Striblin v. Burkhart

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

JAMES STRIBLIN,

Institutional ID No. 2178232

Plaintiff,

V. No. 1:23-CV-00094-H

CLAYTON BURKHART, et al.,

Defendants.

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The United States Magistrate Judge made findings, conclusions, and a

recommendation (FCR) in this case. Dkt. No. 68. Plaintiff filed objections, Dkt. No. 74,

which Defendants move to strike as untimely. Dkt. No. 75. As explained below, the Court

strikes, and alternatively, overrules Plaintiff's objections. And, after appropriate review, the

Court accepts and adopts the Magistrate Judge’s FCR. Thus, the Court grants Defendants

Burkhart, Sanders, Counts, and Norton’s motion for summary judgment, denies Plaintiff's

motion for summary judgment, and dismisses Plaintiffs claims against Defendants Boulder

and Ferguson for failure to prosecute.

i. Background

Plaintiff James Striblin, a self-represented state prisoner proceeding in forma paupens,

brought this civil action under 42 U.S.C. § 1983 against various officers at TDCJ’s

Robertson Unit, complaining about an altercation with some of the officers and the events

that followed. After judicial screening, the only claims that remain in this case are

Plaintiffs claims against Defendants Burkhart and Sanders for excessive use of force and his

claims against Defendants Counts, Norton, Boulder, and Ferguson for deprivation of food.

Defendants Boulder and Ferguson could not be identified or located based on the

available information, so they were never served and have not appeared. Defendants

Burkhart, Sanders, Counts, and Norton filed a motion for summary judgment on qualified

immunity, with a brief and appendix in support. Dkt. Nos. 59, 60, 61. Plaintiff filed a

bare-bones motion for summary judgment with his response to the appearing defendants’

motion for summary judgment. Dkt. No. 65. He primarily argued that the defendants

omitted “essential evidence” from their motion for summary judgment—the surveillance

video showing the altercation between Plaintiff and Burkhart that led to the use of force. □□□

He insisted that the surveillance video would prove his claims.

The Magistrate Judge granted Plaintiffs request to supplement the record with the

surveillance video, which the Court received with other authenticated records during

judicial screening. Dkt. No. 68. But the Magistrate Judge found that the video did not

support Plaintiff's claims and recommended that the Court deny Plaintiff's motion for

summary judgment and grant Defendants’ motion for summary judgment. Jd. The

Magistrate Judge also recommended that the Court dismiss Plaintiff's claims against

Defendants Boulder and Ferguson for want of prosecution, unless Plaintiff promptly

provided the information required to effect service of process on them.

On Plaintiffs motion, the Court briefly stayed the case and extended Plaintiff's

deadline to object to the FCR until April 7, 2025, to give Plaintiff an opportunity to review

the video evidence. Dkt. No. 72. The Court lifted the stay and reopened the case on April

17, 2025, noting that Plaintiff did not object or seek another extension of time to do so, and

sufficient time had passed to ensure the operation of the mailbox rule. Dkt. No. 73. The

next day, the Court received Plaintiff's objections. Dkt. No. 74. Defendants moved to

strike Plaintiff's objections as untimely. Dkt. No. 75.

As explained below, the Court finds that Plaintiffs objections were untimely and

grants Defendants’ motion to strike. Alternatively, even if the objections were timely filed,

the Court overrules them. And, after appropriate review, the Court accepts and adopts the

Magistrate Judge’s FCR. Thus, the Court grants Defendants Burkhart, Sanders, Counts,

and Norton’s motion for summary judgment, denies Plaintiffs motion for summary

judgment, and dismisses Plaintiff's claims against Defendants Boulder and Ferguson for

failure to prosecute.

Analysis

“The district judge must determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P. 72(a)(3); see 28 U.S.C.

§ 636(b)(1). In contrast, the district judge reviews any unobjected-to findings, conclusions,

and recommendations for plain error.

A. Defendants Boulder and Ferguson

Plaintiff did not object to the Magistrate Judge’s recommendation that the Court

dismiss his claims against Defendants Boulder and Ferguson, nor did he provide additional

information to aid in identifying or locating them. The Court independently examined the

record in this case and the Magistrate Judge’s recommended disposition of these claims.

Finding no plain error, the Court accepts and adopts those portions of the Magistrate

Judge’s report. Thus, Plaintiff's claims against Defendants Boulder and Ferguson are

dismissed without prejudice’ for want of prosecution.

B. Defendants’ motion to strike

Plaintiff objected to the remaining portions of the Magistrate Judge’s FCR. Dkt. No.

74. But Defendants Burkhart, Sanders, Norton, and Counts move to strike the objections as

untimely. Dkt. No. 76.

Plaintiff dated his objections April 5, 2025—two days before his deadline for filing

them. Dkt. No. 74. But Plaintiff did not specify the date he delivered the objections to

prison officials for mailing. See id.; Cooper v. Brookshire, 70 F.3d 377, 379 (Sth Cir. 1995)

(finding that prisoner’s pro se pleading may be deemed “filed” as of the date he deposited it

in the prison mail system). The envelope bearing his objections is postmarked April 15,

2025—ten days after the date he wrote on the pleading and more than a week after the

deadline passed. /d. The Court received the objections three days later, on April 18,

2025—eleven days after the deadline.

After reviewing the record, including other filings by Plaintiff,’ the Court concludes

that Plaintiffs objections were not filed before the extended April 7 deadline. Thus, the

Court grants Defendants’ motion to strike them as untimely. As a result, the Court need

only review the Magistrate Judge’s report for plain error. And after an independent review,

' The Court recognizes that this dismissal may operate with prejudice because of the application of

the statute of limitations.

? For example, Plaintiff's motion for summary judgment and response to Defendants’ motion for

summary judgment, Dkt. No. 65, includes a declaration that he placed it in the prison mailbox on

August 25, 2024. The envelope is postmarked the next day, August 26, 2024, and the document was

received by the Clerk three days later, on August 29, 2024. Similarly, other motions filed by Plaintiff

include a declaration of the date of mailing, and each is postmarked within a day or two, and

received by the Clerk in another few days. See, e.g., Dkt. Nos. 52, 57, 62.

the Court finds no plain error in the Magistrate Judge’s recommendation. Thus, the Court

accepts and adopts the Magistrate Judge’s report, grants Defendants’ motion for summary

judgment, and denies Plaintiffs motion for summary judgment.

c. Plaintiff's objections

Even if Plaintiffs objections were timely, the Court would overrule them. And, even

after conducting a de novo review, the Court finds that the Magistrate Judge’s findings,

conclusions, and recommendations are correct.

is Deprivation-of-food claim

Plaintiff's objection to the dismissal of his deprivation-of-food claim consists of a

single, conclusory sentence, insisting that “there was evidence that [he] lost 15 pounds in 7

days” as a result of his being denied meals. But he does not actually point to any specific

evidence in the record to support his claim. And, just as the Magistrate Judge found,

Plaintiff's unsubstantiated assertion is not enough to create a genuine issue of material fact

in light of the record evidence showing that he did receive food and that he suffered no

injury above a de minimis level. Additionally, Plaintiff failed to address the Magistrate

Judge’s finding that Plaintiff's specific factual allegations against Defendants Counts and

Norton are “thin” and fail to support a finding of subjective deliberate indifference. See Dkt.

No. 68 at 37-39. Thus, Plaintiff's objection is overruled, and his deprivation-of-food claims

against Defendants Counts and Norton are dismissed with prejudice.

ii. Excessive-force claim

Plaintiff focuses most of his energy on the Magistrate Judge’s analysis of his

excessive-force claim against Defendants Burkhart and Sanders. Plaintiff contends that the

Magistrate Judge’s conclusions rest on improper credibility determinations. Dkt. No. 74.

Plaintiff asserts that the Magistrate Judge should not have discredited his allegations

because the video evidence did not directly contradict them. /d.

But the video does blatantly contradict many of Plaintiffs claims. And, as discussed

by the Magistrate Judge, although some of the altercation cannot be clearly seen on the

video, what can be seen removes any genuine dispute over the material facts.

First, the video shows that Plaintiff and Defendant Burkhart were having a calm,

unanimated discussion when Plaintiff sucker punched Burkhart in the face with a closed fist,

without any warning or apparent provocation, hard enough that Burkhart’s head snapped

backward violently. As discussed by the Magistrate Judge, this blatantly contradicts

Plaintiffs assertion that he did not strike Burkhart but merely tried to snatch his transfer bag

away from the officer. Plaintiff was later charged with assaulting Burkhart, pled no contest,

was found guilty, and that conviction has not been overturned. The events that followed

were all part of the same violent encounter.

Next, after a moment of stunned inaction, Burkhart strikes back at Plaintiff, and the

video shows that other officers, including Defendant Sanders, swarm in and take Plaintiff to

the ground. As described by the Magistrate Judge, the video shows that it takes the

responding officers about a minute to gain full control of Plaintiff and apply arm and leg

restraints. Plaintiff contends that, after he was fully restrained and no longer resisting,

Defendant Burkhart choked him into unconsciousness as Defendant Sanders hit him with a

baton. Then, Plaintiff alleges that after he regained consciousness, Defendant Burkhart

kicked him in the face. The problem for Plaintiff is that the video shows that, about a

minute after Plaintiff is taken to the ground, and as soon as he is fully restrained, Defendant

Burkhart stands up and promptly walks away, followed quickly by Defendant Sanders.

Plaintiff's objections repeat his earlier arguments, which the Magistrate Judge

thoroughly addressed. As the Magistrate Judge concluded, other than Plaintiff's

unsubstantiated allegation, there is nothing in the summary judgment evidence, including

the video offered by Plaintiff, from which a reasonable juror could conclude that Plaintiff

was immediately passive and restrained upon hitting the ground. Nor is there evidence

from which a reasonable juror could conclude that the alleged chokehold, if any, was

unconstitutional in either its use, duration, or proportionality to the need. Dkt. No. 68 at

19,

The Magistrate Judge correctly acknowledged that the video does not clearly depict

Defendant Burkhart’s feet as he left Plaintiff in the hands of the other responding officers.

So, the video does not conclusively disprove Plaintiffs allegation that Burkhart kicked him

as he walked away. But the Magistrate Judge’s analysis does not stop there. He goes on to

discuss the alleged kick in light of the applicable law, with an emphasis on Plaintiffs

pleadings. Specifically, the Magistrate Judge concluded that Plaintiff had failed to attribute

any of his injuries to the alleged kick. And although Plaintiff had sustained more than de

minimis injuries by the time the altercation was done, he acknowledged that both officers

and inmates get hurt in takedowns like his.

In sum, Plaintiff disagrees with the Magistrate Judge’s conclusions, but he does not

show that the Magistrate Judge made improper credibility determinations in light of the

video evidence or that he failed to draw all reasonable inferences in Plaintiff's favor. Nor

does Plaintiff show that the Magistrate Judge’s thorough consideration of the facts in light

of each of the Hudson’ factors was incorrect. Thus, as discussed by the Magistrate Judge,

3 See Hudson v. McMillian, 503 U.S. 1, 7 (1992).

Plaintiff has not overcome Defendant Burkhart and Sanders’ entitlement to qualified

immunity.

Conclusion

For these reasons, the Court accepts and adopts the findings, conclusions, and

recommendation of the United States Magistrate Judge. As a result, the Court dismisses

Plaintiff's claims against Defendants Boulder and Ferguson for failure to prosecute, denies

Plaintiff's motion for summary judgment, and grants Defendants Burkhart, Sanders,

Counts, and Norton’s motion for summary judgment. Plaintiffs complaint and all

remaining claims are dismissed with prejudice. The Court will enter judgment accordingly.

So ordered.

Dated August 4 , 2025,

abit HENDRIX

United States District Judge