Amos v. Jefferson et al
Filing
47
MEMORANDUM OPINION Granting 37 MOTION for Summary Judgment (Substantive) filed by Michelle Arnold, S. Walker, C Story, Jermetras Willis, Bob Page, Denise Jefferson and ORDER OF DISMISSAL. It is ORDERED the Defendants motion for summ ary judgment (docket no. 37) is GRANTED and the above-styled civil action is DISMISSED WITH PREJUDICE. It is further ORDERED any and all motions which may be pending in this civil action are hereby DENIED. Signed by Magistrate Judge Caroline Craven on 2/27/2019. (slo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
CALVIN AMOS
§
v.
§
DENISE JEFFERSON, ET AL.
§
CIVIL ACTION NO. 5:17cv195
MEMORANDUM OPINION GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND ORDER OF DISMISSAL
The Plaintiff Calvin Amos, a former inmate of the Bowie County Correctional Center
proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged
violations of his constitutional rights. The parties have consented to allow the undersigned United
States Magistrate Judge to enter final judgment in accordance with 28 U.S.C. 636(c). The named
Defendants are: Lt. Denise Jefferson; Warden Bob Page; Captain Sherdona Walker; and Nurses
Jermetras Willis, Charlotte Storey, and Michelle Arnold.
Defendant filed a motion for summary judgment (docket no. 37) on August 17, 2018. After
review of this motion, the pleadings, and the summary judgment evidence, the Court finds that the
motion for summary judgment should be granted.
I. The Plaintiff’s Complaint
A. Lt. Jefferson
In his complaint, Plaintiff states on July 8, 2017, Lt. Jefferson used excessive force by
spraying him, on two different occasions, with a large burst of chemical agents a few minutes apart.
He states he was sprayed in the eyes, nose, mouth, right ear, head, neck, and on his shoulder.
According to Plaintiff, Lt. Jefferson then encouraged the nurses not to provide him with any medical
attention, saying Plaintiff could use the water in his cell to decontaminate.
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Plaintiff asserts as a result of this incident, Lt. Jefferson was demoted from the rank of
lieutenant down to corporal and transferred from the Bowie County Correctional Center to the BiState Justice Center. He states Lt. Jefferson bullied him and used the chemical agents outside of
protocol and has shown deliberate indifference to him on several other occasions as well. He argues
he was “in total compliance and within orders” and she was several feet away from him, out of range
for him to cause her any harm at all, but she sprayed him despite his telling her he would have an
allergic reaction to the spray.
As a result of the incident, Plaintiff contends he suffered injuries to his eyes and right ear as
well as bad headaches because he did not receive proper medical care afterwards. He again asserts
the use of the chemical agent was outside of protocol and “not even required or needed or used
within guidelines.”
B. Warden Page
Plaintiff states Warden Page has neglected his role and does not allow his leadership role as
warden “to be seen or felt.” He contends Warden Page allowed Lt. Jefferson to repeatedly use
excessive force when it was not required or needed and put her in a leadership or supervisory
position where she overstepped boundaries and used unlawful force against individuals for personal
gain or for reasons of dislike. Plaintiff argues Warden Page knew or should have known of the
substantial risk Lt. Jefferson caused him, but instead the warden “sits in his office and allows the
officers on the wing to run everything the way they choose;” he explains Warden Page is
approaching retirement and has the mindset of allowing officers to do as they please.
Plaintiff also maintains Warden Page allowed Lt. Jefferson, whom he describes as
“incompetent and not properly qualified,” to carry and use the chemical agent. He states Warden
Page “has okayed and permitted her many wrong actions” and claims Warden Page knew Lt.
Jefferson was not competent. (Docket no. 1, p. 10).
Plaintiff states while he was on suicide watch, there should have been no interaction between
himself and other prisoners, but an unescorted Bowie County inmate was allowed to enter his cell
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with a claw hammer and a long screwdriver. Plaintiff says he was “out of his mind” and thought the
other inmate was about to kill him. Plaintiff also complains while on suicide watch, he was not
allowed to have any items in his cell except for a gown, but he was given a trash bag. He asserts
Warden Page “is negligent for unlawful use of excessive force and failing to protect and defend me
and for failing to properly train staff while being the warden, while also allowing me to be in an
unsafe suicidal environment.” (Docket no. 1, pp. 11-12).
C. Captain Walker
Plaintiff states he spoke to Captain Walker three times over a two year period about Lt.
Jefferson’s dislike for him and how she treated him differently, but Lt. Jefferson’s actions did not
changed. Plaintiff filed a grievance and Captain Walker reassured him he would be treated fairly and
equally like other inmates. As a result, Plaintiff states he did not continue the grievance process.
Despite this promise, Plaintiff states Lt. Jefferson unlawfully used excessive force on him
on July 8, 2017, by spraying him with the chemical agent, leaving him with injuries to his vision and
right ear and his hearing after not being able to receive medical treatment due to Lt. Jefferson’s
conspiracy with the nurses. He contends Captain Walker had knowledge he was being mistreated
but failed to protect him.
D. Nurses Willis and Storey
Plaintiff complains Lt. Jefferson told Nurse Willis and Nurse Storey since Plaintiff did not
know how to treat women, they should not treat him. He claims both nurses refused him medical
attention after being sprayed with chemical agents. He states he was not allowed to use the eyewash
station in the medical department even after asking to use it; instead, the nurses told him he could
use the water in his cell. Plaintiff advised them the water in his cell did not work and he did not have
access to running water, but they did not take his word.
Plaintiff states he was sprayed in his right ear, and he asked the nurses to flush his ear, but
the nurses allowed Lt. Jefferson to make the medical decisions. She told them flushing his ear was
not necessary. Plaintiff states because he did not have water in his cell, the chemical agent remained
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on his skin and in his eyes and burned for days. His right ear still has pain because the chemical
agent mixed with the ear wax. His eyes were blurry and cloudy for weeks, he has black spots in his
vision, and showering reactivates the chemical agent embedded in his ear. He claims he has earaches
and a ringing in his ears as well as severe headaches starting on the right side of his head by his right
ear.
According to Plaintiff, the medical department will not acknowledge his requests seeking
treatment. On August 4, 2017, a nurse did see him and referred him to the doctor; however, Plaintiff
complains ninety days later, he had not yet been seen. The only treatment he states he received was
the checking of his oxygen level by the nurses.
E. Nurse Arnold
Plaintiff states on July 10, 2017, Nurse Arnold told him she and her department were a team
and a decision one person made, they all made. In doing so, Plaintiff contends she began to conspire
with Nurse Willis, Nurse Storey, and Lt. Jefferson by not providing him needed medical attention.
He asserts Nurse Arnold made false statements and falsified documents to cover up and justify his
not being treated or decontaminated or having his eyes and ears flushed. Afterwards, Plaintiff
complains Nurse Arnold was allowed to answer every step of the grievance process and to respond
to grievances against her. He states she even responded to grievances which were security and not
medical issues. Plaintiff identifies Nurse Arnold as the health services administrator and states she
has nothing to do with issues outside of medical.
F. Plaintiff’s Grievances
Plaintiff attached a number of grievances to his complaint, which are properly viewed as part
of the pleading. Fed. R. Civ. P. 10(c). Grievance no. BOW17-00146 concerned the alleged
confiscation of some of his commissary items while he was on suicide watch. (Docket no. 1-1, pp.
2-4). Grievance no. BOW17-00147 concerned the incident in which another inmate entered his cell
with a hammer and a screwdriver. In the grievance, Plaintiff states he was in danger and this was
done by the maintenance officer, Schofield. The Step One response stated the inmate entered his cell
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to perform a duty and Plaintiff was not in danger. On appeal, the warden stated there was no
evidence Plaintiff was in danger and the only purpose was to repair the water flow in his cell. On
further appeal, the Deputy Director of the Arkansas Department of Corrections concurred with the
warden’s decision, but instructed the unit warden to monitor the complaint. (Docket no. 1-1, pp. 57).
Grievance no. BOW17-00145 complained while Plaintiff was on suicide watch, and
unknown officer gave him a trash bag. Plaintiff contends this was a deadly weapon with which he
could have hung himself or smothered himself or swallowed it and choked on it. He also stated a
nurse gave him a thirty day supply of pills. The response stated when an inmate is placed on suicide
watch, he is only allowed certain items.
At the Step Two appeal, Nurse Arnold from the Health Services Department stated Plaintiff
had been classified as low risk because he denied suicidal thoughts or plans and stated he wished to
be placed on suicide watch because he was angry with a guard and wanted her to do more work. He
denied intent to self harm and no depression or sadness was noted. He ate and slept well, denied
paranoia, and declined psychiatric treatment because the warden stated his suicide request had been
retaliation for catching a disciplinary case because he had tested positive on a drug test. He was
removed from suicide watch by the MHMR doctor and told to refrain from activity which could
result in discipline.
Plaintiff appealed to the Deputy Director of the Arkansas Department of Corrections and the
response acknowledged the Step Two grievance was mistakenly answered by the Health Services
Department, but nonetheless concurred with the answer. The Deputy Director also instructed the
Warden to follow up on the complaint to ensure proper actions are being taken. (Docket no. 1-1, pp.
8-10).
In grievance no. BOW17-00155, Plaintiff states he broke the rule against insolence to staff,
which should have resulted in the proper paperwork being processed, but instead Lt. Jefferson used
excessive force when force was not required or permitted. He received a burst of chemical agents
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not once but twice directly in his eyes and in his right ear. Since then, his vision has been blurry and
cloudy and he lost some hearing in his right ear. He asked for medical care but the medical staff said
there was nothing they could do. He asked to use the eye wash station but the medical staff said he
had water in his cell. Plaintiff states the use of force was unnecessary and absurd and he was denied
all medical care.
The response to this grievance, signed by Nurse Arnold, stated he was
decontaminated per security and assessed by Nurse Strong and Nurse Willis following the incident.
The response to Plaintiff’s Step Two appeal was again signed by Nurse Arnold and stated
a visual assessment was done prior to decontamination and then an assessment was completed
following decontamination per policy. Plaintiff was seen on August 3, 2017, on a sick call request
and no abnormalities were seen at that time.
In his appeal to the Deputy Director, Plaintiff complained he was hit with two bursts of
chemical agent and he was only given a visual assessment. He stated his eyes have been blurry and
there are still chemical agents in his ear a month later. The response to this grievance stated there
was no documentation that a pre-lockup assessment was completed by the medical department.
According to policy, a pre-lockup assessment is to be completed when a prisoner is removed from
the general population area. Due to lack of documentation as to whether or not Plaintiff was seen
by medical, the Deputy Director determined the grievance had merit. (Docket no. 1-1, pp. 11-13).
Grievance no. BOW17-00159 complained Plaintiff was unable to get an appointment to see
the psychiatrist. The Deputy Director’s response at the third step of the grievance process stated
Plaintiff saw the psychiatrist on July 3, 2017 and denied any mental issues, and he was seen on
August 14 and referred to the mental health provider again, thus he had received adequate care and
the grievance was without merit. (Docket no. 1-1, p. 14-16).
Grievance no. BOW17-00165 also complained about being unable to see a psychiatrist. The
Step Two response stated he was referred to the mental health department on August 7 and was seen
on August 14. In the Step Three appeal, Plaintiff complained Nurse Arnold was denying him access
to mental health care because “I didn’t have any issues when she felt I should have them and when
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I later requested mental health services she denied me because of a prior visit of not having issues.”
The Step Three appeal stated the grievance should have been rejected at the unit level as untimely
and therefore had no merit. (Docket no. 1-1, pp. 17-19).
Grievance no. BOW17-00174 complained Plaintiff wrote a grievance against Nurse Arnold
and she answered it which she is not permitted to do. The response to the Step One grievance stated
Nurse Arnold is the medical designee and has the authority to answer medical grievances, and the
Step Two response stated the designee can answer grievances as long as there is no retaliation or
failure to act. Additionally, Plaintiff has an appeal process to the Arkansas Department of
Corrections for medical grievances. The Step Three response determined the grievance had no merit.
(Docket no. 1-1, pp. 20-22).
II. The Motion for Summary Judgment
The Defendants have filed a motion for summary judgment arguing: Jefferson was legally
authorized to use the chemical agents against Plaintiff; Plaintiff’s injuries were de minimis; Plaintiff
received prompt decontamination and medical care; and there was no personal involvement by
Warden Page or Captain Walker and no respondeat superior liability.
An affidavit from Lt. Jefferson, attached as summary judgment evidence, states on July 8,
2017, Plaintiff was escorted from his cell by Officer Smith for an administrative hearing on a
disciplinary infraction for being under the influence of drugs and failing a drug test. She, Lt.
Jefferson, was the hearing officer. She states she ruled against Plaintiff, who was very upset and
belligerent and was yelling profanities. After being escorted back to his cell, Plaintiff continued
yelling and told Officer Smith he wanted to be put on suicide watch. Lt. Jefferson states she came
to the cell and Plaintiff was escorted to the medical department. She states he continued to refuse
orders, resisted the officers, threatened them, and yelled profanities.
At the infirmary, Lt. Jefferson states Nurse Willis evaluated Plaintiff and put him on suicide
watch protocol. The nurse also authorized the use of chemical agents. Officers removed Plaintiff
from the medical department, although he continued to yell and to resist in a belligerent manner.
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Personal property was removed from his cell and Lt. Jefferson states she warned Plaintiff if he did
not follow the rules, chemical agents would be used.
Lt. Jefferson states Plaintiff was placed in his cell and ordered to face the wall. Officers
began removing his clothing in conformity with suicide watch protocol. Lt. Jefferson states she
ordered Plaintiff to face the wall but he turned away. She warned him chemical agents would be
used. After Plaintiff turned away from the wall, Lt. Jefferson states she administered a one second
burst of chemical agents, and the officers left Plaintiff’s cell and locked it. Plaintiff immediately
decontaminated in the shower in his cell.
Lt. Jefferson states Nurse Willis tried to evaluate him through the cell window and other
officers, including Lt. Jefferson, told him to return to the shower, but he would not. He was placed
in hand restraints and taken to the medical department, where he refused to sit in a chair and had to
be forced to sit.
At that point, Lt. Jefferson states Nurses Willis and Storey evaluated Plaintiff, including a
blood oxygen reading of 99 percent. Plaintiff was medically cleared and taken to a holding cell
while his assigned cell was being decontaminated. Plaintiff, who was still acting belligerent and
yelling, was placed on a bench and Lt. Jefferson ordered him to remain seated. Despite being warned
chemical agents would be used, Plaintiff stood up before the other officers had left the cell. Lt.
Jefferson states she administered a two second burst of chemical agents.
Lt. Jefferson states some officers entered the cell with a nurse to evaluate Plaintiff. They
physically took him to the infirmary for an examination. His blood oxygen reading was 98 percent
and he was cleared. He was taken back to the temporary holding cell where he remained for a few
minutes before being returned to his assigned cell, which has running water.
According to Lt. Jefferson’s affidavit, the use of the chemical agent had been pre-authorized
by a nurse and Plaintiff had been warned chemical agents would be used. Nonetheless, Lt. Jefferson
states Plaintiff refused direct orders to face the wall and to remain seated.
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Lt. Jefferson acknowledges she was reprimanded over the incident, explaining her supervisor
concluded the use of the chemical agent was not absolutely necessary. She states Plaintiff was
provided immediate access to running water after being exposed to the chemical agents and he was
evaluated by nurses, who found his blood oxygen level to be acceptable. Lt. Jefferson states neither
Warden Page nor Captain Walker were directly or indirectly involved in the use of the chemical
agents or the treatment given. (Docket no. 37-1, pp.
The use of force report (docket no. 37-2, p. 1) contains a written statement by Lt. Jefferson
essentially tracking what she said in her affidavit. The report also contains a synopsis of the incident
(docket no. 37-2, pp. 3-4) and a summary of the final report (docket no. 37-2, p. 7), which concluded
chemical agents were not necessary in either of the incidents, Lt. Jefferson allowed untrained staff
to document and narrate the video footage, Officer Billy Hall utilized poor camera operation, and
staff could be heard whispering unnecessarily. Witness statement forms were attached from Lt.
Jefferson and Officers Riley Jernigan, Ronald Marshall, Nicholas Christopher, Clarence Smith, Billy
Hall, Ashley Schofield, Heather Black, and Ryne Stubbs. Plaintiff and an inmate named Paul Shew
declined to submit witness forms. (Docket no. 37-2, pp. 14-37).
The use of force report also contains an account of the nurse’s examination of Plaintiff
(docket no. 37-2, p. 46). According to this record, Nurse Storey assessed Plaintiff and determined
he was not injured and did not complain of injury. Nurse Storey’s affidavit (docket no. 37-3, p. 2)
states Plaintiff was assessed twice and was found to have shortness of breath, choking, and burning
in the eyes, the effects normally suffered by a person exposed to a chemical agent. She states
Plaintiff never showed any symptoms of an allergic reaction.
Plaintiff received disciplinary cases on July 8, 2017 for destruction of property (kicking and
breaking a fan), failure to obey the order to stand facing the wall, and threatening to inflict harm on
Officer Jernigan. (Docket no. 37-2, pp. 58-60).
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III. The Videotape
The videotape opens with Plaintiff being taken down a hallway and into the medical
department. One of the officers says Plaintiff is suicidal, to which Plaintiff responds he is not
suicidal, he is on suicide watch. The guard says it is the same thing.
Plaintiff is visibly angry and tells the guards not to touch him. Lt. Jefferson tells him to pay
attention and he curses at her and makes threatening remarks toward her. He then curses at the other
guards around him. They take him out of the medical department and he tells Lt. Jefferson she is
lucky he is in handcuffs or he would beat her. Plaintiff also states every time he comes on, she is
going to have paperwork to do.
The guards take him to his cell and Lt. Jefferson tells them to put him against the wall so they
can clear his cell. Plaintiff continues to curse and threaten her. She tells him to comply or he will
be sprayed, and he says he is allergic to the spray. He accuses Jefferson of falsifying documents and
he is going to show her how he writes.
Lt. Jefferson announces Plaintiff will be put in his cell and the medical department has
cleared him for suicide watch and to be sprayed with chemical agents. She says if he does not abide
by orders he will be sprayed. Plaintiff responds he is going in the cell, he knows better.
Lt. Jefferson orders the guards to remove Plaintiff’s pants and shoes. Plaintiff yells Officer
Jernigan better not touch him and he will not be touched by Officer Jernigan or Lt. Jefferson. He
curses these two officers and says if any of his property is missing, he will say Lt. Jefferson did it
on purpose. Lt. Jefferson orders him to face the wall and he replies he orders her to [perform a
sexual act on him].
The guards undress Plaintiff and he turns his head around several times. He turns most of
his body around to face Lt. Jefferson and she says she did not tell him to turn around. She then
sprays a quick burst of pepper spray in his face. She then announces for the camera Plaintiff had
been told to face the wall several times and had refused.
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Plaintiff coughs repeatedly and says he told her he was allergic. He moves into the corner
of the cell, but the guards pull him out. After they secure him in the cell, the camera blurs out for
several seconds. After the picture returns, Plaintiff’s handcuffs are removed through a slot in the
door. The guards say they lost Plaintiff’s watch in the cell and demand Plaintiff turn it over. Lt.
Jefferson says if he does not, he will be sprayed again. Plaintiff says he cannot find the watch with
his eyes closed, and Lt. Jefferson tells him to lay down on his stomach. Eventually he finds the
watch and gives it to the guards.
A nurse arrives at the scene and Lt. Jefferson tells her to assess Plaintiff through the window
in his cell for now, until she can get him handcuffed and dressed. Plaintiff asks for decontamination
and Lt. Jefferson tells him to use the water in his cell. The nurse says she cannot assess Jefferson
through the window. She calls out to Plaintiff and he does not respond, but then says he cannot see
or hear. The nurse tells him to use water but he replies he did but has nothing to wipe his eyes with.
She tells him to run water in his eyes and let the water run over his body. Plaintiff goes to the back
of the cell and sits down, and then says he is OK.
Lt. Jefferson tells Plaintiff to back up to the food slot and he does. He is handcuffed and
stands up, and Lt. Jefferson tells him to kneel down and face the wall. He kneels down by the door,
and at this point the first video ends.
The second video resumes with Plaintiff kneeling by the door. He says he is going to get up
and Lt. Jefferson states he will be sprayed if he does. Officers Marshall and Smith open the cell door
and dress Plaintiff, while Lt. Jefferson states he is being put in a suicide suit. Plaintiff tells Lt.
Jefferson he is going to make her job hard from now on. The guards take Plaintiff out of the cell and
down the hall. Plaintiff says he is going to stop walking so they can carry him. The guards push him
along and Lt. Jefferson says if he stops walking he will get sprayed. Plaintiff is cursing and says his
eyes are closed and he cannot see.
Once they go into the medical department, Plaintiff tells the guards he will not sit down and
they seat him in a chair. The nurse tells him he has to cooperate and Plaintiff says he will, there is
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only one “whore” in the room he does not like. The nurse puts an oxygen sensor on Plaintiff’s finger
and says his oxygen reading is 99 percent and his heart rate is 79. She asks if he can breathe, and
he says he just got sprayed, so what does she think. The nurse states his oxygen level is fine and he
should just calm down.
Plaintiff asks for something for his eyes and the nurse tells him to decontaminate with water.
She says he should run water in his eyes and not wipe them because that will make it worse.
Lt. Jefferson announces the medical department has cleared Plaintiff to return to his cell, so
he will be put in a holding cell while his cell is decontaminated. The guards take Plaintiff out of the
medical department and to the holding cell. As they put him in the cell, Plaintiff states he should
have made Lt. Jefferson spray him again. Lt. Jefferson tells the guards to sit Plaintiff down and
Plaintiff replies, cursing, he is not going to do a thing and she cannot make him. The guards sit
Plaintiff down on a bench at the back of the cell and Lt. Jefferson tells him to stay seated or he will
be sprayed, to which Plaintiff replies “as if I give a f****.”
As the guards are exiting the cell, Plaintiff stands up off the bench and moves to follow. Lt.
Jefferson sprays him again. Plaintiff says he thought they had already gone. Lt. Jefferson announces
for the camera that Plaintiff had been sprayed again for refusing to stay seated until all of the officers
had left the cell.
Plaintiff moves around the cell and lays down on the floor. He then moves to an area in the
cell behind a small wall, possibly by the toilet, but his head is still visible on the video. Lt. Jefferson
announces the medical staff is on the way.
Guards enter the cell and pick Plaintiff up off the floor. A nurse appears to be present as
well. Plaintiff is taken back to the medical department, where he falls down on the floor. Once put
in a chair, Plaintiff says he deserved the first spray but not the second one. The nurse comes to put
an oxygen sensor on his finger and tells Plaintiff he needs to calm down, to which Plaintiff replies
she needs to stop spraying me. He says he cannot breathe and the nurse says he needs to get water
in his cell. Plaintiff states he needs water now. The nurse says Plaintiff’s oxygen level is 98 percent
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and Lt. Jefferson asks if he has been cleared again. Plaintiff says he is going to make them spray him
again and they might as well spray him right there. He says he will be back to the medical
department in 10 to 15 minutes.
Plaintiff is taken down the hall and put back into a cell. Lt. Jefferson tells him to stay on the
bench and Plaintiff tells her to get her sprayer, but he stays on the bench until the guards leave and
close the cell door. He then gets up and walks around inside the cell for about four minutes. Lt.
Jefferson tells him to sit down and some guards come into the cell. Lt. Jefferson announces Plaintiff
is going back to his own cell after decontamination.
During the escort down the hall, Plaintiff calls out to another inmate that he “made the bitch
spray me twice” and he was “thinking about going for round three.” He again says he made her
spray him twice and he was “fixing to make her spray him again.” He is put back into his cell and
the handcuffs are removed, and the video ends at that point.
The Fifth Circuit has stated “we assign greater weight, even at the summary judgment stage,
to the facts evident from video recordings taken at the scene.” Carnaby v. City of Houston, 636 F.3d
183, 187 (5th Cir. 2011) (citing Scott v. Harris, 550 U.S. 372, 381, 127 S. Ct. 1769, 167 L. Ed. 2d
686 (2007) (a court of appeals need not rely on the plaintiff’s description of the facts where the
record discredits such description but should instead consider “the facts in the light depicted by the
videotape.”)). The Court has set out the facts evident from the videotape and has considered these
facts as evident from the scene in reviewing Plaintiff’s claims.
IV. Legal Standards and Analysis - Lt. Jefferson and the Uses of Force
A. General Standards for Summary Judgment
On motions for summary judgment, the Court must examine the evidence and inferences
drawn therefrom in the light most favorable to the non-moving party; after such examination,
summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Securities and Exchange Commission v.
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Recile, 10 F.3d 1093, 1097 (5th Cir. 1994); General Electric Capital Corp. v. Southeastern Health
Care, Inc., 950 F.2d 944, 948 (5th Cir. 1992); Rule 56(c), Fed. R. Civ. P. The plaintiff cannot
oppose summary judgment by some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated or speculative assertions, or by only a scintilla of evidence. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Summary judgment is
appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could
not support a judgment in favor of the non-movant. Id.
The courts have no obligation to sift the record in search of evidence to support a party’s
opposition to summary judgment. Adams v. Traveler’s Indemnity Co., 465 F.3d 156, 164 (5th Cir.
2008). Instead, a party opposing summary judgment must identify specific evidence in the record
which supports the challenged claims and articulate the precise manner in which the evidence
supports the challenged claim. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1998). Thus, a properly supported motion for summary judgment should be granted unless the
opposing party produces sufficient evidence to show a genuine factual issue exists. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Plaintiff did not file a response to the motion for summary judgment; accordingly, the district
court may accept as undisputed the facts listed in support of the defendants' motion. Eversley v.
Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); United States v. Dallas Area Rapid Transit, 96
F.3d 1445, 1996 U.S. App. LEXIS 25217, 1996 WL 512288 (5th Cir. August 30, 1996).
B. The Use of Force Claim
The core judicial inquiry in a prisoner’s excessive force claim under the Eighth Amendment
is whether the force was applied in a good faith effort to maintain or restore discipline, or
maliciously and sadistically for the very purpose of causing harm. Hudson v. McMillian, 503 U.S.
1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The term “maliciously” means to intentionally do a
wrongful act without just cause or excuse, with an intent to inflict injury, or under circumstances
which show an evil intent. The term “sadistically” means to inflict pain for one’s own pleasure.
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Douglas v. Owens, 50 F.3d 1226, 1232-33 and n.13 (3rd Cir. 1995); Parkus v. Delo, 135 F.3d 1232,
1234 (8th Cir. 1998).1
Five factors are frequently used in making this determination, including (1) the extent of the
injury suffered; (2) the need for the application of force; (3) the relationship between the 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. Baldwin v. Stalder, 137 F.3d 836, 839
(5th Cir. 1998). Not every malevolent touch by a prison guard gives rise to a federal cause of action.
Hudson, 503 U.S. at 9, citing Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.), cert. denied sub
nom. John v. Johnson, 414 U.S. 1033 (1973) (not every push or shove, even if it may seem
unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights). The Court
will proceed to analyze the core judicial inquiry and each of these five factors.
1. The Extent of the Injury Suffered
The Fifth Circuit has explained in order to be actionable, the amount of force used must be
more than de minimis, provided the use of force is not of a sort repugnant to the conscience of
mankind. The plaintiff need not show serious injury, although the extent of the injury may supply
insight as to the amount of force applied. Cowart v. Erwin, 837 F.3d 444, 452-53 (5th Cir. 2016);
Wilkins v. Gaddy, 559 U.S. 34, 37-38, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010). Where objective
factors, including an inmate's medical records, show no evidence of any injuries consistent with the
inmate's allegations, the Court may conclude the allegations are implausible. Wilburn v. Shane, 193
F.3d 317, 1999 U.S. App. LEXIS 38885, 1999 WL 706141 (5th Cir., August 20, 1999), citing
Wesson v. Oglesby, 910 F.2d 278, 281-82 (5th Cir. 1990).
Courts have held the normal effects of being sprayed with pepper spray are de minimis. See,
e.g., Martinez v. Nueces County, Texas, civil action no. 2:13cv178, 2015 WL 65200 (S.D.Tex.,
January 5, 2005) (simply being pepper sprayed, without some long term effects, is a de minimis
1
These definitions are also used in the Fifth Circuit’s Pattern Jury Instructions - Civil Cases,
2014 ed., sec. 10.7 (pp. 104-05).
15
injury), aff’d sub nom. Martinez v. Day, 639 F.App’x 278 (5th Cir., May 12, 2016) (defendants
entitled to summary judgment on plaintiffs’ claims of excessive force, including tasing and pepper
spray, where there was no evidence of cognizable injuries); Williams v. U.S., civil action no.
4:08cv2350, 2009 WL 3459873 (S.D.Tex., August 12, 2011) (claim of “severe bruising and scrapes
upon his body” and “extreme pain from being kicked and sprayed in the eyes with pepper spray”
were de minimis); Oakley v. Weaver, 162 F.3d 1159, 1998 WL 792669 (5th Cir., November 2, 1998)
(use of pepper spray during an arrest was not excessive force).
In the present case, the videotape shows after Plaintiff was sprayed the first time, he coughed
and had apparent difficulty seeing for a short time. His blood oxygen level was read at 99 percent.
After he was sprayed the second time, he laid on the floor in the cell and was then taken to the
infirmary, where his blood oxygen level was read at 98 percent, indicating he was able to breathe and
get oxygen. He did not display any unusual symptoms or signs of an allergic reaction to the spray;
on the contrary, after being sprayed the second time, Plaintiff was defiant, challenging Lt. Jefferson
to spray him again while they were still in the infirmary and telling another inmate during the escort
to his cell that he had “made the bitch spray me twice,” he was thinking about going for round three,
and he was “fixing to make her spray him again.” The evidence from the videotape indicates Plaintiff
did not suffer anything more than a de minimis injury.
In his pleadings, Plaintiff asserts he suffered lasting injuries to his eyes and ears, but other
than these statements, he offers no evidence or medical records to support these claims. An inmate's
bare assertion of a serious medical condition is insufficient without medical evidence verifying the
condition exists. Aswegan v. Henry, 49 F.3d 461, 465 (8th Cir. 1995); accord, Kayser v. Caspari,
16 F.3d 280, 281 (8th Cir. 1994) (prisoner's self-diagnosis alone will not support a medical
conclusion); McClure v. Foster, civil action no. 5:10cv78, 2011 U.S. Dist. LEXIS 14546, 2011 WL
665819 (E.D. Tex., January 7, 2011, Report adopted at 2011 U.S. Dist. LEXIS 15437, 2011 WL
941442 (E.D. Tex., February 16, 2011, aff'd 465 F.App’x 373, 2012 U.S. App. LEXIS 6385, 2012
WL 1059408 (5th Cir., March 29, 2012) (citing Aswegan and Kayser).
16
These holdings comport with the well-established rule that a non-movant cannot satisfy his
summary judgment burden with “conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). In Mosley v. White,
464 F.App’x 206, 2010 U.S. App. LEXIS 25398, 2010 WL 8497638 (5th Cir., December 13, 2010),
the Fifth Circuit stated as follows:
In response to White's motion for summary judgment, as previously explained,
Mosley provided the district court with his affidavit and those of his co-inmates and
his grievance reports. Although we recognize that the affidavits and reports constitute
valid summary judgment evidence, Fed. R. Civ. P. 56(c)(4), we have explained that
without more, “conclusory allegations, speculation, and unsubstantiated assertions
are inadequate to satisfy the non-movant's burden” and defeat a motion for summary
judgment. Douglass v. United Services. Auto Ass'n, 79 F.3d 1415, 1429 (5th
Cir.1996).
Similarly, while Plaintiff’s sworn pleadings are competent summary judgment evidence, he
presents nothing more than conclusory allegations, speculation, and unsubstantiated assertions
concerning his alleged injuries. This is not sufficient to defeat the Defendants’ motion for summary
judgment. See also Foxworth v. Khoshdel, civil action no. 4:07cv3944, 2009 U.S. Dist. LEXIS
89581, 2009 WL 3255270 (S.D.Tex., September 28, 2009) (conclusory allegations of “painful
physical injuries to the gums and mouth” were not supported by objective findings in the medical
records and thus could not overcome a motion for summary judgment). Based on the objective
evidence of the videotape, the first Hudson factor appears to weigh against Plaintiff; however, this
factor is not determinative.
2. The Need for the Application of Force
The videotape clearly reflects Plaintiff’s defiant and belligerent behavior. Prior to being
sprayed the first time, he cursed at Lt. Jefferson, threatened her, and told her if he was not in
handcuffs he would beat her. He also demanded the other guards not touch him. Lt. Jefferson
ordered Plaintiff to face the wall and he responded by demanding a crude sexual act. Once facing
the wall, Plaintiff defied orders by repeatedly turning around despite being warned not to do so.
When he turned almost all the way around, the first spraying occurred.
17
In Thomas v. Comstock, 2222 F.App’x 439, 2007 U.S. App. LEXIS 6159, 2007 WL 807037
(5th Cir., March 16, 2007), the plaintiff Lorenzo Thomas was ordered to move to a new housing
assignment but refused to do so. He was then ordered to submit to hand restraints and again refused.
He was then sprayed with pepper spray. The Fifth Circuit indicated this use of force was de minimis
and not repugnant to the conscience of mankind because the administration of the pepper spray to
an inmate disobeying lawful orders was not objectively unreasonable in light of clearly established
law, citing Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) and Soto v. Dickey, 744 F.2d
1260, 1270-71 97th Cir. 1984).
Similarly, in Kitt v. Bailey, civil action no. 4:14cv368, 2015 U.S. Dist. LEXIS 81783, 2015
WL 3909116 (S.D.Tex., June 24, 2015), aff’d 676 F.App’x 350, 2017 U.S. App. LEXIS 2595, 2017
WL 620093 (5th Cir., February 14, 2017), the plaintiff Leonard Kitt, who was inside of a small
shower stall, was ordered to submit to hand restraints. When he refused, he received a five-second
burst of pepper spray despite his claim he made no threatening moves, gestures, or statements. The
district court granted the Defendants’ motion for summary judgment, holding the use of force was
not excessive because the use of a chemical agent to gain compliance is an appropriate response
when an inmate refuses to obey repeated orders; prisoners cannot decide what orders they want to
obey; there was no evidence showing the use of force was excessive to the need; disobeying orders
poses a threat to the order and security of the prison as an institution; Kitt was warned of the
consequences of refusing to obey; and, the use of the chemical spray was brief in duration. In
affirming the grant of summary judgment for the Defendants, the Fifth Circuit stated “no clearly
established law forbids the application of a single burst of a chemical irritant in order to compel a
prisoner to comply with an order.”
In the present case, the video evidence shows Plaintiff was belligerent and threatening, and
then refused to comply with repeated orders to face the wall and remain there. When he turned
almost all the way around, after having been warned of the possibility of being sprayed, Sgt.
Jefferson sprayed him with a single burst of chemical agents.
18
In the second spraying, the videotape shows Plaintiff was escorted back to a holding cell from
the medical department. He stated he should have made Lt. Jefferson spray him again. When Lt.
Jefferson told the guards to sit Plaintiff on a bench in the back of the cell, Plaintiff cursed and stated
he was not going to do a thing and she could not make him. After the guards sat Plaintiff on the
bench, Lt. Jefferson ordered him to stay seated or he would be sprayed again, and Plaintiff responded
“as if I give a f****.” The guards then began to exit the cell, but Plaintiff, defying Lt. Jefferson’s
orders to remain seated, stands up and begins to follow the guards toward the door of the cell. At
that point, Lt. Jefferson sprays him again.
The summary judgment evidence thus shows Plaintiff, having expressed his intent to refuse
to comply with orders, follows through by standing up and walking toward the door after having
been told to remain seated or he would be sprayed. In both of the incidents, Plaintiff’s belligerence
and refusal to comply with orders created the need for the application of force. The second Hudson
factor weighs in favor of the Defendants.
3. The Relationship Between the Need and the Amount of Force Used
The videotape shows in both incidents, Plaintiff’s refusal to comply with orders was met with
a short burst of pepper spray. Each of the sprays was considerably shorter than the five-second spray
held not excessive in Kitt. Plaintiff does not show, and the videotape does not indicate, that the
relatively minor amount of force used was excessive to the need for the application of force which
Plaintiff had created. The third Hudson factor weighs in favor of the Defendants.
4. The Threat Reasonably Perceived by Prison Officials
In Sneed v. Lira, civil action no. 09-cv-2583, 2011 U.S. Dist. LEXIS 151230, 2011 WL
6998202 (S.D.Cal., November 3, 2011), the prisoner alleged the guard attacked him without
provocation during an escort back to his cell, but the defendants furnished summary judgment
evidence showing the prisoner was yelling obscenities, refused direct orders, and lunged at the
officers. Although the prisoner claimed he was struck repeatedly, leading to significant injury, the
only injury found was some swelling below his left eye. The district court concluded the Hudson
19
factors regarding the need for the application of force and the threat reasonably perceived by the
responsible officials weighed heavily in favor of the guards and granted the defendants’ motion for
summary judgment.
The videotape in the present case shows Plaintiff cursing, threatening the officers, expressing
his intent to disobey orders, and then refusing to comply with repeated direct orders to face the wall
or to remain seated. Such behavior cannot be tolerated in a facility of incarceration. Soto, 744 F.2d
at 1270 (stating where an inmate cannot be persuaded to obey an order, some means must be used
to compel compliance because discipline is essential for the institution to function); Minix v.
Blevins, civil action no. 6:06cv306, 2007 U.S. Dist. LEXIS 30058, 2007 WL 1217883 (E.D.Tex.,
April 23, 2007) (inmates cannot pick and choose which rules to obey), citing Meadows v. Gibson,
855 F.Supp. 223, 225 (W.D.Tenn. 1994); Buentello v. Rayford, civil action no. 6:15cv780, 2018
U.S. Dist. LEXIS 127898, 2018 WL 3625858 (E.D.Tex., March 14, 2018), Report adopted at 2018
U.S. Dist. LEXIS 127023, 2018 WL 3619244 (E.D.Tex., July 29, 2018) (same). Plaintiff’s behavior
plainly posed a threat to the orderly operation of the jail. The fourth Hudson factor weighs in favor
of the Defendants.
5. Efforts made to temper the severity of a forceful response
The videotape shows Lt. Jefferson’s forceful responses consisted of two brief bursts of
pepper spray in response to Plaintiff’ defiance and refusal to comply with orders. He was promptly
taken to the medical department to be seen by a nurse after each incident.
In Martin v. Seal, civil action no. 11-726, 2014 U.S. Dist. LEXIS 86401, 2014 WL 2890125
(E.D.La., June 25, 2014) (decision after remand), the plaintiff Sylvester Martin began acting
erratically upon his return from court, yelling that he was suicidal and would kill himself. The
defendant Lt. Seal contacted the mental health department, which recommended placing Martin on
standard suicide watch against his will. After being placed his cell on suicide watch, Martin began
violently shaking the cell bars and jumping on his bed. He was ordered several times to stop but
refused.
20
After being authorized by the medical department to use chemical agents, Lt. Seal again
ordered Martin to stop shaking the bars and jumping on his bed. When Martin persisted, Lt. Seal
sprayed him with chemical agents. He was brought out of his cell and examined by a nurse, who
determined he had no apparent injuries. The parties disputed whether Martin suffered any asthmarelated problems as a result of the spraying or if he had any lasting injuries.
The district court initially denied Lt. Seal’s motion for summary judgment as to Martin’s
claims for excessive force and deliberate indifference, and the defendants appealed the denial of
qualified immunity under the collateral order doctrine. On appeal, the Fifth Circuit held the district
court erred by failing to consider all of the Hudson factors in the excessive force analysis and by
relying on the absence of medical records to deny qualified immunity on deliberate indifference.
Martin v. Seal, 510 F.App’x 309, 2013 U.S. App. LEXIS 2234, 2013 WL 387876 (5th Cir., January
31, 2013).
On remand, the district court went through each of the Hudson factors and determined that
each of those factors weighed in favor of the defendants. With regard to the fifth factor, the district
court stated that Lt. Seal had been told by the medical department that Martin’s medical condition
did not preclude the use of chemical agents and after the spraying, Lt. Seal did not leave Martin to
suffer, but had him removed from his cell and medical personnel were summoned to evaluate him.
The district court concluded that these efforts to temper the severity of a forceful response weighed
in favor of the defendant.
The summary judgment in the present case shows as in Martin, the medical department
authorized the use of chemical agents against Plaintiff and he was examined by medical personnel
after each spraying. The fifth Hudson factor weighs in the Defendants’ favor.
6. The Core Judicial Inquiry
The Supreme Court explained the “core judicial inquiry” is whether the force was used in a
good faith effort to restore discipline or maliciously and sadistically for the very purpose of causing
harm. Hudson, 503 U.S. at 7. The summary judgment evidence does not show Lt. Jefferson
21
intentionally acted without just cause or excuse, with an intent to inflict injury, or under
circumstances which show an evil intent, nor that she acted to inflict pain for her own pleasure. On
the contrary, the summary judgment evidence and the videotape show Lt. Jefferson acted in a good
faith effort to restore the discipline breached by Plaintiff’s own behavior. See Brown v. Vasquez,
699 F.App’x 335, 2017 U.S. App. LEXIS 20720, 2017 WL 4785956 (5th Cir., October 23, 2017)
(the fact force was required at all was due to prisoner’s repeated failure to comply with orders and
his resistance to the extraction team’s efforts to restrain him once they entered his cell); Funari v.
Warden, 609 F.App’x 255, 2015 U.S. App. LEXIS 12224, 2015 WL 4231669 (5th Cir., July 14,
2015) (“that force was required at all was due to Funari’s repeated failure to comply with orders and
his continued resistance to the officers once they entered his cell.”) Because Plaintiff has failed to
show Lt. Jefferson acted maliciously and sadistically for the very purpose of causing harm, rather
than in a good faith effort to restore discipline, his Eighth Amendment excessive force claim against
her is without merit.
V. The Other Defendants
A. Warden Page
Plaintiff complains Warden Page has “neglected his role” as warden and does not properly
oversee the operation of the jail. To the extent Plaintiff sues Warden Page for his position as warden,
the Fifth Circuit has held lawsuits against supervisory personnel based on their positions of authority
are claims of liability under the doctrine of respondeat superior, which does not generally apply in
§1983 cases. Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990); see also Ashcroft v. Iqbal, 556
U.S. 662, 676 129 S.Ct. 1937, 183 L.Ed.2d 868 (2009) (government officials may not be held liable
for the unconstitutional conduct of their subordinates under a theory of respondeat superior).
Instead, a supervisor may be held liable if he affirmatively participates in the acts causing a
constitutional deprivation or he implements unconstitutional policies which causally result in the
constitutional injury. Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011). A supervisor may also be
liable for failure to supervise or train if: (1) the supervisor either failed to supervise or train the
22
subordinate official; (2) a causal link exists between the failure to train or supervise and the violation
of the plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference.”
Id., citing Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).
Plaintiff has not shown Warden Page affirmatively participated in acts causing a
constitutional deprivation or the warden implemented unconstitutional policies resulting in a
constitutional injury. He asserts the warden neglected his duties, though offering no evidence of
such neglect; in any event, such an allegation is one of negligence, which does not rise to the level
of a constitutional claim. Daniels v. Williams, 474 U.S. 327, 329-30, 106 S.Ct. 662, 88 L.Ed.2d 662
(1986).
Nor has Plaintiff shown Warden Page failed to train or supervise Lt. Jefferson or that such
a failure was deliberate indifference, much less that any such failure was linked to a violation of his
rights. Goodman, 571 F.3d at 396 (speculative claims of failure to train or supervise, absent any
showing how a particular training program is defective, cannot survive summary judgment).
Furthermore, Plaintiff failed to show a violation of his constitutional rights, an essential
element in a claim of supervisory liability or failure to train or supervise. Porter, 659 F.3d at 446;
Gibbs v. King, 779 F.2d 1040, 1046 n.6 (5th Cir.), cert. denied 476 U.S. 1117 (1986) (absent
primary liability, there can be no supervisory liability).
Plaintiff asserts while he was in isolation, another inmate was allowed to come in his cell
with a screwdriver and he was given a trash bag despite being on suicide watch. He does not show
Warden Page had any personal involvement with either of these incidents; his grievance states this
was done by a maintenance officer named Schofield, who is not named as a defendant in the lawsuit.
The response to Plaintiff’s grievance states the inmate with a screwdriver was working for the
maintenance department and was repairing a broken fixture in Plaintiff’s cell. Plaintiff has not
shown any harm from this incident and fails to show how this amounts to deliberate indifference to
his safety by Warden Page.
23
Plaintiff also complains he was on suicide watch, but was given a trash bag. He has not
shown Warden Page had any personal involvement or even any knowledge of Plaintiff’s being given
a trash bag. See Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986) (in order to successfully
plead a cause of action in civil rights cases, a plaintiff must enunciate a set of facts illustrating the
defendants' participation in the alleged wrong). In any event, Plaintiff told the nurses he was in fact
not suicidal, and he has not shown any harm from the fact he was given a trash bag. Plaintiff’s
claims against Warden Page are without merit.
B. Captain Walker
Plaintiff asserts he complained to Captain Walker about Lt. Jefferson several times and
Captain Walker assured him he would be treated fairly and equally like other inmates. Despite this
promise, Plaintiff complains Lt. Jefferson nonetheless used force on him.
The Fifth Circuit has held inmates do not have a constitutionally protected liberty interest in
having grievances or complaints resolved to their satisfaction, and there is no violation of due
process when prison officials fail to do so. Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005).
The fact Captain Walker did not act on Plaintiff’s complaint as Plaintiff believed appropriate is not
a constitutional violation.
Nor has Plaintiff set out a viable failure to protect claim against Captain Walker. A prison
official may be liable for failing to protect a prisoner from another official if he knew of an excessive
risk to health or safety posed by such other officer and disregarded the risk. See Hale v. Townley,
45 F.3d 914, 919 (5th Cir. 1995). The mere fact Plaintiff complained to Captain Walker about Lt.,
Jefferson does not impute knowledge that Lt. Jefferson posed an excessive risk to Plaintiff’s health
or safety. See Whitlock v. Merchant, civil action no. 5:14cv119, 2016 WL 2996390 (E.D.Tex., May
25, 2016) (defendant did not have a constitutional obligation to believe Plaintiff’s allegations and
take the actions Plaintiff believed appropriate), citing Geiger, 404 F.3d at 373-74; cf. Althouse v.;
Roe, 542 F.Supp.2d 543, 579 (E.D.Tex. 2008), appeal dismissed (prison officials have no
24
constitutional duty to believe inmates’ claims as to their medical conditions as opposed to the
findings of medical professionals). Plaintiff’s claims against Captain Walker are without merit.
C. Nurses Willis and Storey
Plaintiff complains the nurses refused to treat him after he was sprayed with chemical agents.
He also asserted Lt. Jefferson told Nurse Willis and Nurse Storey since Plaintiff did not know how
to treat women, they should not treat him, and Lt. Jefferson told the nurses Plaintiff did not need his
ear flushed. (No such remarks are audible on the videotape).
The videotape shows the nurses assessed him and found him to be uninjured, other than the
normal reactions to pepper spray.2 Plaintiff’s behavior and responses on the videotape do not
indicate he suffered any other injuries or any kind of allergic reaction. The nurses read his blood
oxygen level, presumably to ensure he could still breathe, and this level was within normal limits
after each spraying.
The videotape also shows the nurses explained to Plaintiff how to
decontaminate with water in his cell.
The Fifth Circuit has held deliberate indifference to a convicted inmate's serious medical
needs could state a civil rights violation, but a showing of nothing more than negligence does not.
Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997); Jackson v. Cain, 864 F.2d 1235, 1246 (5th
Cir. 1989). Unsuccessful medical treatment, negligent acts, medical malpractice, or a prisoner’s
disagreement with his medical treatment are insufficient to establish a constitutional violation.
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
2
The effects of pepper spray generally last from 20 to 90 minutes. See http://
www.peppersprayinformation.com. No special decontamination protocols are required for OC
pepper spray because it is biodegradable, and will not persist on clothing or the affected areas. See
‘Evaluation of Pepper Spray,’ National Institute of Justice Research in Brief, February 1997, cited
in Clay v. Stacks, civil action no. 9:04cv72, 2006 U.S. Dist. LEXIS 14146, 2006 WL 688999 (E.D.
Tex., March 15, 2006). The Third Circuit has reversed a district court's determination that use of
a pepper spray by a bank robber constitutes “use of a dangerous weapon” because the effects of the
spray lasted only 10 to 15 minutes. United States v. Harris, 44 F.3d 1206, 1214 (3rd Cir. 1995). The
Fifth Circuit has observed that decontamination from pepper spray “consists primarily of flushing
the eyes with water.” Wagner v. Bay City, Texas, 227 F.3d 316, 319 n.1 (5th Cir. 2000).
25
In Domino v. TDCJ-ID, 239 F.3d 752 (5th Cir. 2001), an inmate who was a psychiatric
patient expressed suicidal ideations and the psychiatrist returned him to his cell after a five-minute
examination; the inmate committed suicide two and a half hours later. The Fifth Circuit, in reversing
a denial of summary judgment by the district court, stated as follows:
Deliberate indifference is an extremely high standard to meet. It is indisputable that
an incorrect diagnosis by prison medical personnel does not suffice to state a claim
for deliberate indifference. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
Rather, the plaintiff must show that the officials "refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged in any similar conduct
that would clearly evince a wanton disregard for any serious medical needs." Id.
Furthermore, the decision whether to provide additional medical treatment "is a
classic example of a matter for medical judgment." Estelle v. Gamble, 429 U.S. 97,
107 (1972). And, "the failure to alleviate a significant risk that [the official] should
have perceived, but did not," is insufficient to show deliberate indifference. Farmer
v. Brennan, 511 U.S. 825, 838 (1994).
Domino, 239 F.3d at 756; see also Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
The fact Plaintiff disagrees with the treatment he received and believes more treatment would
have been appropriate does not show the nurses acted with deliberate indifference to his medical
needs. See also Patterson v. Dretke, civil action no. 2:04cv132, 2004 U.S. Dist. LEXIS 9946, 2004
WL 1205126 (N.D.Tex., June 2, 2004) (prisoner’s belief more tests should be conducted or
additional diagnostic measures undertaken does not elevate a claim to constitutional dimensions),
citing Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Nelson v.Griffin, civil action no.
5:16cv49, 2017 WL 2274252 (E.D.Tex., May 25, 2017) (same). This claim is without merit.
Plaintiff also asserts he has had continuing problems with his eyes and ears, and states he sent
in medical requests which were not acknowledged. However, he concedes he was seen by a nurse
on August 4, 2017, and referred to the doctor, whom he had not seen as of ninety days later. Plaintiff
has offered nothing to suggest this delay in seeing the doctor was the result of deliberate indifference
on the part of the nursing staff, nor has he shown the delay has resulted in substantial harm. See
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993); Wesson v. Oglesby, 910 F.2d 278, 284 (5th
Cir. 1990). Plaintiff’s claims against Nurses Willis and Storey are without merit.
26
D. Nurse Arnold
Plaintiff complains Nurse Arnold told him she and her department were a team and a decision
one person made, they all made; thus, he asserts she conspired with Nurse Willis, Nurse Storey, and
Lt. Jefferson to not provide him with medical care. He also complains Nurse Arnold made false
statements and falsified documents, apparently referring to the grievances she answered, and asserts
she answered grievances which she should not have.
The Fifth Circuit has stated in order to recover on a claim of a conspiracy, there must be an
actual deprivation of a constitutional right; a mere conspiracy to deprive is insufficient. Villanueva
v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984). Plaintiff has not shown an actual deprivation of a
constitutional right, rendering his claim of conspiracy without merit.
Although Plaintiff also complains of Nurse Arnold’s answers to his grievances, this claim
lacks merit because Plaintiff does not have a protected liberty interest in the grievance procedure.
Geiger, 404 F.3d at 374-75. His claim regarding Nurse Arnold answering a grievance which she
allegedly should not have fails for the same reason. Plaintiff has offered nothing to show any of
Nurse Arnold’s responses to his grievances were falsified, much less that any such falsification
amounted to a constitutional violation. See United States v. Towns, 718 F.3d 404, 409-10 (5th Cir.
2013); accord, Mathis v. Alexander, 49 F.3d 728, 1995 U.S. App. LEXIS 44040, 1995 WL 103646
(5th Cir., March 3, 1995) (noting the plaintiff “alleges that the prison and medical records were
falsified and that Dr. Kuykendall gave perjured testimony at the Spears hearing; however, he offers
no facts to support these allegations. Therefore, they are lacking in merit.”) His claims against Nurse
Arnold are without merit.
E. Jail Rules and Regulations
The summary judgment evidence shows a number of officers, including Lt. Jefferson,
received disciplinary action arising from this incident. However, the fact jail rules may have been
violated is not sufficient to rise to the standards of a constitutional claim. Myers v. Klevenhagen,
97 F.3d 91, 94 (5th Cir. 1996); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). In order
27
to prevail on a §1983 lawsuit, Plaintiff must show violations of constitutional standards, not merely
jail rules or regulations. He did not do so.
F. Qualified Immunity
Qualified immunity protects government officials from liability for monetary damages in
their individual capacities insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known. Thompson v. Mercer, 762
F.3d 433, 436-37 (5th Cir. 2014). Claims of qualified immunity require a two-step analysis, which
may be done in either order: first, the court determines whether a constitutional right would have
been violated on the facts alleged, and second, whether the right was clearly established at the time
of the alleged violation. Kitchen v. Dallas County, 759 F.3d 468, 476 (5th Cir. 2014). Even if the
official’s conduct violated a clearly established constitutional right, the official is nonetheless
entitled to qualified immunity if his conduct was objectively reasonable. Jones v. Collins, 132 F.3d
1048, 1052 (5th Cir. 1998).
After the defendants properly invoke qualified immunity, the plaintiff bears the burden to
rebut its applicability. Kovacic v. Villareal, 628 F.3d 209, 211 (5th Cir. 2010). Such a rebuttal
requires a showing that all reasonable officials, similarly situated, would have known the defendants’
acts violated the Constitution. Tamez v. Matheny, 589 F.3d 764, 770 n.2 (5th Cir. 2009); Thompson
v. Upshur County, 245 F.3d 447, 460 (5th Cir. 2001). Conclusory allegations are insufficient to
overcome the qualified immunity defense. Williams-Boldware v. Denton County, Texas, 741 F.3d
635, 643-44 (5th Cir. 2014).
Plaintiff has failed to meet his burden of overcoming the qualified immunity defense. The
summary judgment evidence does not show a constitutional violation occurred or that any of the
Defendants acted in an objectively unreasonable manner. The Defendants are entitled to qualified
immunity from suit.
28
.
VI. Conclusion
A review of the pleadings and the competent summary judgment evidence shows there are
no disputed issues of material fact and the Defendants are entitled to judgment as a matter of law.
It is accordingly
ORDERED the Defendants’ motion for summary judgment (docket no. 37) is GRANTED
and the above-styled civil action is DISMISSED WITH PREJUDICE. It is further
ORDERED any and all motions which may be pending in this civil action are hereby
DENIED.
SIGNED this 27th day of February, 2019.
____________________________________
CAROLINE M. CRAVEN
UNITED STATES MAGISTRATE JUDGE
29
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