Marion Mosley v. Leamon White

Filing

UNPUBLISHED OPINION FILED. [09-41091 Affirmed ] Judge: CDK , Judge: CES , Judge: PRO Mandate pull date is 01/03/2011 [09-41091]

Marion Mosley v. Leamon White Case: 09-41091

Document: 00511319980 Page: 1 Date Filed: 12/13/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 13, 2010 N o . 09-41091 Lyle W. Cayce Clerk

M A R I O N R. MOSLEY, P la in t iff - Appellant v. L E A M O N E. WHITE, D e fe n d a n t - Appellee

Appeal from the United States District Court fo r the Eastern District of Texas U S D C No. 6:09-cv-00009-LED-JKG

B e fo r e KING, STEWART, and OWEN, Circuit Judges. P E R CURIAM:* M a r io n R. Mosley (Mosley), an inmate at the Coffield Unit of the Texas D e p a r t m e n t of Criminal Justice (TDCJ), alleged that Sergeant Leamon E. White (W h it e ), an official at the TDCJ, ordered him to face the wall and put his hands b e h in d his back, and he immediately complied. Mosley claims that, after he c o m p lie d , White repeatedly poked him in the face and left eye. White's conduct c a u s e d Mosley momentary blindness and cuts and abrasions in and around his le ft eye. His left eye eventually became infected, swollen, and discolored.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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No. 09-41091 M o s le y proceeded in forma pauperis and filed a pro se suit under 42 U.S.C. § 1983. White subsequently filed a motion for summary judgment arguing, a m o n g other things, that he was entitled to qualified immunity in his individual c a p a c it y and dismissal under 42 U.S.C. § 1997e(e). The district court granted s u m m a r y judgment in White's favor. Mosley appealed. We AFFIRM. I. O n October 14, 2008, as Mosley was walking down a hallway, Donathan B e r n a r d Chandler (Chandler), another inmate, asked him a question. Because in m a t e s are not permitted to talk in the hallway, an officer yelled at him and s a id "get your ass on down the hallway." Mosley was not sure that the officer, W h it e , was speaking to him. So, he turned and looked in White's direction. At t h a t point, White stated "Yeah, bastard. I'm talking to you." When Mosley asked W h it e to stop using vulgar language, White ordered Mosley to face the wall and p u t his hands behind his back, and then threatened Mosley with a chemical a g e n t . Mosley complied with the order and kept his hands behind his back, but W h i t e proceeded to call Mosley a "bitch" and repeatedly poked him in the face a n d left eye. As White poked Mosley in the face and eye, White's nail scraped a c r o s s Mosley's eye and caused him momentary blindness and abrasions and c u ts in and around his left eye. Thirty minutes later, Mosley went to the medical department and c o m p la in e d of being poked in the left eye with a finger. The officer working the d e s k asked Mosley to complete a walk-in sick call request. A nurse examined t h e abrasions on his face and was in the process of treating his injuries when she a s k e d Mosley how he had been injured. After he told her that White injured h im , she refused to treat him until the medical department received an accident o r use of force report. Within forty-eight hours, Mosley's abrasions became in fe c t e d and remained so for six days. Discouraged by the nurse's refusal to t r e a t him, Mosley elected not to seek further medical care. He was later given 2

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No. 09-41091 a tube of antibiotic cream to apply to his eye by Louis Ray Green (Green), a n o t h e r inmate, who noticed that the left side of Mosley's face and his left eye w e r e swollen and discolored. On the day of the incident, Mosley submitted and filed his first "Offender G r ie v a n c e Form," complaining about White's actions, but it was later returned b e c a u s e the TDCJ Office of the Inspector General (OIG) determined that there w a s insufficient evidence to support his claim because "Sgt. White denies v e r b a lly abusing you and states that at no time did he poke you in the face or e y e s with his finger." Mosley's listed witness, Chandler, was never interviewed d u r in g the investigation. Also on October 14, 2008, Officer Melinda Thompson (T h o m p s o n ), who witnessed the incident, filed an offense report claiming that a ft e r she ordered the offender to get up against the wall, he refused to do so. Thompson stated that because Mosley did not listen, she and White handcuffed M o s le y and escorted him from the hallway. On October 16, 2008, White prepared an investigative report. In the r e p o r t , White states that he never touched Mosley and confirmed Thompson's o ffe n s e report statements. Subsequently, a disciplinary case was filed against M o s le y for using vulgar language. Mosley was found guilty on October 30, 2008 a n d lost 30 days of commissary privileges and received a 30-day cell restriction. On November 17, 2008, Mosley filed another grievance form, appealing the d e c is io n of his first grievance, complaining about the lack of investigation into h is original grievance complaint, and threatening to file suit in federal court if h is claim was not better investigated. It was also returned due to insufficient e v id e n c e to support the claim. On January 5, 2009, Mosley filed suit against White under § 1983, alleging t h a t White used excessive force against him in violation of the Eighth A m e n d m e n t and seeking nominal, compensatory, and punitive damages. After M o s le y filed suit, his case was referred to a magistrate judge. The magistrate 3

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No. 09-41091 ju d g e conducted a Spears1 hearing and recommended that all of Mosley's claims b e dismissed, except his "excessive use of force" claim. The district court adopted h e r report and recommendation. White, subsequently, answered Mosley's

c o m p la in t and filed a motion for summary judgment, arguing that he was e n tit le d to qualified immunity in his individual capacity because Mosley could n o t show that an excessive force incident ever occurred and that Mosley's alleged in ju r ie s failed to satisfy 42 U.S.C. § 1997e(e)'s physical injury requirement. In support of his motion for summary judgment, White submitted Mosley's m e n ta l health records from October 2008; Mosley's grievance forms; Thompson's o ffe n s e report; an affidavit from an OIG representative stating that the OIG did n o t have any case information regarding the October 14th incident; an affidavit fr o m a clerk from TDCJ's Emergency Action Center (EAC), stating that Mosley r e c e iv e d no treatment from EAC; an affidavit from a TDCJ representative s t a t in g that Mosley did not file a use of force report; an affidavit from Thompson r e it e r a t in g the statements made in her offense report; and an affidavit from a p h y s ic ia n stating that after he reviewed Mosley's medical records, he could find n o evidence of any injury. With his response to White's motion for summary judgment, Mosley su bm it t e d his unsworn affidavit and four unsworn affidavits from his co-inmates p u r s u a n t to 28 U.S.C. § 1746.2 He submitted his affidavit attesting to the facts

Pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the district court conducts a hearing to remedy inadequacy in a prisoner's pleadings. Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009). Traditionally, a Spears hearing and the use of a questionnaire help the court "bring into focus the factual and legal bases of prisoners' claims." Id. (citation and internal quotation marks omitted).
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Section 1746 states:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of

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No. 09-41091 o f his case; Chandler's affidavit, who was present during the incident, confirming M o s le y 's recitation of the facts; Green's affidavit stating that he noticed that the le ft side of Mosley's face and his left eye were swollen and discolored and offered M o s le y antibiotic cream; an affidavit from Donald Ray Briscoe, stating that W h it e previously assaulted him; and an affidavit from Richard V. Coston, s t a t in g that White previously assaulted him also. s u b m it t e d his grievance forms. After reviewing the evidence, the magistrate judge granted White's motion fo r summary judgment on qualified immunity grounds. The district court, s u b s e q u e n t ly , adopted the magistrate judge's report and recommendation.3 M o s le y appealed. For the following reasons, we AFFIRM the district court's ju d g m e n t. Additionally, Mosley

the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: (1) If executed without the United States: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)". (2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)". Because the district court adopted the magistrate judge's reports and recommendations in full, our future references will be to the district court.
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No. 09-41091 II. We review a grant of summary judgment de novo, applying the same s t a n d a r d as does a district court. BellSouth Telecoms., Inc. v. Johnson Bros. C o r p ., 106 F.3d 119, 122 (5th Cir. 1997). Summary judgment is appropriate "if t h e movant shows that there is no genuine dispute as to any material fact and t h e movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A m o v a n t can make the requisite showing by "citing to particular parts of m a t e r ia ls in the record, including depositions, documents, electronically stored in form a tio n , affidavits or declarations, stipulations . . . admissions, interrogatory a n s w e r s , or other materials." Id. 56(c)(1). The movant can also make the r e q u is it e showing by "showing that the materials cited do not establish the a b s e n c e or presence of a genuine dispute, or that an adverse party cannot p r o d u c e admissible evidence to support the fact." Id. 56(c)(2). Typically, the party moving for summary judgment must demonstrate the a b s e n c e of a genuine issue of material fact." Little v. Liquid Air Corp., 37 F.3d 1 0 6 9 , 1075 (5th Cir. 1994) (en banc) (internal quotation marks and citation o m it t e d ). However, "[a] qualified immunity defense to § 1983 liability alters the u s u a l summary judgment burden of proof; once an official pleads the defense of q u a lifie d immunity in a § 1983 action, the burden then shifts to the plaintiff." Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010); see also Michalik v. H e r m a n n , 422 F.3d 252, 262 (5th Cir. 2005). Nonetheless, we construe all of the e v id e n c e and reasonable inferences deduced therefrom in the light most fa v o r a b le to the nonmoving party. Xtreme Lashes, LLC v. Xtended Beauty, Inc., 5 7 6 F.3d 221, 226 (5th Cir. 2009); see also Brown, 623 F.3d at 253 ("The plaintiff b e a r s the burden of negating qualified immunity, . . . but all inferences are d r a w n in his favor." (citation omitted)). III. On appeal, we consider whether the district court erred when it dismissed 6

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No. 09-41091 M o s le y 's excessive force claim pursuant to Heck v. Humphrey, 512 U.S. 477 (1 9 9 4 ), and Edwards v. Balisok, 520 U.S. 641 (1997). We also address the d is t r ic t court's alternative holding that Mosley's claims should be dismissed b e c a u s e White was entitled to qualified immunity. A. T h e district court sua sponte determined that, because Mosley received a d is c ip lin a r y case and was found guilty, his § 1983 excessive force claim should b e dismissed with prejudice pursuant to the Supreme Court's decisions in Heck a n d Edwards. We disagree. Under Heck, a plaintiff in a § 1983 action may not recover damages for "a lleg ed ly unconstitutional conviction or imprisonment, or for other harm caused b y actions whose unlawfulness would render a conviction or sentence invalid," u n le s s he "prove[s] that the conviction or sentence has been reversed on direct a p p e a l, expunged by executive order, declared invalid by a state tribunal a u t h o r iz e d to make such determination, or called into question by a federal c o u r t's issuance of a writ of habeas corpus." 512 U.S. at 486­87. In Edwards, t h e prisoner sought § 1983 damages and equitable relief for a procedural defect in a prison's administrative process. 520 U.S. at 643. The Court applied Heck b e c a u s e the administrative action taken against the plaintiff could affect credits t o w a r d release based on good time served. Id. at 646­48; see also Clarke v. S ta ld e r , 154 F.3d 186, 189 (5th Cir. 1998) (en banc) (applying Heck to a ch a lle n g e to disciplinary conviction that resulted in the loss of good time credits). In Muhammad v. Close, 540 U.S. 749, 751 (2004), the Supreme Court r e it e r a t e d that Heck is not "implicated by a prisoner's challenge that threatens n o consequence for his [underlying] conviction or the duration of his sentence." Muhammad had not lost any good time credits in conjunction with his d is c ip lin a r y conviction. Id. at 752­53; see also Mahogany v. Stalder, 242 F. App'x 261, 263 (5th Cir. 2007) (holding claim for damages arising from failure 7

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No. 09-41091 t o receive written statement of evidence relied on in disciplinary proceeding was n o t barred by Heck and Edward because such damages go to the deprivation of c iv il rights, not the deprivation of good time credits). L ik e the prisoner in Muhammad, Mosley does not challenge the length of h is confinement, seek the restoration of good time credits, or seek the e x p u n g e m e n t of a disciplinary conviction that resulted in the loss of good time c r e d it . Success in the instant action would not affect the validity of Mosley's u n d e r ly in g conviction or the duration of his sentence. See Muhammad, 540 U.S. a t 751 & n.1 (noting that "[t]he assumption is that the incarceration that m a t t e r s under Heck is the incarceration ordered by the original judgment of c o n v ic t io n , not special disciplinary confinement for infraction of prison rules."). Therefore, the district court erred in determining that his excessive force claim w a s barred by Heck and Edwards. See Muhammad, 540 U.S. at 754­55. Now, w e turn to the district court's alternative holding that Mosley's claims should be d is m is s e d because White was entitled to qualified immunity. B. " Q u a lifie d immunity protects government officials from liability for civil d a m a g e s insofar as their conduct does not violate clearly established statutory o r constitutional rights of which a reasonable person would have known." Lytle v . Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009) (citation and internal q u o t a t io n marks omitted). Evaluating qualified immunity is a two-step process. First, we determine whether the plaintiff has alleged a violation of a clearly e s t a b lis h e d constitutional or statutory right. See Siegert v. Gilley, 500 U.S. 226, 2 3 1 ­ 3 2 (1991). If the court determines that there was a constitutional violation, t h e court moves to the second step, which involves "determining whether the law w a s sufficiently clear that a reasonable officer would have known that his c o n d u c t violated the constitution. Lytle, 560 F.3d at 410. As previously

e x p la in e d , qualified immunity in the summary judgment context shifts the 8

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No. 09-41091 b u r d e n of proof to the plaintiff. Brown, 623 F.3d at 253. Thus, in order to rebut W h it e 's qualified immunity defense, Mosley must establish that (1) the official's a lle g e d ly wrongful conduct was excessive force in violation of the Eighth A m e n d m e n t and (2) a genuine issues of material fact exist regarding the r e a s o n a b le n e s s of the official's conduct. Id. We conclude that Mosley has not p r o v id e d sufficient evidence that White's conduct was in violation of the Eighth A m e n d m e n t , and thus, the district court did not err in granting White's motion fo r summary judgment. The well-established rule is that the unnecessary and wanton infliction of p a in constitutes cruel and unusual punishment forbidden by the Eighth A m e n d m e n t . Hudson v. McMillian, 503 U.S. 1, 5 (1992). In the context of an a lle g a t io n of the use of excessive force by a prison official, the Supreme Court e x p la in e d that " the core judicial inquiry is . . . whether force was applied in a g o o d -fa it h effort to maintain or restore discipline, or maliciously and sadistically t o cause harm." Hudson, 503 U.S. at 9. To this end, an excessive force claim has b o th a subjective and an objective component. Id. at 8­9. The subjective

c o m p o n e n t requires the plaintiff to establish that the defendant acted m a lic io u s ly and sadistically in an "unnecessary and wanton infliction of pain." Id. at 8. To make this determination, a court should consider the need for the a p p lic a t io n of force; the relationship between the need and the amount of force u s e d ; the threat reasonably perceived by the responsible officials; and any efforts m a d e to temper the severity of a forceful response. Id. at 6. The objective component requires the plaintiff to establish that the alleged w r o n g d o in g was objectively "harmful enough" to establish a constitutional v io la t io n . Id. at 8. Thus, a party's claim must allege more than a de minimis u s e of physical force in order to state a prima facie case of an Eighth Amendment v io la t io n . Eason v. Holt, 73 F.3d 600, 604 n.24 (5th Cir. 1996). The de minimis u s e of physical force is excluded from "constitutional recognition," unless it is of 9

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No. 09-41091 a sort "repugnant to the conscience of mankind." Hudson, 503 U.S. at 10 (c it a t io n s and internal quotation marks omitted). Furthermore, it is well-

e s t a b lis h e d in this Circuit that, "to support an Eighth Amendment excessive fo r c e claim[,] a prisoner must have suffered from the excessive force more than d e minimis physical injury, but there is no categorical requirement that the p h y s ic a l injury be significant, serious, or more than minor." Gomez v. Chandler, 1 6 3 F.3d 921, 924 (5th Cir. 1999). In sum, courts considering a prisoner's excessive force claim must d e t e r m in e (1) whether the defendant acted maliciously and sadistically in an " u n n e c e s s a r y and wanton infliction of pain" and (2) whether the alleged w r o n g d o in g was objectively "harmful enough" to establish a constitutional v io la t io n . Id. If a party fails to meet either of these requirements, there is not a valid Eighth Amendment claim. Eason, 73 F.3d at 601­02. Here, even

a s s u m in g that Mosley has established the subjective component of the Eighth A m e n d m e n t analysis, he has not established the objective part of the inquiry. Accordingly, our analysis centers on the objective component--whether the p la in t iff established that the alleged wrongdoing was objectively "harmful e n o u g h " to constitute a constitutional violation." Hudson, 503 U.S. at 9. Analyzing the objective component of Mosley's Eighth Amendment claim, t h e district court determined that Mosley's failed to establish that his injuries w e r e constitutionally cognizable. In reaching its determination, the district c o u r t relied on our decisions in Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1 9 9 7 ) and Gomez. In Siglar, the prisoner alleged that a guard stopped him in the hall of his p r is o n unit while returning from breakfast. 112 F.3d at 193. The guard directed t h e prisoner to face the wall while she searched him. Id. She found a biscuit in h is jacket pocket and called for backup. Id. The backup officer then, "[w]ithout p r o v o c a t io n , . . . twisted Siglar's arm behind his back and twisted Siglar's ear." 10

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No. 09-41091 I d . "Siglar's ear was bruised and sore for three days but he did not seek or r e c e iv e medical treatment for any physical injury resulting from the incident." Id. There was no evidence in the record that Siglar sought or received medical t r e a t m e n t for his injuries or that he suffered from a long term injury. Id. at 193. We affirmed the dismissal of his complaint as frivolous, concluding that his b r u is e d ear, lasting for three days, was de minimis and that it was not a " p h y s ic a l injury" under § 1997e(e). Id. at 193­94. By contrast, in Gomez, a prisoner alleged that he was knocked down, w it h o u t provocation, that his head struck the concrete floor, his face was then s c r a p e d against the floor, he was punched in the face by two officers using their fis ts for about five minutes, and a third officer then kicked him in the face and h e a d , after which one of the two officers continued to hit him with his fist. 163 F .3 d at 924­25. The defendant's summary judgment evidence included an " I n m a t e use of force injury report" and a medical report that the prisoner was in ju r e d and treated two days after the incident for abrasions. Id. at 922. The c o u r t noted that its precedent had no categorical requirement that to state an E ig h t h Amendment claim the physical injury be significant, serious, or more t h a n minor. Id. at 924. The court declined to find that the injuries, "`cuts, s c r a p e s , contusions to the face, head, and body,'" were no more than de minimis a s a matter of law and vacated the district court's grant of summary judgment. Id. at 924­25. Arguably the injuries in this case--momentary blindness, cuts and a b r a s io n s in and around the eye, and an infected eye--fall somewhere between t h e injuries at issue in Siglar and the injuries at issue in Gomez. However, M o s le y has not provided sufficient evidence that his injuries were

c o n s t it u t io n a lly cognizable such that his claims would survive summary ju d g m e n t . For example, in Gomez the plaintiff provided the court with an in m a t e use of force report, as well as a medical report indicating that he was 11

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No. 09-41091 in ju r e d and was treated for those injuries. Here, the record is devoid of such e v id e n c e . In response to White's motion for summary judgment, as previously e x p la in e d , Mosley provided the district court with his affidavit and those of his c o -in m a t e s and his grievance reports. Although we recognize that the affidavits a n d reports constitute valid summary judgment evidence, FED. R. CIV. P.

5 6 (c )(4 ), we have explained that without more, "conclusory allegations, s p e c u l a t io n , and unsubstantiated assertions are inadequate to satisfy the n o n m o v a n t 's burden" and defeat a motion for summary judgment. Douglass v. U n ite d Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996). As Mosley has not m e t his evidentiary burden that his injuries were objectively "harmful enough" t o constitute a constitutional violation, he fails to establish that White's conduct c o n s t it u t e s a violation of the Eighth Amendment. Thus, the district court did n o t err in granting White's motion for summary judgment. Eason, 73 F.3d at 601­02. IV. A c c o r d in g l y , we AFFIRM the district court's judgment, dismissing M o s le y 's claim as White is entitled to qualified immunity.

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