Ochoa v. Marron

Southern District of Texas

ENTERED

August 18, 2025

UNITED STATES DISTRICT COURT Nathan □□□□□□□□ Clerk

SOUTHERN DISTRICT OF TEXAS □

HOUSTON DIVISION

OSCAR OCHOA, IIL, § :

(TDCJ # 2450859; SPN # 02876115), §

§

Plaintiff; §

§

Vs. § CIVIL ACTION NO. H-23-3355

§

HARRIS COUNTY SHERIFF §

“DEPUTIES, et al., §

§

Defendants. §

MEMORANDUM OPNION AND ORDER

Plaintiff Oscar Ochoa, III, sued Harris County and Harris County Jail

Detention Officers Ricardo Marron, Demitre Johnson, Samuel Gamez, and Brandon

Brezik under 42 U.S.C. § 1983, alleging that they violated his constitutional rights

while he was a pretrial detainee at the Jail. (Dkt. 9). The Court has dismissed all of

the defendants except Marron. (Dkts. 23, 30). Marron has now filed a motion for

summary judgment, supported by numerous attachments. (Dkts. 42, 43). Ochoa

filed a response, which is also supported by numerous exhibits. (Dkts. 44, 45).

Marron filed a timely reply. (Dkt. 47). Having reviewed Marron’s motion, the

response and reply, the parties’ exhibits, the record, and the law, the Court denies

the motion for summary judgment for the reasons explained below.

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1 BACKGROUND

In April 2022, Ochoa was a pretrial detainee in the Harris County Jail.

According to his sworn statement given as part of the Harris County Internal Affairs

investigation, Ochoa visited with his father on April 7, 2022. (Dkt. 44-1, p. 1). As

he was returning to his cellblock after that visit, he stopped to talk with another

inmate through a cell door. (/d.). A detention officer—later determined to be

Johnson—stopped Ochoa as he was talking, searched him, took his Nike Air Max

shoes, and then placed him in a holding cell. (/d.). Ochoa fell asleep in the holding

cell. Ud). .

When Ochoa woke up, Johnson came back and told him that he needed to

return to his cellblock. (d.). Johnson began to walk Ochoa, who was not

handcuffed, to the 3F1 cellblock where Ochoa was assigned. (/d.). As they walked,

Ochoa asked when his shoes would be returned, and Johnson said the shoes would

not be returned because they were contraband. (d.). When Ochoa protested that he

had purchased the shoes, Johnson put his hand on Ochoa’s chest and pushed him □

against the wall. (/d.). Ochoa told Johnson to take his hands off him, and Johnson

responded, “What are you going to do if I don’t?” (d.). Other officers, including

Marron, approached and Johnson then asked, “Do you know what the vestibule is?”

(Id.). Ochoa responded that “I know what it is and I know what y’all do there.”

(Id.).

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The “vestibule” is a small, locked space between the main hallway and the

entrance to a cellblock. (Dkt. 44-2, p. 2). A locked door from the hallway leads into

the vestibule. (/d.) Another locked door across from the hallway door leads into the

cellblock. (/d.) The vestibule functions as a sallyport of sorts between the hallway □

and the cellblock, and the door to the cellblock will not open until the door to the

hallway is closed. (/d. at 4-6). There is evidence that these vestibules have been

used by detention officers as a place to assault detainees because the vestibules have

no cameras. (Dkts. 44-2, pp. 2-3; 48).

After the exchange about the vestibule, Johnson released Ochoa, and Ochoa

began walking toward his cellblock. (Dkt. 44-1, p. 1). Apparently neither Johnson

nor any other officer believed that Ochoa needed to be restrained, and he walked

toward his cellblock without handcuffs or even an arm hold. (/d.). When the group

got to the cellblock, the door from the hallway into the vestibule opened. (/d.).

Marron entered first. (/d.). Ochoa followed him and faced the opposite wall where

the door to the cellblock was. (/d.). Marron was on Ochoa’s left side. (/d.). Johnson

stepped in front of Ochoa and turned to face him. (/d.). While Ochoa had his hands

behind his back, Johnson slapped Ochoa across the face. (/d.). Ochoa laughed, at

which point Marron punched Ochoa four times on the left side of his head. (/d.).

Another officer who was behind Marron said, “that’s enough, that’s enough” and

grabbed Ochoa to keep him from falling to the ground. (/d. at 1-2). Another officer

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then handcuffed Ochoa and escorted him to the medical clinic. (7d. at 2). The clinic

“cleaned up” Ochoa and sent him back to the holding cell. Ud.). The next morning,

Ochoa was transferred to a new cellblock. (Id). When Ochoa’s nose continued to

bleed, he was taken back to the clinic and then to Ben Taub Hospital for further

evaluation. (Id).

Ochoa’s deposition contains some additional information. (Dkt. 42-3). Inhis |

- deposition, Ochoa testified that after a visit with his father, he was walking back to

his dorm. (/d. at 15). He pushed the button to re-enter his dorm, but the officer in

charge of operating the door was sleeping and did not see or hear him. (/d.). As

Ochoa waited for the door to open, another inmate called to him from another door.

(Id. at 15-16). As Ochoa turned to that inmate, Johnson arrived in the area. (/d. at

16). Johnson called Ochoa over, apparently believing that Ochoa was out of place.

(Id.). Ochoa went to Johnson, Johnson searched him for contraband, took his shoes,

and placed him in a holding cell, where Ochoa fell asleep. (Id. at 16-17).

When Ochoa awakened, Johnson was there again and told Ochoa that he

needed to return to his dorm. (/d.). At that point, Ochoa asked about his shoes. (/d.

at 18). Ochoa testified that he has pre-existing foot issues that are aggravated ifhe _

does not wear shoes. (/d.). When Ochoa tried to tell Johnson that he needed his

shoes, Johnson told him that he was not getting his shoes back and that he would

have to walk back to his dorm in his socks. (/d. at 18-19). Ochoa told Johnson that

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he had purchased the shoes and brought them with him to jail and that he had been

allowed to have them for over two years. (/d. at 18-20). Despite this, Johnson told

Ochoa that his shoes had been confiscated as contraband and would not be returned.

(d.).

As Johnson began walking Ochoa to his dorm, Ochoa told Johnson that he

would file a grievance about having his shoes confiscated. (Ud. at 19). Johnson

responded by pushing Ochoa up against the hallway wall. (/d.). Ochoa then asked

to speak with a shift supervisor or sergeant about his shoes. (/d. at 22). Johnson

denied this request. (/d.).

When Johnson pushed Ochoa against the wall, other officers, including

Marron, Brezik, and Gamez, came to assist Johnson. (/d. at 23). By that time,

Johnson had put his hand on Ochoa’s chest. (/d.). Ochoa told Johnson that there

was no reason for Johnson to touch Ochoa, and he told Johnson to “get your hands

off me.” (/d.). Johnson replied, “What are you going to do ifI don’t?” Ud.). During

that exchange, Marron was standing behind Johnson, using mannerisms and facial

expressions to try to provoke Ochoa into violence. (/d. at 24). While that was going

on, Johnson asked Ochoa if he knew what the vestibule was. (Ud. at 25). Ochoa

responded that he did and that he knew what “y’all like to do in there.” (/d.).

Johnson released Ochoa, and Ochoa continued walking toward his cellblock with

the officers walking behind him. (/d.)

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When they got to the vestibule, Ochoa walked in, keeping his hands behind

his back. (/d.). He did not argue or threaten any of the officers, although he did

continue to ask to speak with a shift supervisor about his shoes. (/d. at 31-32).

Johnson then slapped Ochoa across the face and, immediately after that, Marron

struck him repeatedly with his fist. Ud. at 25-26, 29). Marron then laughed at Ochoa

and asked whether he “hit hard.” (/d. at 32). Ochoa testified that he believes Johnson

slapped him because he thought that Ochoa had been disrespectful by asking to speak

with a supervisor. (/d. at 35). Ochoa testified that Marron struck him for no reason

at all. Ud.). After the assault, Ochoa was escorted to the clinic, and he was later

taken to the hospital. (/d. at 39).

Both parties submitted video footage from the hallway on the night of the

incident in support of their positions. (Dkts. 42-1, 42-12, 48). These videos show

Johnson standing at the door of the holding cell waiting for Ochoa to come out.

When Ochoa leaves the holding cell, he is not handcuffed and he is not wearing

either shoes or Jail-issued slides. Ochoa walks down the hallway toward his

cellblock with his arms by his sides and Johnson following several feet behind. The

video does not have audio, but it is clear that Ochoa is talking or yelling.

At one point, Ochoa stops, turns around, and takes a few steps back toward

Johnson. Johnson immediately pushes Ochoa against the wall and holds his hand

on Ochoa’s chest. Within seconds, four other officers come to the hallway and

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surround Johnson and Ochoa. After less than a minute, Johnson removes his hand

from Ochoa and lets him move away from the wall. Ochoa then resumes walking in

the direction of his cellblock. Ochoa is surrounded by the officers, but he is not

handcuffed or otherwise restrained and he does not make any threatening

movements. It is clear from the video that he is still talking.

The video does not capture any of the events inside the vestibule, but it does

show Ochoa being led away from the vestibule after the assault. Ochoa is now

handcuffed, and he is brought into the elevator by only one officer. Ochoa’s nose is

bleeding, and there is a large amount of blood down the front of his shirt. No other

injuries are visible in the footage.

Matron prepared a Use-of-Force report the night of the incident, in which he

stated that when Ochoa entered the vestibule, Ochoa “immediately planted both of

his feet and tried to assault Detention Officer Johnson and Detention Officer Garry

with a closed left hand strike but was unsuccessful.” (Dkt. 45-6, p. 3). Marron

reported that he struck Ochoa twice with a closed fist on his left cheek to gain

compliance with his orders to place his hands behind his back. (d.). Marron

reported that despite the orders and punches, Ochoa continued to resist and

continued to try to assault the officers. (/d.).

On February 3, 2023, Marron gave a sworn statement as part of the Internal

Affairs investigation. (Dkts. 42-11; 45-7). In that statement, Marron said that he

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heard Ochoa yelling at Johnson as Ochoa and Johnson approached the third-floor

Floor Control Center. (Dkt. 42-11, p. 2). Marron joined Johnson, Gamez, and Garry

in walking Ochoa back to his cellblock. (/d.). As they were walking, Johnson asked

Ochoa if he knew what happens in the vestibule. (/d.). Ochoa turned and faced

Johnson and said something along the lines of, “I’ll beat your ass.” (/d.). Marron

responded in kind and admitted that he and Ochoa were yelling and cussing at each

other as they approached the vestibule. (/d.).

Ochoa entered the vestibule and stopped with his back to the wall. Ud.). The

officers entered the vestibule, with Marron on Ochoa’s left and Johnson and Garry

on Ochoa’s right. (/d.). Marron states that Ochoa was still yelling and “his hands

were by his side but he was moving them up and down and side to side as he talked.”

(id.). Marron felt threatened, so he struck Ochoa twice — once with his left hand and

once with his right. (/d. at 2-3). Despite these punches, Ochoa continued to yell and

bicker with Marron. (ld. at 3). After that, other officers handcuffed Ochoa. (Id.).

Marron did not recall Ochoa striking any officer or any other officer striking Ochoa.

(d.). .

Both parties have supported their positions with sworn statements given by

each of the other officers as part of the Internal Affairs investigation. Detention

Officer Demitre Johnson stated in his sworn statement that Ochoa became angry

when Johnson confiscated his shoes before placing him in the holding cell. (Dkts.

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42-10, p. 2; 45-4). Later, Johnson went back to the holding cell to walk Ochoa back

to his cellblock. (Dkt. 42-10, p. 2). As Johnson walked behind Ochoa, Ochoa was

threatening to fight with him. (/d.). Officers Marron, Brezik, Garry, and Gamez

came over to help him with Ochoa. (/d.).

When the group got to the vestibule, Garry and Marron entered, along with

Johnson and Ochoa. (/d.). The door from the vestibule to the hallway closed, but

the door from the vestibule into the cellblock did not open. (/d.). Marron grabbed

Ochoa’s shoulder and turned him toward the wall, but Ochoa pulled away. (ld.).

Ochoa started to explain why he was in holding, and he was talking with his hands, .

pointing toward the cell, and pointing toward the hallway. (/d.). Ochoa’s hands

were near Marron’s face, and Marron ordered Ochoa to keep his hands down more

than once. (/d.). Johnson said that he wanted to leave the vestibule “because I have

seen situations like this with Detention Officer Marron turn bad.” (/d.). As Johnson

started to leave, he saw Ochoa’s hand come toward the right side of his head. (/d.

at 2-3). Johnson heard Marron say, “Oh, you trying to hit my boy?” (/d. at 3).

Johnson turned and saw Marron strike Ochoa four or five times in the ribs and head.

(/d.). Garry and Johnson then grabbed Ochoa and placed him in handcuffs. (d.).

Detention Officer Brandon Brezik stated in his sworn statement that he was

standing at the North Sergeants’ Office on the third floor of the Jail when he heard

Ochoa threaten to “whoop” Johnson. ((Dkts. 42-5, p. 1; 44-6). Brezik walked over

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and joined Johnson, Marron, Garry, and Gamez in walking Ochoa to his cellblock.

(Dkt. 42-5, p. 1). As they walked, Brezik could hear Marron and Ochoa “bickering

back and forth.” (/d.).

When they arrived at the vestibule, Marron entered first. (/d.). Ochoa entered

next, with Garry, Johnson, and Brezik entering behind them. (d.). Ochoa was

facing the cell door, Garry and Johnson were side-by-side behind him, and Marron

was to Ochoa’s left. (/d.). Ochoa “quickly turned around,” and Marron struck

Ochoa twice on the right side of his head. (/d.). Brezik, stated, “Stop, that’s

enough.” (/d.). Ochoa laughed and said, “My gir] hits harder than that.” (/d.). Garry

pushed Ochoa against a wall and ordered him to place his hands behind his back.

(Id.). When Ochoa tried to push away from the wall, Garry slapped Ochoa once in

the face. (/d.). After the slap, Ochoa placed his hands behind his back and allowed

Gamez to handcuff him. (Ud. at 1-2). Brezik also did not see Ochoa try to strike any

of the detention officers, nor did he see Johnson slap Ochoa. (d. at 2).

Detention Officer Shawn Garry stated in his Internal Affairs interview that he

was walking with Ochoa from the holding cell to his cellblock along with Marron,

Johnson, Gamez, and Brezik. (Dkts. 42-9, p. 2; 44-4). As they walked, Marron and

Ochoa “yelled and cussed at each other.” (Dkt. 42-9, p. 2). When they got to the □

vestibule, Ochoa entered and had his back to the wall. U/d.). Johnson and Marron

were to Ochoa’s left, with Marron between Johnson and Ochoa. (/d.). Garry was

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directly in front of Ochoa. (/d.). Johnson started to leave the vestibule while Ochoa

and Marron continued to yell at each other. (/d.). Ochoa was “talking with his

hands,” but as he put his hands behind his back, Marron struck Ochoa in the face

four or five times. (/d.). Ochoa’s knees buckled, and Marron grabbed Ochoa and

turned him toward the wall. (d.). Garry then pushed Ochoa against the wall and

handcuffed him. (/d.). The officers then led Ochoa out of the vestibule and turned

him over to Detention Officer Brown to be escorted to the clinic. (/d. at 2-3). Garry

states that Ochoa did not pose a threat to either Johnson or Marron at any time, and

he did not see any officer strike Ochoa except Marron. (d. at 3).

Detention Officer Samuel Gamez stated in his sworn statement that he was in

the Floor Control Center hallway when he heard Ochoa threaten Johnson, although

he did not hear exactly what was said. (Dkts. 42-7, p. 2; 45-1). Johnson, Garry, □

Marron, and Gamez stopped Ochoa and warned him not to threaten them again.

(Dkt. 42-7, p. 2). They then walked with Ochoa into the vestibule, where Ochoa

“verbally threatened us,” although Gamez did not recall specifically what Ochoa

said. (/d.). Ochoa was standing with his arms down by his sides. (/d.). Marron told

Ochoa that it was not a good idea to threaten the officers, and he then struck Ochoa

two times in the face. (d.). The other officers then grabbed Ochoa’s arms,

handcuffed him, and took him out of the vestibule to go to the clinic. (/d.). Gamez

did not see Ochoa move his arms or swing at any officer at any time. (/d.).

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The Internal Affairs investigative report, which Ochoa offered in opposition

to the summary judgment motion, determined that the use of force against Ochoa

was “not within policy.” (Dkt. 45-1, p. 11). The case was referred to the Harris

County District Attorney’s Office, which resolved the matter after Johnson, Marron,

and Garry resigned their positions. (/d. at 12). None are eligible to be rehired. (/d.).

In his motion for summary judgment, Marron argues that he is entitled to

judgment in his favor because “his conduct did not violate Ochoa’s constitutional

rights. (Dkt. 42, p. 7). He contends that an analysis of the factors identified in =

Kingsley v. Hendrickson, 576 U.S. 389 (2015), shows that the force he used was not

constitutionally excessive. (/d. at 9). He also contends that because there was no

constitutional violation, he is entitled to qualified immunity. (Ud. at 7).

In response, Ochoa argues that genuine issues of material fact preclude the

entry of summary judgment. (Dkt. 44). Marron filed a reply, which relies on only

his statements and those of Johnson to argue that the evidence shows that he did not

use excessive force and so is entitled to summary judgment. (Dkt. 47).

Il. THE SUMMARY JUDGMENT STANDARD

Marron’s motion for summary judgment is considered under Federal Rule of

Civil Procedure 56. “Summary judgment is appropriate only if ‘the movant shows

that there is no genuine issue as to any material fact and the movant is entitled to

judgment as a matter of law.’” Tolan y. Cotton, 572 U.S. 650, 656-57 (2014) (per

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curiam) (quoting FED. R. Civ. P. 56(a)). “The movant bears the burden of identifying

those portions of the record it believes demonstrate the absence of a genuine issue

of material fact.” Triple Tee Golf Inc. v. Nike, Inc., 485 F.3d 253, 261 (Sth Cir.

2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). “A fact is

material if its resolution could affect the outcome of the action.” Dyer v. Houston,

964 F.3d 374, 379 (5th Cir. 2020) (quoting Sierra Club, Inc. v. Sandy Creek Energy

Assocs., L.P., 627 F.3d 134, 134 (Sth Cir. 2010)). “A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Westfall v. Luna, 903 F.3d 534, 546 (Sth Cir. 2018) (per curiam) (cleaned

up).

When considering a motion for summary judgment, the Court must view all

evidence and draw all inferences “in the light most favorable to the [nonmoving]

party.” Tolan, 572 U.S. at 657 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970)); see also Dyer, 964 F.3d at 380. When both parties have submitted

evidence that tends to show conflicting facts, “the evidence of the nonmovant is to

be believed, and all justifiable inferences are to be drawn in his favor.” Willis v.

Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995). However, if record

evidence clearly contradicts a party’s version of events, the Court “should not adopt.

that version of the facts for purposes of ruling on a motion for summary judgment.”

Waddleton v. Rodriguez, 750 F. App’x 248, 253-54 (Sth Cir. 2018) (per curiam)

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(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Further, the Court will not

consider the nonmoving party’s conclusory allegations and unsubstantiated □

assertions as evidence. See Little y. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc). After viewing the offered evidence in the light most favorable to

the nonmoving party, summary judgment may be granted only ifno genuine disputes

of fact exist and no reasonable jury could return a verdict for the nonmoving party.

See, e.g., Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th

Cir. 2000).

I. DISCUSSION

A. The Request to Strike Marron’s Motion for Summary Judgment

In his response to Marron’s motion, Ochoa asks the Court to strike the

summary-judgment motion as untimely filed. (Dkt. 44, p. 2). In his reply, counsel

for Marron explains that when he attempted to upload the motion onto the Court’s

CM/ECF system on June 18, 2025—\the due date—the filing was rejected. (Dkt. 47,

pp. 7-8). After several tries, counsel discovered that one of the exhibits was too

large, which was preventing the file from uploading. (/d. at 8). Counsel resized the

exhibit, and the motion with its exhibits was filed on June 19, 2025, at 12:24 a.m.

(Id.).

Federal Rule of Civil Procedure 6(b)(1)(B) permits the Court to extend time

even after the original time has expired when the party failed to timely act due to

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“excusable neglect.” The “excusable neglect” standard permits courts to accept late

filings “caused by inadvertence, mistake, or carelessness, as well as by intervening

circumstances beyond the party’s control.” Pioneer Inv. Servs. Co. v. Brunswick .

Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993); see also Adams v. Travelers Indem.

Co., 465 F.3d 156, 161 n.8 (Sth Cir. 2006) (applying the Pioneer standard for

excusable neglect to consideration of a Rule 6(b) motion).

While the Court does not condone waiting until just before midnight on the

due date to file motions, the Court finds that counsel’s 24-minute delay in filing the

motion due to a technical issue with the Court’s CM/ECF system was a circumstance

beyond counsel’s control that qualifies as excusable neglect. The Court also finds

that this technical issue qualifies as good cause under the Court’s scheduling order.

Notably, Ochoa does not allege that he was prejudiced by this brief delay in filing

the motion or its exhibits. Ochoa’s request to strike Marron’s motion for summary

judgment, included in his response to the summary-judgment motion, is denied.

B. ‘The Excessive Force Claim

Ochoa has sued Marron based on his alleged use of excessive force during the

events of April 7. Pretrial detainees like Ochoa have the right under the Fourteenth

Amendment’s Due Process Clause to be free from the use of excessive force. See

Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). “Force against a pretrial

detainee is ‘excessive’ and a violation of the Fourteenth Amendment when the force

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was objectively unreasonable.” Fairchild v. Coryell Cnty., Tex., 40 F.4th 359, 362

(5th Cir. 2022) (citing Kingsley, 576 U.S. at 396-97); see also Lombardo v. City of

St. Louis, Mo., 594 U.S. 464, 466 (2021) (per curiam). Whether the force applied is

objectively unreasonable “turns on the ‘facts and circumstances of each particular

case,’” and the Court considers reasonableness from the perspective of a reasonable

officer on the scene. Kingsley, 576 U.S. at 397 (quoting Graham v. Connor, 490 □

U.S. 386 (1989)). The Court looks only at the objective reasonableness of the force

used rather than any underlying intent or motivation on the part of the officers. See

Graham, 490 U.S. at 397.

Factors to consider regarding the reasonableness of the force used include “the

relationship between the need for force and amount of force used; the extent of the

plaintiff's injury; any effort made to temper or limit the amount of force; the severity

of the security problem at issue; the threat perceived by the officer; and whether the

plaintiff was actively resisting.” Lombardo, 594 U.S. at 467 (quoting Kingsley, 576

U.S. at 397). In addition, the Court considers the legitimate governmental interests

in managing the facility and the policies and practices that, in the jail officials’

judgment, are necessary to preserve order and discipline and to maintain institutional

security. See Kingsley, 576 U.S. at 397 (citing Bell v. Wolfish, 441 U.S. 520, 540,

547 (1979)).

Although reasonableness is considered from the perspective of a reasonable

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officer at the scene, that does not mean that the Court automatically accepts the

officer’s testimony about what happened and the need for the use of force. See

Tolan, 572 U.S. at 657. When considering a motion for summary judgment, the

Court must view all of the evidence in favor of the nonmoving party and determine

whether, if the facts are construed in the nonmoving party’s favor, the force used

was objectively reasonable. See Scott, 550 U.S. at 378. If “a jury could reach

different conclusions on a number of facts that impact the reasonableness calculus,”

and if the resolution of those factual disputes in favor of the nonmoving party could

show that the force used was objectively unreasonable, summary judgment is

inappropriate. See Fairchild, 40 F.4th at 363. Because Marron is the moving party,

the Court will construe the disputed evidence in favor of Ochoa and then consider

whether under that version of the facts, a jury could find that the force used was

objectively unreasonable.

The incident in question began with a dispute between Johnson and Ochoa

over Ochoa’s confiscated shoes. As Johnson was walking Ochoa back to his

cellblock, Ochoa stopped, turned to face Johnson, and continued a verbal dispute

with him. A jury could find that Ochoa’s act of turning around to confront Johnson

constituted resistance to Johnson’s order to Ochoa to return to his cellblock, but the

video evidence shows that any such resistance was neither physically threatening

nor violent. Instead, it was a verbal altercation that temporarily slowed Ochoa’s

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progress toward his cellblock. A jury could also reasonably find from the video

evidence that Ochoa’s resistance ended when Johnson pushed him against the wall

and when the other officers arrived at the scene. Marron’s contention that Ochoa

continued to resist the order to return to his cellblock after that time is directly

contradicted by the video evidence, and the Court will not adopt a version of the

facts that is clearly contradicted by the video evidence. In addition, a jury could find

that the officers’ decision to allow Ochoa to continue walking to his cellblock

without handcuffs or any other restraint—even after the confrontation against the _

hallway wall—shows that Ochoa had been subdued, his resistance had ended, and

he did not pose a threat to the officers or Jail security at that point.

No video evidence exists to document the events that occurred inside the

vestibule, and the statements from the five witnesses vary significantly. On the night

of the incident, Marron prepared a Use-of-Force report in which he stated that Ochoa

swung at Johnson and Garry with closed fists. Ten months later in his sworn

statement, Marron reported only that Ochoa was “moving his hands” and that he felt

threatened. Johnson partially corroborates Marron’s initial statement, saying that he

saw Ochoa’s right hand moving toward Johnson’s face as Johnson was trying to

leave the vestibule. But Garry stated in his sworn statement that Ochoa was only □

“talking with his hands,” that he did not swing or strike at anyone, and that he did

not pose a threat to any of the officers. Brezik and Gamez both swear that Ochoa

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had his hands down, did not attempt to swing at or hit anyone, and did not pose a

threat to any of the officers. Gamez also stated that Marron punched Ochoa without

warning.

How the jury resolves these factual disputes affects the analysis of whether

Marron’s use of force was objectively reasonable. Because the Court must construe

the facts in the light most favorable to the nonmoving party—Ochoa—at summary

judgment, the Court considers the Kingsley factors based on the version of events

that would exist if the jury resolved every dispute in favor of Ochoa.

1. The severity of the security problem and the threat perceived

by the officers.

Jail officials are justified in using some degree of force “in a good-faith effort

to maintain or restore discipline” when a prisoner refuses to cooperate with an

official’s legitimate orders. Sanchez v. Griffis, 569 F. Supp. 3d 496, 510 (W.D. Tex.

2021) (quoting Gonzales v. Rowe, No. 5:20-CV-052-BQ, 2020 WL 4811005, at *3

(N.D. Tex. July 27, 2020)). But a jury could reasonably find from the summary-

judgment evidence that the severity of the initial security problem was low. The

initial threat perceived by Johnson was Ochoa disobeying the order to return to his

cellblock. The undisputed video evidence shows that Johnson dealt with this threat

by pushing Ochoa against the wall and exchanging words with him. After the arrival

of additional officers, Johnson apparently believed that the security problem had

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_been resolved and the threat had subsided because he released Ochoa to continue

walking, unhandcuffed, back to his cellblock. While Ochoa appears to have

continued verbally complaining about his shoes, the video evidence does not show

him resisting the officers’ orders in any way. Nothing in the summary judgment

evidence shows that Ochoa did anything to escalate the situation or engage in further □

resistance before he entered the vestibule. From this evidence, a jury could

reasonably find that the security problem posed by Ochoa’s noncompliance with the □

order to return to his cellblock was resolved and that the officers viewed any

remaining threat as so low that neither handcuffs nor even an arm grip were

considered necessary.

But resolution of the factual disputes about exactly what happened in the

vestibule will determine whether Marron’s use of force was reasonable. If the jury

were to find that the only threat Ochoa posed resulted from his bickering with

Johnson and the brief confrontation along the way to the cellblock, Marron’s use of

force in the vestibule would be unreasonable because a perceived security threat

cannot justify the use of force beyond the time when that threat has subsided. See

Fairchild, 40 F Ath at 366; see also Timpa v. Dillard, 20 F.4th 1020, 1029 (Sth Cir.

2021) (“[W]hen a subject has been subdued—meaning, he lacks any means of

evading custody and does not pose a threat of immediate harm—the further use of

force is not justified.”). But if the jury were to find that some event occurred in the

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vestibule that created a renewed threat to officer safety, the use of additional force

may have been justified. Considering the evidence in the light most favorable to □

Ochoa, as is required at this stage of the proceedings, this Kingsley factor weighs in

favor of finding the use of force objectively unreasonable.

2. Whether Ochoa was actively resisting

Marron contends that there is evidence that Ochoa actively resisted lawful

orders throughout the entire walk through the hallway and into the vestibule and that

this resistance warranted the use of force in the vestibule. But a jury could find from

the video evidence that Ochoa stopped any active resistance once Johnson forced

him against the wall. After that time, the jury could find that Ochoa complied with

Johnson’s order and freely walked—without being handcuffed or otherwise

restrained—to the entrance of his cellblock.

In addition, factual disputes exist as to whether Ochoa renewed his resistance

in the vestibule or whether Marron punched him as punishment for his earlier

resistance. Ifa jury were to find that Ochoa renewed his resistance to the officers

once they entered the vestibule, Marron’s use of force may have been objectively

reasonable. But if the jury were to find that Ochoa was no longer resisting and that

Marron punched him as punishment for the earlier resistance, his actions would be

objectively unreasonable. As the Fifth Circuit has explained, “Force must be

reduced once a suspect has been subdued” and “summary judgment is inappropriate

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when the timing of the officer’s force may or may not have corresponded to the

timing of the subject’s resistance.” Joseph ex rel. Estate of Joseph v. Bartlett, 981

F.3d 319, 335 (5th Cir. 2020).

Because the Court must consider the Kingsley factors by viewing the evidence

in favor of Ochoa at this stage of the proceedings and because there is a view of the

evidence that would show that the Ochoa had been subdued and was no longer

actively resisting when Marron punched him, the Court considers this Kingsley

factor as weighing in favor of finding the use of force objectively unreasonable.

3. Any efforts to limit or temper the use of force

The only evidence on this factor is the sworn testimony from Gamez that

Marron punched Ochoa without warning while Ochoa had his hands by his sides and

posed no threat to any of the officers. No summary judgment evidence shows that

Marron took any steps to limit or temper his use of force once in the vestibule.

Because the Court must consider the Kingsley factors by viewing the evidence in □

favor of Ochoa at this stage of the proceedings and because there is no evidence that

Marron took any steps to temper or limit the use of force, the Court considers this

Kingsley factor as weighing in favor of the force being objectively unreasonable.

4. The extent of Ochoa’s injuries

Ochoa alleges that he suffered a bloody nose, cuts and bruises and a split lip,

swelling around his left eye, and swelling and injuries to his left ear because of the

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punches by Marron. The video evidence of Ochoa being escorted to the medical

clinic shows that his nose is bleeding and there is blood down the entire front of his

shirt. (Dkt. 48). Ochoa’s medical records show that after his initial assessment at

the medical clinic, he was transferred to Ben Taub Hospital for further assessment

and x-rays. (Dkt. 44-3). Those records show that the area around his left eye area □

was bruised and swollen, he had suffered a nosebleed, and his hearing was decreased

in his left ear, but there were no broken bones. (/d. at 3-4). The hospital prescribed

ibuprofen for his pain. (/d. at 4).

While Ochoa’s injuries may not be characterized as significant, a jury could ;

find that these multiple injuries that ultimately required evaluation at a public

hospital are more than de minimis. See Gomez v. Chandler, 163 F.3d 921, 924 (Sth

Cir. 1999) (noting that while a detainee must have suffered more than a de minimis

injury to support a claim for excessive force, “there is no categorical requirement

that the physical injury be significant, serious, or more than minor’). Further, courts

are to “decide excessive force claims based on the nature of the force rather than the

extent of the injury.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam).

Because the Court must consider the Kingsley factors by viewing the disputed

evidence in favor of Ochoa at this stage of the proceedings and because there is some

evidence from which a jury could find that Ochoa’s injuries were more than de

minimis, the Court considers this Kingsley factor as weighing in favor of finding the

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use of force objectively unreasonable.

5. The relationship between the need for force and the force

used

The Fifth Circuit has described this final Kingsley factor as the “core of the

excessive force injury: Was the amount of force proportional to the need for force?”

Fairchild, 40 F Ath at 366 (citing Kingsley, 576 U.S. at 397). The need for force

must be assessed based on the circumstances that existed at the time the force was

applied. Jd. at 367. Therefore, “a use of force that may begin as reasonably

necessary in order to obtain compliance may cease to be so as a suspect becomes

more compliant.” Tucker v. City of Shreveport, 998 F.3d 165, 181-82 (5th Cir.

2021); see also Lytle v. Bexar County, 560 F.3d 404, 413 (Sth Cir. 2009) (“[A]n

exercise of force that is reasonable at one moment can become unreasonable in the

next if the justification for the use of force has ceased.”).

A jury could find based on the video evidence that Ochoa’s initial resistance

ceased after Johnson pushed him against the wall. But a jury could find based on

Matron and Johnson’s statements that Ochoa began swinging his arms inside the

vestibule and so posed a renewed threat to the officers. If the jury made such a

finding, it could determine that the use of some force to stop Ochoa’s resistance and

ensure officer safety was appropriate. On the other hand, the jury could find based

on the statements by Ochoa, Brezik, Garry, and Gamez that there was no need for

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force to be used against Ochoa in the vestibule. Because the Court must consider □

the Kingsley factors by viewing the evidence in favor of Ochoa at this stage of the

proceedings and because a jury could find that there was no need for any force to be

used in the vestibule, the Court considers this Kingsley factor as weighing in favor

of finding the use of force objectively unreasonable.

In sum, when the disputed evidence is viewed in Ochoa’s favor, consideration □

of the Kingsley factors shows that the Marron’s use of force in the vestibule was

objectively unreasonable. And because a jury could find, based on its resolution of

the disputed evidence, that the use of force was objectively unreasonable, Marron is □

not entitled to summary judgment on his claim that he did not violate Ochoa’s

constitutional rights.

C. ‘The Defense of Qualified Immunity

In the alternative, Marron contends that even if there are genuine disputes of

material fact concerning whether he violated Ochoa’s constitutional rights, he is

nevertheless entitled to summary judgment on his defense of qualified immunity.

“Qualified immunity protects officers from suit unless their conduct violates

a clearly established right.” Austin v. City of Pasadena, Tex.,74 F.4th 312, 322 (Sth

Cir. 2023) (quoting Mace v. City of Palestine, 333 F.3d 621, 623 (Sth Cir. 2003));

see also Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). The test for qualified

immunity involves two steps: first, the Court considers “whether the undisputed facts

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and the disputed facts, accepting the plaintiffs’ version of the disputed facts as true,

constitute a violation of a constitutional right,” and second, the Court considers

“whether the defendant’s conduct was objectively reasonable in light of clearly

established law.” Carroll v. Ellington, 800 F.3d 154, 169 (Sth Cir. 2015) (cleaned

up). When the qualified immunity defense is raised, the plaintiff has the burden to

negate it. See Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017). But when a

defendant moves for summary judgment based on the defense of qualified immunity,

he “must be prepared to concede the best view of the facts to the plaintiff.” Freeman

v. Gore, 483 F.3d 404, 410 (Sth Cir. 2007) (quoting Gonzales v. Dallas County, 249

F.3d 406, 411 (5th Cir. 2001)). .

The best view of the evidence presented by the parties in this case is that

Ochoa had stopped resisting Johnson’s orders to return to his cellblock, that he was

neither resisting nor posing any threat to the officers once in the vestibule, and that

Marron punched him with no warning and for no reason except to punish him for his

earlier resistance. Under this view of the evidence, Marron violated Ochoa’s

constitutional rights by using excessive force. Therefore, the question of whether

Marron is entitled to summary judgment based on qualified immunity depends on

whether the law was clearly established in April 2022 that a pretrial detainee who

was complying with orders and who did not pose a threat to officer safety had a

clearly established right not to be punched by detention officers.

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“A clearly established right is one that is sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.” □

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (cleaned up). Earlier cases

involving “fundamentally similar’ or “materially similar” facts “can provide

especially strong support for a conclusion that the law is clearly established, [but] □

they are not necessary to such a finding.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Instead, general statements of the law may give fair and clear warning, and “a

general constitutional rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question.” Jd. Therefore, there can be

“notable factual distinctions between the precedents relied on . . . so long as the prior

decisions gave reasonable warning that the conduct then at issue violated

constitutional rights.” Jd. at 740 (cleaned up). But the existing precedent “must be

specific enough that it is clear to a reasonable [defendant] that his conduct was

unlawful in the situation he confronted.” Fairchild, 40 F 4th at 367 (quoting Saucier

v. Katz, 533 U.S. 194, 202 (2001)); see also Boyd v. McNamara, 74 F.4th 662, 669

(Sth Cir. 2023) (“We have often explained that 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.” (quoting Ramirez v.

Martinez, 716 F.3d 369, 379 (Sth Cir. 2013))).

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The Fifth Circuit has long held that the use of force on a restrained and

subdued subject is objectively unreasonable. See Timpa, 20 F.4th at 1034 (collecting

cases). While Ochoa was not restrained when this incident occurred, that seems to

be because none of the five officers with him believed that any physical restraint was

necessary. Further, if the jury were to accept Ochoa’s version of the facts, it could

find that his earlier resistance had been subdued and that he was complying with the

officers’ commands without resistance for several minutes. Under this version of

the facts, clearly established law would put Marron on notice that his conduct in

punching Ochoa would violate Ochoa’s constitutional rights. See, eg. Bagley v.

Guillen, 90 F.4th 799, 803 (Sth Cir. 2024) (finding that it was clearly established in

May 2019 that an officer may not use force on a suspect who is complying with his

commands); Boyd, 74 F.4th at 669 (collecting cases and noting that it has long been

the law that after an inmate submits to the officers’ authority, “there is no need, and

thus no justification, for the further use of force”); Newman v. Guedry, 703 F.3d 757,

761-64 (Sth Cir. 2012) (it is objectively unreasonable for an officer to injure a man

whose “behavior does not rise to the level of active resistance”); Mitchell v.

Cervantes, 453 F. App’x 475, 477 (Sth Cir. 2011) (per curiam) (questions of fact

precluded entry of summary judgment based on qualified immunity when the

plaintiffs allegations showed that he was complying with the officers’ orders at the

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time the force was used).! On the other hand, if the jury were to accept Marron’s

version of the facts, Fifth Circuit precedent would not put him on notice that □□□□

conduct was unconstitutional. See, e.g., Griggs v. Brewer, 841 F.3d 308, 315-16

(5th Cir. 2016) (an officer was entitled to qualified immunity from a claim that he

punched an individual who was handcuffed when the evidence showed that the

suspect was kicking and ignoring commands despite the restraints).

In his reply, Marron contends that Ochoa cannot rely on cases in which the

prisoner or detainee was not resisting because Ochoa admitted in his deposition that

he had resisted Johnson’s commands to return to his cellblock. There is also

testimony from Marron that Ochoa continued resisting once he was in the vestibule.

But because Marron has moved for summary judgment on the qualified immunity

defense, he must accept the version of the facts that is most favorable to Ochoa—

not the version most favorable to him. And, as explained above, both video evidence

and witness statements could permit a jury to find that Ochoa stopped resisting after

Johnson pushed him against the wall and that he was not resisting in the vestibule.

Under that view of the evidence, Marron’s use for force violated clearly established

‘While Bagley and Newman involve the analysis of excessive force claims under

the Fourth Amendment, the Fifth Circuit has noted that the standard for excessive force □□

the same under either provision and that it has “previously relied on Fourth Amendment

excessive force cases to determine whether a right had been clearly established for purposes

uteenth Amendment excessive force claim.” Boyd, 74 F.4th at 667, n.3.

law.

Because there are disputed issues of fact that are material to determining

whether clearly established law put Marron on notice that his actions could violate

Ochoa’s constitutional rights, Marron is not entitled to judgment in his favor as a □

matter of law. His motion for summary judgment on the defense of qualified

immunity must be denied.

IV. CONCLUSION

Based on the foregoing, the Court ORDERS as follows:

1. | Ochoa’s request to strike Marron’s Motion for Summary Judgment as

untimely filed is DENIED.

2. Marron’s Motion for Summary Judgment, (Dkt. 42), is DENIED.

3. The parties must continue to comply with the deadlines set forth in the

Scheduling Order of December 19, 2024. (Dkt. 37).

The Clerk will provide a copy of this Order to the parties.

SIGNED at Houston, Texas on ( Ans Mar S , 2025.

,

Cpaal Neti

DAVID HITTNER

UNITED STATES DISTRICT JUDGE

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