Trevino

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

ALFONSO TREVINO III, §

TDCJ-CID No. 2199765, §

§

Plaintiff, §

§

v. § 2:25-CV-46-Z-BR

§

MARCELO CONTRERAS, §

§

Defendant. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

TO GRANT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant’s Motion for Summary Judgment (the “Motion”) filed by

Defendant Marcelo Contreras. (ECF 28). For the reasons stated below, the Magistrate Judge

recommends that the Motion be GRANTED.

I. FACTUAL BACKGROUND

A. Factual Background.1

On August 27, 2024, two officers, identified in Trevino’s questionnaire responses as TDCJ

officers Braden Babcock (“Babcock”) and Marcello Contreras (“Contreras”) were escorting

Trevino to get a haircut when Babcock departed in response to a radio call for additional staff,

leaving Contreras to escort Trevino alone. (ECF 3 at 6). Trevino was handcuffed with his hands

behind his back. Conteras put Trevino in the barber chair, still handcuffed. (Id.) Another inmate,

Cody Parlato (“Parlato”), entered the area and attacked Trevino, stabbing him repeatedly with a

sharpened steel rod, puncturing both lungs and damaging several other internal organs. (Id.).

1These background facts are taken from Trevino’s Complaint (ECF 3) and questionnaire responses (ECF

11) and are assumed to be true for the purpose of evaluating the merits of Defendant’s motion.

Trevino contends that Conteras abandoned him, left him defenseless to the attack and failed to call

for help. (Id.; ECF 11 at 2).

Trevino filed this civil rights lawsuit on February 25, 2025, seeking compensatory

damages. (Id.). Trevino’s Complaint against Babcock and the TDCJ, as well as his claims against

Contreras in his official capacity, were dismissed at screening. (ECF 12, 13). Contreras now seeks

summary judgment on the claims against him in his individual capacity, based on his defense of

qualified immunity. Trevino did not respond to the Motion.

II. SUMMARY JUDGMENT STANDARD

A. Summary Judgment is Proper if No Genuine Dispute as to Any Material Fact.

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

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

if the pleadings, the discovery and disclosure materials on file, and any affidavits show that “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that

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

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

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

Cir. 1981).

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

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

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

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

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

then must provide affirmative evidence to defeat summary judgment. Anderson, 477 U.S. at 257.

No “mere denial of material facts nor...unsworn allegations [nor] arguments and assertions in

briefs or legal memoranda” will suffice to carry this burden. Moayedi v. Compaq Comput. Corp.,

98 F. App’x 335, 338 (5th Cir. 2004). The Court requires “significant probative evidence” from

the nonmovant in order to dismiss a request for summary judgment supported appropriately by the

movant. United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider

all evidence but must not make any credibility determinations or weigh the evidence. Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

Because he proceeds pro se, Trevino’s pleadings are held to a less stringent standard than

those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed”)

(quotation omitted). Nevertheless, pro se parties must “still comply with the rules of procedure

and make arguments capable of withstanding summary judgment.” Ogbodiegwu v. Wackenhut

Corr. Corp., 202 F.3d 265, 1999 WL 1131884, at *2 (5th Cir. Nov. 10, 1999); Yazdchi v. Am.

Honda Fin. Corp., 217 F. App’x 299, 304 (5th Cir. 2007) (“The right of self-representation does

not exempt a party from compliance with relevant rules of procedural and substantive law.”) (citing

Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991)).

B. Defendant’s Qualified Immunity Defense Alters the Burden of Proof.

Contreras moves for summary judgment on his affirmative defense of qualified immunity.

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

when their actions could reasonably have been believed to be legal.” Argueta v. Jaradi, 86 F.4th

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

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

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

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

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

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

those who knowingly violate the law, … we do not deny its protection unless existing precedent

places the constitutional question beyond debate.” Argueta, 86 F.4th at 1088 (internal citation and

quotation omitted).

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

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

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

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

the qualified-immunity framework, however, the government official must “satisfy his burden of

establishing that the challenged conduct was within the scope of his discretionary authority.”

Sweetin v. City of Texas City, 48 F.4th 387, 392 (5th Cir. 2022) (quoting Cherry Knoll, L.L. C. v.

Jones, 922 F.3d 309, 318 (5th Cir. 2019)). For example, in Sweetin, the Fifth Circuit held this “oft-

overlooked threshold requirement” was dispositive “because state law does not give a permit

officer the authority to conduct stops of any kind.” Sweetin, 48 F.4th at 392. In this case, however,

Trevino does not dispute that Contreras was acting within the scope of his duties.

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

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

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

Cir. 2022) (quoting Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019)). Second, if a violation

has occurred, courts determine whether the right in question was “clearly established” at the time

of the alleged violation, such that the officer was on notice of the unlawfulness of his or her

conduct. Id. In short, an officer is entitled to qualified immunity “if there is no violation, or if the

conduct did not violate law clearly established at the time.” Bailey v. Iles, No. 22-30509, 2023 WL

8062239 at *2 (5th Cir. Nov. 21, 2023). Courts have the discretion to decide “which of the two

prongs of the qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The qualified immunity defense is appropriately resolved at the summary judgment stage

when (1) a plaintiff has established that the defendant has engaged in the complained-of conduct

or (2) the court “skip[s], for the moment, over ... still-contested matters to consider an issue that

would moot their effect if proved.” Haverda v. Hays County, 723 F.3d 586, 599 (5th Cir. 2013).

“‘If resolution of [qualified immunity] in the summary judgment proceedings turns on what the

defendant actually did, rather than on whether the defendant is immunized from liability ..., and if

there are conflicting versions of his conduct, one of which would establish and the other defeat

liability, then the case is inappropriate for summary judgment.’” Id. (quoting Barker v. Norman,

651 F.2d 1107, 1123-24 (5th Cir. Unit A July 1981)).

Accordingly, the qualified immunity inquiry at this stage requires that the Court “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); see Tolan v. Cotton, 572

U.S. 650, 651 (2018) (“[I]n ruling on a motion for summary judgment, ‘[t]he evidence of the

nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” (quoting

Anderson, 477 U.S. at 255). And, particularly applicable in pro se cases, “verified complaint[s]

and other verified pleadings serve as competent summary judgment evidence.” Falon 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)).

“Although summary judgment may be appropriate based on a plaintiff’s inability to prove

the facts essential to recovery, this has ‘nothing to do with the qualified immunity defense,’”

Haverda, 723 F.3d at 599 (quoting Barker, 651 F.2d at 1124), as “immunity ... [is] an entitlement

distinct from the merits of the case,” Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010) (citation

and quotation marks omitted).

C. Trevino’s Failure to Respond is Not Dispositive.

When a nonmoving party does not file a response to a motion for summary judgment, the

failure to respond “does not permit the court to enter a ‘default’ summary judgment.” Boyd v. Fam.

Dollar Stores of Texas, LLC, No. 3:22-cv-1368-D, 2023 WL 4141052, at *1 (N.D. Tex. June 22,

2023). As the United States Court of Appeals for the Fifth Circuit has explained:

[a] motion for summary judgment cannot be granted simply because there is no

opposition, even if failure to oppose violated a local rule. John v. La. (Bd. of

Trustees) for State Colleges & Universities, 757 F.2d 698, 709 (5th Cir. 1985).

The movant has the burden of establishing the absence of a genuine issue of

material fact and, unless he has done so, the court may not grant the motion,

regardless of whether any response was filed. Id. at 708. Therefore, if the district

judge’s decision was to grant summary judgment solely because of a default, such

decision constituted reversible error.

Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.

1985); see also Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 & n.3 (5th Cir. 1995) (citing

Hibernia). Moreover, FED. R. CIV. P. 56(e) provides that:

[i]f a party fails . . . to properly address another party’s assertion of fact as required

by Rule 56(c), the court may . . . (2) consider the fact undisputed for purposes of

the motion [and] (3) grant summary judgment if the motion and supporting

materials—including the facts considered undisputed—show that the movant is

entitled to it[.]

Therefore, Contreras still must provide sufficient evidence upon which the Court may base a

summary judgment. Failure to do so requires the Court to deny the Motion, even if it is unopposed.

III. LEGAL ANALYSIS

Trevino alleges that Contreras failed to protect him from Parlato’s attack in violation of the

Eighth Amendment. Prison officials have a constitutional duty to protect prisoners from violence

at the hands of their fellow inmates. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); see

also Horton v. Cockrell, 70 F.3d 397, 400–02 (5th Cir.1995). Pursuant to Farmer, an inmate “must

show that he is incarcerated under conditions posing a substantial risk of serious harm” and that

prison officials were deliberately indifferent to the inmate’s safety. Id. at 834.

Not every injury suffered by a prisoner at the hands of another, however, rises to the level

of a constitutional violation. Id. at 834. Nor are prison officials “expected to prevent all inmate-

on-inmate violence.” Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003) (citing Farmer, 511 U.S.

at 834). Only deliberate indifference, “an unnecessary and wanton infliction of pain or to be

repugnant to the conscience of mankind,” constitutes conduct proscribed by the Eighth

Amendment. Estelle v. Gamble, 429 U.S. 97 (1976). “Deliberate indifference” means that a prison

official is liable “only if he knows that inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847-

48. Officials who fail to prevent an injury inflicted by fellow prisoners are liable only when they

possess the requisite mental state. Id. at 832-34.

A. Trevino Shows No Constitutional Violation by Contreras.

Even accepting Trevino’s version of events as true, he fails to provide any factual basis

suggesting that Contreras had (1) actual knowledge of any risk of serious harm before the attack

by Parlato; or (2) a reasonable opportunity to prevent the attack. Taking Trevino’s description of

the attack as true for the purposes of this Motion, the attack apparently occurred without warning.

There apparently was little to no time for Contreras to realize that an attack was imminent in

sufficient time to allow Contreras to prevent it. Additionally, in the Safe Prison investigation report

from after the event, Trevino admitted that, although he had “had words” with Parlato in the past,

he “didn’t think there was any issues” between Parlato and himself prior to the attack. (ECF 30 at

10). In fact, Trevino and Parlato had exchanged coffee and tea the day prior to the attack. (Id.).

Trevino was unaware of any animosity or substantial risk of harm, and fails to allege facts

indicating that Contreras was aware of any risk before the attack.

Contreras was not required by law to put himself in danger by stepping in front of a

charging inmate wielding a weapon. Longoria v. Texas, 473 F.3d 586, 593-94 (5th Cir. 2006). In

failure-to-protect cases, “prison guards have no constitutional duty to intervene in the armed

assault of one inmate upon another when intervention would place the guards in danger of physical

harm.” Longoria, 473 F.3d at 593-94; Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir. 1995); see

also Winfield v. Bass, 106 F.3d 525, 532 (4th Cir. 1997) (en banc) (“[S]uch heroic measures are

not constitutionally required.”). The Constitution does not require unarmed officials to endanger

their own safety in order to protect a prisoner threatened with physical violence. Longoria, 473

F.3d at 593-94. “[C]ompletely failing to take any action” to stop an ongoing assault on a prisoner

can amount to deliberate indifference. Winfield, 106 F.3d at 532. Courts have found that “a

corrections officer’s failure to intervene in a beating can be the basis of [§ 1983] liability” if the

officer had a reasonable opportunity to act and “simply refused to do so.” Smith v. Mensinger, 293

F.3d 641, 650 (3d Cir. 2002). However, Trevino has provided no evidence that Contreras either

had a “reasonable opportunity” to prevent Parlato’s attack, or that he “completely failed” or

“simply refused” to take action.

Even if Trevino is correct and Contreras did nothing, Trevino still cannot defeat

Contreras’s affirmative defense. Because the Motion is based upon qualified immunity, the burden

shifts to Trevino to provide some evidence of deliberate indifference by Contreras; that is, evidence

that Contreras knew that Trevino faced a substantial risk of serious harm, and that Contreras

disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 847.

This Trevino fails to do. He provides no evidence that Contreras knew that Parlato intended to

attack Trevino, or that Parlato had a weapon. Nor does Trevino provide evidence that Contreras

deliberately disregarded any such danger as he escorted him. Trevino has failed to provide

evidence indicating deliberate indifference by Contreras; as a result, he has failed to allege a

constitutional violation against Contreras and Contreras thus is entitled to qualified immunity. See

Randolph v. Prator, No. 03-0433, 2005 WL 1630167, at *2 (W.D. La. June 16, 2005)

(recommending dismissal of plaintiff’s failure to protect claim because defendant responded

immediately and appropriately once the altercation began and had no knowledge of difficulties

between plaintiff and his cellmate before the incident).

Once the attack began, Contreras retreated off the section, along with the inmate barber,

and secured the section door. Another officer who was nearby and saw the assault requested

backup. (ECF 30 at 10). Contreras took prompt action to contain the disturbance and to prevent

the situation from escalating beyond the area. Because Trevino has provided no evidence that

Contreras had actual knowledge of a substantial risk to Trevino’s health or safety prior to the

attack, or that Contreras had a reasonable opportunity to act to prevent the attack, Trevino fails to

present any genuine issue of material fact as to whether Contreras was deliberately indifferent in

violation of Trevino’s Eighth Amendment rights.

F. Clearly Established Law.

To defeat the second prong of the qualified immunity analysis, Trevino must provide

clearly established law that Contreras’s conduct was not objectively reasonable. “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)

(internal quotation omitted). There are two ways for a plaintiff to demonstrate that a defendant’s

conduct violated clearly established law. Batyukova v. Doege, 994 F.3d 717, 726 (5th Cir. 2021).

Under the first, more typical approach, the plaintiff must “identify a case” or “body of relevant

case law” in which “an officer acting under similar circumstances ... was held to have violated the

[Constitution].” Id. While there need not be a case directly on point, the unlawfulness of the

challenged conduct must be beyond debate. Id. Under the second approach, there can be the rare

“obvious case,” where the unlawfulness of the officer’s conduct is so egregious that it is

sufficiently clear although existing precedent does not address similar factual circumstances. Id.

at 726 (citing Dist. of Columbia v. Wesby, 538 U.S. 48, 65 (2018)); see also Brosseau v. Haugen,

543 U.S. 194, 199 (2004).

“In determining what constitutes clearly established law, [the Fifth Circuit] looks to

Supreme Court precedent and then to [its] own.” Hicks v. LeBlanc, 81 F.4th 497, 503 (5th Cir.

2023), (quoting Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018)). When there is no

direct controlling authority, “[the Fifth Circuit] may rely on decisions from other circuits to the

extent that they constitute a robust consensus of cases of persuasive authority.” Id. “It is the

plaintiff’s burden to find a case in his favor that does not define the law at a high level of

generality.” Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019). Trevino has failed to meet this

burden. This is an additional basis upon which the Motion should be granted.

RECOMMENDATION

For the reasons stated above, the Magistrate Judge recommends that Defendant’s Motion

for Summary Judgment be GRANTED.

INSTRUCTIONS FOR SERVICE

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

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

IT IS SO RECOMMENDED.

ENTERED March 23, 2026.

LEE a RENO

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

276-77 (Sth Cir. 1988).

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