The opinion
Case: 18-41043 Document: 00515968274 Page: 1 Date Filed: 08/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 6, 2021
No. 18-41043 Lyle W. Cayce
Clerk
Jerry Lenez Bangmon,
Plaintiff—Appellant,
versus
Damon Alexander; Sergio G. Buentello; Willie M.
Ratliff; Gretta K. Bennett; Beverly A. White; Aquisha
Guidry; Edgar J. Hulipas; Terry W. Speers; Emily
Shortridge,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:14-CV-370
Before Jones, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
An Texas state prison inmate brought suit alleging that various
correctional officers violated his civil rights. The district court dismissed
some claims as frivolous and granted summary judgment on others. We
*
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opinion should not be published and is not precedent except under the limited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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No. 18-41043
AFFIRM in part, VACATE in part, and REMAND for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Jerry Lenez Bangmon, Texas prisoner # 1568309, filed a lawsuit
raising Eighth and Fourteenth Amendment claims against several
defendants, all of whom were employees of the Texas Department of
Criminal Justice’s (“TDCJ”) Darrington Unit during the events alleged in
the complaint.
Many of Bangmon’s claims relate to an incident that occurred in
November 2012. We accept the description of that incident as described in
the complaint in this suit. Bangmon was walking in a hallway on crutches
when defendant Damon Alexander approached in a “very hostile and
aggressive man[ner].” Alexander threatened to sexually assault Bangmon,
grabbed him and, without provocation or justification, “intentionally,
maliciously and sadistically snatched [him] ten to eleven feet across the . . .
hallway and threw him into the wall.” Alexander pinned Bangmon there and
threatened to “stomp[]” him if he fell. Bangmon was injured during the
attack.
Bangmon sued Alexander. He also sued others. One defendant was
Sergio G. Buentello, a corrections officer who Bangmon claimed witnessed
the attack but failed to protect Bangmon or report the attack. Other
defendants are Willie M. Ratliff and Beverly A. White, corrections officers
who allegedly denied Bangmon’s requests for medical attention after the
attack. Also joined as defendants were Gretta K. Bennett, who allegedly
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conspired with others to cover up the attack; and Aquisha Guidry, who
allegedly failed to respond to video evidence of the attack. 1
Finally, Bangmon brought claims against two medical professionals at
Darrington. Bangmon alleges that defendant Edgar J. Hulipas’s deliberate
indifference included his failing to respond to Bangmon’s medical complaints
(including complaints related to the attack) and denying him use of
ambulatory devices. Bangmon alleges that defendant Terry W. Speers, a
Darrington nurse practitioner, violated his Eighth and Fourteenth
Amendment rights by denying him access to a walking cane or other walking
device.
The district court ordered the Texas Attorney General, who
represents all of the defendants except Buentello, to file a Martinez 2 report to
assist the court in evaluating Bangmon’s claims. The AG filed the report in
January 2018.
The district court thereafter entered a series of orders. It dismissed
the claims for money damages against all defendants in their official
capacities on Eleventh Amendment grounds. As for the claims against
defendants in their individual capacities, the court dismissed the claims
against Alexander and Buentello as frivolous under 28 U.S.C. §
1915(e)(2)(B). It granted summary judgment in favor of Ratliff, White,
Bennett, and Guidry, concluding that Bangmon had failed to exhaust his
1
Emily Shortridge is identified as a defendant in the caption for this appeal. In his
brief, Bangmon disclaims seeking relief against Shortridge.
2
This court has adopted the procedure used in Martinez v. Aaron, 570 F.2d 317
(10th Cir. 1978), as a tool by which an administrative record is constructed to assist in
assessing whether prisoner complaints are frivolous. See Norton v. Dimazana, 122 F.3d 286,
292–93 (5th Cir. 1997). The resulting administrative record is commonly referred to as a
“Martinez report.”
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administrative remedies on those claims. The court concluded that the
claims against Guidry and Bennett also should be dismissed for failure to state
a claim under Section 1915(e)(2)(B). As to the medical professionals, the
district court granted summary judgment in favor of Hulipas and Speers,
concluding that the conduct about which Bangmon complained did not rise
to the level of deliberate indifference. Bangmon appealed.
DISCUSSION
Bangmon proceeded pro se in the district court and continues to do so
on appeal. We liberally construe arguments in a pro se brief, Haines v. Kerner,
404 U.S. 519, 520 (1972), but we still require pro se parties to brief their
arguments adequately, Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Liberally construed, Bangmon’s brief challenges the district court’s
dismissal of the claims against Alexander and Buentello and the entry of
summary judgment in favor of Ratliff, White, Bennett, and Guidry. 3
Bangmon also challenges the denial of his motion to compel production of a
video of the alleged use of force. We will separately review these arguments.
I. Dismissal
Bangmon argues that the district court erred by holding, in part based
on qualified immunity, that the claims against Alexander and Buentello were
frivolous under Section 1915(e)(2)(B)(i).
A claim may be dismissed as frivolous under Section 1915(e)(2)(B)(i)
“if it does not have an arguable basis in fact or law.” Brewster v. Dretke, 587
3
Bangmon also claims error in the dismissal under Section 1915(e)(2)(B) of the
claims against Guidry and Bennett. Because we conclude that entry of summary judgment
in favor of Guidry and Bennett was proper, we do not reach the question of whether
Bangmon failed to state a claim against these defendants.
4
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F.3d 764, 767 (5th Cir. 2009). We review such dismissals for abuse of
discretion. Id. A “district court by definition abuses its discretion when it
makes an error of law.” Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 384
(5th Cir. 2008) (citation omitted).
Bangmon sued Alexander for excessive use of force. “To establish the
use of excessive force in violation of the Constitution, a plaintiff must prove:
(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.” Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012)
(quotation marks and citation omitted). In the context of an excessive-force
claim against prison officials, the “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, 6–7 (1992). Force beyond that which is reasonably required to maintain or
restore discipline is “wanton and unnecessary.” Id. at 7.
Bangmon’s complaint claimed that Alexander threw him against a
wall without justification. Bangmon also submitted the declarations of two
inmates that provide some corroboration of his account. Bangmon alleges he
suffered an injury as a result of the incident.
The district court determined that these allegations were
“conclusory” because they were refuted by the administrative and medical
records in the Martinez report. However, a Martinez report may not be used
to resolve genuine disputes of material facts when the information conflicts
with the plaintiff’s pleadings. Several unpublished opinions of this court
have so held, and we adopt them here as valid analysis. See, e.g., Cardona v.
Taylor, 828 F. App’x 198, 201 (5th Cir. 2020); Newby v. Quarterman, 325 F.
App’x 345, 354 (5th Cir. 2009); Williams v. Mason, 210 F. App’x 389, 390
(5th Cir. 2006). Bangmon’s complaint provided a detailed explanation of this
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event that was not frivolous. The district court should not have resolved
factual disputes based on the Martinez report’s findings.
Bangmon brings a claim against Buentello for bystander liability. The
failure to protect an individual from the use of excessive force by other
officers can give rise to liability under Section 1983. Hale v. Townley, 45 F.3d
914, 919 (5th Cir. 1995). The district court’s dismissal of Bangmon’s claim
against Buentello is premised entirely upon its dismissal of the claim against
Alexander. Since the district court erred in its dismissal of the claim against
Alexander, we conclude that the district court also erred in dismissing the
claim against Buentello.
II. Summary judgment
Bangmon argues that the district court erred by granting summary
judgment on his remaining claims. We review the entry of summary
judgment de novo, viewing “all facts and evidence in the light most favorable
to the non-moving party.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co.,
784 F.3d 270, 273 (5th Cir. 2015). Summary judgment is proper if “there is
no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a).
A. Defendants Ratliff, White, Bennett, and Guidry
The district court granted summary judgment in favor of Ratliff,
White, Bennett, and Guidry, concluding that Bangmon failed to exhaust his
administrative remedies against these defendants.
The Prison Litigation Reform Act requires a prisoner to exhaust
administrative remedies prior to filing a Section 1983 lawsuit. 42 U.S.C. §
1997e(a). The exhaustion requirement gives officials “time and opportunity
to address complaints internally.” Johnson v. Johnson, 385 F.3d 503, 516 (5th
Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)). To exhaust
administrative remedies, a prisoner must pursue all available avenues of relief
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and comply with all administrative remedies and procedural rules. Woodford
v. Ngo, 548 U.S. 81, 89–95 (2006).
The Texas prison system provides a two-step process for filing
grievances, and a prisoner must pursue a grievance through both steps to
satisfy the exhaustion requirement. Johnson, 385 F.3d at 515. In an
unpublished opinion, we held that a prisoner did not exhaust administrative
remedies when he raised issues for the first time in step two of the grievance
process. Randle v. Woods, 299 F. App’x 466, 467 (5th Cir. 2008). That
conclusion is correct, and we will not repeat that panel’s analysis.
We agree with the district court that Bangmon did not exhaust his
administrative remedies with regard to the alleged misconduct of Ratliff,
White, Guidry, and Bennett. As for Ratliff, White, and Guidry, Bangmon did
not mention any misconduct against these defendants in a step 1 or step 2
grievance. Although Bangmon mentioned Bennett in a step 2 grievance, that
belated reference was inadequate to give TDCJ the time and opportunity to
address his complaint. Bangmon fails to show that the district court erred by
granting summary judgment in favor of Ratliff, White, Bennett, and Guidry. 4
B. Defendants Hulipas and Speers
Bangmon contends that the district court erred by granting summary
judgment in favor of Hulipas and Speers on his deliberate indifference claims.
Prison officials violate the Eighth Amendment’s prohibition against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, which indifference amounts to an
4
Liberally construing his brief, Bangmon asserts that Ratliff, White, Alexander,
Buentello, Guidry, and Bennett conspired to cover up Alexander’s attack by refusing to file
use-of-force reports. These allegations are conclusory and do not appear in Bangmon’s
complaint. Further, the record lacks evidence that Bangmon exhausted his administrative
remedies as to these claims.
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“unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97,
104 (1976) (citation omitted). To prevail on a claim of deliberate indifference
to medical needs, the plaintiff must establish that the defendant denied him
treatment, purposefully gave him improper treatment, or ignored his medical
complaints. Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir.
2001). “Unsuccessful medical treatment, acts of negligence, or medical
malpractice do not constitute deliberate indifference, nor does a prisoner’s
disagreement with his medical treatment, absent exceptional
circumstances.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
“Deliberate indifference is an extremely high standard to meet.” Domino,
239 F.3d at 756.
Bangmon insists that Hulipas and Speers violated his Eighth
Amendment rights by denying his requests for ambulatory devices and
delaying his receipt of surgery based upon incomplete medical records and
their incorrect beliefs that he was malingering. Bangmon does not
meaningfully respond to the district court’s reasoning that the treatments in
question were based on clinical observations and medical indications, and
that his mere disagreement with his course of treatment is insufficient to
establish an Eighth Amendment violation. See Gobert, 463 F.3d at 346. His
assertion that treatments were based on incomplete or incorrect information
at best alleges negligence or malpractice, neither of which, if proven, would
establish deliberate indifference. See id.
Bangmon fails to show that the district court erred by granting
summary judgment in favor of Hulipas and Speers.
III. Discovery
Bangmon alleges that there is a video of the use of force by Alexander.
In the district court, he moved to compel production of the video. Among
the exhibits attached to the Martinez report was an affidavit from the TDCJ’s
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Administrative Monitor for the Use of Force Department who certified that
“after a diligent search, no Use of Force Report(s) to include
videos/photographs has been located in the name of Jerry Bangmon . . .
pertaining to a use of force incident that occurred on November 16, 2012”
(“no-use-of-force affidavit”). In pro se objections to the Martinez report,
Bangmon insisted that, despite the no-use-of-force affidavit, a video of the
incident could be “obtained from the surveillance [camera] system, memory-
storage, mainframe, archives etc.”
The district court denied Bangmon’s motion to compel the video
without explaining its reasoning. In light of our holding vacating the dismissal
of the claims against Alexander and Buentello, we also VACATE the district
court’s order denying the motion to compel and remand with instructions to
permit such discovery as the district court deems necessary, which may
include discovery of whether TDCJ’s previous search efforts included the
sources identified in Bangmon’s motion and, if not, whether relevant video
footage in fact could be obtained from one or more of those sources.
IV. Motions
We DENY Bangmon’s motions for appointment of counsel and for
sanctions against the defendants. Bangmon is free to renew his motion for
appointment of counsel before the district court upon remand.
We VACATE the dismissal of the claims against Alexander and
Buentello, AFFIRM the entry of summary judgment on the remaining
claims, VACATE the order on the motion to compel, and REMAND for
further proceedings.
9