Olivarez v. Davidson

Filing 29

MEMORANDUM OPINION AND ORDER granting 28 MOTION for Summary Judgment. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
November 29, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

TRINIDAD OLIVAREZ,
TDCJ #1634745,

§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.

DAKOTA DAVIDSON,
Defendant.

David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3310

MEMORANDUM OPINION AND ORDER

Plaintiff

Trinidad Olivarez

Rights Complaint under 42 U.S.C.
No.

1) ,

alleging that

§

has

filed

a

Prisoner's

1983 ("Complaint")

Civil

(Docket Entry

Defendant Dakota Davidson used excessive

force against him during his confinement in the Texas Department of
Criminal Justice ("TDCJ").

Pending before the court is Defendant

Davidson's Motion for Summary Judgment ("Defendant's MSJ")
Entry No. 28).

Olivarez has not filed a response and his time to

do so has expired.
exhibits,
Defendant's

and

the

MSJ

explained below.

(Docket

After considering all of the pleadings,
applicable

and

will

law,

dismiss

the
this

court
case

will
for

grant

the

the
the

reasons

Background

I .

Olivarez
Huntsville. 1

is

presently

incarcerated

at

the

Wynne

Unit

in

The Complaint stems from a use of force that occurred

at the Wynne Unit on February 10,

2015. 2

Olivarez contends that

Davidson, who was employed by TDCJ as a correctional officer at the
Wynne Unit facility,
with

closed

fists

assaulted him for no reason by striking him
and

kicking

him

in

the

face

repeatedly.

3

Olivarez seeks compensatory and punitive damages under 42 U.S.C.
§

1983 for the violation of his constitutional rights.

4

Davidson moves for summary judgment, arguing that Olivarez's
claim for monetary damages against him in his official capacity as
a state employee is barred by the Eleventh Amendment. 5
argues

further

that

Olivarez

cannot

establish

a

Davidson

constitutional

violation and, therefore, he is entitled to qualified immunity from
any claim against him in his personal capacity. 6
that

argument,

Davidson

has

provided

an

In support of

administrative

1

report

Complaint, Docket Entry No. 1, p. 3. For purposes of
identification, all page numbers refer to the pagination inserted
by the court's electronic filing system, CM/ECF.
2

Id. at 7.

3

Id.

4

Id. at 4, 11.

5

Defendant's MSJ, Docket Entry No. 28, pp. 12-13.

6

Id. at 7-12.
-2-

(the "Use of Force Report") . 7

regarding the use of force

According to the Use of Force Report,

Olivarez and Officer

Davidson had a verbal exchange while Olivarez was on his way to the
chow hall for dinner on February 10, 2015. 8
steps

towards

Davidson

with

his

hands

When Olivarez took two
raised,

threatened and tackled Olivarez to the ground,
several

times

with

a

closed

fist.

9

felt

striking Olivarez

Olivarez

grabbed or gouged Davidson in the right eye. 10

Davidson

fought

back

and

Davidson then struck

Olivarez three more times as Olivarez continued to grab his right
eye. 11

At

Olivarez . 12

that

time,

other

officers

After the use of force,

arrived

and

restrained

Olivarez was examined by a

licensed vocational nurse, who noted that he did not sustain any
injury as a result of the altercation. 13
II.

Standard of Review

Defendant's MSJ 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

is

no genuine

and the movant is entitled to
Fed.

R.

Civ.

P.

56(a);

see also

7

Use of Force Report, Docket Entry No. 28-1, pp. 3-9.

8

Id.

9

Id.

at 4.

10Id.

llid.
12Id.
13

Id. at 6-9.

-3-

Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (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.

Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).

Liberty

An issue is "genuine"

if the evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.

Id.

In deciding a summary judgment motion,

the reviewing court

must "construe all facts and inferences in the light most favorable
to the nonmoving party."
Cir.

2010)

However,

(internal

Dillon v. Rogers, 596 F.3d 260, 266 (5th

quotation

marks

the non-movant "cannot rest

qualified immunity is asserted.
481, 490 (5th Cir. 2001)

and

on

citation

[his]

omitted).

pleadings" where

Bazan v. Hidalgo County, 246 F.3d

(emphasis in original).

Nor can the non-

movant avoid summary judgment simply by presenting "[c]onclusional
allegations

and

denials,

speculation,

improbable

inferences,

unsubstantiated assertions, and legalistic argumentation."

Jones

v. Lowndes County, Mississippi, 678 F.3d 344, 348 (5th Cir. 2012)
(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,
demonstrate
allegations,
evidence) .

1075
a

(5th Cir.

genuine

1994)

issue

of

(en bane)
material

unsubstantiated assertions,

(a non-movant cannot
fact

with

or only a

conclusory

scintilla of

If the movant demonstrates an "absence of evidentiary

support in the record for the nonmovant's case," the burden shifts

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to the nonmovant to "come forward with specific facts showing that
there is a genuine issue for trial."

Sanchez v.

Young County,

Texas,

866 F.3d 274,

279

(citing Cuadra v.

Houston Indep.

Dist.,

626 F.3d 808,

812

(5th Cir.

see also Matsushita

Electric Industrial Co.,

Ltd.

v.

2010));

Zenith Radio Corp.,

106 S.

Sch.

Ct.

1348, 1356 (1986).
The plaintiff proceeds Q£Q 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)

(1976)).

Kerner,

92 S. Ct.

(per curiam); see also Erickson v. Pardus, 127 S.

Ct. 2197, 22 00 ( 2007)
construed[.]"')

See Haines v.

("A document filed pro se 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 County Jail,

975 F.2d 192, 193 (5th Cir. 1992)

(per curiam) .

III.
A.

Discussion

Official Immunity Under the Eleventh Amendment
Davidson maintains that any claim for monetary damages in his

official capacity as a TDCJ employee is precluded by the Eleventh
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Amendment to the United States Constitution. 14

Unless expressly

waived, the Eleventh Amendment bars an action in federal court by
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,

damages under 42 U.S.C.
213 (5th Cir. 1998).
of

money

damages

§

1983.

immune

from a

suit

for money

See Talib v. Gilley, 138 F.3d 211,

The Eleventh Amendment also bars a recovery

under

official capacity.

TDCJ is

§

1983

from

See Oliver v.

state

Scott,

employees

276 F.3d 736,

in
742

their
(5th

Cir. 2002); Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d
1052,

1054

(5th Cir.

1998).

To the extent that Olivarez sues

Davidson for actions taken in his official capacity as a

state

employee, his claim for monetary damages is barred by the Eleventh
Amendment.

Accordingly, the Defendant's MSJ on this issue will be

granted.
B.

Qualified Immunity

Davidson argues that Olivarez fails to show that excessive

14

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).
-6-

force was used in violation of the Eighth Amendment to the United
States

Constitution.

establish

that

any

Arguing

further

constitutional

that

Olivarez

violation

fails

occurred,

to

Davidson

maintains that he is entitled to qualified immunity from claims
against him in his individual or personal capacity.
"The
officials
conduct

doctrine
'from
does

qualified

liability

not

constitutional

of

for

violate

rights

immunity

civil

clearly

of which

a

protects

damages

insofar

established

reasonable

government
as

statutory

or

person would

known.'"

Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)

Harlow v.

Fitzgerald, 102 S. Ct. 2727,

2738

their

(1982)).

have

(quoting

This is an

"exacting standard," City & Cty. of San Francisco v. Sheehan, 135
S.

Ct.

1765,

1774

(2015),

that

"protects

'all but the plainly

incompetent or those who knowingly violate the law.'"
Luna, 136 S. Ct. 305, 308 (2015)

Mullenix v.

(quoting Malley v. Briggs, 106 S.

Ct. 1092, 1096 (1986)). A plaintiff seeking to overcome qualified
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

nevertheless

court

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.

-7-

See Brown v. Callahan, 623 F.3d

249,

253

(5th Cir.

2010).

"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]

qualified immunity alters the usual

good-faith

assertion

of

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

exist

reasonableness of the official's conduct."

(quoting

Gates v. Texas Dep't of Protective & Regulatory Servs.,

537 F.3d

419

(5th Cir.

2008)).

"To negate a

at

the

654

404,

Id.

regarding

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)).
Davidson points to the Use of Force Report and argues that
Olivarez cannot satisfy the first prong of the qualified immunity
analysis because he cannot show that excessive force was used or
that a constitutional violation occurred.
-8-

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)
291

(1976)).

(quoting Estelle v. Gamble, 97 S. Ct. 285,

Not every malevolent touch by a prison guard gives

rise to a constitutional violation under the Eighth Amendment.
Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992)
F.2d 1028,

1033

(2d Cir.

1973)

See

(citing Johnson v.

Glick,

481

("Not every push or

shove,

even if it may later seem unnecessary in the peace of a

judge's chambers, violates a prisoner's constitutional rights.")).
The

Constitution

physical force,

excludes

from

recognition

de

minimis

uses

of

provided that the use of force is not of a sort

"'repugnant to the conscience of 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,
998).

601-02

(5th Cir.

1996)

Eason v.

(citing Hudson,

[but]

Holt,

112 S.

Ct.

73
at

Relevant factors to consider in evaluating an excessive-use-

of-force claim include:

(1) the extent of the injury suffered,

the need for the application of force,

(2)

(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

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temper the severity of a forceful response.

See Hudson, 112 S. Ct.

at 999; Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999).
Addressing

all

five

of

the

above-referenced

factors

from

Hudson v. McMillian, Davidson argues that the amount of force used
was tempered by his effort to verbally reason with Olivarez during
the

encounter

aggressive
threat.

15

and

behavior,

was

necessary

which

only

Davidson

because

reasonably

of

Olivarez's

perceived

as

a

Noting that Olivarez was the aggressor who fought with

him by gouging him in the eye, Davidson adds that the force used
was proportionate to the need to restore order. 16 More importantly,
Davidson argues that Olivarez's claim must fail because the record
shows that he suffered no injury and required no medical treatment
as a result of the altercation. 17

This factor is dispositive for

reasons outlined below.
Olivarez alleges that he sustained the following injuries as
a result of his altercation with Davidson:

(1) temporary blindness

in his

"busted lip";

left eye due

contusions,

knots,

to
and

swelling;
bruises

( 2)
on

a
his

face

and

and

( 3)

forehead.

18

Olivarez's allegations are refuted by the medical determination
made by the nurse, who examined Olivarez several hours after the

15
16
17

Defendant's MSJ, Docket Entry No. 28, pp. 11-12.
Id. at 11.
Id. at 10-11.

18

Complaint, Docket Entry No. 1, p. 8; More Definite Statement,
Docket Entry No. 20, p. 4.
-10-

use of force occurred and observed that he did not require any
treatment because he suffered "[n] o injury. " 19

Without evidence

showing that he suffered an injury that was more than de minimis,
Olivarez cannot establish an excessive force claim or a violation
of the Eighth Amendment.

See,

191, 193 (5th Cir. 1997)

~'

Siglar v. Hightower, 112 F.3d

(holding that a sore, bruised ear lasting

for three days was de minimis and would not support an excessive
force claim); Jackson v. Culbertson,
1993)

(per curiam)

injury,

the

use

984 F.2d 699,

700

(5th Cir.

(concluding that where the prisoner suffered no
of physical

force

was

repugnant to the conscience of mankind) .

de minimis

and was

not

Likewise, to the extent

that Olivarez suffered any mental or emotional injuries, 20 he cannot
recover monetary damages in the absence of a physical injury.
42 U.S.C. § 1997e(e)
prisoner

confined

See

("No Federal civil action may be brought by a
in

a

jail,

prison,

or

other

correctional

facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury .
Olivarez,

.").

who has not responded to the motion for summary

judgment, does not raise a genuine issue of material fact regarding
the extent of his injury or any of the other Hudson factors.

The

record does not otherwise contain admissible evidence to support
19

Use of Force Report, Docket Entry No. 28-1, pp. 7-8.
More Definite Statement,
Docket Entry No.
20,
p.
4
(referencing
emotional
injuries
including
loss
of
sleep,
nightmares, fear, and depression).
20

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Olivarez's allegations or that would tend to show that Davidson
violated clearly established law under the Eighth Amendment by
using excessive force

in a manner that was

cruel and unusual.

Based on this record, Olivarez has not established a constitutional
violation or overcome Davidson's entitlement to qualified immunity.
Because

Olivarez

has

not

raised

a

genuine

issue

for

trial,

Defendant's MSJ will be granted.
IV.
Accordingly,

Conclusion and Order

it is ORDERED that Defendant Dakota Davidson's

Motion for Summary Judgment

(Docket Entry No. 28)

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 th~h

SIM LAKE
UNITED STATES DISTRICT JUDGE

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