Petition for Writ of Certiorari — Michael Joseph DeMarco, Jr., Petitioner v. Jeremy J. Bynum

\

©nttetr States Court of Sllppeate

for tfjc Jfiftl) Circuit

United States Court of Appeals

Fifth Circuit

FILED

October 4, 2022

No. 20-11047

Lyle W. Cayce

Clerk

Michael Joseph DeMarco, Jr.

Plaintiff—Appellant,

versus

Jeremy J. Bynum, Officer,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:14-CV-94

Before Clement, Duncan, and Wilson, Circuit Judges.

Per Curiam:

Michael Joseph DeMarco, Jr., Texas prisoner # 1564162, appeals the

summary judgment dismissal of his 42 U.S.C. § 1983 claim that Jeremy

Bynum, a correctional officer at the Allred Unit of the Texas Department of

Criminal Justice (TDCJ), confiscated DeMarco’s religious materials in

violation of the Free Exercise Clause of the First Amendment. We affirm.

I.

In August 2014, DeMarco filed this § 1983 action against Bynum and

other defendants. The district court dismissed the action for failure to state

APPENDIX A

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No. 20-11047

a cognizable claim. DeMarco appealed, and this court affirmed in part,

reversed in part, and remanded. DeMarco v. Davis, 914 F.3d 383,386-90 (5th

Cir.) (affirming dismissal of all defendants and claims save the free exercise

claim against Bynum), cert, denied, 140 S. Ct. 250 (2019). Following remand,

Bynum moved for summary judgment. He contended that TDCJ

Administrative Directive (AD) 03.72 and his confiscation of DeMarco’s

religious materials pursuant to that policy were reasonably related to a

legitimate penological objective, namely, maintenance of prison security

based on Bynum’s belief that the confiscated materials could be used in the

trafficking or possession of contraband. Bynum also contended that he was

entitled to qualified immunity. The district court agreed with Bynum on both

points and granted summary judgment. DeMarco filed a timely notice of

appeal.

II.

We review a district court’s grant of summary judgment de novo,

applying “the same standard as that employed by the district court. ” McFaul

v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). That is, we affirm “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.” Id. (quoting Fed. R.

Civ. P. 56(a)).

III.

On appeal, DeMarco attempts to raise several issues.1 But only one

issue was remanded to the district court for consideration: whether Bynum’s

1 For example, DeMarco argues that the confiscated materials were not altered and

that TDCJ failed to follow protocols regarding storage of confiscated materials and chain

of custody, as well as procedures regarding disciplinary hearings. These arguments are

immaterial to this appeal. Whether the materials were altered is inconsequential because

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confiscation of DeMarco’s materials violated DeMarco’s constitutional

rights under the Free Exercise Clause, i.e., “whether the alleged confiscation

was reasonably related to a legitimate penological objective.” See DeMarco,

914 F.3d at 389-90. The district court’s ultimate ruling on this issue rested

on two key grounds that are supported by the record and the law: DeMarco’s

property was improperly stored per AD-03.72, and AD-03.72 is reasonably

related to a legitimate penological goal of prison safety. Summary judgment

was thus proper.

As stated in our prior opinion in this case, “ [a]n inmate retains his

right to the free exercise of religion, subject to reasonable restrictions

stemming from legitimate penological concerns.” Id. at 388-89. When

evaluating the reasonableness of a prison’s policy, we consider (1) whether

there is a “valid, rational connection” between the regulation and the

government interest; (2) whether there are alternative means of exercising

the rights that remain open to prisoners; (3) the impact that accommodation

of the asserted constitutional rights would have on other prisoners, guards,

and prison resources; and (4) the presence or absence of ready alternatives

that fully accommodate a prisoner’s rights at de minimis cost to valid

penological interests. Turner v. Safley, 482 U.S. 78, 89-91 (1987) (citation

omitted). “[Pjrison officials are entitled to ‘substantial deference’ in the

exercise of their professional judgment,” and it is an inmate’s burden to

prove “that a prison policy, as applied, is not reasonably related to legitimate

penological objectives.” DeMarco, 914 F.3d at 389.

DeMarco concedes that the materials were not properly stored. Further, the district court

previously severed DeMarco’s claim that he was denied due process at his disciplinary

hearing; that claim is thus a separate cause of action not part of this appeal. See DeMarco,

914 F.3d at 387 & n.3.

No. 20-11047

AD-03.72 concerns the possession of inmate property. Section V

(uIn-Cell Storage Requirements”) provides that when an inmate is not in his

cell, his property—with some exceptions not relevant here—must be stored

in a container with a storage capacity of 1.75-2.0 cubic feet. Section VIII

(“Confiscation of Offender Personal Property”) states that the inmate’s

“personal property may be confiscated at any time, from any location, for the

reasons indicated in [Section VIII], and any other appropriately documented

circumstances as necessary to ensure safety and security.” One such reason

is improper storage of property. The policy also defines non-dangerous

contraband as “authorized property which has been altered, damaged,... or

is out of place,” and states that this type of contraband “ [Represents a threat

to the management of the unit” and “violates TDCJ rules. ”

DeMarco concedes that he did not store his religious materials as

required by AD-03.72. And this court has previously indicated that TDCJ

policies regarding storage of personal property do not infringe on a prisoner’s

right to free exercise of religion. See Long v. Collins, 917 F.2d 3, 4 (5th Cir.

1990) (addressing AD-03.72 and suggesting, albeit in dicta, that prison

officials may impose reasonable restrictions on the amount and type of

personal property inmates can possess without violating prisoners’

constitutional rights); see also Carrio v. Tex. Dep’t ofCrim. Just., Inst. Div.

196 F. App’x 266, 268 (5th Cir. 2006) (stating prisoner’s “claimed denial of

his First Amendment right to free exercise of his religion when prison

officials enforced a new prison storage policy was ... properly dismissed

because the storage policy [was] reasonably related to legitimate penological

interests” (citing Safley, 482 U.S. at 89)). We now confirm that to be the

case.

Evaluating AD-03.72 in view of the considerations outlined in Safleyy

482 U.S. at 89-91, Bynum’s confiscation of DeMarco’s religious materials

was reasonably related to a legitimate penological objective. First, there is a

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No. 20-11047

“valid, rational connection” between AD-03.72 and TDCJ’s interest in

prison safety and management, insofar as the policy is aimed at reducing the

access of others to an inmate’s personal property and preventing the

trafficking of contraband. SeeSafley, 482 U.S. at 89 (citation omitted). There

is also an alternative way for DeMarco to exercise his First Amendment

rights, by accessing religious reading materials through the prison chaplain.

The impact of accommodating DeMarco’s constitutional rights on other

prisoners, guards, and prison resources could be great, given the

management and safety concerns underlying the policy. See id. at 90 (noting

that “ [i]n the necessarily closed environment of the correctional institution,

few changes will have no ramifications on the liberty of others or on the use

of the prison’s limited resources for preserving institutional order”). Finally,

DeMarco has not “ pointed] to an alternative that fully accommodates [his]

rights at de minimis cost to valid penological interests.” Id. at 91. For these

reasons, the district court did not err by concluding that DeMarco failed to

demonstrate a violation of his First Amendment rights based on Bynum’s

confiscation of his improperly stored religious materials pursuant to AD03.72.

Moreover, even if Bynum had violated DeMarco’s constitutional

rights, the district court correctly found that Bynum was entitled to qualified

immunity because his actions were objectively reasonable. “The doctrine of

qualified immunity shields officials from civil liability so long as their conduct

‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known. ’ ” Perniciaro v. Lea, 901 F.3d

241, 255 (5th Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).

But “ [a]n official that violates a constitutional right is still entitled to qualified

immunity if his or her actions were objectively reasonable. ” Id. Bynum

contends that he seized the materials because inmates can use unsecured

items for trafficking and contraband purposes; this position is supported by

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No. 20-11047

evidence in the record as well as the law referenced above. DeMarco, who

has the burden to rebut the qualified immunity defense, Baldwin v. Dorsey,

964 F.3d 320, 325 (5th Cir. 2020), does not meaningfully do so.

AFFIRMED.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

MICHAEL JOSEPH DEMARCO, JR.,

TDCJ No. 01564162,

Plaintiff,

v.

JEREMY J. BYNUM,

Defendant.

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Civil Action No. 7:14-cv-094-O

ORDER DISMISSING CASE

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by Michael Joseph

DeMarco, Jr., an inmate confined in the James V. Allred Unit of the Texas Department of Criminal

Justice (“TDCJ”) in Iowa Park, Texas. Defendant Jeremy J. Bynum is a former correctional officer

at the Allred Unit. Pending before the Court are Defendant Bynum’s Motion for Summary

Judgment and Plaintiffs Brief in Opposition. ECF Nos. 60, 73. Upon consideration of the motion,

the response, the record in this case, and the summary judgment evidence, the Court finds that the

Motion for Summary Judgment should be granted.

Background

By order and judgment entered September 29, 2017, this action was dismissed for failure

to state a claim on which relief may be granted. See ECF Nos. 25, 26. Plaintiff filed a notice of

appeal to the United States Court of Appeals for the Fifth Circuit. See ECF No. 26. On January 28,

2019, the Fifth Circuit affirmed this Court’s dismissal of Plaintiff s claims that (1) his property

was unlawfully confiscated, (2) he was denied access to the courts, (3) he suffered unlawful

retaliation, and (4) Defendants Boyle and Stephens denied him the right to freely exercise his

religion by failing to train subordinates and by ignoring previous complaints about Defendant

APPENDIX A (A-2)

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Bynum. See ECF No. 31. But, the Court of Appeals found that Plaintiff had stated a cognizable

free exercise claim against Defendant Bynum in his individual capacity for confiscating Plaintiff s

religious materials. Id. at 8. The Fifth Circuit remanded the case to this Court for further

consideration of that one claim and directed that, “[o]n remand, the [district] court should

determine whether the alleged confiscation was reasonably related to a legitimate penological

objective.” Id.

Legal Standards

Although incarcerated, an inmate retains his First Amendment right to the free exercise of

religion, subject to reasonable restrictions and limitations necessitated by penological goals. E.g.,

(

Turner v. Safley, 482 U.S. 78, 89-91 (1987); O’Lone v. Estate of Shabazz, 482 U.S. 342, 349-50

(1987); Powell v. Estelle, 959 F.2d 22, 25-26 (5th Cir. 1992). To fall within the purview of the free

exercise clause of the First Amendment, a religious claim must satisfy the following two criteria:

“First, the claimant’s proffered belief must be sincerely held; the First Amendment does not extend

to ‘so-called religions which ... are obviously shams and absurdities and whose members are

patently devoid of religious sincerity.

?

Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981)

(quoting Theriault v. Carlson, 495 F.2d 390, 395 (5th Cir. 1974)). Second, “the claim must be

rooted in religious belief, not in ‘purely secular’ philosophical concerns.” Id. (citing Wisconsin v.

Yoder, 406 U.S. 205, 215-16 (1972)). Thus, only practices associated with sincerely held religious

beliefs require accommodation by prison officials. See e.g., U.S. v. Daly, 756 F.2d 1076, 1081 (5th

Cir. 1985) (citing United States v. Ballard, 322 U.S. 78, 86-88 (1944) and United States v. Seeger,

380 U.S. 163, 184 (1965)); Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994), supplemented, 65

F.3d 148 (9th Cir. 1995); Mosier v. Maynard, 937 F.2d 1521,1526 (10th Cir. 1991). Unfortunately,

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the realities of prison life dictate that even religious practices associated with sincerely held

religious beliefs may be limited “in order to achieve legitimate correctional goals or to maintain

prison security.” O’Lone, 482 U.S. at 348.

To establish a free exercise violation, an inmate must demonstrate that prison officials

prevented him from engaging in his religious conduct without any justification related to legitimate

penological concerns. Turner, 482 U.S. at 89. In reviewing such claims, the Court considers the

following factors: (1) whether a prison regulation is rationally related to a legitimate penological

goal; (2) whether alternative means of exercising the right in question remain open to inmates; (3)

the impact of accommodation on guards, other inmates and prison resources in general, and; (4)

whether there is an absence of ready alternatives which would evince the reasonableness of a

regulation or the existence of reasonable alternatives which would evince the unreasonableness of

a regulation. Id. at 90. In evaluating prison rules that impinge on religious practices, the Court

must accord wide deference to prison officials’ decisions in light of the need to preserve internal

order and security unless there is substantial evidence to indicate that prison administrators have

exaggerated their response to such considerations. See id.

Discussion

Plaintiff DeMarco claims that he was denied his First Amendment right to the free exercise

of his religion when Defendant Bynum confiscated and destroyed his collection of religious books

and two Bibles. See Complaint, ECF No. 3 at 4. Plaintiffs Answers to the Court’s Questions No.

1-4; ECF No. 15 at 1-4. Bynum concedes that Plaintiffs property was confiscated and that the

property could have included religious books by Max Lucado, Charles Swindoll, and Joel Osteen,

along with Plaintiffs Bible. See Brief in Support of Motion for Summary Judgment, ECF No. 61

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at 10. But Bynum argues that Plaintiffs property was confiscated because it was altered and

improperly stored. Id.

TDCJ-AD-03.72 Policy, Section V, “In-Cell Storage Requirements” provides that when an

offender is absent from his housing area, his property, with some exceptions which do not include

religious materials, shall be stored in a container with a storage capacity between 1.75 and 2.0

cubic feet. See Defendant’s Appendix in Support of Motion for Summary Judgment (hereinafter

“Defendant’s Appendix”), ECF No. 62 at 374-75; Affidavit of Property Officer O’Rourke, ECF

No. 62 at 416-17.

TDCJ-AD-03.72 Policy, Section VIII, “Confiscation of Offender Personal Property”

provides that “[a]n offender’s personal property may be confiscated at any time, from any location,

for the reasons indicated in this section, and any other appropriately documented circumstances as

necessary to ensure safety and security.” See Defendant’s Appendix, ECF No. 62 at 381. The

policy provides that improperly stored property may be confiscated. Id. “Improperly stored

property” is defined as property that “is not stored in accordance with this directive when the

offender is not present in the assigned housing area.” Id.

Plaintiff states that he was “at lunch, away from [his] cubicle” when Bynum seized his

property. See Plaintiffs Brief in Opposition to Defendant’s Motion for Summary Judgment

(hereinafter “Brief in Opposition”), ECF No. 73 at 9. Plaintiff further states that “[his] religious .

. . property was neatly stacked in a commissary bag directly behind [his] locker.” Id. at 7. He

claims that two other inmates saw Bynum enter his cell, reach behind his locker, and seize his

property. Id. at 9. Plaintiff states that Bynum later returned to his cell without his property. Id.

Plaintiff claims that he asked Bynum why he took the property but Bynum acted indifferent and

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then stated, “you don’t f

with me" and “I can take whatever I want, whenever I want.'’ Id. at

9-10.

In his Step One and Step Two Grievances, where Plaintiff first described his encounter

with Bynum, he states that he twice asked Bynum why he confiscated his legal and religious

materials and that Bynum “didn’t reply” and just “stared back at [him].” See Plaintiffs Exhibit,

ECF No. 3 at 11, 13. In a later Step One Grievance filed by Plaintiff, he repeats his earlier statement

that Bynum just stared at him when Plaintiff asked why his legal and religious materials were

confiscated. See Plaintiffs Appendix, ECF No. 73-1 at 17.

In his Complaint, Plaintiff discusses his encounter with Bynum on the day his property was

seized but makes no mention of the statements allegedly made by Bynum. See ECF No. 3 at 4-5.

In his Answers to the Court’s Questions, Plaintiff alleges for the first time that Bynum “stated that

he could take whatever he wanted whenever he wanted.” ECF No. 15 at 2. Then, in his Brief in

Opposition to Defendant’s Motion for Summary Judgment, Plaintiff adds another allegation that,

during his encounter with Bynum, Bynum said, “you don’t f

with me.” See ECF No. 73 at 9-

10. Despite Plaintiffs changing allegations, any such flippant remarks made by Bynum have no

impact on the Court’s decision considering the pleadings, the weight of the summary judgment

evidence, the relevant case law, and the Court’s analysis. See Fifth Circuit Opinion, ECF No. 31

at 6 (stating that DeMarco’s “changing tale [of retaliation] is conclusional at best.”).

Defendant’s summary judgment evidence includes a “Disposition of Confiscated Offender

Property” form which reflects that DeMarco’s property was confiscated because it was

“improperly stored” and because the 13 books taken were “altered.” See Defendant’s Appendix,

ECF No. 62 at 39. The form further indicates that DeMarco “[rjefused to sign” the “Offender

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Notification” section. Id. The TDCJ Investigation Worksheet also reflects that Bynum confiscated

DeMarco’s property because it was improperly stored. Id. at 15.

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Plaintiff argues that the confiscated religious books were not altered, that Bynum has failed

to describe how the books were altered, and that he did not refuse to sign the “Offender

Notification” regarding confiscation of property. See Brief in Opposition, ECF No. JJ3 at 16-17,

19. But Plaintiff does not dispute Bynum’s claim that his legal and religious materials were

improperly stored. See Brief in Opposition, ECF No. 73; Plaintiffs Statement of Disputed Factual

Issues, ECF No. 74; Plaintiffs Declaration in Opposition to Defendant’s Motion for Summary

Judgment, ECF No. 75.

Prison officials may impose reasonable restrictions on the type and amount of personal

property that inmates are allowed to possess while in prison. See Long v. Collins, 917 F.2d 3, 4

(5th Cir. 1990); McRae v. Hankins, 720 F.2d 863, 869 (5th Cir. 1983). “Texas prison regulations

concerning space limitations for the storage of inmate property have been upheld by the Fifth

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Circuit.” Morris v. Cross, No. 6:09-cv-236, 2010 WL 5684412 at *10 (E.D. Tex. Dec. 17, 2010)

(citing Long v. Collins, 917 F.2d 3, 4-5 (5th Cir. 1990); Guajardo v. Crain, 275 F. App’x 290,

2008 WL 1790385 (5th Cir., April 17, 2008)), rec. adopted, 2011 WL 346071 (E.D. Tex. Feb. 1,

2011), aff’d, 476 F. App’x 783 (5th Cir. 2012). The United States Court of Appeals for the Fifth

Circuit has held that the TDCJ’s policy requiring proper storage of an inmate’s personal property,

including religious materials, directly and reasonably relates to the legitimate penological goal of

maintaining prison security. Carrio v. Texas Dep't of Criminal Justice, Institutional Div., 196 F.

App’x 266, 268 (5th Cir. 2006).

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As noted earlier, the TDCJ policy requires that, when an offender is absent from his

housing area, his property, with some exceptions that are irrelevant here, shall be stored in a TDCJapproved container which has a storage capacity between 1.75 and 2.0 cubic feet. See Defendant’s

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Appendix, ECF No. 62 at 374-75; Affidavit of Property Officer O’Rourke, EOF No. 62 at 416-17.

Plaintiff concedes that he was at lunch, away from his assigned cell, when Bynum confiscated his

property which included religious materials. See Brief in Opposition, ECF No. 73 at 9. Plaintiff

further concedes that his religious materials were stacked in a commissary bag located behind his

storage locker. Id. at 7. And he claims that Bynum was seen by other inmates entering his cell and

taking the property that was located behind his locker. Id. at 9. Defendant’s summary judgment

evidence, along with Plaintiffs statements, establish that Plaintiffs religious materials were not

stored in his TDCJ-approved storage container when he was away from his assigned housing area.

Rather, they were improperly stored in a commissary bag located behind his locker. Thus, the

Court finds that the confiscation of Plaintiff s improperly stored property was reasonably related

to a legitimate penological goal of maintaining prison security. See Carrio, 196 F. App’x at 268.

The summary judgment evidence establishes that DeMarco retained his right to practice

his religion by reading religious materials available from the prison Chaplain who is authorized to

provide free religious literature to inmates upon request. See Chaplaincy Policy 11.07, ECF No.

62 at 193-95. The evidence further establishes that, if inmate property is left unsecured and

improperly stored, any offender can gain access to the property which can lead to trafficking and

contraband violations thereby compromising prison security. See Affidavit of Property Officer

O’Rourke, ECF No. 62 at 416-17. Because the confiscation of DeMarco’s improperly stored property

was reasonably related to the legitimate penological objective of maintaining prison security, DeMarco

cannot demonstrate a violation of his First Amendment rights.

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Qualified Immunity

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Defendant Bynum has asserted the defense of qualified immunity. Government officials

are entitled to qualified immunity from suit when performing discretionary functions unless their

conduct violated statutory or constitutional rights, clearly established at the time of the alleged

incident, of which a reasonable person would have known. Gibson v. Rich, 44 F.3d 274, 277 (5th

Cir. 1995). “Qualified immunity is a defense from both liability and suit.” Heitschmidt v. City of

Houston, 161 F.3d 834, 840 (5th Cir. 1998) (citing VanderZee v. Reno, 73 F.3d 1365, 1368 (5th

Cir. 1996)).

The first step in evaluating a government official’s entitlement to a defense of qualified

immunity is to determine both what the current applicable law is and whether it was clearly

established at the time of the events giving rise to the lawsuit. Schultea v. Wood, 47 F.3d 1427,

1432 (5th Cir. 1995) (citing Siegert v. Gilley, 500 U.S. 226, 231 (1991)). If the plaintiff has stated

a violation of a constitutional right which was clearly established at the time, the Court should then

determine whether a reasonable official would have understood that his or her conduct violated

that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). The law relating an inmate’s First

Amendment right to freely exercise his religion was well established at the time of the events

giving rise to this lawsuit. The Court has determined that Defendant Bynum acted in accordance

with well-established law.

Based upon the pleadings and evidence before this Court, the conduct of Defendant Bynum

was objectively reasonable under the circumstances. As such, he is entitled to qualified immunity

from suit.

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Conclusion

Summary judgment is proper when the pleadings and evidence illustrate that no genuine

issue exists as to any material fact and that the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir. 1991). Disputes

concerning material facts are genuine if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Douglass v. United Servs. Auto. Ass ’n, 79 F.3d 1415, 1429 (5th

Cir. 1996) (en banc) (quoting Anderson

Liberty Lobby, Inc., All U.S. 242, 248 (1986)).

Substantive law provides that an issue is “material” if it involves a fact that might affect the

outcome of the suit under the governing law. Anderson, All U.S. at 248; Burgos v. Southwestern

Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The nonmovant is not required to respond

to the motion until the movant properly supports his motion with competent evidence. Celotex

Corp. v. Catrett, All U.S. 317, 323 (1986); Tubacex, Inc. v. M/VRisan, 45 F.3d 951, 954 (5th Cir.

1995). However, once the movant has carried his burden of proof, the nonmovant may not sit idly

by and wait for trial. Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988).

When a movant carries his initial burden, the burden then shifts to the nonmovant to show

that the entry of summary judgment is inappropriate. Celotex, All U.S. at 322-24; Duckett v. City

of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992). Although the nonmovant may satisfy this

burden by tendering depositions, affidavits, and other competent evidence, “conclusory

allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant’s

burden,” Douglass, 19 F.3d at 1429, as “the adverse party’s response . . . must set forth specific

facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Merely colorable

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evidence or evidence not significantly probative, however, will not defeat a properly supported

motion for summary judgment. Anderson, All U.S. at 249-50. Furthermore, a mere scintilla of

evidence will not defeat a motion for summary judgment. Anderson, All U.S. at 252; Davis v.

Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).

Summary judgment evidence is viewed in the light most favorable to the party opposing

the motion. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);

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Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). In addition, factual controversies are resolved

in favor of the nonmovant, but only when both parties have submitted evidence of contradictory

facts, thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc). In the absence of any proof, however, the Court does not assume that the

nonmovant could or would prove the necessary facts. Id.

In making its determination on the motion, the Court looks at the full record including the

pleadings, depositions, answers to interrogatories, admissions, and affidavits. Fed. R. Civ. P. 56(c);

Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). However, “the [Court’s] function is not [ ]

to weigh the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial.” Anderson, All U.S. at 249, 106 S. Ct. at 2511. The movant’s motion for

summary judgment will be granted if he meets his burden and the nonmovant fails to make the

requisite showing that a genuine issue exists as to any material fact. Fed. R. Civ. P. 56(e)(2).

The summary judgment evidence presented in this case establishes that there are no

genuine issues of material fact for trial and that Defendant Bynum is entitled to summary judgment

as a matter of law.

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For the foregoing reasons and considering the summary judgment evidence submitted,

Defendant’s Motion for Summary Judgment (ECF No. 60) is GRANTED and Plaintiff’s

complaint is DISMISSED with prejudice.

SO ORDERED this 29th day of September, 2020.

(l@

eed O’Connor

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

MICHAEL JOSEPH DEMARCO, JR.,

TDCJ No. 01564162,

Plaintiff,

v.

JEREMY J. BYNUM,

Defendant.

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Civil Action No. 7:14-cv-094-O

JUDGMENT

This action came on for consideration by the Court, and the issues having been duly

considered and a decision duly rendered,

It is ORDERED, ADJUDGED, and DECREED that Defendant’s Motion for Summary

Judgment (ECF No. 60) is GRANTED and Plaintiffs complaint is DISMISSED with prejudice.

SIGNED this 29th day of September, 2020.

eed O'Connor

UNITED STATES DISTRICT JUDGE

APPENDIX A (A-3)

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