Vasquez v. Childress et al
MEMORANDUM OPINION and ORDER OF DISMISSAL. Order granting Defendants' 48 Motion for Summary Judgment. This action is DISMISSED with prejudice as to all Defendants except for Smith and Childress. The claims against Smith and Childress are di smissed with prejudice until such time as the Plaintiff can show that the disciplinary case he received has been overturned, expunged, or set aside. The Plaintiff's claims against Defendants Hazelwood, Culpepper, and Wingate are DISMISSED with prejuidce as frivolous and for failure to state a claim upon which relief may be granted. All motions pending in this action are DENIED. It is further ordered that the dismissal of these claims as frivolous shall count as a strike for purposes of 28 USC 1915(g) and a copy of this order will be provided to the Administrator of the Three Strikes List for the EDTX. Signed by Magistrate Judge Judith K. Guthrie on 6/25/2012. (leh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CRESCENCIO VASQUEZ #1441545
SGT. J. CHILDRESS, ET AL.
CIVIL ACTION NO. 6:11cv86
MEMORANDUM OPINION AND ORDER OF DISMISSAL
The Plaintiff Crescencio Vasquez, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division 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 the proceeding
pursuant to 28 U.S.C. 636(c). As Defendants, Vasquez originally sued Sgt. J. Childress, Sgt. Ricky
Smith, Officer Steven Wingate, Sgt. Michael Owens, Lt. Robert Hazelwood, Lt. James Culpepper,
and Officer Paula Byrd; of these, Chidress, Smith, Byrd, and Owens were ordered to answer. The
United States Marshal was directed to effect service upon the Defendants Smith and Childress, and
was able to do so upon Smith; however, service apparently has not been accomplished upon
Childress. Smith, Owens, and Byrd have answered the lawsuit and have filed a motion for summary
judgment, to which Vasquez has filed a response.
In his complaint and at an evidentiary hearing, Vasquez testified that on April 1, 2009, Byrd
and Owens refused to provide him with his required insulin. He said that this was done “strictly on
the basis of race.” Vasquez indicated that this took place between 3:00 and 7:00 p.m.
At 7:30 p.m. that day, Vasquez says that he was in the dayroom on P Wing. He was feeling
bad and having irregular breathing and heart rate, and feared that he was going to have a stroke or
heart attack, so he broke out three windows with his cane. Lt. Hazelwood handcuffed him and took
him into the hallway. Officer Wingate had a video camera and was filming the broken windows.
Vasquez was trying to explain his condition to Sgt. Childress in a “non-threatening, non-belligerent
manner” when Childress struck him in the face with his closed fist. Vasquez fell to the floor and
Sgt. Smith jumped on him and beat him with his knee and fist.
Vasquez states that a wheelchair was nearby, which he says shows that the officers had
intended the assault. He says that he received a disciplinary case for attempting to assault Childress
and destruction of state property. Although he was charged with attempting to assault Childress,
Vasquez notes that he was handcuffed at the time. He says that he was not physically or mentally
able to attend the disciplinary hearing and was convicted on the charges.
Nurse Tara Patton, a TDCJ correctional nurse also present at the evidentiary hearing, testified
that a physical examination of Vasquez after the incident showed that he received a 6 centimeter by
6 centimeter (about 2 1/3 inches) contusion on his forehead as well as a small amount of bruising.
She stated that he received insulin twice that day, in the morning and in the evening.
Testimony at the evidentiary hearing showed that the video of the incident did not come out.
Vasquez testified that Major Owens received a letter from Governor Rick Perry requesting an
investigation into the incident and that Owens called Vasquez in, but Vasquez would not cooperate
when he learned that the video did not come out; he says that Owens told him that the video had
Vasquez explained that he was suing Officer Wingate for “neglect,” saying that Wingate
should have filed a report saying that excessive force had been used. He also said that Lt.
Hazelwood should have reported the incident and that Lt. Culpepper should have made sure that the
camera was working and should have reported the incident.
Vasquez next stated that Byrd and Owens had “precipitated the incident” by refusing him
insulin. He asserted that Dr. Clayton had told him that “they’re out to get you,” but there does not
appear to be a notation in the medical records to this effect. Finally, Vasquez said that he was suing
Childress and Smith because these officers actually used force upon him.
The Motion for Summary Judgment
In their motion for summary judgment, the Defendants cite as “undisputed facts” the
assertions that Vasquez broke away from an escort and attempted to strike Childress, that Childress
defended himself with reasonable force, that Vasquez did not stop resisting when told to do so,
Smith used “minimal force” to gain control of Vasquez’s legs, and Vasquez kicked at him and only
stopped resisting once the leg restraints were applied. As evidence that these facts are “undisputed,”
the Defendants cite the TDCJ Use of Force Report, the disciplinary case which Vasquez received,
and Smith’s affidavit.
Next, the Defendants assert that Vasquez’s claims concerning the use of force are foreclosed
by the disciplinary case which he received, charging him with assaulting Childress by attempting to
strike him in the face with his left elbow, which did not result in any injuries. They also contend that
Vasquez received only de minimis injuries as a result of the use of force and that the force was
justified in any event.
Turning to the issue of deliberate indifference, the Defendants contend that there was no
evidence that any of them were involved in Vasquez’s medical care and that none of them were
deliberately indifferent to a serious medical need. They state that Vasquez did not allege even de
minimis injury resulting from the denial of insulin and that the summary judgment evidence shows
that he received two doses of insulin on the date in question.
Byrd and Owens assert that they are correctional officers, not medical personnel; Byrd says
that she was a medical transport officer whose duties involved taking inmates to medical
appointments in Galveston or Huntsville, not to the clinic at the unit, while Owens states that he is
a sergeant at the unit. Byrd and Owens state that inmates are free to report to the clinic to receive
insulin before meals and inmates are not escorted to the clinic. Although doors must be opened for
the inmates to be able to get to the clinic, Byrd asserts that she never mans these doors, and Owens
says that sergeants such as himself typically do not man the doors.
Finally, the Defendants contend that they are entitled to Eleventh Amendment immunity from
damages for claims brought against them in their official capacities, and to qualified immunity from
damages for claims brought against them in their individual capacities.
Vasquez’s Response to the Motion for Summary Judgment
In his response to the motion, Vasquez argues that “numerous material facts” show
that the Defendants are not entitled to Eleventh Amendment immunity or to qualified immunity, and
that they used excessive and unreasonable force. He concedes that he broke the windows in the
dayroom, saying that he was “in fear of a heart attack or stroke” as he knew that he was entering
“diabetic shock.” He says that Hazelwood placed him in handcuffs and denies breaking away from
Childress, but says that he was in “diabetic shock” which made his movements “uncontrollable.”
Vasquez denies that leg restraints were applied and says that he was taken to the clinic by
Vasquez says that even though a nurse noted only “so-called minor injuries,” he, Vasquez,
was in “diabetic shock” and thus was unaware that he had a concussion until later. He acknowledges
that he received two doses of insulin on the date in question but points out that the second one was
only given to him after the incident had occurred.
Vasquez contends that Byrd is a “medical transport officer” and therefore should be trained
to recognize a medical emergency. He says that she was “operating a turnkey position in an overtime
position” and thus was responsible for opening the doors to let him go to the medical department.
Vasquez states that Owens should have seen the necessity to allow him access to the clinic but
ordered Byrd not to allow him off the wing or to go to the medical department.
Vasquez argues that even though missing a dose of insulin may not cause physical symptoms,
being four hours late for a dose can cause “immediate and severe reactions.” He concedes that he
did not allege injury, but says that “it is obvious” that he suffered injury, such as going into the
diabetic shock that resulted in this cause being filed. He again says that Byrd and Owens treated him
with deliberate indifference.
In an attached statement, which is not sworn and thus not competent summary judgment
evidence, Vasquez says that Major Owens tried to coax him into signing a “settlement” to resolve
the use of force claims, but the document Owens gave him to sign was blank. He states that Lt.
Hazelwood claimed that he, Hazelwood, was not the first on the scene, but nonetheless signed a
statement describing the incident from the beginning. He argues that Sgt. Smith was “deceptive”
in saying that he, Smith, used leg restraints and when Smith denied striking Vasquez in the body.
Officer Wingate was seen videotaping the broken windows but falsely claimed that he did not arrive
until after the use of force was called, and made a statement about the leg restraints which were not
there and intentionally did not videotape the use of force. Vasquez notes that the defendants said
that his behavior was “abnormal,” indicating that they knew that he was entering into “diabetic
Vasquez goes on to maintain that Byrd’s claims that she did not man the door and did not
know who was the supervisor in the area are more deceptions, and that Childress’ assertions that
Vasquez broke away and attempted to assault him are false because Vasquez is disabled and has to
use a cane. He claims that Wingate was disciplined for failing to follow procedures, that Smith was
punished by being removed from general population, and that Childress was fired or forced to quit.
The Use of Force Report shows that Wingate received administrative discipline of three months’
disciplinary probation for failing to record the incident; there is no indication that Smith or Childress
received any disciplinary action, and in fact the report concluded that excessive force was not used.
Legal Standards and Analysis
The Use of Force Claim
The Defendants first assert that their use of force was justified, arguing that there are
“no disputed issues of fact” that Vasquez provoked the incident by pulling away from and attempting
to strike Officer Childress. However, in Vasquez’s sworn pleadings and testimony, he says that he
was complaining of his condition in a “non-threatening, non-belligerent manner” when Childress
struck him in the face with his fist, causing him to fall to the floor; Smith then jumped on him and
beat him with his knee and fist. Vasquez’s sworn pleadings and testimony are competent summary
judgment evidence. Al-Ra'id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995). To the extent that the
Defendants contend that the facts surrounding the use of force incident are “undisputed” or “not
subject to reasonable dispute,” this contention is without merit. See Securities and Exchange
Commission v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1994) (evidence and inferences are viewed in
the light most favorable to the non-movant when reviewing a motion for summary judgment).
The Defendants next assert that Vasquez’s claims concerning the use of force are foreclosed
by the disciplinary case which he received, charging him with assaulting Childress by attempting to
strike him in the face with his left elbow, which did not result in any injuries. They cite Hadnot v.
Butler, 332 Fed.Appx. 206 (5th Cir. 2009).
In that case, the plaintiff Johnny Hadnot asserted that Sgt. Butler and Officer Alexander used
excessive force on him while he was being moved from one cell to another. Hadnot stated that the
officers would not let him return to his former cell to retrieve his mattress and bedding, and
construed his actions as a refusal to enter his newly assigned cell. He also said that the officers got
in his face and cursed at him, telling him to get back in the cell. They then forced him to the ground
without provocation and began kicking him in the head and back.
Hadnot received a disciplinary case for assaulting an officer and failure to relinquish hand
restraints. He forfeited 365 days of good time credits as a result of his conviction in the disciplinary
Hadnot brought suit, raising various claims including one for excessive force. With regard
to that claim, the district court stated as follows:
Hadnot seeks monetary damages for a use of force that resulted in a disciplinary
conviction and a loss of good-time credits. To recover damages for an allegedly
‘unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make
such determinations, or called into question by a federal court's issuance of a writ of
habeas corpus [under] 28 U.S.C. § 2254.’ Heck v. Humphrey, 512 U.S. 477, 486-87,
114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). A claim for damages that bears a
relationship to a conviction or sentence that has not been so invalidated is not
cognizable under 42 U.S.C. § 1983. Id. Therefore, if a judgment in favor of the
plaintiff would ‘necessarily imply the invalidity of his conviction or sentence,’ then
the complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. Id. In this context, a ‘conviction’
includes a prison disciplinary proceeding that results in a change to the prisoner's
sentence, such as the loss of good-time credits. Edwards v. Balisok, 520 U.S. 641,
117 S.Ct. 1584, 137 L.Ed.2d 906 (1997).
Hadnot complains that Sergeant Butler and Officer Alexander used excessive force
against him on July 11, 2007. As Hadnot discloses in his more definite statement,
however, he was convicted of disciplinary charges, including assault on an officer,
in connection with the July 11, 2007 incident in which the complained of force was
used. (Doc. # 9, at ¶ 20). Hadnot concedes that he lost previously earned good-time
credits as a result of this conviction and that the conviction has not been overturned.
( Id. at ¶¶ 20-21).
Hadnot's excessive-force claim would, if true, necessarily implicate the validity of
his disciplinary conviction. Because Hadnot's conviction has not been overturned, his
civil rights claims against the defendants are barred by Heck. See Edwards, 520 U.S.
at 647-48; see also Hudson v. Hughes, 98 F.3d 868, 872-73 (5th Cir.1996) (holding
that allegations of excessive force and false arrest are not cognizable under the
doctrine in Heck if a successful civil rights claim would call into question the validity
of the plaintiff's conviction); see also Sappington v. Bartee, 195 F.3d 234 (5th
Cir.1999) (holding that Heck bars a civil rights claim for excessive force and false
arrest where the plaintiff has been convicted of assaulting an officer); Donnelly v.
Darby, 81 F. App'x 823, 2003 WL 22794388 (5th Cir.2003) (unpublished per curiam)
(rejecting excessive force claims from a state prisoner who received a disciplinary
conviction arising from the same incident); Powell v. Maddox, 81 F. App'x 476,
2003 WL 22734607 (5th Cir.2003) (unpublished per curiam) (same).
Because Hadnot's claims are not cognizable under 42 U.S.C. § 1983, the complaint
must be dismissed with prejudice for failure to state a claim upon which relief can
be granted at this time. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.1996)
(explaining that claims barred by Heck are ‘dismissed with prejudice to their being
asserted again until the Heck conditions are met’).
Hadnot v. Butler, civil action no. H-08-1304, 2008 WL 4200815 (S.D.Tex., Sept. 9, 2008).
On appeal, the Fifth Circuit stated as follows:
Hadnot also maintains that he has raised a viable Eighth Amendment claim against
these defendants because they attacked him without provocation. Hadnot has not
shown that his disciplinary conviction has been overturned. See Edwards v. Balisok,
520 U.S. 641, 646-48, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). Further, Hadnot’s
suit is barred by Heck due to the nature of his claims and allegations. See DeLeon
v. City of Corpus Christi, 488 F.3d 649. 656-57 (5th Cir. 2007).
In Powell v. Maddox, civil action no. 2:97cv280 (N.D.Tex., April 15, 2003), the plaintiff
Tony Powell asserted that he was walking with other inmates when the defendant Michael House
singled him out and called him over, subjecting him to verbal abuse for allegedly having run into
House. Powell tried to explain, and Maddox handcuffed him and verbally abused him. Powell
stated that he did not understand, and Maddox pushed and struck him, trying to take him to the
ground. The defendants House, Wilson, and Atchley helped Maddox by kicking and striking Powell
and twisting his legs. Another defendant, Horn, did nothing to prevent the attack but instead stood
Powell received a disciplinary case for turning while handcuffed and attempting to charge
at House and Maddox, necessitating a use of force. The district court held that a grant of relief on
Powell’s use of force claim would necessarily call into question the validity of the disciplinary
determination of guilt, and so this claim was not cognizable under 42 U.S.C. §1983 absent a showing
of favorable termination of the disciplinary case. Because Powell failed to show that the disciplinary
case had been reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such a determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, his use of force lacked an arguable basis in law and was
frivolous until such time as such a showing was made.
On appeal, the Fifth Circuit stated as follows:
Powell alleged that prison officials used excessive force on him in an altercation that
resulted in his loss of good time credits, among other things. A prisoner attacking
a disciplinary proceeding that resulted in the loss of good time credits cannot bring
a 42 U.S.C. §1983 action seeking damages until his ‘conviction’ in that proceeding
has been expunged, reversed, or otherwise set aside. Edwards v. Balisok, 520 U.S.
641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Clarke v. Stalder, 154 F.3d 186,
189 (5th Cir. 1998) (en banc). Powell is unable to show that his disciplinary
conviction has been set aside. See Randell v. Johnson, 227 F/3d 300, 301 (5th Cir.
2000). The judgment of the district court is affirmed.
In the present case, Vasquez received a disciplinary case stating that he “assaulted Sgt. J.
Childress by attempting to strike me in the face with his left elbow.” The additional information
contained in the offense report says that Childress was escorting Vasquez to the infirmary for a prehearing detention physical when Vasquez jerked away and tried to strike him in the face with his left
elbow, resulting in a major use of force. He declined to attend the disciplinary hearing, although he
made a statement that the case was “false” because he was handcuffed. The evidence at the
disciplinary hearing showed that Vasquez had broken out some windows with his cane and then
pulled away from Childress and tried to elbow him, and a use of force ensued.
Like Hadnot, Vasquez “maintains that he has raised a viable Eighth Amendment claim
against these defendants because they attacked him without provocation.” This claim, if proven,
casts doubt on the validity of the disciplinary proceeding, in which Vasquez was convicted for
pulling away from and attempting to assault an officer. Because Vasquez, again like Hadnot, has
failed to show that his disciplinary conviction, including the forfeiture of good time, has been
overturned, expunged, or otherwise set aside, his use of force claim is barred by Heck and Balisok,
as the Fifth Circuit explained in Hadnot and Powell.
The fact that the disciplinary case makes no mention of Officer Smith does not change the
validity of this analysis. In Powell, the plaintiff sued officers Maddox, House, Wilson, and Atchley
for use of excessive force, and sued Horn for failing to intervene. The disciplinary case charged him
with turning while handcuffed and attempting to charge at House and Maddox, necessitating a use
of force. The district court held that a grant of relief to Powell would necessarily call into question
the disciplinary determination of guilt, thus foreclosing his civil rights claim until the disciplinary
conviction was set aside. The Fifth Circuit affirmed this decision.
Similarly, in Null v. Sanders, civil action no. 2:00cv58, 2001 WL 256111 (N.D.Tex., March
9, 2001, aff’d 273 F.3d 1094, 2001 WL 1085077 (5th Cir., August 28, 2001), the plaintiff David Null
complained that Officer Rojas initiated an unprovoked and unjustified use of force against him, and
Officer Valenzuela joined in. The evidence showed that he received disciplinary cases for striking
an officer, trafficking and trading, and refusing to obey an order. In his Section 1983 lawsuit, Null
argued that he was not challenging the due process which he received and that if successful, his
claims would not demonstrate the invalidity of these disciplinary convictions. The district court
disagreed, holding that “it appears that a finding in plaintiff’s favor, on his claims against Rojas and
Valenzuela, would necessarily imply the invalidity of the disciplinary case for striking an officer.”
The district court therefore dismissed Null’s claim until he could show that the disciplinary case had
been overturned or otherwise set aside.
On appeal, the Fifth Circuit stated as follows:
Null argues that because he did not lose any good time credits through his
disciplinary proceeding, he is no longer “in custody” pursuant to that proceeding so
that the requirements of Heck need not be fulfilled. Null has failed to show,
however, that he did not in fact lose good time credits as a result of the disciplinary
Consequently, before he could obtain money damages for the alleged assault by
Rojas and Valenzuela, Null would have to show that the result of the disciplinary
hearing, in which he was charged with striking an officer, has been overturned. As
Null concedes that his disciplinary conviction has not been overturned, his claims are
barred by Heck and Edwards [v. Balisok].
The same situation exists in the present case. Vasquez contends that he was peacefully
explaining himself when he was assaulted without provocation by Childress and Smith. The
disciplinary case says that Vasquez pulled away from Childress and attempted to strike the officer,
resulting in a use of force. A finding in Vasquez’s favor on his use of force claim would necessarily
imply the invalidity of the disciplinary case, in which disciplinary case Vasquez lost 730 days of
good time. Thus, Vasquez cannot proceed on his use of force claim without showing that the
disciplinary case has been overturned, expunged, or otherwise set aside, which he has failed to do.
The Defendants’ motion for summary judgment should be granted as to this claim.
The Denial of Insulin Claim
Vasquez also asserts that “prior to sadistic assault, 1500-1900 hours, CO IV Paula Byrd and
Sgt. Michael Owens repeatedly refused me my prescribed and scheduled medication of insulin which
is required that I take 2 to 3 times daily, this was done intentionally strictly on the basis of race.” At
the evidentiary hearing, Vasquez testified that Byrd and Owens had refused to allow him to go to the
infirmary, but allowed other diabetics to get insulin. It was not clear if Vasquez was complaining
about Byrd and Owens delaying him from receiving insulin only on April 1, 2009, or if he was
complaining of delays from before that date.
The TDCJ medical records show that on March 7, 2009, Vasquez received a prescription,
presumably a renewal, for U-100 human insulin. The dosage was on a sliding scale depending on
Vasquez’s blood sugar readings, ranging from two units, for a blood sugar reading of 181 to 250, to
12 units if his blood sugar was 451-500. Vasquez received insulin twice on March 7, 8, 9, and 10.
On March 11, his blood sugar was read at 136, and he received only one dose.
Vasquez then received insulin twice on March 12 and 13, and was seen in the clinic once on
March 14 but it does not appear that any insulin was provided at that time. He received insulin twice
on March 15, 16, 17, 18, and once on March 19, although he refused another dose on that date. He
received insulin twice on March 20 and once on March 21, refusing a second dose on that date. On
March 22, he was seen in the clinic once but no glucometer reading was recorded and it does not
indicate how many units were provided, if any.1
Vasquez received insulin once on March 23 and 24, and on March 25, 26, and 28, he was
seen once but no glucometer reading is recorded and the record does not indicate how many units
were given, if any. He received insulin once on March 27, 29, 30, and 31. On April 1, the day of
the incident, Vasquez received four units of N-26 insulin at 4 a.m., and four units of N-30 insulin
at 6:25 p.m.
Vasquez’s claim against Byrd and Owens is that they refused to allow him to go to the
infirmary to get his insulin. The Supreme Court has stated that interference with medical assistance
by security officers may state a valid claim if the interference amounts to deliberate indifference to
a serious medical need. Estelle v. Gamble, 429 U.S. 97, 105 (1976). The Fifth Circuit has stated
that “delay in medical care can only constitute an Eighth Amendment violation if there has been
deliberate indifference, which results in substantial harm.” Mendoza v. Lynaugh, 989 F.2d 191, 193
On the diabetic flow sheet for these dates, there is a dash in the column headed “FSBS
result by glucometer” and in the column saying “Dose / Units,” there is a 30, indicating the insulin
type, but no indication for the number of units given. On other dates, this column reads, for
example, “30/4" where four units of Type N-30 insulin was given, or 26/12 if 12 units of Type N-26
insulin was given. It is not clear whether Vasquez required or received insulin on the days where
there is a dash in the glucometer column.
(5th Cir. 1993); see also King v . Kilgore, 98 F.3d 1338, 1996 WL 556845 (5th Cir., Sept. 9, 1996)
(delay in obtaining medical treatment for an asthma attack was not an Eighth Amendment violation
where there were no facts showing substantial harm).
Vasquez was seen in the infirmary by the nurse after the incident, and she determined that
he had an abrasion and a contusion on his forehead. Nothing in the medical records supports
Vasquez’s assertion that he was suffering from “diabetic shock” as a result of a deprivation of insulin
lasting no more than a few hours.
When an inmate alleges a serious medical need either for treatment or to avoid certain
conditions, the inmate's bare assertion of a serious medical condition is insufficient without medical
evidence verifying that 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 WL 665819
(E.D.Tex., January 7, 2011, Report adopted at 2011 WL 941442 (E.D.Tex., February 16, 2011, aff’d
slip op. no. 11-40272, 2012 WL 1059408 (5th Cir., March 29, 2012) (citing Aswegan and Kayser).
Vasquez’s bare assertion that he was suffering from “diabetic shock” is insufficient in light of the
fact that no medical evidence exists verifying that he was suffering from such a condition.2 Nor has
Vasquez shown that he suffered any other substantial harm as a result of the alleged delays by Byrd
and Owens in his obtaining insulin.
Thus, even assuming the truth of Vasquez’s assertions that Byrd was responsible for opening
the doors and that Owens told her not to let Vasquez go to the clinic, his claim nonetheless fails
because he has not met the requirement, as set out by the Fifth Circuit, of showing that the delay in
medical care “result[ed] in substantial harm.” Mendoza, 989 F.2d at 193. Nothing in the medical
records supports Vasquez’s assertion that the incident with Smith and Childress was somehow
Although Vasquez asserts that he was suffering from “diabetic shock” as a result of
being allegedly deprived of insulin, in fact diabetic shock is a condition caused by having too much
i n s u l i n ,
r a t h e r
t h a n
n o t
e n o u g h .
S e e
caused by the brief delay in receiving insulin which he suffered. An affidavit from Nurse Manager
Tara Patton, R.N., states that officers do not escort inmates to the medical departments where these
inmates are housed in an area where they have free movement. She notes that a missed dose of
insulin might result in no symptoms, and that it is highly unlikely that a dosage of insulin which is
delayed by a few hours would have any lasting effect on a patient’s health. Vasquez offers nothing
to refute this evidence. His claim against Byrd and Owens on this point is without merit.
Vasquez also asserts, in a wholly conclusory manner, that Byrd and Owens refused to allow
him to obtain insulin based upon his race. In his complaint, he makes the bald allegation that “this
was done intentionally strictly on the basis of race.” At the evidentiary hearing, Vasquez says that
the officers allowed other inmates to go to the clinic, but did not permit him to do so; however, he
offered nothing to show that he was singled out because of his race, nor did he even allege that the
inmates who were permitted to go to the infirmary were of a different racial background than his
own. Such vague and conclusory allegations are insufficient to set out a constitutional claim. See
Oliver v. Kanan, 428 Fed.Appx. 481, 2011 WL 2437759 (5th Cir., June 17, 2011, citing Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (vague and conclusory statements that defendants
provided white inmates with proper health care, but denied it to him, fail to state a constitutional
racial-discrimination claim); McKnight v. Eason, 227 Fed.Appx. 356, 2007 WL 1334184 (5th Cir.,
May 4, 2007) (citing Koch in holding that conclusory allegations of racial discrimination do not set
out a cognizable equal protection claim); Webber v. Bureau of Prisons, 198 Fed.Appx. 406, 2006
WL 2589152 (5th Cir., September 8, 2006) (allegations of discrimination were conclusory and so
the district court did not err in dismissing the equal protection claims). Vasquez’s bare and
conclusory claims of racial discrimination are without merit as well.
The Claims Against the Unserved Defendants
Byrd, Owens, Smith, and Childress were the only defendants ordered to answer the lawsuit.
Of these, Childress was never served because he could not be located. In any event, as set out above,
Vasquez’s claims against Childress are barred by Heck and Balisok because Vasquez has not shown
that the disciplinary case, which charged him with attempting to assault Childress, has been
overturned or otherwise set aside.
The Fifth Circuit has held that parties not joining in a successful motion for summary
judgment are nonetheless entitled to benefit from that motion. See Lewis v. Lynn, 236 F.3d 766, 768
(5th Cir. 2001). This is because, as the Fifth Circuit explained, where a defending party establishes
that a plaintiff has no cause of action, the defense generally also inures to the benefit of a defaulting
defendant. Lewis, 236 F.3d at 768, citing United States v. Peerless Ins. Co., 374 F.2d 942, 945 (4th
Cir. 1967); see also Armenta v. Pryor, civil action no. 5:06cv76, 2009 WL 331876 (E.D.Tex., Feb.
9, 2009, aff’d 377 Fed.Appx. 413, 2010 WL 1849278 (5th Cir., May 10, 2010) (dismissing unserved
defendants where the plaintiff’s “allegations of retaliation are wholly conclusory and insubstantial,
and insufficient to maintain a Section 1983 action,” whether the retaliation was carried out by served
or unserved defendants). Hence, Childress is entitled to benefit from the motion for summary
judgment despite the fact that he was not served with process and thus did not join in the motion.
Similarly, the other unserved defendants, Wingate, Hazelwood, and Culpepper, are also
entitled to benefit from the motion for summary judgment, which established that Vasquez lacked
a cause of action. In addition, Vasquez’s claims against these defendants may be dismissed as
frivolous and for failure to state a claim upon which relief may be granted.
Vasquez complained that Wingate failed to properly videotape the incident. At the
evidentiary hearing, he stated that he was suing Wingate for “neglect.” He also noted that Wingate
could have filed a report but did not. In his response to the motion for summary judgment, Vasquez
pointed out that Wingate had received administrative discipline for his failure to secure a videotape.
The Fifth Circuit has held that to obtain relief under the Civil Rights Act, 42 U.S.C. §1983,
a person must show two elements. These are: (1) the deprivation of a right secured by the
Constitution or laws of the United States, and (2) that the deprivation was done by a person acting
under color of state law. Johnson v. Dallas Independent School District, 38 F.3d 198, 199 (5th Cir.
1994). The fact that Wingate did not record the use of force does not show a deprivation of a right
secured by the Constitution or laws of the United States. See Kiser v. Dearing, slip op. no.
6:08cv272 (E.D.Tex., May 22, 2009) (unpublished) (available on WESTLAW at 2009 WL 1457693)
(fact that the camera operator did not start the camera until the incident was over did not implicate
a constitutionally protected liberty interest); accord, Trevino v. Johnson, civil action no. 9:05cv171
(E.D.Tex., dismissed as frivolous December 8, 2005, no appeal taken) (dismissing claims against
camera operator in use of force claim for failing to set out a constitutional violation); Johnson v.
Hamill, civil action no. 6:09cv248, 2009 WL 2982800 (E.D.Tex., September 11, 2009) (partial order
of dismissal) (camera operator not liable for failing to turn on video camera in time to record use of
force). This is true even if Wingate violated TDCJ rules and policies by failing to make a recording;
the Fifth Circuit has held that a violation of prison rules alone 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). Vasquez’s claim against Wingate is without merit.
Vasquez stated that Lt. Hazelwood handcuffed him and took him out into the hallway after
he broke the windows in the dayroom. He testified that Hazelwood should have reported the
incident, but did not. Even if Hazelwood did not report the incident, Vasquez has failed to show that
this amounted to the deprivation of a constitutionally protected right; as Vasquez concedes, the
incident was investigated and a use of force report was done. Hazelwood gave a statement for the
use of force investigation and also wrote the supervisor summary of the incident. Vasquez has not
shown that he suffered any harm through the fact that Hazelwood did not report the incident in the
manner which Vasquez thought appropriate. Cf. Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir.
2005) (no right to have complaints investigated in a manner which the prisoner deems satisfactory).
Nor has Vasquez shown any constitutional violation in the fact that Hazelwood handcuffed him and
removed him from the dayroom after Vasquez broke out the windows with his cane. His claim
against Hazelwood is without merit.
Finally, Vasquez sues Lt. Culpepper, saying that Culpepper should have reported the incident
and should have made sure that the camera was working. Vasquez ascribed Culpepper’s actions to
Vasquez has failed to show any harm in the fact that Culpepper did not report the incident,
as the evidence shows that a use of force investigation was conducted. He does not show what
would be different had Culpepper reported the incident apart from the use of force investigation.
Claims of “neglect” are essentially allegations of negligence, which is not cognizable in a federal
civil rights lawsuit under 42 U.S.C. §1983. Daniels v. Williams, 474 U.S. 327, 331-33 (1986).
Vasquez’s claim that Culpepper should have checked the camera to ensure that it was working lacks
merit because the camera was checked after the incident and was found to be in good working
condition, which is why Wingate was disciplined for failing to record the incident. Vasquez’s claims
against Lt. Culpepper are without merit.
In their motion for summary judgment, the Defendants invoke Eleventh Amendment and
qualified immunity. To the extent that Vasquez may be suing the Defendants in their official
capacity, they are entitled to Eleventh Amendment immunity. Pennhurst State School & Hospital
v. Halderman, 465 U.S. 89, 101-02 (1984); accord, Hafer v. Melo, 112 S.Ct. 358, 363 (1991); Oliver
v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (noting that the Fifth Circuit has “twice held that the
Eleventh Amendment bars recovering §1983 money damages from TDCJ officers in their official
The doctrine of qualified immunity applies to claims for monetary damages brought against
a government official in his or her individual capacity. The Fifth Circuit has stated that a qualified
immunity defense serves to shield a Government official from civil liability for damages based upon
the performance of discretionary functions if the official’s actions were reasonable in light of then
clearly existing law. Atteberry v. Nocona General Hospital, 430 F.3d 245, 253 (5th Cir. 2005),
citing Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001). To prevail in a §1983
lawsuit, a plaintiff must overcome an officer's defense of qualified immunity. See McClendon v. City
of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (noting that when a defendant invokes qualified
immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense).
The Fifth Circuit has stated that to discharge this burden, the plaintiff must satisfy a twoprong test. First, he must claim that the defendants committed a constitutional violation under
current law, and second, that the defendant’s actions were objectively unreasonable in light of the
law which was clearly established at the time of the actions complained of. Atteberry, 430 F.3d at
253; Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004). These two prongs may be considered
in either order. Saucier v. Katz, 533 U.S. 194, 201 (2001).
In this case, Vasquez has not shown that any actions taken by the Defendants Byrd, Owens,
or Smith amounted to a constitutional violation or were objectively unreasonable in light of clearly
established law. Consequently, these Defendants are entitled to the defense of qualified immunity.
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 that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. Securities and Exchange
Commission v. 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.
To avoid summary judgment, the non-moving party must adduce admissible evidence which
creates a fact issue concerning existence of every essential component of that party's case;
unsubstantiated assertions of actual dispute will not suffice. Thomas v. Price, 975 F.2d 231, 235 (5th
Cir. 1992), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Fifth Circuit has stated
that once the moving party has met its burden, the non-movant must direct the court's attention to
admissible evidence in the record which demonstrates that it can satisfy a fair-minded jury that it is
entitled to a verdict in its favor. ContiCommodity Services, Inc. v. Ragan, 63 F.3d 438, 441 (5th Cir.
Summary judgment should be granted when the moving party presents evidence which
negates any essential element of the opposing party's claim, including a showing that an essential
element of the opposing party's claim is without factual support. First American Bank & Trust of
Louisiana v. Texas Life Ins. Co., 10 F.3d 332, 334 (5th Cir. 1994). The granting of summary
judgment is proper if the movant demonstrates that there is no genuine issue of material fact and that
the movant is entitled to judgment as a matter of law. Caldas & Sons v. Willingham, 17 F.3d 123,
126 (5th Cir. 1994). Once the movant makes this showing, the burden shifts to the non-movant to
come forward with evidence sufficient to establish the existence of a genuine issue of material fact.
Caldas, 17 F.3d at 126-27.
Although the Court must draw all inferences in favor of the party opposing the motion, an
opposing party cannot establish a genuine issue of material fact by resting on the mere allegations
of the pleadings. Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir. 1991); see also Gordon v.
Watson, 622 F.2d 120 (5th Cir. 1980) (litigants may not oppose summary judgment through unsworn
materials). Similarly, a bald allegation of a factual dispute is insufficient, in itself, to create a
genuine issue of material fact. Recile, 10 F.3d at 1097 n.15. A non-movant cannot manufacture a
factual dispute by asking the Court to draw inferences contrary to the evidence. Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In short, a properly supported
motion for summary judgment should be granted unless the opposing party produces sufficient
evidence to show that a genuine factual issue exists. Hulsey, 929 F.2d at 170, citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The Fifth Circuit has stated that once the defendants have shifted the burden to the plaintiff
by properly supporting their motion for summary judgment with competent evidence indicating an
absence of genuine issues of material fact, the plaintiff cannot meet his burden by some metaphysical
doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only
a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations
omitted). The Court added that “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.” Little, 37 F.3d at 1075.
Where a motion for summary judgment is filed, the movant has the initial burden of proof
to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as
a matter of law. John v. State of Louisiana Bd. of Trustees for State Colleges and Universities, 757
F.2d 698, 708 (5th Cir. 1985). Once the movant has done so, the burden then shifts to the plaintiff,
who must identify specific evidence in the record and articulate the precise manner in which that
evidence supports his claims; the district court has no duty to sift through the record in search of
evidence to support a party’s opposition to summary judgment. Stults v. Conoco, Inc., 76 F.3d 651,
656 (5th Cir. 1996). As for material facts on which the plaintiff will bear the burden of proof at trial,
he must come forward with evidence sufficient to enable him to survive a motion for directed verdict
at trial. Stults, 76 F.3d at 656; see also Johnson v. Deep East Texas Regional Narcotics Trafficking
Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (non-movant must identify specific evidence in the
record and articulate the manner in which that evidence supports that party’s claim).
In this case, the competent summary judgment evidence shows that there are no disputed
issues of material fact and that the Defendants Byrd, Owens, and Smith is entitled to judgment as
a matter of law. The motion for summary judgment also operates to the benefit of the Defendants
Childress, Wingate, Hazelwood, and Culpepper, who were not served and thus did not join in the
motion. In addition, the evidence shows that Vasquez’s claims against Wingate, Hazelwood, and
Culpepper lack any arguable basis in law and fail to state a claim upon which relief may be granted,
and so these claims may be dismissed as frivolous and for failure to state a claim pursuant to 28
U.S.C. §1915A. It is accordingly
ORDERED that the Defendants’ motion for summary judgment (docket no. 48) is
GRANTED and the above-styled civil action be and hereby is DISMISSED with prejudice as to all
Defendants except for Smith and Childress.
The claims against Smith and Childress are
DISMISSED with prejudice until such time as Vasquez can show that the disciplinary case which
he received has been overturned, expunged, or otherwise set aside. The granting of this motion for
summary judgment inures to the benefit of all of the Defendants, including those who did not join
in the motion. It is further
ORDERED that the Plaintiff’s claims against the Defendants Hazelwood, Culpepper, and
Wingate are also DISMISSED with prejudice as frivolous and for failure to state a claim upon which
relief may be granted. It is further
ORDERED that the dismissal of these claims as frivolous shall count as a strike for purposes
of 28 U.S.C. §1915(g). It is further
ORDERED that the Clerk shall provide a copy of this order to the Administrator of the
Strikes List for the Eastern District of Texas. Finally, it is
ORDERED that any and all motions which may be pending in this civil action are hereby
So ORDERED and SIGNED this 25 day of June, 2012.
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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