Sullivan v. Dallas County Sheriff's Department

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DUSTIN SULLIVAN, §

TDCJ No. 2458560, §

§

Plaintiff, §

§

V. § No. 3:22-cv-1162-S-BN

§

DALLAS COUNTY SHERIFF’S §

DEPARTMENT, ET AL., §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff Dustin Sullivan, then an inmate at the Dallas County jail (who is now

a Texas prisoner), filed a pro se civil rights complaint raising various claims related

to his detention at the jail. See Dkt. No. 3, 12-14, 17, 18, 26, & 29.

The presiding United States district judge referred Sullivan’s lawsuit to the

undersigned United States magistrate judge for pretrial management under 28

U.S.C. § 636(b) and a standing order of reference.

And Defendants Geronimo Garcia, Martin Nicholson, Emmanuel Hooks,

Charles Peterson, Terry Speight, and Mariama Smith, LVN answered, all asserting

qualified immunity. See Dkt. No. 15, ¶ 2.2; Dkt. No. 38, ¶ 2.1; Dkt. No. 39, ¶ 2.1; Dkt.

No. 40, ¶ 2.1; & Dkt. No. 43, ¶ 12.

As ordered, Defendants moved for summary judgment on qualified immunity.

See Dkt. Nos. 48, 50, 51, & 63-65. Also as ordered, see Dkt. Nos. 67-69 & 71-76,

Sullivan moved for leave to conduct limited discovery in order to respond to the

qualified immunity issues raised in the summary judgment motions. See Dkt. No. 77.

And Defendants responded. See Dkt. Nos. 79 & 80.

The Court granted in part and denied in part Sullivan’s motion to the extent

that the discovery that Defendants Garcia, Nicholson, Hooks, Peterson, and Speight

agreed to provide or respond to was authorized by the Court. See Dkt. No. 80 at 5-9

& Dkt. No. 81.

And counsel for the responding defendants advised the Court that discovery

was provided to Sullivan on September 22, 2023, in care of the warden at the Texas

Department of Criminal Justice’s Beto Unit, see Dkt. No. 84.

The Court then set set October 26, 2023 as Sullivan’s deadline to respond to

Defendants’ motions for summary judgment on qualified immunity. See Dkt. No. 85.

The Court twice extended the response deadline – to January 16, 2024 – on

Sullivans’s motions. See Dkt. Nos. 87, 88, 90, & 91. The Court extended that deadline

a third time, granting Sullivan’s motion in part. See Dkt. Nos. 92 & 93.

Sullivan filed responses in May 2024. See Dkt. Nos. 94 & 95.

Defendants then replied later that month. See Dkt. Nos. 96-98.

And the undersigned now enters these findings of fact, conclusions of law, and

recommendation that the Court should enter a final judgment granting the motions

for summary judgment on qualified immunity, dismissing the claims against

Defendants Garcia, Nicholson, Hooks, Peterson, Speight, and Smith with prejudice,

and dismissing with prejudice, under its screening authority, the claims against

Defendants Dallas County Sheriff’s Department (“DCSD”) and Detective Moffit.

Preliminary Considerations: Screening

Before considering qualified immunity, the undersigned first identifies the

operative complaint. While Sullivan filed one complaint [Dkt. No. 3], he later moved

to amend the complaint (multiple times) solely to identify unnamed defendants, as

the Court explained in an order entered on October 12, 2022:

The Court granted Sullivan’s motion for leave to proceed in forma

pauperis under the Prison Litigation Reform Act (the “PLRA”), see Dkt.

No. 8, and ordered his complaint served on the two individual

defendants identified by name: Officers Nicholson and Garcia, both

alleged to be jailers employed by the Dallas County Sheriff’s

Department, see Dkt. Nos. 9-11.

After that, Sullivan moved to amend his complaint to identify Doe

defendants and to provide the first names for Officers Nicholson and

Garcia. See Dkt. Nos. 12-14. Officers Nicholson and Garcia then

answered, see Dkt. No. 15, each asserting, as affirmative defenses, that

he is entitled to qualified immunity (“QI”) and that Sullivan failed to

exhaust administrative remedies under the PLRA, see id., ¶¶ 2.1, 2.2.

And, on September 8, 2022, the Court granted Sullivan’s motion to

amend and ordered Nicholson and Garcia to move for summary

judgment on either or both defenses by October 10, 2022. See Dkt. No.

17.

After that, Sullivan filed two more motions to amend, identifying

additional Doe defendants. See Dkt. Nos. 18, 26. Sullivan also moved the

Court to appoint him counsel. See Dkt. No. 19. And Nicholson and

Garcia moved to extend their deadline to move for summary judgment

on QI, explaining that, after further investigation, they “will not file a

dispositive motion on their PLRA exhaustion defenses.” Dkt. Nos. 27,

28.

The Court must resolve QI on an expedited basis, engaging in this

analysis on an individualized basis.

So, given the current posture of this proceeding, where now it is

clearer that PLRA exhaustion may not be case dipositive, the Court

GRANTS Sullivan’s additional motions to amend [Dkt. Nos. 18, 26] and

recognizes that he has named the following defendants: Geronimo

Garcia and Martin Nicholson (who were served, answered, and asserted

QI) and Emanuel Hooks, Charles Peterson, Jonathan Garcia, Sgt.

Speight, and Mariama Smith (who have not but who plausibly are also

all jail employees who may assert QI).

The Court also GRANTS Geronimo Garcia and Martin

Nicholson’s motion for extension as amended [Dkt. Nos. 27, 28] to the

extent that the Court ABATES the September 8 order (and the deadline

to move for summary judgment on QI) to allow defense counsel an

opportunity to investigate this matter further considering the additional

named defendants.

The Court therefore ORDERS defense counsel to file a status

report by November 11, 2022, to inform the Court whether service may

be waived as to the additional named defendants and to provide the

Court his views on an expedited consideration of qualified immunity as

to all defendants named in this action.

Dkt. No. 29 (cleaned up).

A status report was filed. See Dkt. No. 30.

And the Court eventually received answers from all the individual defendants

identified with the use of force incidents and the medical care that Sullivan received

after the force incident, all of whom asserted qualified immunity in their answers, so

the Court ordered those defendants to move for summary judgment as to that defense

on December 14, 2022. See, e.g., Dkt. No. 48.

But that leaves two defendants named in the complaint not before the Court:

DCSD and Moffit.

As to each, the Court may consider Sullivan’s claims under its screening

authority, see 28 U.S.C. §§ 1915(e)(2) & 1915A(b), which empowers the Court to

dismiss – at any time – a complaint or any portion of a complaint that fails to state a

claim on which relief may be granted.

Under these standards, a complaint need not contain detailed factual

allegations, but it must contain “enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). And, so, “[w]here a complaint pleads facts that are merely consistent with

a defendant’s liability, it stops short of the line between possibility and plausibility of

entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557).

Starting with Moffit, Sullivan alleges that he unconstitutionally retaliated

against him by placing him in administrative segregation: “Detective Moffit

retaliated against me and violated my due process by placing me in administrative

custody for being a victim and reporting the assault.” Dkt. No. 3 at 6 (“Once I filed

the complaint I was moved to lockup and restricted from my tablet use, my T.V.

privileges, video visits or the right to use law library on the kiosk.”).

Claims of retaliation by prison inmates are viewed with skepticism, lest

the federal courts potentially embroil themselves in every adverse action

that occurs within a penal institution. Accordingly, to prevail on a claim

of retaliation, a prisoner must establish (1) that he was exercising or

attempting to exercise a specific constitutional right, (2) that the

defendant intentionally retaliated against the prisoner for the exercise

of that right, (3) that an adverse retaliatory action, greater than de

minimis, was undertaken against the prisoner by the defendant, and (4)

that there was causation, i.e., that “but for” the retaliatory motive, the

adverse action would not have occurred. To pass the de minimis

standard for a retaliatory act, a plaintiff must allege an adverse act that

“is capable of deterring a person of ordinary firmness from further

exercising his constitutional rights.”

Mack v. LeBlanc, Civ. A. No. 20-444-JWD-EWD, 2021 WL 6199494, at *4 (M.D. La.

Nov. 15, 2021) (footnotes omitted).

And the facts alleged by Sullivan do not advance a retaliation claim over the

line from probable to plausible.

First, the few facts do not allow for a reasonable inference that, but for an

improper motive, Sullivan would not have been placed in administrative segregation.

Sullivan also alleges only temporary inconveniences based on his alleged

transfer to administrative segregation and thus fails to allege a more than de minimis

– or more than inconsequential – act to support the retaliation claim. See, e.g., Morris

v. Powell, 449 F.3d 682, 687 (5th Cir. 2006) (Prison job “transfers may have had a

retaliatory motive, and Morris may have experienced discomfort for a few days as a

result, but there is no evidence that the job transfers were more than de minimis.”

But “[t]here is no doubt that transfer to a more dangerous prison as a penalty for the

exercise of constitutional rights has the potential to deter the inmate from the future

exercise of those rights.”).

Next, to the extent that Sullivan has named DSCD itself as a defendant, courts

in this circuit dismiss claims against non-jural entities, which are commonly servient

political departments such as a local law enforcement entity. See, e.g., Combs v. City

of Dall., 289 F. App’x 684, 686 (5th Cir. 2008) (per curiam) (affirming dismissal of

“the DPD as a defendant because it is a servient political department that does not

enjoy a separate and distinct legal existence from the City of Dallas,” as the plaintiff

failed to “show that the City of Dallas granted the DPD the capacity to sue or be sued

as a separate and distinct entity” (citing Darby v. Pasadena Police Dep’t, 939 F.2d

311, 313-14 (5th Cir. 1991) (“[U]nless the true political entity has taken explicit steps

to grant the servient agency with jural authority, the agency cannot engage in any

litigation except in concert with the government itself.”))).

Nor should the Court liberally construe Sullivan’s suing DCSD – based on a

single incident (alleged acts against him) – as asserting plausible claims against

Dallas County or the Dallas County Sheriff (neither explicitly named as a defendant).

See, e.g., Johnson v. Harris Cnty., 83 F.4th 941, 947 (5th Cir. 2023) (“Johnson’s claim

against the county fails because she does not plausibly allege any pattern of conduct

– much less a pattern of similar violations.” (emphasis in original)); Culbertson v.

Lykos, 790 F.3d 608, 629 (5th Cir. 2015) (Allegations, “limited to the events

surrounding the plaintiff” cannot constitute “an allegation of a de facto policy … by

the County.”); Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 (5th Cir.

2017) (per curiam) (“Supervisory officials are accountable for their own acts of

deliberate indifference and for implementing unconstitutional policies that causally

result in injury to the plaintiff.” (citing Mouille v. City of Live Oak, 977 F.2d 924, 929

(5th Cir. 1992))).

The Court should therefore dismiss any claims against Moffit and DCSD under

Sections 1915(e)(2) and 1915A(b).

Qualified Immunity: Legal Standards

“A plaintiff makes out a § 1983 claim if he ‘shows a violation of the Constitution

or of federal law, and then shows that the violation was committed by someone acting

under color of state law.’” Rich v. Palko, 920 F.3d 288, 293-94 (5th Cir. 2019) (cleaned

up; quoting Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)).

“But government officials performing discretionary duties” can respond to such

a claim by asserting qualified immunity. Rich, 920 F.3d at 294 (citing Haverda v.

Hays Cnty., 723 F.3d 586, 598 (5th Cir. 2013)).

And, if they do, a court must consider each official’s actions separately, see

Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007), on an expedited basis, see

Ramirez v. Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021), “because qualified

immunity is ‘not simply immunity from monetary liability’ but also ‘immunity from

having to stand trial,’” Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020) (quoting

Westfall v. Luna, 903 F.3d 534, 542 (5th Cir. 2018)).

“[T]he doctrine of qualified immunity attempts to balance two competing

societal interests: ‘the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.’” Joseph v. Bartlett, 981 F.3d 319,

328 (5th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

“These interests are distilled into a legal standard, an affirmative defense, that

shields public officials sued in their individual capacities ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

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

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Phrased differently, this immunity “attaches when an official’s conduct ‘does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” White v. Pauly, 580 U.S. 73, 78-79 (2017) (per curiam)

(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)).

The doctrine therefore “gives government officials breathing room to make

reasonable but mistaken judgments and protects all but the plainly incompetent or

those who knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per

curiam) (cleaned up; quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)); accord

City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015).

“Accordingly, ‘qualified immunity represents the norm,’ and courts should

deny a defendant immunity only in rare circumstances.” Angulo v. Brown, 978 F.3d

942, 949 (5th Cir. 2020) (quoting Romero v. City of Grapevine, 888 F.3d 170, 176 (5th

Cir. 2018) (quoting, in turn, Harlow, 457 U.S. at 807)); but see, e.g., Jamison v.

McClendon, 476 F. Supp. 3d 386 (S.D. Miss. 2020) (calling for reconsideration of the

doctrine); Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J., statement

respecting denial of cert.) (calling on his colleagues to, “in an appropriate case …

reconsider either our one-size-fits-all test or the judicial doctrine of qualified

immunity more generally”); Gonzalez v. Trevino, 42 F.4th 487, 507 (5th Cir. 2022)

(Oldham, J., dissenting) (suggesting that officers who do not make split-second

decisions “should not get the same qualified-immunity benefits that cops on the beat

might get”), majority decision vacated & remanded, 144 S. Ct. 1663 (2024).

The “qualified-immunity inquiry is two-pronged.” Cunningham v. Castloo, 983

F.3d 185, 190 (5th Cir. 2020) (citing Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir.

2020)):

 Do “the facts, viewed in the light most favorable to the party asserting

the injury, show that the official’s conduct violated a constitutional

right”? Id. at 190-91 (citing Garcia, 957 F.3d at 600).

 Was “the right at issue … ‘clearly established’ at the time of the alleged

misconduct”? Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019)

(quoting Pearson, 555 U.S. at 232).

“In order for a right to be clearly established, ‘[t]he contours of the right must

be sufficiently clear that a reasonable official would understand that what he is doing

violates that right.’” Ramirez, 3 F.4th at 133 (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)).

“The reasonableness of the official’s conduct and the degree to which the

particular right in question was clearly established are thus merged into one issue

for purposes of the qualified immunity analysis.” Id. at 133-34; cf. Nerio v. Evans, 974

F.3d 571, 575 (5th Cir. 2020) (“Fair notice requires clearly established law. That is,

the law must ‘clearly prohibit the officer’s conduct in the particular circumstances

before him’ so ‘every reasonable official’ knows not to engage in that conduct.”

(quoting D.C. v. Wesby, 583 U.S. 48, 63 (2018); citing al-Kidd, 563 U.S. at 742)).

Under this standard, “[q]ualified immunity is justified unless no reasonable

officer could have acted as [the defendant officers] did [given the same facts], or every

reasonable officer faced with the same facts would not have [acted as the defendant

officers did].” Tucker v. City of Shreveport, 998 F.3d 165, 174 (5th Cir. 2021) (quoting

Mason v. Faul, 929 F.3d 762, 764 (5th Cir. 2019) (internal quotation marks omitted;

citing, in turn, Wesby, 583 U.S. at 63 (“It is not enough that the rule is suggested by

then-existing precedent. The precedent must be clear enough that every reasonable

official would interpret it to establish the particular rule the plaintiff seeks to apply.

Otherwise, the rule is not one that ‘every reasonable official’ would know.”))).

A court may “analyze the prongs in either order or resolve the case on a single

prong.” Cunningham, 983 F.3d at 191 (quoting Garcia, 957 F.3d at 600 (internal

quotation marks omitted)).

Even so, addressing this affirmative defense on a motion for summary

judgment is not exactly intuitive.

“A plaintiff suing for a constitutional violation has the ultimate burden to show

that the defendant violated a constitutional right … whether or not qualified

immunity is involved.” Joseph, 981 F.3d at 329 (footnote omitted).

But, “[w]hen a public official makes ‘a good-faith assertion of qualified

immunity,’ that ‘alters the usual summary-judgment burden of proof, shifting it to

the plaintiff to show that the defense is not available.’” Id. at 329-30 (quoting Orr v.

Copeland, 844 F.3d 484, 490 (5th Cir. 2016)); accord Batyukova v. Doege, 994 F.3d

717, 724 (5th Cir. 2021) (“The defense of qualified immunity ‘alters the usual

summary judgment burden of proof.’ Once a defendant properly raises the defense,

the burden shifts to the plaintiff to demonstrate that the defendant is not entitled to

the defense’s protection.” (citations omitted)).

“In other words, to shift the burden to the plaintiff, the public official need not

show (as other summary-judgment movants must) an absence of genuine disputes of

material fact and entitlement to judgment as a matter of law.” Joseph, 981 F.3d at

330 (citing King v. Handorf, 821 F.3d 650, 653-54 (5th Cir. 2016)).

Once shifted, “the plaintiff bears the burden of demonstrating that a defendant

is not entitled to qualified immunity.” Valderas v. City of Lubbock, 937 F.3d 384, 389

(5th Cir. 2019) (per curiam) (citation omitted).

And, “[t]o rebut [a public official’s] qualified immunity defense, [a] [p]laintiff[]

must point to summary judgment evidence ‘(1) that [the official] violated a federal

statutory or constitutional right and (2) that the unlawfulness of the conduct was

‘clearly established at the time.’” Cloud v. Stone, 993 F.3d 379, 383 (5th Cir. 2021)

(citations omitted).

And, so, as to the first prong of the qualified-immunity inquiry, to overcome a

public official’s motion for summary judgment on qualified immunity, the plaintiff

“must show that there is a genuine dispute of material fact and that a jury could

return a verdict entitling the plaintiff to relief for a constitutional injury” – just as

would be required “if the plaintiff did not face qualified immunity.” Joseph, 981 F.3d

at 330.

That is, the plaintiff must defeat summary judgment by showing that “the

facts, viewed in the light most favorable to the party asserting the injury, show that

the official’s conduct violated a constitutional right,” Cunningham, 983 F.3d at 190-

91.

And, when considering this showing, the Court must “accept the plaintiff’s

version of the facts (to the extent reflected by proper summary judgment evidence) as

true.” Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004).

Particularly applicable in pro se cases, “verified complaint[s] and other verified

pleadings serve as competent summary judgment evidence.” Falcon v. Holly, 480 F.

App’x 325, 326 (5th Cir. 2012) (per curiam) (citing Hart v. Hairston, 343 F.3d 762,

765 (5th Cir. 2003)); see, e.g., Mitchell v. Cervantes, 453 F. App’x 475, 477-78 (5th Cir.

2011) (per curiam).

But if “the [evidence] … offer[ed] in opposition to summary judgment is neither

sworn nor declared under penalty of perjury to be true and correct, it is not competent

evidence.” Smith v. Palafox, 728 F. App’x 270, 274 (5th. Cir. 2018) (per curiam)

(cleaned up; quoting Davis v. Fernandez, 798 F.3d 290, 292 (5th Cir. 2015); citation

omitted).

And the Court need not accept “‘the plaintiff’s version of the facts,’” if “that

version ‘is blatantly contradicted by the record, so that no reasonable jury could

believe it.’” Joseph, 981 F.3d at 325 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007);

citing Orr, 844 F.3d at 590).

For example, the Court must “assign greater weight, even at the summary

judgment stage, to the facts evident from video recordings taken at the scene.”

Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (quoting Carnaby v. City of

Hous., 636 F.3d 183, 187 (5th Cir. 2011) (citing, in turn, Scott, 550 U.S. 372)).

In sum, “[w]hen one party’s description of the facts is discredited by the record,

[a court] need not take his word for it but should view ‘the facts in the light depicted

by the videotape.’” Id. (quoting Scott, 550 U.S. at 380-81); accord Joseph, 981 F.3d at

325 (Where a court “proceed[s] through the facts in detail, including the disputed

facts, considering each officer’s actions independently,” it “draw[s] these facts from

the record, prioritizing the video evidence.” (footnotes omitted)); see also Garcia v.

Orta, 47 F.4th 343, 350-51 & n.2 (5th Cir. 2022) (discussing the scope of Scott,

including that its holding reaches beyond video evidence, to similar items in “the

record” “capable of utterly discrediting the plaintiff’s version of the facts” – including

still photos, taser logs, and “what can be heard, and not just what can be seen, on a

video” (citations omitted)); but cf. Spiller v. Harris Cnty., Tex., 113 F.4th 573, 580-81

(5th Cir. 2024) (Willett, J., concurring) (“And while such evidence can sharpen our

decision-making by leaving less room for speculation and guesswork, it can often raise

as many questions as it answers… And even what the often-harrowing video does

show can become a Rorschach test of sorts, as viewers filter objective evidence

through subjective experience. Where some see damning digital proof, others see

clear-cut exoneration…. As best I can tell, the majority’s description is largely faithful

to what the evidence shows in light of the allegations made. But after reading the

dissent, one can only wonder how we can reach such polar-opposite conclusions from

the same video. [In sum, d]escribing video footage is tricky.”).

That’s just the first prong: “[T]he plaintiff’s version of [the] disputed facts

[supported by proper summary judgment evidence and not blatantly contradicted by

the record] must also constitute a violation of clearly established law.” Joseph, 981

F.3d at 330. That is, “when qualified immunity is involved, at least in this circuit, a

plaintiff has the additional burden to show that the violated right was ‘clearly

established’ at the time of the alleged violation.” Id. at 329 (footnote omitted).

And the clearly established question can be “a doozy.” Morrow, 917 F.3d at 874.

That is, “[t]he ‘clearly established’ prong is difficult to satisfy.” Cunningham, 983 F.3d

at 191; cf. Cope v. Cogdill, 3 F.4th 198, 204 (5th Cir. 2021) (“We are bound by the

restrictive analysis of ‘clearly established’ set forth in numerous [United States]

Supreme Court precedents.”).

“In order for a right to be clearly established, ‘[t]he contours of the right must

be sufficiently clear that a reasonable official would understand that what he is doing

violates that right.’” Ramirez, 3 F.4th at 133 (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)).

“The reasonableness of the official’s conduct and the degree to which the

particular right in question was clearly established are thus merged into one issue

for purposes of the qualified immunity analysis.” Id. at 133-34.

And the plaintiff “must show that the law was ‘sufficiently clear’ at that time

‘that every reasonable official would have understood that what he [was] doing

violate[d] that right.’” Batyukova, 994 F.3d at 726 (quoting Mullenix v. Luna, 577 U.S.

7, 11 (2015) (per curiam)).

“There are two ways to demonstrate clearly established law” and meet this

additional burden to make this second showing. Id.

Typically, the plaintiff must “‘identify a case’ – usually, a ‘body of relevant case

law’ – in which ‘an officer acting under similar circumstances was held to have

violated the Constitution.’” Joseph, 981 F.3d at 330 (cleaned up); accord Wigginton v.

Jones, 964 F.3d 329, 335 (5th Cir. 2020) (A clearly established right must be

supported by “controlling authority – or a ‘robust consensus of [cases of] persuasive

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

particularity.” (quoting Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011)));

see, e.g., Lincoln v. Turner, 874 F.3d 833, 850 (5th Cir. 2017) (“While we may look to

other circuits to find clearly established law, we must consider ‘the overall weight’ of

such authority. A ‘trend’ alone is just that. As of December 2013, only two circuits

had weighed in on the ‘contours of the right.’ These cases alone do not provide

sufficient authority to find that the law was clearly established.” (footnote omitted)).

“It is the plaintiff’s burden to find a case in her favor that does not define the

law at a high level of generality.” Bustillos v. El Paso Cnty. Hosp. Dist., 891 F.3d 214,

222 (5th Cir. 2018) (cleaned up; quoting Vann v. City of Southaven, 884 F.3d 307, 310

(5th Cir. 2018)). Thus, the “clearly established law” “must be ‘particularized’ to the

facts of the case.” Roque v. Harvel, 993 F.3d 325, 335 (5th Cir. 2021) (cleaned up).

And a clearly established right must be defined “with specificity.” Cunningham, 983

F.3d at 191 (quoting City of Escondido v. Emmons, 586 U.S. 38, 42 (2019) (per

curiam)).

“The central concept is that of ‘fair warning’: The 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.” Trammell v. Fruge, 868 F.3d

332, 339 (5th Cir. 2017) (citations omitted).

“In other words, ‘there must be adequate authority at a sufficiently high level

of specificity to put a reasonable official on notice that his conduct is definitively

unlawful.’” Cunningham, 983 F.3d at 191 (quoting Vincent v. City of Sulphur, 805

F.3d 543, 547 (5th Cir. 2015)).

In sum, under the most common approach to this prong, while the “clearly

established right … must be particularized to the facts of the case establishing the

right,” Harris v. Clay Cnty., Miss., 47 F.4th 271, 277 (5th Cir. 2022) (cleaned up),

because “[t]he touchstone of the inquiry is ‘fair notice,’” “[d]istinctions between cases

are thus relevant only if they make the applicability of prior precedent unclear,” Boyd

v. McNamara, 74 F.4th 662, 669 (5th Cir. 2023) (citations omitted).

That is, “[a] plaintiff need not show that the very action in question has

previously been held unlawful. The test is whether every reasonable official would

know that their actions are unconstitutional. [And, so, a]t the end of the day, [what

is absolutely necessary] is fair warning.” Stevenson v. Tocé, 113 F.4th 494, 504 (5th

Cir. 2024) (cleaned up).

Under the second approach to demonstrating clearly established law, a

plaintiff asks the Court to look to “the ‘rare’ possibility that, in an ‘obvious case,’

analogous case law ‘is not needed’ because ‘the unlawfulness of the [challenged]

conduct is sufficiently clear even though existing precedent does not address similar

circumstances.’” Joseph, 981 F.3d at 330 (quoting Wesby, 583 U.S. at 64); accord

Batyukova, 994 F.3d at 726.

“[I]n an obvious case, general standards can [therefore] ‘clearly establish’ the

answer, even without a body of relevant case law.” Roque, 993 F.3d at 335 (cleaned

up; quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).

But “[t]he standard for obviousness is sky high.” Joseph, 981 F.3d at 338.

And, so, “plaintiffs are only excused of their obligation to identify an analogous

case in ‘extreme circumstances’ where the constitutional violation is ‘obvious,’” Cope,

3 F.4th at 206 (quoting Taylor v. Riojas, 592 U.S. 7, 8-9 (2020) (per curiam)), because

qualified immunity should “not immunize those officials who commit novel, but

patently ‘obvious,’ violations of the Constitution,” Tyson v. Sabine, 42 F.4th 508, 520

(5th Cir. 2022) (quoting Hope v. Pelzer, 536 U.S. 730, 745 (2002)); see, e.g., Harris, 47

F.4th at 279 (“Detaining Harris for more than six years after he should have been

released under Supreme Court precedent and a state court order is a violation of

clearly established law. Qualified immunity thus does not protect Huffman and

Scott.”); Tyson, 42 F.3d at 520 (“It is obvious that the right to bodily integrity forbids

a law enforcement officer from sexually abusing a person by coercing them to perform

nonconsensual physical sex acts for his enjoyment”).

Qualified Immunity: Analysis

Responding to the summary judgment motions, Sullivan failed to present the

Court with relevant case law particularized to the facts here – and thus has done

nothing, on his own, to defeat qualified immunity’s clearly established prong.

The Court must therefore determine whether there were any obvious violations

of clearly established federal law based on the evidence that supports Sullivan’s best

version of the disputed facts not otherwise utterly discredited or blatantly

contradicted by the record.

That’s generally a heavy burden. And, under the circumstance here, it is one

that Sullivan has not met. And, so, for the reasons set out below, the Court should

grant the motions for summary judgment on qualified immunity.

The undersigned starts with the Officers.

At the time that the alleged events occurred – in November 2021 – Sullivan

was a pretrial detainee. “Pretrial detainees are protected by the Due Process Clause

of the Fourteenth Amendment.” Alderson, 848 F.3d at 419. And, “[i]n Kingsley v.

Hendrickson, 576 U.S. 389 (2015), the Supreme Court outlined the proper analytical

framework for adjudicating a pretrial detainee’s excessive force claim.” Acosta v.

Williamson Cnty., Tex., No. 23-50777, 2024 WL 3833303, at *4 (5th Cir. Aug. 15,

2024) (per curiam).

In sum, a Fourteenth Amendment excessive force inquiry under

Kingsley has two steps. At step one, courts must determine whether the

defendant’s use of force was deliberate. If the use of force was deliberate,

then at step two, courts must determine whether the defendant’s use of

force was objectively reasonable, considering the specific circumstances

of the case.

Id. at *5.

And, so, “[a]s a pretrial detainee, [Sullivan] ‘can prevail by providing only

objective evidence that the challenged governmental action is not rationally related

to a legitimate governmental objective or that it is excessive in relation to that

purpose.’” Sanchez v. Griffis, No. 21-51160, 2023 WL 7984732, at *1 (5th Cir. Nov.

17, 2023) (per curiam) (quoting Kingsley, 576 U.S. at 398).

“Factors relevant to a determination of reasonableness include the relationship

between the need for the use of force and the amount of force used, efforts to temper

or to limit force, the threat reasonably perceived by the officer, the extent of the

plaintiff's injury, and whether the plaintiff was resisting.” Id. (citation omitted).

Through a verified complaint, Sullivan alleges that two separate uses of force

were excessive.

In the first, Sullivan alleges that Nicholson “repeatedly chest bumped me and

pushed me in my chest area while in the visitation hallway on the 2nd floor” and that,

“[w]hile pushing and chest bumping me [Nicholson] continued to threaten me, telling

me I wasn’t as tough as I thought I was,” and “repeatedly asked me if I wanted to

fight.” Dkt. No. 3 at 4-5.

The second allegedly occurred after Sullivan was ordered to gather his

belongings because he was being moved. According to Sullivan,

Garcia reminded me there was no way out of my ass whoopin stating

that the officers will always stick together. At that point he pulled out

his mace and sprayed me continuously. After ordering me to the floor I

attempted to kneel but was sprayed with more gas while I was facing

the wall and walking away from the conflict I was punched by Officer

Garcia in my head and was thrown to the ground where … I was

punched and kicked by over 10 officers. Officer Peterson began yelling

the assault was enough and for other officers to stop the assault but the

assault resumed for another 40 seconds or so. During the assault I lost

consciousness twice. After punching and kicking me I was dragged to

my feet by my hair and pulled into the dayroom where my hair continued

to be pulled. I was forced chest first into a table with a knee in my back

that prevented me from breathing.

Id. at 5.

The analysis that follows turns on two things: the evidence submitted by

Sullivan and what the video recordings of each use of force shows (or does not show).

As set out above, Sullivan’s initial filing in this case – the complaint – is

verified, through an Unsworn Declaration in which Sullivan “declare[s] under

penalty of perjury that the above and forgoing is true and correct.” Dkt. No. 3 at 8-9.

And Sullivan filed undated witness statements concerning interactions between

Sullivan and Nicholson submitted by two fellow Dallas jail inmates, both sworn under

penalty of perjury. See Dkt. No. 62.

But none of Sullivan’s filings liberally construed as amending the complaint

(to name then unidentified defendants) are verified. See Dkt. Nos. 12-14, 18, & 26.

Nor did Sullivan submit evidence in support of his opposition to the summary

judgment motions. See Dkt. Nos. 94 & 95.

Still, allegations that are sworn to be correct under penalty of perjury will

count as competent summary judgment evidence. See Hart, 343 F.3d at 765; Stewart

v. Guzman, 555 F. App’x 425, 431-32 (5th Cir. 2014) (per curiam) (“[T]he district court

erroneously found the unsworn affidavits Stewart proffered as well as the factual

allegations in Stewart’s complaint to be inadequate summary judgment evidence.

While unsworn affidavits are usually insufficient to raise a genuine issue of material

fact, Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013), an ‘unsworn

declaration ... in writing of [a] person which is subscribed by him, as true under

penalty of perjury and dated’ may substitute for a sworn declaration. 28 U.S.C. §

1746. Stewart attached a signed declaration to his complaint, stating that, ‘under the

penalty of perjury,’ the facts alleged in his complaint were ‘true and correct.’

Moreover, Stewart relied on his two unsworn declarations and multiple unsworn

affidavits from fellow inmates, which contained declarations that they were ‘true

under penalty of perjury[ ] and dated.’ Therefore, we will consider the facts Stewart

alleges in his verified complaint, his two unsworn declarations, as well as the

unsworn affidavits when determining whether he raised a genuine issue of material

fact.” (citations omitted)).

But Sullivan’s best version of the disputed facts supported by evidence also

must not be “utterly discredited” or “blatantly contradicted” by the video recordings.

Scott, 550 U.S. at 380.

Even so, “Scott was not an invitation for trial courts to abandon the standard

principles of summary judgment by making credibility determinations or otherwise

weighing the parties’ opposing evidence against each other any time a video is

introduced into evidence.” Aguirre v. City of San Antonio, 995 F.3d 395, 410 (5th Cir.

2021) (citing Darden v. City of Fort Worth, Tex., 880 F.3d 722, 730 (5th Cir. 2018)).

“Rather, Scott was an exceptional case with an extremely limited holding” –

“Only when the record eliminates any feasible claim that the nonmovant’s account of

events is true may a court disregard the normal summary judgment rule that it must

credit that party’s account if it is supported by sufficient evidence,” which “is a

difficult and demanding standard.” Id. at 410-11 (cleaned up).

For example, where a video does not capture “every particular element of [an]

altercation” it would not necessarily “blatantly contradict [a plaintiff’s] version of the

facts” supported by evidence. Ramirez v. Martinez, 716 F.3d 369, 374-75 (5th Cir.

2013) (“Martinez asserts we must disregard Ramirez’s version of events on summary

judgment because the video shows Ramirez tried to punch him. Although the video

shows the struggle described above, it does not clearly show a punch or every

particular element of the altercation.”).

Starting with the first alleged use of force here, Sullivan swears that Nicholson

“repeatedly chest bumped me and pushed me in my chest area while in the visitation

hallway on the 2nd floor.” Dkt. No. 3 at 4. But the surveillance camera footage of this

incident, which lacks audio, captures the entire physical altercation between Sullivan

and Nicholson in the hallway and reflects that the two circled each other and that

each was in the other’s face, but the video does not depict physical contact between

the two that was more than slight, so that, while their chests may have touched, there

were neither repeated chest bumps nor a push in the chest before two other jailers

separate the two. See Dkt. No. 64-1, Appx. 001, Jail surveillance video 2P10, at 2:40-

3:10. Nor do the sworn statements from Sullivan’s fellow inmates offer details that

refute or otherwise call into question the video depiction of this force incident.

And, so, Sullivan has not shown that his version of this event supported by

evidence that is not contradicted by the record reflects an obviously unconstitutional

excessive use of force under the standards established by Kingsley.

Put another way, properly considering the evidence at summary judgment

objectively, Sullivan fails to demonstrate “that a governmental action [was] not

rationally related to a legitimate governmental objective” or “that [such an action

was] excessive in relation to that purpose.” Kingsley, 576 U.S. at 398.

Turning to the second alleged use of force, the undersigned starts with what

Sullivan swears happened, keeping in mind that the Court must consider each

officer’s actions separately. See Meadours, 483 F.3d at 421-22. And, under this

requirement – and even though Sullivan was allowed discovery before responding to

the summary judgment motion – the only evidence that he offers as to this incident

(his verified complaint) identifies only two officers: Garcia and Peterson. See Dkt. No.

3 at 5.

Sullivan swears that Garcia “pulled out his mace and sprayed me continuously.

After ordering me to the floor I attempted to kneel but was sprayed with more gas

while I was facing the wall and walking away from the conflict I was punched by

Officer Garcia in my head and was thrown to the ground.” Id. While, as Sullivan also

swears, Peterson yelled “for other officers to stop the assault.” Id.

Although the defendants have offered video footage of this force incident from

two separate angles, see Dkt. No. 64-1, Appx. 002 & 003, Jail surveillance video 2P08-

2P13, the surveillance videos do not clearly capture what occurred inside the cell,

such that “contrary video evidence provides so much clarity that a reasonable jury

could not believe [Sullivan’s] account,” Darden, 880 F.3d at 730 (citing Ramirez, 716

F.3d at 374).

And, while other events depicted on the videos do blatantly contradict other

details of what Sullivan swears occurred – in particular, that he was “pulled into the

dayroom where my hair continued to be pulled” and that he “was forced chest first

into a table with a knee in [his] back,” Dkt. No. 3 at 5; see Dkt. No. 64-1, Appx. 002,

Jail surveillance video 2P08-2P13 at 15:00-17:00 – to use these depictions to reject

Sullivan’s evidence not blatantly contradicted by video footage would amount to

“making credibility determinations,” which, even if Scott applied to this force

incident, it would not allow. Aguirre, 995 F.3d at 410.

And, so, Sullivan’s best version of this event supported by evidence that is not

contradicted by the record is that one officer (Garcia) “punched [Sullivan] in [his]

head” while Sullivan was “walking away from the conflict” and that Garcia also

“sprayed [Sullivan] with more gas while [he] was facing the wall, while another officer

(Peterson) yelled “for other officers to stop the assault.” Dkt. No. 3 at 5.

This evidence, viewed objectively, could, with additional context, demonstrate

governmental actions “not rationally related to a legitimate governmental objective”

or actions “excessive in relation to that purpose.” Kingsley, 576 U.S. at 398. But, even

with a fuller context, that would only meet one prong of the qualified immunity

standard.

And, as to this allegedly excessive force, Sullivan fails to offer the Court any

authority as to the second prong, to show that, if his verified allegations support a

violation of federal law, there was a violation of clearly established law.

“[T]he question whether an officer has used excessive force ‘requires careful

attention to the facts and circumstances of each particular case,’” Kisela v. Hughes,

584 U.S. 100, 103 (2018) (per curiam) (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)).

Accordingly, “[t]he ‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Id. (quoting Graham, 490 U.S. at 396).

“And ‘[t]he calculus of reasonableness must embody allowance for the fact that

[law enforcement] officers are often forced to make split-second judgments – in

circumstances that are tense, uncertain, and rapidly evolving – about the amount of

force that is necessary in a particular situation.” Id. (quoting Graham, 490 U.S. at

396-97).

And, so, “overcoming qualified immunity is especially difficult in excessive-

force cases” – “an area of the law in which the result depends very much on the facts

of each case, and thus [law enforcement] officers are entitled to qualified immunity

unless existing precedent squarely governs the specific facts at issue.” Morrow, 917

F.3d at 876 (cleaned up); cf. Henderson v. Harris Cnty., Tex., 51 F.4th 125, 132 (5th

Cir. 2022) (per curiam) (concluding that the fair notice “hurdle is even higher when

the plaintiff alleges a Fourth Amendment violation”); Perry v. Mendoza, 83 F.4th 313,

319 (5th Cir. 2023) (“Especially when evaluating qualified immunity in the Fourth

Amendment context, we look for precedent that squarely governs the specific facts at

issue.” (cleaned up)).

Still, “[n]o doubt ‘obvious’ excessive force cases can arise. But they are so rare

that the Supreme Court has never identified one in the context of excessive force.”

Harmon v. City of Arlington, Tex., 16 F.4th 1159, 1167 (5th Cir. 2021) (footnote

omitted); cf. Salazar v. Molina, 37 F.4th 278, 286 (5th Cir. 2022) (“By citing no

factually similar Supreme Court cases, Salazar effectively concedes that Supreme

Court precedent offers him no help. He turns instead to Fifth Circuit excessive-force

cases. Even on the assumption that Fifth Circuit precedent can create clearly

established law, none of Salazar’s cases is a close enough fit.” (citation omitted)).

And, here, the skeletal facts that Sullivan offers to support his version of the

second force incident make this case particularly ill-suited to breaking new legal

ground by recognizing that those facts show an obvious excessive force violation.

Instead, Sullivan’s burden as to the fair notice prong – one that he has not carried –

was to show that “existing precedent squarely governs the specific facts at issue.”

Morrow, 917 F.3d at 876.

And, so, the Court should conclude that all the Officers are entitled to summary

judgment on qualified immunity and dismiss the claims against them with prejudice.

The undersigned turns finally to Nurse Smith.

As to the medical attention that he received at the jail following the second

force incident, Sullivan swears that he was initially “denied” “medical attention.” Dkt.

No. 3 at 5 (“I was then escorted to the nurse on the 2nd floor where no aid was given.

I repeatedly told the nurse I blacked out and had a pounding headache, cuts and

lesions.”).

But Sullivan then swears that he was taken “back to medical where they took

pictures, cleaned blood from my busted head and documented my injuries” and that,

the next day, after complaining of a concussion, he was taken to the hospital. Id.

As such, even if the Court accepts this version as what happened, such that

Nurse Smith was on duty each time that Sullivan was taken to medical, Sullivan has

not shown that Nurse Smith committed a clearly established violation of federal law.

Following Kingsley, “this circuit has continued to apply a subjective deliberate

indifference standard in non-excessive-force actions alleging a violation of a pretrial

detainee’s constitutional rights based on episodic acts or omissions.” Cope v. Coleman

Cnty., No. 23-10414, 2024 WL 3177781, at *5 n.7 (5th Cir. June 26, 2024) (per curiam)

(citing Alderson, 848 F.3d at 419 & n.4).

And, so, “[w]here the claimed violation of [a] Fourteenth Amendment right

turns on alleged acts or omissions of an official, as in this action, the question is

whether the ‘official breached his constitutional duty to tend to the basic human

needs of persons in his charge.’” Edmiston v. Borrego, 75 F.4th 551, 558 (5th Cir.

2023) (quoting Hare v. City of Corinth, 74 F.3d 633, 645 (5th Cir. 1996) (en banc)).

“[T]o satisfy this high standard, plaintiff must [show] both that the official was

aware of facts from which the inference could be drawn that a substantial risk of

serious harm existed and that he also drew the inference. An official with such

knowledge shows a deliberate indifference to that risk by failing to take reasonable

measures to abate it.” Id. at 559 (cleaned up).

And deliberate indifference “‘is an extremely high standard to meet’ but can be

satisfied by a ‘wanton disregard for [an inmate’s] serious medical needs.’” Cope, 3

F.4th at 207 (quoting Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th

Cir. 2001)).

Put another way, “[d]eliberate indifference is a degree of culpability beyond

mere negligence or even gross negligence; it must amount to an intentional choice,

not merely an unintentionally negligent oversight.” Alvarez v. City of Brownsville,

904 F.3d 382, 391 (5th Cir. 2018) (en banc); accord James v. Harris Cnty., 577 F.3d

612, 617-18 (5th Cir. 2009); Rhyne v. Henderson Cnty., 973 F.2d 386, 392 (5th Cir.

1992); see also Kelson v. Clark, 1 F.4th 411, 417 (5th Cir. 2021) (“[D]eliberate

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

response to a substantial risk of serious harm. Rather, the 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.” (cleaned up)).

And, alone, a disagreement with medical treatment or a failure to provide

additional medical treatment does not constitute deliberate indifference. See Domino,

239 F.3d at 756; Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).

Applying these standards to the evidence supporting Sullivan’s best version of

the disputed facts supporting a claim against Nurse Smith, he has not shown an

obvious violation of federal law – again, Sullivan offers no case law to clearly establish

a constitutional violation specific to the deliberate indifference that he swears to.

And, so, because Sullivan fails to offer any evidence that the jail wantonly

disregarded a serious medical need, even based on his best version of the disputed

facts, the Court should conclude that Nurse Smith is entitled to summary judgment

on qualified immunity and dismiss the claims against her with prejudice.

Recommendation

The Court should enter a final judgment granting the motions for summary

judgment on qualified immunity [Dkt. Nos. 50 & 63], dismissing the claims against

Defendants Geronimo Garcia, Martin Nicholson, Emmanuel Hooks, Charles

Peterson, Terry Speight, and Mariama Smith, LVN with prejudice, and dismissing

with prejudice, under its screening authority, the claims against the Defendants

Dallas County Sheriff’s Department and Detective Moffit.

A copy of these findings, conclusions, and recommendation shall be served on

all parties in the manner provided by law. Any party who objects to any part of these

findings, conclusions, and recommendation must file specific written objections

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the objection, and

specify the place in the magistrate judge’s findings, conclusions, and recommendation

where the disputed determination is found. An objection that merely incorporates by

reference or refers to the briefing before the magistrate judge is not specific. Failure

to file specific written objections will bar the aggrieved party from appealing the

factual findings and legal conclusions of the magistrate judge that are accepted or

adopted by the district court, except upon grounds of plain error. See Douglass v.

United Servs. Auto. Assn, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: October 7, 2024

Lope

UNITED STATES MAGISTRATE JUDGE

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