Esparaza, Jr. v. Mr. Kuykendall et al
Filing
60
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS OF KUYKENDALL, DEES, AND MANNS. The motion for summary judgment of defendants John Kuykendall, Michael Dees, Charles Manns, Jr. 24 is GRANTED. All claims against all Defendants having been disposed of, a final judgment will be entered in accordance with this Memorandum Opinion and the previous orders entered relating to claims against other Defendants. Signed by District Judge Ron Clark on 3/30/20. (ljw, )
**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
SANTOS ESPARAZA, JR.
§
VS.
§
JOHN KUYKENDALL, ET AL.
§
CIVIL ACTION NO.
9:17-CV-45
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS
OF KUYKENDALL, DEES, AND MANNS
Plaintiff Santos Esparaza, Jr., a prisoner previously confined at the Gib Lewis Unit of the
Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in
forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983 against John Kuykendall,
Michael Dees, Charles Manns, Jr., unidentified employees, and employees who have previously
been dismissed. He alleges that the use of excessive force by Defendants violated his Eighth
Amendment rights. He also, somewhat vaguely, claims violations of his rights under the Fourth
and Fourteenth Amendment. He appears to sue all these Defendants in their individual and official
capacities seeking monetary damages, punitive damages, and, liberally construed, declaratory and
perhaps injunctive relief. (Doc. #1)
Defendants Kuykendall, Dees, and Manns filed a motion for summary judgment. 1 (Doc. #
24). Plaintiff has had ample opportunity to respond. In response to Defendant Flowers’s motion
for summary judgment (Doc. #28), which was filed after the motion under consideration, Plaintiff
1
Although the unidentified defendants have not been served and have not joined in the
motion, the motion for summary judgment inures to the benefit of those defendants as well. See
Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) (allowing non-answering defendants to benefit
from the summary judgment motion filed by appearing defendants).
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filed Plaintiff’s Statement of Disputed Factual Issues (Doc. #52), Plaintiff’s Brief In Opposition
to Defendant’s Motion for Summary Judgment Motion (Doc. #53) and Declaration In Opposition
To Defendants’ Motion For Summary Judgment. (Doc. #54). Each of these three specifically
address themselves to the deliberate indifference claim asserted against Defendant Flowers. But,
Plaintiff filed no response to the present motion for summary judgment filed by Kuykendall, Dees,
and Manns.
The failure of a party to respond to a motion “creates a presumption that the party does not
controvert the facts set out by movant and has no evidence to offer in opposition to the motion.”
E.D. Tex. Local Rule CV-7(d). However, the court will determine whether a motion is properly
presented and supported, and will not rule against a party solely for failing to respond to a motion.
See Johnson v. Pettiford, 442 F.3d 917, 918–919 (5th Cir. 2006). Nevertheless, as Plaintiff is a
prisoner appearing pro se, the court reviewed all documents on file, including those addressed to
Flowers’s motion, to determine whether they provide information relevant to his claims against
the Defendants who filed the motion now under consideration. In the end, after considering all of
the summary judgment evidence, the court concludes that there is no disputed issue of material
fact as to Plaintiff’s excessive force claims or any of his other claims against these Defendants.
Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate
“if the movant shows that 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. PRO. 56(a). A fact is “material” if it could affect
the outcome of the case under the governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986); Instone Travel Tech Marine & Offshore v. International Shipping Partners, 334 F.3d 423,
427 (5th Cir. 2003). A “genuine dispute” exists “if the evidence is such that a reasonable jury could
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return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; Instone Travel Tech, 334 F.3d
at 427.
Because summary judgment is a final adjudication on the merits, courts must employ the
device cautiously. Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir. 1991); Jackson v. Procunier,
789 F.2d 307 (5th Cir. 1986). In prisoner pro se cases, courts must be careful to “guard against
premature truncation of legitimate lawsuits merely because of unskilled presentations.” Jackson v.
Cain, 864 F.2d 1235, 1241 (5th Cir. 1989) (quoting Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir.
1980)).
Analysis
Title 42 U.S.C. § 1983 creates a cause of action against any person who, acting under color
of state law, causes a person to be deprived of a federally protected constitutional right. Gomez v.
Toledo, 446 U.S. 635, 640 (1980); Phillips v. Monroe County, 311 F.3d 369, 373 (5th Cir. 2002).
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage,
of any state . . . subjects, or causes to be subjected, any citizen of the United States
or any other person within the jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the Constitution and laws shall be liable to the
party injured . . . .
42 U.S.C. § 1983. In order to state a cause of action under § 1983, a plaintiff must allege two
elements. “First, the Plaintiff must allege that some person has deprived him of a federal right.
Second, he must allege that the person who has deprived him of that right acted under color of state
or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980). Accordingly, the court will
consider each of the rights of which Plaintiff claims he was deprived by one or more defendants.
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Excessive Force
In addressing an excessive use of force claim, analysis begins by identifying the specific
constitutional right allegedly infringed upon by the challenged application of force. Graham v.
Connor, 490 U.S. 386 (1992). The claim of a convicted prisoner, such as Plaintiff, is judged against
the Eighth Amendment standard set out in Hudson v. McMillian, 503 U.S. 1 (1992). “Whenever prison
officials stand accused of using excessive physical force in violation of the Cruel and Unusual
Punishments Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in
a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
Hudson, 503 U.S. at 6-7 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). Several factors are
relevant in determining whether the force used was excessive: (1) the extent of the injury suffered;
(2) the need for the application of force; (3) the relationship between the need and the amount of force
used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to
temper the severity of a forceful response. Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
Not every malevolent touch by a prison guard gives rise to a federal cause of action. Hudson,
503 U.S. at 9. The Eighth Amendment prohibition against cruel and unusual punishment
“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.’” Hudson, 503 U.S.
at 9, quoting Whitley, 475 U.S. at 327; see Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993)
(spraying inmate with a fire extinguisher after the fire was out was a de minimis use of physical force
and was not repugnant to the conscience of mankind where the inmate suffered no physical injury).
In most cases, the court must view the facts in the light most favorable to the non-moving
party if there is a genuine dispute as to the material facts. Scott v. Harris, 550 U.S. 372, 378-80
(2007). “When opposing parties tell two different stories, one of which is blatantly contradicted by
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the record, so that no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.” Id. at 380.
In this case, defendants’ motion was accompanied by the use of force report and a twenty-fiveminute DVD that captured the entire incident. (Doc. #24-1, Doc. #58). 2 The use of force report
sets out that plaintiff refused to relinquish his hand restraints after he was moved to a new cell in
administrative segregation. He slipped his left hand out of the restraints, opened the restraints, and
then threatened to hurt a staff member. A five-man team, which included defendants Kuykendall,
Dees, and Manns, was assembled. Defendant Kuykendall obtained approval from his supervisor to
use the force necessary to remove the hand restraints from plaintiff, and medical staff was consulted
to determine whether plaintiff had a medical condition that contraindicated the use of chemical
agents.
The DVD shows that plaintiff had covered his cell windows, which obstructed visibility into
his cell. Plaintiff refused to comply with repeated orders to submit to relinquish the hand restraints.
Plaintiff continued to disregard the orders, and defendant Kuykendall sprayed chemical agents into
the cell. Defendant Kuykendall again ordered plaintiff to relinquish the hand restraints. Plaintiff
made no indication that he would comply with the order, and defendant Kuykendall sprayed
chemical agents into the cell a second time. After plaintiff continued to disobey orders to relinquish
the hand restraints, defendant Kuykendall sprayed the chemical agent a third time.
To avoid confusion, the court notes that counsel for the three Defendants who filed this motion
marked the entire Use of Force Report, including the DVD as “Exhibit A” to the motion. The
written report with attached statements was electronically filed as Doc. # 24-1. The DVD itself is
in the custody of the Lufkin Clerk’s office. Doc. 58. Defendant Flowers filed the same set of
documents, but labeled various parts of the file with several exhibit numbers so that in his motion
the DVD is labeled as Exhibit D. Compare records affidavits for both motions, Doc. #24-1 at 2
with Doc. # 28-4 at 2.
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2
Plaintiff continued to refuse orders to relinquish the hand restraints, and defendant
Kuykendall and the five-man team entered plaintiff’s cell. The DVD shows plaintiff struggled as
the defendants entered his cell and attempted to gain control of him. Plaintiff had the restraints
open in his hand with a sock wrapped around the restraints and his hand “so that the ratchet stuck
out of his fist” (Doc. #24-1 at 8) “in such a manner that the restraints could be used to stab the
officers.” (Doc. #24-1 at 4) While plaintiff was struggling and striking at the officers with the cuffs,
defendant Kuykendall struck plaintiff with a riot baton. (Doc. #24-1 at 8). The defendants pushed
plaintiff against the back wall of his cell, which resulted in plaintiff striking his head on a shelf and
the edge of his bunk as they took him to the ground. Plaintiff continued to struggle on the ground
as the defendants attempted to restrain him. After several seconds, plaintiff stopped struggling, the
defendants applied hand restraints, and they escorted him to the infirmary. The DVD ends as
plaintiff is receiving medical attention in the infirmary.
Plaintiff argues that the use of force was unprovoked, but the summary judgment evidence
disproves this argument. Applying the Hudson factors, it is clear that there was a need for force.
Plaintiff was causing a disruption by refusing to obey repeated orders to relinquish the hand restraints
and by forcibly resisting the extraction team. Defendant Kuykendall was concerned that plaintiff
would use the hand restraints as a weapon. This is not a far-fetched concern. A single blow from
handcuffs used as “brass knuckles” to the temple, throat, eye, nose, teeth, or the bones of cheek or
jaw, could result in serious disfiguring injury, loss of sight, and even death. Plaintiff had ignored
verbal orders and three applications of chemical spray. The officers were faced with a choice between
allowing an inmate to retain restraints to use as a weapon or using force to subdue Plaintiff and retrieve the hand
restraints.
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Plaintiff had numerous opportunities to comply with defendant Kuykendall’s orders and thus
avoid the need to use force. He could have surrendered when the officers entered his cell.
The amount of force used was minimal in light of the need to retrieve the hand restraints from plaintiff
and restore order. Plaintiff sustained injuries to his face, but the DVD shows that the defendants did
not act maliciously or sadistically to cause plaintiff harm. To the contrary, the defendants acted in a
professional manner, using sufficient, but not excessive, force to resolve the situation created by the
plaintiff, while at the same time striving to prevent injury to an officer.
There is no genuine dispute of material fact regarding the circumstances surrounding the
use of force. Analyzed in light of the Hudson factors, the evidence before the court, including the
DVD, establishes that Defendants did not use excessive force against Plaintiff; they are entitled to
summary judgment on Plaintiff’s claims against them.
Qualified Immunity
Alternatively, Defendants are entitled to 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)). “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 preexisting law the unlawfulness must be apparent.’” Hope, 536 U.S. at 739 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
As set out in the “Excessive Force” section above, based on the summary judgment
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evidence before the court, there is no genuine dispute as to any material fact concerning the actions
of Plaintiff that resulted in the need to use force, or concerning the amount of force that was used.
Reasonable officials in the position of Defendants should have been aware of the law as outlined
in Hudson, and of the factors to be used in evaluating that use of force as stated in Baldwin v.
Stalder. These officers were struggling with a recalcitrant prisoner who had handcuffs that could
be used as a dangerous weapon. Even if a higher court were to decide, after review of the summary
judgment evidence, including the DVD, that some action of one or more defendants should be
considered excessive force, the basis for such a determination would not have been clearly
established law at the time of the incident. Defendants acted in accordance with the established
law at the time and they would be entitled to qualified immunity. See Hudson, 503 U.S. at 9.
Fourth and Fourteenth Amendment Claims
In his Brief in Support of the Complaint, Plaintiff makes a general claim of violation of
Fourth and Fourteenth Amendment rights. (Doc. #3 at 14). The statements are conclusory and
unsupported by specific allegations of fact. As noted, Plaintiff filed no response to these
Defendants’ motion for summary judgment. He also failed to address these claims in his responses
to Defendant Flowers’s motion for summary judgment. (Doc. ## 52, 53 and 54). Defendants are
entitled to judgment on these claims.
Official Capacity
To the extent Plaintiff is making a claim against Defendants in their official capacities, they
are protected from suit by the Eleventh Amendment. A suit for damages against a state official
acting in his official capacity is not a suit against that individual but a suit against the state. Hafer
v. Melo, 502 U.S. 21, 25 (1991). Therefore, a state actor acting in his or her official capacity is not
a “person” subject to suit under 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S.
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58, 71 (1989). This claim will be dismissed.
Declaratory and Injunctive Relief
In his Complaint, Plaintiff seeks declaratory relief against Defendants, but does not specify
what declaratory relief he is seeking. (Doc. #3 at 13). Plaintiff also seeks a preliminary and
permanent injunction “ordering defendants to stop all forms of retaliations and hindrances to the
filing of this complaint.” Id. at 15. To the extent Plaintiff seeks injunctive relief, he has failed to
establish how this would meet the requirements under the Prison Litigation Reform Act, or how it
relates to his claims. Plaintiff has failed to demonstrate past or current wrongdoing. Because
injunctions regulate future conduct, “a party seeking injunctive relief must allege ... a real and
immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.” Van
Winkle v. Pinecroft Ctr. L.P., 2017 WL 3648477, at *6 (S.D. Tex. Aug. 23, 2017) (quoting Wooden
v. Bd. of Regents Univ. Sys. of Georgia, 247 F.3d 1262, 1284 (11th Cir. 2001)). Both claims will
be dismissed.
ORDER
The motion for summary judgment of defendants John Kuykendall, Michael Dees, Charles
Manns, Jr. (Doc. #24) is GRANTED. All claims against all Defendants having been disposed of, a
final judgment will be entered in accordance with this Memorandum Opinion and the previous orders
entered relating to claims against other Defendants.
So ORDERED and SIGNED March 30, 2020.
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____________________________
Ron Clark, Senior District Judge
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