Fernando Narro v. E. Edwards

Case: 18-40912 Document: 00515575564 Page: 1 Date Filed: 09/23/2020

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

September 23, 2020

No. 18-40912 Lyle W. Cayce

Clerk

Fernando S. Narro,

Plaintiff—Appellant,

versus

E. Edwards, Officer; Sergeant Duminski; D. O. Mowry;

D. O. Killgore; D. O. Stanford; D. O. Gregory,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:16-CV-310

Before Dennis, Graves, and Willett, Circuit Judges.

Per Curiam:*

Mr. Fernando S. Narro, who is currently incarcerated in Texas and is

proceeding pro se, filed this 42 U.S.C. § 1983 civil rights action against law

enforcement officers Colton Edwards, Daniel Duminski, Darren Mowery,

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

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Sean Killgore, and Michael Gregory (collectively, “Defendant-Appellees”). 1

Mr. Narro asserts that, while he was in pretrial detention at the Brazoria

County Detention Center on September 26, 2016, these officers used

excessive force against him in violation of his rights under the Eighth

Amendment. The district court granted summary judgment in favor of

Defendant-Appellees and dismissed Mr. Narro’s claims with prejudice. We

AFFIRM.

I. FACTUAL OVERVIEW AND PROCEDURAL HISTORY

A. Allegations and Affidavits

The parties’ allegations regarding the events in question differ. They

agree that at approximately 2:00 a.m. on September 26, 2016, Defendant

Edwards told Mr. Narro that he had to move to another cell because the night

light in his existing cell was not working. At the time, Mr. Narro was housed

on “A-Row,” which the officers allege “houses inmates who are segregated

from the general population due to disciplinary problems, mental health or

medical issues, or other reasons.” Defendant Edwards explained in an

affidavit filed with the district court that he decided to move Mr. Narro

because his cell was “completely dark” and because “a cell two or three

doors down . . . had just come available.” Mr. Narro refused. 2

According to Mr. Narro, Defendant Duminski got upset and started

yelling at him. Defendant Duminski entered the cell, and an officer

1

Mr. Narro also named “D.O. Stanford” in his suit. The Brazoria County District

Attorney’s Office appeared on behalf of all defendants except Stanford and stated that

“[t]he Brazoria County Sheriff’s office . . . employed no detention officer with this name

at the time of the alleged incident.”

2

Mr. Narro alleges that he refused the officers’ verbal orders twice, but that he

agreed to move after the third request. Defendant Edwards alleges that Mr. Narro refused

him at least three times and subsequently refused Defendant Duminski.

2

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“blindsided” Mr. Narro. Defendant Duminski then slammed Mr. Narro’s

head into the wall and against the railing of his bunk. Mr. Narro put his hands

up by his head to protect himself, at which point Defendant-Appellees and

an unknown officer allegedly started punching Mr. Narro in the face and head

area. Mr. Narro maintains that he was still in bed, under the mattress cover,

and not a threat. The officers then put restraints on Mr. Narro’s wrists and

moved him to what he describes as the “mental” cell, the officers term the

“violent” cell, and we refer to as the “second” cell. Mr. Narro alleges that

Defendant-Appellees continued to assault him until a nurse arrived.

According to the officers, 3 after Mr. Narro refused repeated requests

to move, Defendant Edwards called for a supervisor. Defendant Mowery,

Defendant Duminski, and Sergeant Stacy Holmes arrived to assist Defendant

Edwards. When Defendant Duminski entered the cell, Defendant Edwards

saw Mr. Narro “sit up quickly and square his body” toward Defendant

Duminski. The officers allege that, after they repeatedly ordered Mr. Narro

to turn around to be handcuffed, he refused to comply and raised clenched

fists. When Defendant Edwards tried to grab Mr. Narro’s right arm in order

to handcuff him, Mr. Narro became violent and started thrashing and moving

his arms and upper body and kicking his legs. Defendant Mowery averred

that Mr. Narro’s movements were aggressive and that he “looked like he was

going to engage in an altercation.” Defendant Duminski averred that Mr.

Narro cursed and threatened the officers, sat up in the bed and tensed up,

and raised his fists to his chest. Defendant Duminski then struck Mr. Narro

once on the head with his fist. He alleges that he “did not intend to strike

3

Two groups of officers filed motions for summary judgment. The affidavits filed

by the first group, which comprised Defendants Duminski, Edwards, and Mowery, are

described below. The summary judgment motion filed by Defendants Gregory and

Killgore, meanwhile, argues that those officers did not participate in any use of force.

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[Mr. Narro] in the head, but . . . reacted as quickly as possible to avoid being

hit.” After Mr. Narro was handcuffed, Defendant-Appellees allege, he was

pulled to the ground because he continued to pull away, kick, and threaten

the officers. Mr. Narro was then transferred to the second cell, but he

continued to resist. Specifically, Defendants Edwards, Mowery, and

Duminski allege, he kicked at the officers and hit Defendant Edwards in the

face above his eye. Mr. Narro eventually calmed down, and a nurse bandaged

his cut while the officers secured him. The officers removed the handcuffs

and backed out of the cell. They allege that Mr. Narro got up during this

process and moved toward the cell door in a threatening manner, but that the

officers were able to close the door.

Mr. Narro’s complaint was accompanied by an inmate grievance form

that he filed regarding the incident. He later filed a statement by another

inmate who overheard the use of force and Mr. Narro’s protests.

B. Photos and Videos

Defendant-Appellees filed video of the incident alongside their

motions for summary judgment.

The first video, Exhibit 9F, was taken by a “Deputy Barrett,” and

begins sometime after Mr. Narro was handcuffed. 4 It reflects a struggle in the

original, dark cell, in which Mr. Narro can be heard speaking belligerently

and cursing. The officers are visible on the video working to remove the

mattress cover that was wrapped around Mr. Narro’s legs. They then pull

Mr. Narro to his feet and escort him to the second cell. There, the video

shows Mr. Narro continuing to thrash, kick, and speak belligerently as the

4

In a use-of-force report filed by Defendant-Appellees, Deputy Barrett states that

he “heard yelling on the front side of A-row,” “grabbed the camera,” and went to film the

incident.

4

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officers attempt to restrain him. Less than two minutes after Mr. Narro

enters the second cell, the video shows a nurse arriving at the cell and treating

him as several officers continue to restrain him. The officers, who state in

their affidavits that they removed Mr. Narro’s clothing, can be seen on the

video explaining what they are doing and tossing the clothing out of the cell.

They then remove Mr. Narro’s handcuffs and back out of the cell, closing the

door quickly behind them.

The second video, which has no audio, appears to have been taken

from a security camera at the end of the hall in which Mr. Narro’s cell was

located. It shows officers arriving outside of Mr. Narro’s cell and entering

the cell. An officer, presumably Deputy Barrett, arrived outside of the cell

and began to film approximately forty-seven seconds after officers entered

the cell. Shortly thereafter, the video shows the officers walking Mr. Narro

to the second cell.

Photos taken after the incident were also filed with the district court,

although they are of low quality. They show the left side of Mr. Narro’s face,

his cell door, and blood within the cell.

C. Procedural History

Mr. Narro filed suit. In addition to a small cut on his left temple,

documented in the photos referenced above, he alleges injuries to his

shoulder that require pain medication to the present time, a bruise near his

pelvis, an abrasion on his forehead, and the swelling and bruising of both

ears. 5 Defendant-Appellees filed a motion to dismiss and motions for

5

Mr. Narro, who submitted to this court an audiology report documenting his loss

of hearing, now argues that the officers’ actions caused him to suffer possible permanent

hearing loss. He did not make that allegation at the district court. This court may not

consider new claims or new evidence presented for the first time on appeal, so we do not

5

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summary judgment. As noted above, see supra note 3, the summary judgment

motion filed by Defendants Duminski, Edwards, and Mowery directly refutes

Mr. Narro’s allegations and asserts qualified immunity. The motion filed by

Defendants Gregory and Killgore, meanwhile, asserts that those officers did

not participate in any use of force.

After reviewing those motions, the district court granted summary

judgment in favor of Defendant-Appellees and dismissed Mr. Narro’s claims

with prejudice. In doing so, the court reasoned that Mr. Narro had “failed to

demonstrate a genuine issue of material fact as to whether the force

Defendants used against him was ‘objectively unreasonable.’” This appeal

followed.

II. STANDARD OF REVIEW

We review “a grant of summary judgment de novo, applying the same

standard as the district court.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 328

(5th Cir. 2017); Miss. River Basin All. v. Westphal, 230 F.3d 170, 174 (5th Cir.

2000). Summary judgment is appropriate “if the movant shows 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 genuine issue of

material fact exists when the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Austin, 864 F.3d at 328 (internal

quotation marks and citation omitted). All facts and reasonable inferences are

construed in favor of the nonmovant, and the court should not weigh

evidence or make credibility findings. Deville v. Marcantel, 567 F.3d 156, 163–

64 (5th Cir. 2009).

analyze that alleged injury. See Burge v. St. Tammany Parish, 336 F.3d 363, 372 (5th Cir.

2003); Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).

6

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Qualified immunity “shield[s] a government official from civil liability

for damages based upon the performance of discretionary functions if the

official’s acts were objectively reasonable in light of then clearly established

law.” Thompson v. Upshur Cty., Tex., 245 F.3d 447, 456 (5th Cir. 2001). For

an official’s violative conduct to be objectively unreasonable, so as to

preclude qualified immunity, “[t]he contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing violates

that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987), modified on other

grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that courts

need not consider the two-step analysis of qualified immunity claims in any

particular order).

“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 officer invokes the defense, the plaintiff must rebut it by establishing

(1) that the officer violated a federal statutory or constitutional right and

(2) that the unlawfulness of the conduct was “clearly established at the

time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)); see Gates v. Tex. Dep’t of

Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008) (“The

plaintiff must rebut the defense by establishing that the official’s allegedly

wrongful conduct violated clearly established law and that genuine issues of

material fact exist regarding the reasonableness of the official’s conduct.”).

To prevail on his excessive force claim, Mr. Narro must therefore

establish “(1) injury, (2) which resulted directly and only from a use of force

that was clearly excessive, and (3) the excessiveness of which was clearly

unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).

“[T]he core judicial inquiry is . . . whether force was applied in a good-faith

effort to maintain or restore discipline, or maliciously and sadistically to

cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). Courts analyze (1)

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“the extent of [the] injury suffered,” (2) “the need for [the] application of

force,” (3) “the relationship between that need and the amount of force

used,” (4) “the threat reasonably perceived by the responsible officials,” and

(5) “any efforts made to temper the severity of a forceful response.” Id.

(internal quotation marks and citation omitted); see also Baldwin v. Stalder,

137 F.3d 836, 839 (5th Cir. 1998). “[A]ll inferences are drawn in [the

plaintiff’s] favor.” Brown, 623 F.3d at 253. But “a plaintiff’s version of the

facts should not be accepted for purposes of qualified immunity when it is

‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.”

Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (citation omitted); see also

Scott v. Harris, 550 U.S. 372, 380–81 (2007).

III. DISCUSSION

The parties dispute what took place on the relevant night, as described

in detail above. Crucially, however, only Defendant-Appellees’ version is

supported by competent summary judgment evidence. Mr. Narro’s version

is supported by only two filings: his unverified complaint and an unsworn

inmate grievance form. 6

In general, parties may not rest on their own pleadings at the summary

judgment stage. Instead, “Rule 56(e) . . . requires the nonmoving party to go

beyond the pleadings and by her own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477

6

As noted above, Mr. Narro also submitted a statement by another inmate. That

inmate averred that (1) the officers were going to move Mr. Narro because the night light

was out; (2) the light had been out for a few days; and (3) he heard Mr. Narro say “I am

not the one,” that Mr. Narro wanted to stay in the cell in case he had a seizure, and that

Mr. Narro said “y’all going to beat me up” while handcuffed. None of those statements

support Mr. Narro’s version of the events that transpired after he expressed disinterest in

moving cells.

8

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U.S. 317, 324 (1986) (quotation marks omitted); see also Nat’l Ass’n of Gov’t

Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.

1994) (“Conclusory allegations unsupported by specific facts . . . will not

prevent an award of summary judgment; the plaintiff [can]not rest on his

allegations . . . to get to a jury without any significant probative evidence

tending to support the complaint.”) (quotation marks and citation omitted).

Because Mr. Narro did not submit a sworn affidavit or other competent

evidence, the court cannot credit his version of events.

In contrast, Defendant-Appellees submitted several affidavits.

According to that evidence, the officers were aware that Mr. Narro was

“frequently housed in A-Row for disciplinary violations” and had previously

“attempted to harm a jailer.” Mr. Narro refused repeated instructions to

move to another cell, resisted and threatened officers, kicked, swung his fists,

and thrashed his body. When officers entered his cell, which was dark, Mr.

Narro sat up in bed, tensed up, and raised his fists; Defendant Duminski

reacted to avoid being hit and struck Mr. Narro once on the head. After he

was handcuffed, Mr. Narro continued to pull away, kick, and threaten the

officers. The officers therefore pulled him to the ground. After Mr. Narro

was transferred to the second cell, he continued to resist and kicked the

officers, and he hit Defendant Edwards in the face above the eye. A nurse

bandaged a cut on Mr. Narro’s forehead, and the officers removed his clothes

and handcuffs. As the officers backed out of the cell, Mr. Narro got up and

moved toward the cell door in a threatening manner. The officers were able

to close the door, and the encounter concluded.

As noted above, the burden is on Mr. Narro to rebut the officers’

invocation of qualified immunity by establishing (1) that the officers violated

a federal statutory or constitutional right and (2) that the unlawfulness of

their conduct was “clearly established at the time.” Wesby, 138 S. Ct. at 589

(internal quotation marks and citation omitted). Because Plaintiff failed to

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submit any relevant and competent summary judgment evidence permitting

us to draw inferences in his favor, he has not met that burden. 7

Defendant Duminski’s affidavit must be treated as evidence of his

version of events (i.e., that he used a non-deadly punch to gain control of a

resisting inmate and prevent his own assault). Although the officers could

have used less forceful conduct, there was no settled authority to put them

on notice that their use of force violated Mr. Narro’s constitutional rights.

See Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (“We must

evaluate an officer’s use of force from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.” (internal

quotation marks and citation omitted)); see also Griggs v. Brewer, 841 F.3d

308, 315 (5th Cir. 2016) (finding that an officer was entitled to qualified

immunity as to claims that he punched an individual who was ignoring his

commands until the officer could regain control of the individual’s arms and

handcuff him). We therefore agree with the district court that Mr. Narro has

not met his burden to rebut the officers’ invocation of qualified immunity.

AFFIRMED.

7

We note also that “a plaintiff’s version of the facts should not be accepted for

purposes of qualified immunity when it is ‘blatantly contradicted’ and ‘utterly discredited’

by video recordings.” Hanks, 853 F.3d at 744. Mr. Narro’s allegations regarding his

demeanor are discredited by video, but no useful footage reflects the exact events leading

to Defendant Duminski’s striking Plaintiff. But because Plaintiff’s version of events was

not substantiated by competent summary judgment evidence, he cannot benefit from that

lapse in footage.

10