United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE
a state inmate proceeding pro se, filed this section
1983 lawsuit alleging violations of his constitutional and
federal statutory rights by prison correctional employees
John W. Jackson, Billy A. McCreary, Robert Fannin,
Christopher Lacox, Eric Oakes, Tresea Jefferson, Darryl
Sanders, Darrell Sutton, Neal Hinson, Michael Lewis, and
Michael Kirk. Plaintiff also names as a defendant the Texas
Department of Criminal Justice ("TDCJ").
filed a motion for summary judgment (Docket Entry No. 34).
Plaintiff filed a response, but failed to serve defendants a
copy. (Docket Entry No. 39.) The response is not properly
before the Court and will not be considered.
on careful consideration of the motion, the summary judgment
evidence, the record, and the applicable law, the Court
GRANTS the motion for summary judgment and DISMISSES this
lawsuit for the reasons that follow.
BACKGROUND AND CLAIMS
claims in his original complaint that he did not receive all
items of his personal property following his September 2013
transfer from the Telford Unit to the Estelle High Security
Unit. He argues that defendant Eric Oakes is liable for the
property loss because Oakes signed plaintiffs property
further claims that on February 20, 2014, he complained to
Estelle Unit correctional employees Tresea Jefferson and
Darryl Sanders that he had not been issued a mattress; he
states that he was told no mattresses were available at that
time. He complained in a subsequent grievance that, as of
February 22, 2014, he still had not been issued a mattress,
and that he had only a blanket and a sheet to sleep on for
four days. (Docket Entry No. 34-1, p. 3.)
states that on February 22, 2014, he was restrained with
handcuffs and removed from his cell for a routine cell
search. Upon being returned to his cell, he was ordered
several times to relinquish the restraints and submit to a
strip search. Plaintiff states that he refused to obey the
orders because he still had not been given a mattress.
Ultimately, a use of force team was called and a chemical
aerosol was used to subdue plaintiff and regain control of
the handcuffs. Plaintiff claims that he was
"gassed" solely as harassment and in retaliation
for his complaints regarding the mattress. He received a
disciplinary conviction for the incident, which reduced his
line class status and required his re-assignment to
less-desirable housing; plaintiff claims that this, too, was
solely for harassment and retaliatory purposes.
after the use of force incident, plaintiff told prison
officials he was feeling suicidal, and was told by a
corrections officer that help would be requested. A few hours
later, plaintiff was removed from his cell for transport to
the Estelle Unit Regional Medical Facility ("RMF"),
which was located across the street. As the officers prepared
the transport, plaintiff claims that he was threatened by
defendant Sanders; however defendant corrections officer John
W. Jackson intervened and took Sanders's place in the
transfer vehicle. Defendant Jackson and two other
correctional officers drove plaintiff across the street to
alleges that, upon their arrival at the RMF, he was escorted
to the medical department where he was met by defendant Billy
A. McCreary. Plaintiff claims McCreary struck him in the face
then pulled out his penis and placed it in plaintiffs
hand. Defendant Jackson struck plaintiff on the
head with a metal bar, causing him to pass out. When he came
to, the other officers allegedly continued beating him until
defendant McCreary told them to stop. Plaintiff was taken to
the infirmary, where he was examined and received five
stitches for a scalp laceration. Plaintiff subsequently
received a disciplinary conviction for
"headbutting" McCreary during the incident.
Defendants state that the head-butting had required the
second use of force to bring plaintiff under control, which
resulted in his scalp laceration.
remained at the RMF until he was transferred to the Skyview
Unit (a psychiatric unit) on February 27, 2014. He was
discharged from Skyview a few days later and returned to the
Estelle Unit. He remained under mental health care at the
Estelle Unit until August 13, 2014.
argues that the defendants' actions violated his Eighth
Amendment rights as well as his rights under the Americans
with Disabilities Act ("ADA"). He sues the
defendants in their individual capacities, and the TDCJ, for
compensatory and punitive damages.
argue that plaintiffs Eighth Amendment claims have no merit,
and that the individual defendants are entitled to qualified
immunity. Defendants further argue that plaintiff did not
administratively exhaust some of his claims, and that they
are barred by 42 U.S.C. § 1997(e)(a).
course of prosecuting this lawsuit, plaintiff filed two
motions for leave to amend his complaint. (Docket Entries No.
23, 27.) In the motions, plaintiff informed the Court that he
wanted to (1) withdraw his property and medical claims and
pursue only his excessive force claim; (2) remove Oakes as a
defendant; (3) remove all named defendants except defendants
McCreary and Jackson; and (4) withdraw all claims as to
sexual misconduct. The Court denied plaintiffs first motion
without prejudice for his failure to serve defendants a copy
of the motion, and denied the second motion for his failure
to sign his pleading. Plaintiff did not pursue a third motion
for leave to amend.
plaintiff twice clearly evinced an intent to withdraw the
listed claims and to dismiss his claims against all named
defendants except McCreary and Jackson, a persuasive argument
could be made that plaintiffs motions to amend constituted
voluntarily dismissals of those claims and defendants.
However, given that defendants have addressed in this summary
judgment proceeding all of plaintiff s claims as to all of
the named defendants, the Court will do likewise.
SUMMARY JUDGMENT STANDARDS
set forth the proper standards for the district court's
review of summary judgment proceedings (Docket Entry No. 34,
pp. 7-8). Summary judgment should be granted when the moving
party conclusively establishes that there is no genuine issue
of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25 (1986). There is no issue
for resolution at trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict
for that party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). The moving party may satisfy its
burden by negating the existence of an essential element of
the nonmoving party's case. Celotex Corp., 477
U.S. at 325. Alternatively, if the moving party will not bear
the burden of proof at trial on a particular issue, it may
meet its initial burden by pointing out the absence of
evidence supporting that element of the nonmoving party's
case. Id.; Stults v. Conoco, Inc., 76 F.3d 651, 656
(5th Cir. 1996); Transamericalns. Co. v. Avenall, 66
F.3d 715, 718-719 (5th Cir. 1995).
the moving party has carried its burden, the burden shifts to
the nonmoving party to show that summary judgment is not
appropriate. Exxon Corp. v. Baton Rouge Oil, 11 F.3d
850, 853 (5th Cir. 1996). The nonmoving party cannot
discharge its burden by alleging legal conclusions or
unsubstantiated assertions, nor can it rest on the
allegations of the pleadings; instead, it must present
affirmative evidence in order to demonstrate the existence of
a genuine issue of material fact and defeat a motion for
summary judgment supported by competent evidence.
Anderson, Ml U.S. at 248-250; Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
the summary judgment stage, facts must be viewed in the light
most favorable to the nonmoving party only if there is a
"genuine" dispute as to those facts."
Scott v. Harris, 550 U.S. 372, 380 (2007). When the
record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine
issue for trial. Id. However, when opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt the version of the facts
for purposes of ruling on a motion for summary judgment.