Giddens v. Garcia et al

Filing 61

MEMORANDUM OPINION and ORDER of Dismissal. Ordered that the Defendant's 51 Motion for summary judgment is granted and the civil action is dismissed with prejudice. Ordered that any and all motions which may be pending in this civil action are hereby denied. Signed by Magistrate Judge K. Nicole Mitchell on 8/18/2015. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JIMMY GIDDENS

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v.

§

ROGELIO GARCIA

§

CIVIL ACTION NO. 6:13cv232

MEMORANDUM OPINION AND ORDER OF DISMISSAL
The Plaintiff Jimmy Giddens 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). The sole remaining Defendant in the case is Sgt. Rogelio Garcia.
I. Background
Giddens states that on April 17, 2012, he was working in the chow hall at the Gib Lewis Unit.
The warden and an official from Huntsville were inspecting the kitchen and asking Giddens
questions. The kitchen captain became angry at some of the answers which Giddens was giving and
had him removed from the kitchen. He was taken to lockup without being given a reason.
When he got to lockup, Sgt. Garcia called him an “a**hole.” Giddens responded by calling
Garcia a “wetback.” Garcia placed his hands around Giddens’ neck and began to choke him. The
officer then punched Giddens in the stomach several times and tried to punch him in the genitals.
Sgt. Whigham, Sgt. Stewart, and Officer Miraz stood by and watched, making no attempt to
intervene. An inmate named Carlos Gutierrez wrote a witness statement to the Office of the
Inspector General, but this statement denied seeing anything.
Five days later, Officer Barlow came to take Giddens to the medical department for a prehearing physical. Giddens asked Barlow why he had not been taken to the medical department after
the assault on April 17, and Barlow said that he had been told Giddens refused the pre-hearing
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detention (PHD) physical. Giddens stated that if he had refused the PHD physical at the time he was
placed in detention, why was he being taken for one five days later. Barlow replied “that doesn’t
make any sense.”
Giddens states that as a result of the assault, his throat was swollen to the point that he could
not swallow. However, by the time he got to the infirmary, five days later, the swelling had gone
away. He states that Nurse Rogers told him that nothing was wrong with him and no treatment was
needed.
The next day, April 23, Captain Collins took Giddens to see Major Bryant. The major asked
what had happened and Giddens told him everything, including how Nurse Rogers had told him to
file a sick call request after he told her that his throat hurt and it was hard for him to swallow. He
also complained to Rogers of neck and back pain. Bryant asked if Giddens had written down what
had happened and Giddens said yes. Bryant said “give me your written statement and I will make
a copy and return it to you,” but the major never did return Giddens’ written statement.
On April 24, counsel substitute Angela Rice called Giddens to her office to help her fill out
an appeal for a disciplinary case which Giddens had received for allegedly threatening Sgt. Garcia.
Rice told him to file on Garcia for assaulting him and failure to report a use of force, stating that had
Garcia not assaulted Giddens, a verbal threat would not have been made. Rice told Giddens that Sgt.
Garcia said he forgot to write down that Giddens had refused the pre-hearing detention physical. She
suggested that Giddens report the assault to his family and have them contact the ombudsman’s
office.
Sgt. Garcia was ordered to answer the lawsuit and the case was set for trial. Prior to trial, the
case was continued because of unrelated issues concerning Giddens. After the continuance of the
trial, Garcia filed a motion for summary judgment, to which Giddens has filed a response.
II. The Motion for Summary Judgment
Sgt. Garcia’s motion for summary judgment argues that the objective factors in Giddens’
medical records controvert his allegations to such an extent as to make these allegations implausible
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and thus subject to summary dismissal. Garcia states that according to the medical records, Giddens
was seen on numerous occasions by medical personnel in the days following the incident and no
injuries were ever noted. He argues that under Fifth Circuit precedent, if the objective factors of an
inmate’s medical record show no evidence of any injuries consistent with the inmate’s allegations,
the court may conclude that the allegations are implausible.
The affidavit of Nurse Peggy Durant, R.N., says that she was assigned to conduct cell checks
on April 18, 2012. She stopped at Giddens’ cell to observe him and inquire about his medical status.
She saw no signs of injury and asked Giddens if he needed anything from the medical department.
Giddens did not request medical care. She placed a check mark on his daily flow sheet, indicating
that his medical status had not changed; had he appeared to be injured or requested medical care, she
would have assisted him in obtaining medical care and would have placed an asterisk on his flow
sheet rather than a check mark to show that medical care was needed. (ECF TXED 6:13-cv-232, 511, p.2).
An affidavit from Nurse Rhonda Rogers, LVN, states that she conducted a medical
evaluation of Giddens on April 22, 2012. This evaluation was conducted after Giddens filed a
grievance claiming that Garcia punched him several times in the abdominal region and choked him.
She asked Giddens to remove his shirt so she could examine his abdominal region. Nurse Rogers
saw no bruises, contusions, or abrasions. She then pressed gently into Giddens’ stomach and found
no signs of tenderness.
Rogers states that even though her examination took place five days after the incident, had
he sustained bruising from being repeatedly punched in the stomach, these bruises would have been
evident to some degree at the time the examination was done. She adds that “it is highly unlikely
that he would show no signs of injury or tenderness in the days following his alleged assault.” (ECF
TXED 6:13-cv-232, 51-2, p.2).
In his response to the motion, Giddens acknowledges that his flow sheet has check marks for
April 18, 19, 20, 21, 22, 23, and 24, ostensibly indicating that he did not request medical care on
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those dates. However, Giddens says that despite the fact his flow sheet has a check mark on it for
April 22, Rogers noted that same day that Giddens “complained of being hit in the stomach and
choked by an officer on Tuesday.” Furthermore, Giddens states that Durant placed a check mark on
his flow sheet on April 23, the same date he filed his grievance; he states that therefore, the mere
placement of a check mark does not mean that he had no health complaints on April 18 or any other
day.
Giddens states that although TDCJ policy requires that an inmate receive a pre-hearing
detention physical within 12 hours of his placement in pre-hearing detention, he did not receive a
physical until April 22, five days after being put in pre-hearing detention. Rogers claimed that this
examination occurred because Giddens filed a grievance, but his grievance was not submitted until
April 23, the day after her examination of him.
In his affidavit, Giddens reiterates that Garcia choked him, hit him in the stomach, and tried
to hit him in the genitals. The choking caused him to be unable to swallow for several days and the
hitting caused pain in his stomach. He did not get a pre-hearing detention physical and was never
offered one; Giddens specifically denied refusing a physical although Rice told him that Garcia said
he “forgot to write down” that Giddens had refused it.
Five days after the incident, Giddens states he was taken to the infirmary for examination.
He asked why he had not had a physical earlier and the escorting officer said he understood Giddens
had refused, which was not true. During the exam, he told Rogers that Garcia beat him in the
stomach and choked him and that as a result, it was hard to swallow, it hurt to turn his head, and his
stomach and back hurt.
Although Nurse Durant states that she checked his cell on April 18 and he did not request
any medical care, Giddens states that he does not remember Durant coming by his cell. He contends
that he told everyone coming by his cell about what happened and that he wanted medical care.

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III. Legal Standards and Analysis
A. Excessive Use of Force
In Wilburn v. Shane, 193 F.3d 317, 1999 U.S. App. LEXIS 38885 (5th Cir., August 20,
1999), the plaintiff S.J. Wilburn complained, inter alia, of excessive force. The district court
dismissed the lawsuit on summary judgment, finding that no evidence supported the plaintiff’s
allegations. On appeal, the Fifth Circuit stated as follows:
Furthermore, based on the objective factors of Wilburn’s medical records, which
show no evidence of any injuries consistent with the allegations of excessive force,
Wilburn’s allegations are implausible. See Wesson v. Oglesby, 910 F.2d 278, 281-82
(5th Cir. 1990). It is implausible that the hospital would not have recorded the severe
injuries Wilburn alleged he received. Therefore, the district court properly granted
the motion for summary judgment as to all defendants.
In Williams v. Thompson, civil action no. 5:11cv68, 2012 U.S. Dist. LEXIS 25292 (E.D.Tex.,
January 26, 2012, Report adopted at 2012 U.S. Dist. LEXIS 25302 (E.D.Tex., February 28, 2012),
the plaintiff alleged that he was hit in the head with a flashlight hard enough to render him
unconscious, but two hours later, his head showed no signs of any injury, not even a bump or bruise.
This Court dismissed the claim, citing Wilburn and concluding that there was no objective evidence
that the plaintiff had suffered any injury as a result of the alleged incident.
Similarly, in Carter v. Prator, civil action no. 5:12cv1233, 2013 U.S. Dist. LEXIS 105190
(W.D.La., July 26, 2013), the plaintiff alleged extensive injuries including a laceration inside his left
jaw, a contusion to the right side of the temple, a contusion to the left side jaw bone, and a mild
concussion. However, the medical records showed that he suffered only a scratch on his left inner
jaw from the fillings in his teeth. The district court, citing Wesson, stated that “because Plaintiff’s
allegations are unsubstantiated, and in fact controverted by the objective medical records, there is
no genuine issue as to his injuries. The Defendants are entitled to summary judgment on the basis
that the Plaintiff suffered only a de minimis injury.”
The objective medical records in the present case do not show that Giddens suffered any
discernible injuries. Nurse Durant’s affidavit states that she saw him on April 18, the day after the
incident, and he made no complaints of injuries and did not display any, nor did he request medical
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assistance. Giddens’ statement that he “does not remember” Nurse Durant approaching his cell does
not refute her sworn statement that she did so. See generally Lee v. U.S., civil action no. 08-2158,
2011 WL 2559842 (E.D.La., June 27, 2011) (witness testimony that he did not remember the
accident and that another officer could have been present when it occurred did not refute the
plaintiff’s testimony and the accident report). Giddens acknowledges that the daily logs show that
he did not request medical assistance from the nurse doing checks at his cell.
When Giddens was taken to the infirmary, he told Rogers that he had been choked and
punched in the stomach. However, the medical records show that he had no outward signs of any
injuries and there were no indications of tenderness in his stomach. Even though the examination
took place five days after the alleged incident, Nurse Rogers stated that there would still be signs of
an assault and that it was “highly unlikely” that Giddens would show no signs of injury or tenderness
at that time.
Although Giddens contends that an inconsistency exists between the April 22 flow sheet,
which shows no complaints, and his visit to the infirmary in which he complained to Nurse Rogers,
this alleged inconsistency does not create a genuine issue of material fact. It is undisputed that
Giddens complained to Rogers on April 22 and that the medical records show Rogers found no
objective signs of any injury.
While it is true that Giddens’ sworn pleadings and affidavit are competent summary
judgment evidence, the Fifth Circuit has held 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, slip op. no.
09–41091 (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).
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Similarly, while Giddens’ sworn pleadings and affidavit 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 Defendant’s motion
for summary judgment. Foxworth v. Khoshdel, civil action no. 4:07cv03944, 2009 U.S. Dist. LEXIS
89581 (S.D.Tex., September 28, 2009, no appeal taken) (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); Turner v. Moffett, civil action no.
3:12cv220, 2013 U.S. Dist. LEXIS 132525 (S.D.Tex, September 17, 2013) (district court held that
“based on Turner’s medical records, which show no evidence of any injuries consistent with his
allegations of deliberate indifference, the Court finds that Turner’s allegations are implausible and
thus subject to summary judgment.”)
The Fifth Circuit has consistently held that civil rights plaintiffs must allege an actual injury
caused by the defendants' actions. See, e.g., Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir.1993)
(excessive force claim for spraying with a fire hose frivolous where prisoner suffered no injury);
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997) (sore, bruised ear which required no medical
care and healed in a few days would not support civil rights claim for excessive force); accord,
Knight v. Caldwell, 970 F.2d 1430, 1433 (5th Cir.1992).
These holdings by the Fifth Circuit are entirely consistent with Wilkins v. Gaddy, 559 U.S.
34, 38, 130 S.Ct. 1175, 1179 (2010). In that case, the Supreme Court stated that in Eighth
Amendment excessive force cases, the core judicial inquiry was not whether a certain quantum of
injury was sustained but whether force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically to cause harm. In so holding, however, the Supreme Court
specified that the Eighth Amendment “necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is not of a sort repugnant to the
conscience of mankind.” The Supreme Court went on to explain that “an inmate who complains of

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a push or shove that causes no discernible injury almost certainly fails to state a valid excessive force
claim.”
In the present case, the objective factors of Giddens’ medical records show no evidence of
any injuries consistent with the allegations of excessive force, rendering Giddens’ allegations
implausible. Robles v. Glenn, civil action no. 9:06cv256, 2007 U.S. Dist. LEXIS 41092 (E.D.Tex.,
June 5, 2007) (inmate who claimed he was struck in the arm with a food slot bar, but was seen that
day by a nurse and four days later by a doctor, neither of whom found any signs of injury, failed to
state a claim upon which relief may be granted); Wilburn, 1999 U.S. App LEXIS 38885 at *2. As
in Foxworth and Turner, Giddens’ allegations of injury lack support or substantiation in the medical
records. His conclusory allegations, speculation, and unsubstantiated assertions cannot overcome
the Defendant’s motion for summary judgment.
B. Qualified Immunity
The defense of qualified immunity shields government officials performing discretionary
functions from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known. Luna v. Mullenix,
773 F.3d 712, 718 (5th Cir. 2014); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738
(1982). It gives government officials breathing room to make reasonable but mistaken judgments
and protects all but the plainly incompetent or those who knowingly violate the law. Thompson v.
Mercer, 762 F.3d 433. 436-37 (5th Cir. 2014) (citations omitted).
In determining whether a defendant is entitled to qualified immunity, the Court evaluates (1)
whether the plaintiff has alleged a violation of a clearly established constitutional rights, and (2) if
so, whether the defendant’s conduct was objectively unreasonable in light of the clearly established
law at the time of the incident. Stidham v. Texas Commission on Private Security, 418 F.3d 486, 490
(5th Cir. 2005). These two prongs may be considered in either order. Pearson v. Callahan, 555 U.S.
223, 236, 129 S.Ct. 808, 818 (2009). Even if the government official’s conduct violated a clearly

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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 defendant properly invokes qualified immunity, the plaintiff bears the burden to
rebut its applicability. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). In order to abrogate
a public official's right to qualified immunity, the plaintiff must show the official's conduct violated
a constitutional or statutory right and the official's actions constituted objectively unreasonable
conduct in the light of clearly established law at the time of the conduct in question. Id. This burden
may be met by showing all reasonable officials similarly situated would have then known the alleged
acts of the defendant violated the Constitution. See 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), citing Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).
Giddens has not shown that Sgt. Garcia’s conduct violated a constitutional or statutory right,
nor that all reasonable officials, similarly situated, would have known that the conduct of the
Defendant violated the law. Giddens has the burden of overcoming the defense of qualified
immunity and has failed to do so. Sgt. Garcia’s motion for summary judgment should be granted
on this basis as well.
IV. Conclusion
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); Fed. R. Civ. P. 56(c).

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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). 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. 1995).
The fact that a non-movant failed to respond to a motion for summary judgment is not itself
a basis for granting that motion; rather, 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 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); Johnson
v. Deep East Texas Regional Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004).
Once the defendant has shifted the burden to the plaintiff by properly supporting his 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). 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, or where it is so overwhelming that it mandates judgment in favor of the
movant. Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
In this case, the competent summary judgment evidence, viewed in the light most favorable
to the non-movant, shows that there are no disputed issues of material fact and the Defendant is
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entitled to judgment as a matter of law. The summary judgment evidence is too weak to support a
judgment in favor of the Plaintiff and is so overwhelming that it mandates a judgment in favor of the
Defendant. It is accordingly
ORDERED that the Defendant’s motion for summary judgment (ECF TXED 6:13-cv-232,
51) is GRANTED and the above-styled civil action is DISMISSED with prejudice. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.

So ORDERED and SIGNED this 18th day of August, 2015.

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