Johnson v. Gonzales et al

Filing 54

MEMORANDUM OPINION AND ORDER granting 48 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 1 of 24
United States District Court
Southern District of Texas

ENTERED
January 21, 2021

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANTONIO ANDREA JOHNSON,
TDCJ #2114392,

§
§
§
§
§
§
§
§
§
§
§

Plaintiff,

v.
OFFICER CHANNING HILL and
OFFICER TEROJI KELLY,
Defendants.

Nathan Ochsner, Clerk

CIVIL ACTION NO. H-18-1568

MEMORANDUM OPINION AND ORDER

State inmate Antonio Andrea Johnson (TDCJ #2114392) has filed
a Prisoner's

Civil

Rights

Complaint

under

42

U.S. C.

§

1983

("Complaint") (Docket Entry No. 1), alleging that two detention
officers used excessive force against him while he was confined at
the Harris County Jail.

At the court's request Johnson provided

additional details about his claims in Plaintiff's More Definite
Statement
Harris

("Plaintiff's MDS")

County

Attorney's

(Docket Entry No.

Office

provided

an

10),

and the

Amicus

Curiae

Harris County Attorney's Office's Martinez Report with administra­
tive records under Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1987)
("Martinez Report") (Docket Entry No. 14).
filed an

amended Prisoner's Civil Rights

Subsequently, Johnson
Complaint

("Amended

Complaint") (Docket Entry No. 23), identifying Officer Channing
Hill and Officer Teroj i ·Kelly as the officers who assaulted him.

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 2 of 24

Now pending before the court is Defendants Detention Officer
Channing Hill and Detention Officer Teroj i Kelly's Motion. for
Summary Judgment

("Defendants'

MSJ")

(Docket

Entry No.

48).

Johnson has filed plaintiff's Response to Defendants' Summary
Judgment Motion

("Plaintiff's Response")

(Docket Entry No.

52,

pp. 6-8), which includes handwritten and typed versions of:
Declaration In Opposition to Defendants' Motion for
Summary
Judgment
("Plaintiff's
Declaration
in
Opposition") (pp. 9-11);
Plaintiff's Statement of Disputed Factual Issues (pp. 1213) ;

Plaintiff's Brief In Opposition to Defendants' Summary
Judgment Motion ("Plaintiff's Brief in Opposition")
(pp. 14-18); and
Declaration/Letter of Antonio Andrea Johnson (p. 19). 1
After

considering

applicable law,

all

of

the

pleadings,

exhibits,

and

the

the court will grant Defendants' · MSJ and will

dismiss this case for the reasons set forth below.
I.

Background

Johnson alleges that Officers Hill and Kelly assaulted him on
January

21,

2017,

Harris County Jail. 2

while

he

was

a

pretrial

detainee at

the

Johnson contends that he was assaulted for no

The Clerk's Office filed all of the submissions included with
Plaintiff's Response as one instrument within Docket Entry No. 52.
The court will refer to these submissions by the specific name
assigned to them by Johnson.
1

Complaint, Docket Entry No. 1, p. 4; Plaintiff's MDS, Docket
Entry No. 10, pp. 2-3. For purposes of identification, all page
(continued ... )
2

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 3 of 24

reason while his hands were handcuffed behind his back and that he
sustained a deep laceration above his right eye after Officer Hill
slammed his face into a brick wall during that incident. 3

Johnson

claims that Officers Hill and Kelly continued to assault him while
escorting him to the Jail medical clinic for treatment, punching
and kicking him the entire time. 4

As a result, Johnson alleges

that the defendants "reinjured [his] broken left [ankle] that had
two pins holding it in place[,]" caused cuts on hi� wrists from the
handcuffs, and inflicted unspecified "damage" to his left shoulder
and back. 5 Johnson seeks compensatory and punitive damage9 for the
violation of his constitutional rights under the Eighth Amendment. 6
The defendants move for summary judgment, arguing that they
are entitled to qualified immunity from Johnson's claims because he
cannot

establish that they engaged in wrongful conduct that

violated clearly established law or that they acted unreasonably
under the circumstances. 7

In support of the motion, the defendants

continued)
numbers refer to the pagination imprinted by the court's electronic
filing system, CM/ECF.
2 ( •••

Amended . Complaint, Docket Entry No. 23, p. 3; Plaintiff's
MDS, Docket Entry No. 10, p. 4.
3

4

Plaintiff's MDS, Docket Entry No. 10, pp. 3, 4-5.

5

Jd. at 4.

Amended Complaint, Docket Entry No. 23, p. 4.

6
7

Defendants' MSJ, Docket Entry No. 48, pp. 7-16.
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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 4 of 24

provide

affidavits

and

records

from

the

administrative

investigation of the incident, which are summarized below.
On - January 21,

2017, · detention officers were conducting

routine search of the cellblock where Johnson was located, 8

2.

When

the search took place Johnson was facing three counts of aggra.vated
robbery and one count of assault. 9

He was al::;;o assigned to a

maximum security administrative separation cell in the "supermax"
housing unit as the result of an attempted esca.pe.. 10
Officers Hill and Kelly were working as roving detention
officers when they were called to assist with the search of
Johnson's cell. 11

Two detention officers (Officer Brentlinger and

Officer Williams) searched Johnson's person and then placed him in
handcuffs outside of his cell. 12

Johnson was then ordered to stand

quietly and face the wall while officers searched his cell for

Affidavit of Channing Hill ("Hill Affidavit"),- Exhibit C to
Defendants' MSJ, Docket Entry No. 48-3, p. 2.
,

8

JIMS Booking Inquiry, Exhibit A to Defendants' MSJ, Docket
Entry No. 48-1, p. 27.
9

Justice I:r:iformation and Management System-_ Ca.ution - LitE:_ral
Display Screen, Exhibit A to Defendants' MSJ, Docket Entry
No, 48-1, p. 28.
10

11Hill Affidavit, Exhibit C to Defendants'- MSJ, Docket Entry
No. 48-3, p. 2; Affidavit of Detention Officer Teroji Kelly ("Kelly
Affidavit"), Exhibit D to Defendants' MSJ, Docket Entry No. 48-4,
p. 2.

Detention Command_ - Inmate Offense Report:, 'Exhibit A to
Defendants'_ MSJ, Docket Entry No. 48-1, pp. 4-5 (Statements of
Officers Brentlinger and Williams).
12

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 5 of 24

contraband. 13

Officers Brentlinger, Williams, Marshall, Hill, and

Kelly cohducted the search of Johnson's cell. 14

Officer Vasquez

monitored Johnson while · the other officers searched Johnson's
property. 15
Johnson became agitated during the search and disrupted the
officers' efforts by turning away from the wall several times. 16
Johnson was concerned that the officers were throwing away legal
papers or commissary items that he had purchased and he objected to
the search. 17

Officer Brentlinger ordered Johnson to face the wall

and remain silent until the officers were finished with the
search. 18

Officer Hill repeated similar orders, directing Johnson

multiple times to· face the wall. 19
According

to

Officers

Brentlinger

and

Vasquez,

Johnson

continued to disobey orders to stand quietly while facing the wall
and stop disrupting the search. 20

When Officer Hill again ordered

Johnson to turn and face the wall, Officer Kelly heard Johnson
Id. at 4 (Statement of Officer Brentlinger).

13

Id. at 4-5 (Statements of Officers Brentlinger, Hill, Kelly,
Marshall, and Williams).
14

15

Id. at 5 (Statement of Officer Vasquez) .

16

I_d. at 4 (Statement of Officer Brentlinger)

18
19

Jd. at 4 (Statement of Officer Brentlinger).
Id. at 4-5 (Statements of Officers Brentlinger and Vasquez).
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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 6 of 24

respond:

"I'm not scared of you bitch ass nigga, I don't care if

you ask. me nicely," emphasizing that he wanted to make sure none of

the officers discarded his legal papers.21

When Officer Hill

repeated the order to stand facing the wall, Johnson became more
aggressive, exclaiming:
are you?

"Man Fuck you bitch nigga!

· Who the fuck

I' 11 beat your ass talking to me like that! "22 According

to Officer Hill, Johnson then laughed and stated, "Man I ain't
facing no wall. "23

Officer Hill "grabbed Inmate Johnson's left arm

and turned him around and placed him on the wall" after Johnson

refused to comply and attempted to head-butt him.24

Officer Kelly

noticed that Johnson had a "small cut over -his right eye" and
escorted him to the clinic along with Officer Hill.25

According to Officer Kelly, Johnson became combative once they
arrived at the clinic, aggressively pulling away from Officer Hill
and demanding that his handcuffs be removed.26

Officer Hill also

observed that Johnson continued to behave in a belligerent manner
and to use threatening language on the way to the clinic, stating:
"Watch when these fucking cuffs come off bitch I'm going to beat
21Id. at

5

(Statement of Officer Kelly) .

22Id. at 2 (Statement of Officer Hill) .
23Id.

24.Id
.
25Id. at 5 (Statement of Officer Kelly) .
26Id.

..:6-

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 7 of 24

your ass."27

Officer Hill ordered Johnson, who was physically

resisting, to calm down. 28

When a ranking officer arrived, Officer

Hill informed Johnson that he would be written up for a major
disciplinary infraction for violating the rule against "Assault of
Any Staff Member," which states that "No inmate shall strike,
physically touch or cause contact with any staff member by any
means or make any legitimate attempt to do so. "29
Johnson submitted a grievance and more than one statement
regarding the assault that occurred outside his cell on January 21,
2017. 30

In all three statements Johnson admitted turning from the

wall and objecting that officers were discarding legal material,
mail, or commissary iterns from his property. 31

In his . initial

statement Johnson admitted talking back to Officer Hill after Hill
ordered him to face the wall. 32
27

Johnson stated that Officer Hill

Id. at 2 (Statement of Officer Hill) .

Statement from Antonio Johnson, dated January 21, 2017
("1/21/17 Johnson Statement"), Exhibit A to Defendants' MSJ, Docket
Entry No. 48-1, p. l; Inmate Complaint Form, Exhibit A· to
Defendants' MSJ, Docket Entry No. 48-1, pp. 21-22; Harris County
Sheriff's Office ("HCSO") Non-Employee Sworn Statement of Antonio
Johnson ("Johnson's Sworn Statement"), Exhibit A to Defendants'
MSJ, Docket Entry No. 48-1, pp. 23-24.
30

1/21/17 Johnson Statement, Exhibit A to Defendants' MSJ,
Docket Entry No. 48-1, p. l; Inmate Complaint Form, Exhibit A to
Defendants' MSJ, Docket Entry No. 48-1, p. 21; Johnso�'s Sworn
Statement, Exhibit A to Defendants' MSJ, Docket Entry No. 48-1,
p. 24.
31

1/21/17 Johnson Statement, Exhibit A to Defendants' MSJ,
Dock�t Entry No. 48-1, p. 1.
32

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 8 of 24

then "slammed

[his]

face into the wall with a lot of force,"

causing ,Johnson to become dizzy. 33

Johnson also stated that

Officers Hill and Kelly continued to assault him all the way to the

clinic. 34

Still photographs taken after the incident show that Johnson

sustained a small laceration above his right eye and that he had

blood running down his face onto the front of his shirt. 35

The

physician who examined Johnson at the clinic observed that he had

a two-centimeter laceration on his right upper eyelid, which was

treated with stitches and Ibuprofen for pain. 36

Johnson reported

no other issues and, other than elevated blood pressure, none were

obselved during the examination. 37

the

I allowing

Johnson was seen in the clinic

day, January 22, 2017, where he reported seeing blood

whenthe blew his nose and nasal congestion. 38 The nurse treated him
for

cold ("Rhinitis") and prescribed a "tiasal steroid." 39

She

also gave him some ointment to apply to the laceration a�ove his
33

.J d.

Inmate Complaint Form, Exhibit A to Defendants' MSJ, Docket
Ent�y N6. 48-1, p. 21; Johnson's Sworn Statement, Exhibit A to
Deferdants' MSJ, Docket Entry No. 48-1, p. 24.
34

Photographs, Exhibit A to Defendants' MSJ, Docket Entry
No. 48-1, pp. 9-12.
35

36

37
38
39

HCSO Health Services Progress Note, Docket Entry No. 49, p. 4.
Id. at 3-6.

HCSO Health Services Progress Note, Docket Entry No. 49, p.
Id. at 8-9.

-8-

8.

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 9 of 24

right eye. 40

Johnson had no other healthcare ·complaints. 41 He was

seen in his cell by nurses conducting rounds on January 22 and 23,
but he.reported no healthcare complaints.42
�Johnson also reported no healthcare complaints at a mental
health examination in the clinic on January 23, 2017, although he
reported feeling "irritated" about the altercation h� had with an
officer during the search of his cell.43

John.son acknowledged that

by turning to look at the search he "triggered the officer," who
Johnson believed was new to the Jail and was "trying to prove
himself [.] " 44

Johnson added that in the future .he planned to "stay

quiet and only look at the wall as opposed to directing his eyes at
his pelongings. " 45
Jail administrators reviewed the use-of-force incident that
occurred on January 21, 2 o 17. 46

After considering the witness

statements and medical records that showed only a minor injury, the

40

Id. at 9, 10.

41

Id.. at 8-10.

42

HCSO Heal th Services Rounds, Docket Entry No. 4 9, pp. 12,

14;-15.
43

p. 16.

44
4

HCSO Health Services Progress Note, Docl(et Entry No.

4 9,

Id.

sid.

46

Use of Force IAD #UOF2017-00036, Exhibit A to Defendants'
MSJ, Docket Entry No. 48-1, pp. 14-20.
�9-

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 10 of 24

Jail administrator concluded that the use of force was reasonable
and did not violate the law or Jail policy. 47
On

January

23,

2017,

Johnson

was

formally

charged with

violating Jail disciplinary rules for attempting to assault a staff
member· during the incident that occurred on January 21, 2017. 48

On

February 2, 2017, Johnson entered a guilty plea and was convicted
of the aggravated robbery and assault charges against him in state
court. 49

On February 23, 2017, ,Johnson was transferred to TDCJ,

where he remains incarcerated. so
II.
A.

Standards of Review

The Motion for Swnmary Judgment

The defendants have filed a motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure. 51

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."
P. 56 (a)
·

47

Fed. R. Civ.

(2018); see also Celotex Corp. v. Catrett, 106 S. Ct.

Id. at 16.

Justice Information and Management System Caution Literal
Oisplay Screen, Exhibit A to Defendants' MSJ, Docket Entry
No. 48-1, p. 28.
48

Case Information, Exhibit A to Defendants' MSJ, Docket Entry
No. 48-1, p. 30.
49

50

Plaintiff' s MDS, Docket Entry No. 10

51

Defendants' MSJ, Docket Entry No. 48, p. 11.
-10-

I

p. 1.

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 11 of 24

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.

Liberty Lobby,

Inc·., 106 S. Ct. 2505,

2510

(1986). An.{ssue is "gen:uine" if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.

Id.

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."

Sanchez v. Young County, Texas, 866

F.3d 274, 279 (5th Cir. 2017) (citing Cuadra v. Houston Indep. Sch.
Dist., 626 F.3d 808, 812 (5th Cir. 2010)); see also Matsushita
Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106 S. Ct.
1348, 1356 (1986).

In deciding a summary judgment motion, the

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

Dillon v. Rogers,

596 F.3d 260, 266 (5th Cir. 2010) (internal quotation marks and
citation omitted).
The non-movant's burden is not met by mere reliance on the
allegations or denials in the non-movant's pleadings.

See Diamond

Offshore Co. v. A&B Builders, Inc., 302 F. 3d 531, 545 n. 13 ( 5th
Cir. 2 O 02).
by

Likewise, the non-movant cannot avoid summary judgment

presenting

'" [c]onclusional

allegations

and

denials,

speculation, improbable inferences, unsubstantiated assertions,. and
legalistic argumentation.'"

Jones v. Lowndes County, Mississippi,
-11-

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 12 of 24

678 F.3d 344, 348 (5th Cir. 2012) (quoting TIG Insurance Co. v.
Sedgwick James
see also

of

Washington, 276 F.3d 754, 759 (5th Cir. 2002));

Little v. Liquid

1994) (en ban e) (a
material

fact

non-movant cannot

with

assertions, or only
has

no

Corp., 37 F.3d 1069; 1075 (5th Cir.

Air

concluso ry

a scintilla

de monstrate

evide nce

judgm�nt."

to

of

Adams v.

support

evide nce).
sift

unsubstantiated

Further,

through

I ndemnity

the court

t he

party' s opposition

a

Travelers

genuine issue of

allegations,

obligation unde r Rule 56 "to

search of

a

record in
to

s ummary

Co. of Connecticut, 465

F.3d 156, 164 (5th Cir. 2006) (quotation omitted).
The plaintiff represents himse lf in this
required to give a pro se
construction.

Se e Erickson

(citing Estelle
Haines

v.

v

Kerner,

lawyers) .

v.

stringent

compla int,

there

is

a

are

a liberal

595-96

(1972)

see

also

(noting that

however inartfully pleaded, are

standards than formal pleadings drafted by

Neve rtheless, a pro

summary

contenti o ns

courts

P ardus, 127 S. Ct. 2197, 2200 (2007)

92 S. Ct. 594,

meeting his burden of proof by
in the

and

. Gamble, 97 S. Ct . 285, 292 (1976));

allegations in a pro se
held to le s s

litigant' s

case,

se

litigant

s pecifically

judgment record and

setting

is not

excused

referring

forth facts

from

to evid ence
showing

that

genuine issue of material fact re maining for trial. See

Outle
v
===-= e =--===--=�====- =tes I nc
-=-====--=:c.y,____,___,_.-----=Luk='----'& Assoc i·=a-"''""''""'-'''--=--"-'=:....:... , 84 O F . 3 d 212, 217 (5th Cir.

2016)

(citations

o mitted);

see

a ls o

B ookman

v.

Shubzda,

F. Supp. 999, 1004 (N.D. Tex. 1996) (citations omitted).
-12-

945

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 13 of 24

B.

Qualified Immunity

The defendants have asserted qualified immunity from suit.52
Public

officials

acting

within

the

scope

of

their

authority

generally are shielded from civil liability by the doct�ine of
qualified immunity.
2738 (1982).

See Harlow v. Fitzgerald, 1·02 S. Ct . ·2727,
·

Qualified immunity protects "all but the plainly

incompetent or those who knowingly violate the law."
Briggs,

106 S. Ct. 1092,

Malley v.

1096 (1986).

A plaintiff seeking to

overcome qualified immunity mu.st show:

"(1) that the cfficial

violated a statutory or constitutional right,
right was
conduct."

'clearly established 1
Ashcroft v. al-Kidd,

(cit�tion omitted).
immunity

(2)

that the

at the time of the challenged
131 S.

Ct. 2074,

2080 (2011)

If the defendant's actions violated a clearly

established constitutional right,
qualified

and

is

the court then asks whether

nevertheless

appropriate

"because

the

defendant's actions were 'objectively reasonable' in light of 'law
which was clearly established at the time of the disputed action.'"
Brown v.

Callahan,

623 F.3d 249,

253 (5th Cir. 2010)

(quoting

Collins v. Ainsworth, 382 F.3d 529� 537 (5th Cir. 2004)).
"A good-faith assertion of qualified immunity alters the usual
summ�ry 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 (5th Cir. 2016) (internal quotation marks omitted)..

when.

a defendant pl.eads_ qualified immunity, the burden shifts to the
52

Defendants' MSJ, Docket Entry No. 48, p. · 6.'
-13-

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 14 of 24

plaintiff, "who must rebut the defense by establishing a genuine
fact issue as to whether the official's allegedly'wrongful conduct
violated clearly established law."
380

(5th Cir. 2020)

omitted)
defendant

Dyer v. Houston, 964 F.3d 374,

(citations and internal quotation marks

"Qualified immunity is a complete defense,
is]

entitled to summary

judgment

on

the

and

[a

basis

of

qualified immunity.unless [the plaintiff] can show triable issues
as to whether [the defendant] violated a clearly established right
of which a reasonable officer would have been a\,1are."
Hayne, 860 F.3d 819, 824 (5th ,Cir. 2017).
satisfy

this

burden

with

cbnclusory

Brewer

A plaintiff does not
allegations

based

speculation or unsubstantiated assertions of wrongdoing.
.Mitchell

V.

Mills,

895

F.3d

365,

v.

370

(5th

Cir.

on
See

2018);

Williams-Boldware v. Dentori County, Texas, 741 F.3d 635, 543-44
(5th Cir. 2014).
III. - Discussion
A.

Johnson's Eighth Amendment Claims

: As rioted above,

Johnson alleges that the defendants used

excessive ·force against him in violation of 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) (quoting Estelle v. Gamble, 97 S. Ct. 285,
2 91

(1976)). 53· The defendants correctly

note that the Eighth

Amended Complaint, Docket Entry No. 23, p. 4; Plail'itiff' s
Response, Docket Entry No. 52, pp. 6-7.
53

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 15 of 24

Amendment does not

apply

to excessive-force

claims involving

pretrial detainees.54 While the Eighth Amendment protects convicted
felons,

pretrial

detainees

are· protected

by

the · Fourteenth

Amendment Due Process Clause "from the use of excessive force that
amounts to punishment."
n.10

(l989)

(1979))

Graham v. Connor, 109 S. Ct. 1865, 1871

(citing Bell v. Wolfish,

99 S. Ct. 1861,

1871,74
I
Because the Eighth Amendment does not apply, the court
I

will grant the defendants' request for summary Judgment on that
I

.,

claim and address Johnson's allegations of excessive force under
I

the Fourteenth Amendment.
B.

Johnson's Claims Under the Fourteenth Amendment

To defeat qualified immunity and prevail on

a

claim under the

Fourteenth Amendment a prisoner must show that force was "purposely
or knowingly used against him" in a manner that was "objectively
unreasonable."

Kingsley v. Hendrickson,

135 S. Ct. 2466, 2473

(2615) (clarifying that "the appropriate standard for a pretrial
detainee's excessive force claim is solely an objective one"); see
also Thompson v. Beasley, 309 F.R.D. 236, 246-47 (N.D. Miss. 2015)
(calling intO question

pre-Kingsley

precedent

from

the

Fifth

Circuit) (citations omitted). A pretrial detainee can prevail only
if he shows that the defendants applied force in a manner th.at was
not ''rationally related to a legitimate nonpunitive governmental
purpose" or that the actions were "excessive in relation to that
54

Defendants' MSJ, Docket Entry No. 48, p. 14.
-15-

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 16 of 24

purpose."

Kingsley, 135 S. Ct. at 2473 (quoting Bell, 99 S. Ct. at

1886).
Whether an officer's actions are objectively reasonable "turns
on

the

'facts

and

circumstances

of

each

particular

case.'"

Kingsley, 135 S. Ct. at 2473 (quoting Graham, 109 S. Ct. at 1872).
"A court must make this determination from the perspective of a
reasonable officer on the scene, including what the officer knew at
the time,

not with the 20/20 vision of hindsight."

Id.

The

"calculus of reasonableness" must take into account the fact that
officers

"are often forced

to make split-second

judgments

circumstances that are tense, uncertain, and rapidly evolving
about the amount of force that is necessary in a particular
situation."

Graham, 109 S. Ct. at 1872.

A reviewing court must

also take into account policies and practices judged necessary by
jail officials for the legitimate interests of preserving internal
order,

discipline,

and institutional security.·

Kingsley,

135

S. Ct. at 2473 (citing Bell, 99 S. Ct. at 1878).
To determine whether a use of force was objectively reasonable
or unreasonable, a reviewing court may consider the following non­
exclusive list of factors:

(1) the relationship between the need

for the use of force and the amount of force used; (2) the extent
of the plaintiff's injury; (3) any effort made to temper or limit
the amount of force;
issue;

(4) the severity of the security problem at

(5) the threat reasonably perceived by the defendant; and

(6) whether the plaintiff was actively resisting.
-16-

See Kingsley,

Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 17 of 24

135 S. Ct. at 2473 (citation omitted).

Johnson's claims against

Officers Hill and Kelly are analyzed separately below.
1.

Officer Hill

In addition to his own affidavit, which is consistent with the
statement he gave after the use of force occurred on January 21,
2017, Officer Hill presents statements from several officers who
observed that Johnson disobeyed repeated verbal commands and caused
a disruption by refusing to stand quietly at the wall as directed. 55
Officer Hill admits that he used force, explaining that he grabbed
Johnson's left arm and placed him against the wall using a
technique

described

as

"soft

empty

hand

control"

to

obtain

Johnson's compliance and protect himself after Johnson attempted to
head butt him. 56

Hill denies striking or assaulting Johnson at any

time in spite of the attempted head butt, the verbal abuse, and the
threatening language that Johnson used. 57
Johnson asserts that there is a fact issue about whether he
was disobeying orders by refusing to face the wall and remain
silent before he was assaulted. 58
Hill Affidavit, Exhibit
No 48-3, pp. 2-3; Detention
Exhibit A to Defendants' MSJ,
(Statements of Officers Hill,
55

56

No.

Because he was "not resisting"

C to Defendants' MSJ, Docket Entry
Command - Inmate Offense Report,
Docket Entry No. 48-1, pp. 2, 4-5
Brentlinger, Kelly, and Vasquez).

Hill Affidavit, Exhibit C to Defendants' MSJ, Docket Entry
pp. 2-3.

48-3,
57

Id. at 2.

See Plaintiff's Statement of Disputed Factual Issues,
included in Docket Entry No. 52, p. 12; Plaintiff's Brief in
Opposition, included in Docket Entry No. 52, pp '. 14-15.
58

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 18 of 24

or disobeying, Johnson also argues that Officer Hill needlessly
used force by slamming his face against the wall and assaulting him
on the way to the medical clinic.59
On summary judgment all evidence is viewed in the light most
favorable to the non-movant.

Tolan v. Cotton, 134 S. Ct. 1861,

1863 (2014) (per curiam) (reciting the well established "axiom that
in ruling on a motion for summary judgment, '[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to
be drawn ih his favor.'") (quoting Anderson, 106 S. Ct. at 2513).
Jqhnson's claim that he was not disobeying orders or cau_$ing a
disturb�nce is made in unsworn pleadings, however, which are not
competent summary judgment evidence. See Jones v. Anderson, 721
F.

App'x 333, 334-35 (5th Cir. 2018) (per curiam) (citing Larry v.

White, 929 F.2d 206, 211 n.12 (5th Cir. 1991) ("Unsworn pleadings,
memoranda,
judgment

or the like are not,
evidence.")

of course,

(internal

quotations

competent summary
omitted)).

More

importantly, Johnson's unsworn assertion that lie was not disobeying
orders when the use of force occurred conflicts with admissions
previously made by him and with the sworn declaration that he
provides under 28 U.S.C.

§

1746.

In the statement that he gave on

the day of the incident Johnson admitted that he was talking back
to Officer Hill before the force

was used. 60

In his

sworn

Plaintiff's Brief in Opposition, included in Docket Entry
No. 52, ·pp .. 14 "'- 16.
59

1/21/17 Johnson Statement,
Docket Entry No. 48-1, p. 1.
60

Exhibit A to Defendants' MSJ,

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 19 of 24

declJration Johnson also admits that he continued talking a�ter
I
Officer Brentlinger told him to stand against the wall outside his

cell and that he objected to the search when Officer Hill ".came. out
of the cell behind [him] and placed his hand on the back of [his]

head and slam [med]

[his] •. face against th� wall. "61

Although Johnson disagrees that his refusal to stand at the

wall quietly warranted a use of force, statements from the officers

who were conducting the cell search reflect that his a.gitated
demeanor and continuous objections were disruptive. 62

Disobeying

orders poses a threat to the order and security of an institution.

See Minix v. Blevins, Civil No. 6:06-306, 2007 WL 1217883, at *24
(E.D. Tex. April 23, 2007) (recognizing that even where a prisoner

believes an order to be "unjustified and improper, this does not

give him the right to disobey them at his whim") .

Courts have

recognized that a pretrial detainee' s refusal to comply with
repeated orders justifies the use of some deg-ree of force by

officers.

See Gonzales v. Rowe,

Civil No. 5:20-052-BQ,

WL 4811005, at *3 (N.D. Tex. July 27, 2020)

2020

(citing Calhoun v.

Wyatt, Civil Action No. 6:11-4, 2013 WL 1882367, at *6 (E.D. Tex.

May 2, 2013) (noting that inmate's refusal to obey orders "set the
stage for the use of force") ) .

Because Johnson was an inmate

Plaintiff' s Declaration in Opposition, included in Docket
Entry No. 52, p. 10.
61

Detention Command - Inmate Offense Report, Exhibit A to
Defendants' MSJ, Docket Entry No. 48-1, pp. 4·-5 (Statements of
Officers Brentlinger, Kelly, and Va.squez)
62

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 20 of 24

as�igned to the highest sec�rity level at the Jail, the officers
reasonably perceived that Johnson's disruptive actions were a
threat despite the fact that he was restrained by handcuffs at the
time.

See Rios v. McBain-, Civil No. 5:04-84, 2005 WL 1026192, at

*7 (E.D. Tex. April 28, 2005) (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") .
The Supreme Court has observed that "[e]nsuring security and
order at [an] institution is a permissible nonpunitive objective,
whether the facility houses pretrial detainees, convicted inmates,
or both."

Bell, 99 S. Ct. at 1886.

The Supreme Court has also

made clear that "not . . . every malevolent touch by a prison guard
gives rise to a federal cause of action." Hudson v. McMillian, 112
S. Ct. 995, 1000 (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 use of force applied by

Officer Hill was limited to the act of placing Johnson against the
wall with soft open-hand control, which is the lowest level of
force available for use by an officer and is not considered an
excessive tactic when used to gain an unruly inmate's compliance.63
Use of
Docket Entry
restrain an
discharge of
63

Force - Data Collection, Exhibit A to Defendants' MSJ,
No. 48-1, p. 8 (listing the "Open Hand Control" to
inmate as the lowest level of force, whereas the
a firearm is listed as the highest level).
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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 21 of 24

See Cain v. Ambriz, 114 F.. App':}( 600, 601 (5th Cir. Sept. 28, 2004)
(per curiam) (using an open hand to the face to push an inmate into
his cell was not objectively unreasonable given that he failed to
comply with the officer's requests); Nazerzadeh v. Harris County,
Civil Action No. H-08-0499, 2010 WL 3817149, at *30 (S.D. Tex.
Sept. 27, 2010) (rejecting an excessive-force claim by a pretrial
detainee and observing that the use of "soft or open-hand control"
to subdue a prisoner is "a low degree of force, designed to respond
to low levels of resistance").
Although

Johnson

claims

that

the

amount

of

force

was

excessive, his allegation that Officer Hill violently slammed his
face into the wall is not supported by the medical reco:i::-ds, which
show that he sustained no more than a small laceration above his
right eye that was treated in the clinic
Ibuprofen. 64
symptoms. 65

Johnson

did

not

report

with stitches and

dizziness

or

any

other

He did not request care for a bloody nose until hours

after the incident when he was seen in the clinic and treat�d for
nasal congestion. 66

Johnson did not report any other injuries or

issues during follow-up examinations at the Jail /:"ind-he presents no
evidence sho'.'Jing that he suffered any other injury as a result of
the use of force.

Evidence that Johnson sustained only a minor cut

64

HCSO Health Services Progress Note, Docket Entry No. 49, p. 4.

65

See id. at 3-6.

HCSO Health Services Progress Note, Docket Entry No. 49,
pp. 8-9.
66

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 22 of 24

I
S·ee

n�ar hi� eye �eighs against a finding of excessive force.

Thompson, 309 F.R.D. at 247-48 (rejecting an excessive-force clalim
by a pretrial detainee where t.he only injury reported was a "mijor

cut u near hi� eye); Renthrope v. Toffton, Civil Action No. 05-13
2007 WL

,
:r
37999, at* 4 n.6 (W.D. La. Jan. 4, 2007) (� [T]he absence
.

I

of any sign of injury other than a minor cut" weighed in favor bf

the officer and against a finding of excessive force.).

Jail administrators rev-iewed the January 21 ,. 201 7, incide t
r
and concluded that the use of force was reasonable and did n t
r
67
violate the law or Jail policy.
To the extent that Officer HiQl
used

limited

force

for

the

legitimate

purpose

of

obtainihg

,Johnson's compliance with repeated orders to maintain institutional
order and security, these factors weigh in favor of finding that
the alleged use of force was objectively reasonable. See Kingsley,
135 S. Ct. at 2473.

a

Al:isent evidence that force·was used in a manner unrelated to

legitimate nonpunitive purpose or that the force used was

excessive to the need, Johnson fails to show that Officer Hill's

actions were objectively unreasonable in these circumstances.

See

Tennyson v. Villarreal, 801 F. App'x 295 (5th Cir. 2020) (reversing
denial of summary judgment for officers who took a noncompliant

pretrial detainee to the ground in order to handcuff him behind his
back).

Because Johnson has failed to raise a genuine fact issue

Use of Force IAD #UOF2017-00036, Exhibit A to Defendants'
MSJ, Docket Entry No. 48-1, p. 16.
67

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 23 of 24

about whether excessive force was used in violation of clearly

established law, Officer Hill is entitled to -qual'ified immunity.
2.

Officer Kelly

The record contains two statements from Johnson that i'fplicate

Officer Kelly in the initial use of force that ciccurred outside of

his cell on .January 21, 2017. 68

However, Johnson's most recent

sworn declaration states that Officer Hill is the cnly one who used_

force to place · him on the wall after he disobeyed · orders by

cont:in11ing to behave in a disruptive manner. 69
record,.

Johnson

fails

to

esta_blish

also

alleges

that

Officer

personally involved in the initial use of force.
Although

Johnson

that

Based en .this

Officer

Kelly

Kelly

was

used

_excessive force while helping Officer Hill escort Johnson to the

clinic, the record does not reflect that Johnson suffered an injury

consistent with his claim that he was punched and kicked repeatedly

by the officers o:r:i- the way to the clinic.

The medical provider who

_tre�ted Johnson in the clinic observed only a sm�ll la�er�tion
.above Johnson's right eye.

Johnson reported no other injuries that

are ccinsistent with being repeatedly punched and kicked by the

officers who escorted him to the clinic.

Because. Johnson does not

68See Inmate Complaint Form, Exhibit A to Defendants' MSJ,
Docket Entry.No. 48-1, p .. 21; Johnson's Sworn State�ent, Exhibit A
to Defendants' �1SJ, Docket Entry No. 48-1, p.-24.·
_pee Plaintiff's Declaration_ in Opposition, included i:ri pocJet
Entry Nb� 52, p. 10.
69

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Case 4:18-cv-01568 Document 54 Filed on 01/21/21 in TXSD Page 24 of 24

point t6 eviden�e in the record showing that Officer Kelly used
excessive force against him in a manner that resulted. in· any
injury,

he has not established that Officer Kelly violated a

clearly established constitutional right such that he is not
entitled to qualified immunity.

Therefore, the court will grant

the Defendants' MSJ and dismiss this case.
IV.

Conclusion and Order

Based on the foregoing, the court ORDERS as· follows:.
1.

Defendants Detention Officer Channing Hill and
Detention Officer Teroji Kelly's Motion for Summary
Judgment (Docket Entry No. 48) is GRANTED.

2.

This civil action will be dismissed with prejudice.

The·clerk is directed to provide a copy of this Memorandwn
Opinion and Order to the 9arties of record.
SIGNED at Houston, Texas, on this 21st day:of January, 2021.

SENIOR UNITED STATES· D_ISTRICT JUDGE

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