Bangmon v. Lance
Filing
39
MEMORANDUM AND ORDER GRANTING 23 Attorney General's motion seal Martinez reports and exhibits; DENYING AS MOOT 27 Plaintiffs motion for appointment of counsel and 38 motion to withdraw proposed order; DENYING as moot and otherwise DENYING 28 and 37 Plaintiffs discovery motions; DENYING 29 , 30 , 32 Plaintiffs motions for discovery-related sanctions; DENYING 31 Plaintiff's motion seeking emergency relief against officials at the Stiles Unit. Complaint DISMISSED with prejudice. Email sent to Manager of Three Strikes List. (Signed by Judge Jeffrey V Brown) Parties notified.(dwilkerson, 3)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JERRY LENEZ BANGMON,
TDCJ # 01568309,
Plaintiff,
VS.
CAPT. HENRY LANCE,
Defendant.
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October 31, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. 3:18-0019
MEMORANDUM OPINION AND ORDER
Plaintiff Jerry Lenez Bangmon, an inmate in the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”), proceeds pro se and in forma
pauperis.
Plaintiff filed a civil-rights complaint (Dkt. 1) under 42 U.S.C. § 1983
alleging that Defendant Lance used excessive force against him. The Office of the
Attorney General has filed a Martinez report (Dkt. 24) with relevant TDCJ records.
Plaintiff has filed two declarations (Dkt. 25, Dkt. 26) in response to the Martinez report.
The Court is required to scrutinize every complaint filed by a plaintiff proceeding
in forma pauperis and must dismiss the case at any time, in whole or in part, if it
determines that the action is frivolous, malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B). Having reviewed the pleadings, the Martinez report,
Plaintiff’s filings, the applicable law, and all matters of record, the Court concludes that
Plaintiff’s claims must be DISMISSED for the reasons that follow.
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The Attorney General’s motion to seal the Martinez report and its exhibits (Dkt.
23) will be granted because the filings contain Plaintiff’s confidential medical
information. Plaintiff’s renewed motion for appointment of counsel (Dkt. 27), motion
requesting admissions (Dkt. 37), and motion to withdraw a proposed order (Dkt. 38) will
be denied as moot. His motion for production of photographic evidence, video evidence,
and medical records (Dkt. 28) will be denied in part as moot based on the Martinez
report exhibits and otherwise denied. His motions for discovery-related sanctions (Dkt.
29, Dkt. 30, Dkt. 32) will be denied. His recent requests for emergency relief against
officials at the Stiles Unit (Dkt. 31) will be denied.
I.
BACKGROUND
Plaintiff alleges that, on October 10, 2016, Defendant Lance used excessive force
against him in the Darrington Unit’s dining hall. He alleges that Lance, whom he
identifies as the unit’s “kitchen captain,” acted “maliciously and sadistically” by “hitting
the Plaintiff and knocking the his [sic] tray of food out of his hand causing the Plaintiff’s
hand to bang against the steel hand rail” (Dkt. 1, at 5; see id. at 10).1 Plaintiff states that
he is handicapped and was using a walking cane at the time of the incident (id. at 5, 10).
In a separate memorandum, he recounts the incident as follows:
Plaintiff was inside the Darrington Unit inmate dining room standing in line
waiting to be served lunch[.] [T]he main course on the menu was pork
chops. As Plaintiff [was] about to be served Plaintiff requested a pork[-]free
meal . . . [A]n inmate kitchen worker . . . had put the pork chop and rice on
[his] tray . . . Plaintiff had tried to give the tray with [the] pork chop on it
1
Throughout this Memorandum, the Court’s citations to specific pages in the record refer
to the pagination of docket entries on the Court’s electronic case filing (“ECF”) system.
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back to [the] kitchen sergeant and Ms. Ashlaq . . . . Ms. Ashlaq started to
make a scene[.] She then told me that she was not going to . . . afford me a
pork[-]free meal, because I had touched the tray . . . [The] kitchen worker
. . . had informed Ms. Ashlaq that he had made the mistake of putting the
pork chop on my food tray and that I did in fact request a pork[-]free meal
. . . Ashlaq . . . summoned for kitchen captain Mr. Henry Lance. She then
said something to him that instigated and agitated him, he then told me not
to move and as I stood there he unlocked the door and came from behind
the food serving line and deliberately up close in my personal space
towering over me due to him being approx. 6 ft 4 in 280 lbs. and me being
5 ft 8 in and 160 lbs. Mr. Lance had begun to swing on me at which time I
kept trying to avoid him by turning away from him[.] [H]e constantly kept
coming after me[.] He then made physical body contact with me by using
unnecessary excessive force on me by knocking my tray of food out of my
hand causing food to fly everywhere, he caused my hand to hit the steel
hand rail causing pain to my backside of my right hand.
(Dkt. 4, at 2) (emphasis added). Bangmon also alleges that Lance taunted him with
profanity as he escorted Bangmon out of the dining hall (id.).
Bangmon claims that Lance acted “without need or provocation” (Dkt. 1, at 5).
He alleges that the force was “applied out of bad faith to cause Plaintiff harm” and “was
not applied in a good faith effort to maintain or restore discipline” (id. at 10). He
supplies unsworn declarations from several other inmates who witnessed the incident and
state that Lance knocked the food tray from Bangmon’s hand and caused his hand to
strike the steel rail (Dkt. 4, at 18-20, 27).
Bangmon states that he received first aid for his right hand (Dkt. 1, at 5; Dkt. 4, at
2). He attaches medical records from October 10, 2016, reflecting his complaints of pain,
stiffness, and swelling (Dkt. 1, at 26-27; see Dkt. 24-2). The nurse’s notes are generally
consistent with Bangmon’s allegations in this lawsuit, recounting his report that “while in
line to get his lunch tray the tray was pulled away causing him to hit his right hand on the
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guard rail causing injury to right hand” (Dkt. 1, at 26). The records reflect “slight
swelling and pain with movement” in his right hand (id.). Bangmon states that he was
treated with an ice pack and “about 15” ibuprofen tablets (Dkt. 4, at 3; see Dkt. 1, at 2627, 29-30). He supplies a radiology report from October 11, 2016, finding “no acute
fracture or dislocation” (id. at 25). Many of these same records are attached to the
Attorney General’s Martinez report. See Dkt. 24-2, at 4-10.
Plaintiff reported the incident to the Office of the Inspector General (“OIG”) and
filed an administrative grievance. See Dkt. 4, at 10 (in step-one grievance filed on
October 11, 2016, Plaintiff alleges that Lance “maliciously and sadistically assau[l]ted
me out of ill will, spite, or grudge by swinging on me attempting to snatch my food tray
out of my right hand”). When his grievance was denied, he filed a step-two grievance.
At both stages, TDCJ officials determined that the evidence was insufficient to open an
OIG investigation or to substantiate Bangmon’s allegations (Dkt. 4, at 10-17; see Dkt. 241).
Bangmon complains that the Martinez report contains no photographs of his
injured hand and that “corrupt” TDCJ officials have covered up their use of force by
failing to produce video evidence (Dkt. 25, at 1).2
He also claims that his medical
records were “altered” because the “‘chief complaint’ does not state what actually
happened” (Dkt. 26, at 1). Specifically, he insists that, rather than stating that his tray
was “pulled away” causing him to hit his right hand on the guard rail, the nurse’s notes
should have stated that the tray was “smacked out of [his] hand causing [his] hand to hit
2
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The Attorney General has furnished TDCJ’s records retention schedule (Dkt. 24-3).
the guard rail” (id.) (emphasis added).
He alleges that Lance “attacked [him] for
requesting a pork[-]free meal” (Dkt. 25, at 1).
II.
THE PLRA AND PRO SE PLEADINGS
Because the plaintiff is an inmate bringing suit about prison conditions, the Court
is required by the Prison Litigation Reform Act (“PLRA”) to scrutinize the claims and
dismiss the complaint at any time, in whole or in part, if it determines that the complaint
is frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief.
28 U.S.C.
§ 1915A(b); 28 U.S.C. § 1915(e)(2)(B); see 42 U.S.C. § 1997e(c)(1).
In reviewing the pleadings and litigation history, the Court is mindful of the fact
that Plaintiff proceeds pro se. Complaints filed by pro se litigants are entitled to a liberal
construction and, “however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks and citation omitted). Even under this lenient standard a pro se
plaintiff must allege more than “‘labels and conclusions’ or a ‘formulaic recitation of the
elements of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. (citation omitted). Regardless of how well-pleaded the factual allegations may be,
they must demonstrate that the plaintiff is entitled to relief under a valid legal theory. See
Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d 1059,
1061 (5th Cir. 1997).
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A claim is frivolous if it lacks any arguable basis in law or fact. Samford v.
Dretke, 562 F.3d 674, 678 (5th Cir. 2009). It lacks an arguable basis in law “if it is based
on an indisputably meritless legal theory.” Rogers v. Boatright, 709 F.3d 403, 407 (5th
Cir. 2013) (internal quotation marks and citation omitted). It lacks an arguable basis in
fact “if, after providing the plaintiff the opportunity to present additional facts when
necessary, the facts alleged are clearly baseless.” Id. (internal quotation marks and
citation omitted).
A dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim is
governed by the same standard under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Rogers, 709 F.3d at 407. When considering whether the plaintiff has
adequately stated a claim upon which relief can be granted, the court examines whether
the complaint contains “sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Id. Under this standard, the Court “construes the
complaint liberally in favor of the plaintiff,” “takes all facts pleaded in the complaint as
true,” and considers whether “with every doubt resolved on [the plaintiff’s] behalf, the
complaint states any valid claim for relief.” Harrington v. State Farm Fire & Cas. Co.,
563 F.3d 141, 147 (5th Cir. 2009) (internal citations and quotation marks omitted). The
court’s review is limited to “the complaint, any documents attached to the complaint, and
any documents attached to the motion to dismiss that are central to the claim and
referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594
F.3d 383, 387 (5th Cir. 2010). See Walch v. Adjutant General’s Dep’t of Tex., 533 F.3d
289, 294 (5th Cir. 2008) (on a Rule 12(b)(6) motion, documents attached to the briefing
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may be considered by the Court if the documents are sufficiently referenced in the
complaint and no party questions their authenticity (citing 5B Charles Alan Wright &
Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2004))).
III.
ANALYSIS
A.
Eighth Amendment Claim
Bangmon alleges that Lance used excessive force against him when Lance
knocked a food tray out of Bangmon’s hand. When a prisoner claims that a prison
official’s use of force violated the Eighth Amendment’s ban on cruel and unusual
punishments, 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.”
Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312
(1986)). The standard focuses on “the detention facility official’s subjective intent to
punish.” Cowart v. Erwin, 837 F.3d 444, 452 (5th Cir. 2016) (internal quotation marks
and citation omitted). “[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
“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.”
Id. at 9-10 (internal citations and quotation marks omitted). Hudson, applying Whitley,
identified five factors relevant to the Court’s analysis: (1) the extent of injury suffered by
the inmate; (2) the need for application of force; (3) the relationship between that 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. Hudson,
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503 U.S. at 7. Regarding injury to the inmate, the Supreme Court stated, “The absence
of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it.”
Id. “[T]he extent of injury suffered by an inmate is one factor that may suggest ‘whether
the use of force could plausibly have been thought necessary’ in a particular situation, ‘or
instead evinced such wantonness with respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur.’” Id. (quoting Whitley, 475 U.S. at
321).
In Wilkins v. Gaddy, 559 U.S. 34, 38 (2010), the Supreme Court reaffirmed
Hudson’s holding that courts must focus on the nature of force applied, rather than a
certain quantum of injury. The Court again rejected the notion that a plaintiff must show
“significant injury” or “serious injury” to prevail on an Eighth Amendment claim.
“Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately
counts.” Id.; see Preston v. Hicks, 721 F. App’x 342, 344-45 (5th Cir. 2018) (“strain” to
plaintiff’s arm “falls within a de minimus category of force ‘of a character far less intense
and less calculated to produce real physical harm’”) (quoting Gomez v. Chandler, 163
F.3d 921, 924 (5th Cir. 1999)).
Bangmon alleges that Lance knocked the tray from Bangmon’s hand “maliciously
and sadistically” and used “unnecessary excessive force” (Dkt. 1, at 5; Dkt. 4, at 2).
However, taking all of Bangmon’s allegations as true, the only “physical body contact”
between Lance and Bangmon occurred when Lance knocked the tray and therefore
“caused [Bangmon’s] hand to hit the steel hand rail,” which in turn caused swelling and
pain in his right hand. Dkt. 4, at 2; see Dkt. 1, at 5. Bangmon therefore alleges that
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contact with the hand rail, rather than contact with Lance, caused the pain to his hand.
None of his filings allege that Lance used any additional force.
Bangmon fails to state a claim upon which relief can be granted because he alleges
only a de minimus use of physical force, which is “exclude[d] from constitutional
recognition. See Hudson, 503 U.S. at 9-10. He alleges only that Lance “knocked” or
“smacked” a tray from his hand, causing his hand to be injured by its contact with a steel
rail. See, e.g., Dkt. 1, at 5, 10; Dkt. 4, at 2; Dkt. 26, at 1. Unreasonable or unnecessary
force, inadvertence, or good-faith error by a defendant does not suffice to show an Eighth
Amendment violation:
It is obduracy and wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual Punishments
Clause. . . . The infliction of pain in the course of a prison security measure,
therefore, does not amount to cruel and unusual punishment simply because
it may appear in retrospect that the degree of force authorized or applied for
security purposes was unreasonable, and hence unnecessary in the strict
sense.
Whitley, 475 U.S. at 319. See Hudson, 503 U.S. at 9 (“[Not] every malevolent touch by a
prison guard gives rise to a federal cause of action”); Cowart, 837 F.3d at 452 (Hudson
standard focuses on the defendant’s subjective intent to punish).3
Bangmon’s allegations that Lance was verbally abusive and taunted him with profanity
also are insufficient to state an Eighth Amendment claim. See Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997) (“verbal abuse by a prison guard does not give rise to a cause of action
under § 1983” in the absence of sufficient physical injury); see also White v. Gutierrez, 274 F.
App’x 349, at *1 (5th Cir. 2008) (“[v]erbal abuse and threatening language and gestures . . . do
not give rise to a cause of action under § 1983”).
3
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The Court notes that some of Bangmon’s allegations track language in Eighth
Amendment case authorities.
See, e.g., Dkt. 1, at 5 (alleging that Lance acted
“maliciously and sadistically”); id. at 10 (alleging that Lance applied force “out of bad
faith to cause Plaintiff harm” rather than a “good faith effort to maintain or restore
discipline”). These conclusory allegations are insufficient to prevent dismissal of his
complaint. Even if Bangmon could prove all facts he alleges in his filings, including that
Lance roughly knocked the tray from Bangmon’s hand and that Lance’s action was
unnecessary or improper, the facts would not support a determination that Lance violated
the Eighth Amendment under Hudson and the other authorities cited above.4
He
therefore fails to state a claim upon which relief may be granted. See Iqbal, 556 U.S. at
678; Rogers, 709 F.3d at 407.
The Court does not rely on the extent of Bangmon’s injury as a basis for dismissal
of this action because the judicial inquiry is focused on the amount of force used, rather
than the quantum of injury. See Wilkins, 559 U.S. at 38. However, the Court notes that
Bangmon’s allegations of swelling and pain in his right hand, which was treated at the
clinic with ice and painkillers, are consistent with a de minimus injury under controlling
authority. See Wilkins, 559 U.S. at 37-38 (noting that the “absence of serious injury” is
relevant to an Eighth Amendment claim and that an inmate who “complains of a push or
shove that causes no discernable injury almost certainly fails to state a valid excessive
force claim”) (internal quotation marks and citations omitted); Siglar, 112 F.3d at 193
Plaintiff’s discovery requests for video surveillance footage from the incident therefore
are moot. Even if the video footage corroborated the facts as alleged by Plaintiff, he could not
demonstrate an unconstitutional use of excessive force by Lance.
4
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(sore, bruised ear lasting three days was de minimis injury); Mosley v. White, 464 F.
App’x 206, 213 (5th Cir. 2010) (injuries of “momentary blindness, cuts and abrasions in
and around the eye, and an infected eye” were not constitutionally cognizable); Lee v.
Wilson, 237 F. App’x 965, 966 (5th Cir. 2007) (“busted lip” and headaches were de
minimus injuries in context because they were caused by the defendant’s closing of a
portal door which was “a reasonable attempt to maintain order”); Bradshaw v. Unknown
Lieutenant, 48 F. App’x 106, 2002 WL 31017404, at *1 (5th Cir. 2002) (burning eyes
and skin, twitching of eyes, blurred vision, irritation of nose and throat, and mental
anguish as result of chemical spray was de minimis injury).5
Bangmon’s Eighth Amendment claim against Lance will be dismissed with
prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
B.
Request for Emergency Relief
Bangmon recently filed a motion for protective order (Dkt. 31) complaining that
he has been “targeted and harassed” by officials at the Stiles Unit. Specifically, he
alleges that a property room officer has confiscated his property, that law library officers
have deprived him of access to the restroom in order to retaliate against him, that officials
used excessive force against him in March 2019, and that officials delayed his access to
medical care.
Plaintiff’s allegations regarding recent events at the Stiles Unit are irrelevant to his
Eighth Amendment claim against Lance in this civil action, which pertains to an incident
Because the Court does not rely on Bangmon’s injury in reaching its holding, his
discovery requests for clinic photographs and other evidence to corroborate his allegations
regarding swelling and pain in his hand will be denied as moot.
5
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at the Darrington Unit in 2016. To the extent he seeks to file supplemental pleadings
under Federal Rule of Civil Procedure 15(d), the Court denies the request. See Burns v.
Exxon Corp., 158 F.3d 336, 343 (5th Cir. 1998); Lowrey v. Beach, 708 F. App’x 194, 195
(5th Cir. 2018). All of Bangmon’s original claims have been dismissed, the supplemental
allegations are not germane to his original claims, and he could bring a separate lawsuit
to pursue any new claims. Additionally, the alleged events occurred at the Stiles Unit in
Jefferson County, which is in the Beaumont Division of the Eastern District of Texas. 28
U.S.C. § 124(c)(2). Therefore, any claims Plaintiff might bring against officials at the
Stiles Unit would be subject to dismissal for improper venue. See 28 U.S.C. § 1391(b),
§ 1406(a).
The Court in its discretion therefore denies leave to file supplemental
pleadings.
IV.
CONCLUSION
For the reasons stated above the Court ORDERS that:
1.
2.
The Attorney General’s motion to seal the Martinez report and its exhibits
(Dkt. 23) is GRANTED.
3.
Plaintiff’s motion for appointment of counsel (Dkt. 27) and motion to
withdraw proposed order (Dkt. 38) are DENIED as moot.
4.
Plaintiff’s discovery motions (Dkt. 28, Dkt. 37) are DENIED in part as
moot and otherwise DENIED.
5.
Plaintiff’s motions for discovery-related sanctions (Dkt. 29, Dkt. 30, Dkt.
32) are DENIED.
6.
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The complaint (Dkt. 1) filed by Plaintiff Bangmon is DISMISSED with
prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted.
Plaintiff’s motion seeking emergency relief against officials at the Stiles
Unit (Dkt. 31) is DENIED.
The Clerk will provide a copy of this order to the parties and to the Manager
of
the
Three-Strikes
List
for
the
Southern
District
of
Texas
Three_Strikes@txs.uscourts.gov.
SIGNED at Galveston, Texas, on
October 30th
, 2019.
___________________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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