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Arcade Joseph Comeaux, Jr v. Darrell Sutton

January 10, 2011

ARCADE JOSEPH COMEAUX, JR.,
PLAINTIFF,
v.
DARRELL SUTTON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lee H. Rosenthal United States District Judge

(TDCJ-CID #841331)

MEMORANDUM AND OPINION

In this suit, the plaintiff, Arcade Joseph Comeaux, Jr., a Texas prison inmate, made a number of allegations against prison officials. An appeal after summary judgment was granted affirmed the dismissal of all but the allegation that in February 2002, prison guards had used excessive force against Comeaux and other guards had failed to intervene. After remand and additional discovery on these claims, the defendants have again moved for summary judgment based on the expanded record and Comeaux filed many related motions. After a careful review of the motions filed by and responses, the summary judgment record, and the applicable law, this court grants the defendants' motion for summary judgment, disposes of Comeaux's motions as set out below, and enters final judgment by separate order. The reasons for these rulings are explained in detail in this memorandum and opinion.

I. Background

Comeaux has an extensive litigation history. Many of the causes of action he has asserted in different suits stem from his claim that he has extensive disabilities that made him wheelchair-dependent. In this case, he alleged that given his disabilities, the force used against him in February 2002, when he allegedly refused to comply with an order, was excessive. But the record in this and other cases involving Comeaux shows that he has a history of physical violence and has attacked and injured others, including while in prison. The record also shows that in 2002, the defendant correctional officers believed that Comeaux was exaggerating his disabilities, malingering, and was capable of physical violence. The officers point to subsequent events as evidence that this belief was objectively reasonable. In November 2009, Comeaux escaped from prison by shooting a semiautomatic pistol at two officers while he was secured in the back of a wheelchair transport van. Comeaux forced the transport officers to give him their weapons and uniforms, handcuff themselves to each other, and lay face-down in the back of the van. Comeaux escaped without his wheelchair. He later arrested on the streets of Houston, where he had managed for approximately a week without a wheelchair. The defendants point to these events as evidence that Comeaux was quite capable of the physical resistance the officers asserted he used in 2002 and as evidence that their belief that force was needed was reasonable. These arguments, and the evidence, are analyzed below.

A. Comeaux's Claims in this Suit

Comeaux filed this suit in July 2003 against 23 prison administrators and employees at the Estelle Unit of the Texas Department of Criminal Justice -- Correctional Institutions Division (TDCJ-CID). Comeaux initially alleged that the defendants used excessive force against him, failed to protect his safety, verbally abused him, denied him medical care, denied him access to the courts, denied him due process, and deprived him of property, all in retaliation for exercising his right of access to the courts.*fn1

This court summarized Comeaux's allegations in an order entered on September 28, 2006:

Comeaux is in the Estelle High Security Unit of the TDCJ-ID. He uses a wheelchair. On the morning of February 11, 2002, Comeaux was scheduled to go to the Fort Bend County Courthouse pursuant to a bench warrant. Comeaux alleges that [correctional officers] Biscamp, Jenkins, and Sutton were escorting him to the transport van when the incident that forms the basis of this suit occurred. Comeaux was handcuffed for the trip. In the elevator, Biscamp allegedly told Comeaux to stop filing suits and grievances. At the time, Biscamp was the defendant in a suit Comeaux had filed. Comeaux is apparently referring to Civil Action Number 4:01-CV-1411, in which Comeaux alleged that Biscamp discriminated against him based on his disability.

Comeaux was taken to the second floor and placed in the middle of the hallway. Major McComb, Captain Hutchinson, and Nurse McCartney were present, along with five escorting officers. Comeaux was told that he would need to be strip-searched. Comeaux denies refusing an order for a strip-search, but agrees that he did not comply with an order to change from his administrative segregation clothing. Comeaux asserts that he had been strip-searched in the cell and that there was no need for a second strip-search. (Docket Entry No. 42, Comeaux Affidavit, Ex. Al, p. 38). Comeaux also claims that there was no policy requiring inmates to change clothes before transport to court and no policy that called for inmates to change in a hallway. The officers contend that there was a policy requiring inmates to change from their jail clothes before court appearances, which they were implementing. The officers contend that when they attempted to assist Comeaux in changing, he struggled and resisted, causing a struggle in which he fell to the floor and received two minor scrapes. Comeaux argues that as a disabled inmate, he is not required to wear a jumpsuit. Instead, he wears pants and a shirt.*fn2

Comeaux alleges that using his refusal to comply with an order for a strip-search or to change his clothes as a pretext, Biscamp, who was standing behind his wheelchair, hit him on the head and neck for three to five minutes. Comeaux claims that John Doe I, John Doe II, Major McComb, Captain Hutchinson, and Nurse McCartney stood by and did nothing to protect him. Captain Hutchinson suggested getting a camera, but Major McComb refused. McComb told the officers to get Comeaux's jail clothes off, saying that he did not care whether they were cut off or pulled off. Biscamp asked the nurse for scissors to cut the jail clothes off Comeaux. Comeaux alleges that when Biscamp had scissors in his hand, he began hitting Comeaux more violently. Comeaux felt a pop in his neck, pain in his elbow and forearm, and a cut on his neck from the scissors. He alleges that Jenkins and Sutton, who were standing by his wheelchair, lifted him out of the wheelchair and slammed him face-down to the concrete floor. Comeaux's handcuffed hands were pinned beneath his body. He alleges that the wind was knocked out of him and that he fractured his elbows. Comeaux alleges that Sergeant Sutton beat him with his fists and pinned him with his knees, that Sutton put his knee on Comeaux's head, and that Jenkins dragged him, causing his face to scrape the floor. Comeaux alleges that Sutton and Jenkins held him so other officers could beat him and Biscamp could hit him with the scissors. According to Comeaux, Jenkins threatened more harm to Comeaux if he did not stop his litigation.

Comeaux's pants were cut off his body. Captain McComb then ordered the removal of the handcuffs so the officers could change Comeaux's shirt. Comeaux alleges that Biscamp applied the handcuffs in a way that cut off blood circulation and caused pain. Comeaux alleged that he sustained the following injuries: knots on his head; friction burns on the right side of the face; a stab wound on left elbow; fractures to left and right elbows; swollen knees; abrasion on neck, shins, knee, and arms; swollen wrist; neck and back pain; and bruises on his chest. Comeaux claimed that he only received band-aids and that Physician's Assistant Healy refused to examine his elbow after the incident, telling Comeaux that he would receive medical care when he stopped filing lawsuits.

In June 2002, Comeaux complained that his elbow was fractured, that bone fragments had exited the wound, and that it had been swollen for months. Comeaux alleges that Physician's Assistant Healy refused to examine the elbow and told Comeaux that his elbow was fine. (Docket Entry No. 20, Plaintiff's More Definite Statement, p. 25). Comeaux states that in May 2004, he did receive an X-ray, but medical personnel will not tell him the result. (Docket Entry No. 20, Plaintiff's More Definite Statement, p. 13). Comeaux states that currently he has "floating" bones in his elbow and that a bone is missing from his elbow, causing swelling.

Comeaux alleges that after the February 11, 2004 incident, Sutton, Biscamp, Jenkins, McComb, McCartney, Luker, Velasquez, Wright, Ragan, Hutchinson, Blackburn, Quada, Phipps, Revel, and Healy conspired to retaliate against him for his legal activities. Comeaux claims that Sutton conspired with McComb and Hutchinson to write a false disciplinary report accusing Comeaux of refusing a strip-search.

Comeaux claims that after the February 11, 2002 incident, he was falsely accused of destroying a law book. Based on that accusation, defendants Phipps, Quada, Hoke, and Harrison placed him on legal restrictions for sixty days, allegedly to prevent him from taking legal action against the participants in the February 11, 2002 use of force. Comeaux was assigned to administrative segregation long before the February 2002 incident. On February 13, 2002, the Administrative Segregation Committee ("ASC") put Comeaux on a Level 3 Property Restriction based on his refusal to "submit to a proper strip search which resulted in a MUOF (major use of force.)." This designation allowed "no additional personal property items . . . unless specifically authorized by unit/facility administration." Following a disciplinary charge, a hearing on February 18, 2002, and conviction, the ASC punished Comeaux with a restriction on legal property for seven days; placement in a cell without electricity; a five-day restriction on bedding, mattress, and linens; a three-day restriction on clothes, pants, shirt, and underwear; a seven-day food restriction; commissary, property, and recreation restrictions for seven months; a legal material purchasing restriction; and a drop in custodial status within administrative segregation from Level 2 to Level 3 for three months. Comeaux alleges that counsel substitute Wright, as well as Luker, Biscamp, and Sutton conspired to exclude him from the February 18, 2002 hearing, then falsely claimed that Comeaux refused to attend. Comeaux complains that inmates in administrative segregation were generally denied due process in an ASC disciplinary hearing by not being allowed to attend, testify, or present evidence. Comeaux alleges that Dretke allowed these due process violations to occur.

Comeaux alleges that the efforts to have him stop his litigation activity continued. He alleges that in May 2002, Sutton and Jenkins came to his cell and asked if he would drop his lawsuit. On June 5, 2002, according to Comeaux, Luker disregarded evidence of his innocence and found him guilty of a false charge of threatening an officer in disciplinary case 20020250567. Comeaux alleges that Officer Ragan threatened to throw away Comeaux's legal property if he did not drop a lawsuit naming Ragan. Comeaux alleges that M. Velasquez interfered with the processing of Comeaux's grievances stemming from the February 2002 use of force incident. When asked about the delay, Velasquez allegedly said, "We take care of each other." Comeaux alleges that Lieutenant J. Ragan withheld Comeaux's legal property, stating that Jenkins and Hutchinson were friends of hers and that she would return the property if Comeaux would drop his lawsuit against them. Comeaux alleges that Martha Blackburn opened his legal mail and withheld or discarded it as a form of retaliation to try to force Comeaux to drop his case against her. Comeaux alleges that as a result of these actions, he was forced to seek multiple court extensions and that some of his cases were dismissed for late filing. Comeaux also alleges that Rick Thaler and Rollin Robinson failed to investigate Comeaux's grievances, denying his right to due process.

Comeaux alleges that in July 2002, he was left on the floor for two or three days with protruding hemorrhoids, external bleeding, septic cysts, and swelling on his left side. He alleges that Physician's Assistant Healy refused to treat him unless he crawled to his wheelchair and did not allow other officers to lift Comeaux off the floor and into his wheelchair. Comeaux alleges that he had to commit self-mutilation to get medical care. He alleges that nurse Revel looked at the self-inflicted injury, squeezed alcohol into the wound to provoke pain, said that Comeaux had not bled enough, and left without treating the wound. Other officers helped to stop the bleeding. Revel sent Comeaux to the Jester IV Unit, saying that Comeaux would get better medical treatment if he stopped filing lawsuits.

Comeaux was transferred to the Jester IV Unit, where he received treatment and medications. He alleges that when he returned to the Estelle Unit, he was again denied medical care. He alleges that Healy stopped changing the wound dressing and told Comeaux that if he wanted adequate medical care, he had to stop filing lawsuits. Comeaux alleges that he was forced to drop one of his lawsuits, Case No. 02-4144, which alleged the use of excessive force, failure to protect, denial of due process, discrimination, denial of access to the courts, retaliation, and denial of basic human needs.

Comeaux seeks $5,000 from each defendant and $500,000 in punitive damages. He asks that the disciplinary cases be expunged from his record. Comeaux seeks a declaratory judgment that Estelle Unit and the ASC are arbitrarily punishing offenders without due process. (Docket Entry No. 52, pp. 2-9).

On September 28, 2006, this court granted the defendants' motion for summary judgment. (Docket Entry No. 52). On March 28, 2008, the United States Court of Appeals for the Fifth Circuit affirmed this court's judgment in part and remanded Comeaux's excessive force and failure-to-protect claims. (Docket Entry No. 66). After the remand, this court appointed counsel to represent Comeaux. Additional discovery led to the filing of the pending motions. Those motions include the following: C Sutton, Biscamp, Jenkins, Hutchison, McComb and Simmons, TDCJ correctional officers, and McCartney, a nurse, moved for summary judgment on Comeaux's claims that Sutton, Biscamp, and Jenkins beat him on February 11, 2002 and that Hutchison, McComb, Simmons, and McCartney watched without intervening.*fn3 (Docket Entry No. 90). Comeaux has responded, (Docket Entry No. 94).

* Sutton, Biscamp, Jenkins, Hutchison, McComb, Simmons, and McCartney filed a supplemental motion for summary judgment. (Docket Entry No. 100). Comeaux filed a motion to strike the supplement, (Docket Entry No. 104), which the defendants opposed, (Docket Entry No. 115).

* Sutton, Biscamp, Jenkins, Hutchison, McComb, Simmons, and McCartney filed a second supplemental motion for summary judgment. (Docket Entry No. 106). Comeaux moved to strike this supplement, (Docket Entry No. 109), which the defendants opposed. (Docket Entry No. 115).

* Sutton, Biscamp, Jenkins, Hutchison, McComb, and Simmons filed a third supplemental motion for summary judgment. (Docket Entry No. 133). Comeaux moved to strike the supplement, (Docket Entry No. 137), which the defendants opposed. (Docket Entry No. 140). Comeaux filed a supplemental response to the defendants' motions for summary judgment. (Docket Entry No. 147). The defendants filed a reply. (Docket Entry No. 148).

* Sutton, Biscamp, Jenkins, Hutchison, McComb, and Simmons filed a fourth supplemental motion for summary judgment. (Docket Entry No. 150).

This court held a hearing in which counsel presented oral arguments on the summary judgment motions. (Docket Entry Nos. 124, 126).

B. Comeaux's Litigation History

Comeaux has an extensive litigation history in federal court. In Civil Action Number 4:01-1411, a conditions-of-confinement suit Comeaux filed in 2001, the federal court summarized that history, as follows:

Court records show that Comeaux was convicted initially on April 23, 1984, following his guilty plea to charges of indecency with a child, for which he received a sentence of twenty years' imprisonment. See Comeaux v. Cockrell, Civil Action No. H-01-1670 (S.D. Tex.) (Docket Entry No. 16). After Comeaux was released on mandatory supervision, he was convicted again on June 3, 1997, of committing aggravated sexual assault of a child, for which he received a life sentence. See Comeaux v. Cockrell, Civil Action No. H-01-3405 (S.D. Tex.); see also Comeaux v. State, No.01-99-00147-CR, 1999 WL 977832 (Tex. App. - Houston [1st Dist.] Oct. 28, 1999). Comeaux remains in custody of TDCJ at the Estelle High Security Unit in Huntsville, Texas.

. . . A thorough discussion of Comeaux's claims requires an overview of his custodial history as it relates to his conditions of confinement.

After Comeaux was convicted and sentenced to life imprisonment in 1997, he was initially assigned to TDCJ's Telford Unit. At that time, Comeaux alleges that an assortment of medical problems left him confined to a wheelchair. Comeaux claims to suffer from "hemiplegia" as the result of a stroke. Comeaux claims that he is paralyzed on his left side and that he has weakness on his right side, which make it impossible for him to ambulate. In addition, he claims to suffer from a variety of ailments, including high blood pressure, asthma, "heart problems," muscle spasms, and thyroid disease. Comeaux claims that he is "double incontinent" and that he must wear diapers and a catheter. Comeaux alleges further that he needs assistance to brush his teeth, pick up a food tray, dress, shower, transfer from his wheelchair to his bed, the shower chair, or the toilet, or to shave, to make up his bed, and to clean his cell area.

As a result of his medical condition, Comeaux was reportedly transferred from the Telford Unit to the Jester III Unit. Comeaux describes the Jester III Unit as a "barrier-free" facility with a "secondary medical care unit" that is fully capable of accommodating his special needs. The Jester III Unit features the Physically Handicapped Offenders Program ("PHOP"), where Comeaux was enrolled to receive treatment. On July 11, 1999, however, Comeaux reports that he was "involve[d] in an assault incident" that resulted in his transfer to the Estelle High Security Unit.

The "assault incident" that Comeaux glosses over in his complaint was, in fact, a vicious attack perpetrated by Comeaux. Specifically, Comeaux assaulted his former wife in the Jester III Unit visitation room by stabbing her with a twelve-inch rod fashioned from the handle of a mop bucket. See Comeaux v. Cockrell, Civil Action No. H-01-1670 (S.D. Tex.) (Docket Entry No. 16). During that same incident, Comeaux also stabbed the father of another prisoner who attempted to come to the wife's aid. (See id.). Comeaux was convicted of two counts of aggravated assault with a deadly weapon stemming from this incident, pursuant to his guilty plea, and he received two additional life sentences as a result. See Comeaux v. State, Nos. 01-03-00377-CR, 01-03-00378-CR, 2004 WL 1472074 (Tex. App. - Houston [1st Dist.] July 1, 2004, pet. ref'd). Comeaux's violent outburst terminated his participation in the PHOP and ended his stay at the Jester III facility. On August 23, 1999, Comeaux was transferred to the Estelle High Security Unit. Following his transfer to the Estelle High Security Unit, Comeaux was assigned to administrative segregation because of his assaultive behavior. According to Assistant Warden Tom Hunt, who works for TDCJ at the Estelle High Security Unit, administrative segregation is the most restrictive classification that a TDCJ inmate can have and is reserved for those inmates who are either deemed a serious risk to the safety of officers and other inmates or who are confirmed affiliates of a designated Security Threat Group or gang. (Docket Entry No. 89, Exhibit B). Inmates who are assigned to administrative segregation are confined to their cells for 23 hours each day. (See id.). These inmates get one hour of recreation outside each day and must be restrained and escorted by security personnel any time they are moved from their cell. (See id.).

In September of 1999, Comeaux returned to the Jester III Unit for additional therapy. After completing his therapy in May of 2000, Comeaux was discharged from the PHOP and returned to administrative segregation in the Estelle High Security Unit. Soon after he was returned to the Estelle High Security Unit, Comeaux filed a civil rights lawsuit against PHOP Director Dr. Kokila Niak and others at the Jester III Unit. See Comeaux v. Mackwani, et al., Civil Action No. H-00-3812 (S.D. Tex.). In that lawsuit, Comeaux complained primarily that Dr. Niak wrongfully discharged him from the PHOP therapy program and that his subsequent transfer from Jester III to the Estelle High Security Unit resulted in a denial of adequate medical care. . . .

Shortly after his case against the Jester III defendants was set for a Spears hearing, Comeaux filed the pending lawsuit against Warden Thaler and others at the Estelle High Security Unit, complaining that he was being denied proper medical care and that his accommodations were inadequate. See Comeaux v. Thaler, et al., Civil Action No. H-01-1411 (S.D. Tex.). The original complaint also named several TDCJ officials employed at the Jester III Unit. (Docket Entry No. 1). Because of the closely related nature of the claims, the cases were consolidated for purposes of the Spears hearing, which was held on May 18, 2001. After the Spears hearing, the presiding district court dismissed all of Comeaux's claims in the consolidated cases except for those lodged against Dr. Niak. See Comeaux v. Mackwani, et al., Civil Action No. H-00-3812 (S.D. Tex.) (Docket Entry No. 27). Dr. Niak prevailed after demonstrating that Comeaux was not denied care and that, moreover, medical records and accounts from Estelle Unit personnel showed that Comeaux, who was observed standing and caring for himself on his own, was malingering. See Civil Action No. H-00-3812 (Docket Entry No. 70).

The Fifth Circuit affirmed the decision in favor of Dr. Niak and the other Jester III Unit defendants. See Comeaux v. Mackwani, et al., No. 03-20776 (5th Cir. March 23, 2005). However, the Fifth Circuit remanded a portion of the consolidated case filed by Comeaux in Civil Action No. H-01-1411 for further consideration of whether Warden Rick Thaler and others at that facility had personal knowledge that the Estelle High Security Unit was not equipped to meet Comeaux's special needs as a handicapped offender and whether the failure to meet these special needs would result in the denial of Comeaux's "basic necessities of life." Id. After the case was remanded, Comeaux filed an amended complaint to clarify his remaining claims. (Docket Entry No. 20).

Comeaux v. Thaler, Civil Action Number 4:01-1411, 2008 WL 818341 (S.D. Tex. 2008) (footnotes omitted). This conditions-of-confinement case ended when the court granted the defendants' motions for summary judgment. The court found that Comeaux's alleged disability was no more than a ruse and that he made no showing that prison officials at the Estelle Unit had discriminated against him because of any disability.

The only issue in the present case is Comeaux's claim that in February 2002, prison guards used excessive force against him and that other guards in the vicinity failed to intervene. The summary judgment evidence is examined in detail below under the applicable legal standards.

II. The Summary Judgment Standard

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." See Celotex, 477 U.S. at 325. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the non-movant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted). "A fact is 'material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the non-movant's response." United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The non-movant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). "This burden will not be satisfied by 'some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'" Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).

III. The Summary Judgment Evidence

The defendants' summary judgment exhibits include the following:

(A) media reports of Comeaux's 2009 escape;

(B) a TDCJ commitment inquiry;

(C) the court's opinion in Comeaux v. Thaler, et al., Civil Action Number 4:01-1411;

(D) an affidavit by Dr. Kokila Naik submitted in Comeaux v. Thaler, et al., Civil Action Number 4:01-1411;

(E) excerpts from the depositions of Arcade Comeaux, Darrell Sutton, Robert Jenkins, Jr., Mark Biscamp, Bradley K. Hutchison, Austin B. McComb, Jr., Gail McCartney and Timothy Simmons; and

(F) portions of the TDCJ Use of Force Plan.

With their first supplemental motion for summary judgment, (Docket Entry No. 100), the defendants included the following exhibits:

(A) a TDCJ Use of Force Report dated February 11, 2002;

(B) a TDCJ Use of Force Video dated February 11, 2002;

(C) a TDCJ Serious Incident Report dated December 9, 2009; and

(D) a videotape recording of Comeaux returning to TDCJ after his escape, dated December 17, 2009.

(Docket Entry No. 100).

With their second supplemental motion for summary judgment, (Docket Entry No. 106), the defendants included a copy of the evidence submitted to the district court in Comeaux v. Mackwani, et al., Civil Action Number H-00-3812 (S.D. Tex.).

With their third supplemental motion for summary judgment, (Docket Entry No. 133), the defendants included the affidavit of Dr. Naik dated May 21, 2010, and a complete copy of Comeaux's deposition. (Docket Entry No. 150).

In response to the defendants' motion for summary judgment, Comeaux submitted the following exhibits:

(A) excerpts of Comeaux's October 7, 2009 deposition;

(B) excerpts of Darrell Sutton's September 30, 2009 deposition;

(C) excerpts of Austin McComb's September 28, 2009 deposition;

(D) excerpts of Gail McCartney's September 29, 2009 deposition;

(E) a copy of the defendants' June 6, 2007 letter brief to the United States Court of Appeals for the Fifth Circuit, Case Number 06-20869;

(F) a copy of Comeaux's original complaint in Civil Action Number 4:01-cv-1411, in the United States District Court for the Southern District of Texas, Houston Division, filed on April 27, 2001; and

(G) a copy of the Major Use of Force document produced by the defendants. (Docket Entry No. 95).

Comeaux included the following exhibits with his Supplemental Brief in Opposition to Defendants' Motion for Summary Judgment, (Docket Entry No. 147):

(A) transcript of the April 1, 2010 hearing;

(B) John Patrick's June 9, 2010 deposition;

(C) the TDCJ February 20, 2002 Major Use of Force Report, Administrative Review;

(D) TDCJ's Records Retention Schedule; and

(E) TDCJ's Records Management Plan.

Comeaux's affidavit and deposition, and TDCJ's use-of-force reports and use-of-force videotape are summarized below.

A. Comeaux's Affidavit

In his affidavit, Comeaux described how defendants Sutton, Biscamp, and Jenkins allegedly beat him on February 11, 2002 and how defendants Hutchison, McComb, and Simmons watched without intervening. Comeaux claimed that Sergeant Sutton, Lieutenant Biscamp, Sergeant Jenkins, and officers John Doe 1 and 2 came to his cell between 7:30 and 8:30 a.m. to escort him to the transport van for a court appearance. (Docket Entry No. 42, Comeaux Affidavit, Ex. A1, p. 22). They performed a strip search and placed him in hand restraints. Comeaux denied resisting. The hand restraints were in the front because of the wheelchair. Comeaux was taken to the second floor medical area instead of the transport van. In the elevator, Biscamp stated, in what Comeaux alleged was a threatening manner, that it would be in Comeaux's interests to stop filing lawsuits and grievances against prison officials.

When they reached the second floor and Comeaux was in his wheelchair in the middle of the hallway, Nurse McCartney and Major McComb asked if he would accept a shower. He responded, "I sure wish my judge and attorney could see my condition and treatment." Comeaux stated that Sergeant Biscamp, who was standing behind Comeaux's wheelchair, began assaulting Comeaux as soon as he uttered these words. (Id. at 25). Comeaux alleged that Biscamp used his forearm and elbows to beat him on the head, neck, and shoulders and that neither Captain Hutchison nor Major McComb intervened. Hutchison asked McComb whether he should get a video camera.

Comeaux denied refusing to undress as ordered to change his clothes before being taken to the court for a hearing on the criminal case against him arising out of his assault on his wife. He asserts that he could not take his clothes off because his handcuffs were fastened in front of his body. Biscamp would not remove the handcuffs. After Comeaux took his shirt off as much as he could, Biscamp ordered him to put the shirt back on. (Id. at 26). Comeaux complied. Biscamp then said "I am going to cut the ----- f----- off." Biscamp asked for scissors to cut off the shirt and told Comeaux that he would "stab his ass" if he moved. (Id. at 26).

The summary judgment evidence shows that the officers did not simply remove the handcuffs to make it easy for Comeaux to undress because of the safety hazard involved. Instead, the procedures available included separately releasing one hand from the restraints to remove the shirt, replacing that handcuff, and releasing the other handcuff. The defendants present summary judgment evidence that when Comeaux refused to cooperate, Biscamp called for scissors to cut the shirt off. The summary judgment evidence shows that Comeaux was wearing a T-shirt that he had purchased, not a prison-issued shirt, and that he became agitated when Biscamp began to cut it off. (Docket Entry No. 90, Defendants' Motion for Summary Judgment, Ex. E, Hutchison Deposition, p. 22; Docket Entry No. 100, First Supplement to Motion for Summary Judgment, Ex. A, p. 171). The summary judgment evidence also shows that the scissors Biscamp was using were medical scissors obtained from the nursing station. Those scissors have rounded tips and cannot be used to stab.

Comeaux stated that once the first assault by Biscamp ceased, Major McComb and Nurse McCartney again offered Comeaux a shower. (Docket Entry No. 42, Comeaux Affidavit, Ex. A1, pp. 25, 29). Comeaux accepted at first. (Id. at 26). Comeaux made a second comment, "they never tried to help me before but since I was going to court they was [sic] trying to coverup my condition and treatment and that I wish that judge and lawyer could see me." Major McComb told Comeaux that his lawsuits and grievances would not help him. (Id. at 29-30). At that point, Major McComb ordered Biscamp to hurry up and remove Comeaux's dirty clothes, either taking them or cutting them off, because the transport officers needed to go. (Id. at 30). Biscamp then allegedly assaulted Comeaux with blows to the head, neck, and shoulder, using his forearms, elbow, and scissors. (Id. at 29). Comeaux moved forward in his wheelchair to lessen the impact of the blows and stabs to his neck. He stated that no officers could have felt threatened by him because Biscamp was behind the wheelchair and Sutton and Jenkins were by the side. (Id. at 30).

Comeaux stated that Jenkins tried unsuccessfully to "body slam" him into the wall. When this failed, Jenkins became irate and asked Sutton for help. Comeaux alleged that Jenkins and Sutton lifted him five feet into the air and slammed him to the concrete floor. Jenkins and Sutton then pinned Comeaux to the floor with their full body weight, beat his head and body with closed fists, and kneed him in the ribs. (Id. at 32, 33). Comeaux stated that he "half slid" and was "half slammed" onto the floor and that the steel handcuffs caused deep cuts and bruising because the officers allegedly pulled Comeaux's arms in different directions, causing the steel handcuffs to cut his wrists. The side of his face scraped the floor, resulting in a friction burn. Comeaux alleged that Biscamp stabbed him in the left elbow, causing "vibration of bone contact," lacerations, severe bleeding for one month, and permanent scarring. (Id. at 33). Comeaux stated that Nurse McCartney performed only a cursory examination.

B. Comeaux's Deposition Testimony

Comeaux testified in his deposition that on February 11, 2002, he was scheduled to go to the Fort Bend County Courthouse on a bench warrant. At about 8:00 or 8:15 a.m., Biscamp knocked on Comeaux's door and told him to get ready for court. (Docket Entry No. 95, Plaintiff's Response, Ex. A, Comeaux Deposition, p. 46). Comeaux left his cell, the officers pat-searched him, and Sutton pushed the wheelchair to the elevator. Instead of being taken to the transport van, however, Comeaux was taken to the second floor medical area by Biscamp, Jenkins, and Sutton. (Id.). In the elevator, according to Comeaux's deposition testimony, Biscamp told him that it would be "best that [Comeaux] stop filing grievances and lawsuits on him and his officers." (Id. at 47).

Comeaux was offered assistance with a shower, which he initially accepted. He then changed his mind, telling the defendants that "he would like [the] judge and attorney to see how y'all been treating me because I hadn't had a shower in eight months." (Ex. A, Comeaux Dep. at 47:19-21). Right after that statement, Biscamp allegedly began to strike him from behind about the head and shoulders with his forearm and elbow. (Id. at 47). After that attack ended, Hutchison turned to McComb - the highest ranking officer present - and asked if a video camera and operator were necessary, to which McComb answered "no." (Id. at 48).

Comeaux testified:

[Major McComb] and Ms. McCartney again came up to my chair and asked me, "Can you take your clothes off?" I say, well, I say, yeah. So I grabbed my shirt like this here, "Pull it off." I say, "This is as far as I can go," because I had hand restraints on and the hand restraints wouldn't let it go any further. And Biscamp told Ms. McCartney, "Give me a pair of scissors, I'll cut the MF off." And I*m looking around trying to, you know, see what*s going on, so he said, "Put your shirt back on," so I slid it back over my - my head. And so I said, "This just ain't right, man." I said, "I*m sure going to let my lawyer and my judge know this." (Id. at 48).

Comeaux testified that right after he made this comment, Biscamp began hitting him with a pair of scissors. (Id. at 48-49). Comeaux continued:

They picked me up out of my wheelchair chest high, Sergeant Sutton turned - I mean, Sergeant Jenkins turned me upside down. He was trying to hit my head into the ground, but Sergeant Sutton lost balance. When he lost balance, rather than them slamming me head first, I - they slid me like you*re sliding to first base with them on top of me, then they started hitting me with their closed fists. After they started hitting me and they started kneeing me, Biscamp - well, now, before Biscamp did it, after they did that, Sergeant Sutton had his knee on the side of my face with his weight on it and him and Jenkins was pulling on my arm both elbows opposite and I yelled, and when I started hollering because it was hurting, they was pulling me, and when they were pulling me, my face was on the ground, it was scraping against the ground like that, and Biscamp jumped on my back with his knee. When they jumped on back with my knee, I felt my arm jerk, my left arm jerk. When I felt the jerk, I seen the scissors in my arm and he pulled it out. When he pulled it out - let me see. When he pulled it out - . . . When he pulled the scissors out, the camera lady stood in front of me. Lieutenant - the camera was on. Lieutenant Biscamp jumped up off me and ran to the camera and he said that Comeaux failed to submit for a proper strip search and a Use of Force occurred, and I was yelling that it was a lie, because they had brought me up there about a shower as far as what they told me from the beginning and a strip search was never even mentioned. And after he said that, he came, he cut off all my clothes, and may - no, Captain Hutchinson was talking to the camera lady and she moved to the backside of me, and by that time, Lieutenant Biscamp had cut my shirt off but the scissors had got dull, because it wasn't normal hospital scissors. It was some pink scissors. And when it got dull halfway, Major McComb said, "Oh, just take the handcuffs off of him and take the - pull his shirt off." So they undid the handcuffs, and pulled my shirt off . . . (Id. at 49-51).

C. The Use of Force Reports

In his February 11, 2002 Employee Participant Statement, Lieutenant Biscamp stated that Comeaux began complying with orders to remove his shirt but could not get it off all the way with the handcuffs. Biscamp began to cut Comeaux's shirt with medical scissors.*fn4 Comeaux became agitated and "jerked away and began pulling away from staff flailing out with his elbows." (Docket Entry No. 100, Defendants' Supplemental Motion for Summary Judgment, Ex. A, p. 161). Jenkins placed Comeaux on the floor, and Biscamp used medical scissors to remove Comeaux's clothing. Officer Monjaras arrived with the video camera after Comeaux's clothing had been removed. (Id.). Biscamp, Jenkins and Sutton then dressed Comeaux in clean clothing. Comeaux was returned to his wheelchair, examined by Nurse McCartney, and escorted to a van. (Id. at 161-62).

In his February 11, 2002 Employee Participant Statement, Sergeant Jenkins stated that Comeaux was told that he would be transported to court. Officers explained to Comeaux that before he could be transported, he would have to submit to a strip search and change his clothes. (Docket Entry No. 100, Defendants' Supplemental Motion for Summary Judgment, Ex. A, p. 164). Jenkins stated that Comeaux resisted by not allowing staff to remove his clothes. Comeaux instead began to turn and jerk aggressively. (Id.). Jenkins placed his hands on Comeaux's chest and put him on the floor. Jenkins and Sutton removed Comeaux's pants and socks while Biscamp removed his shirt. Jenkins took photographs of Comeaux's injuries after Nurse McCartney examined him.

In his Employee Participant Statement, also dated February 11, 2002, Sergeant Sutton stated that he placed Comeaux in hand restraints and escorted him to the second floor medical hallway. TDCJ policy required Comeaux to submit to a strip search and change of clothes before being transported to court. Comeaux began resisting. Sutton grabbed Comeaux's right arm and guided him to the floor. Sutton removed the hand restraints from Comeaux's wrists, one hand at a time, placed Comeaux in a clean shirt, and reapplied the hand restraints. (Id. at 167).

In his Employee Participant Statement of the same date, Major McComb stated that he was present in the second floor medical area when officers were preparing Comeaux for transport to state court. Comeaux refused to cooperate as officers tried to exchange his soiled clothing for clean clothing. Biscamp was attempting to use medical scissors to remove Comeaux's dirty clothing. Comeaux was part of the Physically Handicapped Offender Program and claimed to have only limited movement. McComb described what he saw:

. . . Comeaux became agitated and began thrashing in the wheel chair attempting to prevent Lt. Biscamp from removing the clothing. Sgt. Jenkins and Sgt. Sutton restrained Offender Comeaux's thrashing and placed him on the ground from the wheelchair. Officer Monjaras arrived with a video camera and began taping the use of force. Lt. Biscamp cut off Offender Comeaux's clothing and with the assistance of Sgt. Sutton and Sgt. Jenkins searched and redressed Offender Comeaux. Sgt. Sutton removed the hand restraints to allow the shirt to be put on. Sgt. Sutton also placed leg restraints and a belly chain on Offender Comeaux to prepare for transport. (Id. at 171).

Comeaux refused to complete the Offender Participant Statement. (Docket Entry No. 100, Defendants' Supplemental Motion for Summary Judgment, Ex. A, p. 169).

Nurse McCartney completed a use-of-force witness statement on February 11, 2002, in which she stated that she heard a commotion in the second floor hallway at 9:50 a.m. (Docket Entry No. 100, Defendants' Supplemental Motion for Summary Judgment, Ex. A, p. 147). She saw security officers securing Comeaux on the floor. She performed an examination to determine the extent of Comeaux's injuries. She noted a 4 inch by 1/4 inch abrasion below the right knee, which she described as a superficial wound. She also noted a 1/4 inch round superficial abrasion on the left elbow. She cleaned the areas and applied triple antibiotic ointment and bandaids.

Nurse McCartney also completed an Offender Use of Force Injury Report on February 11, 2002. (Id. at 148). She noted that Comeaux complained of an abrasion on the right leg below the knee and an abrasion on the left elbow. No other injuries were noted.

D. Summary of the Use-of-Force Videotape

This court has reviewed the videotape recording of the events after the use-of-force on February 11, 2002. (Docket Entry No. 100, First Supplement to Motion for Summary Judgment, Ex. A). The following summarizes the recording:

(1) (10:05:10) Two officers put underwear on Comeaux while he was on the floor naked. A third officer held his arm.

(2) (10:05:15) Comeaux stated that he was thrown out of his wheelchair because he wanted to keep his personal shirt.

(3) (10:05:36) Two officers put pants on Comeaux.

(4) (10:05-57) Comeaux stated that he was not aggressive, did not swing or raise his voice and the officers threw him on the floor for no reason.

(5) (10:06:15) Three officers put on Comeaux's shirt.

(6) (10:06:20) The officers released Comeaux's right hand from the handcuffs and put on the right sleeve of the shirt.

(7) (10:06:44) The officers placed Comeaux's right hand in a second pair of handcuffs.

(8) (10:06:47) Comeaux stated that he was bleeding in two places.

(9) (10:06:56) Comeaux still had the handcuff from the first set on the left hand. Officers removed the handcuffs from the left hand while they put on the shirt.

(10) (10:07:11) The officers put Comeaux's left hand into the second pair of handcuffs.

(11) (10:07:34) The officers placed leg restraints on Comeaux.

(12) (10:08:02) The officers used a chain to connect the leg restraints to ...


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