straightens the top of [the] finger (or thumb).

Tendons attach [the] bones to [the] muscles, providing stability and motion.

With injury, the tendon can tear or detach from the finger bone. In some

cases [one] may injure [the] finger bone along with [the] tendon. If [one]

has mallet finger, [one] is unable to straighten [the] finger, it droops at the

tip, is painful[,] and looks bruised and/or swollen.

Mallet Finger, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/21825-

mallet-finger (last visited Aug. 19, 2024).

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B. Procedural Posture

Penaflor filed a prisoner’s civil-rights complaint under 42 U.S.C. § 1983,

naming the following as defendants: (1) Willis; (2) Collins; (3) Angela Chevalier,

assistant warden at the Memorial Unit at the time of the incident; (4) Moises

Villalobos, assistant warden at the Memorial Unit at the time of the incident; (5)

Sergeant Baker; (6) mental health counselor Randall Scroggins; and (7) TDCJ

Executive Director Bryan Collier. Dkts. 6, 7. At the court’s request, Penaflor

submitted a more definite statement of his claims. Dkts. 19, 20. After screening

Penaflor’s pleadings as required by the Prison Litigation Reform Act, 28 U.S.C. §§

1915A and 1915(e)(2)(B), the court ordered Willis, Collins, Chevalier, Villalobos,

and Baker to answer. Dkt. 21. But the court did not order Scroggins or Collier to

answer.

In August 2022, Chevalier, Villalobos, and Baker filed a motion to dismiss,

which was opposed by Penaflor. Dkts. 26, 52. The court granted the motion and

dismissed the claims against those defendants. Dkt. 54. The court also dismissed

Penaflor’s claims against Scroggins and Collier pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. Id.

Collins and Willis now move for summary judgment on the Eighth

Amendment claim, arguing that the claim is without merit. Dkt. 70. They also

assert that they are entitled to qualified immunity. Penaflor has not responded to

the summary-judgment motion.

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C. The Defendants’ Summary-Judgment Evidence

The defendants have submitted the following evidence in support of their

summary-judgment motion:

 Penaflor’s medical records from December 1, 2019, to December 1,

2020, Exhibit A (Dkt. 71)

 Use of force report, Exhibit B (Dkt. 70-2)

 Use of force video, Exhibit C (currently located in the Clerk’s Office on

a thumb drive)

 Use of force photos, Exhibit D (Dkt. 70-4)

Sergeant Baker prepared a report, dated June 29, 2020, as part of the use-

of-force documentation related to the incident. See Dkt. 70-2 at 17. In relevant part,

the report details the incident as follows:

On 06/29/2020 @ approximately 0920hrs Officer Willis, Antoinio

COIV was escorting Offender Penaflor, Aldo #1311140 back to D-line

1-row 19-cell from UCC. When Offender Penaflor became aggressive

and pulled away turning towards Officer Willis. Officer Willis shoved

Offender Penaflor to the wall then to the floor in a downward motion.

Officer Collins, Devon COIV heard the use of force and rushed over to

assist Officer Willis in gaining compliance. Officer Collins secured

Offender Penaflor’s upper torso while Officer Willis secured Offender

Penaflor’s legs. Sergeant Baker, Annette witness [sic] the use of force

from P1-hallway and instructed hallway officer to initiate an Incident

Command System. Sgt. Baker arrived on the scene and instructed

Officer Collins and Officer Willis to place offender Penaflor’s [sic] on

his side. Officer Hagans, Quonte COIV arrived on the scene and was

instructed by Sgt. Baker to relieve Officer Collins. Officer Reyes,

Christopher COV arrived and was instructed by Sgt. Baker to relieve

Officer Willis. Sgt. Baker then requested for a camera and camera

operator to the scene. Officer Mbamalu, Nndubisi COIV arrived on

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the scene and applied the leg restraints[.] Officer Murphy, Jasmine

COIV arrived as camera operator. Sgt. Baker briefed the camera and

introduced the A-responders. Sgt. Baker then instructed Officer

Hagans and Officer Reyes to assist Offender Penaflor to his feet. . . .

Officer Reyes and Officer Hagans assisted Offender Penaflor to his

feet and into 19-cell. . . . Nurse John, Christine LVN arrived and

conducted a cell side medical screening, noting there where [sic]

scratches on his face. Sgt. Baker briefed the camera stating Offender

Penaflor’s [sic] did sustained scratches on his face due to the use of

force. Sgt. Baker then took photos of Offender Penaflor’s injuries.

. . . .

Let it be known that Officer Collins states that he struck Offender

Penaflor with a closed fist. Officer Willis states that he push [sic]

Offender Penaflor with an open hand push in the back.

Id.

Also submitted as part of the use-of-force documentation were written

statements from Collins and Willis. Officer Willis provided this statement of the

incident, dated June 29, 2020:

On 6/29/20 at 920 am and at D-Line 1-Row while I CO IV Antoinio

Willis was escorting offender Penaflor, Aldo TDCJ No 1311140. While

escorting the offender back to his cell he became aggressive due to the

fact he had yet to receive his property. The offender began to pull away

from me resulting in me having to shove the offender against the

window and informed him that if he continued to resist the minimum

amount of force would be used to regain compliance. The offender

continued to resist forcing me to push in a downward motion getting

the offender on the floor and regain security hold. CO IV Devon

Collins then responded and assisted me with gaining control of the

offender. Sgt. Annette Baker did enter the scene and instructed CO

Collins and myself to roll the offender on his side. I was then relieved

by COV Christoper Reyes, and CO IV Quonte Hagan. I then went to

the unit infermary [sic] and substained [sic] no injuries due to the use

of force. I then resumed my normal duties.

Id. at 23.

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Officer Collins provided the following statement, dated June 29, 2020:

On 6/29/20 at approximately 9:20am I officer Devon Collins COIV

observed officer Antonio Willis COIV struggling with offender Aldo

Penaflor #1311140 on the floor, I then immediately rushed over to

assist Officer Willis, I then strucked [sic] the offender with a closed

fist due to him still resisting. I then secured the offender upper body

to gain compliance, Officer Willis secured the offender lower body.

Additional staff then arrived and I was then relieved by Officer Quonte

Hagans COIV and Officer Christopher Reyes COV. Sgt. Annette Baker

then arrived on the scene and narrated the use of force. I then went to

the unit infirmary to get a use of force physical with no injuries. I then

returned to my normal working duties.

Id. at 25.

The use-of-force report documentation includes a “Use of Force Report,

Administrative Review” which is dated July 13, 2020, and is signed as completed

by assistant warden Chevalier. Id. at 5. This document notes that in “a review of

the Unit video surveillance, the officers do appear to have struck the offender.” Id.

Similarly, a document titled “Use of Force Report, Employee Use of Force Fact

Finding Inquiry,” which was completed by Memorial Unit senior warden Bruce

Armstrong on July 13, 2020, states that “[d]uring the review of the Unit Video

Surveillance, no staff was observed with their feet on [Penaflor’s] neck but Officer

Willis and Officer Collins were observed striking the offender when lesser amount

of force could have been used.” Id. at 9. According to a “Reprimand Form” dated

July 20, 2020, “Major Gooden, Frederick was reviewing MA-05513-06-20 and

discovered that Officer Collins struck the offender involved in this incident with a

closed clinch fist and he did not report it on the date that the Use of Force

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occurred.” Id. at 10.

Although the use-of-force documentation—as noted above—references a

Unit Video Surveillance that apparently shows Penaflor, Willis, and Collins

engaged in the incident in question, the video submitted by the defendants as part

of the summary-judgment evidence does not show the incident. Instead, the video

submitted as part of the evidence appears to be the use-of-force video that was

recorded by Officer Murphy (as referenced in Sergeant Baker’s report, see Dkt. 70-

2 at 17). The video starts after Penaflor is on the ground, rank has arrived on the

scene, and three officers are kneeling next to Penaflor. It appears that Collins and

Willis have already been relieved by Officer Hagans and Officer Reyes. The three

officers pull Penaflor to his feet and escort him to his cell. Towards the end of the

video, a nurse conducts a brief physical examination of Penaflor while he is in the

cell and she is outside the cell. The video is approximately eight minutes in length.

A Patient Chart Export, submitted as part of Penaflor’s medical records,

indicates that Penaflor submitted two complaints in October 2020 that his “neck

has been hurting since 6-29-2020.” Dkt. 71 at 8–9.

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.

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R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v.

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.

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

“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)).

As noted above, Penaflor has not filed a response to the motion for summary

judgment. Notwithstanding the plaintiff’s failure to respond, summary judgment

may not be awarded by default “simply because there is no opposition, even if the

failure to oppose violated a local rule.” Hetzel v. Bethlehem Steel Corp., 50 F.3d

360, 362 n.3 (5th Cir. 1995) (quoting Hibernia Nat’l Bank v. Admin. Cent.

Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)). “The movant has the

burden of establishing the absence of a genuine issue of material fact and, unless

he has done so, the court may not grant the motion, regardless of whether any

response was filed.” Id. (quoting Hibernia Nat’l Bank, 776 F.2d at 1279).

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B. Qualified Immunity

The defendants have invoked the defense of qualified immunity, which

protects government officials acting within the scope of their authority from

personal liability for monetary damages under certain circumstances. See Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). “In reviewing a motion for summary

judgment based on qualified immunity, [courts] undertake a two-step analysis.”

Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir. 2014), rev’d on other grounds, 577

U.S. 7 (2015). “First, [courts] ask whether the facts, taken in the light most

favorable to the plaintiffs, show the officer’s conduct violated a federal

constitutional or statutory right.” Id. (citations omitted). “Second, [courts] ask

‘whether the defendant’s actions violated clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Id.

(quoting Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004)).

Under the first prong, a court decides “whether the facts that a plaintiff has

alleged . . . make out a violation of a constitutional right.” Pearson v. Callahan, 555

U.S. 223, 232 (2009). Under the second prong, the court asks “whether the right

at issue was ‘clearly established’ at the time of [the] defendant’s alleged

misconduct.” Id. “To answer that question in the affirmative, [the court] must be

able to point to controlling authority—or a ‘robust consensus of persuasive

authority’—that defines the contours of the right in question with a high degree of

particularity.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)

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(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Officials who act

reasonably, but mistakenly, are still entitled to the defense. Collins v. Ainsworth,

382 F.3d 529, 537 (5th Cir. 2004) (citation omitted). Qualified immunity gives

ample room for mistaken judgments and protects all but the plainly incompetent

or those who knowingly violate the law. See Anderson v. Creighton, 483 U.S. 635,

638 (1987) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); Hare v. City of

Corinth, Miss., 135 F.3d 320, 325 (5th Cir. 1998).

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); see also

Voss v. Goode, 954 F.3d 234, 238 (5th Cir. 2020) (“A good-faith assertion of

qualified immunity alters the usual summary judgment burden of proof, shifting it

to the plaintiff to show that the defense is not available.”) (quoting Melton v.

Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc)).

A reviewing court may address the two prongs of the qualified-immunity

analysis in any sequence, depending on the circumstances of the case at hand.

Pearson, 555 U.S. at 236; Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017).

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III. DISCUSSION

Penaflor has alleged that defendant Willis used excessive force against him

when Willis, without any provocation on Penaflor’s part and when Penaflor’s

hands were handcuffed behind his back, slammed Penaflor to the ground and then

punched him several times in the face with a closed fist. Penaflor has further

alleged that Officer Collins used excessive force against him when Collins, while

Penaflor’s hands were cuffed behind his back, punched Penaflor several times on

his face and head, and when Collins put his knee on Penaflor’s neck and pressed

down hard. Penaflor brings his claims under 42 U.S.C. § 1983, which “provides a

federal cause of action for the deprivation, under color of law, of a citizen’s ‘rights,

privileges, or immunities secured by the Constitution and laws’ of the United States

. . . .” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (quoting Maine v. Thiboutot,

448 U.S. 1, 4 (1980)). “Section 1983 ‘is not itself a source of substantive rights,’ but

merely provides ‘a method for vindicating federal rights elsewhere conferred.’”

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S.

137, 144 n.3 (1979)).

Because Penaflor was, at all relevant times, a convicted felon in state prison,

his excessive-force claim is governed by the Eighth Amendment. “[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

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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 a

prison official acted maliciously and sadistically to cause harm, the court looks to

five relevant factors, sometimes referred to as the “Hudson 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 Hudson, 503 U.S. at 7; Baldwin v.

Stalder, 137 F.3d 836, 839 (5th Cir. 1998)). These factors focus on “the detention

facility official’s subjective intent to punish,” and intent is determined by reference

to the Hudson factors. Cowart v. Erwin, 837 F.3d 444, 452–53 (5th Cir. 2016).

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). As explained by the Supreme

Court, “[i]njury and force . . . are only imperfectly correlated, and it is the latter

that ultimately counts.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).

The court analyzes each of the five excessive-force factors in relation to the

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complained of incident.4

A. The extent of the injury suffered by the inmate

The defendants argue that Penaflor’s injuries of physical pain, a bloody nose,

a mallet pinky finger, bruises, and headaches are no more than de minimis, and

that the plaintiff’s alleged injuries—aside from the cell-side screening where the

nurse noted scratches to Penaflor’s face and Penaflor’s complaint of neck pain in

October 2020—are not mentioned in Penaflor’s medical records.

Although “[i]t is true that, [t]o state a claim for excessive use of force, the

plaintiff’s asserted injury must be more than de minimis[,]” the Fifth Circuit has

4 Although Penaflor has not submitted a response to the summary-judgment

motion, his response to the court’s request for a more definite statement—which is

considered part of the complaint, see Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976)—

is sworn to under penalty of perjury. The court will therefore treat the plaintiff’s answers

contained in the more definite statement (Dkt. 19) as competent summary-judgment

evidence. See Huckaby v. Moore, 142 F.3d 233, 240 n. 6 (5th Cir. 1998) (“The facts put

forth in a verified complaint may be treated as if in an affidavit on summary judgment, if

the asserted facts meet the requirements of Fed. R. Civ. P. 56(e) that they be within the

personal knowledge of the affiant, that they otherwise would be admissible into evidence,

and that the affiant be competent to testify.”); Hart v. Hairston, 343 F.3d 762, 765 (5th

Cir. 2003) (“On summary judgment, factual allegations set forth in a verified complaint

may be treated the same as when they are contained in an affidavit.”); Grogan v. Kumar,

873 F.3d 273, 279 (5th Cir. 2017) (finding that declarations and verified pleadings of a

pro se prisoner that are dated and made under penalty of perjury constituted adequate

summary-judgment evidence; Cantwell v. Sterling, 788 F.3d 507, 509 n.1 (5th Cir. 2015)

(“The ordinary rules of civil procedure are applicable in prisoner suits. Cantwell offered

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

be credited on summary judgment.”).

The court notes that Penaflor’s amended complaint is not verified under penalty of

perjury and is thus not competent summary-judgment evidence. See Narro v. Edwards,

829 F. App’x 7, *11–12 (5th Cir. 2020) (per curiam) (finding that an unverified complaint

is not competent summary-judgment evidence).

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emphasized that “the injury requirement is a sliding scale, not a hard cutoff.”

Buehler v. Dear, 27 F.4th 969, 982 (5th Cir. 2022) (internal quotation marks and

citations omitted).5 “[T]he amount of injury necessary to satisfy [the] requirement

of ‘some injury’ . . . is directly related to the amount of force that is constitutionally

permissible under the circumstances.” Id. “[A]s long as a plaintiff has suffered

some injury, even relatively insignificant injuries and purely psychological injuries

will prove cognizable when resulting from an officer’s unreasonably excessive

force.” Id. (internal quotation marks and citations omitted).

Here, there is evidence in the record that Penaflor suffered psychological

and physical injuries—including abrasions to his face, a bloody nose, neck pain,

headaches, pain to his wrists, and a mallet finger that required a splint to fix—as a

result of the incident with Willis and Collins.6 Under Penaflor’s version of the facts,

no amount of force was necessary in the circumstances presented. This factor

weighs in Penaflor’s favor.

5 Although the issue in Buehler v. Dear, 27 F.4th 969 (5th Cir. 2022) concerned an

excessive-force claim under the Fourth Amendment, “a claim of excessive force by a law

enforcement officer is analyzed under the same standard regardless of whether it arises

under the Fourth Amendment or the Eighth Amendment.” Payne v. Parnell, 246 F. App’x

884, 889 (5th Cir. 2007) (citing Ikerd v. Blair, 101 F.3d 430, 434 n. 9 (5th Cir. 1996)).

6 That all of Penaflor’s injuries are not reflected in the medical records submitted

by the defendants is not dispositive on this factor. The medical records submitted by the

defendants encompass the period of December 1, 2019, to December 1, 2020. Penaflor

asserts that the injury to his finger was not x-rayed until April 21, 2021. See Dkt. 19 at 7.

Thus, any doctor’s notes or treatment related to the mallet finger are not included in the

medical records submitted by the defendants.

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B. The need for the application of force

The second Hudson factor is the need for the application of force. Under

Penaflor’s version of the incident, there was no need for the application of force

because he merely asked Officer Willis about his property; he did not refuse

housing, disobey an order, or make any threatening moves. See Dkt. 19 at 3–4.

The defendants argue that “Penaflor’s purported compliance and overall

version of events are contradicted by video evidence.” Dkt. 70 at 9. Relying on

purported video evidence, Defendants go on to assert:

While the audio is muddled, making it difficult to discern what was

initially said between Willis and Penaflor, the video evidence clearly

shows that Penaflor first turns away from, and then proceeds to pull

away from Willis. Ex. C. Although the subsequent sequence of events

occurs in a matter of seconds, it appears that Willis attempts to turn

Penaflor around to continue walking, but when met with further

resistance from Penaflor, Willis is forced to use force to gain Penaflor’s

compliance. Id. As shown by the video, Collins can be seen from across

the hallway where he first observes the use of force and runs toward

Penaflor and Collins. Id. Notably, Collins [sic] actions once he arrives

at the use of force scene, in no way resemble Penaflor’s allegations that

he repeatedly hit him. Id. Although Penaflor can be seen laying on the

ground, Willis still looks like he is struggling with gaining compliance

over Penaflor, and Collins can be seen stabilizing Penaflor’s upper

body in order to assist Willis.

Id. Although the motion for summary judgment asserts that the video evidence

supports this sequence of events, the video submitted with the defendants’

summary-judgment motion—which appears to be the use-of-force video recorded

by Officer Murphy—does not. As noted in Section I.C., the video submitted with

the motion starts after Penaflor is already laying on the ground, rank has arrived

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on the scene, and three officers are kneeling next to Penaflor. It appears that

Officers Collins and Willis are not even in the video, having already been relieved

by Officer Hagans and Officer Reyes.

Thus, the only summary-judgment evidence concerning the defendants’

version of the incident is the use-of-force documentation. According to this

documentation, Penaflor began to “pull away” from and “resist” Willis,

necessitating Willis taking Penaflor to the ground. See Dkt. 70-2 at 23. Both

parties’ summary-judgment evidence indicates that Collins punched Penaflor with

a closed fist at least one time when Penaflor was already stomach-down on the

ground, with his hands cuffed behind his back.

Viewing the facts in the light most favorable to Penaflor, the record reflects

genuine questions about whether force was necessary at the time Penaflor was

taken to the ground and after.

C. The relationship between the need and the amount of force

used

For the third factor, the defendants assert that the amount of force was

reasonably measured and directly correlated to Penaflor pulling away from Willis.

Citing Waddleton v. Rodriguez, 750 F. App’x 248, 251, 254 (5th Cir. 2018) and

McCoy v. Esquivel, 798 F. App’x 818, 819–20 (5th Cir. 2020), the defendants argue

that “Penaflor’s sudden physical movement in refusal to cooperate created a need

for the use of force.” Dkt. 70 at 10 (internal quotation marks omitted). The

defendants again rely on alleged video evidence that was not submitted as part of

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the summary-judgment record for disputing Penaflor’s claim that Willis and

Collins punched him several times each.

Although Penaflor admits that he briefly stopped walking to ask Willis about

his personal property, Penaflor further states that Willis brought him down to the

ground, Willis and Collins both punched him multiple times, and that Collins put

his knee on Penaflor’s neck and “pressed down hard.” The video evidence the

defendants rely on in their motion is not part of the summary-judgment record.

Therefore, viewing the facts in the light most favorable to Penaflor, the record

reflects genuine questions about the need for force and the amount of force Officers

Willis and Collins used.

D. The threat reasonably perceived by the responsible officials

The defendants argue that as to the fourth factor, when Penaflor refused to

obey Willis’s order, Willis reasonably perceived Penaflor’s actions as disturbing the

order of the prison, and when Penaflor continued to struggle against Willis, Willis

and Collins perceived aggression and continued disturbance to the order of the

prison and took necessary measures to restrain Penaflor. As discussed above,

Penaflor presents evidence that contests the defendants’ version of the events,

alleging that he did not disobey any orders and did not struggle. Viewing the facts

in the light most favorable to Penaflor, the record reflects genuine questions about

the threat reasonably perceived by Officer Willis and Officer Collins.

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E. Any efforts made to temper the severity of a forceful

response

As for the fifth Hudson factor, the defendants rely on a video not submitted

as part of the summary-judgment evidence. The defendants assert that once

Penaflor is on the ground, no additional force is used by Willis or Collins. Once the

additional officers arrived on the scene, Willis and Collins were relieved and

promptly leave, which tempered the use of force. This video is not part of the

record. Penaflor, for his part, has submitted evidence that once rank arrived on the

scene, Collins put his knee on Penaflor’s neck and pushed down hard. This fifth

factor weighs in favor of Penaflor.

Accordingly, based on the evidence, the record reflects a genuine factual

dispute on each of the five excessive-force factors. The defendants are therefore

not entitled to summary judgment on the question of whether they violated

Penaflor’s Eighth Amendment rights.

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

court must also determine whether the defendants’ conduct was objectively

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. Therefore, if

the defendants used physical force maliciously and sadistically to cause Penaflor

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harm or force beyond that reasonably required to maintain or restore discipline,

then a reasonable officer in the defendants’ situation would have known that his or

her actions violated clearly established law. Accordingly, genuine issues remain as

to whether the defendants are entitled to qualified immunity.

IV. PENAFLOR’S PREVIOUS REQUEST FOR APPOINTMENT OF

COUNSEL

Penaflor has previously moved for appointment of counsel. See Dkt. 36. In

its order denying Penaflor’s request for counsel, the court stated that it would

revisit the issue on its own motion as necessary. See Dkt. 57; see also Austin v.

Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017) (explaining that 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 . . . .”). 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 Penaflor’s request for counsel and will now

grant Penaflor’s motion for appointment of counsel for further proceedings in this

case.

However, the court must make a finding of indigency before counsel can be

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appointed. See 28 U.S.C. § 1915(e)(1). Therefore, in order for pro bono counsel to

be appointed to represent Penaflor throughout the remainder of the case, Penaflor

must file an application for leave to proceed in forma pauperis, together with a

certified copy of his inmate trust fund account statement as required by 28 U.S.C.

§ 1915(a)(2), no later than thirty (30) days from the date of this Order.

The court will temporarily stay this case until a volunteer attorney can be

located and appointed as Penaflor’s counsel of record. The pending motions filed

by Penaflor at Docket Nos. 66, 67, and 68 will be denied at this time, subject to

their reurging by counsel, if appropriate, once counsel is appointed. The Office of

the Attorney General’s Motion to Withdraw and Substitute Counsel, Dkt. 74, will

be granted.

* * *

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

1. The motion for summary judgment (Dkt. 70) filed by defendants

Antonio Willis and Devon Collins is DENIED.

2. The defendants’ Motion to Seal Exhibit A (Dkt. 69) is GRANTED.

3. The motions at Docket Nos. 66, 67, and 68 are DENIED at this time.

4. The Office of the Attorney General’s Motion to Withdraw and Substitute

Counsel, Dkt. 74, is GRANTED. The Clerk shall replace Assistant

Attorney General Marlayna M. Ellis with Assistant Attorney General

Jordan Grundhoefer as the defendants’ attorney-of-record.

5. Penaflor shall file an application for leave to proceed in forma pauperis,

along with a certified copy of his inmate trust fund account statement

within thirty (30) days of the date of this Order so that the court can

appoint a licensed, well-qualified litigator to represent him pro bono

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throughout the remainder of the case.

6. This case is ADMINISTRATIVELY CLOSED and STAYED until the

court locates a volunteer attorney to represent Penaflor. 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 Memorandum Opinion and Order to the

parties.

Signed on Galveston Island this _1_0_th_ day of S e p t e m b e r , 2024.

____________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

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