FINDINGS, CONCLUSIONS AND RECOMMENDATION
IRMA CARRILLO RAMIREZ, Magistrate Judge.
Pursuant to Special Order 3-251, this pro se prisoner civil rights case has been automatically referred for pretrial management. Before the Court is Defendants' Motion for Summary Judgment Based on Qualified Immunity, filed March 8, 2013 (doc. 34). Based on the relevant filings and applicable law, the motion should be GRANTED.
On March 12, 2012, Kristopher Picaso (Plaintiff) filed this civil rights action under 42 U.S.C. § 1983 against Kaufman County detention officers Daniel Wisdom (Wisdom), Nick Julian (Julian), and Corporal John-Paul Caballero (Caballero) (collectively Defendants). (Compl. at 3, 5). He claims that Defendants used excessive force against him on October 28, 2011, while he was detained at the Kaufman County jail. (Compl. at 2-3, Second Magistrate Judge's Questionnaire "2nd MJQ" Ans. 2, 3, 4e). He seeks monetary damages and disciplinary action against Defendants. (1st MJQ Ans. 9). Defendants move for summary judgment, asserting the defense of qualified immunity. (docs. 34, 35). Plaintiff did not respond to the motion for summary judgment.
It is undisputed that Plaintiff was a pretrial detainee at the Kaufman County jail on October 28, 2011. (2nd MJQ Ans. 1; Motion for Summary Judgment Appendix ("MSJ Appx."), Ex. 1 (doc. 36)). Plaintiff avers that on that date, he was walking down a hallway of the jail in handcuffs when Caballero grabbed him by the throat, slammed him against the wall, and continued to choke him until he almost passed out. He claims that Wisdom and Julian witnessed this assault but did not report it, and that they instead taunted him and dragged him down the hallway while he was handcuffed. (Compl. at 2-3, 2nd MJQ Ans. 2, 3, 4). Plaintiff claims that these assaults were unprovoked, caused extreme pain in his throat, neck, and back, and made it almost impossible for him to swallow food for 5-6 days. (2nd MJQ Ans. 1-4, 7, 8).
Defendants submit a sworn affidavit from Caballero. It avers that at approximately 10:25 a.m. on October 28, 2011, he escorted Plaintiff outside for recreation time, during which he and Julian conducted a routine search of Plaintiff's cell and removed a blanket. When Plaintiff returned and realized his cell had been searched, he became upset and began acting aggressively towards Caballero and Julian. After warning Plaintiff that aggressive conduct would not be tolerated, and agreeing to retrieve another blanket for him if he provided a pass for it, Caballero believed that he saw an unknown object in Plaintiff's hand. Caballero and Julian then entered Plaintiff's cell and searched him but did not find anything. They handcuffed him and placed him in a neighboring cell while they again searched his cell. When Plaintiff was returned to his cell, he acted aggressively towards the officers again, and Caballero again warned Plaintiff about his behavior. (MSJ Appx., Ex. 1 (doc. 36)).
Approximately one hour later, Julian and another inmate attempted to give Plaintiff a lunch tray while Caballero was supervising, and Caballero saw Plaintiff attempt to throw the tray towards Julian. After lunch ended, Julian informed Caballero that Plaintiff was to be moved to another section of the jail because of his behavior. Wisdom, Julian, and Caballero escorted Plaintiff to his next cell while he carried his belongings in a crate. When Plaintiff refused to carry the crate any further, the officers handcuffed him, and Plaintiff began kicking the crate down the hallway. At one point, when Julian leaned down to pick up the crate, Caballero believed that Plaintiff was making a move to kick Julian instead of the crate. Caballero then grabbed Plaintiff with one hand at his throat and one behind his back to stabilize him. He released his grip after a few seconds but continued to keep his hand there while the officers again explained to Plaintiff that he had been warned about aggressive movements towards them. After it appeared that Plaintiff would not attempt anything further, they escorted him to his new cell without incident. (MSJ Appx., Ex. 1 (doc. 36)).
Defendants have submitted three DVD. video recordings, without audio, from that day. The DVDs do not show what happened in Plaintiff's cell. The first DVD shows Plaintiff being escorted down the hallway, two officers then entering his cell and removing some items, Plaintiff returning a few minutes later, officers again entering his cell while Plaintiff was in it, Plaintiff being moved to a neighboring cell while officers remained in his cell, and Plaintiff returning to his cell. The second DVD shows events that occurred approximately one hour later, including a lunch tray being handed to Plaintiff through his cell door and then being quickly removed, Plaintiff later being escorted down the hallway by the three officers while he carried a crate, and the group then pausing for a few moments at the end of the hallway, just out of view of the camera. The third DVD shows a handcuffed Plaintiff walking between the officers shortly after the group paused at the end of the previous hallway, now kicking the crate. One officer bends down towards the floor near the crate, Plaintiff moves in one direction, and another officer quickly grabs and pushes Plaintiff against the wall with one hand on his neck. The three officers then surround Plaintiff, appearing to speak to him. Approximately 30 seconds after Plaintiff was pushed against the wall, one of the officers picks up the crate, and the group proceeds down the hallway. The video does not show Plaintiff being dragged down the hallway or being choked by an officer. ( See MSJ, Ex. B-2(a), B-2(b), B-2(c)).
II. SUMMARY JUDGMENT STANDARD FOR QUALIFIED IMMUNITY CASES
Summary judgment is appropriate when the pleadings and evidence on file show that no genuine issue exists as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.
Typically, a movant makes a showing that there is no genuine issue of material fact by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In the context of § 1983 litigation, however, governmental employees asserting the defense of qualified immunity in a motion for summary judgment need only assert the defense in good faith. See Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008); Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). They have no burden to put forth evidence. Beck v. Tex. State Bd. of Dental Examiners, 204 F.3d 629, 633-34 (5th Cir. 2000).
The burden then shifts to the non-movant to show that the defense does not apply. See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009); McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). The non-movant must identify specific evidence in the record and show how it presents a genuine issue of material fact for trial. Celotex, 477 U.S. at 324; see also RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010). Although courts view the evidence in a light most favorable to the non-movant, Anderson, 477 U.S. at 255, "a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence'", Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)). The non-movant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.
Here, Defendants have carried their summary judgment burden by asserting their qualified immunity defense. See Gates, 537 F.3d at 419. The burden now shifts to Plaintiff to produce evidence showing that the defendants violated his constitutional rights and that the violation was objectively unreasonable under clearly established law at the time of ...