Dunn v. Davidson et al

Filing 81

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL SHANE DUNN,
TDCJ #1701073,
Plaintiff,
v.
DAKOTA DAVIDSON,
Defendant.

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February 08, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-3767

MEMORANDUM AND ORDER
State inmate Michael Shane Dunn (TDCJ #1701073) has filed a complaint
under 42 U.S.C. § 1983, alleging that Officer Dakota Davidson used excessive force
against him. Davidson has filed an amended motion for summary judgment [Doc.
# 71]. Dunn has filed more than one response [Docs. # 75, # 80]. Dunn has also filed
a motion for appointment of counsel [Doc. # 78] and a motion for a temporary
restraining order [Doc. # 79], alleging that he has been retaliated against for filing this
lawsuit. After considering all of the pleadings, the evidence, and the applicable law,
Davidson’s summary judgment motion will be granted, in part, and denied, in part.
For reasons set forth further below, the Court will grant Dunn’s motion for
appointment of counsel, but will withhold ruling on his motion for a temporary
restraining order until after counsel for the defendant has filed a response.

I.

BACKGROUND
Dunn is currently in custody of the Texas Department of Criminal Justice -

Correctional Institutions Division (“TDCJ”) at the Wynne Unit in Huntsville.1 Dunn
sues Dakota Davidson, who was formerly employed by TDCJ as a correctional officer
at the Wynne Unit.2
Dunn contends that Davidson used excessive force against him without any
justification at the Wynne Unit on August 10, 2014.3 On that date, Davidson was
supervising 4-Row, where Dunn was assigned.4 While conducting an “in and out” to
allow inmates out of their cells to go to the dayroom, Davidson reportedly became
agitated when he noticed Dunn loitering at his cell.5 After Davidson ordered Dunn to
“[g]et off the run,” Dunn began walking towards the dayroom when he stopped and
turned.6 The parties dispute what happened next.

1

Complaint [Doc. # 1], at 4.

2

Id.

3

Supplement to Complaint [Doc. # 1-1], at 9.

4

Id.

5

Id.

6

Id.
2

During the administrative use-of-force investigation, Davidson stated that Dunn
stepped towards him in an aggressive manner with his fists clenched.7 Another officer
who was stationed nearby (Officer Debra Watson) reportedly saw Dunn raise his hand
while arguing with Davidson.8 Believing that he was about to be attacked, Davidson
struck Dunn in the face several times until Dunn dropped to the floor.9 Davidson
contends that Dunn refused to comply with orders to place his hands behind his back
and attempted to get up and push Davidson over the rails in an effort to throw
Davidson off the run.10
Dunn disputes Davidson’s account, alleging that Davidson was the aggressor.11
Dunn claims that Davidson assaulted him for no reason and continued punching him
in the face, head, nose, and mouth even though he was not resisting.12 Davidson did
not stop his assault on Dunn, which lasted over three minutes, until other officers

7

TDCJ Use of Force Report M-04695-08-14 [Doc. # 71-2], at 14 (Written Statement
of Officer Davidson).
8

Id. at 22 (Written Statement of Officer Watson).

9

Id. at 14 (Written Statement of Officer Davidson).

10

Id.

11

Supplement to Complaint [Doc. # 1-1], at 9.

12

Id.
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arrived and yelled for him to stop.13 In support of his claims, Dunn provides several
statements from inmates who heard Davidson calling Dunn names and threatening to
“kick [Dunn’s] ass” before Davidson assaulted him for no reason.14 One of those
offenders (Daniel Burke) contends that he saw Davidson brutally beat Dunn, punching
him “35-40 times” without any provocation or resistance.15
Dunn seeks compensatory and punitive damages under 42 U.S.C. § 1983,
alleging that Davidson used excessive force against him in violation of his Eighth
Amendment rights.16 Davidson moves for summary judgment, arguing that he is
entitled to official and qualified immunity from Dunn’s Eighth Amendment claims.
The Court will first address Davidson’s arguments before turning to the motions filed
by Dunn.

13

Id.

14

Affidavit of James Wesley McCartney, TDCJ #649175 [Doc. # 1-5], at 3; Witness
Statement of Delbert Shane Simmons, TDCJ #760327 [Doc. # 1-5], at 5; Witness Statement
of Fredrick Davis, TDCJ #597029 [Doc. # 1-5], at 7.
15

Statement from Daniel Burke, TDCJ #1426602 [Doc. # 1-5], at 1.

16

Complaint [Doc. # 1], at 4.
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II.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A.

Standard of Review

The defendant’s motion for summary judgment is governed by Rule 56 of the
Federal Rules of Civil Procedure. Under this rule, a reviewing court “shall grant
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 also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is
“material” if its resolution in favor of one party might affect the outcome of the suit
under governing law. Anderson v. Liberty Lobby, Inc., 477 U .S. 242, 248 (1986). An
issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party. Id.
If the movant demonstrates the absence of a genuine issue of material fact, the
burden shifts to the non-movant to provide “specific facts” showing the existence of
a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). In deciding a summary judgment motion, the reviewing court must
“construe all facts and inferences in the light most favorable to the nonmoving party.”
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal citation and quotation
marks omitted). However, the non-movant cannot avoid summary judgment simply
by presenting “conclusory allegations and denials, speculation, improbable inferences,
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unsubstantiated assertions, and legalistic argumentation.” Jones v. Lowndes County,
678 F.3d 344, 348 (5th Cir. 2012) (quoting TIG Ins. Co. v. Sedgwick James of Wash.,
276 F.3d 754, 759 (5th Cir. 2002)); see also Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (a non-movant cannot demonstrate a genuine issue of
material fact with conclusory allegations, unsubstantiated assertions, or only a scintilla
of evidence).
B.

Eleventh Amendment Immunity

Because he was employed by a state agency at the time the use of force
occurred, Davidson contends that he is immune from Dunn’s claims for monetary
damages against him in his official capacity under the Eleventh Amendment to the
United States Constitution.17 Unless expressly waived, the Eleventh Amendment bars
an action in federal court by, inter alia, a citizen of a state against his or her own state,
including a state agency. See Martinez v. Texas Dep’t of Criminal Justice, 300 F.3d
567, 574 (5th Cir. 2002). As a state agency, TDCJ is immune from a suit for money
damages under the Eleventh Amendment. See Talib v. Gilley, 138 F.3d 211, 213 (5th
Cir. 1998). The Eleventh Amendment also bars a recovery of money damages under
42 U.S.C. § 1983 from state employees in their official capacity. See Oliver v. Scott,
17

The Eleventh Amendment provides that “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. CONST. amend XI.
6

276 F.3d 736, 742 (5th Cir. 2001); Aguilar v. Texas Dep’t of Criminal Justice, 160
F.3d 1052, 1054 (5th Cir. 1998).
To the extent that Dunn seeks monetary damages in this case, the Eleventh
Amendment bars his claims against Davidson for actions taken in his official capacity
as a state employee. Accordingly, the Court will grant this portion of Davidson’s
motion and will dismiss Dunn’s request for monetary damages against him in his
official capacity.
C.

Qualified Immunity

Davidson argues further that he is entitled to qualified immunity from Dunn’s
claims against him in his individual capacity. Public officials acting within the scope
of their authority generally are shielded from civil liability by the doctrine of qualified
immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff seeking
to overcome qualified immunity must show: “(1) that the official violated a statutory
or constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).
If the defendant’s actions violated a clearly established constitutional right, the final
step of the analysis asks whether qualified immunity is appropriate, nevertheless,
because the defendant’s “actions were objectively reasonable” in light of “law which

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was clearly established at the time of the disputed action.” Collins v. Ainsworth, 382
F.3d 529, 537 (5th Cir. 2004).
The plaintiff bears the burden of negating a defendant’s claim of qualified
immunity. See Bazan v. Hidalgo Cty., 246 F.3d 481, 489-90 (5th Cir. 2001). To
avoid summary judgment on the defendant’s qualified immunity defense, a plaintiff
must present evidence to raise a fact issue “material to the resolution of the questions
whether the defendants acted in an objectively reasonable manner in view of the
existing law and facts available to them.” Lampkin v. City of Nacogdoches, 7 F.3d
430, 435 (5th Cir. 1993). “Even if a defendant’s conduct actually violates a plaintiff’s
constitutional rights, the defendant is entitled to qualified immunity if the conduct was
objectively reasonable.” Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401, 408 (5th
Cir. 2007) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.
1990)).
D.

Eighth Amendment — Excessive Force

It is clearly established that claims of excessive force in the prison context are
governed by the Eighth Amendment, which prohibits cruel and unusual punishment.
See, e.g., Whitley v. Albers, 475 U.S. 312, 319-21 (1986). In evaluating excessiveforce claims under the Eighth Amendment, the “core judicial inquiry” is “whether
force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7
(1992). As detailed in the Hudson decision, relevant factors to consider in evaluating
an excessive-force claim include: (1) the extent of the injury suffered; (2) the need for
the application of force; (3) the relationship between the need and the amount of force
used; (4) the threat reasonably perceived by the responsible officials; and (5) any
efforts made to temper the severity of a forceful response. See id. at 7 (citation
omitted); see also Cowart v. Erwin, 837 F.3d 444, 452 (5th Cir. 2016) (reciting the
Hudson factors).
During an administrative investigation of the use of force at issue,18 Davidson
admitted striking Dunn several times in the head.19 The medical records reflect that
Dunn sustained a bloody nose and a black eye on the left side of his face.20
Photographs taken of Dunn following the use of force reflect that Dunn’s left eye was
badly swollen and there appears to be blood on his pants.21 Dunn was released to

18

TDCJ Use of Force Report M-04695-08-14 [Doc. # 71-2], at 3-40.

19

Id. at 14 (Written Statement of Officer Davidson).

20

Correctional Managed Care (“CMC”) Use of Force Nursing Note [Doc. # 72-4], at
37; CMC Addendum Note [Doc. # 72-4], at 3.
21

TDCJ Use of Force Report M-04695-08-14 [Doc. # 71-2], at 36-40 (Photographs of
Dunn).
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security following the examination without receiving any treatment.22 At a follow-up
examination, Dunn denied having headaches, double vision, dizziness or weakness,
and he was given Ibuprofen for pain consistent with what was described as a “slowly
resolving black eye.”23 The records show that Dunn suffered an injury that was more
than de minimis.
Although the extent of the injury may supply insight as to the amount of force
applied, the Supreme Court has made clear that a prisoner need not show significant
injury to make an Eighth Amendment claim. See Wilkins v. Gaddy, 559 U.S. 34, 3739 (2010). To determine whether there was an Eighth Amendment violation, the
extent of a prisoner’s injury must be evaluated in light of the remaining Hudson
factors, i.e., need for the application of force, relationship between the need and use
of force, threat perceived by the official, and efforts made to temper the severity of the
response. See Hudson, 503 U.S. at 7. These remaining factors are sharply disputed
by the parties in this case.
Davidson has alleged in an unsworn statement that he only used force to defend
himself in response to Dunn’s aggressive posture.24 The administrative use-of-force
22

CMC Use of Force Nursing Note [Doc. # 72-4], at 37.

23

CMC Clinic Notes [Doc. # 72-4], at 10-11.

24

Davidson has not provided an affidavit in support of the motion for summary
judgment. He points only to his unsworn statement given in connection with the
(continued...)
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investigation conducted following the incident found that the force was justified and
that Davidson acted appropriately because Dunn attempted to assault him.25 A
disciplinary hearing officer reached a similar conclusion, finding Dunn guilty of
violating prison rules by attempting to assault Davidson.26
Dunn adamantly denies that he behaved aggressively or that he attempted to
harm Davidson and maintains that Davidson assaulted him unnecessarily without
making any effort to avoid or temper the use of force.27 In support, Dunn points to the
statement from Daniel Burke, who claims that he saw Davidson attack Dunn without
any provocation,28 and the statements from other offenders who heard Davidson

24

(...continued)
administrative use-of-force inquiry. See TDCJ Use of Force Report M-04695-08-14 [Doc.
# 71-2], at 14 (Written Statement of Officer Davidson).
25

TDCJ Use of Force Report M-04695-08-14 [Doc. # 71-2], at 3.

26

TDCJ Disciplinary Report and Hearing Record Case #20140354628 [Doc. # 72-2],

at 49.
27

Plaintiff’s Affidavit in Opposition to Defendant’s Motion for Summary Judgment
[Doc. # 80], at 1-2; Plaintiff’s Opposition with Brief in Support [Doc. # 80], at 3-4.
28

Statement from Daniel Burke, TDCJ #1426602 [Doc. # 1-5], at 1.
11

threaten to harm Dunn immediately before assaulting him.29 Dunn notes further that
Davidson has a record of assaulting other offenders.30
Based on this record, there are genuine issues of material fact about whether
force was needed and, if so, whether it was excessive to that need in violation of the
Eighth Amendment. Likewise, fact issues preclude a finding that Davidson’s actions
were reasonable under the circumstances such that he is otherwise entitled to qualified
immunity. Accordingly, Davidson’s motion for summary judgment on the issue of
qualified immunity must be denied.
III.

PLAINTIFF’S MOTIONS
A.

Motion for Temporary Restraining Order

Dunn has also filed a motion for a temporary restraining order, alleging that
legal materials and personal items have been confiscated from his cell in retaliation
for filing this suit at the direction of the State Attorney General’s Office, which has

29

Affidavit of James Wesley McCartney, TDCJ #649175 [Doc. # 1-5], at 3; Witness
Statement of Delbert Shane Simmons, TDCJ #760327 [Doc. # 1-5], at 5; Witness Statement
of Fredrick Davis, TDCJ #597029 [Doc. # 1-5], at 7.
30

See Supplement to Complaint [Doc. # 1-1], at 13 (describing a similar assault by
Davidson on inmate Erik Filder, TDCJ #1288766); see also Affidavit of Trinidad Olivarez,
Jr., TDCJ #1634745 [Doc. # 8] (alleging that Davidson assaulted him for no reason). Court
records reflect that Olivarez has also filed suit against Davidson in this district regarding his
allegations of excessive-force. See Olivarez v. Davidson, Civil No. H-16-3310 (S.D. Tex.).
12

interfered with his ability to litigate this case.31 In support, Dunn provides a written
notice bearing the warden’s signature, reporting that Dunn’s property was taken at the
request of an “AG Office” employee shortly before Davidson filed his amended
summary judgment motion in this case.32 Dunn seeks the return of his legal materials,
compensatory damages for the loss of his property, and an order restraining prison
officials from further retaliation.33
Dunn’s allegations of interference by prison officials and by the Attorney
General’s Office are cause for concern. If true, these allegations are actionable under
42 U.S.C. § 1983. In that respect, prisoners clearly have a constitutionally protected
right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 360 (1996); Bounds
v. Smith, 430 U.S. 817 (1977). It is equally clear “that a prison official may not
retaliate against or harass an inmate . . . for complaining . . . about a guard’s
misconduct.” Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).
To date, Davidson has not filed a response to Dunn’s motion for a temporary
restraining order, which includes a certificate of service showing that it was served on

31

Motion for TRO [Doc. # 79], at 1-2.

32

Notice of Confiscation of Written or Printed material During Search for Written
Contraband [Doc. # 79], at 7.
33

Cost of Destroyed Property [Doc. # 79], at 8.
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defendant’s counsel of record.34 So that the Court may consider whether Dunn’s
motion warrants relief, the Clerk’s Office will be instructed to serve another copy of
the motion on defendant’s counsel of record, Assistant Attorney General Jared
Brehmer. The Court will withhold ruling on the motion until after it has received a
response and determined whether additional briefing or a hearing is necessary.
B.

Motion for Appointment of Counsel

Dunn has filed a motion for appointment of counsel, citing the complexity of
this case and interference by prison personnel, who have interfered with his ability to
litigate by confiscating his legal materials, among other things. A district court may
appoint counsel for a civil rights plaintiff if a case presents exceptional circumstances,
such as where an indigent plaintiff has colorable claims that may not receive a
meaningful hearing without counsel. See Naranjo v. Thompson, 809 F.3d 793, 803
(5th Cir. 2015). Although Dunn has done an admirable job representing himself thus
far, the Court concludes that the complexity of the issues and the level of skill
required to present evidence at trial militate in favor of appointing counsel in this case.
See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007). Therefore, the Court will
grant Dunn’s motion for appointment of counsel. The Court will enter a separate

34

Certificate of Service [Doc. # 78], at 2 (stating that Dunn mailed a copy of his motion
for appointment of counsel and his motion for a TRO to Assistant Attorney General Jared
Brehmer on November 16, 2016).
14

order designating counsel of record for Dunn once it locates an attorney who is willing
to take this case.
IV.

CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1.

The motion for summary judgment filed by Defendant Dakota Davidson
[Doc. # 71] is GRANTED on the issue of official immunity and
DENIED on the issue of qualified immunity.

2.

The plaintiff’s motion for appointment of counsel [Doc. # 78] is
GRANTED. The Court will enter a separate order designating counsel
of record for the plaintiff once it locates an attorney who is willing to
take this case.

3.

The Clerk will serve a copy of plaintiff’s motion for a temporary
restraining order [Doc. # 79] on defendant’s counsel of record, Assistant
Attorney General Jared Brehmer, who shall file a response within ten
(10) days of the date of this order.

The Clerk will provide a copy of this order to the parties.
SIGNED at Houston, Texas on February 8, 2017.

______________________________________
NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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