Brown v. Bowers et al
MEMORANDUM OPINION AND ORDER - Derek William Brown's 1] Complaint for Violation of Civil Rights Under 42 U.S.C. § 1983 is DISMISSED WITH PREJUDICE as frivolous and, alternatively, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915 (e)(2)(B).2. The dismissal will count as a STRIKE for purposes of 28 U.S.C. § 1915(g)...***Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
DEREK WILLIAM BROWN,
LIEUTENANT LOGAN BOWERS,
April 27, 2021
Nathan Ochsner, Clerk
CIVIL ACTION NO. H-20-0725
MEMORANDUM OPINION AND ORDER
The plaintiff, Derek William Brown (SPN #01373004, former TDCJ
#1987097), is currently in custody as a pretrial detainee at the
Harris County Jail.
Brown has filed a Complaint for Violation of
Civil Rights Under 42 U.S.C.
1983 ("Complaint") (Docket Entry
previously incarcerated by the Texas Department of Criminal Justice
At the court's request Brown has filed Plaintiff's More
Definite Statement ("Plaintiff's MDS") (Docket Entry No. 13), which
provides additional details about his allegations; and the Stat�
Attorney General's Office has provided an Amicus Curiae Martinez
Report with administrative records under Martinez v. Aaron, 570
After considering all of the pleadings and exhibits in
the court will dismiss this action for the reasons
Brown was released from TDCJ on May 30, 2019, after serving a
prison sentence that he received following a conviction for third
degree felony stalking in 2014.1
Brown is currently confined in
the Harris County Jail as the result of "second degree felony
stalking 11 charges, 2 which were filed against him in state court
after his arrest on August 14, 2019.3
Brown alleges that his civil rights were violated in February
of 2019 when correctional officers employed by TDCJ used excessive
force against him during two incidents that occurred within hours
of each other at a state prison facility in Huntsville.4
reflect that force was used against Brown during incidents that
occurred at 8:16 a.m. and 1:01 p.m. on February 7, 2019, when Brown
was assigned to administrative segregation at the Estelle High
Security Unit.5 Brown was in administrative segregation because of
Plaintiff's MDS, Docket Entry No. 13, pp. 3, 9. For purposes
of identification, all page numbers refer to the pagination
inserted by the court's electronic filing system, CM/ECF.
Letter from Derrick Brown, Docket Entry No. 6, p. 3.
Plaintiff's MDS, Docket Entry No. 13, p. 2.
Complaint, Docket Entry No. 1, pp. 4-5.
Brown alleges that the incidents occurred at 8:30 a.m. and
11:15 a.m. on February 5, 2019. See Complaint, Docket Entry No. 1,
Records of the administrative investigation reflect,
however, that the incidents occurred at 8:16 a.m. and 1:01 p.m. on
February 7, 2019.
TDCJ Use of Force Report, Exhibit D to
Martinez Report, Docket Entry No. 18-4, p. 9; TDCJ Use of Force
Report, Exhibit F to Martinez Report, Docket Entry No. 18-6, p. 9.
previous incidents in which he violated prison rules by assaulting
a staff member and creating a weapon. 6
Each use of force is
summarized below based on the pleadings and the available records.
The First Use of Force
Brown alleges that the first use of force ensued after two
John Doe correctional officers entered his cell with handcuffs and
woke him abruptly, which resulted in an altercation after one of
the officers slapped Brown in the face. 7 According to the TDCJ Use
of Force Report for the incident, officers entered Brown's cell at
on February 7,
after he failed to respond to
As the officers placed restraints on Brown he reportedly
spit on one of them
and began to resist. 9
Brown acknowledges that he "began to fight" with the officers,
explaining that he was defending himself. 10
In response, officers
placed Brown on the floor and summoned a video camera to document
the remainder of the incident. 11
Plaintiff's MDS, Docket Entry No. 13, pp. 3-4.
Id. at 10; TDCJ Use of Force Report, Exhibit D to Martinez
Report, Docket Entry No. 18-4, pp. 9-10.
TDCJ Use of Force Report,
Docket Entry No. 18-4, p. 9.
Exhibit D to Martinez Report,
Plaintiff's MDS, Docket Entry No. 13, pp. 10, 11.
Use of Force Report,
Docket Entry No. 18-4, p. 9.
Exhibit D to Martinez Report,
A video recording of the incident shows that when the camera
operator arrived Brown was restrained in handcuffs and pinned to
the floor by two officers, who then left the cell (F-wing cell 232)
after Brown agreed to comply with their orders. 12
removed Brown's restraints after he obeyed orders to stand and
place his hands through the food-tray slot of the door to his
cell . 13
A nurse arrived at Brown's cell and examined him
restraints were removed. 14
Brown complained of facial tingling and
hand pain, but the nurse did not observe any injury. 15
clarified on the video that she observed some redness on Brown's
wrists from the hand restraints,
but no broken skin or other
Still photos that were taken shortly after the incident
show that Brown was smiling and that he had no injuries to his head
or face. 17
Brown was charged with a disciplinary offense for spitting in
an officer's face during the incident that prompted the first use
Use of Force Video ("Video"), Exhibit E to Martinez Report,
Docket Entry No. 18-5.
TDCJ Use of Force Report, Exhibit D to Martinez Report,
Docket Entry No. 18 4, p. 25.
Video, Exhibit E to Martinez Report, Docket Entry No. 18-5.
TDCJ Use of Force Report, Exhibit D to Martinez Report,
Docket Entry No. 18-4, pp. 37-39.
of force on February 7,
Brown was convicted of those
charges and reduced in classification status as a result of the
The Second Use of Force
The second use of force occurred when officers approached
Brown's cell later in the day and ordered him to accompany them to
the Classification Department. 20 Brown acknowledges that he refused
the order and instead demanded to be taken to see a
official, referencing the Prison Rape Elimination Act ( u PREA ") . 21
According to the TDCJ Use of Force Report, which reflects that the
incident occurred at 1:01 p.m.
Applewhite authorized Lieutenant Bowers to administer a chemical
agent after Brown refused to comply with repeated orders to submit
to a strip search and restraints before being moved to a new cell.22
The video recording of the incident shows that Lieutenant
Bowers warned Brown twice before administering a two-second blast
TDCJ Offense Report, Exhibit D to Martinez Report, Docket
Entry No. 18-4, pp. 35-36.
Plaintiff's MDS, Docket Entry No. 13, p. 5; TDCJ Disciplinary
Record, Case No. 20190141746, Exhibit C to Martinez Report, Docket
Entry No. 18-3, pp. 3, 7.
Plaintiff's MDS, Docket Entry No. 13, p. 6.
TDCJ Use of Force Report,
Docket Entry No. 18-6, pp. 3, 7.
Exhibit F to Martinez Report,
of chemical agent through the food-tray slot of Brown's cell. 23
After a few minutes Brown agreed to submit to a strip search and
Officers then escorted Brown to the unit infirmary
where a nurse briefly examined him in the hallway. 25
reflects that Brown was not in any distress as he was being
escorted by the officers. 26
When Brown saw the nurse he reported
no injury and he appeared to have no other difficulty
brief exposure to the chemical agent. 27 After the examination Brown
was escorted to a different cell (D-wing cell 228) without further
Brown was charged with refusing to submit to a strip search
and application of hand restraints as well as failing to obey
orders during the incident. 29
disciplinary charges and lost privileges as punishment. 30
Use of Force Video ("Video") , Exhibit G to Martinez Report,
Docket Entry No. 18-7.
; see also TDCJ Use of Force Report, Exhibit F to Martinez
Report, Docket Entry No. 18-6, pp. 18 21.
Video, Exhibit G to Martinez Report, Docket Entry No. 18-7.
TDCJ Offense Report, Exhibit F to Martinez Report, Docket
Entry No. 18-6, p. 24 (describing the charges).
Plaintiff' s MDS, Docket Entry No. 13, p. 5; TDCJ Disciplinary
Record, Case Nos. 20190141743 and 20190141746, Exhibit C to
Martinez Report, Docket Entry No. 18-3, pp. 3, 7.
Invoking 42 U.S.C.
Brown sues Lieutenant Bowers,
Captain Applewhite, and the John Doe officers who participated in
the use-of-force incidents that occurred on February 7, 2019.31
seeks unspecified relief for the violation of his rights under the
Standard of Review
Brown filed this civil action while incarcerated, and he has
been granted leave to proceed in forma pauperis.
circumstances the court is required by the Prison Litigation Reform
Act (the "PLRA") to scrutinize the claims and dismiss the case, in
frivolous, malicious, or fails to state a claim upon which relief
may be granted" or "seeks monetary relief from a defendant who is
immune from such relief."
1915A(b); see also 28 U.S.C.
1915(e) (2) (B).
The Supreme Court has held that a
filed by a
frivolous "where it lacks an arguable basis either in law or in
Neitzke v. Williams, 109 S. Ct. 1827, 1831-32 (1989).
Fifth Circuit has clarified that a filing is properly dismissed as
"frivolous" if it "lacks an arguable basis in law or fact or if
Complaint, Docket Entry No. 1, pp. 2-3.
Id. at 5.
there is no realistic chance of ultimate succ�ss."
Swinson, 955 F.2d 351, 352 (5th Cir. 1992); see also Geiger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005) ("A district court may
dismiss as frivolous the complaint of a prisoner proceeding IFP if
it lacks an arguable basis in law or fact.").
To assist with screening the Complaint in this case the court
requested a Martinez Report, which is a procedure that asks prison
officials to investigate the facts surrounding a prisoner's civil
rights claim and construct an administrative record.
v. Aaron, 570 F.2d 317 (10th Cir. 1978).
The use of a Martinez
Report has been approved by the Fifth Circuit in Cay v. Estelle,
789 F.2d 318, 323 n.4 (5th Cir. 1986), and Parker v. Carpenter, 978
F.2d 190, 191 n.2 (5th Cir. 1992), as a tool to supplement the
pleadings and assist the court in making a determination of
frivolity under 28 U.S.C. § 1915(e)(2)(B)
See Norton v. Dimazana,
122 F.3d 286,
The Attorney General' s
292-93 (5th Cir. 1997).
Office has filed an advisory confirming that Brown was provided
with a copy of the Martinez Report and that he had an opportunity
to review the use-of-force video exhibits at the Harris County
In conducting its review of the pleadings the court is mindful
that the plaintiff proceeds pro se in this case.
The Office of the Attorney General's Second Amicus Curiae
Advisory Regarding Service of Martinez Report Exhibits, Docket
Entry No. 25, p. 1.
a liberal construction.
See Erickson v.
Pardus, 127 S. Ct. 1081, 2200 (2007) (citing Estelle v. Gamble, 97
S. Ct. 285, 292 (1976)); see also Haines v. Kerner, 92 S. Ct. 594,
(1972) (noting that allegations in a pro se complaint,
however inartfully pleaded, are held to less stringent standards
than formal pleadings drafted by lawyers). Even under this lenient
conclusions' or 'a formulaic recitation of the elements of a cause
of action'[.]" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965
To state a claim for which rel
f may be granted, "[a]
complaint must be plausible on its face based on factual content
lows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Collier, 862 F.3d 490, 497 (5th Cir. 2017)
marks and citations omitted).
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
Wilson v. Seiter, 111 S. Ct. 2321, 2323 (1991) (quoting
Gamble, 97 S. Ct. 285, 291 (1976)).
a prison guard gives
Not every malevolent touch by
to a constitutional violation under the
See 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
constitutional rights. 11)
The Constitution excludes from recogni-
minimis uses of physical force, provided that the use of
force is not of a sort "repugnant to the conscience of mankind."
112 S. Ct. at 1000
(internal citation and quotation
To prevail on an excessive-use-of-force claim under
Amendment a plaintiff must establish that force was not "'applied
in a good-faith effort to maintain or restore discipl
maliciously and sadistically to cause harm.'"
Eason v. Holt, 73
F.3d 600, 601-02 (5th Cir. 1996) (citing Hudson, 112 S. Ct. at
998). Relevant factors to consider in evaluating an excessive-useof-force claim include:
(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.
Hudson, 112 S. Ct. at 999; Gomez v. Chandler, 163 F.3d 921, 923
(5th Cir. 1999).
Video recordings of the two incidents that form the basis of
the Complaint show that limited force was used by officers after
Brown - by his own admission - behaved disruptively, resisted their
efforts to restore order, and refused to obey their commands. More
confirm that Brown was examined by a nurse after each incident and
that she observed no physical injury other than redness on his
wrists from the restraints that were applied during the first use
Additional records provided with the Martinez Report
confirm that Brown did not seek any further medical care following
the use-of-force incidents that occurred on February 7, 2019. 34
To be actionable under the Eighth Amendment,
injury need not be significant, but must be more than de minimis.
See Siglar v. Hightower,
(holding that a sore,
112 F.3d 191,
(5th Cir. 1997)
bruised ear lasting for three days was
de minimis and did not meet the physical injury requirement found
in the PLRA) . 35
To the extent that Brown complains that his wrists
hurt from handcuffs that were applied too tightly,
Circuit has held that minor,
incidental injuries that occur in
connection with the use of handcuffs do not give
constitutional claim for excessive force.
rise to a
See Glenn v. City of
TDCJ Medical Records for Derek Brown, TDCJ #01987097, for the
time period of January 1, 2019, through April 30, 2019, Exhibit A
to Martinez Report, Docket Entry No. 18-1, pp. 1-114.
The PLRA precludes an action by a prisoner for compensatory
damages "for mental or emotional injury suffered while in custody
without a prior showing of physical injury or the commission of a
sexual act (as defined in section 2246 of Title 18) ." 42 U.S.C.
§ 1997e (e) .
Tyler, 242 F. 3d 307, 314 (5th Cir. 2001) (stating that "handcuffing
too tightly, without more, does not amount to excessive force");
Lockett v. New Orleans City, 607 F.3d 992, 999 (5th Cir.
2010) (per curiam}
(citing Glenn, 242 F.3d at 314); Freeman v.
Gore, 483 F.3d 404, 416 (5th Cir. 2007) (rejecting as
the plaintiff's claim "that the deput
twisted her arms behind
her back while handcuffing her, 'jerked
all over the carport,'
and applied the handcuffs too tightly, causing bruises and marks on
her wrists and arms")); Tarver v. City of Edna, 410 F.3d 745, 751
. 2005) (concluding that the plaint
f's allegation that he
suffered "acute contusions of the wrist" and psychological injury
from being handcuffed were insufficient to state a claim of
Brown does not allege facts showing that officers used force
for malicious purposes; and the pleadings, as supplemented by the
Martinez Report, do not demonstrate that Brown complained of or
sought treatment for an injury that was more than de minimis.
a result, Brown does not demonstrate that excessive force was used
against him in violation of the Eighth Amendment or that a
constitutional violation occurred. Accordingly, his Complaint will
be dismissed as frivolous and, alternat
a claim upon which re
ly, for failure to state
f may be granted pursuant to 28 U.S.C.
1915 (e) (2) (B).
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
Derek William Brown's Complaint for Violation of
Civil Rights Under 42 U.S.C. § 1983 (Docket Entry
No. 1) is DISMISSED WITH PREJUDICE as frivolous
and, alternatively, for failure to state a claim
upon which relief may be granted pursuant to 28
U.S.C. § 1915 (e) (2) (B).
The dismissal will count as a STRIKE for purposes
of 28 u.s.c. § 1915 (g).
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties of record.
The Clerk shall also
provide a copy to the Manager of the Three Strikes List for the
Southern District of Texas at Three Strikes@txs.uscourts.gov.
SIGNED at Houston, Texas, on this 27th day of April, 2021.
SENIOR UNITED STATES DISTRICT JUDGE
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