Johnson v. Thaler et al

Filing 47

ORDER granting 43 Motion for Summary Judgment; denying 34 Motion for Summary Judgment.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(lsmith, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
KENNETH R. JOHNSON
TDCJ-CID #1536748
v.

§
§
§
§
§

RICK THALER, ET AL.

C.A. NO. V-10-025

OPINION AND ORDER REGARDING
CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff is an inmate in the Texas Department of Criminal Justice, Correctional
Institutions Division (“TDCJ”), who is currently incarcerated at the Stiles Unit in Beaumont,
Texas. Proceeding pro se, he filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging
that Defendant John Adams was deliberately indifferent to his health and safety. (D.E. 1, at 4).
Pending is Plaintiff’s motion for summary judgment. (D.E. 34). Defendant has filed a crossmotion for summary judgment in his favor. (D.E. 43). Plaintiff submitted a response brief
opposing this cross-motion for summary judgment. (D.E. 46). For the reasons that follow,
Plaintiff’s motion for summary judgment is denied, Defendant’s cross-motion for summary
judgment is granted, and this action is dismissed.
I. JURISDICTION
The Court has federal question jurisdiction over this civil rights action pursuant to 28
U.S.C. § 1331. Upon consent of the parties, (D.E. 33, 36), the case was assigned to a United
States Magistrate Judge to conduct all further proceedings, including entry of final judgment.
(D.E. 14); see also 28 U.S.C. § 636(c).

II. PROCEDURAL HISTORY
Plaintiff filed this action on March 30, 2010. (D.E. 1). A Spears1 hearing was held on
August 24, 2011. On September 30, 2011, his deliberate indifference claim against Officer John
Adams was retained, and all other claims against all other named Defendants were dismissed.
Johnson v. Thaler, No. V-10-025, 2011 WL 4592384 (S.D. Tex. Sept. 30, 2011) (unpublished).
Defendant Adams filed an answer on January 6, 2012. (D.E. 31). On January 30, 2012,
Plaintiff submitted a motion for summary judgment. (D.E. 34). He subsequently filed an
amended complaint on February 27, 2012. (D.E. 42). On March 1, 2012, Defendant filed a
cross-motion for summary judgment. (D.E. 43). Plaintiff filed a response on March 27, 2012
opposing Defendant’s cross-motion for summary judgment. (D.E. 46).
III. PLAINTIFF’S ALLEGATIONS
Plaintiff alleges that Defendant Adams exhibited deliberate indifference to his health and
safety in violation of his Eighth Amendment right against cruel and unusual punishment. (D.E.
1, at 4). Specifically, he complains that Defendant Adams recklessly drove a vehicle in which he
was a passenger and caused an accident. Id. As a consequence, he claims that he sustained
multiple significant injuries. Id.
IV. SUMMARY JUDGMENT EVIDENCE
Plaintiff offers uncontested records of his administrative grievance filings, (D.E. 34-1), as
well as various unverified medical records. (D.E. 34-2). In turn, Defendant has submitted the
following documents in support of his cross-motion for summary judgment:
Exhibit A:

Affidavit of John Adams;

1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996)
(stating that testimony given at a Spears hearing is incorporated into the pleadings).

2

Exhibit B:

Affidavit of Sergeant Donny Valis;

Exhibit C:

Affidavit of Robert Mendez; and

Exhibit D:

TDCJ Motor Vehicle Accident Investigation with Supporting Business
Record Affidavit.

(D.E. 43, at 1).
To the extent that the parties do not materially disagree on the operative facts forming the
basis of this action, the summary judgment evidence, including the Plaintiff’s testimony at the
Spears hearing, establishes the following:
Early on the morning of January 12, 2010, Defendant Adams was assigned to drive a van
from the Stevenson Unit in Cuero, Texas to the Connally Unit in Kenedy, Texas. (D.E. 43-1, at
2). Officer Donny Valis, Plaintiff, and two other inmates were aboard as passengers. (D.E. 431, at 2; D.E. 43-2, at 2). Because the van was not equipped with seat belts for the inmate
passengers, Plaintiff was not secured within the vehicle. (D.E. 43-1, at 4). He was, however,
chained to a larger inmate.
Before dawn at around 6:30 a.m., Defendant Adams was driving on Highway 72 when he
and Officer Valis spotted a deer standing on the shoulder of the opposite lane. (D.E. 43-1, at 3;
D.E. 43-2, at 3). The deer then darted into the van’s path, resulting in a collision. (D.E. 43-1, at
3; D.E. 43-2, at 3). After contacting their supervisor, they were instructed to continue
transporting the inmates to the Connally Unit. (D.E. 43-1, at 3; D.E. 43-2, at 3). When they
arrived, both the officers and the inmate passengers were given a physical evaluation. (D.E. 431, at 3; D.E. 43-2, at 3). No injuries were recorded at that time by the medical provider. (D.E.
43-4, at 12-16). In addition, no damage to the van was reported. Id. at 11. Pictures of the van
show a minor dent on the front bumper. Id. at 17-21.
3

On January 17, 2010, Plaintiff filed a Step 1 grievance charging prison staff with denying
and interfering with his activities in violation of TDCJ policy. (D.E. 34-1, at 1-2). He alleged
that on January 12, 2010, Defendant drove into the deer because he was sleeping while driving.
Id. at 1. During the collision, he was thrown around the van and injured his neck, back, and legs.
Id. at 1. Plaintiff expressed his dissatisfaction with the medical staff’s response because they
purportedly misdiagnosed and mistreated his injuries. Id. In particular, he recounted that he was
not permitted to eat on an occasion when a nurse erroneously believed he was suffering from
gastrointestinal problems. Id. He also complained that he was only given ibuprofen to treat his
injuries from the accident. Id. at 2. As a remedy, Plaintiff requested that he be given “adequate
medical treatment for my back & legs and therapy hot packs, muscle spasm all over my neck
too.” Id. Rudy Martisek denied this grievance on February 12, 2010 because the medical staff
had not noted any acute distress immediately after the accident. Id. at 2. Although his neck and
back pains were acknowledged, he was advised to continue taking medications and cooperate
with the medical staff. Id.
Plaintiff then filed a Step 2 grievance on March 2, 2010 reiterating his dissatisfaction
with the treatment of his injuries. Id. at 3-4. He also questioned the rationale behind Mr.
Martisek’s decision, explaining that he did complain about his injuries during a sick call. Id. at
3. Although he does not refer to Defendant by name in this grievance, he accuses him of
sleeping and playing video games while on the job. Guy Smith denied this grievance on May 17,
2010. Id. at 4. Mr. Smith reiterated that medical personnel did not detect any sign of injury after
the accident, and he found that Plaintiff was being given sufficient medical care. Id.

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On February 25, 2010, Plaintiff submitted another Step 1 grievance. (D.E. 34-2, at 2).
He again described the accident and complained about Mr. Martisek’s denial of his first Step 1
grievance. Id. at 1. He sought to have officials check the computer records to confirm that he
did complain about suffering an injury. Id. at 2. Mr. Martisek answered this grievance on
March 8, 2010, and pointed out that Plaintiff had been examined for his back and neck pain at
least three times during the previous month. Id. No Step 2 grievance is noted in the record.
V. DISCUSSION
Plaintiff moves for summary judgment on the basis that there is no genuine issue of
material fact and that judgment should be entered in his favor as a matter of law. (D.E. 34, at 4).
In response, Defendant also moves for summary judgment, arguing that Plaintiff’s claims have
not been fully exhausted and are barred by the doctrine of qualified immunity. (D.E. 43, at 11,
15).
A.

The Legal Standard For A Summary Judgment Motion.
Summary judgment is appropriate when there is no disputed issue of material fact, and

one party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Courts must consider
the record as a whole, including all pleadings, depositions, affidavits, interrogatories and
admissions on file, in the light most favorable to the non-movant. Caboni v. Gen. Motors Corp.,
278 F.3d 448, 451 (5th Cir. 2002) (citations omitted).
The party seeking summary judgment bears the initial burden of demonstrating the
absence of a genuine issue of material fact and informing the court of the basis for its motion by
identifying those portions of the pleadings, depositions, answers to interrogatories, admissions
on file, and affidavits, if any, which support its contention. Celotex Corp. v. Catrett, 477 U.S.

5

317, 323 (1986); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992) (citations
omitted). Any controverted evidence must be viewed in the light most favorable to the nonmovant, and all reasonable doubts must be resolved against the moving party. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990); Williams v. Adams, 836 F.2d 958, 960 (5th Cir. 1988)
(citation omitted).
If the moving party makes the required showing, then the burden shifts to the non-movant
to show that a genuine issue of material fact remains for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Fields v. City of S. Houston, Tex., 922 F.2d
1183, 1187 (5th Cir. 1991) (citation omitted). The non-movant cannot merely rest on the
allegations of the pleadings, but must establish that there are material controverted facts in order
to preclude summary judgment. Fed. R. Civ. P. 56(c)(1); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248-49 (1986) (citation omitted). Summary judgment is proper if the non-movant fails
to make a showing sufficient to establish the existence of an element essential to his case on
which he bears the burden of proof. Celotex, 477 U.S. at 322-23; ContiCommodity Servs., Inc.
v. Ragan, 63 F.3d 438, 441 (5th Cir. 1995) (citations omitted).
B.

Plaintiff Failed To Properly Exhaust His Administrative Remedies.
Defendant urges dismissal of Plaintiff’s claim due to his purported failure to exhaust his

administrative remedies with the TDCJ. (D.E. 43, at 15-19). While he acknowledges that
grievances were filed, he contends that these complaints did not contain enough factual details to
give administrators reasonable notice about the existence of any claim against Defendant Adams.
Id. at 17.

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In the Prison Litigation Reform Act (“PLRA”), Congress mandated that inmates must
exhaust their administrative remedies prior to filing civil rights actions:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). The exhaustion requirement applies to all inmate suits about prison life,
whether involving general circumstances or specific incidents. Porter v. Nussle, 534 U.S. 516,
532 (2002); Clifford v. Gibbs, 298 F.3d 328, 330 (5th Cir. 2002); accord Irby v. Nueces County
Sheriff, 790 F. Supp. 2d 552, 557 (S.D. Tex. 2011) (citations omitted). Moreover, a prisoner is
required to exhaust his administrative remedies even if damages are unavailable through the
grievance process. Booth v. Churner, 532 U.S. 731, 734 (2001); Wright v. Hollingsworth, 260
F.3d 357, 358 (5th Cir. 2001); accord Irby, 790 F. Supp. 2d at 557 (citations omitted). The
Supreme Court has clarified that a prisoner must complete the administrative review process in
accordance with all procedural rules, including deadlines, as a precondition to bringing suit in
federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006); accord Irby, 790 F. Supp. 2d at 557
(citing Woodford). However, an inmate’s failure to exhaust is an affirmative defense that must
be raised by the defendants. See Jones v. Bock, 549 U.S. 199, 216 (2007); accord Irby, 790 F.
Supp. 2d at 557 (citing Jones).
The purpose of the exhaustion requirement is to alert jail officials to problems so that the
prison has a chance to address the claims before they reach federal court. Woodford, 548 U.S. at
94. As acknowledged by the Supreme Court, Congress intended the administrative process to
“filter out some frivolous claims and foster better-prepared litigation once a dispute did move to
the courtroom, even absent formal factfinding.” Booth, 532 U.S. at 737.
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In Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004), the Fifth Circuit discussed how
much detail is required in a grievance for purposes of effectively exhausting administrative
remedies. The court noted that one of the purposes of the exhaustion requirement is to give
officials “‘time and opportunity to address complaints internally.’” Id. at 516 (citations omitted);
accord Wilbert v. Quarterman, 647 F. Supp. 2d 760, 766 (S.D. Tex. 2009) (citation omitted). In
addition, the nature of the complaint will influence how much detail is necessary. Johnson, 385
F.3d at 517; Wilbert, 647 F. Supp. 2d at 766 (citation omitted). For example, a complaint about
a correctional officer should identify a specific person, whereas a complaint about a prison
condition might not need to identify any individual. Johnson, 385 F.3d at 517; Wilbert, 647 F.
Supp. 2d at 766 (citation omitted).
The TDCJ provides a two-step procedure for presenting administrative grievances. Powe
v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) (per curiam) (citation omitted). An inmate properly
exhausts a claim by presenting it in Step 1 and Step 2 grievances. See Wendell v. Asher, 162
F.3d 887, 891 (5th Cir. 1998) (citing to TDCJ Administrative Directive No. AD-03.82 (rev. 1),
Policy ¶ IV (Jan. 31, 1997)). A claim must be pursued through both grievance steps before it can
be considered exhausted. Johnson, 385 F.3d at 515 (citing Wright, 260 F.3d at 358).
Exhaustion is not required when the remedy sought is not “available,” such as “where the
relevant administrative procedure lacks authority to provide any relief or to take any action
whatsoever in response to a complaint.” Booth, 532 U.S. at 736 & n.4; accord Dillon v. Rogers,
596 F.3d 260, 267 (5th Cir. 2010). The Fifth Circuit has also recognized that a remedy is not
“available” when “(1) an inmate’s untimely filing of a grievance is because of a physical injury
and (2) the grievance system rejects the inmate’s subsequent attempt to exhaust his remedies

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based on the untimely filing of the grievance.” Days v. Johnson, 322 F.3d 863, 868 (5th Cir.
2003) (per curiam), overruled by implication on other grounds by Jones, 549 U.S. at 216.
Nevertheless, the Fifth Circuit has taken “a strict approach to the exhaustion requirement” ever
since the PLRA’s enactment in 1996, which made exhaustion mandatory. Days, 322 F.3d at 866
(citations omitted). Due to the now-mandatory nature of § 1997e, previously viable exceptions
to the exhaustion requirement are no longer applicable. See Clifford, 298 F.3d at 332 (amended
version of § 1997e forecloses prior exhaustion defenses of undue prejudice, inadequate remedy,
and administrative bias). As a result, the Fifth Circuit channels all claims for excuse of
exhaustion into an analysis of whether any administrative remedies were “available” to the
prisoner within the meaning of § 1997e(a). Dillon, 596 F.3d at 270.
Plaintiff has submitted his grievance records in support of his motion for summary
judgment.2 Defendant claims that these “grievances did not contain sufficient detail to properly
exhaust his administrative remedies ... because they did not contain the degree of information
TDCJ officials would want to know.” (D.E. 43, at 17). Although these grievances provide some
details about the accident, it is apparent that Plaintiff’s objective in filing these grievances was to
obtain better medical treatment rather than to hold Defendant accountable for his injuries. As a
consequence, Plaintiff failed to allege sufficient facts that could have put the TDCJ on notice
about any claim of deliberate indifference against Defendant. He omitted a number of important
details from his grievance that would have suggested deliberate indifference, such as the
assertions he made at the Spears hearing that Defendant was driving erratically as well as

2

Plaintiff confirms that these were the only grievances he filed regarding this matter in his response brief. (D.E.
46, at 3). Although these documents have not been verified by affidavit, Defendant does not contest the admissibility
of these grievances pursuant to Rule 56(c)(2). He even treats these filings as competent summary judgment evidence
by citing to them in support of his cross-motion for summary judgment. (D.E. 43, at 17-18).

9

speeding, that other passengers had voiced concerns about his driving during the trip, that he
failed to secure him with a seat belt, and that he chained him to a heavier inmate. Simply put,
these grievances are devoid of sufficient facts essential to a deliberate indifference claim. In
addition, nothing in these grievances indicated that Defendant was aware of and indifferent to
subjecting Plaintiff to a risk of harm. At most, the bare allegation that Defendant fell asleep
while driving tends to show only non-actionable negligence rather than deliberate indifference.
In response, Plaintiff argues that any further attempt to exhaust his administrative
remedies would have been futile. He cites to the Second Circuit decision Eisen v. Eastman, 421
F.2d 560 (2d Cir. 1969), and the Supreme Court decision Houghton v. Shafer, 392 U.S. 639
(1968) (per curiam), in support of his proposition that a futility exception to exhaustion applies.
These cases are unavailing because they do not involve the application of the most recent version
of § 1997e, which was amended by the PLRA in 1996. Regardless of whether Plaintiff believed
proper exhaustion of his claims was futile, “[e]xhaustion is now mandatory.” Days, 322 F.3d at
866; see also Booth, 532 U.S. 731, 741 n.6 (“we will not read futility or other exceptions into
statutory exhaustion requirements where Congress has provided otherwise”) (citations omitted);
Mesquiti v. Gallegos, 427 F. App’x 377, 378 (5th Cir. 2011) (per curiam) (unpublished) (“there
is no futility exception to the exhaustion requirement”) (citing Booth). Moreover, he has failed
to show that an administrative remedy was not “available” within the meaning of § 1997e(a).
There has been no claim that the administrative procedure lacked authority to provide any relief
or take any action. Nor has he suffered some physical injury preventing him from timely filing
his grievances. To the contrary, he was able to timely file grievances complaining about his

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injuries. (D.E. 34-1, at 1-4). Accordingly, Plaintiff has not properly exhausted his deliberate
indifference claim against Defendant Adams.
C.

Defendant Is Entitled To Qualified Immunity.
In the alternative, Defendant Adams argues that he is entitled to qualified immunity

because Plaintiff has not established a deliberate indifference claim against him and because he
acted reasonably under the circumstances. (D.E. 43, at 7-15).
The doctrine of qualified immunity affords protection against individual liability for civil
damages to officials “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a
defendant invokes the defense of qualified immunity, the burden shifts to the plaintiff to
demonstrate the inapplicability of the defense. McClendon v. City of Columbia, 305 F.3d 314,
323 (5th Cir. 2002) (en banc) (per curiam) (citation omitted). “To discharge this burden, a
plaintiff must satisfy a two-prong test.” Atteberry v. Nocana Gen. Hosp., 430 F.3d 245, 253 (5th
Cir. 2005). “First, he must claim that the defendants committed a constitutional violation under
current law. Second, he must claim that defendants’ actions were objectively unreasonable in
light of the law that was clearly established at the time of the actions complained of.” Id.
(citations omitted). While it will often be appropriate to conduct the qualified immunity analysis
by first determining whether a constitutional violation occurred and then determining whether
the constitutional right was clearly established, that ordering of the analytical steps is no longer
mandatory. Pearson, 555 U.S. at 236-37 (receding from Saucier v. Katz, 533 U.S. 194 (2001)).

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1.

Step 1 – Plaintiff has not established a constitutional violation.

The Eighth Amendment imposes a duty on prison officials to “provide humane
conditions of confinement; prison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and ... ‘take reasonable measures to guarantee the safety of
the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468
U.S. 517, 526-27 (1984)). A prison official violates this duty when by act or omission he is
deliberately indifferent to prison conditions which pose a substantial risk of serious harm. Id. at
828-29, 834 (citations omitted). In order to state an Eighth Amendment claim for deliberate
indifference, a plaintiff must satisfy a two-prong test:
First, there is an objective requirement that the condition “must be
so serious as to ‘deprive prisoners of the minimal civilized
measure of life’s necessities,’ as when it denies the prisoner some
basic human need.” Second, under a subjective standard, we must
determine whether the prison official responsible was
“‘deliberately indifferent’ to inmate health or safety.”
Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (per curiam) (citations omitted). The
Supreme Court has recognized that “reasonable safety” is a basic human need. Helling v.
McKinney, 509 U.S. 25, 33 (1993) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 200 (1989)).
Subjective deliberate indifference requires that the prison official “knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Farmer, 511 U.S. at 837. This standard requires more than mere
negligence on the part of prison officials. See id. at 835 (“deliberate indifference describes a
state of mind more blameworthy than negligence”); Adames v. Perez, 331 F.3d 508, 514 (5th
12

Cir. 2003) (citing Farmer). Rather, subjective deliberate indifference amounts to criminal
recklessness. Farmer, 511 U.S. at 839-40. The Fifth Circuit has understood that “[d]eliberate
indifference ‘is an extremely high standard to meet.’” Gobert v. Caldwell, 463 F.3d 339, 346
(5th Cir. 2006) (citations omitted).
Plaintiff alleged that he was seriously injured when Defendant fell asleep while driving
and hit a deer. (D.E. 1, at 4-5). At the Spears hearing, he also asserted that Defendant was
driving recklessly, speeding, and had driven over a number of rumble strips on the shoulder of
the road, suggesting that he was driving while sleeping. Plaintiff further testified that he was not
secured inside the van with a seat belt and that he was chained to a heavier inmate. After the
collision with the deer, he heard Officer Valis remark to Defendant that he must have been
sleeping.
Defendant counters that, taken as true, Plaintiff’s allegations amount to nothing more
than “gross negligence claims masquerading as a Constitutional violation.” (D.E. 43, at 8). He
has also submitted numerous affidavits that directly conflict with Plaintiff’s account of the
accident and the events leading up to it. Specifically, Defendant testified that he was never
asleep, fatigued, or driving erratically during the trip, and he further claims that he purposely did
not swerve to avoid hitting the deer because he did not want to risk flipping the top-heavy
vehicle. (D.E. 43-1, at 3-4). He further avers that the van was not equipped with seat belts for
inmate passengers and did not hear inmates requesting any seat belts before the accident. Id. at
4. Officer Valis testified that although he warned Defendant about the deer on the shoulder of
opposite lane, the deer unexpectedly ran directly into the path of the oncoming van. (D.E. 43-2,
at 3). Finally, Robert Mendez, the City Administrator for Yorktown, Texas has testified that

13

there have never been rumble strips where the accident occurred, or on any portion of Highway
72. (D.E. 43-3, at 2-3).
Based on Plaintiff’s pleadings and his Spears testimony, he cannot successfully pursue a
deliberate indifference claim against Defendant as a matter of law. He has alleged no facts
tending to show that Defendant was subjectively aware of a substantial risk of serious harm with
respect to the way that he secured the passengers to the van or his ability to safely operate the
van that morning. Nothing in the record indicates that Plaintiff requested seat belts, protested
Defendant’s driving, or otherwise attempted to alert him to the risk that his driving posed to the
passengers’ safety. Even if Plaintiff established that Defendant should have been aware of the
risk, he still has not taken the crucial additional step of showing that Defendant was actually
subjectively aware that his driving was unsafe. As such, Plaintiff has not pled facts suggesting
there was an act of deliberate disregard to his safety.
While some courts have found that the failure to secure inmates with seat belts during
transportation can contribute to a finding of deliberate indifference, no court has held that such
an omission, standing alone, constitutes deliberate indifference. In Brown v. Missouri
Department of Corrections, the Eighth Circuit held that the plaintiff may proceed with a
constitutional claim against defendants who refused his requests to fasten him with a seat belt
and drove in an inherently unsafe manner. 353 F.3d 1038, 1040 (8th Cir. 2004) (per curiam)
(citations omitted). Following remand, the case again appeared before the Eighth Circuit in
Brown v. Fortner, 518 F.3d 552 (8th Cir. 2008). On this occasion, the Eighth Circuit was asked
to rule on whether two particular defendants were entitled to qualified immunity on the basis of
their actions. The first defendant allegedly denied the plaintiff’s request for a seat belt, drove in

14

excess of the speed limit, followed too closely to the lead van in the convoy transporting
inmates, violated other traffic rules, and ignored the repeated requests of the inmate-passengers
who asked him to slow down. Id. at 559-60. The court ruled that this defendant was not entitled
to qualified immunity because “a reasonable jury could conclude that there was a substantial risk
of harm to [plaintiff] and that [defendant] knew of and disregarded the substantial harm.” Id. at
560. Similarly, the second defendant was also accused of driving in excess of the speed limit
and passing other vehicles at inappropriate times. Id. at 560. Nevertheless, this defendant was
entitled to qualified immunity because there was no evidence that he was asked to slow down
and refused, nor was evidence presented showing that this defendant actually knew the plaintiff
was not secured by a seat belt. Id. at 560. As a result, he lacked “actual knowledge of a
substantial risk.” Id.
The Eighth Circuit’s finding accords with Barela v. Romero, in which the court found
that the defendant was subjectively aware of the risk posed to the plaintiff when he refused to
heed the plaintiff’s requests to stop the transport van, which was not equipped with seat belts.
No. 06-41, 2007 WL 2219441, at *7 (D.N.M. May 10, 2007) (unpublished). Moreover, each of
these cases are consistent with case law from other courts holding that the mere failure to fasten
seat belts on inmates does not constitute deliberate indifference. See Dexter v. Ford Motor Co.,
92 F. App’x 637, 641 (10th Cir. Feb. 12, 2004) (unpublished) (concluding that “failure to
seatbelt does not, of itself, expose an inmate to risks of constitutional dimension” because “[t]he
eventuality of an accident is not hastened or avoided by whether an inmate is seatbelted”);
Wilbert, 647 F. Supp. 2d at 769 (citing Brown, 518 F.3d at 560); Freeman v. City of Hattiesburg

15

Police Dep’t, No. 2:07-cv-159, 2007 WL 4180538 (S.D. Miss. Nov. 20, 2007) (unpublished)
(applying Dexter).
In sum, Plaintiff must show that Defendant was actually aware that he was subject to a
substantial risk of injury to survive summary judgment. In his response brief, he references the
fact that Officer Valis warned Defendant about the deer. (D.E. 46, at 2). Plaintiff believes that
this warning made Defendant aware of the risk to his safety and should have prompted him to
either slow down, go around the deer, or stop the van. Id. In addition, he suggests that
Defendant’s own statement that “I never swerve to avoid animals because swerving at that high
rate of speed can cause the vehicle to flip” amounts to an admission that he was speeding. Id.;
(D.E. 43-1, at 3).
Even if Defendant’s affidavits were so construed in Plaintiff’s favor, they do not alter the
conclusion that he has not shown subjective deliberate indifference. Plaintiff has already pled
that Defendant was driving at a high rate of speed. Moreover, mere knowledge of a risk does not
mean that Defendant was deliberately indifferent to it, and based on the uncontested summary
judgment evidence, it does not appear that continuing to drive amounted to deliberate
indifference. According to Officer Valis, the deer was seen “standing on the left side of the
highway on the shoulder” and “just before we came upon it, the deer darted to its left and into
the westbound lane of the highway directly in front of us.” (D.E. 43-2, at 3). Because the deer
was not in their path, there was no need to stop or go around the animal. Additionally, it was
initially spotted on the opposite side of the highway and therefore less likely to be hit by the van.
While Defendant could have slowed down, the failure to do so does not evince subjective
deliberate indifference because there was no apparent threat from the deer at the time.

16

Therefore, these affidavits cannot supplement the deficient pleadings to create a valid cause of
action. Because Plaintiff has failed to show that Defendant was subjectively aware his driving
posed an unacceptably high risk to his passengers, this deliberate indifference claim is without
merit.
2.

Step 2 – Objective Reasonableness.

Because Plaintiff has failed to state a constitutional violation as to Defendant regarding
any of his claims, the Court is not required to examine whether his actions were reasonable. See
Saucier, 533 U.S. at 201 (if the facts alleged do not establish that the officer’s conduct violated a
constitutional right, then the qualified immunity analysis need proceed no further and qualified
immunity is appropriate).
VI. CONCLUSION
For the reasons set forth above, Plaintiff’s motion for summary judgment, (D.E. 34), is
DENIED. Defendant’s cross-motion for summary judgment, (D.E. 43), is GRANTED, and this
action, (D.E. 1), is DISMISSED.
ORDERED this 9th day of April 2012.

____________________________________
BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE

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