Graves v. Gray et al
Filing
191
MEMORANDUM OPINION AND ORDER. Defendants' Motion for Summary Judgment 184 is DENIED in part and GRANTED in part. Signed by District Judge Ron Clark on 1/9/20. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
SCOTT W. GRAVES
§
VS.
§
GREGORY L. GRAY, et al.,
§
CIVIL ACTION NO. 9:16-CV-170
MEMORANDUM OPINION AND ORDER
Plaintiff, Scott W. Graves, an inmate formerly confined at the Gib Lewis Unit with the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 against defendants Terry L.
Andrews, Richard Bledsoe, Joe S. Collins and Joseph M. Pellegrino.
Factual & Procedural Background
Plaintiff alleges that on February 19, 2016, he was in an altercation with correctional officers
where he was picked up in the air and slammed into a cell door while handcuffed with his hands
behind his back. Amended Complaint (docket entry no. 29). Plaintiff contends that he was then
slammed to the floor, punched in the face, stomach, back, legs, and thighs and his head was slammed
to the floor at least two times. Id. Plaintiff states this was done by defendants Pellegrino and
Bledsoe. Id. Plaintiff then alleges while lying on the floor, defendant Collins walked up to him and
stomped on his head while “they all” laughed at him. Id. Plaintiff also alleges defendant Andrews
was there and did nothing to stop what was going on. Id.
Plaintiff contends he was put on a stretcher and sent to the Tyler County Hospital where,
allegedly, all the hospital did was “reshape” his head and send him back to the unit. Id. Plaintiff
states he was put back in closed custody where he ended up getting in another fight which caused
more injuries to his skull. Id.
Plaintiff contends further he was assaulted again on May 23, 2016. Id. Plaintiff states he was
slammed into a wall in the medical facility and then slammed to the floor. Id. Plaintiff also alleges
he was punched in the face, kicked in the stomach and in the head at least ten times. Id. Plaintiff
then states he was pulled off the floor unconscious and was told that nothing was wrong with him
by medical staff. Id.1 Plaintiff contends he was ultimately taken to his single cell and thrown in his
cell without receiving any medical attention. Id. Plaintiff does not state who specifically assaulted
him on May 23, 2016 but it would appear he makes these allegations against the same defendants
involved in the February 19, 2016 incident. Id.
With respect to his injuries, plaintiff alleges his skull has “fallen in” on the sides of his
forehead giving it a misshaped look. Id He states the front part of his forehead is pushed in on the
sides and then comes to a cone shape from the back of his skull to the top of his forehead. Id.
Plaintiff alleges his right eye is lower than his left eye due to broken bones in his face and around
his eyes. Id. In addition, plaintiff states his nose is broken which causes him to snore really loud
and his jaw is broken on both sides.
Plaintiff seeks a declaration that his constitutional rights were violated, $500,000.00 in
compensatory damages and $500,000.00 in punitive damages. Id.
1
Plaintiff finally amended his claims against the medical defendants, defendants Gray, Mbugua, and Hanson
on February 7, 2019 (docket entry no. 177). These claims do not appear to relate to the February 19, 2016..
2
Motion for Summary Judgment
Defendants filed an Amended Motion for Summary Judgment on July 24, 2019 (docket entry
no. 184).2 Defendants argue plaintiff has failed to exhaust his administrative remedies, his official
capacity claims are barred by Eleventh Amendment immunity, and they are entitled to qualified
immunity. The defendants rely on the following in support of their motion for summary judgment:
Exhibit A:
TDCJ Grievance Records relating to Use of Force Report
No. M-01063-02-16;
Exhibit B:
TDCJ Correctional Managed Care, Health Services
Archives relating to Use of Force Report No. M-01063-0216;
Exhibit C:
TDCJ Use of Force Report No. M-01063-02-16;
Exhibit D:
TDCJ Grievance Records relating to Use of Force Report
No. M-03168-05-16;
Exhibit E:
TDCJ Correctional Managed Care, Health Services
Archives relating to Use of Force Report No. M-03168-0516;
Exhibit F:
TDCJ Use of Force Report No. M-03168-05-16.
Plaintiff has not filed a formal reply to the motion for summary judgment. Plaintiff did file
what appear to be exhibits in response (docket entry no. 185). However, the majority of the
information contained in the exhibits are not legible as they were written in pencil.3 Plaintiff’s
Amended Complaint, however, filed January 17, 2017 (docket entry no. 29) is verified and
2
Defendants filed their original Motion for Summary Judgment on September 17, 2018 (docket entry no.
157). After reviewing the motion, the Magistrate Judge determined some grievances were not provided. The
Magistrate Judge ordered the defendants to re-file their Motion for Summary Judgment with a complete record of
plaintiff’s grievances relating to both the February 19, 2016 and May 23, 2016 incidents at issue (docket entry no.
178).
3
The only thing that is legible is plaintiff’s notice to the clerk to scan the exhibits as dark as possible. The
Clerk of Court noted that this document was scanned in using the darkest settings available.
3
considered competent summary judgment evidence. King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994); accord Hart v. Hairston, 343 F.3d 762, 76 (5th Cir. 2003) (“On summary judgment, factual
allegations set forth in a verified complaint may be treated the same as when they are contained in
an affidavit.”).
Standard of Review
Summary judgment is appropriate when there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). Courts must
consider the record as a whole, including all pleadings, depositions, affidavits, interrogatories and
admissions on file, in the light most favorable to the non-movant. Caboni v. Gen. Motors Corp., 278
F.3d 448, 451 (5th Cir. 2002).
The party seeking summary judgment bears the initial burden of demonstrating an absence
of a genuine dispute of material fact and informing the court of the basis for its motion by identifying
those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits, if any, which support its contention. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Williams v. Adams, 836 F.2d 958, 960 (5th cir. 1988). Any controverted evidence must be viewed
in the light most favorable to the non-movant, and all reasonable doubts must be resolved against
the moving party. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990).
If the moving party makes the required showing, then the burden shifts to the non-movant
to show that a genuine dispute of material fact remains for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Fields v. City of S. Houston, 922 F.2d 1183, 1187
(5th Cir. 1991) (citation omitted). The non-movant cannot merely rest on the allegations of the
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pleadings, but must establish that there are material controverted facts in order to preclude summary
judgment. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)
(citation omitted). Summary judgment is proper if the non-movant fails to make a showing
sufficient to establish the existence of an element essential to his case on which he bears the burden
of proof. Celotex, 477 U.S. at 322-23; ContiCommodity Servs., Inc. v. Ragan, 63 F.3d 438, 441 (5th
Cir. 1995) (citations omitted). Furthermore, there must be adequate proof in the record showing a
real controversy regarding material facts. “Conclusory allegations,” unsubstantiated assertions, or
the presence of a “scintilla of evidence” is not enough to create a real controversy regarding material
facts. See, e.g. Lujan v. National Wildlife Federation, 497 U.S. 871, 902; Hopper v. Frank, 16 F.3d
92, 96-97 (5th Cir. 1994), Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994). In the
absence of proof, the court does not “assume that the nonmoving party could or would prove the
necessary facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Discussion and Analysis
Exhaustion
In 1996, Congress enacted the PLRA, which mandated that no action shall be brought by a
prisoner “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
The Supreme Court accordingly unanimously concluded that inmates must exhaust their
administrative remedies before proceeding to federal court. Booth v. Churner, 532 U.S. 731, 741
(2001). The Supreme Court subsequently held that exhaustion is mandatory and is required for all
actions brought by prisoners in order to give correctional officers an opportunity to address
complaints internally before initiation of a federal lawsuit. Porter v. Nussle, 534 U.S. 516, 524-25
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(2002). The exhaustion requirement applies to all inmate lawsuits concerning prison life, whether
they involve general circumstances or particular episodes. Id. at 532. The Supreme Court later
reiterated that exhaustion is mandatory and will not be excused when an inmate fails to timely
exhaust his administrative remedies. Woodford v. Ngo, 548 U.S. 81, 84 (2006). Exhaustion also
requires that a prisoner satisfy the requirement of “proper exhaustion.” Id. at 83. In Jones v. Bock,
the Supreme Court stated that “[t]here is no question that exhaustion is mandatory under the PLRA
and that unexhausted claims cannot be brought in court.” 549 U.S. 199, 211 (2007). The Supreme
Court added, however, that the “failure to exhaust is an affirmative defense under the PLRA, and that
inmates are not required to specifically plead or demonstrate exhaustion in their complaints. Id. at
216. The Fifth Circuit has also added that after Jones v. Bock, a complaint is still subject to
dismissal for failure to state a claim where the prisoner’s failure to exhaust appeared on the face of
the complaint. Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007).
The Texas Department of Criminal Justice, Correctional Institutions Division, has a two-step
grievance procedure available to inmates. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). Step
1 of the grievance procedure involves the prisoner submitting a grievance to the unit grievance
coordinator. The unit grievance coordinator then investigates the grievance, collects documents and
other evidence, interviews witnesses, drafts an investigation report of findings, and prepares a
recommendation for the review of the decision maker. The authorized decision maker for a Step 1
grievance is the unit warden or assistant warden. Id.
Step 2 of the grievance procedure involves the prisoner submitting an appeal to the division
grievance investigator at prison headquarters. The division grievance investigator then investigates
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the grievance, collects documents and other evidence, interviews witnesses, drafts an investigation
report of findings and prepares a recommendation for the review of the decision maker. The
decision maker for a Step 2 grievance is the regional director or assistant director. Id.
The grievance procedure takes approximately ninety days to exhaust. Prisoners are allowed
fifteen days to file a Step 1 grievance. The first response is due forty days from receipt of the
grievance. The prisoner than has ten days to appeal the Step 1 grievance by filing a Step 2 grievance.
Prison officials involved with Step 2 grievances have forty days from receipt of the grievance to
complete the investigation and respond to the grievance. Id. The prisoner must pursue the grievance
through both steps for his claim to be exhausted. Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir.
2004).
February 19, 2016 Incident
Defendants argue plaintiff failed to properly exhaust his administrative remedies with respect
to the February 19, 2016 incident. Specifically, defendants argue plaintiff’s Step 1 Grievance was
untimely. The Court has reviewed all the relevant grievances provided by the defendants as
summary judgment evidence. Only one grievance was filed by plaintiff and actually taken through
completion to the Step 2 Grievance phase, Grievance No. 2016108110. Exhibit A, pgs. 3-5 (docket
entry no. 188). A review of this grievance reveals that TDCJ did not deny the grievance as untimely.
In fact, an Office of Inspector General (“OIG”) investigation was initiated as a result of the
grievance. Ultimately, however, the OIG found insufficient evidence to warrant opening a formal
investigation.
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Courts are free to find that exhaustion has been satisfied in certain circumstances where
procedural requirements for filing a timely and proper grievance are ignored and the claims asserted
therein are instead denied on their merits. For example, the exhaustion requirement is satisfied when
the institutional decision-maker denies a grievance on the merits even though it could have been
resolved for failure to comply with a procedural requirement, such as the fifteen-day requirement for
filing a Step 1 grievance from the complained-of incident. See Jackson v. Gordin, 2018 WL
1156013 *5 (S.D. Tex. Jan. 8, 2018) (citing Eubanks v. Naik, 2014 WL 1117408, at *4 (S.D. Tex.
Mar. 19, 2014)); see also Gates v. Cook, 376 F.3d 323, 331 & n. 6 (5th Cir. 2004) (holding that
prison officials could not argue that a prisoner’s grievance failed to comply with procedural rules
when the officials had looked past the purposed technical defect and rejected the grievance for
substantive reasons). “[W]hen a state treats a filing as timely and resolves it on the merits, the
federal judiciary will not second-guess that action, for the grievance has served its function of
alerting the state and inviting corrective action.” Riccardo v. Raush, 375 F.3d 52, 524 (7th Cir.
2004). Plaintiff’s grievance was clearly resolved on the merits in this case. As such, defendants’
Motion for Summary Judgment for failure to exhaust administrative remedies as to the February 19,
2016 should be denied.
May 23, 2016 Incident
Defendants argue plaintiff failed to exhaust his administrative remedies as to the May 23,
2016 for failure to identify and name the defendants in connection with the use of force on this date.
A review of the grievances attached as summary judgment evidence reveals that only two grievances
discuss the May 23, 2016 use of force and were exhausted through the Step 2 grievance level.
8
In Grievance No. 2016148314, plaintiff complains he was punched, kicked, slapped and had
his head slammed to the ground several times. See Exhibit D, pg. 4-5 (docket entry no. 188).
Plaintiff alleged three unidentified correctional officers, one of whom was an “African-American
female officer,” used excessive force against him. Id. At the time of filing this grievance, plaintiff
knew the identities of the defendants in this suit as evidenced by his prior grievances against them.
Despite this, plaintiff failed to identify any of them in this grievance.4
In Grievance No. 2016150242, plaintiff complained “Nurse Mattox” denied him medical
care on May 23, 2016 after the use of force. See Exhibit D, pg. 32 (docket entry no. 188). This
grievance complained of a lack of medical care solely. Furthermore, plaintiff does not mention
defendants Andrews, Bledsoe, Collins and Pellegrino in this grievance.
As plaintiff failed to identify defendants Andrews, Bledsoe, Collins and Pellegrino as officers
involved in the May 23, 2016 use of force, defendants’ Motion for Summary Judgment for failure
to exhaust administrative remedies as to the May 23, 2016 incident should be granted.
Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution provides that, “The Judicial
power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. CONST. AMEND. 11. “Although by its terms the Amendment applies
only to suits against a State by citizens of another State, . . . the Amendment’s applicability [has been
4
A review of the summary judgment evidence concerning the May 23, 2016 Use of Force reveals that the
officers involved in this incident were Kendrick King CO III, Beatrice Spears CO II, Lieutenant Jonathan Reynolds,
Sergeant Kimpton Lewis, Michael Dees CO IV, and Jared Evans. None of these individuals are listed as defendants
in this suit. See Exhibit F (docket entry no. 188).
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extended] to suits by citizens against their own States.” Bd. of Trustees of the Univ. Of Ala. v.
Garrett, 531 U.S. 356 (2001). The Supreme Court held in Ex parte Young that the doctrine of
sovereign immunity bars suit against a state agency because, in such a case, the State itself is the real
party in interest. 209 U.S. 123 (1908). Consequently, such a lawsuit is barred whether it seeks
damages or injunctive relief. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 10102 (1984).
Under the Eleventh Amendment, states or their agencies may not be sued unless they have
consented to the particular type of suit. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996);
Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst, 465 U.S. at 100. A state’s consent to suit
may also create conditions under which suit against it may be brought. For example, the Texas Tort
Claims Act allows an individual to bring claims against the State of Texas, but provides that all such
claims must be brought in state court. TEX. CIV. PRAC. & REM. CODE § 101.102(a)(Vernon 1997)
(“A suit under this chapter shall be brought in state court in which the cause of action or a part of the
cause of action arises.”). Congress may act to permit suit despite Eleventh Amendment immunity,
but must do so specifically. Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985).
TDCJ is an agency of the State of Texas and is immune from suit under the Eleventh
Amendment. Harris v. Angelina County, 31 F.3d 331, 338 (5th Cir. 1994) (citing Ruiz v. Estelle,
679 F.2d 1115, 1136-1137 & n. 75) (5th Cir. 1982)) (dismissing claims against the Board of the
predecessor of the TDCJ, because the Board of was “merely an agency of the state”), cert. denied,
460 U.S. 1042 (1983); Loya v. Texas Dep’t of Corrections, 878 F.2d 860, 861 (5th Cir. 1989)
(holding the predecessor to the TDCJ immune from suit under Eleventh Amendment). As such,
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plaintiff’s claims against the defendants in their official capacities is barred as Eleventh Amendment
immunity extends to suits for monetary damages against state officials in their official capacities as
well. See Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532
U.S. 598, 609 n. 10(2001) (recognizing that “[o]nly States and state officers acting in their official
capacity are immune from suits for damages. . .”).
Qualified Immunity
The doctrine of qualified immunity affords protection against individual liability for civil
damages to officials “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S.
730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Federal courts use a twopart test to determine whether the defendants are entitled to qualified immunity. Freeman v. Texas
Dep’t of Criminal Justice, 369 F.3d 854, 863 (5th Cir. 2004). The court must determine whether
plaintiffs allegations, if true, establish a constitutional violation. Hope, 536 U.S. at 736; Freeman,
369 F.3d at 863. If a constitutional right was violated, the court must decide whether the right was
clearly established at the time of the violation. Freeman, 369 F.3d at 863. “For a constitutional right
to be clearly established, its contours ‘must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in question has previously been held
unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.’”
Hope, 536 U.S. at 739 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The district
court has discretion to decide which prong of the two-part test to address first. Pearson v. Callahan,
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555 U.S. 223, 236 (2009). Regardless of whether a constitutional right was violated, if it is evident
to the court that the law is not clear on whether the defendant’s actions would constitute a violation,
the court does not need to reach the question of whether a constitutional violation occurred at all.
Id.
In order to overcome a defendant’s entitlement to qualified immunity, a plaintiff must satisfy
a three-part test. Kipps v. Callier, 197 F.3d 765, 768 (5th Cir. 1999) (citing Morris v. Dearborne,
181 F.3d 657, 665 (1999)). First, a plaintiff must allege the deprivation of a constitutional right.
Wilson v. Layne, 526 U.S. 603, 603-04 (1999); Morris, 181 F.3d at 665. Second, a plaintiff must
allege the violation of a right that was clearly established at the time of the alleged violation. Wilson,
526 U.S. at 604. Finally, a plaintiff must produce competent summary judgment evidence that
demonstrates that the violation occurred or at least gives rise to a genuine issue of material fact as
to whether the defendant actually engaged in the conduct that violated the clearly-established right.
Kipps, 197 F.3d at 768 (citing Morris, 181 F.3d at 666). If a plaintiff meets this burden, then the
court must decide whether the conduct was nonetheless “objectively reasonable,” as a matter of law.
Eugene v. Alief ISD, 65 F.3d 1299, 1305 (5th Cir. 1995). A plaintiff fails to satisfy either of these
requirements with conclusory allegations of wrongdoing. Geter v. Fortenberry, 849 F.2d 1550, 1555
(5th Cir. 1988).
Use of force is excessive and violates the Eighth Amendment only if it is applied
“maliciously and sadistically for the purpose of causing harm” rather than in a good faith effort to
maintain or restore discipline. See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v.
McMillian, 503 U.S. 1, 7 (1992)). Pursuant to Hudson v. McMillian, defendants argue plaintiff’s
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claim for excessive use of force lacks merit. 503 U.S. 1, 7 (1992). Hudson laid out five factors for
a court to consider when evaluating an excessive use of force claim: (1) the extent of the injury
suffered, (2) the need for the application of force, (3) the relationship between that need and the
amount of forced used, (4) the threat reasonably perceived by the responsible officials, and (5) any
efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7. The core judicial
inquiry in an excessive use of force claim is “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm. Baldwin v. Stalder, 137
F.3d 836, 838 (5th Cir. 1998) (citing Hudson, 503 U.S. at 7)).
Defendants’ argument in the motion for summary judgment consists of four main
components. First, defendants argue the competent summary judgment evidence shows the use of
force on February 19, 2016 was justified and executed within constitutional parameters. Second,
they argue the evidence establishes plaintiff’s head accidentally made impact with the floor only
causing minor de minimis injuries such as bruising to plaintiff’s forehead and left side of his face.
Third, they argue the medical records establish plaintiff has been diagnosed with a psychological
delusional disorder which demonstrates plaintiff’s alleged injuries are contrived and not supported
by the record. And , fourth, they contend the evidence demonstrates defendant Andrews neither
witnessed nor participated in the use of force or the post-use-of-force medical screening or
investigation.
Plaintiff’s version of events in his verified Amended Complaint are in direct contrast to the
accounts provided by the defendants. This Court is required to take plaintiff’s allegations in the light
most favorable to him. As outlined above, plaintiff alleges he was picked up in the air and slammed
13
into a cell door while handcuffed with his hands behind his back. Amended Complaint (docket entry
no. 29). Plaintiff contends he was then slammed to the floor, punched in the face, stomach, back,
legs, and thighs and his head was slammed to the floor at least two times. Id. Plaintiff states this
was done by defendants Pellegrino and Bledsoe and then while lying on the floor, defendant Collins
walked up to him and stomped on his head while “they all” laughed at him. Id. Plaintiff finally
contends defendant Andrews was also there and did nothing to stop what was going on. Id. After
the use of force was over, plaintiff states he was put on a stretcher and sent to the Tyler County
Hospital where, allegedly, all the hospital did was “reshape” his head and send him back to the unit.
Id.
In analyzing the Hudson factors, the defendants conveniently ignore plaintiff’s version of the
events. Specifically, the question of whether slamming a prisoner to the floor, punching him in the
face, stomach, back, legs and thighs, stepping on his head, all while restrained, can be considered
a legitimate use of force. The “core judicial inquiry” is “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v.
Gaddy, 559 U.S. 34, 36 (citing Hudson, 503 U.S. at 7). The Eighth Amendment’s prohibition of
‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis
uses of physical force, provided that the use of force is not a sort repugnant to the conscience of
mankind.” Id., at 8 (citing Wilkins, 550 U.S. at 9-10) (emphasis added). Furthermore, while the
Court concedes plaintiff’s stated injuries are inconsistent with those reported in the medical records,
this Court cannot simply ignore plaintiff’s version of events. Defendants overtly invite the Court
to find their version of the facts and evidence more credible than plaintiff’s which is clearly a
14
credibility determination left to a jury. Based on the current record, there is a genuine dispute of
material fact as to whether the defendants slammed plaintiff to the ground, repeatedly kicked and
punched him, stepped on his head, while restrained, whether defendant Andrews was personally
involved in the incident and had a reasonable opportunity to prevent harm to plaintiff and chose not
to act5, and whether this type of force could be considered a good-faith effort to maintain or restore
discipline. Furthermore, there is a clear genuine dispute of material fact as to plaintiff’s injuries.
Defendants are not entitled to qualified immunity at this stage with respect to the February 19, 2016
use of force. The Motion for Summary Judgment as to plaintiff’s claim for excessive use of force
against the defendants in their individual capacity should be denied.
ORDER
Defendants’ Motion for Summary Judgment (docket entry no. 184) is DENIED in part and
GRANTED in part. Specifically, the Motion for Summary Judgment as to plaintiff’s official
capacity claims is GRANTED. The Motion for Summary Judgment as to plaintiff’s individual
capacity claims against the defendants for excessive use of force as to the May 23, 2016 use of force
is GRANTED for failure to exhaust administrative remedies. The Motion for Summary Judgment
as to plaintiff’s individual capacity claims against the defendants for excessive use of force and
bystander liability as to the February 19, 2016 for failure to exhaust administrative remedies is
DENIED. Finally, the Motion for Summary Judgment asserting qualified immunity as to plaintiff’s
5
Plaintiff, in essence, makes a claim that defendant Andrews violated his rights through bystander liability.
An officer found liable under a theory of bystander liability does not use force directly against the plaintiff. Instead,
bystander liability is established when and officer (1) knew that a fellow officer was violating plaintiff’s Eighth
Amendment right against cruel and unusual punishment; and (2) had a reasonable opportunity to prevent harm to
plaintiff; and (3) chose not to act.
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individual capacity claims against the defendants for excessive use of force and bystander liability
as to the February 19, 2016 is DENIED.
So ORDERED and SIGNED January 9, 2020.
____________________________
Ron Clark, Senior District Judge
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