Olivarez v. Davidson
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
November 29, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3310
MEMORANDUM OPINION AND ORDER
Rights Complaint under 42 U.S.C.
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.
After considering all of the pleadings,
The Complaint stems from a use of force that occurred
at the Wynne Unit on February 10,
Olivarez contends that
Davidson, who was employed by TDCJ as a correctional officer at the
Wynne Unit facility,
assaulted him for no reason by striking him
Olivarez seeks compensatory and punitive damages under 42 U.S.C.
1983 for the violation of his constitutional rights.
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
violation and, therefore, he is entitled to qualified immunity from
any claim against him in his personal capacity. 6
In support of
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.
Id. at 7.
Id. at 4, 11.
Defendant's MSJ, Docket Entry No. 28, pp. 12-13.
Id. at 7-12.
(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
When Olivarez took two
threatened and tackled Olivarez to the ground,
grabbed or gouged Davidson in the right eye. 10
Davidson then struck
Olivarez three more times as Olivarez continued to grab his right
Olivarez . 12
After the use of force,
Olivarez was examined by a
licensed vocational nurse, who noted that he did not sustain any
injury as a result of the altercation. 13
Standard of Review
Defendant's MSJ is governed by Rule 56 of the Federal Rules of
Under this rule a reviewing court "shall grant
judgment if the movant
dispute as to any material
judgment as a matter of law."
and the movant is entitled to
Use of Force Report, Docket Entry No. 28-1, pp. 3-9.
Id. at 6-9.
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
Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).
An issue is "genuine"
if the evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.
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
the non-movant "cannot rest
qualified immunity is asserted.
481, 490 (5th Cir. 2001)
Bazan v. Hidalgo County, 246 F.3d
(emphasis in original).
Nor can the non-
movant avoid summary judgment simply by presenting "[c]onclusional
unsubstantiated assertions, and legalistic argumentation."
v. Lowndes County, Mississippi, 678 F.3d 344, 348 (5th Cir. 2012)
(quoting TIG Ins.
Sedgwick James of Washington,
754, 759 (5th Cir. 2002)); see also Little v. Liquid Air Corp., 37
(a non-movant cannot
or only a
If the movant demonstrates an "absence of evidentiary
support in the record for the nonmovant's case," the burden shifts
to the nonmovant to "come forward with specific facts showing that
there is a genuine issue for trial."
866 F.3d 274,
(citing Cuadra v.
626 F.3d 808,
see also Matsushita
Electric Industrial Co.,
Zenith Radio Corp.,
1348, 1356 (1986).
The plaintiff proceeds Q£Q se in this case.
pleadings filed by pro se litigants under a less stringent standard
than those drafted by lawyers.
594, 596 (1972)
92 S. Ct.
(per curiam); see also Erickson v. Pardus, 127 S.
Ct. 2197, 22 00 ( 2007)
See Haines v.
("A document filed pro se is 'to be liberally
(quoting Estelle v.
Nevertheless, "pro se parties must still brief the issues
and reasonably comply with [federal procedural rules]."
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citations omitted).
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) .
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
Amendment to the United States Constitution. 14
waived, the Eleventh Amendment bars an action in federal court by
a citizen of a state against his or her own state,
See Martinez v. Texas Dep't of Criminal Justice, 300
F.3d 567, 574
(5th Cir. 2002).
damages under 42 U.S.C.
213 (5th Cir. 1998).
See Talib v. Gilley, 138 F.3d 211,
The Eleventh Amendment also bars a recovery
See Oliver v.
276 F.3d 736,
Cir. 2002); Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d
To the extent that Olivarez sues
Davidson for actions taken in his official capacity as a
employee, his claim for monetary damages is barred by the Eleventh
Accordingly, the Defendant's MSJ on this issue will be
Davidson argues that Olivarez fails to show that excessive
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.
court jurisdiction is restricted by the Eleventh Amendment and the
principle of sovereign immunity that it embodies.
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
(explaining that the Eleventh Amendment acts as a
jurisdictional bar to suit against a state in federal court).
force was used in violation of the Eighth Amendment to the United
maintains that he is entitled to qualified immunity from claims
against him in his individual or personal capacity.
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
Fitzgerald, 102 S. Ct. 2727,
This is an
"exacting standard," City & Cty. of San Francisco v. Sheehan, 135
'all but the plainly
incompetent or those who knowingly violate the law.'"
Luna, 136 S. Ct. 305, 308 (2015)
(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
(citation omitted). If the plaintiff satisfies both prongs of this
objectively reasonable in light of law that was clearly established
when the disputed action occurred.
See Brown v. Callahan, 623 F.3d
"Whether an official's
objectively reasonable is a question of law for the court, not a
official's actions must be judged in light of the circumstances
confronted him and the
that were available to him,
without the benefit of hindsight." Id.
( citation omitted) .
qualified immunity alters the usual
summary judgment burden of
proof, shifting it to the plaintiff to show that the defense is not
King v. Handorf, 821 F.3d 650, 653-54 (5th Cir. 2016)
(internal quotation marks and citations omitted).
allegedly wrongful conduct violated clearly established law and
reasonableness of the official's conduct."
Gates v. Texas Dep't of Protective & Regulatory Servs.,
"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)).
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.
Claims of excessive use
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)
(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)
(citing Johnson v.
("Not every push or
even if it may later seem unnecessary in the peace of a
judge's chambers, violates a prisoner's constitutional rights.")).
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."
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,
(3) the relationship between
the need and the amount of force used,
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. Chandler, 163 F.3d 921, 923 (5th Cir. 1999).
Hudson v. McMillian, Davidson argues that the amount of force used
was tempered by his effort to verbally reason with Olivarez during
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
left eye due
Olivarez's allegations are refuted by the medical determination
made by the nurse, who examined Olivarez several hours after the
Defendant's MSJ, Docket Entry No. 28, pp. 11-12.
Id. at 11.
Id. at 10-11.
Complaint, Docket Entry No. 1, p. 8; More Definite Statement,
Docket Entry No. 20, p. 4.
use of force occurred and observed that he did not require any
treatment because he suffered "[n] o injury. " 19
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.
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,
984 F.2d 699,
(concluding that where the prisoner suffered no
repugnant to the conscience of mankind) .
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)
("No Federal civil action may be brought by a
facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury .
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.
record does not otherwise contain admissible evidence to support
Use of Force Report, Docket Entry No. 28-1, pp. 7-8.
More Definite Statement,
Docket Entry No.
nightmares, fear, and depression).
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.
Defendant's MSJ will be granted.
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
UNITED STATES DISTRICT JUDGE
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