Herod v. King

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

RICHARD ANTHONY HEROD, §

TDCJ-CID No. 01795915, §

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Plaintiff, §

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v. § 2:22-CV-00086-Z-BR

§

BOBBY LUMPKIN, et al., §

§

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Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION TO GRANT

IN PART AND DENY IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Before the Court is the Motion for Summary Judgment filed by Defendants Timothy King

and Julia King (the “Motion”). (ECF 36). After considering said Motion and the Response and

Replies thereto, the Magistrate Judge recommends that the District Judge GRANT the Motion in

part and DENY the Motion in part, as follows:

I. FACTUAL BACKGROUND

Pro se Plaintiff Richard Anthony Herod (“Herod”) is a prisoner at the Bill Clements unit

in Amarillo, Texas. On February 23, 2022, after completing his work assignment as a diet line grill

cook, Herod was sitting on an orange 10-gallon Igloo cooler while eating a meal at a table with

other inmates. (ECF 18 at 2). Defendants Julia King (“J. King”) and her husband Timothy King

(“T. King”), who are food service managers, walked by Herod’s table to go on their lunch break.

As they passed, J. King kicked the cooler upon which Herod was sitting. (ECF 18 at 3-4).

Approximately a week earlier, she had ordered Herod to not sit on coolers, and had threatened to

kick the cooler out from underneath Herod if she caught him sitting on a cooler again. (Id. at 4).

After her first “soccer-style” kick of the cooler, she kicked again, this time using a “backwards

mule style” kick. The bottom of her work boot struck Herod in his left knee. (ECF 18 at 4). When

Herod told J. King, “you just assaulted me,” another inmate added “with a donkey kick.” T. King

then responded, “[a]nd I got the donkey dick.” (ECF 18 at 3). The Kings then left the area to go

on their lunch break. (Id.). Herod claims that T. King failed to render aid after the kick. (Id.). Herod

further claims that J. King’s kick caused him an injury that required pain medication for six months

and him being placed on medical squad. (ECF 3 at 4).

On February 5, 2024, the Court granted the Motion to Dismiss filed by supervisory

defendants William Williamson, Adam Gonzales and Bobby Lumpkin. (ECF 32). The Court also

granted T. King’s motion as to the claims against him, but allowed Herod to amend his claim of

failure to render aid, which Herod did. (ECF 30). Defendants now seek summary judgment on

qualified immunity grounds as to Herod’s two remaining claims: failure to render aid against T.

King, and excessive force against J. King.

II. LEGAL ANALYSIS

A. Summary Judgment Standard.

The purpose of summary judgment is to isolate and dispose of factually unsupported claims

or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper

if the pleadings, the discovery and disclosure materials on file, and any affidavits show 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). A dispute about a material fact is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). The Court must resolve all reasonable doubts in favor of the party

opposing the motion. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th

Cir. 1981).

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The movant has the burden to show that there is no genuine issue of material fact and that

it is entitled to judgment as a matter of law. Anderson, 477 U.S. at 247. If the movant bears the

burden of proof on a claim or defense on which it is moving for summary judgment, it must come

forward with evidence that establishes “beyond peradventure all of the essential elements of the

claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). When the

nonmovant bears the burden of proof, the movant may discharge its burden by showing that there

is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall.

Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden,

the nonmovant must “respond to the motion for summary judgment by setting forth particular facts

indicating that there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S.

at 248-49). The nonmovant must provide affirmative evidence to defeat summary judgment.

Anderson, 477 U.S. at 257. No “mere denial of material facts nor...unsworn allegations [nor]

arguments and assertions in briefs or legal memoranda” will suffice to carry this burden. Moayedi

v. Compaq Comput. Corp., 98 F. App’x 335, 338 (5th Cir. 2004). The Court requires “significant

probative evidence” from the nonmovant in order to dismiss a request for summary judgment

supported appropriately by the movant. United States v. Lawrence, 276 F.3d 193, 197 (5th Cir.

2001). The Court must consider all evidence but must not make any credibility determinations or

weigh the evidence. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

B. Defendants’ Qualified Immunity Defense Alters the Burden of Proof.

Defendants move for summary judgment on their affirmative defense of qualified

immunity. “The doctrine of qualified immunity protects government officials from civil damages

liability when their actions could reasonably have been believed to be legal.” Argueta v. Jaradi,

86 F.4th 1084, 1088 (5th Cir. 2023) (citing Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)

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(en banc)). Once an officer pleads qualified immunity, the plaintiff has the burden to establish that

the officer violated the plaintiff’s clearly established federal rights. Argueta, 86 F.4th at 1088

(citing Estate of Davis v. City of North Richland Hills, 406 F.3d 375, 380 (5th Cir. 2005)). “This

is a demanding standard.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015), cert.

denied, 136 S. Ct. 1517 (2016). Because qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law, … we do not deny its protection unless

existing precedent places the constitutional question beyond debate.” Argueta, 86 F.4th at 1088

(internal citation omitted).

A qualified immunity defense alters the usual summary judgment burden of proof. Brown

v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the defense, the burden

then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to

whether the official’s allegedly wrongful conduct violated clearly established law.” Id. To

determine if an official acting within the scope of his or her duties is entitled to qualified immunity,

courts conduct a two-step analysis. First, they examine whether the plaintiff has shown a violation

of a constitutional right under current law. Bevill v. Fletcher, 26 F.4th 270, 275 (5th Cir. 2022)

(quoting Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019)). Second, if a violation has occurred,

courts determine whether the right in question was “clearly established” at the time of the alleged

violation, such that the officer was on notice of the unlawfulness of his or her conduct. Id. In short,

an officer is entitled to qualified immunity “if there is no violation, or if the conduct did not violate

law clearly established at the time.” Bailey v. Iles, No. 22-30509, 2023 WL 8062239 at *2 (5th

Cir. Nov. 21, 2023). Courts have the discretion to decide “which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular case at

hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Each Defendant’s conduct must be

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analyzed separately to determine if he or she is entitled to qualified immunity. Still, at the summary

judgment stage, the Court “must ‘view the facts in the light most favorable to ... the nonmoving

party.’” Darden v. City of Fort Worth, Texas, 880 F.3d 722, 727 (5th Cir. 2018). “The evidence of

the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”

Anderson, 477 U.S. at 255.

III. LEGAL ANALYSIS

To defeat Defendants’ Motion, Herod must show that each Defendant’s qualified immunity

defense is unavailable. King v. Handorf, 821 F.3d 650, 653–54 (5th Cir. 2016). “The plaintiff must

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.” Id. at 654 (quoting Gates v. Texas Dep’t of Protective & Regulatory Servs.,

537 F.3d 404, 419 (5th Cir. 2008)). “To negate a defense of qualified immunity and avoid summary

judgment, the plaintiff need not present ‘absolute proof,’ but must offer more than ‘mere

allegations.’” Id. (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).

A. Claim Against T. King for Failure to Render Aid.

Herod alleges that T. King violated his constitutional rights by failing to render aid after J.

King kicked him. To establish deliberate indifference predicated on a delay in medical treatment,

Herod must show that T. King “refused to treat [Herod], 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.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d

415, 422 (5th Cir. 2017) (per curiam) (quoting Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006)

(per curiam)). A prison official acts with deliberate indifference if he is aware of and ignores a

serious risk to an inmate’s health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate

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indifference is an extremely high standard.” Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752,

756 (5th Cir. 2001). Further, a delay in medical treatment violates the Eighth Amendment only “if

there has been deliberate indifference [that] results in substantial harm.” Mendoza v. Lynaugh, 989

F.2d 191, 195 (5th Cir. 1993).

Establishing deliberate indifference requires satisfaction of both an objective and a

subjective component. Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013). An inmate must

first prove objective exposure to a substantial risk of serious bodily harm. Gobert v. Caldwell, 463

F.3d 339, 345 (5th Cir. 2006). As to the subjective component, an official acts with deliberate

indifference when he “knows of and disregards an excessive risk to inmate health or safety” and

“disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 837;

Gobert, 463 F.3d at 346. An official’s “failure to alleviate a significant risk that the official should

have perceived, but did not, is insufficient to show deliberate indifference.” Domino, 239 F.3d at

756 (internal quotation marks omitted) (quoting Farmer, 511 U.S. at 838). “[D]eliberate

indifference cannot be inferred merely from a negligent or even a grossly negligent response to a

substantial risk of serious harm.” Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001).

Instead, an official “must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.” Brewster v. Dretke,

587 F.3d 764, 770 (5th Cir. 2009) (quoting Farmer, 511 U.S. at 837); see Lawson v. Dallas Cnty.,

286 F.3d 257, 262 (5th Cir. 2002) (holding that deliberate indifference is a “subjective inquiry,”

and inmate must show that prison official was actually aware of risk of harm and consciously

ignored it).

Therefore, the Court must determine whether a fact question exists as to whether T. King

was deliberately indifferent in failing to provide medical care after Herod was kicked, and whether

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such delay substantially harmed Herod. There is no evidence in the record from T. King as to his

subjective knowledge regarding whether Herod had been kicked or whether he knew that Herod

had been injured by the kick. Herod claims that he exclaimed “You just assaulted me” to J. King

after she kicked him, and T. King was standing nearby. (ECF 18 at 3-4). Because there is no

countervailing affidavit from T. King indicating that he did not know Herod had been kicked, the

Court will assume for the purposes of this Motion that Herod’s undisputed statement to Defendants

is sufficient evidence that T. King had subjective knowledge that Herod had been kicked.

However, knowledge of the kick alone is insufficient to meet the deliberate indifference

standard. The kick itself does not show that Herod was at “substantial risk of serious bodily harm.”

Nor does it show that T. King knew of an “excessive risk” to Herod’s health and safety. There is

also no evidence that T. King subjectively knew that Herod was at risk of serious harm if he did

not provide medical treatment. The risk of harm must be “so apparent that even laymen would

recognize that care is needed.” Gobert, 463 F.3d at 345 n. 12. Herod’s statement to J. King that

“You just assaulted me” may establish that T. King knew there was a chance that Herod had been

injured, but it does not establish that T. King knew Herod was “at substantial risk of harm … due

to a serious medical need.” Cope v. Cogdill, 3 F.4th at 198, 206-07 (5th Cir. 2021).

There is no evidence that Herod notified T. King that he had been injured, or even that he

physically reacted in a way that showed he was injured, such as falling off the cooler. Herod does

not indicate that he reacted or showed pain in any way, other than his statement that he had been

assaulted. In fact, he indicates in his Response Brief that he was trying to hide his pain in order to

prevent showing weakness in front of the other inmates who were present. (ECF 44 at 11). The

strongest evidence of Herod’s need for medical attention would have been his own statements

during the encounter – but he provides no evidence that he expressed to T. King that he was

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seriously injured, nor does he provide evidence that he told T. King that he needed medical

attention.

There is also no evidence that Herod was substantially harmed by the delay in medical

treatment. Herod saw medical personnel on March 10, 2022, which was 15 days after he was

kicked. (ECF 36-1 at 45). At that time, he told medical officials that he had believed his knee pain

would be temporary at the time the incident occurred, but the pain was continuing to worsen over

time. (Id.). After he was examined, he was treated with ibuprofen only, which indicates that Herod

did not have a “serious medical need” caused by the delay. (Id.). See Morgan v. Hendrick Med.

Ctr., No. 1:14-CV-00117-BL, 2015 WL 13229546, at *2 (N.D. Tex. Mar. 6, 2015) (“A serious

medical need is considered ‘one that has been diagnosed by a physician as mandating treatment or

one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.’” (citation omitted). There is no evidence that the delay in care substantially harmed

Herod. See Ramirez v. Stacks, 260 F. App’x 658, 660 (5th Cir. 2007) (per curiam) (concluding

prisoner failed to raise an Eighth Amendment violation where delay in diagnosis and treatment did

not cause substantial harm); Barnhill v. Loftin, No. W-20-CA-016-ADA, 2022 WL 378443, at *5

(W.D. Tex. Feb. 8, 2022) (dismissing deliberate indifference claim because, although prisoner was

treated later than he would have liked, “[p]laintiff received both a CT and x-rays, neither of which

found any substantial injury whatsoever”). Herod further reported to medical that ibuprofen made

him feel better, which militates against a finding of “serious medical need.” (ECF 36-1 at 31).

Herod claims that he spent 15 days in pain after the kick and before the medical treatment,

and that those 15 days would have been unnecessary had T. King followed mandated TDCJ policy

and inquired if Herod had been injured by the kick. Even if Herod is correct that T. King violated

prison procedures by not checking on him, such violation does not meet the “extremely high

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standard” of wanton disregard giving rise to a constitutional violation.1 Gobert, 463 F.3d at 346.

Further, the fact that his injury was effectively treated with ibuprofen only indicates that no

“substantial” harm had occurred due to the delay in treatment. Therefore, the Motion should be

granted as to T. King.

B. Claim Against J. King for Excessive Force.

Herod alleges that J. King used excessive force when she kicked him in the knee. To

succeed on an excessive force claim, a plaintiff bears the burden of showing (1) an injury; (2) that

resulted directly and only from the use of force that was excessive to the need; and (3) the force

used was objectively unreasonable. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001)

(internal quotation omitted). “[W]henever prison officials stand accused of using excessive

physical force in violation of the Cruel and Unusual Punishments Clause, 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.” Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir. 1998)

(citing Hudson v. McMillian, 503 U.S. 1, 7 (1992)). The Eighth Amendment’s prohibition against

cruel and unusual punishment includes the unnecessary and wanton infliction of pain. Whitley v.

Albers, 475 U.S. 312, 319 (1992).

J. King concedes that, at the summary judgment stage, Herod has established a material

question of fact as to whether she used excessive force when she kicked him. (ECF 36 at 14).

1T. King’s alleged failure to follow prison procedures, in itself, is not a violation of Herod’s constitutional

rights. An assertion that prison officials failed to follow prison rules or policies does not state a

constitutional claim. McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012), citing Jackson v. Cain, 864

F.2d 1235, 1251–52 (5th Cir. 1989); see also Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (per

curiam). TDCJ’s policies, internal rules, and regulations, standing alone, do not create federally protected

rights. See Sandin v. Conner, 515 U.S. 472, 487 (1995); Jackson, 864 F.2d at 1251-52 (“A state’s failure to

follow its own procedural regulations does not establish a violation of due process, because constitutional

minima may nevertheless have been met” (internal quotation omitted).

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However, she claims that she is entitled to qualified immunity and, therefore, summary judgment,

because Herod cannot show sufficient legal precedent demonstrating that her actions were clearly

prohibited. (Id.).

In considering whether J. King violated Herod’s constitutional right to be free of excessive

force, the Court considers the “objective legal reasonableness of the action, assessed in light of the

legal rules that were clearly established at the time it was taken.” Wilson v. Layne, 526 U.S. 603,

614 (1999). A right is “clearly established” when its contours are sufficiently clear that a

reasonable official would know that what he or she was doing violated that right. See Anderson v.

Creighton, 483 U.S. 635, 640 (1987). “The central concept is that of fair warning: [t]he law can

be clearly established despite notable factual distinctions between the precedents relied on and the

cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct

then at issue violated constitutional rights.” Kinney v. Weaver, 367 F.2d 337, 350 (5th Cir. 2004)

(en banc). Further, the law should be “clear in a more particularized rather than abstract sense such

that it is apparent that the official’s actions are unlawful based upon pre-existing law.” Anderson,

483 U.S. at 640.)). A case directly on point is not required, “but existing precedent must have

placed the statutory or constitutional question beyond debate.” Acosta v. Williamson County, 2024

WL 3833303 (5th Cir. Aug. 15, 2024).

Herod likens this case to attacks on defenseless prisoners, in which officers were found to

have used excessive force against prisoners who were handcuffed or not otherwise creating a

disturbance. See, e.g., Brown v. Lippard, 472 F.3d 384 (5th Cir. 2006). Conversely, J. King alleges

that the law must show that it is a clearly established prohibition on use of force when “the in-

question force was not intended to strike the prisoner, the prisoner has failed to follow an officer’s

directive, and the prisoner had advanced notice of the repercussions.” (ECF 36 at 17). The Court

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believes that King’s view is too narrow of a reading as to the applicable law, as applied to the facts

in the record at this stage of the proceedings.

J. King first alleges that, to survive summary judgment, Herod must show that it is a

constitutional violation to accidentally strike a prisoner because, she claims, it was not her

subjective intent to strike Herod. (Id. at 15). As correctly noted by J. King, any excessive force

evaluation focuses on the prison official’s subjective intent as to whether the force was used as

punishment rather than to maintain order. Byrd v. Harrell, 48 F.4th 343, 347 (5th Cir. 2022). J.

King points to Herod’s assertion that J. King apparently meant to kick the cooler out from

underneath Herod, combined with his admission that J. King had told him a week earlier that she

would kick the cooler out from under him if she caught him sitting on it again. (ECF 18 at 2-3).

However, Herod’s assumption as to J. King’s intent does not constitute viable summary judgment

evidence, and is contradicted by Herod in his responsive briefs. Both parties claim that a video

recording of the incident exists, but neither party submitted the video into the record. J. King

provides a letter written by an ombudsman officer who apparently communicated with other

officers who watched the video but found it to be insufficient to establish whether an assault

occurred. (ECF 34-4 at 4). Again, however, this hearsay-within-hearsay-within-hearsay is not

competent summary judgment evidence. There is no admissible evidence in the record as to J.

King’s subjective intent in delivering the kick that injured Herod.2

J. King next argues that she was attempting to regain compliance over Herod when she

delivered the kicks because he was refusing to comply with her directive from at least one week

2Even assuming that the parties agree that J. King intended to kick the cooler rather than Herod with her

first kick, there is no evidence, competent or otherwise, as to her intent in delivering the second kick, which

is the kick that made contact with Herod’s knee.

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earlier to not sit on a cooler. (Id. at 15). While the Court agrees that officers are justified in using

“some degree of force in a good-faith effort to maintain or restore discipline,” see Gonzalez v.

Rowe, No. 5:20-CV-052-BQ, 2020 WL 4811005 (N.D. Tex. July 27, 2020), the undisputed week-

long interim between the order and the force used by J. King renders this argument unavailing at

the summary judgment stage. The undisputed evidence shows that there was no interaction

whatsoever between them before J. King began kicking. (ECF 18 at 4, 46 at 2-3). The interim

between the time of the order and the time of the force creates a factual dispute as to whether the

force was used due to Herod’s failure to comply with her order from the week before.

J. King’s remaining arguments also fail. She alleges that Herod sought medical attention

for his knee only after she wrote a disciplinary charge against him for failing to perform his job.

(ECF 36-2 at 6-9). In response, Herod claims that J. King wrote the disciplinary charge as a pretext

to be able to claim retaliation in the event that Herod complained about the kick. (ECF 44 at 10).

This is a material factual dispute, but irrelevant to the question of whether J. King’s actions clearly

constituted a constitutional violation. Lastly, J. King also characterizes her kick as “horseplay”

rather than a constitutional violation. (ECF 36 at 7). Again, however, because there is no evidence

of J. King’s subjective intent in the record, the Court cannot conclude as a matter of law that her

subjective intent was not to purposefully injure Herod, as he alleges. In sum, the Court disagrees

with J. King’s characterization of the type of “clearly established” law required to defeat J. King’s

right to qualified immunity as a matter of law.

As noted, Herod alleges that J. King kicked him while he was sitting on a cooler, eating

his meal and posing no threat. According to Herod, he was not interacting with J. King in any way

before she began kicking. (ECF 18 at 4; 46 at 2-3). Under the facts presently before the Court, this

case is more akin to a guard striking a defenseless prisoner rather than a guard who needs to use

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force to restore order. The Fifth Circuit has specifically found, in the context of a criminal suspect,

that once a suspect is “subdued” and “no longer resisting, an officer’s subsequent use of force is

excessive.” See, e.g., Bagley v. Guillen, No. 22-20644 (5th Cir. Jan. 10, 2024) (quoting Joseph ex

rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 341-42 (5th Cir. 2020)); Newman v. Guedry, 703 F.3d

757, 763 (5th Cir. 2012) (finding it objectively unreasonable for officers to injure a man whose

“behavior [does] not rise to the level of active resistance.”); see also Ware v. Kempt, 2024 WL

3221417 (E.D. Tex Jan. 23, 2024) (“The law on this matter was clearly established at the time of

the 2020 use-of-force incident and reasonable prison officials would know that the use of excessive

force upon an inmate would violate clearly established constitutional principles…An officer’s use

of force against a prisoner who is not actively resisting may be considered excessive.”). The Court

is persuaded that any reasonable officer would have known that he or she could not walk up to an

unresisting prisoner and kick him without warning, especially when there is no immediate need to

subdue him to restore order. See Darden, 880 F.3d at 732 (collecting cases) (“[A] police officer

uses excessive force when the officer strikes, punches, or violently slams a suspect who is not

resisting arrest.”); see also Curran v. Aleshire, 800 F.3d 656, 663 (5th Cir. 2015) (finding no legal

error in a district court’s conclusion that “slamming a student’s head into the wall after her

resistance had ceased is a violation of clearly established law”).

Assuming that Herod’s version of the facts is true—as the Court must under Rule 56—the

constitutional rule prohibiting the use of force solely for the purpose of causing harm applies “with

obvious clarity to the specific conduct in question.” See Taylor v. Riojas, 592 U.S. 7, 9 (2020)

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Accordingly, Herod’s sworn statements that

the attack on him was unprovoked provide sufficient evidence to create a fact issue as to the

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violation of a clearly established right.

Therefore, for the reasons stated above, J. King’s Motion should be denied.

RECOMMENDATION

As set forth above, the U.S. Magistrate Judge recommends that Defendant T. King’s

Motion for Summary Judgment on qualified immunity grounds be GRANTED, and that Defendant

J. King’s Motion for Summary Judgment on qualified immunity grounds be DENIED.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions

and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED September 16, 2024.

LEE es RENO

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by

3The Court notes that the severity of the injury that a prisoner must show is significantly lower in cases of

unreasonably excessive force than it is in cases of failure to provide aid. The Fifth Circuit has found in

excessive force cases that “as 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. Solis v. Serrett, 31 F.4th 975, 982 (Sth Cir. 2022) (internal quotes omitted).

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electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28

U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections

with the United States District Clerk and serve a copy of such objections on all other parties. A

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district

court. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc),

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery

Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275,

276–77 (5th Cir. 1988).

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