Church v. Rangel

UNITED STATES DISTRICT COURT October 07, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

WILLIE CHURCH, §

§

Plaintiff, §

§

VS. § CIVIL ACTION NO. 2:23-CV-00074

§

ROMEO RANGEL, et al., §

§

Defendants. §

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION

Pending before the Court is Defendants’ Motion for Summary Judgment (D.E. 38).

On April 9, 2024, United States Magistrate Judge Jason B. Libby issued a Memorandum

and Recommendation (M&R, D.E. 48), recommending that Defendants’ motion be granted

and that Plaintiff’s action be dismissed with prejudice. Plaintiff timely filed his objections

(D.E. 58-2)1 on July 1, 2024. See D.E. 55 (ordering re-noticing of the M&R and setting

deadline of July 5, 2024, for objections). The Court considers each of the objections in the

order in which Plaintiff presented them.

STANDARD OF REVIEW

The district court conducts a de novo review of any part of a magistrate judge’s

disposition that has been properly objected to. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.

1 Plaintiff’s objections were scanned into an instrument filed on the docket at D.E. 58. However, the scans did not

include the entire page, allowing the loss of information at the margins. A new scan was performed to reflect the

entirety of each page and was appended at D.E. 58-2. The Court references D.E. 58-2 as the complete set of objections

as if that scan was the original docketed instrument.

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72(b)(3); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). “Parties filing objections

must specifically identify those findings objected to. Frivolous, conclusive or general

objections need not be considered by the district court.” Battle v. U.S. Parole Comm’n,

834 F.2d 419, 421 (5th Cir. 1987) (discussing pro se petitioner’s objections to M&R),

overruled on other grounds Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir.

1996).2 As to any portion for which no objection is filed, a district court reviews for clearly

erroneous factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219,

1221 (5th Cir. 1989) (per curiam).

DISCUSSION

A. Factual Disputes

First, Plaintiff requests that the Court retrieve video footage from the Texas

Department of Criminal Justice (TDCJ) that would cover his escort to medical as well as

times before and after that escort. D.E. 58-2, pp. 1, 12. Five months before the motion for

summary judgment was filed, the Magistrate Judge advised Plaintiff that he was to seek

discovery through Defendants’ counsel without necessity of filing such requests with the

Court. D.E. 25; Fed. R. Civ. P. 26-36.3 And if Defendants failed to adequately respond to

2 See also Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004) (discussing pro se petitioner’s objections to

M&R) (“An ‘objection’ that does nothing more than state a disagreement with a magistrate's suggested resolution, or

simply summarizes what has been presented before, is not an ‘objection’ as that term is used in this context.”); Jones

v. Hamidullah, No. 2:05-2736, 2005 WL 3298966, at *3 (D.S.C. Dec. 5, 2005) (noting a pro se petitioner’s M&R

objections were “on the whole . . . without merit in that they merely rehash [the] general arguments and do not direct

the court's attention to any specific portion of the [M&R].”). In explaining the policy supporting this rule, the Supreme

Court noted that “[t]he filing of objections to a magistrate's report enables the district judge to focus attention on those

issues—factual and legal—that are at the heart of the parties' dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985).

3 While Plaintiff filed a discovery request with the Court, it did not include any request for such video evidence. D.E.

35.

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any such requests, Plaintiff’s remedy was to file a motion to compel responses to his

discovery. Fed. R. Civ. P. 37. Plaintiff has not demonstrated any attempt to obtain the

video evidence that he now claims is relevant.

Because he did not retrieve the evidence through discovery when he had an

opportunity to do so and submit it in response to the summary judgment motion, it will not

be considered. Fed. R. Civ. P. 56. The Court does not conduct discovery on Plaintiff’s

behalf. Instead, it considers whether the Magistrate Judge’s findings and conclusions on

the record already presented constitute error. Fed. R. Civ. P. 72(b). This request, to the

extent it constitutes an objection, is OVERRULED.

Second, Plaintiff denies that he engaged in any conduct displaying a suicide risk,

but only refused to answer questions and respond to orders. D.E. 58-2, p. 1. He admits,

however, that he did ask for a suicide gown after he was treated as having been placed on

suicide watch (rather than “P.H.D. placement”). Id. He complains that “technically” he

should never have been placed in the constant direct observation (C.D.O.) “small holding

cage” and, therefore, no use of force should have been initiated. Id.

Plaintiff’s own argument, as set out in his objections, demonstrates that he was

intentionally nonresponsive and uncooperative with medical staff’s screening of his

psychological status. It does not logically follow that—without the requested responses—

the medical staff could, or had, ruled out any suicide risk. They were still in the process of

making that determination and the search they sought was a further attempt to determine if

Plaintiff was in possession of anything that could cause harm. Therefore, the Court cannot

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find that the Magistrate Judge erred in finding that Defendants had reason to place Plaintiff

in an observation cell and conduct the necessary search. The objection is OVERRULED.

Third, Plaintiff complains that the M&R’s recounting of the evidence contains

inconsistencies with respect to what really happened. D.E. 58-2, p. 2. He complains that

the video was “tailored” and did not record the time during which he was left to urinate,

defecate, and vomit on himself because those reactions started 20 to 30 minutes after the

video of the use of force ended. Id., pp. 2, 5. He also argues that Officer Voit was right

there at the cage witnessing Plaintiff pleading for help while he urinated and defecated on

himself. Id., p. 4. Plaintiff’s recitation of events is contradicted by the video and the

medical records from his medical visits that took place after the use of force and after the

time in which any claimed adverse effects allegedly took place. The objection is

OVERRULED.

Fourth, Plaintiff complains that the timeline does not support any use of force

because there could be no authorization of the use of force until after Defendants had

medical clearance to place Plaintiff on constant direct observation/suicide watch and that

the medical clearance could not have taken place with the cursory review of his status

performed prior to the use of force; suicide watch was initiated well after the use of force.

D.E. 58-2, pp. 2-3, 9. Plaintiff’s argument is conclusory and contrary to the nature of a

psychological evaluation. Such an evaluation includes determining if Plaintiff is in

possession of instruments that could cause harm. This required a strip search. And Plaintiff

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failed to comply with that order until after the application of force. The objection is

OVERRULED.

Fifth, Plaintiff complains that the medical records are inconsistent and can be proven

false. D.E. 58-2, pp. 3-4. He states that he did not get medical assistance other than the

nurse who observed the use of force and did not conduct a complete examination. Id. He

claims that video from the “unit cameras” would bear this out. Plaintiff failed to produce

any evidence to support his assertions. And the medical records contradict his

representation that he was denied medical attention after the time frame in which he claims

he suffered delayed effects. The objection is OVERRULED.

Sixth, Plaintiff objects because one TDCJ employee, a C.O. named Voit, was in

attendance through the entire event, was sympathetic to Plaintiff, and could testify in his

favor. D.E. 58-2, pp. 4, 12. However, Plaintiff states that he does not know how to compel

witness testimony and asks that the Defendants be compelled to interrogate Voit using a

polygraph technique. Id. Again, Plaintiff had the opportunity to seek discovery of this sort

and seek a Court order compelling it if Defendants did not adequately respond. But

Plaintiff failed to do so. Any testimony that he claims C.O. Voit would have provided is

purely speculative and would be too late to be considered. The objection is OVERRULED.

Seventh, Plaintiff argues that Defendants did not offer a way for him to

decontaminate because the only water offered to him was hot, which could only exacerbate

the adverse effects of pepper spray. Plaintiff offered no expert evidence to support the

scientific assertion of the dangers of hot water in the context of his medical condition.

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Plaintiff’s reliance on the ombudsman’s letter is misplaced, as it is not authenticated

and recounts nothing but hearsay and the ombudsman’s own conclusions regarding the

credibility of witnesses. Fed. R. Civ. P. 56(e); see also Cormier v. Pennzoil Expl. & Prod.

Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to consider affidavits that

relied on hearsay statements); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549

(5th Cir. 1987) (per curiam) (courts cannot consider hearsay evidence in affidavits and

depositions). Moreover, unauthenticated and unverified documents do not constitute

proper summary judgment evidence. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per

curiam). Consequently, the objection is OVERRULED.

Eighth, Plaintiff objects that the M&R recites that he was taken to medical when he

was not. D.E. 58-2, p. 6. Defendants offered evidence of Plaintiff’s examination, both

immediately after the use of force and about one and one-half hours afterward. Plaintiff

has failed to demonstrate any defect in the record evidence of this medical attention and it

is competent. Plaintiff’s self-serving conclusory denial that the evidence is accurate is

insufficient to raise a disputed issue of material fact.

This [summary judgment] 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.

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Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (emphasis in original;

citations omitted). The objection is OVERRULED.

B. Exhaustion of Administrative Remedies

First, Plaintiff objects to the conclusion that he failed to exhaust administrative

remedies because his letter to the ombudsman was sufficient to place Defendants on notice

of the claim and give them an opportunity to address it, which (he argues) is the purpose

of the grievance procedure—even as he admits that he did not timely invoke the grievance

process. D.E. 58-2, pp. 6, 8. Second, Plaintiff objects that he could not timely comply

with the grievance process because his housing assignment was constantly changing during

the period in which he could file a grievance and that his property, which was necessary to

write a grievance, lagged behind his housing transfers. D.E. 58-2, pp. 6-7.

In the context of this objection, he admits that he was able to write letters to the

ombudsman in the same time frame in which he could have filed a grievance, and that he

“figured that grieving to [the ombudsman] directly would be more efficient on my behalf

to get help. And it was.” Id. at 7. He notes that “within days” the ombudsman conducted

an administrative investigation and sought corrective action for a policy violation. Id. at

7-8. Plaintiff’s objection demonstrates his election of remedies—that he made an

intentional choice to use his resources to complain to the ombudsman rather than initiate

the prescribed grievance process.

Plaintiff fails to offer any authority to support the proposition that the Magistrate

Judge erred in treating his failure to exhaust administrative remedies as precluding this

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lawsuit. While Plaintiff argues that the ombudsman process provided notice and an

opportunity to address the matter, he has not offered any authority to show that it is

equivalent to the prison grievance system—procedurally or substantively. The letter he

has offered as evidence came from the Office of the Independent Ombudsman. While that

office reports to the Texas Board of Criminal Justice, it is entirely separate from the Texas

Department of Criminal Justice-Correctional Institutions Division. See Illustration, Texas

Department of Criminal Justice Organizational Structure, p. 5.4

Plaintiff did not comply with the TDCJ-CID grievance policy, which is the policy

governing whether a case may be brought in court. His objection to the Magistrate Judge’s

finding that he failed to exhaust administrative remedies because he chose to take a

different route that he thought was better is OVERRULED.

C. Excessive Force

Plaintiff objects to the evaluation of his excessive force claim. He challenges each

of the Hudson factors. D.E. 58-2, pp. 9-11. He claims there was no need for the use of

force because, again, he was not actually assigned to constant direct observation, should

never have been placed in the detention cage, and thus there would have been no basis for

the use of force. D.E. 58-2, p. 9. He also objects that the amount of force was excessive

because he should not have been sprayed for five seconds because that “only made it

worse;” three seconds was sufficient. Id. Plaintiff argues that he was not a threat and that

Defendant Cavazos fabricated the entire situation. Id.

4 https://www.tdcj.texas.gov/org_chart/pdfs/Org_Structure.pdf (last visited October 7, 2024).

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Plaintiff fails to understand, or simply disagrees with, the Magistrate Judge’s

assessment of the need for force to maintain or restore discipline. Plaintiff was given an

order to remove his clothing so that he and the clothing could be searched. He was warned

of the consequences of his failure to comply. Plaintiff refused repeatedly to comply. While

he particularly complains of the third time he was sprayed, it is clear from the video that

the first two times were insufficient to gain his compliance, thus justifying an increase in

the magnitude of force applied.

Plaintiff argues the facts of a case that is readily distinguishable on the same issues

Plaintiff describes. He writes that it is excessive to spray an inmate with (a) mace (b) in

the face, (c) keep him in four-point restraints unable to move (d) for an extended period of

time (e) without fumigating the area, and (f) denying him medical attention of any kind.

D.E. 58-2, p. 9. But that is not the scenario of this case. Plaintiff was sprayed with (a)

pepper spray (b) to his back while he covered his face with his shirt, (c) with sufficient

freedom of movement to use his shirt to wipe his face, (d) was taken out of the area after

he complied with the order, (e) away from the area where the gas was sprayed (which was

open to room air from the waist up), and (f) was immediately evaluated by medical staff

and received additional medical attention after he had an opportunity to decontaminate.

Plaintiff’s objection to the Magistrate Judge’s recommendation that his excessive

force claim be dismissed is OVERRULED.

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D. Deliberate Indifference

Plaintiff claims that he has demonstrated deliberate indifference because he was left

too long in the cell with pepper spray in the air when there were readily available alternative

methods to use to get his cooperation and while Defendant Rangel mocked him. D.E. 58-

2, p. 10. Plaintiff’s protestation that lesser methods would have been effective is belied by

the fact that he refused to comply despite warnings and two sprays of lesser intensity. As

noted, the cell in which he was sprayed was fully vented to the ambient air from the waist

up and the duration of time he spent in the vicinity of the spray was due to his own refusal

to comply with orders and to observe the warnings, requiring multiple sprays over a short

period of time.

He also complains that a finding of deliberate indifference is supported by his

argument that the water he was offered to shower in was too hot to effectively

decontaminate him and that he was not provided with any effective measures to treat the

medical need posed by his exposure to pepper spray. D.E. 58-2, p. 11. Again, his argument

is not supported by evidence regarding the interaction between pepper spray and hot water.

And it disregards the evidence that he was taken for a medical evaluation after the

opportunity to decontaminate.

Plaintiff’s objections to the Magistrate Judge’s recommendation to dismiss his

claim–that his serious medical needs were met with deliberate indifference—are

OVERRULED.

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E. Qualified Immunity

Plaintiff appears to begin an objection to the recommendation in favor of

Defendants on the qualified immunity defense. However, the objection trails off before

stating any specific basis for the objection. D.E. 58-2, p. 11. It therefore, does not qualify

as an objection. If an objection does not point out with particularity any error in the

Magistrate Judge’s analysis, it does not constitute a proper objection and will not be

considered. Fed. R. Civ. P. 72(b)(2).

CONCLUSION

Having reviewed the findings of fact, conclusions of law, and recommendations set

forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Plaintiff’s

objections, and all other relevant documents in the record, and having made a de novo

disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation

to which objections were specifically directed, the Court OVERRULES Plaintiffs

objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge.

Accordingly, Defendants’ Motion for Summary Judgment (D.E. 38) is GRANTED and

this action is DISMISSED WITH PREJUDICE.

ORDERED on October 7, 2024.

UNITED STATES DISTRICT JUDGE

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