Coker v. Gore et al
Filing
66
MEMORANDUM OPINION AND ORDER denying 65 MOTION Scheduling Order, granting in part and denying in part 54 SEALED MOTION Motion for Summary Judgment (Signed by Judge Jeffrey V Brown) Parties notified.(agould, 3)
Case 3:18-cv-00444 Document 66 Filed on 08/02/22 in TXSD Page 1 of 24
United States District Court
Southern District of Texas
ENTERED
August 02, 2022
IN THE UNITED STATES DISTRICT COURTNathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
══════════════
NO. 3:18-CV-444
══════════════
JAMIE LEE COKER, TDCJ #01782357, PLAINTIFF,
v.
DENNIS C. GORE, ET AL., DEFENDANTS.
═══════════════════════════════════════
MEMORANDUM OPINION AND ORDER
═══════════════════════════════════════
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:
The plaintiff in this civil-rights action, Jamie Lee Coker, is an inmate in the
Texas Department of Criminal Justice – Correctional Institutions Division (TDCJ).
He has sued under 42 U.S.C. § 1983, alleging he was denied adequate medical care
and that a correctional officer used force against him during his hospital discharge.
Dkts. 1, 16, 24. Coker is pro se and has leave to proceed in forma pauperis.
Defendants Melveric Player and B.J. Kimbrough have moved for summary
judgment. Dkt. 54. Coker has responded. Dkt. 59. Having considered the parties’
briefing, the applicable law, and the record, the court grants the motion in part and
denies it in part.
I.
BACKGROUND
The chronology underlying Coker’s claims, as summarized below, is based
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on his verified complaint and supplemental pleadings, as well as TDCJ reports and
Coker’s medical records the parties submitted as part of the summary-judgment
record.1
On February 7, 2017, Coker underwent an abdominal hernia repair surgery
at Hospital Galveston. See Dkt. 1 at 13, 28; Dkt. 16 at 2. Coker was discharged from
the hospital the following day. See Dkt. 16 at 2. TDCJ correctional officer Melveric
Player was assigned to escort Coker from his hospital room to the TDCJ transport
vehicle. See Dkt. 1 at 10. Once Officer Player informed Coker that he was being
discharged, Coker told Player that “something was wrong with [his] surgical
procedure and that he was experiencing extreme pain and was in dire need of Dr.
Gore,” the physician who performed the surgery. Dkt. 16 at 4; see also Dkt. 1 at 10.
Coker alleges that Player “refused to relay that message to [Dr.] Gore” and stated
that Dr. Gore had discharged Coker. Dkt. 16 at 4; Dkt. 1 at 10. Coker was
transported back to the Wayne Scott Unit that day. Dkt. 1 at 10.
On May 2, 2017, Coker underwent an exploratory laparotomy at Hospital
Galveston, due to complications from his previous surgery.2 See Dkt. 1 at 10, 28;
1 The court includes only those factual allegations that are relevant for the purposes
of this Memorandum Opinion and Order.
An “[e]xploratory laparotomy is surgery to open up the belly area (abdomen).
This surgery is done to find the cause of problems (such as belly pain or bleeding) that
testing could not diagnose. It is also used when an abdominal injury needs emergency
medical
care.”
Exploratory
Laparotomy,
Saint
Luke’s,
https://www.saintlukeskc.org/health-library/exploratory-laparotomy (last visited July
25, 2022).
2
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Dkt. 16 at 5, 7–8. During the surgery, a surgical clip was found inside Coker’s
abdomen and was removed. See Dkt. 54-2 at 37. Coker’s incision was closed with
staples. See id. Coker describes his surgical wound as an “open wound measuring
8.5 cm X 2.5 cm X 2.5 cm that would have to heal from the inside out being cleaned
and washed out twice a day for more or less 3 months.” Dkt. 16 at 8.
Around 10:00 p.m. on May 4, two TDCJ officers woke up Coker in his
hospital room and informed him that he was being discharged. Id. at 10. The
officers told Coker that they were pressed for time, and that they would bring his
clothes and property down to the loading area so that he could get dressed down
there. Id. Coker, while handcuffed, was then taken in a wheelchair to the hospital’s
loading area. Id.; see also Dkt. 1 at 10. Coker was handed off to Officer Kimbrough,
who was one of the TDCJ officers assigned to transport Coker back to his TDCJ
unit. See Dkt. 1 at 10; Dkt. 16 at 10. The parties dispute what happened next.
According to Coker, Officer Kimbrough asked him where his clothes were,
and Coker responded that he was “rushed out” of his room and did not have time
to get dressed or collect his property. Dkt. 16 at 10. Officer Kimbrough instructed
the two officers who had brought Coker to the loading area to retrieve Coker’s
clothes and property. Id. Coker states that after the officers left to retrieve his
belongings, he remembered that his medical discharge instructions had also been
left in his hospital room, and Coker asked Officer Kimbrough if he could tell the
two officers to grab the folder containing the instructions. Id. Officer Kimbrough
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questioned why Coker had not taken the folder himself, and Coker replied that he
did not have time to do so. Id. According to Coker, Officer Kimbrough stated that
“Then I guess you won’t f****** get it then will ya!” Id. Coker then “explained about
his operation, the open wound that had to heal from the inside out and the need
for this red folder because it had instructions on how to take care of it.” Id.; see
also Dkt. 1 at 10. Officer Kimbrough allegedly replied, “You’ll get what I give you[,]
you stupid son of a b****![,]” to which Coker retorted, “F*** you[,] ya fat bastard[,]
what are you gonna do[,] beat me up while I’m handcuffed in this wheelchair[?]”
Dkt. 16 at 10. Coker asserts that Officer Kimbrough then “went off,” and tried to
throw him out of his wheelchair by “radically” shaking the chair back and forth and
“running the chair very fast and coming to an abrupt stop, for a total of three
times.” See id. at 11; Dkt. 1 at 10. Officer Kimbrough’s actions of shaking and
running with the wheelchair caused Coker’s surgical wound to tear open and bleed
to the degree that Coker’s “[hospital] gown was soaked with blood.” Dkt. 1 at 10;
Dkt. 16 at 11. Coker asserts that Kimbrough’s actions also injured his neck and
back. Dkt. 16 at 11–12.
Although the defendants have not submitted any affidavits or sworn
statements with their motion for summary judgment, they have attached several
TDCJ reports and documents relating to the incident.3 According to the documents
These documents include (1) a hand-written Inter-Office Communication by
Officer Jacob Gateri (who was present on the day of the incident), dated May 22, 2017
(Dkt. 54-1 at 10); (2) a typed Inter-Office Communication drafted by Shane Lemler, a
major at the Estelle Unit, dated May 22, 2017 (id. at 11); and (3) a hand-written Inter3
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the defendants submitted, after Coker was brought down to the loading area,
Officer Kimbrough spoke with him about “how to behave” on the transport back to
the TDCJ unit. See Dkt. 54-1 at 10. Coker asked Kimbrough for his discharge
papers, but Kimbrough informed Coker that, per TDCJ policy, he was not allowed
to carry his discharge papers and instead they would be “passed on to the receiving
nurse by staff.” Id. at 17. Coker then started to curse at Officer Kimbrough. Id.
Kimbrough denies touching Coker. Id. Officer Kimbrough reported that after
noticing Coker had blood stains on his gown, he called nursing staff and Coker’s
wound was redressed.4 Id. Officer Jacob Gateri, who was present at the loading
area, reported that he did not see Officer Kimbrough shake Coker’s wheelchair. Id.
at 10–11.
Coker was then transported to the Estelle Unit. Dkt. 1 at 10.
Office Communication dated May 11, 2017, by Officer Kimbrough (id. at 17).
4
There appears to be some dispute about whether Coker’s wound was redressed
by a nurse while Coker was still at the hospital. In an Inter-Office Communication about
the incident, Lemler reported:
Hospital Galveston Nurse Bryan Hicks . . . states that he reviewed [Coker]’s
chart to try and determine the nurses that redressed [Coker]’s wound, but
he was unable to do so. I did review the clinic notes in medical, but the only
notes I could find have to do with a dressing change being completed at the
Estelle Unit. None of the notes from Galveston dealt with having to redress
a wound.
Dkt. 54-1 at 11; see also id. at 12, 15. However, both Coker’s verified pleadings and the
Inter-Office Communication completed by Officer Kimbrough state that Coker’s wound
was redressed by a nurse while Coker was still at the hospital. See id. at 17; see also Dkt.
1 at 10; Dkt. 16 at 12.
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In December 2018, Coker filed a civil-rights complaint under 42 U.S.C. §
1983, alleging that the following fourteen individuals and entities violated his
constitutional rights: (1) Dr. Dennis C. Gore; (2) Bryan Collier, TDCJ Executive
Director; (3) Lorie Davis, TDCJ Director; (4) Olugbenga Ojo, Hospital
Administrator; (5) Don C. Bosco, Warden at Hospital Galveston; (6) Melverick
Player, correctional officer; (7) FNU Kimbrough, correctional officer; (8) “John
Doe (Officer Kimbrough’s partner)”; (9) Donald E. Muntz, Warden at the Wayne
Scott Unit; (10) Dr. Marcus E. Hinkle; (11) Norris D. Jackson, Warden at the Beto
Unit; (12) Cheryld Egan, P.A.; (13) the University of Texas Medical Branch
(UTMB); and (14) TDCJ. In particular, Coker alleges that Officer Player was
deliberately indifferent to his medical needs when he refused to tell Dr. Gore that
Coker was in extreme pain and that he thought something had gone wrong with
his surgery. Coker asserts that Officer Kimbrough used excessive force against him
when he tried to throw him out of his wheelchair by shaking the chair violently and
running it back and forth several times, causing Coker’s surgical wound to reopen.
He also brings a bystander liability claim against Officer John Doe, whom he
identifies as Officer Kimbrough’s partner on the day of the incident.
As relief, Coker seeks: (1) a declaration stating that his constitutional rights
were violated; (2) compensatory damages in the amount of $250,000.00 for “past,
present, and future pain, suffering and discomfort, mental anguish, and
physi[]ological harm” from the defendants; (3) punitive damages in the amount of
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$50,000.00 from Officer Kimbrough and $25,000.00 from Officer Kimbrough’s
partner; (4) exemplary damages in the amount of $200,000.00 from all of the
defendants, jointly and severally; and (5) costs. Id. at 13–14. At the court’s request,
Coker has filed two supplemental statements of his claims. See Dkts. 16, 24.
After screening Coker’s pleadings as required by the Prison Litigation
Reform Act (PLRA), 28 U.S.C. §§ 1915A, 1915(e)(2)(B), the court dismissed the
claims against Dr. Gore, Dr. Hinkle, Collier, Davis, Ojo, Bosco, Muntz, Jackson,
TDCJ, and UTMB for failure to state a claim on which relief may be granted. Dkt.
25. The court severed and transferred Coker’s claim against Egan to the Eastern
District of Texas, Tyler Division. Dkt. 26. The court then ordered Player and
Kimbrough to answer Coker’s claims against them. Dkt. 27.
Player and Kimbrough have moved for summary judgment, arguing that the
claim against Player was not properly exhausted, that the claims against both
defendants are without merit, and that the defendants are entitled to qualified
immunity. Dkt. 54. Coker has responded. Dkt. 59.
II.
STANDARDS OF REVIEW
A.
Motion for Summary Judgment Under FRCP 56
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of
summary judgment “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. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v.
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Anthony, 710 F.3d 587, 594 (5th Cir. 2013). The initial burden falls on the movant
to identify “those portions of the record it believes demonstrate the absence of a
genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349
(5th Cir. 2005). The movant “may meet its burden by simply ‘pointing to an
absence of evidence to support the nonmoving party’s case.’” Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 544 (5th Cir. 2005) (quoting Armstrong v. Am.
Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003)).
Once the movant presents a properly supported motion for summary
judgment, the burden shifts to the non-movant to show with significant probative
evidence the existence of a genuine issue of material fact. Hamilton v. Segue
Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). The non-moving party must
present specific facts which show “the existence of a ‘genuine’ issue concerning
every essential component of its case.” Firman v. Life Ins. Co. of N. Am., 684 F.3d
533, 538 (5th Cir. 2012) (per curiam) (quoting Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)). “Conclusory allegations” or
“unsubstantiated assertions” do not meet the non-movant’s burden. Delta & Pine
Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008).
A reviewing court “must view the evidence introduced and all factual
inferences from the evidence in the light most favorable to the party opposing
summary judgment . . . .” Smith v. Reg’l Trans. Auth., 827 F.3d 412, 417 (5th Cir.
2016) (quoting Hightower v. Tex. Hosp. Ass’n, 65 F.3d 443, 447 (5th Cir. 1995)).
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“It is not the court’s role on summary judgment to weigh competing evidence or
make credibility determinations.” Grogan v. Kumar, 873 F.3d 273, 279 (5th Cir.
2017). Factual controversies, however, are resolved in favor of the non-movant
only when “both parties have submitted evidence of contradictory facts.”
Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (quotation omitted). Without
proof, a reviewing court will not assume that the non-movant could or would prove
the necessary facts. See McCallum Highlands, Ltd. v. Wash. Cap. Dus, Inc., 66
F.3d 89, 92 (5th Cir. 1995). Further, a court need not comb the record to find
evidence that will permit a non-movant to survive summary judgment. See Adams
v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006) (citing Ragas
v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).
Coker proceeds pro se. Courts construe pleadings filed by pro se litigants
under a less stringent standard of review. Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam). Under this standard, “[a] document filed pro se is ‘to be
liberally construed,’ . . . and ‘a pro se complaint, 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) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). However, “the notice afforded by the Rules of Civil Procedure and
the local rules” is considered “sufficient” to advise a pro se party of his burden in
opposing a summary-judgment motion. Martin v. Harrison Cnty. Jail, 975 F.2d
192, 193 (5th Cir. 1992). Even a pro se plaintiff must specifically refer to evidence
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in the summary-judgment record to place that evidence properly before the court.
Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 & n.9 (5th Cir. 2016); see also
E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (“Despite our general
willingness to construe pro se filings liberally, we still require pro se parties to
fundamentally abide by the rules that govern the federal courts. Pro se litigants
must properly . . . present summary judgment evidence[.]”) (cleaned up).
B.
Qualified Immunity
The defendants have invoked the defense of qualified immunity, which
protects government officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Qualified immunity “protects ‘all but the plainly incompetent or
those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
“A public official is entitled to qualified immunity unless the plaintiff
demonstrates (1) the defendant violated the plaintiff’s constitutional rights and (2)
the defendant’s actions were objectively unreasonable in light of clearly established
law at the time of the violation.” Waganfeald v. Gusman, 674 F.3d 475, 483 (5th
Cir. 2012) (quoting Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011)). The court
may consider the prongs in any order. Whitley v. Hanna, 726 F.3d 631, 638 (5th
Cir. 2013).
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“[Q]ualified immunity alters the usual summary judgment burden of proof,
shifting it to the plaintiff to show that the defense is not available.” Cass v. City of
Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (citation and internal quotation marks
omitted). After an official has asserted the defense of qualified immunity, the
burden is on the plaintiff to “rebut the defense by establishing that the official’s
allegedly wrongful conduct violated clearly established law and that genuine issues
of material fact exist regarding the reasonableness of the official’s conduct.” Gates
v. Tex. Dep’t of Protective & Regul. Servs., 537 F.3d 404, 419 (5th Cir. 2008).
III.
ANALYSIS
A.
Exhaustion of Administrative Remedies for the Claim
Against Player
Coker alleges that Player denied him adequate medical care when he refused
to tell Coker’s surgeon, Dr. Gore, that Coker was in “extreme pain,” that something
was wrong with his surgical procedure, and that he was “in dire need” of Dr. Gore.
The defendants argue that Player is entitled to summary judgment because Coker
failed to properly exhaust administrative remedies before filing suit. See Dkt. 54 at
5. Coker appears to argue that he exhausted this claim in Grievance No.
2017090449. See Dkt. 59 at 9.
Administrative exhaustion is mandatory under the PLRA; an inmate
bringing an action regarding prison conditions under 42 U.S.C. § 1983 or other
federal law must first exhaust all administrative remedies “as are available” before
seeking relief in federal court. 42 U.S.C. § 1997e(a); see Ross v. Blake, 578 U.S.
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632, 641 (2016); Wilson v. Epps, 776 F.3d 296, 301 (5th Cir. 2015). Thus, a prisoner
must exhaust available administrative remedies in accordance with all procedural
rules, including deadlines, as a precondition to bringing suit. Woodford v. Ngo,
548 U.S. 81, 90–94 (2006).
TDCJ has a formal two-step administrative-grievance process that is well
established. See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). A Step 1
grievance, which is reviewed by officials at the inmate’s assigned facility, must be
filed within fifteen days of the alleged incident or challenged event. See id. Once an
inmate receives a response to his Step 1 grievance, he then has ten days to file a
Step 2 grievance to appeal an unfavorable result at the state level.5 See id.; see also
Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) (outlining the two-step
procedure). A Texas prisoner must pursue a grievance through both steps to satisfy
the exhaustion requirement. See Johnson, 385 F.3d at 515.
The Fifth Circuit strictly enforces the exhaustion requirement found in the
PLRA. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010). Mere substantial
The inmate-grievance procedure is also set out in the TDCJ Offender Orientation
Handbook. The handbook, which is available on the TDCJ website, confirms that an
inmate has fifteen days from the date of the alleged incident to file a Step 1 grievance, and
that if the inmate is not satisfied with the Step 1 response, the inmate may appeal the Step
1 by filing a Step 2 grievance. See Texas Department of Criminal Justice, Offender
Orientation
Handbook
73–74
(Feb.
2017
version),
available
at
https://www.tdcj.texas.gov/documents/Offender_Orientation_Handbook_English.pdf
(last visited July 25, 2022). Although the TDCJ handbook was not made a part of the
record, the court can take judicial notice of the handbook listed on the TDCJ website. See
Huskey v. Jones, 860 F. App’x 322, 325 n.3 (5th Cir. 2021) (per curiam) (explaining that
the court “may take judicial notice of grievance procedures listed on a state’s website.”)
(citing Cantwell v. Sterling, 788 F.3d 507, 509 (5th Cir. 2015) (per curiam)).
5
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compliance with the TDCJ grievance process is not enough to exhaust remedies as
required by § 1997e(a). Id. (“Under our strict approach, we have found that mere
‘substantial compliance’ with administrative remedy procedures does not satisfy
exhaustion[.]”); Taylor v. Burns, 371 F. App’x 479, 481 (5th Cir. 2010) (per curiam)
(“The expiration of the time for the prison to respond . . . result[s] in exhaustion
only if [the prisoner] . . . timely pursue[s] his grievance at each step of the
process.”).
The Fifth Circuit has also held that grievances must contain sufficient detail
to give prison officials fair notice and an opportunity to address the problem that
will later form the basis of a lawsuit. Johnson, 385 F.3d at 516–17. The amount of
detail necessary will likely depend upon the type of problem of which the inmate is
complaining. Id. at 517. “If an inmate claims that a guard acted improperly, we can
assume that the administrators responding to the grievance would want to know—
and a prisoner could ordinarily be expected to provide—details regarding who was
involved and when the incident occurred, or at least other available information
about the incident that would permit an investigation of the matter.” Id.
(explaining that a complaint about a correctional officer would identify a specific
person, whereas a complaint about a prison condition, such as vermin in a cell or
that commissary costs are too high, might not identify any individual).
Coker identifies Grievance No. 2017090449 as exhausting his claim against
Player. The majority of the Step 1 for Grievance No. 2017090449 concerns Coker’s
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dissatisfaction about not receiving any pain medication after his February 7, 2017,
surgery, having to ride the bus back to the unit in uncomfortable conditions, and
being in continued pain once back at the unit. See Dkt. 54-1 at 25–26. At the
conclusion of the grievance form, when asked to provide the action requested to
resolve the complaint, Coker requested: “Stop the neglect[,] treat us like humans
not cattle [and] answer the call of help when someone asks[.] [C]lean[,] sterilize
more seating[,] less overcrowding[, and] keep it clean like a hospital [is] supposed
to be.” Id. at 26. As pointed out by the defendants, Coker does not identify Player
by name in this Step 1. The only portion of the Step 1 grievance that can be
construed to concern Player is the following:
My grievance is that I was discharged and still had problems that
needed attention from a doctor[.] I repeated several times that I
needed the doctor and was told by the officer the doctor has
discharged you[,] get your stuff together you are going back to your
unit. The problem I had was that I was bloated from eating and had
not used the bathroom #2 since the 5th[.] I was admitted on the 6th[,]
operated on the 7th[,] discharged on the 8th[.] I expressed the whole
time of this problem even right before the operation I told the nurse I
haven’t used the restroom [and] she said don’t worry about it! I said I
wasn’t leaving until I talked to the doctor[.] The officer said then I’ll
have you removed by force if I have to.
Id. at 25.
Although “a plaintiff is not always required to identify a defendant by name
in his grievance, he must provide information sufficient for prison officials to
investigate his allegations.” McCoy v. Norwood, No. 7:16-cv-131-O, 2018 WL
11269229, at *3 (N.D. Tex. Nov. 9, 2018).
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Even
assuming
that
the
above
Case 3:18-cv-00444 Document 66 Filed on 08/02/22 in TXSD Page 15 of 24
description by Coker in his Step 1 references an issue he had with Player, the
summary-judgment evidence reflects that Coker did not follow up on his alleged
issue with Player in his Step 2 grievance. Instead, the Step 2 grievance solely
concerns Coker’s medical issues since his hernia surgery. See Dkt. 54-1 at 23–24.
There is no mention of Player—either by name or by his alleged actions that form
the basis of Coker’s complaint—in the Step 2 grievance.
Accordingly, Coker has not exhausted his administrative remedies because
he did not complete both a Step 1 and Step 2 grievance regarding Player’s alleged
conduct that forms the basis of his complaint, as required under TDCJ’s grievance
process. See, e.g., Bryant v. Strong, No. Civ A H-11-1586, 2013 WL 504893, at *3
(S.D. Tex. Feb. 7, 2013) (holding that plaintiff did not exhaust his claims against
TDCJ officers when plaintiff identified them by name in only his Step 2, and not
his Step 1 grievance); Whiting v. Lambert, No. 2:16-cv-261-Z-BR, 2020 WL
760409, at *7 (N.D. Tex. Jan. 23, 2020) (“Although the Court does not require that
plaintiff specifically mention all defendants by name, [plaintiff] must specifically
address each incident complained of in both steps of a grievance process to have
properly exhausted his claims.”), R&R adopted, 2020 WL 759420 (N.D. Tex. Feb.
14, 2020).
Coker’s deliberate-indifference claim against Player must be dismissed for
failure to exhaust. This claim is dismissed with prejudice. See Donahue v. Wilder,
824 F. App’x 261, 267 (5th Cir. 2020) (per curiam) (“Failure to exhaust ‘usually
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results in a dismissal without prejudice,’ but with prejudice dismissal is warranted
when it is ‘too late’ for the plaintiff to exhaust.”) (quoting Dawson v. Farms, LLC
v. Farm Serv. Agency, 504 F.3d 592, 607 (5th Cir. 2007)). Because Coker’s claim
against Player has been dismissed on exhaustion grounds, the court need not
address Player’s arguments regarding qualified immunity and the merits of Coker’s
deliberate-indifference claim.
B.
Use-of-Force Claim Against Kimbrough
Coker alleges that Officer Kimbrough used excessive force against him when
he tried to throw him out of his wheelchair by violently shaking the chair back and
forth and “running the chair very fast and coming to an abrupt stop, for a total of
three times,” which caused Coker’s surgical wound to split open, soaking his
hospital gown full of blood and requiring that his wound be redressed.
“[T]he settled rule [is] that ‘the unnecessary and wanton infliction of pain …
constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’”
Payne v. Parnell, 246 F. App’x 884, 886 (5th Cir. 2007) (per curiam) (quoting
Hudson v. McMillian, 503 U.S. 1, 5 (1992)). When a prisoner claims that a prison
official’s use of force violates the Eighth Amendment’s ban on cruel and unusual
punishment, the “core judicial inquiry” is “whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312 (1986)).
When determining “whether unnecessary and wanton infliction of pain was used,”
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the court looks to five relevant factors: (1) the extent of the injury suffered by the
inmate; (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. See Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998)). Although a
de minimis injury is not cognizable, “there is no categorical requirement that the
physical injury be significant, serious, or more than minor.” Gomez v. Chandler,
163 F.3d 921, 924 (5th Cir. 1999). Significantly, “[t]he amount of injury necessary
to satisfy [the] requirement of ‘some injury’ and establish a constitutional violation
is directly related to the amount of force that is constitutionally permissible under
the circumstances.” Payne, 246 F. App’x at 888 (quoting Ikerd v. Blair, 101 F.3d
430, 434 (5th Cir. 1996)).
In support of their motion for summary judgment on the excessive-force
claim, the defendants make the following brief argument:
No evidence demonstrates force was applied on Coker on May
4, 2017. Ex. A at 309–327. A search for incident reports or use[-]of[-]
force records related to the alleged May 4 incident revealed nothing.
Kimbrough did not apply force on Coker, and so no investigations
were necessary. Ex. A at 310, 312, 316, 323. Nothing in Coker’s medical
records shows he suffered an injury because of Kimbrough’s conduct.
See Ex. B. With no evidence to support his allegations about
Kimbrough’s use of force, Coker’s excessive force claim against
Kimbrough should be dismissed.
Dkt. 54 at 7. The defendants claim that there is no evidence to support an excessive-
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force claim,6 but Coker’s verified complaint (Dkt. 1) and more definite statement
(Dkt. 16)—in which he swore under penalty of perjury that the allegations
contained therein were true and correct—are competent summary-judgment
evidence. See Hart v. Hairston, 343 F.3d 762, 764 n.1 (5th Cir. 2003) (finding that
inmate’s declaration which was sworn to under penalty of perjury was competent
summary-judgment evidence) (citation omitted); Grogan, 873 F.3d at 279
(“Declarations and verified pleadings that are dated and made on penalty of
perjury . . . constitute ‘adequate summary judgment evidence.’”) (quoting Stewart
v. Guzman, 555 F. App’x 425, 431 (5th Cir. 2014) (per curiam)); Cantwell v.
Sterling, 788 F.3d 507, 509 n.1 (5th Cir. 2015) (“The ordinary rules of civil
procedure are applicable in prisoner suits. [The plaintiff] offered his testimony
under penalty of perjury and declared it to be true and correct, so it must be
credited on summary judgment.”) (citations omitted). Based on the evidence, the
record reflects a genuine factual dispute on each of the five factors.
First, the record reflects a genuine issue as to the extent of Coker’s injuries.
Coker alleges that his surgical wound was split open and had to be redressed by
nurses at the loading area, and that he suffered injuries to his neck and back. His
allegations in this suit are consistent with his statements in the inter-office
communications and his grievance, both of which were made within days of the
The defendants’ assertion that no incident reports exist is obviously incorrect.
Submitted as part of their own summary-judgment record are several reports created in
response to Coker’s allegation that Officer Kimbrough applied force to him while he was
in a wheelchair. See, e.g., Dkt. 54-1 at 10, 11, 17.
6
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alleged incident. The record therefore reflects a genuine issue of fact. In any event,
Officer Kimbrough is not entitled to summary judgment on this ground because
the court must focus on the amount of force used, rather than the amount of injury.
See Wilkins v. Gaddy, 559 U.S. 34, 38–39 (2010).
Next, the record reflects a genuine issue regarding whether force was
necessary at the time Officer Kimbrough allegedly used it, the relationship between
the need and the amount of force used, whether Kimbrough reasonably perceived
a threat, and whether Kimbrough tempered the force. In his pleadings, Coker
alleges that Officer Kimbrough was aware that Coker was recovering from surgery,
had an incision that needed to heal, and was sitting in a wheelchair while
handcuffed. Coker further alleges that Kimbrough, without apparent justification,
tried to throw him out of his wheelchair by violently shaking the chair back and
forth and running with the chair and then coming to an abrupt stop several times,
ultimately causing Coker’s incision to bleed and requiring its redressing by nurses
at Hospital Galveston. Construing the facts in Coker’s favor, he has raised a
genuine dispute of material fact as to an Eighth Amendment excessive-force claim,
as well as a factual dispute regarding his purported injuries. Officer Kimbrough is
therefore not entitled to summary judgment on the question of whether he violated
Coker’s Eighth Amendment rights.
Because the defendants have invoked the defense of qualified immunity, the
court must also determine whether Officer Kimbrough’s conduct was objectively
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reasonable in light of clearly established law. Clearly established law holds that a
prison official violates the Eighth Amendment when the official applies force
“maliciously and sadistically to cause harm” or uses force that is “wanton and
unnecessary” because it is beyond that reasonably required to maintain or restore
discipline. See Hudson, 503 U.S. at 6–7; Payne, 246 F. App’x at 886. If Officer
Kimbrough used physical force maliciously and sadistically to cause Coker harm
or force beyond that reasonably required to maintain or restore discipline, then a
reasonable officer in Kimbrough’s situation would have known that his actions
violated clearly established law. Therefore, genuine issues remain as to whether
Kimbrough is entitled to qualified immunity. The defendants’ motion for summary
judgment on the excessive-force claim against Officer Kimbrough will be denied.
C.
Remaining Defendant
Coker also named “John Doe (Officer Kimbrough’s Partner)” as a defendant.
See Dkt. 1 at 5. Aside from alleging that Officer Doe violated his Eighth Amendment
rights, the complaint did not contain any factual allegations against Officer Doe.
See id. In response to the court’s request to describe Officer Doe’s personal
involvement in the constitutional violations that form the basis of his complaint,
Coker replied:
This Officer John Doe was informed of Plaintiff’s operation, knew
about Plaintiff’s open wound, know about the substantial risk of harm
and failed to respond reasonably to protect him when this excessive
force was used that was meant to cause harm rather than keep order
and was maliciously and sadistically applied knowing that the Plaintiff
was no threat to anyone with this open wound, handcuffed in a
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wheelchair in his gown and socks.
Dkt. 16 at 12. Construing the pleadings liberally, the court understands Coker to
bring a bystander-liability claim against Officer Doe.
“[A]n officer may be liable under § 1983 under a theory of bystander liability
where the officer (1) knows that a fellow officer is violating an individual’s
constitutional rights; (2) has a reasonable opportunity to prevent the harm; and
(3) chooses not to act.” Hanna, 726 F.3d at 646 (citation and internal quotation
marks omitted). “Mere presence at the scene of the alleged use of force, without
more, does not give rise to bystander liability.” Vasquez v. Chacon, No. CIV A 3:08cv-2406-MBH, 2009 WL 2169017, at *6 (N.D. Tex. July 20, 2009), aff’d, 390 F.
App’x (5th Cir. 2010); see also Sanchez v. Griffis, 569 F. Supp. 3d 496, 517 (W.D.
Tex. 2021) (citing Hanna, 726 F.3d at 646–47). “An officer must have had a
reasonable opportunity to realize the excessive nature of the force and a realistic
opportunity to stop it in order for the duty to intervene arise.” Vasquez, 2009 WL
2169017, at *6 (citations omitted). “In evaluating whether an officer took
reasonable measures to protect a[n] [inmate], courts have considered both the
duration of the alleged use of excessive force by other officers and the location of
the [inmate] relative to the officer against which a claimant seeks bystander
liability.” Id. (citations omitted). Further, “[i]n resolving whether a plaintiff has
sufficiently alleged a bystander liability claim [courts] also consider whether an
officer ‘acquiesced[d] in’ the alleged constitutional violation.” Hanna, 726 F.3d
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631, 647 (5th Cir. 2013) (quoting Hale v. Townley, 45 F.3d 914, 919 (5th Cir.
1995)).
Coker’s factual allegations as to Officer Doe are scant. Though Coker has
alleged that Officer Doe was present when Officer Kimbrough allegedly assaulted
him, he does not allege facts that indicate where Officer Doe was in relation to
Officer Kimbrough or that Officer Doe had foreknowledge that the attack would
happen. Nor does Coker allege the duration of Officer Kimbrough’s assault—
although, from his verified pleadings, it appears that the assault was unexpected
and did not last very long. Because Coker has failed to allege that Officer Doe had
an opportunity to prevent the use of force or that Officer Doe had sufficient time
to intervene in the assault, his bystander-liability claim is dismissed under 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state claim on which relief may be granted.7
See Drumm v. Valdez, No. 3:16-cv-3482-M-BH, 2019 WL 7494443, at *7 (N.D.
Tex. Dec. 3, 2019) (dismissing plaintiff’s bystander-liability claim under §
1915(e)(2)(B) when plaintiff did not allege facts indicating where the defendant
was standing during the assault or the duration of the assault, and thereby failing
to allege how the defendant could have prevented the use of force or had sufficient
Under 28 U.S.C. § 1915(e)(2)(B)(ii), “the court shall dismiss the case at any time
if the court determines that . . . the action . . . is frivolous . . . or fails to state a claim on
which relief may be granted.” Although the court did not order service on this defendant,
the court observes that it does not appear that Coker has exhausted his bystander-liability
claim against Officer John Doe. In his Step 1 and Step 2 grievances about Officer
Kimbrough’s alleged use of force on May 4, 2017, Coker makes no mention of the John
Doe officer or any allegations concerning a TDCJ officer who was present but did not help
Coker. See Dkt. 1 at 31–32.
7
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time to intervene in the use of force), R&R adopted, 2020 WL 85163 (N.D. Tex.
Jan. 6, 2020); Skinner v. Gautreaux, No. CV 20-595-SDD-SDJ, 2022 WL 884915,
at *8 (M.D. La. Mar. 24, 2022) (dismissing bystander-liability claim when plaintiff
failed to allege that defendant had any knowledge of impending attack or the length
of time of the attack and therefore finding that plaintiff failed to allege that
defendant had an opportunity to intervene).
D.
Appointment of Counsel
Coker has previously moved for appointment of counsel. See Dkt. 61. In its
order denying Coker’s request for counsel, the court stated that it would revisit the
issue on its own motion as necessary. Under Federal Rule of Civil Procedure 54(b),
a court is free to reconsider its earlier orders and decisions “for any reason it deems
sufficient . . . .” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017).
A district court may appoint counsel for an indigent inmate where a case
presents exceptional circumstances, such as a trial that “will consist in large part
of conflicting testimony so as to require skill in the presentation of evidence and in
cross examination.” Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)
(citations omitted); see also Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir.
2015). Because the assistance of trained counsel will be necessary for purposes of
a trial and any trial preparation, the court reconsiders its earlier order denying
Coker’s request for counsel and will now grant Coker’s motion for appointment of
counsel for further proceedings in this case. The court will temporarily stay this
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case until a volunteer attorney can be located and appointed as Coker’s counsel of
record. Coker’s motion for a scheduling order (Dkt. 65) is denied at this time, as
the court will issue a scheduling order once counsel is appointed.
Finally, consistent with the court’s order dated February 22, 2022, (Dkt. 62),
the Clerk is instructed to unseal the documents located at Dkt. 54 and Dkt. 54-1.
Dkt. 54-2 is to remain sealed.
***
For the reasons stated above, the court ORDERS as follows:
1.
The motion for summary judgment filed by B.J Kimbrough and Melveric
Player (Dkt. 54) is GRANTED in part and DENIED in part.
2.
Coker’s claim against Melveric Player is DISMISSED with prejudice.
3.
Coker’s bystander-liability claim against Officer John Doe is
DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state claim on which relief may be granted.
4.
Coker’s motion for a scheduling order (Dkt. 65) is DENIED at this time.
5.
The Clerk is INSTRUCTED to unseal the documents located at Dkt. 54
and Dkt. 54-1. Dkt. 54-2 is to remain sealed.
6.
This case is STAYED until the court locates a volunteer attorney to
represent Coker. Once counsel is located, the court will re-open this case
and issue a separate order for a status conference.
The clerk will provide a copy of this order to the parties.
Signed on Galveston Island this ____
2nd day of
August
, 2022.
______________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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