United States District Court, E.D. Texas, Beaumont Division
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Heartfield United States District Judge.
Charlton Reed Tipton, an inmate confined at the Mark Stiles
Unit with the Texas Department of Criminal Justice,
Correctional Institutions Division, proceeding pro
se and in forma pauperis, filed a civil rights
action pursuant to 42 U.S.C. § 1983 against defendant
Assistant Warden McMullen.
Court referred this matter to the Honorable Zack Hawthorn,
United States Magistrate Judge, at Beaumont, Texas, for
consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge recommends defendant
McMullen's motion for summary judgment based on qualified
immunity be granted.
Court has received and considered the Report and
Recommendation of United States Magistrate Judge filed
pursuant to such order, along with the record, and pleadings.
Plaintiff filed objections to the Magistrate Judge's
Report and Recommendation. This requires a de novo
review of the objections in relation to the pleadings and
applicable law. See Fed. R. Civ. P. 72(b).
careful consideration, the Court finds the objections lacking
in merit. Plaintiff argues he has produced competent summary
judgment evidence that gives rise to a genuine dispute of
material fact as to whether defendant McMullen actually
engaged in the conduct that violated his clearly established
right to be free from excessive use of force and a resulting
injury. The Court acknowledges that plaintiff provided a
signed a declaration to his amended complaint wherein he
alleges defendant McMullen hit him in the neck and he
sustained an injury as a result. However, plaintiff asks the
Court to ignore medical records provided by defendant
McMullen that demonstrate plaintiff complained of an injury
to his neck prior to the incident at issue in this suit and
attributed the injury to a fall he suffered as a result of a
seizure. Plaintiff attempts to explain this discrepancy by
arguing he only complained of his neck being sore after the
seizure but then changed his complaints to having difficulty
turning his neck after the incident at issue in the suit.
Plaintiff has no explanation for why he attributed the pain
in his neck to the seizure six days after the incident at
issue or why none of the medical records reflect that he
attributed the injury to defendant McMullen's alleged
excessive use of force.
outlined by the Magistrate Judge, plaintiff “cannot
manufacture a factual dispute by asking the Court to draw
inferences contrary to the evidence.” Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). A properly supported motion for summary
judgment should be granted unless the opposing party produces
sufficient evidence to show that a genuine factual issue
exists. Hulsey v. State of Texas, 929 F.2d 168, 170
(5th Cir. 1991) (citing Anderson v. Liberty Lobby,
Inc. 477 U.S. 242, 249 (1986)). The Fifth Circuit has
stated that once the defendant has shifted the burden to the
plaintiff by properly supporting their motion for summary
judgment with competent evidence indicating an absence of
genuine dispute of material fact, the plaintiff cannot meet
his burden by some metaphysical doubt as to the material
facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). Summary judgment is appropriate where
critical evidence is so weak or tenuous on an essential fact
that it could not support a judgment in favor of the
non-movant. Little, 37 F.3d at 1075.
offers no competent summary judgment evidence to establish he
actually suffered an injury as a direct result of the alleged
excessive use of force at issue in this case. In fact,
plaintiffs claims are contradicted by the medical records
provided by defendant McMullen. Scott v. Harris, 550
U.S. 372, 380 (2007) (“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 that version of the facts for purposes
of ruling on a motion for summary judgment”). Plaintiff
has failed to meet his burden in demonstrating that a genuine
dispute of material fact exists as to an injury attributable
to the alleged excessive use of force. Defendant McMullen is
entitled to qualified immunity.
the findings of fact and conclusions of law of the Magistrate
Judge are correct, and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in
this case in accordance with the Magistrate Judge's
In his step 1 grievance plaintiff
states “McMullen stepped in my cell slapped me and
pulled me out of my cell and pushed me against the wall.
Hollered at [me] and returned back to my cell.” Amended