Brown v. Bowers et al

Filing 27

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

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DEREK WILLIAM BROWN,
SPN #01373004,

§
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§
§
§
§
§
§
§

Plaintiff,
V.

LIEUTENANT LOGAN BOWERS,
et al.,
Defendants.

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.
No.

1),

concerning

two

§

1983 ("Complaint") (Docket Entry

incidents

that

occurred

when

he

was

previously incarcerated by the Texas Department of Criminal Justice
("TDCJ").

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
F.2d 317
No. 18).

(10th Cir.

1987)

("Martinez

Report")

(Docket

Entry

After considering all of the pleadings and exhibits in

the record,

the court will dismiss this action for the reasons

explained below.

I.

Background

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

Records

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.
1

2

Letter from Derrick Brown, Docket Entry No. 6, p. 3.

3

Plaintiff's MDS, Docket Entry No. 13, p. 2.

4

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,
p. 5.
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.
5

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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.
A.

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
8:16 a.m.
staff. 8

on February 7,

2019,

after he failed to respond to

As the officers placed restraints on Brown he reportedly

spit on one of them

(Officer Naccarato)

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
6

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.
7

TDCJ Use of Force Report,
Docket Entry No. 18-4, p. 9.
8

10

Exhibit D to Martinez Report,

Plaintiff's MDS, Docket Entry No. 13, pp. 10, 11.

11TDCJ
Use of Force Report,
Docket Entry No. 18-4, p. 9.

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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

The officers

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

his

Brown complained of facial tingling and

hand pain, but the nurse did not observe any injury. 15

The nurse

clarified on the video that she observed some redness on Brown's
wrists from the hand restraints,
injury. 16

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.
1

2

13

TDCJ Use of Force Report, Exhibit D to Martinez Report,
Docket Entry No. 18 4, p. 25.
15

16

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.
17

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of force on February 7,

2019. 18

Brown was convicted of those

charges and reduced in classification status as a result of the
incident. 19
B.

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

u safe

Prisons"

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.

on

February 7,

2019,

Captain

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.
18

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.
19

20

Plaintiff's MDS, Docket Entry No. 13, p. 6.

21
Id.

TDCJ Use of Force Report,
Docket Entry No. 18-6, pp. 3, 7.
22

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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
restraints. 24

Officers then escorted Brown to the unit infirmary

where a nurse briefly examined him in the hallway. 25

The video

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

his

brief exposure to the chemical agent. 27 After the examination Brown
was escorted to a different cell (D-wing cell 228) without further
incident. 28
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

Brown was

convicted

of those

disciplinary charges and lost privileges as punishment. 30
Use of Force Video ("Video") , Exhibit G to Martinez Report,
Docket Entry No. 18-7.
23

; see also TDCJ Use of Force Report, Exhibit F to Martinez
Report, Docket Entry No. 18-6, pp. 18 21.
28

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).
29

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.
30

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Invoking 42 U.S.C.

§

1983,

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

He

seeks unspecified relief for the violation of his rights under the
Eighth Amendment.32
II.

Standard of Review

Brown filed this civil action while incarcerated, and he has
Under these

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
whole

or

in

part,

if

it

determines

that

the

Complaint

"is

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."
§

28 U.S.C.

§

1915A(b); see also 28 U.S.C.

1915(e) (2) (B).
The Supreme Court has held that a

litigant

who

proceeds

in forma

pauperis

complaint
may

be

filed by a
dismissed

as

frivolous "where it lacks an arguable basis either in law or in
fact."

Neitzke v. Williams, 109 S. Ct. 1827, 1831-32 (1989).

The

Fifth Circuit has clarified that a filing is properly dismissed as
"frivolous" if it "lacks an arguable basis in law or fact or if

31
32

Complaint, Docket Entry No. 1, pp. 2-3.
Id. at 5.
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there is no realistic chance of ultimate succ�ss."

Henthorn v.

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).

See Martinez

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
Jail.33
In conducting its review of the pleadings the court is mindful
that the plaintiff proceeds pro se in this case.

Courts are

The Office of the Attorney General's Second Amicus Curiae
Advisory Regarding Service of Martinez Report Exhibits, Docket
Entry No. 25, p. 1.
33

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required

to

give

inartfully pleaded,

litigant's

a

contentions,

a liberal construction.

however

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,
595 96

(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
standard

a

plaintiff

must

allege

more

than

"'labels

and

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
(2007)).

To state a claim for which rel

f may be granted, "[a]

complaint must be plausible on its face based on factual content
that

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)

Whitaker v.

(internal quotation

marks and citations omitted).
III.

Discussion

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

pain."

==-='-=--'--'-­

Not every malevolent touch by

to a constitutional violation under the
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Eighth Amendment.

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
the

peace

of

a

judge's

constitutional rights. 11)

) •

chambers,

violates

a

prisoner's

The Constitution excludes from recogni-

minimis uses of physical force, provided that the use of

tion

force is not of a sort "repugnant to the conscience of mankind."
Hudson,

112 S. Ct. at 1000

(internal citation and quotation

omitted)
To prevail on an excessive-use-of-force claim under

Eighth

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.'"

[but]

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.

See

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
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Brown - by his own admission - behaved disruptively, resisted their
efforts to restore order, and refused to obey their commands. More
importantly,

the

administrative

records

and

video

recordings

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
of force.

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,

an inmate's

injury need not be significant, but must be more than de minimis.
See Siglar v. Hightower,
(holding that a sore,

112 F.3d 191,

193-94

(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,

the Fifth

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.
34

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) .
35

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Tyler, 242 F. 3d 307, 314 (5th Cir. 2001) (stating that "handcuffing
too tightly, without more, does not amount to excessive force");
see

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

minimis

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
(5th

. 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
excessive force).
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.

As

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).

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IV.

Conclusion and Order

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

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).

2.

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 [e-mail].
SIGNED at Houston, Texas, on this 27th day of April, 2021.

SENIOR UNITED STATES DISTRICT JUDGE

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