Dillon v. Moore et al

Filing 64

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
KYLE DILLON,
TDCJ #1268995,
Plaintiff,
v.
WARDEN ROCKY MOORE, et al.,
Defendants.

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May 22, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-0204

MEMORANDUM AND ORDER
State inmate Kyle Dillon (TDCJ #1268995) has filed a complaint under 42
U.S.C. § 1983, alleging that two correctional officers (Lieutenant Jose Alvarado and
Officer Kyle Prentice) used excessive force against him and that Nurse Carolyn Rose
refused to provide him with medical treatment following the incident.1 Alvarado and
Prentice have filed a joint motion for summary judgment [Doc. # 54]. Rose has filed
a separate motion for summary judgment [Doc. # 56]. Dillon has filed more than one
response, including a motion to deny summary judgment and a motion that requests
appointment of counsel [Docs. # 58, # 59, # 61, # 62]. After considering the
pleadings, motions, exhibits, and the applicable law, the defendants’ motions will be
granted and this case will be dismissed for the reasons set forth below.
1

Dillon’s complaint against Warden Rocky Moore was dismissed previously for failure
to state a claim upon which relief could be granted. See Memorandum and Order [Doc.
# 43].

I.

BACKGROUND
Dillon is presently incarcerated by the Texas Department of Criminal Justice -

Correctional Institutions Division (“TDCJ”) at the Polunsky Unit.2 Dillon’s claims
stem from an incident that occurred on October 31, 2016,3 when Dillon was confined
in administrative segregation at the Ferguson Unit.4 Dillon’s allegations about that
incident are set forth briefly below.
Dillon states that he was being escorted from the recreation yard by Lieutenant
Alvarado and Officer Prentice following a quarterly shake down for contraband.5
Pursuant to prison policy all administrative segregation inmates are escorted by two
officers while wearing restraints with both hands cuffed behind their back.6 At some
point, Dillon decided to “step through the handcuffs” to put his hands in front of his
body to make it easier to carry a bundle of his property.7 As soon as he did so, Dillon
claims that Alvarado and Prentice slammed him to the concrete floor, “scraping skin

2

Notice of Address Change [Doc. # 63], at 1. For purposes of identification, all page
numbers refer to the pagination inserted by the court’s electronic filing system, CM/ECF.

3

Complaint [Doc. # 1], at 4.

4

More Definite Statement [Doc. # 10], at 1.

5

Id.

6

Id.

7

Id.
2

off [his] face, shoulder, ear, and both knees.”8 Dillon contends that the amount of
force used was excessive and that Nurse Rose failed to treat his injuries or document
a concussion that he sustained as a result of the incident.9 Dillon seeks compensatory
and punitive damages from these defendants in their individual or personal capacity
for the violation of his constitutional rights.10
Alvarado and Prentice move for summary judgment, arguing that the use of
force was necessary after Dillon disobeyed orders by improperly stepping through his
handcuffs and that the amount of force employed was not excessive to the need.11 In
support of their motion, Alvarado and Prentice provide the TDCJ Use of Force Report
that was prepared following the incident, a copy of the TDCJ Use of Force Plan, and
records from a disciplinary proceeding that was filed against Dillon as a result of the
incident.12

Rose also moves for summary judgment, providing records and

photographs from the physical examination conducted after the use of force, showing

8

Complaint [Doc. # 1], at 4.

9

Id.

10

Claims against the defendants in their official capacity as state employees have been
dismissed previously as barred by the Eleventh Amendment. See Memorandum and Order
[Doc. # 43].
11

Alvarado and Prentice’s Motion for Summary Judgment [Doc # 54], at 11.

12

See id. (Exhibits A, B, & C).
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that Dillon sustained only minor abrasions that did not require treatment.13
Disciplinary records show that Dillon was found guilty in Case No.
20170068805 of creating a disturbance that resulted in a use of force.14 As a result of
that conviction, Dillon’s commissary privileges were suspended for 30 days and he
was restricted to his cell for 15 days.15 Arguing that Dillon’s constitutional rights were
not violated, all three defendants contend that they are entitled to qualified immunity
from the claims against them.
II.

STANDARD OF REVIEW
The defendants move for summary judgment pursuant to 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

13

See Rose’s Motion for Summary Judgment [Doc. # 56], at 8 (referencing Exhibits A

& B).
14

Offense Report [Doc. # 54-2], at 3.

15

TDCJ Disciplinary Worksheet [Doc. # 54-2], at 8.
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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). A reviewing court “must view the evidence introduced and all
factual inferences from the evidence in the light most favorable to the party opposing
summary judgment[.]” Smith v. Regional Trans. Auth., 827 F.3d 412, 417 (5th Cir.
2016).

However, a non-movant cannot avoid summary judgment simply by

presenting “conclusory allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation.” Jones v. Lowndes Cnty.,
Miss., 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, 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).
III.

DISCUSSION
A.

Qualified Immunity

Public officials acting within the scope of their authority generally are shielded
from a suit for monetary damages by the doctrine of qualified immunity. See Harlow

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v. Fitzgerald, 457 U.S. 800, 818 (1982). 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, 563 U.S. 731, 735 (2011)
(citation omitted). This is an “exacting standard” that protects “all but the plainly
incompetent or those who knowingly violate the law.” City & Cnty. of San Francisco
v. Sheehan, — U.S. —, 135 S. Ct. 1765, 1774 (2015) (citation omitted).
If a plaintiff succeeds in showing that a 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 was clearly established at the time of
the disputed action.” Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004).
“Whether an official’s conduct was objectively reasonable is a question of law for the
court, not a matter of fact for the jury.” Brown v. Callahan, 623 F.3d 249, 253 (5th
Cir. 2010) (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. (citation omitted).
As this standard reflects, “[a] good-faith assertion of qualified immunity alters
the usual summary judgment burden of proof, shifting it to the plaintiff to show that

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the defense is not available.” King v. Handorf, 821 F.3d 650, 653-54 (5th Cir. 2016)
(internal quotation marks and citations omitted). “The plaintiff must rebut the defense
by establishing that the official’s allegedly wrongful conduct violated clearly
established law and that genuine issues of material fact exist regarding the
reasonableness of the official’s conduct.” Id. at 654 (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)).
B.

Eighth Amendment Claims Against Alvarado and Prentice

Dillon contends that Alvarado and Prentice violated the Eighth Amendment by
slamming him to the concrete floor with excessive force. 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).
Not every malevolent touch by a prison guard gives rise to a constitutional violation
under the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 9 (1992) (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 a judge’s chambers, violates a
prisoner’s constitutional rights.”)). The Constitution excludes from recognition de

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minimis uses of physical force, provided that the use of force is not of a sort
“‘repugnant to the conscience of mankind.’” Hudson, 503 U.S. at 10 (citation and
quotation omitted). The “core judicial inquiry” is “whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Id. at 6-7; see also Whitley, 475 U.S. at 320-21.
The Supreme Court has articulated the following relevant factors to consider
in evaluating whether force used was excessive to the need: (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 Hudson, 503 U.S. at 7 (citation omitted); see also Cowart v. Erwin, 837
F.3d 444, 452 (5th Cir. 2016) (reciting the “well-known Hudson factors”). The Fifth
Circuit has recognized that these factors are “not exclusive” and that “each case must
be judged on its own facts.” Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
In that regard, the amount of force that is constitutionally permissible “must be judged
by the context in which that force is employed.” Ikerd v. Blair, 101 F.3d 430, 434
(5th Cir. 1996).
1.

Dillon Does Not Establish a Constitutional Violation

According to the Use of Force Report, Lieutenant Alvarado and Officer

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Prentice were escorting Dillon back to his cell in administrative segregation following
a search of his property when Dillon stopped and began to step through his hand
restraints, which had been positioned behind his back, moving them to the front of his
body.16 Alvarado ordered Dillon to stop, but Dillon refused to obey.17 At that time,
Alvarado and Prentice applied “forward downward pressure and guided [Dillon] to
the floor in a face down prone position.”18 While on the ground Dillon continued to
resist the officers, who radioed for help.19 After other officers arrived Dillon was
escorted to the unit infirmary, where Nurse Rose noted that he had minor “scrapes and
bruises” on his face, left elbow, left hand, and both knees.20 Officials who reviewed
the incident determined that force was used in a manner that was consistent with the
TDCJ Use of Force Plan after Dillon refused to obey orders and pulled away from the
officers.21
Addressing each of the Hudson factors, the defendants argue that force was
necessary to gain compliance and ensure their safety because Dillon stepped through

16

TDCJ Use of Force Report [Doc. # 54-1], at 9.

17

Id.

18

Id. at 9, 17-18.

19

Id. at 9.

20

Id.

21

Id. at 4, 5.
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his handcuffs and disobeyed orders to cease doing so.22 The defendants argue further
that the force employed was limited to the minimum amount necessary to secure
Dillon’s compliance and tempered by Lieutenant Alvarado’s efforts to reason with
Dillon several times while Dillon attempted to move his restraints to the front of his
body, which posed a serious risk to the officer’s safety and institutional security.23
The defendants note, moreover, that Dillon sustained only minor injuries as a result
of the use of force.24
The record reflects that Dillon was examined immediately after the use of force
occurred by Nurse Rose, who determined that Dillon sustained abrasions on his knees,
left arm, and face, but that his injuries were “minor” and did not require any
treatment.25 Photographs taken after the incident occurred confirm that Dillon
sustained minor abrasions to his face, left arm, and knees.26 Injuries such as these are
considered minimal and are insufficient to make an excessive-force claim under the
Eighth Amendment. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)
(holding that a sore, bruised ear lasting for three days was de minimis and would not

22

Defendant Alvarado and Prentice’s Motion for Summary Judgment [Doc. # 54], at 11.

23

Id. at 12.

24

Id. at 9-11.

25

Use of Force Report [Doc. # 54-1], at 35.

26

Photographs [Doc. # 56-3], at 15-17.
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support an excessive-force claim); Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex.
1997) (holding that sore muscles, scratches, abrasions, and bruises do not rise above
the level of de minimis injury and are insufficient to support a claim for damages
under the Eighth Amendment or the Prison Litigation Reform Act, 42 U.S.C. §
1997e(e)); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (noting that a significant
injury is not required, but that the “absence of serious injury” may indicate that the
amount of force applied was “not of a sort repugnant to the conscience of mankind”)
(quoting Hudson, 503 U.S. at 7, 9-10).
Dillon contends that he sustained a more serious injury as a result of the use of
force, namely, a concussion which Nurse Rose failed to document.27 However, other
than his conclusory statement, Dillon does not present any evidence in support of this
allegation. Indeed, it is contradicted by medical records submitted by Nurse Rose.
Those records reflect that Dillon was treated at a different prison facility several days
after the use of force at issue in this case, but complained only of muscle soreness and
stiffness,28 which was treated with acetaminophen (Tylenol).29

Under these

circumstances, Dillon’s unsupported allegations do not demonstrate that excessive
27

Opposition to Defendant Lt. Alvarado and Prentice’s Motion for Summary Judgment
[Doc. # 58], at 2.
28

Nursing Protocol for Musculoskeletal Symptoms dated Nov. 5, 2016 [Doc. # 56-3],

at 34.
29

Id. at 38.
11

force was used maliciously or sadistically in violation of the Eighth Amendment and
do not otherwise defeat qualified immunity.30 See Orr v. Copeland, 844 F.3d 484, 490
(5th Cir. 216) (“Conclusory allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation are all insufficient
to overcome [qualified] immunity.”) (citation and internal quotation marks omitted).
Therefore, Alvarado and Prentice are entitled to summary judgment on the Eighth
Amendment claims against them.
2.

The Defendants’ Actions Were Objectively Reasonable Under
the Circumstances

Alternatively, assuming that Dillon suffered an injury that was more than de
minimis and that a constitutional violation occurred, Alvarado and Prentice argue
further that they are still entitled to qualified immunity because their actions were
objectively reasonable in light of existing law and the information they possessed.31
As noted above, the use of force occurred while Alvarado and Prentice were returning
Dillon to his cell in administrative segregation, which features the most restrictive
30

Dillon notes that medical records from an examination done on November 3, 2016
show that he had a black eye, which he claims was inflicted during the use of force that
occurred on October 31, 2016. See Plaintiff’s Response to Defendant Rose’s Motion for
Summary Judgment [Doc. # 61], at 2. Photographs taken after the incident, however, show
that there was no bruising, swelling, or other injury near either one of Dillon’s eyes. See
Photographs [Doc. # 56-3], at 15. Because the photographs contradict Dillon’s claim, this
allegation is insufficient to raise a genuine issue of material fact.
31

Defendant Alvarado and Prentice’s Motion for Summary Judgment [Doc. # 54], at 13-

14.
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conditions within the prison’s classification system and is typically reserved for
inmates who are “dangerous, either to other offenders or staff[.]”32 Dillon does not
deny that the officers who were escorting him had applied restraints in compliance
with TDCJ policy that requires administrative segregation inmates to be cuffed with
their hands behind their backs.33 Dillon also concedes that he stepped through his
handcuffs on the date in question.34 Officials who reviewed the incident concluded
after conducting an administrative investigation that the use of force was consistent
with the TDCJ Use of Force plan and justified under the circumstances to secure
Dillon’s compliance with repeated orders, which Dillon refused to obey.35 Use of
force is considered an appropriate response where an inmate refuses to obey repeated
orders. See Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984) (“If it 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, such as a chemical agent or
physical force.”).
Dillon argues that the defendants’ actions were not justified because “[n]o one

32

TDCJ Offender Orientation Handbook, at p. 6, available at http://www.tdcj.state.tx.us
(last visited May 18, 2018).
33

More Definite Statement [Doc. # 10], at 1.

34

Id.

35

TDCJ Use of Force Report [Doc. # 54-1], at 4, 5.
13

could reasonably believe” that he posed a threat to the officers.36 Dillon’s argument,
however, is unsupported by specific facts or admissible evidence showing that their
actions were not taken in a good-faith effort to restore order. See Hudson, 503 U.S.
at 7; Whitley, 475 U.S. at 320-21. This is insufficient to raise a genuine issue of
material fact on whether the defendants’ actions were objectively unreasonable under
the circumstances in view of existing law and the facts known to them. See King, 821
F.3d at 654; Brown, 623 F.3d at 253. Because Dillon has failed to meet his burden to
show that the actions taken by Alvarado and Prentice were objectively unreasonable,
these defendants are entitled to qualified immunity for this additional reason.
Accordingly, the motion for summary judgment filed by Alvarado and Prentice will
be granted.
C.

Eighth Amendment Claims Against Nurse Rose

Dillon contends that Nurse Rose violated the Eighth Amendment by failing to
treat or document a concussion that he sustained as a result of the use of force. A
prison official’s “deliberate indifference to serious medical needs of prisoners” can
constitute “unnecessary and wanton infliction of pain” of the type proscribed by the
Eighth Amendment and actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429
U.S. 97, 104 (1976). The deliberate indifference standard is an “extremely high” one

36

Opposition to Defendant Lt. Alvarado and Prentice’s Motion for Summary Judgment
[Doc. # 58], at 1.
14

to meet. Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001). “A showing of deliberate indifference requires the prisoner to submit evidence
that prison officials ‘refused to treat him, ignored his complaints, intentionally treated
him incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.’” Gobert v. Caldwell, 463 F.3d 339, 346 (5th
Cir. 2006) (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
As noted above, medical records and photographs taken after the use of force
reflect that Dillon sustained minor abrasions to his face, left arm, and knees.37
Although Dillon was treated several days after the incident, medical records from that
examination show that he complained only of muscle soreness and stiffness.38 The
medical records of this examination, which was conducted at a different prison
facility, refute Dillon’s claim that he suffered a concussion as a result of the use of
force that occurred on October 31, 2016, or that Nurse Rose refused to treat him or
document this injury with deliberate indifference to a serious medical need. Because
Dillon does not show that Nurse Rose violated the Eighth Amendment, she is entitled
to qualified immunity and her motion for summary judgment on this issue will be
granted.

37

Use of Force Report [Doc. # 54-1], at 35; Photographs [Doc. # 56-3], at 15-17.

38

Nursing Protocol for Musculoskeletal Symptoms dated Nov. 5, 2016 [Doc. # 56-3],

at 34.
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IV.

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

The motion for summary judgment filed by Defendants Jose Alvarado
and Kyle Prentice [Doc. # 54] and the motion for summary judgment
filed by LVN Carolyn Rose [Doc. # 56] are GRANTED.

2.

Plaintiff Kyle Dillon’s motion to deny summary judgment and motion
for appointment of counsel [Docs. # 59, # 62] are DENIED.

3.

This case is DISMISSED with prejudice.

SIGNED at Houston, Texas on May 22, 2018.

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

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