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Bourne v. Gunnels

United States District Court, S.D. Texas, Houston Division

June 7, 2017

MICHAEL BOURNE, TDCJ #1567258, Plaintiff,
v.
LT. GUNNELS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         Plaintiff Michael Bourne has filed a Prisoner's Civil Rights Complaint under 42 U.S.C. § 1983 ("Complaint") (Docket Entry No. 1), alleging that excessive force was used against him during his confinement in the Texas Department of Criminal Justice ("TDCJ"). Pending before the court is Defendants' Motion for Summary Judgment with Brief in Support ("Defendants' Motion") (Docket Entry No. 56), to which Bourne has filed a Response in Opposition ("Plaintiff's Response") (Docket Entry No. 60). After considering all of the pleadings, the exhibits, and the applicable law, the court will grant the Defendants' Motion and will dismiss this case for the reasons explained below.

         I. Background

         Bourne is presently incarcerated at the French Robertson Unit in Abilene.[1] The Complaint stems from a use of force that occurred at the Estelle High Security Unit in Huntsville on November 21, 2014.[2] At that time, the following defendants were employed by TDCJ as correctional officers or supervisory officials at the Estelle High Security Unit: (1) Lieutenant Michael Gunnels; (2) Sergeant Carlos Applewhite; (3) Officer Anthony Howard; (4) Officer Ronald Weaver; (5) Officer Robert LeBlanc; (6) Officer Ernest Price; (7) Officer Ajisefini; and (8) Officer Sascha Ford.[3]

         Bourne's allegations are summarized below, followed by a summary of the arguments raised in Defendants' Motion and the evidence presented to rebut Bourne's claims.

         A. Bourne's Allegations

         Bourne contends that on November 21, 2014, he was standing at his cell door, asking to speak with Captain Norman about some money that was improperly taken from Bourne's inmate trust fund account.[4]As he did so, Bourne concedes that he had wrapped a towel and sheet around the food-tray slot of his cell door, jamming it in violation of prison rules so that it would not close.[5] Bourne denies that he made any verbal threats or threatening moves.[6] Without any provocation on his part, Bourne claims that he was sprayed with an entire can of chemical agent and assaulted by several officers.[7]

         Bourne describes the assault as "brutal."[8] Bourne contends that Officer Howard punched him repeatedly in the face and that he also slammed his face several times into the concrete floor while gouging him in the eyes.[9] Officer Weaver punched Bourne in the face several times as well and then stuck a gloved finger into his anus through Bourne's boxer shorts, which were covered in chemical agent.[10] Officer LeBlanc also punched Bourne in the face several times before wrestling him to the ground, where LeBlanc grabbed the front of Bourne's boxer shorts and twisted his genitals.[11] Once the assault was over, Bourne contends that Sergeant Applewhite returned him to his cell, which was contaminated with chemical agent, and refused to give him cleaning supplies or let him shower.[12]

         As a result of the assault, Bourne reportedly suffered "a burning and sore anus, bruised and sore genitals, a broken nose, a busted [and] bleeding lip, a chipped tooth, the whole side of [his] head [and] face was swollen and bruised, [his] eyes were swollen almost completely shut, with [his] left eye swollen and lacerated at the eyebrow, and [he] had similar scratches on [his] chest and back."[13] In addition, for several days after the incident, Bourne suffered "nausea, headaches, vertigo, dizziness, incoherency, and loss of consciousness multiple times."[14]

         Based on these allegations, Bourne contends that Lieutenant Gunnels and Officers Howard, Weaver, LeBlanc, Price, and Ajisefini violated his rights under the Eighth Amendment by using excessive force.[15] Bourne contends further that Lieutenant Gunnels, Sergeant Applewhite, and Officer Ford violated his rights under the Eighth Amendment by failing to intervene and stop the use of excessive force by the other defendants, particularly, Howard, Weaver, and Leblanc.[16] Bourne also contends that Sergeant Applewhite acted with deliberate indifference by placing him in a cell that was contaminated with chemical agent and not allowing him to shower.[17]Bourne adds that Officer Weaver violated his constitutional rights under the First Amendment by sexually assaulting him in retaliation for a grievance that he filed against Weaver previously on April 28, 2014.[18] Bourne seeks compensatory and punitive damages against all of the defendants under 42 U.S.C. § 1983.[19]

B. Defendants' Motion and Evidence

         The defendants have filed a joint motion for summary judgment, arguing that Bourne's claims for monetary damages against them in their official capacity are barred by the Eleventh Amendment.[20]Noting further that Bourne seeks monetary damages from a use of force that resulted in a disciplinary conviction, the defendants argue that his excessive-force claims are barred by the rule in Heck v. Humphrey, 114 S.Ct. 2364 (1994), because the disciplinary conviction that he received has not been invalidated or otherwise set aside.[21] Alternatively, the defendants argue that Bourne cannot establish a constitutional violation and, therefore, they are entitled to gualified immunity from his claims.[22] In support of that argument, the defendants have provided an administrative report regarding the use of force (the "Use of Force Report").[23]The defendants also provide a video of the incident and its aftermath (the "Use of Force Video"), which clearly contradicts Bourne's contention that he sustained serious injury as the result of a brutal beating that was administered without any provocation.[24]

         The defendants' evidence shows that the use of force was authorized by a supervisory official at the Estelle High Security Unit (Captain Vincent) and conducted pursuant to the TDCJ Use of Force Plan after Bourne "took control" of the food-tray slot to his cell "and refused to relinquish it."[25] The video confirms that Bourne had jammed open his food-tray slot with a sheet and towels.[26]Bourne had also obscured the windows of his cell door with a sheet so that officers could not see inside the cell, which was dark at the time because Bourne had turned out the lights.[27] Lieutenant Gunnels assembled a five-man team to use a chemical agent and force, if necessary, to extract Bourne from his cell (cell 113) and regain control of the door.[28] The five-man team consisted of Officers Howard, Price, Ajisefini, LeBlanc, and Weaver; Officer Ford operated the video camera that was used to record the incident .[29]

         Before any use of force occurred, Gunnels twice ordered Bourne to relinquish control of the food-tray slot, warning Bourne that a chemical agent would be used and that a team of officers was prepared to enter the cell if he did not comply.[30] When Bourne refused to comply, Gunnels deployed a chemical agent by spraying it through the open food-tray slot for no more than five seconds, using approximately half a canister.[31] While the officers waited nearby for the chemical agent to take effect, Bourne could be heard yelling and cursing loudly at Lieutenant Gunnels, taunting the officers to "come on in [to the cell]" and inviting them to "beat [his] ass."[32]

         Approximately five minutes after the chemical agent was deployed, Bourne continued to disobey orders and curse at the officers.[33] It took several more minutes for the officers to open the cell door because Bourne had tampered with it, preventing it from opening.[34] To open the cell door, another officer had to use a chain hoist to pry open the door, which Bourne had jammed shut.[35]When officers were finally able to pry the door open, Bourne did not retreat from his position at the cell door and attempted to block the lead officer (Howard), who had to force his way into the cell with the plastic riot shield that he was carrying to protect himself.[36] Because Bourne had turned out the lights in the cell, the ensuing altercation cannot be seen from the hallway.[37] Moments after entering the darkened cell, however, officers can be heard repeatedly ordering Bourne to "stop resisting."[38] Bourne was subdued after a brief struggle and restraints were applied to his arms and legs.[39]

         Within five minutes after the officers entered his cell, Bourne emerged under his own power and was escorted to a nearby infirmary for a use-of-force physical examination by a health care provider.[40] The video shows that Bourne, who was clad only in a pair of white boxer shorts and shoes, was bleeding from a small cut above his left eye when he exited his cell.[41] The front of Bourne's boxer shorts was covered with orange chemical spray.[42]

         At the start the physical examination, Bourne complained that a "black sergeant" hit him in the face and grabbed his genitals during the use of force.[43] The registered nurse who conducted the examination noted only a scratch above Bourne's left eye, some swelling near Bourne's right eye, and some minor abrasions on his back consistent with being taken to the floor.[44] Bourne refused to open his eyes when asked during the examination, claiming that they were swollen shut from the chemical agent and from being gouged by the lead officer during the use of force.[45] When Lieutenant Gunnels asked Bourne if he had any injuries other than the scratch on his face, Bourne complained that his testicles were burning from the chemical agent that covered the front of his boxer shorts.[46]

         As he was escorted from the infirmary back to his cell block, Bourne continued to argue with and curse at the officers for using force against him, inciting other inmates to do the same.[47] Bourne and the officers waited in the hallway for several minutes while his cell was decontaminated.[48] While they were waiting, Bourne bantered with another inmate who was yelling at the officers.[49] When the other inmate advised Bourne that Officer Weaver was one of the officers on the five-man team, Bourne accused Weaver of grabbing his penis during the use of force and made reference to a grievance that he had filed previously against Weaver, who he called a "big baby girl."[50]

         After Lieutenant Gunnels reported that the cell had been wiped down and decontaminated, Bourne was returned to his cell.[51] The video shows that there was no chemical agent on the door or the food-tray slot, which was now closed, and there was no sign of chemical agent on the floor or the walls that could be seen from the doorway.[52] After Bourne's restraints were removed, Lieutenant Gunnels instructed him to decontaminate by washing his face and any other exposed area with copious amounts of cold water using the sink in his cell.[53] Before the video terminated, Gunnels also gave Bourne oral and written instructions about his opportunity to provide a statement about the use of force.[54]

         Consistent with the TDCJ Use of Force Plan, officials conducted an administrative review of the incident.[55] The officers who participated in the use of force provided written statements, reporting that Bourne fought with the extraction team and resisted their efforts to subdue him.[56] After considering all of the statements, medical records of Bourne's physical, and the video of the incident, officials concluded that the use of force was "justified" and that the officers' actions were "appropriate."[57]

         After the use of force Bourne was charged in Case #20150090457 with violating Code 18.2 and Code 23.0 of the TDCJ Disciplinary Rules by: (1) tampering with his food-tray slot, and (2) creating a disturbance or significant disruption of operations such that force had to be used.[58] Bourne did not deny tampering with his food-tray slot, but explained that he only did so because he wanted to talk to Captain Norman, reasoning that the force used was unnecessary.[59] The disciplinary hearing officer found Bourne guilty as charged of both offenses and, noting that Bourne was already assigned to administrative segregation, imposed punishment in the form of restrictions on his commissary privileges.[60] Bourne also forfeited 30 days of previously earned good-time credit.[61] Bourne did not appeal from the conviction.[62]

         II. Standard of Review

         Defendants' motion is governed by Rule 56 of the Federal Rules of Civil Procedure. Under this rule a reviewing court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett. 106 S.Ct. 2548, 2552 (1986). A factual dispute is "material" only if its resolution in favor of one party "might affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby. Inc., 106 S.Ct. 2505, 2510 (1986). A dispute about a material fact is "genuine" only if the evidence "is such that a reasonable jury could return a verdict for the nonmoving party." Id.

         If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the non-movant to "come forward with specific facts showing the existence of a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986) (emphasis and internal quotation marks omitted) . In determining whether this burden has been met, the reviewing court must "construe all facts and inferences in the light most favorable to the nonmoving party." Dillon v. Rogers. 596 F.3d 260, 266 (5th Cir. 2010) (quoting Murray v. Earle. 405 F.3d 278, 284 (5th Cir. 2005)) . However, a non-movant cannot avoid summary judgment simply by presenting "conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation." Jones v. Lowndes Cty., Miss., 678 F.3d 344, 348 (5th Cir. 2012) (quoting TIG Ins. Co. v. Sedgwick James of Washington. 276 F.3d 754, 759 (5th Cir. 2002)); see also Little v. Liguid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (a non-movant cannot demonstrate a genuine issue of material fact with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence).

         The plaintiff proceeds pro se in this case. Courts construe pleadings filed by pro se litigants under a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 92 S.Ct. 594, 596 (1972) (per curiam); see also Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) ("A document filed pro se is 'to be liberally construed[.]'") (quoting Estelle v. Gamble. 97 S.Ct. 285, 292 (1976)). Nevertheless, "pro se parties must still brief the issues and reasonably comply with [federal procedural rules]." Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995)(citations omitted). The Fifth Circuit has held that "[t]he notice afforded by the Rules of Civil Procedure and the local rules" is "sufficient" to advise a pro se party of his burden in opposing a summary judgment motion. Martin v. Harrison Ctv. Jail. 975 F.2d 192, 193 (5th Cir. 1992) (per curiam).

         Ill. Discussion

         A. Official Immunity Under the Eleventh Amendment

         To the extent that Bourne seeks monetary damages from the individual defendants in their official capacity as TDCJ employees, his claims must be dismissed because they are precluded by the Eleventh Amendment to the United States Constitution.[63] Unless expressly waived, the Eleventh Amendment bars an action in federal court by a citizen of a state against his or her own state, including a state agency. See Martinez v. Texas Dep't of Criminal Justice. 300 F.3d 567, 574 (5th Cir. 2002).

         As a state agency, TDCJ is immune from a suit for money damages under the Eleventh Amendment. See Talib v. Gillev, 138 F.3d 211, 213 (5th Cir. 1998). The Eleventh Amendment also bars a recovery of money damages under 42 U.S.C. § 1983 from state employees in their official capacity. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002); Aauilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). Because Bourne has sued all of the defendants for actions taken during the course of their employment by TDCJ, Bourne's claims for monetary damages against the defendants in their official capacity are barred by the Eleventh Amendment. Accordingly, the defendants' motion for summary judgment on this issue will be granted.

         B. The Rule of Heck v. Humphrey

         Bourne seeks monetary damages for a use of force that resulted in a disciplinary conviction and a loss of good-time credits. It is well established that a civil rights plaintiff may not recover damages based on allegations of "unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, " without first proving that the conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determinations, or called into guestion by a federal court's issuance of a writ of habeas corpus [under] 28 U.S.C. § 2254." Heck v. Humphrey, 114 S.Ct. 2364, 2372 (1994). A claim for damages that bears a relationship to a conviction or sentence that has not been so invalidated is not cognizable under 42 U.S.C. § 1983. Id. In this context, a "conviction" includes a prison disciplinary conviction that results in the loss of good-time credit. See Edwards v. Balisok, 117 S.Ct. 1584, 1589 (1997).

         Bourne was convicted of tampering with his cell door and creating a disturbance in connection with the use of force that occurred on November 21, 2014.[64] Arguing that success on his claims would not implicate the validity of his conviction for tampering with his cell door, Bourne contends that Heck does not apply.[65]Bourne does not dispute, however, that his excessive-force claim, which asserts that the use of force was unprovoked and unnecessary, would, if true, implicate the validity of his disciplinary conviction for creating the disturbance that resulted in the use of force. Because that conviction has not been overturned, the court is persuaded that Bourne's excessive-force claims against the defendants are barred by Heck. See DeLeon v. City of Corpus Christi, 488 F.3d 649, 656-57 (5th Cir. 2007) (holding that an excessive-force claim was barred by Heck where plaintiff s version of events was inconsistent with, and not separable from, the facts underlying his conviction); see also Brooks v. Evans, Civil No 5:11-154, 2012 WL 3956907, *6-9 (E.D. Tex. Aug. 1, 2012), report and recommendation adopted, 2012 WL 3956589 (E.D. Tex. Sept. 10, 2012); Orange v. Ellis. Civil No. 08-224, 2009 WL 454253, *4-5 (M.D. La. Feb. 23, 2009), aff'd, 348 F.App'x 69 (5th Cir. 2009); Hadnot v. Butler, Civil No. H-08-1304, 2008 WL 4200815, *3 (S.D. Tex. Sept. 9, 2008), aff'd, 332 F.App'x 206 (5th Cir. 2009). Accordingly, those claims are not cognizable under § 1983 and must be dismissed with prejudice. See Edwards. 117 S.Ct. at 1589 (emphasizing that claims barred by Heck are not cognizable under § 1983 and "should be dismissed"); Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (explaining that claims barred by Heck are "dismissed with prejudice to their being asserted again until the Heck conditions are met"). Alternatively, Bourne's claims must be dismissed because they lack merit for reasons explained below.

         C. Qualified Immunity

         The defendants argue that Bourne fails to show that excessive force was used in violation of the Eighth Amendment. The defendants argue further that Bourne fails to establish that any constitutional violation occurred or that their actions were objectively unreasonable under the circumstances. The defendants maintain, therefore, that they are entitled to qualified immunity.

         "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan. 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982)). This is an "exacting standard, " City & Ctv. of San Francisco v. Sheehan. 135 S.Ct. 1765, 1774 (2015), that "protects 'all but the plainly incompetent or those who knowingly violate the law.'" Mullenix v. Luna. 136 S.Ct. 305, 308 (2015) (quoting Mallev v. Briqqs. 106 S.Ct. 1092, 1096 (1986)). A plaintiff seeking to overcome qualified immunity must satisfy a two-prong inquiry by showing: "(1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd. 131 S.Ct. 2074, 2080 (2011) (citation omitted). If the plaintiff satisfies both prongs of this inquiry, the court then asks whether qualified immunity is nevertheless appropriate because the official's actions were objectively reasonable in light of law that was clearly established when the disputed action occurred. See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). "Whether an official's conduct was objectively reasonable is a question of law for the court, not a matter of fact for the jury." Id. (citation omitted). "An official's actions must be judged in light of the circumstances that confronted him and the facts that were available to him, without the benefit of hindsight." Id. (citation omitted).

         As this standard reflects, "[a] good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available." King v. Handorf. 821 F.3d 650, 653-54 (5th Cir. 2016) (internal quotation marks and citations omitted). "The plaintiff must rebut the defense by establishing that the official's allegedly wrongful conduct violated clearly established law and that genuine issues of material fact exist regarding the reasonableness of the official's conduct." Id. at 654 (quoting Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008)). "To negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present 'absolute proof, ' but must offer more than 'mere allegations.'" Id. (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).

         A reviewing court may consider the steps of the qualified immunity analysis in any sequence. See Pearson, 129 S.Ct. at 818; see also Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). In this case, the court begins by examining whether the plaintiff establishes a constitutional violation of the Eighth Amendment.

         D. Claims of Excessive Force Under the Eighth Amendment

         Claims of excessive use of force in the prison context are governed by the Eighth Amendment, which prohibits cruel and unusual punishment, i.e., the "unnecessary and wanton infliction of pain." Wilson v. Seiter, 111 S.Ct. 2321, 2323 (1991) (quoting Estelle v. Gamble, 97 S.Ct. 285, 291 (1976)). Not every malevolent touch by a prison guard gives rise to a constitutional violation under the Eighth Amendment. See Hudson v. McMillian, 112 S.Ct. 995, 1000 (1992) (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.")). The Constitution excludes from recognition de minimis uses of physical force, provided that the use of force is not of a sort "'repugnant to the conscience of mankind.'" Hudson, 112 S.Ct. at 1000 (citation and quotation omitted).

         To prevail on an excessive-use-of-force claim under the Eighth Amendment, a plaintiff must establish that force was not "applied in a good-faith effort to maintain or restore discipline, [but] maliciously and sadistically to cause harm." Eason v. Holt, 73 F.3d 600, 601-02 (5th Cir. 1996) (citing Hudson, 112 S.Ct. at 998; and Jackson v. Culbertson. 984 F.2d 699 (5th Cir. 1993)). Relevant factors to consider in evaluating an excessive-use-of-force claim include: (1) the extent of the injury suffered, (2) the need for the application of force, (3) the relationship between the need and the amount of force used, (4) the threat reasonably perceived by the responsible officials, and (5) any efforts made to temper the severity of a forceful response. See Hudson, 112 S.Ct. at 999; Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999). Each of these factors is considered briefly below.

         1. Extent of Injury

         As noted above, the nurse who examined Bourne immediately after the use of force documented a small laceration above Bourne's left eye and swelling near his right eye, but no other injuries apart from minor abrasions on his chest and back.[66] Although Bourne claims that Officer Weaver "sexually assaulted" him by inserting his finger into his anus during the altercation, Bourne made no mention of such an assault to the nurse who was treating him and the record does not document any injury consistent with the alleged sexual assault.[67] The medical records and the video show that Bourne was alert and coherent after the incident and that he had no difficulty walking back to his cell.[68] Shortly after the use of force occurred, x-rays were taken of Bourne's face, confirming that his nose was not fractured.[69] Medical records reflect that Bourne was treated at the local hospital for complaints of a concussion, but CT scans of his face, head, and neck were all negative.[70] The treatment providers noted that Bourne was "[l]aughing and talking" during the examination, therefore, he was returned to the unit without any treatment.[71]

         This factor favors the defendants because the video and the medical records establish that Bourne's injuries were minor. To the extent that Bourne complains primarily of soreness and burning from his exposure to a chemical agent, he was promptly treated in the infirmary and he does not establish that he suffered anything more than de minimis injury as a result of his altercation with the defendants. See Sialar v. Hiahtower, 112 F.3d 191, 193 (5th Cir. 1997) (holding that a sore, bruised ear lasting for three days was de minimis and would not support an excessive force claim); see also Bradshaw v. Unknown Lieutenant. 48 F.App'x 106, 2002 WL 31017404, at *1 (5th Cir. 2002) (holding that "burning eyes and skin for approximately 24 hours, twitching of his eyes, blurred vision, irritation of his nose and throat, blistering of his skin, rapid heartbeat, mental anguish, shock and fear" as the result of exposure to a chemical agent was de minimis); Wyatt v. Shaw, 62 F.3d 394, 1995 WL 450120 (5th Cir. 1995) (unpublished) (upholding the dismissal of an excessive force claim where the only injury alleged was exposure to the effects of a chemical agent) (citing Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993)).

         The use of force video also contradicts Bourne's claim that the officers brutally assaulted him in the manner he describes in his pleadings. Bourne argues, however, that he suffered a concussion and lost consciousness due to the serious injuries that he sustained during the use of force.[72] In support, Bourne has submitted unsworn statements from other offenders, who claim that they witnessed a brutal beating that caused "very severe" injuries.[73] The court is required to draw inferences in favor of the nonmovant when the defense of qualified immunity has been asserted. See Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). It is well established, however, that "a plaintiff's version of the facts should not be accepted for purposes of qualified immunity when it is 'blatantly contradicted' and 'utterly discredited' by video recordings." Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (citing Curran v. Aleshire, 800 F.3d 656, 664 (5th Cir. 2015) (quoting Scott v. Harris, 127 S.Ct. 1769, 1776 (2007)). Because the video and the medical records refute the statements provided by Bourne, [74] his evidence does not raise a genuine issue of material fact regarding the extent of his injury.

         2. Need for Force

         The use of a chemical agent and force, if necessary, was authorized by Captain Vincent because Bourne refused repeated orders to relinquish control of his food-tray slot, which he had jammed open.[75] The evidence further shows that even after a chemical agent was deployed, Bourne remained openly defiant and continued to disobey repeated orders to relinquish control of his cell door.[76] Bourne does not dispute this evidence, which shows that he created a substantial disturbance that required the use of force to quell.

         Preserving institutional order and discipline is a central objective of sound prison administration. See Bell v. Wolfish, 99 S.Ct. 1861, 1878 (1979) P[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees."). Use of a chemical agent and physical force are considered appropriate where a recalcitrant inmate refuses to obey repeated orders in the correctional setting. See Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984) ("If it is an order that requires action by the institution, and the inmate cannot be persuaded to obey the order, some means must be used to compel compliance, such as a chemical agent or physical force."). Bourne, who makes no real effort to dispute the contents of the video, fails to show that the use of force was not necessary to gain his compliance. Accordingly, this factor also favors the defendants.

         3. Need for Force and the Amount of Force Used

         Bourne contends that the amount of physical force used by the officers was unnecessary because he was guilty, at most, of violating prison rules by tampering with his cell door. This assertion is refuted by the video, which confirms that Bourne disobeyed repeated orders to relinquish control of the cell door and that he created a significant disturbance by continuing to disregard those orders after the chemical agent was deployed.[77]Contrary to Bourne's claim that the use of force was unprovoked, the video shows that Bourne was highly agitated, cursing loudly, and taunting the officers to enter his cell as he continued to disobey orders.[78] The video also documents that the struggle to ...


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