an inmate’s allegations created a factual dispute as to whether the officer used excessive force and made qualified immunity inapplicable at summary judgment
How later courts described this case
- an inmate’s allegations created a factual dispute as to whether the officer used excessive force and made qualified immunity inapplicable at summary judgment
Written by the judges who cited it.
The opinion
Case: 20-20036 Document: 00516006751 Page: 1 Date Filed: 09/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 8, 2021
No. 20-20036 Lyle W. Cayce
Clerk
Roberto Perez, Jr.,
Plaintiff—Appellant,
versus
Bryan Collier, Executive Director, Texas Department
of Criminal Justice; Christopher Lacox, Warden; Arij
Ramadan, correctional officer; Jim Pitcock,
correctional officer; Amber Taylor, correctional
officer; James McClellan, Sergeant,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-306
Before Higginbotham, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Roberto Perez, proceeding pro se, sued prison officials under 42
U.S.C. § 1983, complaining in part that four officers violated his Eighth
*
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opinion should not be published and is not precedent except under the limited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. 20-20036
Amendment rights when they beat him without provocation. The district
court granted summary judgment for the officers on the basis of qualified
immunity. We REVERSE and REMAND.
I.
On the morning of June 30, 2015, at the Texas Department of
Criminal Justice’s (TDCJ) Estelle Unit, Officer Arij Ramadan escorted Perez
to the shower. 1 Perez complained that the water was “scalding hot,” and
asked Ramadan to lower the temperature. Ramadan refused.
What happened next is disputed. Perez claims he then asked Ramadan
to call a superior officer to come turn down the water, and Ramadan angrily
declined to do so. She then snatched Perez’s boxers from the shower area
and moved to take his shorts as well. Simultaneously, Perez grabbed at his
shorts to avoid being left naked in the area. The two then entered into a brief
tug-of-war over Perez’s shorts. Ramadan then urged a nearby officer, Amber
Taylor, to pepper spray Perez. When Taylor hesitated, Ramadan let go of the
shorts and went to report what happened to Officer Jim Pitcock.
Ramadan’s account differs. She claims that after she refused to lower
the water temperature, Perez became aggressive and grabbed her arm. She
pulled away and went to notify Pitcock.
The parties agree that Pitcock then walked to the shower to retrieve
Perez, but Perez refused to leave until a superior officer was called. Pitcock
contacted Sergeant James McClellan and informed him that Perez assaulted
Ramadan. McClellan arrived on the scene and Perez explained his version of
events. McClellan told Perez that he needed to go back to his cell, ordering
1
The day before, Perez was transferred from TDCJ’s Coffield Unit to Estelle for a
medical appointment at John Sealy Hospital in Galveston, Texas.
2
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No. 20-20036
him to submit to hand restraints. Perez complied. McClellan took Perez’s
right arm and Pitcock took his left.
Once again, the parties’ accounts then diverge. Perez claims that
McClellan began to twist his arm when walking him to his cell. McClellan
then shouted “Slowdown!” and “He’s resisting!” Perez claims he was not
resisting or walking faster than the officers. At that point, Pitcock punched
Perez in the side of his head, followed by several more punches to the head
from both officers. McClellan then kneeled on Perez’s back, and Pitcock
drove his finger and pen into Perez’s eye. Officers Taylor and Ramadan then
arrived on the scene. Ramadan began punching his eye, and Taylor jumped
on his legs. Pitcock then attempted to break Perez’s fingers. More officers
were called to the area, including Officer Thuo, who began recording with a
video camera. Perez was then lifted off the floor and placed in his cell.
Medical staff treated him cell-side three times that day.
In the officers’ use of force reports following the incident, McClellan
and Pitcock claimed that McClellan told Perez that he would need to submit
to a pre-hearing detention physical because he was being charged with
assaulting Ramadan. At that point, Perez became upset and began pulling
away from the officers’ hold and moving “in an aggressive manner.” The
officers then placed Perez face down on the floor until he was subdued.
Additional staff arrived shortly after and relieved them. Both Taylor and
Ramadan claimed in their reports that Perez was subdued in prone position
when they arrived on the scene. Sergeant Gunnels arrived shortly after and
took command of the situation. The officers then returned to their normal
work duties.
Perez subsequently brought a § 1983 lawsuit against a number of
prison officials including Correctional Officers Ramadan, Taylor, and
Pitcock; Sergeant McClellan; Warden Lacox; and Executive Director of
3
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No. 20-20036
TDCJ Livingston. Perez claimed that each defendant violated his Eighth
Amendment rights by using excessive force and denying him needed medical
care. 2 He also claimed that defendant Lacox failed to supervise his employees
and investigate their constitutional violations. The defendants moved for
summary judgment, and the district court granted summary judgment on
each claim. Perez now only appeals the district court’s summary judgement
ruling as to his excessive force claims against Ramadan, Taylor, Pitcock, and
McClellan. 3
II.
We review de novo the district court’s grant of summary judgment,
drawing all reasonable inferences in favor of the non-movant. 4 Summary
judgment is only appropriate when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. 5
When a government official asserts a defense of qualified immunity,
the burden shifts to the plaintiff to rebut that defense. 6 Still, we draw all
inferences in the plaintiff’s favor. 7
2
He further claimed that the defendants’ conduct violated his First Amendment
rights and amounted to a criminal conspiracy against him.
3
Perez does not challenge the district court’s summary judgment ruling as to any
of his other claims. Perez also moves for appointment of counsel on appeal, which we deny.
He has failed to show that this case is complex or involves exceptional circumstances. See
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
4
Hyatt v. Thomas, 843 F.3d 172, 176 (5th Cir. 2016).
5
Id. at 177.
6
Bourne v. Gunnels, 921 F.3d 484, 490 (5th Cir. 2019).
7
Id.
4
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No. 20-20036
III.
Qualified immunity protects government officials from liability unless
a plaintiff can establish (1) that a statutory or constitutional right would have
been violated on the facts alleged and (2) that the right was clearly established
at the time of the violation. 8
A.
Taking Perez’s version of the events as true, the officials’ conduct
violated his Eighth Amendment rights. Perez’s excessive force claim
properly falls under the Eighth Amendment. The Due Process Clause of the
Fifth and Fourteenth Amendments protect pretrial detainees from the use of
excessive force. 9 After conviction, the Eighth Amendment becomes the
primary source of protection for excessive force claims. 10 A claim of excessive
force under the Eighth Amendment requires an inmate to show that the force
by a prison official was applied “maliciously and sadistically to cause harm”
rather than applied as “a good-faith effort to maintain or restore
discipline.” 11 Force beyond that reasonably required to maintain or restore
discipline is “wanton and unnecessary.” 12 This standard looks to an official’s
subjective intent to punish. 13 And, in determining this intent, we consider the
well-known Hudson factors: (1) “the extent of injury suffered by an inmate,”
8
Saucier v. Katz, 533 U.S. 194, 201 (2001). However, a court may grant qualified
immunity on the ground that the right was not clearly established without first inquiring
into whether there was a constitutional violation. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
9
Bell v. Wolfish, 441 U.S. 520, 535–39 (1979).
10
Whitley v. Albers, 475 U.S. 312, 327 (1986).
11
Hudson v. McMillian, 503 U.S. 1, 6–7 (1992).
12
Id. at 7.
13
Waddleton v. Rodriguez, 750 F. App’x 248, 253 (5th Cir. 2018).
5
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(2) “the need for application of force,” (3) “the relationship between” the
need for force 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.” 14 Because of the multi-factorial inquiry
required, “[e]xcessive force claims are necessarily fact-intensive.” 15
The district court determined that Perez failed to create a genuine
factual dispute regarding the defendants’ use of force because he only offered
conclusory allegations supported by conclusory evidence. This finding was
erroneous. Both Perez and the defendants supported their version of events
with competent summary judgment evidence. Perez relied on his sworn
affidavit and contemporaneous grievance forms he filed with TDCJ. The
defendants relied on their use-of-force reports. Both relied on photographs
taken immediately after the use of force and Perez’s medical records as
evidence of Perez’s injuries.
Although the district court discounted Perez’s evidence as self-
serving, declarations made under the penalty of perjury are competent
summary judgment evidence. 16 In other use-of-force cases, we have
recognized that a self-serving affidavit may be enough to create a factual
dispute. 17 Here, Perez’s reported grievances with medical staff, sworn
declarations, and medical records likewise create a genuine dispute. The use
14
Hudson, 503 U.S. at 6–7.
15
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009).
16
Chacon v. York, 434 F. App’x 330, 332 (5th Cir. 2011).
17
See, e.g., McCoy v. Alamu, 950 F.3d 226, 229 (5th Cir. 2020) (an inmate who
supported his excessive force claim with his own allegations and declarations of witnessing
inmates provided competent summary judgment evidence), vacated on other grounds, 141 S.
Ct. 1364, remanded to 842 F. App’x 933 (5th Cir. 2021) (per curiam). But see Waddleton, 750
F. App’x at 254 (an inmate’s allegations were conclusory when the inmate’s allegations
directly contradicted the use of force depicted in a video capturing the incident).
6
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of force against Perez was not captured on video. No other inmates witnessed
the use of force. And the injuries depicted in these photographs are not
inconsistent with Perez’s allegations. Perez alleged that he suffered
discoloration of his eye, vision loss, headaches, and back pain as a result of
the officials punching him, gouging his eye, and applying force to his fingers.
Photographs included in his medical records reveal that Perez suffered from
a cut near his eye, eye swelling, and swelling and redness of his fingers.
Perez’s account is both specific and consistent with his grievances and
medical record. Thus, Perez’s allegations are not conclusory, and the court
must accept Perez’s version of the facts as true at this stage. 18
Viewing the facts in the light most favorable to Perez based on his
competent summary judgment evidence, he has shown that the defendants
violated his Eighth Amendment rights by using excessive force. A jury could
reasonably find that Perez suffered from eye discoloration, loss of vision,
headaches, and pain as a result of the defendant’s use of force; that there was
no need for the application of force because Perez was not resisting; that the
defendants did not reasonably perceive a threat by Perez at the time of the
incident; and that the defendants failed to temper the severity of their
18
Bourne, 921 F.3d at 492–93 (“Bourne and defendants offer competing versions
of what occurred during the use of force and whether defendants applied force after Bourne
stopped resisting and was restrained. Defendants assert that Bourne resisted, thus
requiring the use of force in a good faith effort to maintain or restore discipline, a contention
that is supported by the defendants’ yelling ‘stop resisting’ in the video recording. But
Bourne opposes those characterizations with his own sworn declaration and the unsworn
declarations of other inmates, asserting that because he was restrained and not resisting,
the use of force was malicious and sadistic for the very purpose of causing harm. The video
does not resolve the dispute, so there remains a genuine dispute of material fact.”).
7
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No. 20-20036
forceful response. Thus, each of the Hudson factors weighs in Perez’s favor
such that he has shown a violation of his Eighth Amendment rights. 19
The defendants persist that Perez failed to show a violation of his
Eighth Amendment rights, because even viewing the evidence in the light
most favorable to him, he has only shown de-minimis injury. But the
Supreme Court has squarely rejected a threshold requirement of a significant
or non-de-minimis injury. 20 “[A]s long as a plaintiff has suffered some injury,
even relatively insignificant injuries and purely psychological injuries will
prove cognizable when resulting from an officer’s unreasonably excessive
force.” 21 In other words, while the extent of injury is a factor in determining
“whether the use of force could plausibly have been thought necessary in a
particular situation,” 22 “[i]njury and force . . . are only imperfectly
correlated, and it is the latter that ultimately counts.” 23
B.
Accepting Perez’s version of the facts as true, he has shown that the
defendants violated clearly established law. While there does not have to be
19
See also id.(An inmate’s own declarations and unsworn declarations of other
inmates were enough evidence to create a genuine issue of fact as to whether the defendants
used excessive force.); Chacon, 434 F. App’x at 333 (an inmate’s allegations created a
factual dispute as to whether the officer used excessive force and made qualified immunity
inapplicable at summary judgment).
20
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
21
Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (quoting Brown
v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013)) (internal quotation marks removed).
22
Wilkins, 559 U.S. at 37 (quoting Whitley v. Albers, 475 U.S. 312, 321
(1985)) (internal quotation marks removed).
23
Id. at 38.
8
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No. 20-20036
a case directly on point for a right to be clearly established, 24 here caselaw
was clear at the time of the incident. Prison officials “may not ‘use gratuitous
force against a prisoner who has already been subdued.’” 25 Under Perez’s
version of the facts, he was handcuffed and complying with the officials’
orders to return to his cell when they punched him, gouged his eye, and
twisted his fingers. All reasonable officials in these circumstances would have
known that this conduct violated Perez’s Eight Amendment rights. 26
Because the defendants were on notice at the time of the incident that their
conduct violated clearly established law, they are not entitled to qualified
immunity.
IV.
We REVERSE and REMAND the district court’s grant of
summary judgment as to Perez’s excessive force claims against defendants
Ramadan, Taylor, McClellan, and Pitcock.
24
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
25
Cowart v. Erwin, 837 F.3d 444, 454 (5th Cir. 2016) (quoting Skrtich v. Thornton,
280 F.3d 1295, 1303 (11th Cir. 2002)).
26
See Thompson v. Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001).
9