Malbrough v Holmes et al
Filing
120
MEMORANDUM OPINION AND ORDER ENTERING FINDINGS OF FACT AND CONCLUSIONS OF LAW(Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 3)
Case 3:17-cv-00283 Document 120 Filed on 05/22/23 in TXSD Page 1 of 30
United States District Court
Southern District of Texas
ENTERED
In the United States District Court
for the Southern District of Texas
May 22, 2023
Nathan Ochsner, Clerk
GALVESTON DIVISION
═══════════
No. 3:17-cv-283
═══════════
NICOLE MALBROUGH, PLAINTIFF,
v.
JASON DEON HOLMES, ET AL., DEFENDANTS.
══════════════════════════════════════════
MEMORANDUM OPINION AND ORDER
ENTERING FINDINGS OF FACT AND
CONCLUSIONS OF LAW
══════════════════════════════════════════
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:
This civil-rights and tort case arises from Nicole Malbrough’s 2015
hospitalization at the University of Texas Medical Branch (UTMB) following
cataract surgery. Malbrough—then in the custody of the Texas Department
of Criminal Justice (TDCJ)—claims that correctional officer Jason Deon
Holmes sexually assaulted her while she recuperated in a holding cell.
Holmes does not deny that the parties had a sexual encounter but maintains
that it was consensual.
Malbrough has asserted claims under 42 U.S.C. § 1983 for violations of
her Fourth Amendment rights, including unreasonable seizure and
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unreasonable, unnecessary, and excessive force. Dkt. 25 ¶¶ 25–33. She also
alleges assault and battery under Texas common law. 1 Id. ¶¶ 41–46.
Based on the evidence produced at a one-day bench trial as well as the
parties’ arguments and the applicable law, the court finds and concludes as
follows:
• Malbrough did not prove by a preponderance of the evidence that
Holmes sexually assaulted her or committed a battery during their
encounter.
• Malbrough did not prove by a preponderance of the evidence that
Holmes effected an unreasonable seizure during their encounter.
• Malbrough did not prove by a preponderance of the evidence that
Holmes used unreasonable, unnecessary, or excessive force during
their encounter.
• Holmes has no liability to Malbrough arising from their encounter.
The reasons for these rulings are set out below. Any findings of fact that
are also, or only, conclusions of law are so deemed, and any conclusions of
law that are also, or only, findings of fact are likewise so deemed.
Malbrough also brought claims against UTMB, TDCJ, and two other TDCJ
employees. Dkt. 25. She never served the two individual employees. And the court
dismissed the claims against UTMB and TDCJ. Dkts. 40; 53.
1
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FINDINGS OF FACT
A. The Parties
The plaintiff is Nicole Malbrough, a 37-year-old woman. At the time of
trial, she worked for Earth’s Financial Freedom, which she describes as a
credit-repair company. At the time of the incident, Malbrough was
incarcerated at a TDCJ facility in Gatesville, serving a two-year sentence. The
defendant is Jason Deon Holmes, a 33-year-old man. He currently works as
a longshoreman. At the time of the incident, Holmes worked for TDCJ as a
correctional officer, guarding inmates receiving medical care at UTMB.
B. Jurisdiction and Venue
This court has federal-question jurisdiction over this dispute under 28
U.S.C. § 1331 because this action arises out of 42 U.S.C. §§ 1981, 1983, and
1988. Venue is proper in the Southern District of Texas because the events
giving rise to the claims asserted occurred within the district.
C. The Occurrence
On Friday, September 18, 2015, Malbrough underwent cataract
surgery in her right eye at UTMB in Galveston. 2 Post-surgery, she rested in a
small cell located at the back of the hospital in an area designated for
While Malbrough testified that she believed doctors performed her surgery
on September 19, medical records indicate the surgery occurred on September 18.
See Dkt. 118-1 at 6–8. The court admitted these records as the plaintiff’s Exhibit 1.
2
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inmate–patients. The room—accessible by a single, lockable door—consisted
of a bed, a television set, a sink, and a toilet. There was a small window in the
door. Malbrough occupied her room alone.
She remained at UTMB overnight on Saturday, September 19. As part
of his duties, Holmes made routine rounds to check on inmates under the
hospital’s care. During these rounds, Holmes encountered Malbrough. She
alleges that two different sexual assaults ensued over the course of the night;
Holmes insists that they engaged in one consensual sexual encounter
initiated
by
Malbrough.
Malbrough
and
Holmes
both
produced
contemporaneous written statements and testified during trial. The court
summarizes their testimony below in subparts D and E.
On the evening of Sunday, September 20, during shower time,
Malbrough asked Officer Shermika Hopkins for her name and for the name
of the male officer she worked with that night and the night before. Dkt. 1182 at 20. 3 Officer Hopkins supplied both names and asked Malbrough if
anything was wrong. Id. Malbrough answered no. Id.
On Monday, September 21, at around 4:00 a.m., Officer Sharaglyn
The court admitted the witness statement of Officer Singleton, and the
contemporaneous statements provided by other witnesses, as Plaintiff’s Exhibit 2.
See Dkt. 118-2.
3
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Singleton entered Malbrough’s cell to prepare her for discharge. Dkt. 118-2
at 21. When the officer noticed that Malbrough had packed a towel in her
bag, she informed her that it belonged to UTMB and could not be
transported. Id. Malbrough replied that she needed the towel because it
contained her attacker’s DNA and said that she had been sexually assaulted.
Id. at 20, 21. Malbrough initially declined to provide more details, instead
asking to speak with her family or the unit chaplain. Id. at 21.
At around 8:30 a.m., Malbrough related to Chaplain Deborah Phillips
and Major Angela Chevalier her account of the attack. Id. at 4. She stated that
at around 10:00 p.m. on September 19, a male officer entered her cell and
attempted unsuccessfully to penetrate her anally with his penis, before
inserting himself into her vagina and ejaculating. Id. at 4, 15, 17. Malbrough
said two different attacks occurred. Id. at 4, 17. She told them she had cleaned
herself off with the towel, and that she did not report the attack out of fear of
retaliation. Id. at 4. She agreed to make a written statement and submit to a
medical exam. Id.
Malbrough’s written statement described her attacker as a “lightskinned complexion African[-]American” officer in glasses, wearing a blue
short-sleeved polo TDCJ shirt and a keychain around his neck. Id. at 12. She
claimed that at around 9:00 p.m., he came to her cell door and put a brown
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napkin up to the window bearing the phrase, “do you want to jump on this?”.
Id. at 11. She asked, “jump on what?”. Id. He replied, “this,” before walking
away. Id.
After 10:00 p.m. Malbrough said that Holmes returned, switched the
lights on, and tapped on her cell window. Id. She pretended to be asleep. Id.
He proceeded to unlock her door, sliding it open quietly, before he
approached her bed and touched her buttocks. Id. She jumped up and
witnessed him “grabbing on his penis.” Id. He again asked her if she wanted
to do this, to which she answered, “No.” Id. Malbrough said she told him she
was “very sleepy, drowsy, and had been given medication.” Id. Holmes left
but returned two to three hours later, unlocked the door, approached
Malbrough, removed his penis from his pants, grabbed her legs, and placed
them over his shoulder. Id. He then attempted to force his penis into
Malbrough’s anus. Id. When that failed, he inserted his penis into her vagina
and violently raped Malbrough. Id. She described hearing Holmes’s keys
rattling during the attack. Id. at 12.
Malbrough speculated in her statement that Holmes “heard something
or someone,” leading him to jump up and run away, leaving her door open.
Id. at 11. She eventually shut the door, but Holmes returned later in the night,
and once again forced his penis into her vagina and ejaculated. Id. At that
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point she jumped up and pushed him away from her, spilling semen over her
legs, feet, and the floor. Id. Holmes then left but returned a final time to relay
information about getting a fan and to ask if she needed to go to the pill line.
Id. at 12. She told him no. Id.
At around 9:34 a.m. on September 21, Malbrough was examined by a
Sexual Assault Nurse Examiner (SANE). According to her report—admitted
as Plaintiff’s Exhibit 9 and Defense Exhibit 66—the SANE observed blood
coming from Malbrough’s cervical os but attributed this to menstruation,
and found no signs of physical trauma. Dkts. 118-9 at 6–7; 88 at 284–85.
At around 11:58 p.m., after he reported for work, investigators
interviewed Holmes about Malbrough’s accusations. Dkt. 118-2 at 5. Holmes
admitted
to
consensual
sexual
intercourse
with
Malbrough
and
acknowledged he had violated TDCJ rules but blamed his behavior on a sex
addiction. Id. at 14. Holmes wrote a brief statement describing the
encounter. Id.
Chaplain Phillips also provided a witness statement. Dkt. 118-2 at 17.
She described how Malbrough told her that she had been raped by an officer
who “kept singing a sexual song trying to entice her.” Id. Phillips also noted
that Malbrough repeatedly told Holmes “no” during his attempts to
penetrate her, but that she never yelled, screamed, or fought back. Id.
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In Officer Hopkins’s witness statement, she relates that Malbrough
asked her on September 20 for her name and the name of the male officer
she had worked with the evening before. Id. at 20. Hopkins did so and asked
Malbrough if anything was wrong; Malbrough answered no. Id. Hopkins also
notes that Officer Singleton told her that Malbrough was refusing to give up
a towel because it contained DNA on it, and that she was crying and claiming
she had been raped. Id. Malbrough urged Hopkins not to contact her
supervisors to report the assault because she wanted to wait until she had
returned to her unit to make a report. Id.
In Singleton’s witness statement, she says that Malbrough refused to
hand over a towel because it contained DNA and that she wanted to wait until
she had returned to her unit to file a report. Dkt. 118-2 at 21.
Lieutenant Rickey Joe Turner also provided a statement, relating that
Malbrough initially resisted providing details of her attack and instead asked
to speak with a chaplain. Dkt. 118-2 at 22.
In inmate Tammy Crawford’s statement, she reports that on the night
of September 19 she observed Holmes enter Malbrough’s cell and leave about
ten minutes later but did not hear or see any sexual abuse. Id. at 16. Crawford
also stated that she saw Holmes going to the room across from hers a
“noticably [sic] odd amount of times.” Id.
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Holmes ultimately pleaded guilty to violating Texas Penal Code §
39.04, which prohibits correctional officers from having sexual contact with
inmates. Dkt. 118-4. The court admitted his judgment of conviction as
Plaintiff’s Exhibit 4. Id.
D. Malbrough’s Testimony and Credibility Findings
Malbrough testified at trial. The court summarizes her testimony as
follows.
Malbrough testified that her treating physicians medicated her during
the cataract procedure, which caused her to lose consciousness and feel
dehydrated, sleepy, and drowsy afterwards. After spending time in a recovery
room, UTMB staff placed her in a hospital cell she occupied alone.
Malbrough described the cell as small, with a bunk bed, a television, a toilet,
and a lockable door that had a window. She wore two hospital gowns, with
one facing to the front and the other facing to the back, wearing nothing
underneath the gowns. Malbrough also described herself as 5’4” in height.
She testified that she first interacted with Holmes as he made his
“rounds,” walking around to observe inmate–patients. When Holmes first
passed Malbrough’s cell, neither said anything. During a later round,
however, Malbrough asked Holmes for a fan or some deodorant “because
[she] was very hot and sweating.” Holmes brought her deodorant but
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informed her she would need to request a fan from a nurse. During a later
round, Holmes began singing a song popularized by the entertainer Nelly.
The song’s lyrics include the lines: “It’s getting hot in here. So take off all your
clothes.” He sang this song as he walked past her cell.
During a later check-in, Holmes held up a napkin to her window with
the words “do you want to jump on this?” written on it in ink. Malbrough
testified that she was confused and asked Holmes “jump on what?”, after
which he departed. During another round, Malbrough heard him as he
walked past her cell and switched the cell lights from off to on. He did this a
second time and then tapped “very lightly” on her window. Malbrough
testified that she saw him through the window and then “played like [she]
was asleep and . . . didn’t get up.” They had no other communication at that
time.
Malbrough testified that Holmes returned yet again. Lying in bed, she
heard the cell door unlock and open. She felt Holmes touch her buttocks,
jumped up, and observed Holmes “grabbing at his penis.” He then asked “did
[she] want to do this.” She says that she told him no and said that she
remained very sleepy and drowsy from her medication and “just wanted to
go to sleep.” Holmes then exited the cell.
She said that she remained in bed and pretended to be asleep. After “a
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little time went by,” she heard the door unlock and slide open again. Holmes
entered the cell very fast, grabbed Malbrough’s legs, pulled her to the edge of
the bed, and placed her legs over his shoulders. He attempted to anally
penetrate her. Malbrough described the experience as “very uncomfortable”
and characterized by “sharp pain . . . like someone was like ripping [her]
apart.” She said that after Holmes failed to anally penetrate, he raped her
vaginally. Malbrough testified that she felt “excruciating pain” because
Holmes was “pumping really, really hard, like aggressively.” She claimed that
he grabbed her ankles very tightly during this encounter. Meanwhile, she
“kept asking him to stop,” while trying to move and free her legs from
Holmes’s grasp to kick him away. She indicated that the more she attempted
to pull her legs away, the more aroused Holmes seemed. Malbrough
described Holmes as “muscular,” while her surgery left her feeling weak,
dehydrated, and drowsy. She could not push him back or away with her legs
and estimated that the encounter lasted for around two minutes. At that
point, Malbrough speculated that Holmes “heard something,” causing him
to abruptly stop, jump, grab his pants, and run out of the cell at around 10:00
or 11:00 p.m. He did not close her door behind him.
Following Holmes’s departure, Malbrough sat on her bed for around
half-an-hour to an hour. Then, she went to her door to see if she could
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observe any other individuals passing by. When she did not, Malbrough
returned to the bed. She claims she heard the door slide open again, as
Holmes returned to her cell. He once again grabbed her legs, placed them
over his shoulder, pulled her to the edge of the bed, and attempted anal
penetration. She reiterated her description of feeling “excruciating” pain akin
to “being ripped apart.” Malbrough said that she “kept asking [Holmes] to
stop” and continuously attempted to kick him off. At that point, Holmes
inserted his penis into her vagina and “started pumping very hard, extremely
hard to the point to where [her] head was hitting the back of the wall.”
Malbrough denied being physically aroused as Holmes began his attack.
While she begged him to stop, he began to ejaculate. She continued kicking
her legs, but Malbrough testified that Holmes only pulled her closer. As she
finally managed to kick him away, he ejaculated onto her vagina, leg, and the
floor below.
Malbrough testified that Holmes then left the room, locking the door
behind him. She found herself bleeding and tried to clean up. She sat in bed
for a while, then got up to peer out of the door to see if anyone might be
passing by, then returned to bed and fell asleep. At some point, Holmes
returned and asked Malbrough if she wanted to go to the pill line for
medication. He also informed her that she could get a fan from the nurse
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there. Holmes made no mention of the attack.
Malbrough testified that she reported the assault the following
morning when officers arrived to prepare her for return to Gatesville. She
told a female officer that she needed to take the towel she had wiped herself
off with, because it carried her attacker’s semen. Malbrough said she initially
refused to hand over the towel due to fears that TDCJ would attempt to cover
up the crime, and that she had preferred to report it to the warden of her unit
in Gatesville. She recounted the previous evening’s events to the guard.
Malbrough testified that she was moved to another cell with different
officers. The guards tried to convince her to hand over the towel but she
refused. She finally delivered it to a prison ombudsman, who placed it in a
brown paper bag and promised to deliver it to the proper authorities.
Malbrough read for the court the written statement she provided to
TDCJ on September 21, 2015. 4 She explained her understanding of the
disciplinary actions TDCJ had taken against Holmes and his later criminal
proceedings. Malbrough also testified about her experiences undergoing a
rape kit and SANE exam. She described how after the attack, she felt
“excruciating,” “throbbing,” and “stabbing” pain, as well as bleeding. She also
The statement—summarized by the court in subpart C—had already been
admitted into evidence as part of Plaintiff’s Exhibit 2.
4
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testified that she continues to suffer emotional distress, pain, and torment,
including post-traumatic stress disorder, extreme anxiety, and insomnia.
Malbrough described how this has negatively affected her family life. She
also acknowledged her lengthy criminal past but stated she had never made
a false rape accusation.
The court did not find Malbrough’s testimony credible, largely due to
her multiple past convictions for crimes involving dishonest acts or false
statements. Federal Rule of Evidence 609 “governs the admissibility of
evidence of convictions for impeachment purposes.” United States v.
Jefferson, 623 F.3d 227, 233 (5th Cir. 2010). Rule 609 provides that in a civil
case, evidence of convictions for crimes punishable by death or
imprisonment for more than one year must be admitted subject to an
analysis under Rule 403. 5 Fed. R. Evid. 609(a)(1)(A). And “for any crime
regardless of the punishment, the evidence must be admitted if the court can
readily determine that establishing the elements of the crime required
proving—or the witness’s admitting—a dishonest act or false statement.”
“[T]he exclusion of . . . evidence under Rule 403’s weighing of probative
value against prejudice . . . has no logical application to bench trials.” Gulf States
Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981). Moreover, the court
finds that none of the other concerns of Rule 403, such as confusing the issues,
undue delay, wasting time, or needlessly presenting cumulative evidence, are
implicated by the conviction evidence in this case.
5
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Fed. R. Evid. 609(a)(2). But the rule imposes a limit on admitting convictions
“if more than 10 years have passed since the witness’s conviction or release
from confinement for it, whichever is later.” Fed. R. Evid. 609(b). In that
circumstance, the court should only admit the conviction if “its probative
value, supported by specific facts and circumstances, substantially outweighs
its prejudicial effect,” and the proponent of the evidence gives reasonable
notice to the adverse party. Fed. R. Evid. 609(b)(1), (2). For these remote
convictions, “the general rule . . . is inadmissibility.” United States v. Cathey,
591 F.2d 268, 275 (5th Cir. 1979).
The court considered the following convictions for the purposes of
impeachment under Rule 609:
• Fraudulent Use of Identifying Information: Defense Exhibit 14
shows Malbrough’s conviction for this offense on October 5, 2017.
Dkt. 88 at 50–51. Because the court has determined that the
elements of this crime require proving—or the witness’s admitting—
a dishonest act or false statement, and the conviction occurred
within the last ten years, the court admitted and considered this
evidence in evaluating Malbrough’s credibility. See Tex. Penal Code
§ 32.51; Ethridge v. State, No. 12-09-190-CR, 2012 WL 1379648, at
*17 (Tex. App.—Tyler Apr. 18, 2012, no pet.) (mem. op); Fed. R.
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Evid. 609(a)(2), (b); Knight ex rel. Kerr v. Miami-Dade Cnty., 856
F.3d 795, 817 (11th Cir. 2017) (holding a witness’s “convictions for
crimes
of
falsehood
identification . . . were
and
fraudulent
admissible
under
use
Rule
of
another’s
609(a)(2)”).
Moreover, as the crime is punishable by imprisonment for more
than one year, the conviction is also admitted under Rule
609(a)(1)(A). Dkt. 88 at 51 (noting the degree of offense as a state
jail felony); Tex. Penal Code § 12.35 (codifying the punishment
range for a state jail felony as “confinement in a state jail for any
term of not more than two years”).
• Controlled Substance Fraud: Defense Exhibit 17 shows Malbrough’s
conviction for this offense on January 14, 2014. Dkt. 88 at 63–64.
Malbrough was convicted for use of a fraudulent prescription form
to obtain a controlled substance. Because the court has determined
that the elements of this crime require proving—or the witness’s
admitting—a dishonest act or false statement, and the conviction
occurred within the last ten years, the court admitted and
considered this evidence in evaluating Malbrough’s credibility. See
Tex. Health & Safety Code § 481.129; Grant v. CRST Expedited, Inc.,
No. 1:18-CV-433, 2021 WL 2099314, at *3 (E.D. Tex. March 23,
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2021) (noting that crimes involving fraud qualify for admission
under Federal Rule of Evidence 609(a)(2)); United States v. Tracy,
36 F.3d 187, 192 (1st Cir. 1994) (holding that a conviction for a
similar crime, uttering a false prescription, “plainly involves
dishonesty or false statement”); Fed. R. Evid. 609(a)(2), (b).
Moreover, as the crime is punishable by imprisonment for more
than one year, the conviction is also admitted under Rule
609(a)(1)(A). Dkt. 88 at 64 (noting the degree of offense as a thirddegree felony); Tex. Penal Code § 12.34 (codifying the punishment
for a third-degree felony as imprisonment “for any term of not more
than 10 years or less than 2 years”).
• Credit Card Abuse: Defense Exhibit 20 shows Malbrough’s
conviction for this offense on January 14, 2014. Dkt. 88 at 73–74.
Because the court has determined that the elements of this crime
require proving—or the witness’s admitting—a dishonest act or false
statement, and the conviction occurred within the last ten years, the
court admitted and considered this evidence in evaluating
Malbrough’s credibility. See Tex. Penal Code § 32.31; Battles v.
State, No. 11-05-166-CR, 2006 WL 1029072, at *3 (Tex. App.—
Eastland Apr. 20, 2006, no pet.) (mem. op.) (noting that “credit
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card abuse is a crime of deception”); Fed. R. Evid. 609(a)(2), (b).
Moreover, as the crime is punishable by imprisonment for more
than one year, the conviction is also admitted under Rule
609(a)(1)(A). Dkt. 88 at 74 (noting the degree of offense as a state
jail felony); Tex. Penal Code § 12.35 (codifying the punishment
range for a state jail felony as “confinement in a state jail for any
term of not more than two years”).
• Insurance Fraud: Defense Exhibit 36 shows Malbrough’s conviction
for this offense on September 24, 2012. Dkt. 88 at 142–43.
Malbrough’s judgment of conviction indicates she received 278 days
confinement as punishment, with a 139-day credit. Id. Her sentence
commenced on September 24, 2012, meaning her release date
would have been February 10, 2013. Malbrough gave her testimony
on November 7, 2022—less than ten years after her release date.
Therefore, the offense is not too remote for the court to consider.
See Fed. R. Evid. 609(b) (“[T]his subdivision (b) applies if more
than 10 years have passed since the witness’s conviction or release
from confinement for it, whichever is later.”) (emphasis added).
And because the elements of this crime require proving—or the
witness’s admitting—a dishonest act or statement, the court
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admitted and considered the evidence in evaluating Malbrough’s
credibility. See Fed. R. Evid. 609(a)(2), (b); Tex. Penal Code
§ 35.02; Grant, 2021 WL 2099314, at *3.
• Aggravated Assault: Defense Exhibit 25 shows Malbrough’s
conviction for this offense on January 14, 2014. Dkt. 88 at 90.
According to the judgment of conviction, this offense is a felony
conviction punishable by imprisonment in excess of one year. Id.
(noting the degree of conviction as a second-degree felony); Tex.
Penal Code § 12.33 (codifying the punishment for a second-degree
felony as imprisonment “for any term of not more than 20 years or
less than 2 years”). Accordingly, the court admits the evidence
under Rule 609(a)(1)(A).
The court has not assigned probative value to Malbrough’s remote
convictions or to any past or pending indictments that did not result or have
not resulted in conviction. See Fed. R. Evid. 609 (noting that the rule applies
“to attacking a witness’s character for truthfulness by evidence of a criminal
conviction”) (emphasis added). Nevertheless, the convictions the court has
taken into account seriously impeached Malbrough’s character for
truthfulness, casting very significant doubt on the credibility of her
testimony.
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Furthermore, during cross-examination, Malbrough admitted she has
a lengthy history of lying and providing false information to obtain money
and property. The defendant impeached Malbrough’s credibility by inquiring
into specific instances of conduct that were probative of her character for
truthfulness, including providing false information to police officers and
forging signatures. See Fed. R. Evid. 608(b); United States v. Tomblin, 46
F.3d 1369, 1389 (5th Cir. 1995) (“Rule 608 authorizes inquiry only into
instances of misconduct that are clearly probative of truthfulness or
untruthfulness, such as perjury, fraud, swindling, forgery, bribery, and
embezzlement.”). 6 Malbrough admitted to giving police officers false
information and committing forgeries, and these prior acts were probative of
her character for truthfulness.
E. Holmes’s Testimony and Credibility Findings
Like Malbrough, Holmes also testified at trial. The court summarizes
his testimony as follows.
The court is cognizant that “inquiry into the mere existence of an arrest or
indictment is not admissible to impeach the defendant’s credibility under” Federal
Rule of Evidence 608(b). United States v. Abadie, 879 F.2d 1260, 1267 (5th Cir.
1989). Holmes’s inquiries into these topics did not affect the court’s evaluation of
Malbrough’s credibility.
6
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Holmes testified that in September 2015 7, he was working at UTMB as
a correctional officer. His duties included monitoring inmates and ensuring
they remained secure during their hospital stay. He completed rounds every
15 minutes. During one of these rounds, he visited Malbrough’s cell and
turned on the lights. He noticed that she had her hospital gown “turned
backwards for some reason, wearing it like it was a robe,” with the opening
positioned towards her front. Holmes testified that she wore only one gown.
He quickly turned the lights off, told her she needed to reposition her gown,
and made a comment to the effect of “nobody really wants to see that.”
Malbrough responded to the effect of “you know you want to see it.” Holmes
says he interpreted this comment as “flirting” and “a female inmate messing
around with a guard just because [he] was the male at the time.”
During a later round, he found Malbrough awake and partially “under
the sheets” except for her legs, which were elevated with her knees spread
apart. He described the pair making eye contact and said that Malbrough
“kind of waived at” him, which he again took as “flirting.” He felt that
Malbrough “was trying to have some fun that night.” Holmes moved on and
Holmes incorrectly identified September 15, instead of September 19, as
the date of the incident. Again, the court notes that Malbrough and Holmes
testified about events which had happened more than seven years earlier.
7
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continued his rounds.
He described their next interaction as a “brief conversation,” initiated
by Malbrough uttering a “few words . . . towards . . . coming into the cell
and . . . having some sexual activities with her.” Holmes said something to
the effect that he saw her “trying to tease and everything like that.”
Malbrough gestured to invite him into her room, but Holmes did not oblige.
Holmes denied wearing keys around his neck, noting that it would present a
security hazard.
At some point after midnight, Holmes checked on Malbrough again.
She woke up and Holmes stood by the door staring at her “for a while,” and
she waived him inside the cell. This time, Holmes accepted the invitation and
asked her “what can [he] do for her.” She “proceeded to turn with her legs off
the bed and open up her legs.” At this point he unzipped his pants, pulled
them down around his knees, and engaged in brief sexual intercourse with
Malbrough, lasting a couple of minutes. Holmes said that Malbrough became
physically aroused in the course of their encounter. Under crossexamination, Holmes stated that he ejaculated onto the floor. He denied
attempting anal penetration. He stated that he did not physically raise her
legs and denied that she ever attempted to fight him off, kick him, scratch
him, punch him, scream, or otherwise ask him to stop or give any physical or
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verbal indication that the encounter was nonconsensual. Holmes also
testified that the cells surrounding Malbrough were occupied by other
patients. He noted that two other officers and about three other nurses were
also in the vicinity and that the hospital that night was quiet. After
completing intercourse, Holmes left the cell.
Holmes testified that they had no other sexual interactions. They
encountered each other later, when Holmes completed another round, and
Malbrough asked him if she could obtain a fan. After checking with a nurse,
Holmes returned to her cell to tell her no. This was their last interaction.
On cross-examination, Holmes read the statement he provided to
investigators
after
Malbrough
levelled
the
accusations.
Holmes
acknowledged his felony conviction for engaging in sexual intercourse with
an inmate. He acknowledged that he had engaged in strength training “on
and off” for several years prior to his encounter with Malbrough. Holmes
testified that though he had stated in a previous deposition that Malbrough
had provided him with oral sex, he could not presently recall every detail of
the encounter, which occurred over seven years ago.
The court found Holmes’s testimony somewhat credible and certainly
more credible than Malbrough’s. Though Holmes is, like Malbrough, a
convicted felon, the court afforded his conviction for sexual activity with a
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person in custody under Texas Penal Code § 39.04—admitted and
considered under Rule 609(a)(1)(A)—little impeachment value related to
Holmes’s character for truthfulness. See Dkt. 118-4.
Malbrough’s Claims
A. Assault
Under Texas law, “the elements of a civil assault mirror those of a
criminal assault.” Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012); Dkt.
111 at 2. An assault occurs if a person “intentionally or knowingly causes
physical contact with another when the person knows or should reasonably
believe that the other will regard the contact as offensive or provocative.”
Loaisiga, 379 S.W.3d at 256. A plaintiff bears the burden of proving her
assault claim by a preponderance of the evidence. Cowboys Concert HallArlington, Inc. v. Jones, No. 02–12–00518–CV, 2014 WL 1713472, at *5
(Tex. App.—Fort Worth May 1, 2014, pets. denied) (per curiam) (mem. op).
Based on the evidence submitted at trial, the court finds that Holmes
did not assault Malbrough. The court did not find Malbrough’s testimony to
be credible, and her testimony was the only material evidence indicating an
assault occurred. Holmes impeached Malbrough’s testimony by establishing
her penchant for deceit, dishonesty, and fraud in pursuit of money. And her
demeanor on the stand at trial did not otherwise persuade the court of the
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truthfulness of her account. No other witness offered any testimony
bolstering Malbrough’s unpersuasive account of what transpired on the
evening of September 19–20, 2015.
The court found Holmes’s testimony, describing a consensual sexual
encounter initiated by Malbrough, more credible. Though Holmes’s
testimony was not entirely credible, the court is cognizant that the relevant
events occurred more than seven years ago and some discrepancies in
memory are unavoidable. And the burden of proof is Malbrough’s to carry.
Finally, the court finds the SANE-report evidence—which noted no
signs of any physical trauma indicative of a violent sexual assault—as
corroborative of Holmes’s account and contradictory of Malbrough’s.
Accordingly, the court finds that Malbrough failed to prove her assault case
by a preponderance of the evidence.
B. Excessive Force
Malbrough brings a § 1983 claim against Holmes, arguing he deployed
unreasonable, unnecessary, and excessive force against her in violation of the
Fourth Amendment. 8 Dkt. 25 ¶¶ 29–33. However, it is undisputed that at the
Malbrough’s proposed findings of fact and conclusions of law mention an
unreasonable-search violation. Dkt. 111 at 3. However, her live complaint makes
no unreasonable-search claim. See Dkt. 25. Even if it did, none of the facts or
evidence produced at trial support any allegation that Holmes effected a search of
Malbrough.
8
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time of her encounter with Holmes, Malbrough was a convicted inmate
serving a criminal sentence. Accordingly, her claim sounds in the standards
of the Eighth Amendment—not the Fourth. 9 See, e.g., Graham v. Connor,
490 U.S. 386, 395 n.10 (1989) (holding that after conviction, “the Eighth
Amendment ‘serves as the primary source of substantive protection . . . in
cases . . . where the deliberate use of force is challenged as excessive and
unjustified’”) (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)); Berry v.
City of Muskogee, 900 F.2d 1489, 1494 (10th Cir. 1990) (“[C]laims of
excessive force against convicted prisoners should be analyzed under the
Eighth . . . Amendment.”); Ard v. Rushing, 911 F. Supp. 2d 425, 428 (S.D.
Miss. 2012) (holding that although an incarcerated individual’s sexualassault claim against a guard was “cast in terms of putative violations of the
Fourth, Fifth[,] and Fourteenth Amendments, her constitutional rights
necessarily flow from the Eighth Amendment”); Bearchild v. Cobban, 947
The cases Malbrough cites in her proposed findings of fact and conclusions
of law involve Eighth Amendment or Fourteenth Amendment instead of Fourth
Amendment violations. See Perry v. Durborow, 892 F.3d 1116 (10th Cir. 2018)
(analyzing the alleged rape of a pretrial detainee by a prison guard); Hovater v.
Robinson, 1 F.3d 1063 (10th Cir. 1993) (applying the Eighth and Fourteenth
Amendments). And because the court finds that the evidence tends to show no
attack occurred, Malbrough’s constitutional claims would fail under any theory.
See Stockman v. Lowndes Cnty., No. CIV.A. 199-CV-182-DD, 2000 WL 33907696,
at *4 (N.D. Miss. Aug. 21, 2000) (“[W]hile consensual conduct may
violate . . . policy, it carries no constitutional implication.”).
9
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F.3d 1130, 1140 (9th Cir. 2020) (citing cases for the proposition that prisoner
sexual-assault claims are properly analyzed as Eighth Amendment excessiveforce claims); Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en
banc).
In a sexual-assault case, “a two-part test determines whether a prisoner
has established a violation of the Eighth Amendment: 1) the sexual abuse
or assault must be objectively sufficiently serious and 2) the prison officials
involved must have acted with deliberate indifference, i.e., a sufficiently
culpable state of mind.” Ben v. Brinks, No. EP–13–CV–00023–KC–ATB,
2014 WL 931796, at *2 (W.D. Tex. Feb. 13, 2014) (citing Harper v. Showers,
174 F.3d 716, 719–720 (5th Cir. 1999). The plaintiff must prove her case by a
preponderance of the evidence. Harper v. Caddo Corr. Ctr., No. 5:19-CV00587 SEC P, 2022 WL 885840, at *5 (W.D. La. Jan. 19, 2022).
Based on the evidence submitted at trial, the court does not find that
Holmes used any force on Malbrough, much less such excessive force as
would amount to an Eighth Amendment violation. Again, for the reasons
discussed above, the court does not credit Malbrough’s account of the events
and finds Holmes’s testimony more credible. As the court finds that no
assault occurred, the Eighth Amendment claim fails on the standard’s first
prong. Consensual sexual encounters between inmates and correctional
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officers, while criminally culpable under Texas law, do not necessarily
constitute Eighth Amendment excessive-force violations. Cf. Olivarez v.
GEO Group, Inc., 844 F.3d 200, 205 (5th Cir. 2016) (holding in a § 1983
sexual-assault case that an inmate’s recorded phone conversations
suggesting a consensual sexual encounter with a prison employee were of
substantial evidentiary value, because they went to the truth of the defendant
employee’s consent defense); Graham v. Sheriff of Logan Cnty., 741 F.3d
1118, 1124 (10th Cir. 2013) (holding that an Eighth Amendment excessiveforce claim based on sexual abuse must involve “at least some form of
coercion . . . by the prisoner’s custodians”). 10 Moreover, Holmes’s guilty plea
under Texas Penal Code § 39.04 does not necessarily aid Malbrough’s § 1983
sexual-assault claims. See Hale v. Boyle Cnty., 18 F.4th 845, 853 n.5 (6th Cir.
2021) (holding that a prison guard’s violation of a Kentucky statute
criminalizing sex between guards and inmates did not establish “per-se
The court acknowledges that courts in other circuits have taken somewhat
different approaches. See, e.g., Wood v. Beauclair, 692 F.3d 1041, 1049 (9th Cir.
2012) (“[W]hen a prisoner alleges sexual abuse by a prison guard, we believe the
prisoner is entitled to a presumption that the conduct was not consensual.”); Hale
v. Boyle Cnty., 18 F.4th 845, 853–54 (6th Cir. 2021); Carrigan v. Davis, 70 F.
Supp. 2d 448, 452–53 (D. Del. 1999) (holding that intercourse between a prison
inmate and a guard is a per se violation of the Eighth Amendment). But see
Stockman v. Lowndes Cnty., No. CIV.A. 199-CV-182-DD, 2000 WL 33907696, at
*4 (N.D. Miss. Aug. 21, 2000) (“[W]hile consensual [sexual] conduct may violate
municipal policy, it carries no constitutional implication.”).
10
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nonconsent” or otherwise dictate the outcome of a § 1983 sexual-assault
suit). For the same reason, Holmes’s admitted violations of TDCJ policies do
not establish Malbrough’s non-consent.
C. Unreasonable Seizure
Malbrough also claims Holmes effected an unreasonable seizure
against her in violation of the Fourth Amendment. For the reasons discussed
above, her sexual-assault claims sound in the Eighth Amendment—not the
Fourth. 11 Malbrough has not submitted any cases describing what elements
might comprise an Eighth Amendment unreasonable-seizure claim. See Dkt.
111.
Even under a Fourth Amendment analysis, Malbrough’s claims would
fail. “To state a claim under § 1983 for unreasonable seizure, [a plaintiff]
must demonstrate that (1) she was seized within the meaning of the Fourth
Amendment and (2) such seizure was unreasonable.” Velazquez v. City of
Westwego, 531 F.Supp.3d 1142, 1157 (E.D. La. 2021) (citing Brower v. Cnty.
In her proposed findings of fact and conclusions of law, Malbrough cites
Cerda v. Billingsley for the proposition that a law-enforcement officer’s sexual
assault can constitute an unreasonable seizure under the Fourth Amendment. Dkt.
111. ¶ 8; No. SA-09-CA-816-FB, 2011 WL 13238418, at * 5 (W.D. Tex. Mar. 9, 2011).
However, Cerda involved a non-detained woman who alleged a sexual assault by
an officer after she accepted his offer of a car ride. Id. at *1. The rights of convicted
and incarcerated inmates alleging sexual assault flow from a different
constitutional source. Hare, 74 F.3d at 638–39.
11
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Of Inyo, 489 U.S. 593, 599 (1989). The plaintiff must prove the elements of
an unreasonable-seizure claim by a preponderance of the evidence. Avery v.
Boyd, No. 3:13-cv-939–FKB, 2014 WL 2163442, at *5 (S.D. Miss. May 23,
2014). Based on the evidence submitted at trial, the court does not find that
Holmes effected an unreasonable seizure of Malbrough on the evening of
September 19–20, 2015. Again, for the reasons discussed above, the court
does not credit Malbrough’s account of the encounter, finds Holmes’s
testimony more credible, and is persuaded that the SANE-report findings
comport with Holmes’s account. As the evidence indicates that no sexual
assault occurred, no seizure occurred either, and the claim must fail.
*
*
*
For the reasons stated above, the court finds that Holmes owes no
liability to Malbrough related to their encounter. All pending motions are
denied as moot. The court will enter final judgment separately.
Signed on Galveston Island this 22nd day of May, 2023.
_________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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