Lampkin v. Dean et al
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON DEFENDANT BOBBY DEAN'S MOTION FOR SUMMARY JUDGMENT AND ENTERING FINAL JUDGMENT, Plaintiff's objections are overruled and 138 Report and Recommendation is ADOPTED as the opinion of the District Court. It is ORDERED that 110 Motion for Summary Judgment filed by Bobby Dean is granted and the claims against Dean are dismissed with prejudice. Signed by Judge Ron Clark on April 16, 2017. (dlc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BOBBY DEAN, ET AL.
CIVIL ACTION NO. 6:15cv496
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON DEFENDANT BOBBY DEAN’S MOTION FOR SUMMARY JUDGMENT
AND ENTERING FINAL JUDGMENT
The Plaintiff Esaw Lampkin, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case
be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the
Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States
Magistrate Judges. As Defendants, Lampkin named Texas Department of Public Safety officer
Bobby Dean, Gregg County Sheriff’s Deputy Joe Cassin, Good Shepherd Hospital nurse Don Leach,
defense attorney Brandon Winn, and forensic lab technician Karen Ream. Of these defendants,
Leach, Winn, Ream, and Cassin have previously been dismissed. This Memorandum Opinion
concerns the motion for summary judgment filed by the Defendant Bobby Dean.
Lampkin states that he was stopped by Cassin on the Interstate 20 service road on July 12,
2013, and placed under arrest for driving a stolen pickup truck. Lampkin claims Cassin handcuffed
him so tightly that he suffered harm and damage. According to Lampkin, Officer Dean arrived and
conducted an illegal interrogation. When Lampkin refused to take DWI tests, the officers took him
to Good Shepherd Hospital in Longview. There, Lampkin asserts that he was slammed face down
on a hospital bed with his hands cuffed behind his back. His arms were twisted up and a needle
forcibly stuck in him for a blood draw. As a result, Lampkin states that he suffered pain and
sustained a shoulder injury; he also claimed that he was “smothered to the point of asphyxiation.”
As a result of the allegedly illegal interrogation, Lampkin states that he was forced to admit
he had consumed three Natural Light beers. He was confused because he is a mental health patient
and could not add or subtract properly. Lampkin asserts he was denied his right to counsel.
Lampkin also argues that he was not involved in an accident, meaning the officers did not meet the
requirements for obtaining a warrant. Lampkin claims that Dean left the blood sample in his car for
two weeks before it was tested and Dean did not appear in front of a magistrate to obtain a search
warrant, nor is there a transcript of any telephone call to the magistrate. The warrant also was not
properly signed. Lampkin also claims that his rights under the Americans with Disabilities Act were
After initial review of the case, the Court dismissed all of Lampkin’s claims that could
implicate the validity of his conviction, as well as his claims under the Americans with Disabilities
Act. The Defendants Nurse Leach, Brandon Winn, and Karen Reams were dismissed from the
lawsuit at that time.
Officers Cassin and Dean were ordered to answer the lawsuit and filed separate motions for
summary judgment. Cassin’s motion for summary judgment was granted on January 27, 2017,
leaving only Lampkin’s allegation of excessive force by Officer Dean.
II. Dean’s Motion for Summary Judgment and the Response
In his motion for summary judgment, Officer Dean invoked his entitlement to qualified
immunity and argued that Lampkin did not adequately plead any claim against him. He attached
as summary judgment evidence copies of an investigative report from the Texas Department of
Public Safety Office of the Inspector General as well as Lampkin’s health records from Good
The investigative report showed that Dean took Lampkin to the hospital and obtained a blood
search warrant. He showed the warrant to Lampkin, who insisted it was not valid. Lampkin refused
to cooperate with the blood draw and was placed on a hospital bed, where he was held down by
Dean as well as Officers Chris Taylor and Matt Beatty while the nurse drew the blood sample. The
investigator concluded that there was no evidence of misconduct by Dean and sufficient evidence
to show that Lampkin’s complaints were false or greatly exaggerated. Lampkin’s medical records
showed that prior to his release from the hospital, he was examined by a doctor, who found no
trauma suffered that evening, no injuries to Lampkin’s arms, normal vital signs, no gross changes
to his arms, and no indications for imaging. Nurse’s notes showed that Lampkin could move all of
his fingers and had positive pulses in both hands, good capillary refill, and no swelling.
Lampkin filed a response to the motion for summary judgment contending that Dean’s
actions were outside the course and scope of his employment and Dean is therefore not entitled to
claim sovereign immunity. He also maintained that Dean is not entitled to qualified immunity and
that Dean forcibly withdrew the blood sample without his consent even though there had not been
a car accident, allegedly in violation of Texas law.
III. The Report of the Magistrate Judge
The Magistrate Judge issued a Report recommending that Dean’s motion for summary
judgment be granted. The Magistrate Judge stated first that Lampkin’s claims against Dean
concerning the legality of the warrant, the legality of the interrogation, and the alleged tampering
with the blood sample implicate the legality of his conviction and have previously been dismissed,
leaving only the claim of excessive force.
The Magistrate Judge observed that according to the summary judgment evidence, Lampkin
was handcuffed at the scene of the arrest but did not complain that the handcuffs were too tight.
Instead, the videotape showed that Lampkin did not react when the handcuffs were applied and his
actions and movements on camera did not indicate that he was in pain or the handcuffs were too
The Magistrate Judge recounted the facts that Lampkin was taken to the hospital and a
warrant obtained from a judge for the blood draw. Lampkin resisted the blood draw, telling the
officers that the warrant was invalid. Officers Dean, Taylor, and Beatty held him while a nurse drew
the blood. Subsequent examination by a doctor revealed no injuries. In addition, the Magistrate
Judge observed that in Lampkin’s criminal appeal, the Sixth Judicial District Court of Appeals stated
that there was no evidence offered at trial showing that Lampkin had been injured as a result of the
blood draw. Lampkin v. State, 470 S.W.3d 876, 888, 899 (Tex.App.-Texarkana 2015, pet. ref’d).
Based on these facts, the Magistrate Judge concluded that Lampkin failed to show he
suffered an injury which resulted from an unreasonably excessive use of force. The courts have held
that restraining a person during a blood draw conducted pursuant to a warrant is not a Fourth
Amendment violation even if force is used to overcome the subject’s resistance. Speirs v. City of
Universal City, Texas, civil action no. SA-10-CV-0222, 2010 U.S. Dist. LEXIS 67718, 2010 WL
2721438 (W.D.Tex., July 8, 2010), citing United States v. Bullock, 71 F.3d 171, 177 (5th Cir. 1995).
The Magistrate Judge concluded that Lampkin failed to show the amount of force used to obtain the
sample was excessive or unreasonable.
Although Lampkin also offered medical records as summary judgment evidence, these
records reflected only complaints which he had made and did not contain any objective findings of
injury. The Magistrate Judge determined that Lampkin’s subjective complaints, absent any
objective findings, could not defeat a motion for summary judgment. In this regard, the Magistrate
Judge observed that a prisoner’s self-diagnosis or 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 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).
The Magistrate Judge further concluded that Dean was entitled to Eleventh Amendment
immunity from claims for monetary damages against him in his official capacity and qualified
immunity from claims for monetary damages against him in his individual capacity.
IV. Lampkin’s Objections to the Report
In his objections, Lampkin asserts that the Magistrate Judge was biased and the Report
attempts to “divert attention to irrelevant matters.” He repeats his claim that he was slammed face
down on a bed for a non-consensual blood draw and again contends that his Fourth Amendment
rights were violated because there was no car accident to justify the blood draw.1 Lampkin refers
to the medical records he submitted and states that the doctor at Good Shepherd Hospital failed to
diagnose or treat his injuries. He complains Dean did not appear before a magistrate to obtain the
warrant and there is no transcript of a telephone conversation between Dean and the magistrate,
rendering the warrant improperly signed. Lampkin further asserts that the interrogation was
unlawful because he did not have a lawyer present.
Lampkin contends that the handcuffs were placed on him so tightly that they cut off the
blood flow and caused serious swelling, rendering him unable to move his fingers. He complains
that the doctor improperly treated him, but offers no objective medical evidence showing that
he suffered any injury. Finally, Lampkin argues that Dean is not entitled to qualified
immunity because the officer’s actions were unconstitutional. He asserts that he has met his
burden of showing that Dean acted in an objectively unreasonable manner.
All of Lampkin’s claims that could implicate the legality of his conviction, including his
assertions concerning the warrant and the interrogation, have previously been dismissed pursuant
The portion of Texas law which Lampkin cites, Tex. Transportation Code §724.012(b),
provided for warrantless blood draws under certain circumstances. This statute is inapplicable to
Lampkin’s case because Dean obtained a warrant prior to the draw. See, e.g. Droomgoole v. State,
470 S.W.3d 204, 215 (Tex.App.-Houston [1st Dist.] 2015, pet. ref’d), cert. denied, 136 S.Ct. 2452
to Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). This case held
that in order to recover damages for harms 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 an authorized state
tribunal, or called into question by the issuance of a federal writ of habeas corpus. Because these
claims have already been dismissed, they are not at issue here.
The Magistrate Judge correctly concluded that the fact blood was drawn from Lampkin
without his consent, based on a warrant, did not itself violate Lampkin’s constitutional rights. See
Callaway v. City of Austin, 2015 WL 4323174 (W.D.Tex., July 14, 2015) (officers are entitled to
use reasonable force to effectuate a blood draw pursuant to a warrant).
In order to prevail on his excessive force claim, Lampkin must show that he suffered (1) an
injury, (2) which resulted directly and only from a use of force which was clearly excessive, and (3)
the excessiveness of which was clearly unreasonable. Ontiveros v. City of Rosenberg, 564 F.3d 379,
382 (5th Cir. 2009). The Magistrate Judge determined that Lampkin failed to meet this standard.
The summary judgment evidence shows Lampkin was seen by a doctor and by a nurse,
and that no signs of injuries were found. Lampkin’s bare and conclusory allegations of injury,
absent any objective support in the record, are insufficient to overcome a properly supported
motion for summary judgment. See Wilburn v. Shane, 193 F.2d 517, 1999 U.S. App. LEXIS
38885, 1999 WL 706141 (5th Cir., August 20, 1999) (where objective medical evidence rendered
the plaintiff’s allegations implausible, the district court properly granted summary judgment for
the defendants), citing Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990); accord, Carter v.
Prator, civil action no. 5:12cv1233, 2013 U.S. Dist. LEXIS 105190, 2013 WL 3894134
(W.D.La., July 26, 2013) (where plaintiff’s allegations were unsubstantiated and in fact
contradicted by the objective medical records, there was no genuine issue as to his injuries).
The Fifth Circuit has explained that in order to avoid summary judgment, the nonmoving party must adduce admissible evidence that creates a fact issue concerning the existence of
every essential component of that party’s case. Thomas v. Price, 975 F.2d 231, 235 (5th Cir.
1992). This burden cannot be met by unsubstantiated assertions of actual dispute, some
metaphysical doubt about the material facts, conclusory allegations, or by only a scintilla of
evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Lujan v. National
Wildlife Federation, 497 U.S. 871, 871-73, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Hopper v.
Frank, 16 F.3d 92, 96-97 (5th Cir. 1994). Lampkin’s objections to the Magistrate Judge’s
determination in this regard are without merit.
As the Magistrate Judge stated, Lampkin did present medical records in support of his
claims, but these records simply recounted complaints which he made and contained no objective
findings of injuries. See Foxworth v. Khoshdel, civil action no. 4:07cv03944, 2009 U.S. Dist.
LEXIS 89581, 2009 WL 3255270 (S.D.Tex., September 28, 2009) (summary judgment was
appropriate where prisoner claimed damage to gums and mouth from chewing without dentures, but
the medical records in the summary judgment evidence wholly failed to support this claim); Robles
v. Glenn, civil action no. 9:06cv256, 2007 U.S. Dist. LEXIS 41092, 2007 WL 1655335 (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). The medical records offered by Lampkin cannot
serve to defeat Officer Dean’s motion for summary judgment. This objection is without merit.
In Cox v. DeSoto County Jail of Hernando, et al., civil action no. 3:13cv226, 2015 WL
541254 (N.D.Miss., February 10, 2015), the plaintiff complained of mistreatment and physical abuse
while confined in the DeSoto County Detention Center. However, the only evidence supporting
these allegations could be found in the allegations of her complaint and the statements in her
response to the motion for summary judgment; the available documentary evidence wholly failed
to support her claims and in fact indicated that nothing of note occurred during her incarceration.
In granting the defendants’ motion for summary judgment, the district court stated that the plaintiff
“has simply failed to present competent evidence to support her allegations and defeat the
defendants’ motion for summary judgment.” Lampkin has likewise failed to present competent
evidence in support of his claims.
Similarly, Lampkin has failed to overcome Officer Dean’s entitlement to Eleventh
Amendment and qualified immunity. As an officer of the Texas Department of Public Safety, an
agency of the State of Texas, Dean is entitled to Eleventh Amendment immunity from claims for
monetary damages brought against him in his official capacity. McGrew v. Texas Board of Pardons
and Paroles, 47 F.3d 158, 161 (5th Cir. 1995); Taylor v. Seamans, 640 F.Supp. 831, 833 (E.D.Tex.
The Fifth Circuit has held that when a defendant invokes qualified immunity, the burden
shifts to the plaintiff to demonstrate the inapplicability of the defense. Brumfield v. Hollins, 551
F.3d 322, 326 (5th Cir. 2008). The plaintiff must do so by establishing that the official’s allegedly
wrongful conduct violated clearly established law. Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d
481, 489 (5th Cir. 2001). Lampkin has failed to meet this burden. The summary judgment evidence
shows that Officer Dean transported Lampkin to the hospital and obtained a warrant to perform a
blood draw. Lampkin resisted the draw, but the amount of force used was minimal enough that a
subsequent examination by a doctor failed to reveal any signs of trauma or injury. The Magistrate
Judge correctly concluded that Officer Dean is entitled to qualified immunity. Lampkin’s objections
are without merit.
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(District Judge shall “make a de novo determination of those portions of the Report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 138) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendant Bobby Dean’s motion for summary judgment (docket no.
110) is GRANTED and the claims against Dean are DISMISSED WITH PREJUDICE. Because
all claims and parties have now been dismissed, it is further
ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE.
Finally, it is
ORDERED that any and all motions which may be pending in this civil action are hereby
So ORDERED and SIGNED this 16th day of April, 2017.
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