Ostrander v. Kosteck et al

Filing 205

ORDER DENYING 199 Motion for Judgment as a Matter of Law. Signed by Judge Robert Pitman. (tb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
DANIEL OSTRANDER,
Plaintiff,
v.
HAROLD KOSTECK, et al.,
Defendants.

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6:13-cv-360-RP

ORDER
Before the Court is Defendants’ Renewed Motion for Judgment as a Matter of Law. (Dkt.
199). Having reviewed Defendants’ motion, Plaintiff’s response, the relevant case law, and the
evidence and testimony at trial, the Court issues the following order.
I. BACKGROUND
Plaintiff Daniel Ostrander filed this suit under 42 U.S.C. § 1983, alleging violations of his
civil rights during his incarceration at the Hughes Unit of the Texas Department of Criminal Justice
(“TDCJ”). A jury trial was held June 19 through 22, 2017. Plaintiff’s claims of excessive force and
retaliation against Defendants Harold Kosteck, John Kelly, Kenneth Taylor, Michael Kluck, Robert
Preston, and Michael Yarbrough were sent to the jury. The jury issued the following verdict: 1
Jury Question No. 1
Do you find that the Plaintiff proved, by a preponderance of the evidence, that on
September 26, 2012, Defendants Preston or Yarbrough used excessive force against
Plaintiff Daniel Ostrander?
Defendant Preston: No
Defendant Yarbrough: Yes
Jury Question No. 2
The Court omits the instruction included in the verdict form regarding how to answer questions and which questions
should be answered in light of earlier responses. It also omits any questions that the jurors, based on those instructions,
did not answer. (See Dkt. 184).

1

1

Do you find that the Plaintiff proved, by a preponderance of the evidence, that the
Defendants Preston and Yarbrough used force against Plaintiff Daniel Ostrander on
September 26, 2012, for the purpose of retaliating against him for the exercise of his
First Amendment right to complain to prison officials?
Defendant Yarbrough: No
Jury Question No. 3
Do you find that the Plaintiff proved, by a preponderance of the evidence, that on
November 22, 2012, Defendants Preston or Taylor used excessive force against
Plaintiff Daniel Ostrander?
Defendant Preston: No
Defendant Taylor: No
[Jury Question No. 4 omitted. See supra note 1.]
Jury Question No. 5
Do you find that the Plaintiff proved, by a preponderance of the evidence, that on
November 29, 2012, Defendants Preston, Kosteck, Kelly, or Kluck used excessive
force against Plaintiff Daniel Ostrander?
Defendant Preston: No
Defendant Kosteck: Yes
Defendant Kelly: Yes
Defendant Kluck: No
Jury Question No. 6
Do you find that the Plaintiff proved, by a preponderance of the evidence, that the
Defendants Preston, Kosteck, Kelly, or Kluck used force against Plaintiff Daniel
Ostrander on November 29, 2012, for the purpose of retaliating against him for the
exercise of his First Amendment right to complain to prison officials?
Defendant Kosteck: Yes
Defendant Kelly: Yes

2

Jury Question No. 7
Do you find that the Plaintiff proved, by a preponderance of the evidence, that the
Defendants filed false disciplinary charges against him, for the purpose of retaliating
against him for the exercise of his First Amendment right to complain to prison
officials?
Defendant Taylor in Disciplinary Case #20130036354: Yes
Defendant Preston in Disciplinary Case #20130036354: Yes
Defendant Kluck in Disciplinary Case #20130090963: Yes
Jury Question No. 8
Do you find that the Plaintiff proved that he fully exhausted his administrative
remedies with regard to his claims of retaliation in the form of false disciplinary
charges, by completing both steps of the TDCJ grievance procedure, as required by
the Prison Litigation Reform Act?
Disciplinary Case #20130036354: Yes
Disciplinary Case #20130090963: Yes
Jury Question No. 9
Do you find that the Plaintiff proved, by preponderance of the evidence, that the
Defendants’ actions were objectively unreasonable in light of the facts and
circumstances at the time, so as to overcome the Defendants’ qualified immunity?
Defendant Yarbrough: Yes
Defendant Kosteck: Yes
Defendant Kelly: Yes
Defendant Preston: Yes
Defendant Taylor: Yes
Defendant Kluck: Yes
Jury Question No. 10
What amount of money, if any, paid now in cash, do you find that the Plaintiff
proved by a preponderance of the evidence would reasonably compensate him for
actual damages caused by the Defendant(s) in violation of Plaintiff Daniel
Ostrander’s constitutional rights?
Defendant Preston: $1,500.00
Defendant Yarbrough: $500.00
Defendant Taylor: $250.00
Defendant Kosteck: $1,000.00
Defendant Kelly: $750.00
Defendant Kluck: $1,000.00

3

Question No. 10
Do you find, by a preponderance of the evidence, that one or more Defendants
acted with malice or with reckless indifference to the rights of others?
Defendant Preston: Yes
Defendant Yarbrough: Yes
Defendant Taylor: Yes
Defendant Kosteck: Yes
Defendant Kelly: Yes
Defendant Kluck: Yes
Question No. 11
What sum of money has Plaintiff Daniel Ostrander proved by a preponderance of
the evidence should be assessed against each Defendant as punitive damages?
Defendant Preston: $1,500.00
Defendant Yarbrough: $500.00
Defendant Taylor: $250.00
Defendant Kosteck: $1,000.00
Defendant Kelly: $750.00
Defendant Kluck: $1,000.00
(Dkt. 184).
Following trial, on July 18, 2017, Defendants submitted the renewed motion for judgment as
a matter of law and motion for a new trial presently before the Court. In that motion, Defendants
assert that the evidence at trial was legally insufficient to support the jury’s verdict on the following
claims:
1. Excessive force by Defendant Kelly on November 29, 2012. (See Jury Question No.
5).
2. Retaliation by Defendant Kosteck in the form of excessive force on November 29,
2012. (See Jury Question No. 6).
3. Retaliation by Defendant Kelly in the form of excessive force on November 29,
2012. (See Jury Question No. 6).
4. Retaliation by Defendant Preston in Disciplinary Case #20130036354. (See Jury
Question No. 7).
5. Retaliation by Defendant Kluck in Disciplinary Case #20130090963. (See Jury
Question No. 7).
4

6. All claims for punitive damages. (See Jury Question No. 10).
(See Defs.’ Mot., Dkt. 199, at 1–2). Plaintiff responds that the evidence at trial was sufficient
to support the jury’s verdict on each of these claims. (Pl.’s Resp., Dkt. 103).
II. STANDARD OF REVIEW
If a party makes a motion for judgment as a matter of law during trial, but the court does not
grant the motion, the moving party may renew its motion no later than twenty-eight days after the
entry of judgment. Fed. R. Civ. P. 50(b). If a court finds that, considering all of the evidence
proffered, “a reasonable jury would not have a legally sufficient evidentiary basis” to find in favor of
a party on an issue or claim, the court may resolve the issue against the party and grant a motion for
judgment as a matter of law. Fed. R. Civ. P. 50(a)(1).
In considering a Rule 50(b) motion for judgment as a matter of law following a jury verdict,
the court must be “especially deferential” to the jury’s findings. SMI Owen Steel Co., Inc. v. Marsh
USA, Inc., 520 F.3d 432, 437 (5th Cir. 2008). It should “consider all of the evidence, drawing all
reasonable inferences and resolving all credibility determinations in the light most favorable to the
non-moving party.” Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012); Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (“Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of
a judge.”). A court must deny a motion for judgment as a matter of law “unless the facts and
inferences point so strongly and overwhelmingly in the movant’s favor that reasonable jurors could
not reach a contrary conclusion.” Id. (quoting Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235
(5th Cir. 2001)). In deciding a Rule 50(b) motion, even if the court would reach a different
conclusion as the trier of fact, the court is “not free to reweigh the evidence or to re-evaluate
credibility of witnesses.” Brown v. Kinney Shoe Corp., 237 F.3d 556, 564 (5th Cir. 2001) (quoting Hiltgen
v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995)).

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“The court may, on motion, grant a new trial on all or some of the issues.” Fed. R. Civ. P.
59(a)(1). “A new trial may be granted, for example, if the district court finds the verdict is against the
weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error
was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985).
“While the court is to respect the jury’s collective wisdom and must not simply substitute its opinion
for the jury’s, ‘[i]f the trial judge is not satisfied with the verdict of a jury, he has the right—and
indeed the duty—to set the verdict aside and order a new trial.’” Id. (quoting C. Wright, Federal
Courts 634 (4th ed. 1983)). In ruling on a motion for new trial, the jury’s verdict may not be lightly
set aside. Ellis v. Weasler Eng’g, Inc., 258 F.3d 326, 343 (5th Cir. 2001).
III. ANALYSIS
A. Excessive Force Claim Against Defendant Kelly
Defendants argue that Plaintiff presented no evidence at trial that Defendant “Kelly
perpetrated, or was otherwise directly involved in the use of excessive force [Plaintiff] claims to have
taken place on November 29, 2012.” (Defs.’ Mot., Dkt. 199, at 4). Defendants assert that although
Plaintiff mentioned his allegation of excessive force against Defendant Kelly in his opening
statement, he failed to mention it while on the witness stand and never obtained any inculpatory
testimony against Kelly by other witnesses. (Id. at 4–5). Defendants also argue that while several
TDCJ records were submitted to the jury, “including pictures, grievances, investigative reports and
medical records, . . . for the purposes of the claims subject to this motion, [those records] do no
more than establish that Plaintiff made previous self-serving accusations substantially mirroring his
claims in this lawsuit.” (Id. at 8). Finally, Defendants argue that Plaintiff has failed to prove a causal
connection between his injuries and Kelly, meaning that he lacks standing, and has failed to present

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evidence sufficient that a reasonable juror could conclude Kelly’s entitlement to qualified immunity
was overcome. 2 (Id. at 9).
While the Court agrees with Defendants that evidence Defendant Kelly used excessive force
against Plaintiff on November 29, 2012, is limited, the Court disagrees that a reasonable jury could
not conclude, based on the evidence, that he did.
It was undisputed at trial that Defendants Kosteck and Kelly were escorting Plaintiff
Ostrander back to his cell after a shower on November 29, 2012. (Dkt. 199-1, at 306, Trial Tr. Day
2, 242:4–243:1). Evidence also demonstrated that Plaintiff was specifically under the control of
Defendant Kelly while he was walking back to his cell and that Defendant Kosteck was walking in
front of them. (See, e.g., Dkt. 175-5, at 19 (“Officer Kelly secured offender Ostrander’s left arm and
began to escort him to his cell. Officer Kosteck was ahead of the escort and standing
by cell 12-F-79.”). Other documentary and testimonial evidence, including a use of force video and
testimony of some Defendants, indicated that Plaintiff sustained an injury to his face while being
transported back to his cell. (See, e.g., id. at 98). Plaintiff elicited detailed testimony about the
circumstances surrounding the incident from Defendant Kosteck, including testimony that, at the
time a supervisor arrived, Plaintiff’s face was bleeding, he was “laying down on the ground face
first,” and Defendants Kosteck and Kelly were “restraining him.” (Dkt. 199-1, at 307, Trial Tr. Day
2, 244:18–245:1). How exactly the injury happened came down to two very different versions of
events. Defendants alleged at trial that while they were escorting Plaintiff back to his cell, he broke
free from them and slammed his face into a wall. Plaintiff alleged instead that Defendant Kelly, who
was escorting him at the time, slammed him into the wall and, together with Defendant Kosteck,
beat him.

2

The Court considers Defendants’ argument regarding qualified immunity separately. See infra Part III.D.

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Plaintiff submitted evidence sufficient for a reasonable jury to agree with his version of
events. On direct examination, he was asked, “Defendants Preston, Kosteck, Kelly, and Kluck
assaulted you using excessive force against you . . . only seven days later on November 29th,
2012 . . . is that correct?” (Id. at 126, 62:4-17). Plaintiff answered, “Absolutely. Yes, sir. That’s what
happened.” (Id. at 62:18). Other documents were submitted to the jury as evidence showing that
Plaintiff alleged in grievances that on November 29, 2012, “Officer Kosteck and Officer Kelly, after
[Plaintiff’s] shower was completed, repeatedly hit him in the face; dragged him into the cell;
slammed him and then covered the event up by dragging him back onto the run.” (Dkt. 175-5, at 8,
12).
In addition to this evidence supporting his version of events, Plaintiff identified evidence
that undermined Defendants’ version of events. For example, Plaintiff elicited testimony that the
defendants involved failed to indicate that the November 29, 2012, incident involved self-harm in
their initial excessive force reports, (Dkt. 199-1, at 564, Trial Tr. Day 3, at 135:18–140:6), even
though Defendants’ explanation for Plaintiff’s injuries at trial was that they were self-inflicted. For
example, on Defendant Kelly’s Use of Force Report, which has a section for the TDCJ employee to
“describe offender behavior, specify which offender(s) and whether it occurred before or during the
use of force,” Kelly did not mark “[a]ttempted suicide or self-mutilation.” (Dkt. 175-5, at 28).
Defendants argue that Plaintiff’s self-serving testimony and grievances are insufficient to
support the jury’s verdict. They cite no case law to support the argument that this evidence can or
should be ignored. Further, in this case, nearly all testimony and evidence regarding what happened
from the time Plaintiff left the shower to the time he ended up bleeding on the floor was based on
the parties’ versions of events and was arguably self-serving. 3 The ultimate conclusion of which

Defendants assert that TDCJ officers who are not defendants in this action are “disinterested witnesses.” The Court
does not consider other TDCJ officers to be disinterested in litigation pending against their coworkers.
3

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version of the facts to believe in such a case must be left to the jury, which is responsible for making
credibility determinations. See Reeves, 530 U.S. at 150.
The Court finds that the evidence was sufficient for the jury to conclude that Defendant
Kelly caused Plaintiff’s injuries. While there was no video evidence that Defendant Kelly beat
Plaintiff or slammed him into a wall, there was substantial evidence regarding the circumstances
immediately before and after the incident. This evidence was sufficient for the jury to infer that
Defendant Kelly was the cause of the injuries. Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir.
1997) (“Causation is a question of fact for the jury, and the jury has broad latitude to infer proximate
cause from the evidence and circumstances surrounding an event.”). The Court will therefore deny
Defendants’ motion with respect to the claim of excessive force against Defendant Kelly.
B. Retaliation Claims Against Defendants Kosteck and Kelly
Next, Defendants argue that Plaintiff failed to submit evidence sufficient to (1) prove that
Defendants Kosteck and Kelly were retaliating against Plaintiff in violation of his First Amendment
rights when they used excessive force on November 29, 2012, and (2) overcome Defendants’
qualified immunity. (Defs.’ Mot., Dkt. 199, at 6–9). Defendants argue that Plaintiff failed to establish
“any element of a retaliation claim” against Defendants Kosteck or Kelly. (Id. at 6). They assert that
Plaintiff failed to mention the claim in his own testimony and that, in response to Plaintiff’s sole
question to Defendant Kosteck regarding the claim, Defendant Kosteck denied the allegation. (Id. at
6–7). Defendant Kelly was not asked about the alleged retaliation. (Id. at 5).
“To prevail on a claim of retaliation, a prisoner must establish (1) a specific constitutional
right, (2) the [prison official’s] intent to retaliate against the prisoner for his or her exercise of that
right, (3) a retaliatory adverse act, and (4) causation.” Morris v. Powell, 449 F.3d 682, 684 (5th Cir.
2006) (quoting McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998)). “The inmate must produce
direct evidence of motivation or . . . allege a chronology of events from which retaliation may

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plausibly be inferred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation marks
omitted). Evidence of causation must demonstrate that “but for the retaliatory motive the
complained of incident . . . would not have occurred.” Id.
Plaintiff submitted substantial evidence of his exercise of a specific constitutional right—his
First Amendment right of access to the courts by filing litigation and grievances. (See Dkt. 175-1, at
1–78); Woods, 60 F.3d at 1164 (discussing an inmate’s constitutional right of access to the courts).
Plaintiff also submitted sufficient evidence of a retaliatory adverse act—the excessive force used by
Defendants Kosteck and Kelly previously discussed by the Court. See Morris, 449 F.3d at 686
(holding that retaliation is actionable if it is capable of deterring a person of ordinary firmness from
further exercising his constitutional rights). The Court therefore focuses its attention on the other
two elements of Plaintiff’s retaliation claim—intent and causation.
In his opening statement, Plaintiff argued that when Defendants Kosteck and Kelly were
beating him on November 29, 2012, one of them said, “You going to file a grievance on me,
Ostrander? You going to file a grievance on me too? You going to file a lawsuit on me?” (Dkt. 1991, at 95, Trial Tr. Day 2, 31:6–12). But these specific allegations were absent from Plaintiff’s
testimony on the witness stand, and no evidence was submitted to the jury regarding the statements.
Plaintiff also made general allegations that Defendants and other officers beat him up “to deter
[him] from writing grievances” and would tell him as much while beating him. (Id., at 97:3-13; Dkt.
175-1, at 1–4). But such allegations are not direct evidence of Defendants’ Kosteck and Kelly’s
motivation for their use of excessive force.
At the very beginning of the use of force video, which commences immediately after
Plaintiff alleges Defendants Kosteck and Kelly assaulted him while escorting him back from the
shower, Plaintiff can be heard shouting that Defendants were not “going to stop [him] from filing

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grievances.” (Dkt. 199-1, at 322, Trial Tr. Day 2, 258:15-20). Again, these statements are not direct
evidence of Defendants’ motivation and instead could be attributed to Plaintiff’s own conjecture.
Because the Court cannot identify any direct evidence that retaliation was the motivation
behind Defendant Kosteck and Kelly’s use of excessive force, it must evaluate whether Plaintiff
provided sufficient evidence of a chronology of events from which reasonable jurors could infer
retaliation. For the jurors to reasonably make such an inference, Plaintiff must have submitted
evidence that (1) he was exercising his First Amendment right to file grievances and litigation leading
up to the November 29, 2012, use of excessive force and (2) Defendants Kosteck and Kelly knew
about that speech.
The evidence clearly supports that Plaintiff was exercising his constitutional right to file
grievances and litigation leading up to November 29, 2012. First, Plaintiff testified that he had been
successful in a prior federal civil rights lawsuit against TDCJ officers in 2000. (Dkt. 199-1, at 152,
Trial Tr. Day 2, 88:9–16). Second, Plaintiff submitted as evidence the following grievances he filed
while at the Hughes Unit in the months before the November 29, 2012 incident:
•

Plaintiff’s grievance filed July 5, 2012, against an unnamed correctional officer he
said threatened him about filing grievances. (Dkt. 175-5, at 48–49).

•

Plaintiff’s appeal of the July 5, 2012, grievance, filed July 11, 2012, alleging that he
was under duress and in fear for his life, and explaining that he never spoke with
Defendant Kluck about the grievance and never refused to cooperate with an
interview. (Dkt. 175-5, at 50–51).

•

Plaintiff’s grievance filed September 21, 2012, against Defendant Preston for
retaliation, alleging that “I have been registering grievances concerning his staff
threatening to assault me . . . as a method of retaliation for a lawsuit I had prevailed
in against [TDCJ].” (Dkt. 175-1, at 1–2).

•

Plaintiff’s appeal of the September 21, 2012 grievance, filed October 4, 2012, alleging
that Defendant Preston berated him for his grievance activities and that Defendant
Preston’s “boys” or “conspirators” assaulted him. (Dkt. 175-1, at 3–4).

•

Plaintiff’s grievance filed September 26, 2012, against Defendant Preston and other
unidentified officers, alleging that Defendant Preston “conspired with 2-unit staff
11

members . . . to assault me without need or provocation as a method of retaliation
for my peaceful litigation activities against [TDCJ] staff.” (Dkt. 175, at 21–22).
•

Plaintiff’s grievance filed October 1, 2012, against a TDCJ officer who is not a
defendant in this lawsuit, alleging that Plaintiff had been assaulted by other officers
and that the named TDCJ officer had failed to obtain medical assistance. (Dkt. 1741, at 39–40).

•

Plaintiff’s grievance filed October 10, 2012, against Defendants Taylor, Kelly and
Kluck, 4 alleging that Defendants Taylor and Kelly had engaged in a “malicious cell
search” in which they dumped his coffee down the toilet; that Defendant Taylor had
made threatening comments regarding Plaintiffs filing of grievances against
Defendant Preston and others; and that afterward, Defendant Taylor had filed a false
disciplinary report against Plaintiff. (Dkt. 175-1, at 15–16).

•

Plaintiff’s grievance filed October 15, 2012, against Defendant Preston alleging that
he conspired with Defendant Taylor to cover up a false disciplinary report and
inaccurately report a use of force incident involving Plaintiff. (Dkt. 175-1, at 65–66).

•

Plaintiff’s appeals of his September 26, 2012, October 1, 2012, October 10, 2012,
and October 15, 2012 grievances, all filed November 3, 2012. (Dkt. 175-1, at 17–18,
23–24, 41–42, 67–68).

In short, Plaintiff submitted evidence of filing numerous grievances against TDCJ officers at the
Hughes Unit in the months leading up to November 29, 2012.
The jury also had sufficient evidence to infer that Defendants Kosteck and Kelly knew about
some or all of these grievances. First, submitted with the grievances into evidence were records of
some Defendants and other officers responding to Plaintiff’s allegations. (See, e.g., Dkt. 175-1, at 7
(Defendant Preston’s response), 20 (Defendant Taylor’s response), 45 (Defendant Yarborough’s
response)). Plaintiff also submitted testimony that Defendants would have known about his prior
lawsuit and grievances. Plaintiff explained during his testimony that:
Pursuant to policies that I read, what they do is I’ll submit a grievance complaining
about something, and then any officer’s name that arise[s] in there [or] that appear[s]
in my grievance, they’ll get them to – they’ll give them a copy of the grievance. They
just send it to them. They don’t call them out or anything. They have – they’re
supposed to read the grievance and file a written response to the grievance denying
it.
4

There was a fourth TDCJ officer named in the grievance who was not named as a defendant in this lawsuit.

12

(Dkt. 199-1, at 108, Trial Tr. Day 2, 44:9–16). Finally, while Defendant Preston—who was named in
more than one of Plaintiff’s grievances—was testifying, he admitted that each of the other
defendants “were [his] officers” and agreed with Plaintiff that they were his direct subordinates. (Id.,
at 43:18–14).
While there was no direct evidence of Defendant Kosteck or Kelly’s knowledge of these
grievances or Plaintiff’s prior litigation, Defendant Kelly was specifically named in one grievance,
and the jury could have reasonably inferred from the number of grievances and the number of
officers who knew about them—including their supervisor, Defendant Preston—that Defendants
Kosteck and Kelly were informed about Plaintiff’s grievance activity prior to their excessive use of
force on November 29, 2012.
Further, Defendants offered little testimony to contradict Plaintiff’s allegations that their
excessive force was motivated by retaliation. For example, they did not testify that they did not
know about any of the past grievances or offer an alternative explanation for the use of force that
resulted in Plaintiff being restrained on the floor outside his cell after his shower. 5
In total, the chronology of events leading up to Defendant Kosteck and Kelly’s use of
excessive force on November 29, 2012, sufficiently supports an inference that the retaliation was the
motive and cause of the excessive force. The Court therefore concludes that there was sufficient
evidence for the jury to rule for Plaintiff on his claims of retaliation against Defendants Kosteck and
Kelly.
C. Retaliation Claims Against Defendants Preston and Kluck
Defendants also argue that Plaintiff failed to submit sufficient evidence that Defendants
Preston and Kluck’s disciplinary charges were retaliatory. They assert that Plaintiff generally ignored
Rather than allege such force was justified, Defendants alleged that there was no force and that Plaintiff’s injuries were
self-inflicted. Defendants Kosteck and Kelly did, however, offer an alternative explanation of their use of force after
Defendant Ostrander was restrained on the way back to his cell from the shower—namely, that Plaintiff was not
cooperating and refusing to stand, meaning certain force was required to return him to his cell.

5

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the issue in both his own testimony and his cross-examination of each defendant. (Defs.’ Mot., Dkt.
199, at 6). They again argue that the evidence is insufficient to overcome Defendants’ qualified
immunity.
Plaintiff’s retaliation claim against Defendant Preston is related to a disciplinary report filed
against him for possession of contraband that was initially filed by Defendant Taylor. Plaintiff
submitted as evidence the disciplinary report. (Dkt. 175-2, at 2). The report indicates that a hearing
was held on Defendant Taylor’s disciplinary report on October 10, 2012, indicating that Plaintiff
entered a plea of not guilty but was found guilty. (Id.). The report is signed by Defendant Preston,
and, in the place for Plaintiff’s signature, Preston appears to have written “handcuffed.” (Id.).
Plaintiff’s retaliation claim against Defendant Kluck relates to a disciplinary report
Defendant Kluck filed against Plaintiff after the November 29, 2012 incident. Defendant Kluck was
one of the officers responding to the incident after Plaintiff was secured on the ground by
Defendants Kosteck and Kelly. The report explains:
On 11-29-12 offender Ostrander was being escorted from the shower when he
pulled away from staff and hit the wall with his face. Offender laid down and refused
to walk back to his cell. I gave several orders to walk but Offender Ostrander
refused. This caused a major use of force and all activities to stop. Offender
Ostrander refused to release the hand restraints which caused chemical agents to be
used and a force cell move team to be assembled.
(Dkt. 175-5, at 96). It is signed by Defendant Kluck.
First, as with the previous claim of retaliation, Plaintiff has provided sufficient evidence that
he was exercising his constitutional right to file grievances and engaging in litigation leading up to
the alleged retaliations. See Morris, 449 F.3d at 686. For the reasons detailed below, the Court
concludes Plaintiff also provided sufficient evidence (1) of a retaliatory act taken by both Defendant
Preston and Defendant Kluck through the disciplinary reports and (2) to allow a reasonable jury to
infer that the primary motive for the disciplinary reports was retaliation.

14

As the Court already detailed, there was substantial evidence that Plaintiff filed numerous
grievances leading up to the filing of the disciplinary reports. Both Defendant Preston and Kluck
submitted written responses to some of Plaintiff’s grievances, (see, e.g., Dkt. 175-1, at 7 (Defendant
Preston’s response), 53 (Defendant Kluck’s response)), meaning they were aware of at least some of
the grievances Plaintiff filed. In addition, Plaintiff specifically testified that he attached the final
judgment in his prior lawsuit to one of the grievances and that Defendant Preston shook the
grievances and final judgment in his face. (Dkt. 199-1, at 156, Trial Tr. Day 2, 91:8–92:1).
Notably, with respect to the retaliation claims against Defendants Preston and Kluck,
Defendants did offer evidence that the disciplinary reports were not filed for the primary purpose of
retaliation, but for the reasons stated in the reports. For the claim against Defendant Preston, the
evidence was largely based on the testimony of Defendants and their own recollections of the event
submitted through TDCJ records. For the claim against Defendant Kluck, the jurors watched the
video in which Defendant Kluck ordered Plaintiff—who was laying on the ground on his stomach
with his hands hand-cuffed behind his back—to stand up and heard Plaintiff say he could not get
up. For both claims, however, it was appropriate for the jury to weigh the credibility of the witnesses
and weigh the evidence in determining the motivation for the disciplinary reports.
With respect to the disciplinary report signed by Defendant Preston, the jury could have
inferred, based on the evidence, that Defendant Preston knew Plaintiff did not have contraband
materials and signed the disciplinary report in retaliation for the numerous grievances Plaintiff filed
against him and his staff. With respect to the disciplinary report signed by Defendant Kluck, after
watching the video, the jury could have determined that it would have been very difficult or
impossible for Plaintiff to comply with Defendant Kluck’s instructions to stand up and concluded
that Defendant Kluck’s primary motive in filing the report was retaliation.
D. Qualified Immunity

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Defendants, in conclusory fashion, argue that the evidence before the jury did not show to a
legally sufficient degree that “Defendants engaged in conduct that was objective unreasonable” or
that Defendants “violated a clearly established right of which a reasonable person would have
known.” (Dkt. 199, at 9). “Qualified immunity protects public officials from suit unless their
conduct violates a clearly established constitutional right.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th
Cir. 2008) (internal quotation marks omitted). To overcome a qualified immunity defense, a plaintiff
must show that (1) the official violated a statutory or constitutional right, and (2) the right was
“clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). A district court has discretion to decide which of the two prongs of qualified-immunity
analysis to tackle first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
At trial, Plaintiff and Defendants presented two different versions of events to the jury, and,
as discussed above, Plaintiff submitted sufficient evidence for a reasonable jury to agree with his
version of events. Namely, Plaintiff alleged that Defendant Kelly slammed him into the wall and
then, together with Defendant Kosteck, beat him—including repeatedly hitting him in the face,
which was bleeding, and dragging him—and that Defendants Kelly and Kostek retaliated against
Plaintiff by assaulting him and Defendants Preston and Kluck retaliated against him by filing
disciplinary reports against him. Because the Court concludes there was enough evidence for the jury
to accept Plaintiff’s version of events based on the jury’s credibility determinations, it also concludes
that the evidence was sufficient to show Defendants violated Plaintiff’s constitutional rights. See
Morris, 449 F.3d at 684. There is no question that needlessly 6 beating an inmate while walking him
back to his cell is a violation of the inmate’s constitutional rights. Hudson v. McMillian, 503 U.S. 1, 5

While Defendants discuss in their motion considerations for determining whether force was needed, those
considerations are not relevant here, where Defendants did not allege or provide any evidence that they needed to use
force leading up to Plaintiff’s initial injury and instead asserted that Plaintiff caused the injury himself.

6

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(1992) (“[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.”).
The Court next turns to whether Plaintiff’s constitutional rights were “clearly established” at
the time of the challenged conduct. See Harlow, 457 U.S. at 818. “A Government official’s conduct
violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a]
right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is
doing violates that right.’” Ashcroft v. al–Kidd, 563 U.S. 731 (2011) (alterations in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The Supreme Court “does not require a case directly
on point for a right to be clearly established,” but “existing precedent must have placed the statutory
or constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (internal
quotation marks omitted).
The Court therefore analyzes whether, in late 2012, a reasonable government official would
have known that Defendants’ action violated Plaintiff’s rights. In its verdict, the jury found that
Plaintiff proved Defendants’ actions were objectively unreasonable in light of the facts and
circumstances at the time and that Defendants therefore were not entitled to qualified immunity.
(Dkt. 184). The legal landscape of 2012 supports the jury’s verdict.
In Cowart v. Erwin, the Fifth Circuit stated:
We have little difficulty concluding that in 2009, the time of the incident, it was wellestablished, in sufficiently similar situations, that officers may not “use gratuitous
force against a prisoner who has already been subdued . . . [or] incapacitated.”
Reasonable officers had fair notice that such conduct under the circumstances
violated Cowart’s right to be free from excessive force.
837 F.3d 444, 454 – 55 (2016) (quoting Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002)).
The Fifth Circuit also has confirmed that the “law of this circuit is clearly established, and
was so in 1990 when the instant disciplinary charges issued, that a prison official may not retaliate

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against or harass an inmate for . . . complaining to a supervisor about a guard’s misconduct.” Woods,
60 F.3d at 1164; Morris, 449 F.3d at 684.
The Court therefore finds that the evidence before the jury was such that reasonable and
impartial minds could have found that a reasonable person would have known that using excessive
force and also assaulting a prisoner in retaliation for filing grievances were clear violations of
Plaintiff’s constitutional rights.
E. Punitive Damages
Finally, Defendants argue that Plaintiff failed to submit sufficient evidence to warrant a
finding of punitive damages. As an initial matter, it is not clear that Defendants have properly
preserved the issue of punitive damages on all claims. A party may not advance an argument in its
Rule 50(b) motion that was not raised in its Rule 50(a) motion. In re Isbell Records, Inc., 774 F.3d 859,
867 (5th Cir. 2014) (“Since a Rule 50(b) motion ‘is technically only a renewal of the [Rule 50(a)
motion for judgment as a matter of law] . . . it cannot assert a ground that was not included in the
[original] motion.’”). A Rule 50(a) “motion must specify the judgment sought and the law and facts
that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a).
At the close of Plaintiff’s case-in-chief, Defendants moved for judgment as a matter of law
but did not argue for judgment as a matter of law on four claims: an excessive force claim against
Defendant Yarborough, a retaliation claim against Defendant Yarbrough, a retaliation claim against
Defendant Taylor, and an excessive force claim against Defendant Kosteck. (Dkt. 199-1, at 545,
Trial Tr. Day 3, at 115:1-5). They re-urged their motion for a judgment as a matter of law at the
close of trial, again neither addressing those four claims nor addressing the issue of punitive damages
generally. (Id., at 144:8–145-11). The Court therefore concludes that Defendants failed to preserve
the issue of whether Plaintiff provided sufficient evidentiary support for punitive damages with
respect to the four claims they conceded should move forward at trial.

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With respect to the remaining claims—each of which was already addressed in this order—
although Defendants did not expressly discuss punitive damages in their initial motion for judgment
as a matter of law, the Court considers Defendants’ arguments that Plaintiff was not entitled to
judgment on the underlying claim sufficient to preserve the issue for renewal.
“A jury may award punitive damages in a § 1983 action when an official’s conduct is
‘motivated by evil intent or demonstrates reckless or callous indifference to a person’s constitutional
rights.’” Cowart, 837 F.3d at 455. Defendants argue that Plaintiff failed to submit any evidence of
malicious intent or recklessness. The Court disagrees. The jury’s verdict on Plaintiff’s excessive force
claims permitted the jury to impose punitive damages. See id. at 455; see also Jones v. Conner, 233 F.3d
574 (5th Cir. 2000) (per curiam) (unpublished disposition) (explaining that the threshold standard for
a finding of “constitutionally excessive force in violation of the Eighth Amendment . . . is
substantially indistinguishable from the threshold standard for punitive damages.”). Since this Court
previously concluded that the evidence was sufficient as a matter of law to support the jury’s
findings of Eighth Amendment excessive-force liability and First Amendment retaliation liability, it
follows that the jury had the discretion to award punitive damages. Smith v. Wade, 461 U.S. 30, 51–52
(1983).
VI. CONCLUSION
For these reasons, the Court hereby DENIES Defendants’ Motion for Judgment as a
Matter of Law and Alternative Motion for a New Trial. (Dkt. 199).

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SIGNED on October 4, 2017.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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