Bourne v. Gunnels et al
Filing
61
MEMORANDUM OPINION AND ORDER granting 56 MOTION for Summary Judgment with Brief in Support (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
June 07, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL BOURNE,
TDCJ #1567258,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
LT. GUNNELS, et al.,
Defendants.
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-0515
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Bourne has filed a Prisoner's Civil Rights
Complaint
under
42
U.S.C.
1983
§
("Complaint")
(Docket
Entry
No. 1), alleging that excessive force was used against him during
his
confinement
("TDCJ").
Summary
in
the
Texas
Department
Pending before the court
Judgment
(Docket Entry No.
with
56),
Brief
in
is
Support
of
Criminal
Defendants'
Justice
Motion
("Defendants'
for
Motion")
to which Bourne has filed a Response in
Opposition ("Plaintiff's Response")
(Docket Entry No. 60).
After
considering all of the pleadings, the exhibits, and the applicable
law, the court will grant the Defendants' Motion and will dismiss
this case for the reasons explained below.
I .
Background
Bourne is presently incarcerated at the French Robertson Unit
in Abilene. 1
The Complaint stems from a use of force that occurred
at the Estelle High Security Unit in Huntsville on November 21,
2014. 2
At that time,
TDCJ as
correctional
the following defendants were employed by
officers
at
the
( 1) Lieutenant Michael Gunnels;
Estelle High Security Unit:
or
supervisory
officials
( 2)
Sergeant Carlos Applewhite; (3) Officer Anthony Howard; (4) Officer
Ronald Weaver;
Price;
(5)
Officer Robert LeBlanc;
(6)
Officer Ernest
( 7) Officer Aj isefini; and ( 8) Officer Sascha Ford. 3
Bourne's
allegations
summary of the
arguments
are
summarized
raised in
below,
Defendants'
followed
by
a
Motion and the
evidence presented to rebut Bourne's claims.
A.
Bourne's
~legations
Bourne contends that on November 21, 2014, he was standing at
his cell door, asking to speak with Captain Norman about some money
that was improperly taken from Bourne's inmate trust fund account. 4
As he did so, Bourne concedes that he had wrapped a towel and sheet
around the food-tray slot of his cell door, jamming it in violation
1
Notice of Change of Address, Docket Entry No. 59, p. 1.
2
Complaint, Docket Entry No. 1, p. 3.
3
Id. at 3;
4
More Definite Statement, Docket Entry No. 9, p. 2.
[Supplemental] Complaint, Docket Entry No. 28, pp.
1-2.
-2-
of prison rules so that it would not close. 5
made
any
verbal
threats
or
threatening
Bourne denies that he
moves.
6
Without
any
provocation on his part, Bourne claims that he was sprayed with an
entire can of chemical agent and assaulted by several officers. 7
Bourne describes the assault as
~brutal." 8
Bourne contends
that Officer Howard punched him repeatedly in the face and that he
also slammed his face several times into the concrete floor while
gouging him in the eyes.
9
Officer Weaver punched Bourne in the
face several times as well and then stuck a gloved finger into his
anus through Bourne's boxer shorts, which were covered in chemical
agent. 10
Officer LeBlanc also punched Bourne in the face several
times before wrestling him to the ground, where LeBlanc grabbed the
front of Bourne's boxer shorts and twisted his genitals. 11
Once the
assault was over, Bourne contends that Sergeant Applewhite returned
him to his cell, which was contaminated with chemical agent,
refused to give him cleaning supplies or let him shower.
As a
result of the assault,
and
12
Bourne reportedly suffered
~a
burning and sore anus, bruised and sore genitals, a broken nose, a
busted [and] bleeding lip, a chipped tooth, the whole side of [his]
5
Id.
6
Id.
7
Id.
8
Step 1 Grievance #2015056398, Docket Entry No. 1-1, p. 1.
9
More Definite Statement, Docket Entry No.
at 2-3.
10
Id.
11
Id. at 11.
12
Id.
at 10.
at 8-9.
-3-
9, pp. 9-10.
head [and]
face was swollen and bruised,
[his] eyes were swollen
almost completely shut, with [his] left eye swollen and lacerated
at the eyebrow, and [he] had similar scratches on [his] chest and
back." 13
In addition, for several days after the incident, Bourne
suffered "nausea, headaches, vertigo, dizziness, incoherency, and
loss of consciousness multiple times." 14
Based on these allegations,
Bourne contends that Lieutenant
Gunnels and Officers Howard, Weaver, LeBlanc, Price, and Ajisefini
violated his rights under the Eighth Amendment by using excessive
force.
15
Bourne contends further that Lieutenant Gunnels, Sergeant
Applewhite, and Officer Ford violated his rights under the Eighth
Amendment by failing to intervene and stop the use of excessive
force by the other defendants, particularly, Howard, Weaver,
Leblanc. 16
deliberate
and
Bourne also contends that Sergeant Applewhite acted with
indifference
by
placing
him
in
a
cell
that
was
contaminated with chemical agent and not allowing him to shower. 17
Bourne adds that Officer Weaver violated his constitutional rights
under the First Amendment by sexually assaulting him in retaliation
for a grievance that he filed against Weaver previously on April
13
Id. at 3.
14
Id.
15
pp.
3-6;
Supplemental
16
pp.
3-4;
Supplemental
Complaint,
Docket Entry No.
1,
Complaint, Docket Entry No. 28, pp. 1-3.
Complaint,
Docket Entry No.
1,
Complaint, Docket Entry No. 28, p. 3.
17
Complaint, Docket Entry No. 1, p. 5; More Definite Statement,
Docket Entry No. 9, p. 8-9.
-4-
28, 2014. 18
Bourne seeks compensatory and punitive damages against
all of the defendants under 42 U.S.C. § 1983. 19
B.
Defendants' Motion and Evidence
The defendants have filed a joint motion for summary judgment,
arguing that Bourne's claims for monetary damages against them in
their official capacity are barred by the Eleventh Amendment. 20
Noting further that Bourne seeks monetary damages from a use of
force that resulted in a disciplinary conviction,
the defendants
argue that his excessive-force claims are barred by the rule in
Heck v. Humphrey, 114 S. Ct. 2364 (1994), because the disciplinary
conviction that he received has not been invalidated or otherwise
set aside. 21
establish
a
Alternatively, the defendants argue that Bourne cannot
constitutional
violation
and,
therefore,
entitled to qualified immunity from his claims. 22
that
argument,
the
defendants
have
report regarding the use of force
The
defendants
aftermath
also
provide
a
provided
an
they
are
In support of
administrative
(the "Use of Force Report") . 23
video
(the "Use of Force Video"),
of
the
incident
and
its
which clearly contradicts
Bourne's contention that he sustained serious injury as the result
18
Complaint, Docket Entry No. 1, p. 6.
19
Id. at 4.
20
Defendants' Motion, Docket Entry No. 56, pp. 7-8.
21
Id. at 8-12.
22
Id. at 12-27.
23
Use of Force Report, Docket Entry No. 56-2, pp. 1-70.
-5-
of a brutal beating that was administered without any provocation. 24
The
defendants'
evidence
shows
that
the
use
of
force
was
authorized by a supervisory official at the Estelle High Security
Unit
(Captain Vincent)
and conducted pursuant to the TDCJ Use of
Force Plan after Bourne "took control" of the food-tray slot to his
cell
"and refused to
it. " 25 The
relinquish
video
confirms
that
Bourne had jammed open his food-tray slot with a sheet and towels. 26
Bourne had also obscured the windows of his cell door with a sheet
so that officers could not see inside the cell, which was dark at
the time because Bourne had turned out the lights. 27
Gunnels
assembled a
five-man
team to
use
a
chemical
Lieutenant
agent
and
force, if necessary, to extract Bourne from his cell (cell 113) and
regain
control
of
Officers Howard,
Ford
operated
the
Price,
the
door. 28
The
Aj isefini,
video
camera
five-man
LeBlanc,
that
was
team consisted of
and Weaver;
used
to
Officer
record
the
incident. 29
Before any use of force occurred, Gunnels twice ordered Bourne
to relinquish control of the food-tray slot, warning Bourne that a
24 Use of Force Video, Docket Entry No. 58, on file in the
Clerk's Office.
25 Use of Force Report, Docket Entry No. 56-2, p. 6;
Use of
Force Video, Docket Entry No. 58, video clip 1 at 00:01-00:30.
26 Use of Force Video, Docket Entry No. 58, video clip 2 at
00:10.
27Id.
28 Id., video clip 1 at 00:31-01:04.
29Id.
-6-
chemical
agent would be
used and that
a
team of
officers was
prepared to enter the cell if he did not comply. 30
When Bourne
refused to comply, Gunnels deployed a chemical agent by spraying it
through the open food-tray slot for no more than five seconds,
using approximately half a canister. 31
While the officers waited
nearby for the chemical agent to take effect, Bourne could be heard
yelling and cursing loudly at Lieutenant Gunnels,
taunting the
officers to "come on in [to the cell]" and inviting them to "beat
[his] ass. " 32
Approximately
deployed,
officers. 33
five
minutes
after
the
chemical
Bourne continued to disobey orders
agent
and curse
at
was
the
It took several more minutes for the officers to open
the cell door because Bourne had tampered with it, preventing it
from opening. 34
To open the cell door, another officer had to use
a chain hoist to pry open the door, which Bourne had jammed shut. 35
When officers were finally able to pry the door open, Bourne did
not retreat from his position at the cell door and attempted to
block the lead officer (Howard), who had to force his way into the
cell with the plastic riot shield that he was carrying to protect
30
Id., video clip 2 at 00:05-00:30.
31
Id. at 00: 30-00:35;
Use of Force Report, Docket Entry No.
56-2, p. 10 (noting that 10.9 ounces of a 19.3 ounce can of
chemical agent was used during the incident).
32
Use of Force Video,
Docket Entry No.
04:05.
33
Id. at 04:20.
34
Id. at 04:20-07:50.
3sid.
-7-
58,
clip 2 at 00:37-
himself. 36
Because Bourne had turned out the lights in the cell,
the ensuing altercation cannot be seen from the hallway. 37 Moments
after entering the darkened cell, however,
repeatedly
ordering
Bourne
to
"stop
officers can be heard
resisting. " 38
Bourne
was
subdued after a brief struggle and restraints were applied to his
arms and legs. 39
Within
five
minutes
after
the
officers
entered
his
cell,
Bourne emerged under his own power and was escorted to a nearby
infirmary for a use-of-force physical examination by a health care
provider. 40
The video shows that Bourne, who was clad only in a
pair of white boxer shorts and shoes, was bleeding from a small cut
above his left eye when he exited his cell. 41
The front of Bourne's
boxer shorts was covered with orange chemical spray. 42
At the start the physical examination, Bourne complained that
a "black sergeant" hit him in the face and grabbed his genitals
during the use of force.
43
examination noted only a
The registered nurse who conducted the
scratch above Bourne's left eye,
36Id.
37Id.
38
Id.
at 07:40-07:55.
39
Id.
at 07:55-11:00.
40
Id.
at 12:50.
41
Id.
42Id.
43
Id.
at 14:43, 17:15.
-8-
some
swelling near Bourne's right eye, and some minor abrasions on his
back consistent with being taken to the floor. 44
Bourne refused to
open his eyes when asked during the examination, claiming that they
were swollen shut from the chemical agent and from being gouged by
the lead officer during the use of force. 45
When Lieutenant Gunnels
asked Bourne if he had any injuries other than the scratch on his
face,
Bourne complained that his testicles were burning from the
chemical agent that covered the front of his boxer shorts. 46
As he was escorted from the infirmary back to his cell block,
Bourne continued to argue with and curse at the officers for using
force against him, inciting other inmates to do the same. 47
Bourne
and the officers waited in the hallway for several minutes while
his cell was decontaminated. 48
While they were waiting,
Bourne
bantered with another inmate who was yelling at the officers. 49 When
the other inmate advised Bourne that Officer Weaver was one of the
officers on the five-man team, Bourne accused Weaver of grabbing
44 Id.
at 14:30-15:00. Bourne's minor injuries are also
documented as part of the Use of Force Report, Docket Entry No. 562, pp. 41-43. See also Use of Force Nursing Note, Docket Entry No.
56-3, p. 3 (describing the laceration on Bourne's left eye brow as
"1cm long and 1 mm wide" and noting that Bourne was "alert and
oriented x3").
45 Use of Force Video, Docket Entry No. 58, video clip 2 at
21:00.
46 Use of Force Video,
21:44-22:50.
47Id. at 23:40-25:00.
48Id. at 25:18-29:40.
Docket Entry No.
49Id.
-9-
58,
video clip 2 at
his penis during the use of force and made reference to a grievance
that he had filed previously against Weaver, who he called a
~big
baby girl. " 50
After Lieutenant Gunnels reported that the cell had been wiped
down and decontaminated,
Bourne was returned to his cell. 51
The
video shows that there was no chemical agent on the door or the
food-tray slot,
which was now closed,
and there was no sign of
chemical agent on the floor or the walls that could be seen from
the doorway. 52
After Bourne's restraints were removed, Lieutenant
Gunnels instructed him to decontaminate by washing his face and any
other exposed area with copious amounts of cold water using the
sink in his cell. 53 Before the video terminated, Gunnels also gave
Bourne
oral
and written
instructions
about
his
opportunity
to
provide a statement about the use of force. 54
Consistent
with
the
TDCJ
Use
of
Force
Plan,
conducted an administrative review of the incident. 55
officials
The officers
who participated in the use of force provided written statements,
reporting that Bourne fought with the extraction team and resisted
sord. at 29:44.
Slid • at 29:55-30:00.
szrd. at 30:15-31:00.
s3Id. at 32:55-33:10.
s4Id. at 34:00-34:40.
55
Use of Force Report, Docket Entry No. 56-2, p. 5.
-10-
their
efforts
to
subdue
him. 56
After
considering
all
of
the
statements, medical records of Bourne's physical, and the video of
the
incident,
officials
concluded
that
the
use
of
force
was
"justified" and that the officers' actions were "appropriate." 57
After the use of force Bourne was charged in Case #20150090457
with violating Code 18.2 and Code 23.0 of the TDCJ Disciplinary
Rules by:
(1) tampering with his food-tray slot, and (2) creating
a disturbance or significant disruption of operations such that
force had to be used. 58
Bourne did not deny tampering with his
food-tray slot, but explained that he only did so because he wanted
to
talk to
Captain Norman,
reasoning
that
the
force
used was
unnecessary. 59 The disciplinary hearing officer found Bourne guilty
as charged of both offenses and,
noting that Bourne was already
assigned to administrative segregation, imposed punishment in the
form of restrictions on his commissary privileges. 60
Bourne also
forfeited 30 days of previously earned good-time credit. 61
Bourne
did not appeal from the conviction. 62
56
Id.
at 23-39.
57
Id.
at 5.
58
TDCJ Disciplinary Report and Hearing Record, Docket Entry No.
56-4, p. 3.
59Id.
6oid.
61Id.
62
More Definite Statement, Docket Entry No. 9, p. 6.
-11-
II.
Standard of Review
Defendants' motion is governed by Rule 56 of the Federal Rules
of Civil Procedure.
summary
Under this rule a reviewing court "shall grant
judgment if the movant
dispute as to any material
shows
fact
judgment as a matter of law."
that
there
and the movant
Fed.
R.
Civ.
P.
is
no genuine
is entitled to
56(a);
see also
Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986).
A factual
dispute is "material" only if its resolution in favor of one party
"might affect the outcome of the suit under the governing law[.]"
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510
(1986).
A
dispute about a material fact is "genuine" only if the evidence "is
such
that
a
reasonable
nonmoving party."
jury
could
return
a
verdict
for
the
Id.
If the movant demonstrates the absence of a genuine issue of
material fact, the burden shifts to the non-movant to "come forward
with specific facts showing the existence of a genuine issue for
trial."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
106 S. Ct. 1348, 1356 (1986)
omitted).
(emphasis and internal quotation marks
In determining whether this burden has been met,
reviewing court must "construe all
facts
and inferences
light most favorable to the nonmoving party."
596 F.3d 260,
266
(5th Cir.
2010)
F. 3d 278, 284 (5th Cir. 2005)).
the
in the
Dillon v. Rogers,
(quoting Murray v.
Earle,
405
However, a non-movant cannot avoid
summary judgment simply by presenting "conclusory allegations and
-12-
denials,
speculation,
improbable
assertions, and legalistic argumentation."
Miss., 678 F.3d 344, 348
unsubstantiated
inferences,
(5th Cir. 2012)
Jones v. Lowndes Cty.,
(quoting TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002));
see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)
(en bane)
material
fact
(a non-movant cannot demonstrate a genuine issue of
with
conclusory
allegations,
unsubstantiated
assertions, or only a scintilla of evidence).
The plaintiff proceeds pro se in this case.
Courts construe
pleadings filed by pro se litigants under a less stringent standard
than those drafted by lawyers.
594, 596 (1972)
( 197 6) ) .
Kerner,
92 S.
Ct.
(per curiam); see also Erickson v. Pardus, 127 S.
Ct. 2197, 2200 (2007)
construed[.]"')
See Haines v.
("A document filed prose is 'to be liberally
(quoting Estelle v.
Gamble,
97
S.
Ct.
285,
292
Nevertheless, "pro se parties must still brief the issues
and reasonably comply with [federal procedural rules]."
Grant v.
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citations omitted).
The
Fifth Circuit has held that "[t]he notice afforded by the Rules of
Civil Procedure and the local rules" is "sufficient" to advise a
pro se party of his burden in opposing a summary judgment motion.
Martin v.
Harrison Cty.
Jail,
975 F.2d 192,
(per curiam) .
-13-
193
(5th Cir.
1992)
III.
A.
Discussion
Official Immunity Under the Eleventh Amendment
To the extent that Bourne seeks monetary damages from the
individual defendants in their official capacity as TDCJ employees,
his claims must be dismissed because they are precluded by the
Eleventh Amendment to the United States Constitution. 63
Unless
expressly waived, the Eleventh Amendment bars an action in federal
court by a
citizen of
a
state
including a state agency.
against
his
or
her
own
state,
See Martinez v. Texas Dep't of Criminal
Justice, 300 F.3d 567, 574 (5th Cir. 2002).
As
a
state agency,
TDCJ is
immune
damages under the Eleventh Amendment.
F.3d 211, 213 (5th Cir. 1998).
recovery
of
money
damages
from a
suit
See Talib v.
for money
Gilley,
138
The Eleventh Amendment also bars a
under
42
employees in their official capacity.
U.S.C.
§
1983
See Oliver v.
from
state
Scott,
276
F.3d 736, 742 (5th Cir. 2002); Aguilar v. Texas Dep't of Criminal
Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
Because Bourne has
sued all of the defendants for actions taken during the course of
63
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.
Federal
court jurisdiction is restricted by the Eleventh Amendment and the
principle of sovereign immunity that it embodies.
See Seminole
Tribe of Florida v. Florida, 116 S. Ct. 1114, 1122 (1996); see also
Pennhurst State Sch. & Hosp. v. Halderman, 104 S. Ct. 900, 908-09
(1984)
(explaining that the Eleventh Amendment acts as a
jurisdictional bar to suit against a state in federal court) .
-14-
their employment by TDCJ,
Bourne's claims
for monetary damages
against the defendants in their official capacity are barred by the
Eleventh
Amendment.
Accordingly,
the
defendants'
motion
for
summary judgment on this issue will be granted.
B.
The Rule of Heck v. Humphrey
Bourne seeks monetary damages for a use of force that resulted
in a disciplinary conviction and a loss of good-time credits.
It
is well established that a civil rights plaintiff may not recover
damages based on allegations of "unconstitutional conviction or
imprisonment,
or
for
unlawfulness
would
other
render
a
harm
caused
conviction
by
or
actions
sentence
whose
invalid,"
without first proving that the conviction or sentence has been
"reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determinations,
or called into question by a federal court's issuance of a writ of
habeas corpus [under] 28 U.S.C.
Ct.
2364,
2372
(1994).
relationship to a
A
§
2254."
claim
for
Heck v. Humphrey, 114 S.
damages
that
conviction or sentence that has
invalidated is not cognizable under 42 U.S.C.
§
1983.
bears
a
not been so
Id.
In this
context, a "conviction" includes a prison disciplinary conviction
that results in the loss of good-time credit.
See Edwards v.
Balisok, 117 S. Ct. 1584, 1589 (1997).
Bourne was
convicted of tampering with his
cell door and
creating a disturbance in connection with the use of force that
-15-
occurred on November 21, 2014. 64
Arguing that success on his claims
would not implicate the validity of his conviction for tampering
Bourne contends that Heck does not apply. 65
with his cell door,
Bourne does not dispute, however, that his excessive-force claim,
which asserts that the use of force was unprovoked and unnecessary,
would,
if
true,
implicate
the
validity
of
his
disciplinary
conviction for creating the disturbance that resulted in the use of
force.
is
Because that conviction has not been overturned, the court
persuaded
defendants
Christi,
that
are
488
Bourne's
barred
by
F.3d 649,
excessive-force
Heck.
656-57
See
DeLeon
(5th Cir.
claims
v.
2007)
against
City
of
the
Corpus
(holding that an
excessive-force claim was barred by Heck where plaintiff's version
of events was inconsistent with, and not separable from, the facts
underlying his conviction);
see also Brooks v.
Evans,
Civil No
5:11-154, 2012 WL 3956907, *6-9 (E.D. Tex. Aug. 1, 2012), report
and recommendation adopted, 2012 WL 3956589
2012);
Orange v.
Ellis,
Civil No.
08-224,
(E.D. Tex. Sept. 10,
2009 WL 454253,
*4-5
(M.D. La. Feb. 23, 2009), aff'd, 348 F. App'x 69 (5th Cir. 2009);
Hadnot v. Butler, Civil No. H-08-1304, 2008 WL 4200815,
Tex.
Sept.
9,
2008),
aff'd,
332 F.
App'x 206
*3
(5th Cir.
(S.D.
2009).
Accordingly, those claims are not cognizable under § 1983 and must
be dismissed with prejudice.
See Edwards,
117 S.
Ct.
64
at 1589
TDCJ Disciplinary Report and Hearing Record, Docket Entry No.
56-4, p. 3.
65
Plaintiff's Response, Docket Entry No. 60, p. 13.
-16-
(emphasizing that claims barred by Heck are not cognizable under §
1983 and "should be dismissed"); Johnson v. McElveen, 101 F. 3d 423,
424
(5th Cir.
1996)
(explaining that claims barred by Heck are
"dismissed with prejudice to their being asserted again until the
Heck conditions are met").
Alternatively, Bourne's claims must be
dismissed because they lack merit for reasons explained below.
C.
Qualified Immunity
The defendants argue that Bourne fails to show that excessive
force
was
used
in
violation
of
the
Eighth
Amendment.
The
defendants argue further that Bourne fails to establish that any
constitutional
violation
occurred
or
that
their
objectively unreasonable under the circumstances.
actions
were
The defendants
maintain, therefore, that they are entitled to qualified immunity.
"The
officials
conduct
doctrine
'from
does
constitutional
of
qualified
liability
not
for
violate
rights
of
immunity
civil
clearly
which
a
protects
damages
insofar
established
reasonable
government
as
their
statutory
or
person would have
known.'"
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
Harlow v.
Fitzgerald, 102 S. Ct. 2727, 2738
(1982)).
(quoting
This is an
"exacting standard," City & Cty. of San Francisco v. Sheehan, 135
S.
Ct.
1765,
1774
(2015),
that
'all but
the plainly
incompetent or those who knowingly violate the law.'"
Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015)
"protects
(quoting Malley v. Briggs, 106 S.
Ct. 1092, 1096 (1986)). A plaintiff seeking to overcome qualified
-17-
immunity must satisfy a two-prong inquiry by showing: " ( 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,
131
S.
Ct.
2074,
2080
(2011)
(citation omitted). If the plaintiff satisfies both prongs of this
inquiry,
the
court
nevertheless
then
appropriate
asks
whether
because
the
qualified
official's
immunity
actions
is
were
objectively reasonable in light of law that was clearly established
when the disputed action occurred.
249,
253
(5th Cir.
2010).
See Brown v. Callahan, 623 F.3d
"Whether an official's conduct was
objectively reasonable is a question of law for the court, not a
matter
of
fact
for
the
jury."
Id.
( citation
omitted) .
"An
official's actions must be judged in light of the circumstances
that confronted him and the
facts
that were available to him,
without the benefit of hindsight." Id.
As
this
standard
reflects,
(citation omitted).
"[a]
good-faith
assertion
of
qualified immunity alters the usual summary judgment burden of
proof, shifting it to the plaintiff to show that the defense is not
available."
King v. Handorf, 821 F.3d 650, 653-54 (5th Cir. 2016)
(internal quotation marks and citations omitted).
must
rebut
the
defense
by
establishing
that
"The plaintiff
the
official's
allegedly wrongful conduct violated clearly established law and
that
genuine
issues
of
material
fact
reasonableness of the official's conduct."
-18-
exist
Id.
regarding
at
654
the
(quoting
Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d
404,
419
(5th Cir.
2008)).
"To negate a defense of qualified
immunity and avoid summary judgment, the plaintiff need not present
'absolute proof,' but must offer more than 'mere allegations.'" Id.
(quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).
A reviewing court may consider the steps of the qualified
immunity analysis in any sequence.
See Pearson, 129 S. Ct. at 818;
see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
case,
the
court
begins
by
examining
whether
the
In this
plaintiff
establishes a constitutional violation of the Eighth Amendment.
D.
Cla~s
of Excessive Force Under the Eighth Amendment
Claims of excessive use of force in the prison context are
governed by the Eighth Amendment, which prohibits cruel and unusual
punishment, i.e., the "unnecessary and wanton infliction of pain."
Wilson v. Seiter, 111 S. Ct. 2321, 2323 (1991)
Gamble, 97 S. Ct. 285, 291 (1976)).
(quoting Estelle v.
Not every malevolent touch by
a prison guard gives rise to a constitutional violation under the
Eighth Amendment.
(1992)
See Hudson v. McMillian, 112 S. Ct.
995, 1000
(citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)
("Not every push or shove, even if it may later seem unnecessary in
the
peace
of
constitutional
a
judge's
rights.")).
chambers,
The
violates
Constitution
a
prisoner's
excludes
from
recognition de minimis uses of physical force, provided that the
use of force is not of a sort "'repugnant to the conscience of
-19-
mankind.'"
Hudson,
112 S.
Ct.
at 1000
( citation and quotation
omitted) .
To prevail on an excessive-use-of-force claim under the Eighth
Amendment, a plaintiff must establish that force was not "applied
in a good-faith effort to maintain or restore discipline,
maliciously and sadistically to cause harm."
F.3d 600, 601-02 (5th Cir. 1996)
Eason v.
[but]
Holt,
73
(citing Hudson, 112 S. Ct. at 998;
and Jackson v. Culbertson, 984 F.2d 699 (5th Cir. 1993)).
Relevant
factors to consider in evaluating an excessive-use-of-force claim
include:
( 1) the extent of the injury suffered,
the application of force,
( 2) the need for
(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 Hudson, 112 S. Ct. at 999;
Gomez v.
923
Chandler,
163 F.3d 921,
(5th Cir.
1999).
Each of
these factors is considered briefly below.
1.
Extent of Injury
As noted above,
the nurse who examined Bourne immediately
after the use of force documented a small laceration above Bourne's
left eye and swelling near his right eye, but no other injuries
apart from minor abrasions on his chest and back.
66
Although Bourne
claims that Officer Weaver "sexually assaulted" him by inserting
66
Use of Force Video,
15:30-21:00.
Docket Entry No.
-20-
58,
video clip 2 at
his finger into his anus during the altercation,
Bourne made no
mention of such an assault to the nurse who was treating him and
the record does not document any injury consistent with the alleged
sexual assault.
67
The medical records
and the video show that
Bourne was alert and coherent after the incident and that he had no
difficulty walking back to his cell. 68
Shortly after the use of
force occurred, x-rays were taken of Bourne's face, confirming that
his nose was not fractured.
69
Medical records reflect that Bourne
was treated at the local hospital for complaints of a concussion,
but CT scans of his face, head, and neck were all negative. 70
The
treatment providers noted that Bourne was "[l]aughing and talking"
during the examination,
therefore,
he was returned to the unit
without any treatment. 71
This factor favors the defendants because the video and the
medical records establish that Bourne's injuries were minor.
To
the extent that Bourne complains primarily of soreness and burning
from his exposure to a chemical agent, he was promptly treated in
the infirmary and he does not establish that he suffered anything
67
Id. at 15:30; see also Use of Force Nursing Note, Docket
Entry No. 56-3, p. 3 (noting that Bourne denied any injuries except
to his face) .
68
Use of Force Video, Docket Entry No. 58, video clip 2 at
21:00-32:55; see also Use of Force Nursing Note, Docket Entry No.
56-3, p. 3 (noting that Bourne was "alert and oriented x3").
69
Radiology Report, Docket Entry No. 56-3, p. 19.
70
Hospital/ER Discharge Assessment, Docket Entry No. 56-3, p.
71
Id. at 21.
20.
-21-
more than de minimis injury as a result of his altercation with the
defendants.
1997)
See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
(holding that a sore, bruised ear lasting for three days was
de minimis and would not support an excessive force claim);
also Bradshaw v.
31017404,
at *1
Unknown Lieutenant,
(5th Cir.
2002)
skin for approximately 24 hours,
48
F.
App'x 106,
~
2002 WL
(holding that "burning eyes and
twitching of his eyes,
blurred
vision, irritation of his nose and throat, blistering of his skin,
rapid heartbeat, mental anguish, shock and fear" as the result of
exposure to a chemical agent was de minimis);
F.3d 394, 1995 WL 450120 (5th Cir. 1995)
Wyatt v. Shaw,
(unpublished)
62
(upholding
the dismissal of an excessive force claim where the only injury
alleged was exposure to the effects of a chemical agent) (citing
Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993)).
The use of force video also contradicts Bourne's claim that
the officers brutally assaulted him in the manner he describes in
his
pleadings.
Bourne
argues,
however,
that
he
suffered
a
concussion and lost consciousness due to the serious injuries that
he sustained during the use of force.
72
In support,
Bourne has
submitted unsworn statements from other offenders, who claim that
they
witnessed
a
brutal
beating
72
that
caused
"very
severe"
Plaintiff's Declaration of Disputed Facts, Docket Entry No.
60, p. 37.
-22-
injuries. 73
The court is required to draw inferences in favor of
the nonmovant when the defense of
asserted.
qualified immunity has
been
See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). It is
well established, however, that "a plaintiff's version of the facts
should not be accepted for purposes of qualified immunity when it
is
'blatantly contradicted'
recordings." Hanks v.
(citing Curran v.
and
Rogers,
Aleshire,
'utterly discredited'
853 F.3d 738,
800
F.3d 656,
744
664
by video
(5th Cir.
2017)
(5th Cir.
2015)
(quoting Scott v. Harris, 127 S. Ct. 1769, 1776 (2007)).
Because
the video and the medical records refute the statements provided by
Bourne, 74 his evidence does not raise a genuine issue of material
fact regarding the extent of his injury.
2.
Need for Force
The use of a
authorized
by
chemical agent and force,
Captain Vincent
because
73
Bourne
if necessary,
refused
was
repeated
Witness Statement of Levy Lacombe (TDCJ #851206), Docket
Entry No. 60, p. 4 3;
Witness Statement of David Hickman ( TDCJ
#1730048), Docket Entry No. 60, p. 41; Statement of Andres Urbina
(TDCJ #711985), Docket Entry No. 60, p. 45;
Statement from
Unidentified Offender, Docket Entry No. 60, p. 46 (inmate is not
identified by TDCJ number and his signature is illegible) .
74
Bourne claims that inmates across from his cell witnessed the
use of force.
See Plaintiff's Response, Docket Entry No. 60, p.
23.
The video shows, however, that the cell in which the use of
force took place was completely dark; moreover, Lieutenant Gunnels
stood in the doorway to the cell for most of the use of force,
narrating events for the video camera, which also blocked the view
of offenders assigned to nearby cells.
See Use of Force Video,
Docket Entry No. 58, video clip 2 at 00:01 -12:50.
Because the
video refutes the accounts given by the other offenders, their
statements are of little value.
See Plaintiff's Response, Docket
Entry No. 60, pp. 41-46.
-23-
orders to relinquish control of his food-tray slot, which he had
jammed
open. 75
The
evidence
chemical agent was deployed,
further
shows
that
even
after
a
Bourne remained openly defiant and
continued to disobey repeated orders to relinquish control of his
cell door.
76
Bourne does not dispute this evidence,
which shows
that he created a substantial disturbance that required the use of
force to quell.
Preserving institutional order and discipline is a
objective of sound prison administration.
S. Ct. 1861, 1878 (1979)
central
See Bell v. Wolfish, 99
("[M]aintaining institutional security and
preserving internal order and discipline are essential goals that
may require limitation or retraction of the retained constitutional
rights of both convicted prisoners and pretrial detainees.").
Use
of a chemical agent and physical force are considered appropriate
where a recalcitrant inmate refuses to obey repeated orders in the
correctional setting.
Cir.
1984)
("If
it
See Soto v. Dickey, 744 F.2d 1260, 1267 (7th
is
an
order
that
requires
action
by
the
institution, and the inmate cannot be persuaded to obey the order,
some means must be used to compel compliance,
agent or physical force.").
such as a chemical
Bourne, who makes no real effort to
dispute the contents of the video,
fails to show that the use of
75
Use of Force Report, Docket Entry No. 5 6-2, p. 6;
Use of
Force Video, Docket Entry No. 58, video clip 1 at 00:01-00:30.
76
Use of Force Video,
00:10-04:30.
Docket Entry No.
-24-
58,
video clip 2 at
force was not necessary to gain his compliance.
Accordingly, this
factor also favors the defendants.
3.
Need for Force and the Amount of Force Used
Bourne contends that the amount of physical force used by the
officers
was
unnecessary
because
he
was
guilty,
violating prison rules by tampering with his
assertion is
refuted by the video,
at
most,
cell door.
of
This
which confirms that Bourne
disobeyed repeated orders to relinquish control of the cell door
and that he created a significant disturbance by continuing to
disregard those orders after the chemical agent was deployed. 77
Contrary to Bourne's claim that the use of force was unprovoked,
the video shows that Bourne was highly agitated, cursing loudly,
and taunting the officers to enter his cell as he continued to
disobey orders. 78
The video also documents that the struggle to
subdue Bourne was brief, lasting no more than five minutes from the
time officers entered the cell until they escorted him out in full
arm and leg restraints with only minor injuries. 79
It is well established that the use of a chemical agent to
prevent riots or escapes or to subdue recalcitrant prisoners does
not
constitute cruel and unusual punishment.
Greggs,
77
509 F.2d 1338,
1340
Use of Force Video,
(5th Cir.
Docket Entry No.
4:05.
7Bid.
79
1975)
Id. at 8:29-12:45.
-25-
See Clemmons v.
(citing Landman v.
58, clip 2 at 00:37-
Peyton, 370 F.2d 135 (4th Cir. 1966)); see also Baldwin v. Stalder,
137 F.3d 836, 841 (5th Cir. 1998)
(holding that the use of mace to
quell a disturbance on a prison bus was not an excessive use of
force) .
When the use of a chemical agent was not sufficient to
gain Bourne's compliance, the use of physical force to place him in
restraints and remove him from his cell was justified.
Because the
video and the medical records further establish that the extraction
was accomplished in less than five minutes and resulted in only
minor injuries, Bourne does not show that the amount of force used
was excessive to the need.
Accordingly, this factor also favors
the defendants.
4.
Reasonably Perceived Threat
The fourth factor looks at the threat reasonably perceived by
the responsible officials, which in this case included Lieutenant
Gunnels
and
the
five-man
team
consisting
Weaver, LeBlanc, Price, and Ajisefini.
of
Officers
Howard,
The use of force in this
case occurred at the Estelle High Security Unit, where Bourne was
confined
with
segregation. 80
other
problem
offenders
in
administrative
As the video reflects, the officers were aware that
80
Medical records show that Bourne was a 28-year-old inmate who
stood six feet tall and weighed 221 pounds at the time that the use
of force occurred. See Use of Force Nursing Note, Docket Entry No.
56-3, p. 3. Bourne, whose underlying conviction was for aggravated
assault with a deadly weapon, discloses in his pleadings that he
had a record of disciplinary infractions while incarcerated,
including fighting with other offenders, possessing a weapon, and
other violations. See More Definite Statement, Docket Entry No. 9,
(continued ... )
-26-
Bourne had refused repeated orders to relinquish control of his
Despite Gunnels express warning that officers would
cell door.
enter Bourne's cell and extract him if he persisted in refusing to
comply,
video
Bourne continued to disobey and became belligerent.
confirms
that
Bourne
was
highly
agitated
as
he
The
shouted
obscenities and dared the officers to enter his darkened cell. 81
As the officers waited for the cell door to be pried open,
the
video shows Bourne standing at the doorway in anticipation of a
confrontation, yelling at the officers, and blocking their entry
into the cell. 82
custodial
Because of Bourne's aggressive demeanor and his
status
as
an
offender
assigned
to
administrative
segregation, the officers reasonably perceived Bourne's actions as
a threat to their safety as well as to institutional order and
security, necessitating the use of force.
Therefore, this factor
does not support a finding that excessive force was used.
Bourne argues that he did not pose any threat to the officers
and that no force was necessary because he was barricaded in his
cell.
Courts have recognized,
poses
a
that disobeying orders
threat to the order and security of the prison as
institution.
WL 1217883,
80
however,
an
See Minix v. Blevins, Civil Action No. 6:06-306, 2007
at
*25
(E.D.
Tex.
April 23,
2007)
(citing Soto v.
continued)
pp. 6-7, 13.
81
( •••
Use of Force Video,
00:35-07:50.
82
Id. at 07:40-07:55.
Docket Entry No.
-27-
58,
video clip 2 at
Dickey, 744 F.2d 1260, 1270-71 (7th Cir. 1984)).
Courts have also
recognized that "the use of mace on an unruly or
'recalcitrant'
prison inmate, though confined in his cell, is not plainly per se
unconstitutional"
Turner,
as
cruel
736 F.2d 963,
970
and unusual
(4th Cir.
punishment.
1984);
Bailey v.
see also Thomas v.
Comstock, 222 F. App'x 439, 442, 2007 WL 807037, at *2
(5th Cir.
2007)
(citing Jones v.
(8th Cir.
2000)
(correctional officer's use of a pepper-based chemical spray
that
resulted
conscience
of
Shields,
in de minimis
mankind"
207 F.3d 491,
injury was
when
used
to
not
495-96
"repugnant
subdue
a
to
the
"recalcitrant
prisoner" locked in his cell or in handcuffs)); Soto, 744 F.2d at
1270 ("The Supreme Court has never held, nor have we or any other
court of appeals, so far as we can determine, that the use of tear
gas
or
a
chemical
agent
is
a
per
se
violation
of
the
Eighth
Amendment, whether an inmate is locked in his cell or not."); Rios
v. McBain, Civ. No. A504CV84,
April 28, 2005)
2005 WL 1026192, at *7
(E.D. Tex.
(noting that "open defiance of orders plainly poses
a threat to the security of the institution, regardless of whether
or not the defiance is emanating from within a locked cell").
5.
Efforts to Temper the Forceful Response
The video confirms that the defendants went to great lengths
to avoid using force.
After Bourne refused repeated orders to
relinquish control of his cell door, Lieutenant Gunnels requested
authorization from a ranking official to use a chemical agent and
-28-
force, if necessary, before assembling a five-man team of officers,
including
a
video-camera
operator,
to
execute
pursuant to the TDCJ Use of Force Plan. 83
a
use
of
force
Gunnels warned Bourne
multiple times that he was about to use a chemical agent if Bourne
did not relinquish control of his cell door.
84
The use of chemical
spray was short in duration, lasting no more than five seconds. 85
The officers then waited more than seven minutes before entering
the
cell,
while
belligerent. 86
Bourne continued to
disobey orders
and became
The actual use of force inside the cell was brief,
taking no more than five minutes from the time the officers entered
until they escorted Bourne from the cell in full restraints.
Had
Bourne complied at any point with the orders given by Lieutenant
Gunnels,
these
the use of force would not have been necessary.
circumstances,
steps
reduce the need for force.
were
plainly
taken
to
Under
eliminate
or
Therefore, this factor also favors the
defendants.
A review of the five above-referenced factors from Hudson v.
McMillian shows that the defendants applied limited force after
they
reasonably
perceived
that
Bourne
had
disobeyed
repeated
orders, and that the force used was done in a good faith effort to
83
Use of Force Video,
00:01-00:30.
84
85
86
Docket Entry No.
Id., video clip 2 at 00:01-00:25.
Id. at 00:30-00:35.
Id. at 00:35-07:50.
-29-
58,
video clip 1 at
maintain or restore discipline and not maliciously or sadistically
to
inflict
pain
or
to
use
force
in
excess
of
the
need.
Consideration of these same factors supports a finding that the
officers' actions were objectively reasonable in light of clearly
established law outlined in Hudson.
The objective visual evidence
presented in the video, in particular, confirms that the officers
executed a
use of
force
in compliance with
standard operating
procedures and overwhelmingly negates Bourne's characterization of
the
incident
as
an
unprovoked
assault.
The
record
does
not
otherwise contain admissible evidence to support Bourne's version
of the events or that would tend to show that the officers violated
the Eighth Amendment by using excessive force in a manner that was
cruel and unusual.
Price,
and
Accordingly, Gunnels, Howard, Weaver, LeBlanc,
Aj isefini
are
entitled
to
qualified
immunity
from
Bourne's claim that excessive force was used in violation of the
Eighth Amendment.
E.
Eighth Amendment Bystander Liability
Alleging
that
Officers
Howard,
Weaver,
and
Leblanc
used
excessive force while extracting him from his cell, Bourne contends
that Lieutenant Gunnels,
violated his
rights
Sergeant Applewhite,
under
the
and Officer
Eighth Amendment
intervene and stop the use of excessive force.
87
Complaint,
Docket Entry No. 1,
Complaint, Docket Entry No. 28, p. 3.
-30-
pp.
87
by
Ford
failing
to
An officer may be
3-4;
Supplemental
subject to "bystander liability" under 42 U.S.C. § 1983 where the
officer
"(1)
knows
individual's
that
a
fellow
constitutional
officer
rights;
( 2)
is
has
violating
a
reasonable
opportunity to prevent harm; and (3) chooses not to act."
v. Hanna, 726 F.3d 631,
Whitley
646 (5th Cir. 2013); Hale v. Townley,
F. 3d 914, 919 (5th Cir. 19 95)
an
45
("[A] n officer who is present at the
scene and does not take reasonable measures to protect a suspect
from another officer's use of excessive force may be liable under
section 1983.").
was
used
in
demonstrate
Because Bourne has not shown that excessive force
violation
that
of
the
Lieutenant
Eighth
Gunnels,
Amendment,
Sergeant
he
cannot
Applewhite,
Officer Ford violated his rights by failing to intervene.
or
See
Davis v. Cannon, 91 F. App'x 327, 329, 2004 WL 362233, at *1 (5th
Cir. 2004)
(per curiam)
(concluding that where the alleged actions
did not constitute excessive force, bystanders are not liable for
failing to intervene); see also Hicks v. Page, Civ. No. H-08-2486,
2008 WL
793684,
*
7
(S.D.
Tex.
March
4,
2010)
(dismissing as
legally frivolous a claim of bystander liability for failure to
intervene where there was no showing that excessive force was used
in violation of the Eighth Amendment) .
Absent a showing that there was an excessive use of force to
stop,
Gunnels,
immunity
from
Applewhite,
Bourne's
and
Ford are
Eighth
Amendment
liability.
-31-
entitled to
claims
for
qualified
bystander
F.
Eighth Amendment Conditions of Confinement
Bourne alleges that Sergeant Applewhite violated his rights
under the Eighth Amendment by forcing him to return to a cell that
was contaminated with chemical spray.
To demonstrate that prison
conditions violate the Eighth Amendment, an inmate must meet the
following requirements:
the
condition
is
"so
(1) an objective requirement showing that
serious
as
to
'deprive prisoners
of
the
minimal civilized measure of life's necessities,' as when it denies
the
prisoner
some
basic
human
need;"
and
(2)
a
subjective
requirement, which mandates a showing that prison officials have
been
"'deliberately
indifferent'
to
inmate
health
Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995)
v.
Brennan,
(citations
511
U.S.
omitted) .
825,
834,
A prison
114
S.
Ct.
official
safety."
(citing Farmer
1970,
acts
or
1977
with
(1994))
deliberate
indifference "only if he knows that inmates face a substantial risk
of serious harm and [he] disregards that risk by failing to take
reasonable measures to abate it." Farmer, 114 S. Ct. at 1984.
The video of the
use
of
force
shows
that
Bourne and the
officers who were escorting him were detained for several minutes
in the hallway while Bourne's cell (cell 113) was decontaminated. 88
Bourne was not placed in cell 113 until after Lieutenant Gunnels
88
Use of Force Video,
25:18-30:00.
Docket Entry No.
-32-
58,
video clip 2 at
announced on the video that it had been cleaned. 89 After Officers
returned Bourne to the cell, he did not voice any complaint about
the cell's condition. 90
Bourne does not allege any specific facts
showing that, under the objective requirement, he was exposed to a
condition that was sufficiently hazardous as to be inhumane.
Woods, 51 F.3d at 581;
See
see also Davis v. Cannon, 91 F. App'x 327,
2004 WL 362233, at *1 (5th Cir. 2004)
(affirming the dismissal on
summary judgment of an inmate's claim that he was subjected to a
hazardous
condition by returning him to the
chemical agent remained in the air) .
same cell where a
Likewise,
Bourne does not
allege facts showing that Sergeant Applewhite had knowledge of the
alleged
condition,
but
acted
with
the
requisite
indifference after Bourne was returned to his cell.
114 S. Ct. at 1984.
of material fact,
deliberate
See Farmer,
Because Bourne does not raise a genuine issue
he fails to overcome the defense of qualified
immunity and the defendants are entitled to summary judgment on his
claim concerning the conditions of confinement.
G.
Retaliation
Finally,
Bourne
alleges
that
constitutional rights under the
Officer
Weaver
violated
his
First Amendment by inserting a
finger into Bourne's anus during the use of force in retaliation
for a grievance that he filed against Weaver previously on April
89
90
Id. at 29:55-30:00, 31:00.
Id. at 31:00-34:40.
-33-
28, 2014. 91
measures
To the extent that the claim stems from disciplinary
taken
by
prison
officials,
Bourne's
retaliation is "regarded with skepticism."
1161, 1165 (5th Cir. 1995) .
allegation
of
Woods v. Smith, 60 F.3d
"To prevail on a claim of retaliation,
a prisoner must establish (1) a specific constitutional right,
(2)
the defendant's intent to retaliate against the prisoner for his or
her exercise of that right,
causation," i.e.,
(3) a retaliatory adverse act, and (4)
that the retaliatory act was motivated by the
retaliatory intent.
McDonald v. Steward, 132 F.3d 225, 231
(5th
Cir. 1998).
The record does not support Bourne's claim that Officer Weaver
sexually as saul ted him.
physical
that
officers
Although Bourne complained during his
grabbed his
genitals
during the
force, Bourne did not report any other injury. 92
use
of
Thus, the video
contradicts Bourne's claim that the alleged retaliatory adverse act
occurred and Bourne makes no effort to explain this inconsistency.
Because the
record also establishes that
the use
of
force
was
necessitated by Bourne's recalcitrant non-compliance with direct
orders,
and was
Officer
Weaver,
not
arbitrarily or
Bourne
does
not
retaliatory intent or causation.
91
independently
demonstrate
See Johnson v.
initiated by
the
requisite
Rodriguez,
110
Complaint, Docket Entry No. 1, p. 6.
92
Use of Force Video, Docket Entry No. 58, video clip 2 at
12:50-22:10; see also Use of Force Nursing Note, Docket Entry No.
56-3, p. 3 (noting that Bourne denied any injuries except to his
face).
-34-
F.3d 299, 310 (5th Cir. 1997). Bourne's conclusory allegations to
the contrary are not otherwise sufficient to overcome the defense
of qualified immunity or the defendants' properly supported motion
for summary judgment.
See Woods, 60 F.3d at 1166; see also Eason
v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996)
("[M]ere conclusory
Il
l
1
allegations are not competent summary judgment evidence, and such
allegations are insufficient,
therefore,
to defeat a motion for
'j
i
summary judgment.").
Because Bourne has not demonstrated that a
constitutional violation occurred, Officer Weaver is entitled to
qualified immunity and summary judgment on the retaliation claim.
Based
on
this
record,
Bourne
has
not
established
a
constitutional violation or overcome the defendants' entitlement to
qualified immunity from his claims.
Because Bourne has not raised
a genuine issue of material fact for trial, Defendant's Motion will
be granted.
IV.
Conclusion and Order
Accordingly, it is ORDERED that Defendants' Motion for Summary
Judgment (Docket Entry No. 56) is GRANTED and this action is will
be dismissed with prejudice.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the1_th
UNITED
-35-
ne, 2017.
LAKE
DISTRICT JUDGE
I
t
'
'
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