United States District Court, E.D. Texas, Tyler Division
ROGER A. YARBOROUGH, #680961
OFFICER A. LOFTIS
MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Clark, United States District Judge
Roger A. Yarborough (“Yarborough”), proceeding
pro se and in forma pauperis, filed this
this civil rights lawsuit pursuant to § 1983. This Court
ordered that the matter be referred to the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for
the Assignment of Duties to United States Magistrate Judges.
record indicates that Yarborough refused to comply with
Officer Loftis' order to get up from the chow table while
Yarbrough and other inmates ate breakfast. After he then
refused to show her his identification card, Yarbrough spit
on Officer Loftis' face-striking her in the chest.
Officer Loftis immediately struck Yarborough with a closed
fist on his face and, as he continued to move toward her, she
struck him two more times in the face with her closed fist.
After he was restrained by additional responding officers,
Yarborough was taken to the medical department where he
complained that his face hurt.
Sulser examined him and noted that there were no injuries
present, but rather facial redness. The written injury report
notes that Yarborough did not initially complain about an
injury and that no injuries were immediately present at the
time of his medical screening. While Yarborough asserts that
Officer Loftis' actions resulted in a black eye and a
deep cut to the inside of his mouth, Nurse Sulser noted
“no reported injury or observed” but did
highlight the facial redness within the report. Yarborough
denies spitting on Officer Loftis, arguing that if he had
done so, there would be physical evidence. Instead, he
maintains that he simply blew her a kiss.
Yarborough was found guilty of spitting on Officer Loftis
during a disciplinary hearing. He then lost 360 days of
good-time and was given a forty-five day commissary
restriction, a forty-five day cell restriction, and a reduced
custody classification. Importantly, Yarborough asserts that
the incident caused him to lose an opportunity for parole.
After filing both a Step One and a Step Two grievance, of
which prison officials found no grievance, Yarborough filed
this federal complaint in September 2014 in which he seeks
monetary relief-including punitive damages stemming from his
pain and suffering.
Officer Loftis' Motion for Summary Judgment
motion for summary judgment, (Dkt. #27), Officer Loftis
contended that Yarborough's claim was barred by Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994). She also
maintained that she was entitled to qualified immunity and
that his claim was barred by the Eleventh Amendment.
Highlighting that she applied the minimum amount of force
necessary to regain compliance, Officer Loftis stressed the
importance of prison security and order.
response to her motion for summary judgment, Yarborough
argued that her entire account of the incident was incorrect.
Specifically, he denies spitting on Officer Loftis, asserts
that she never requested his identification card, and
contends that because he had a target release date of June
2014, he would have never engage in something as
“crazy” as spitting on an officer.
review of the pleadings and the summary judgment evidence,
the Magistrate Judge issued a Report recommending that
Defendant Officer Loftis motion for summary judgment be
granted and Yarborough's claims against her be dismissed
with prejudice. (Dkt. #31). Yarborough has filed timely
objections, (Dkt. #33)-in which he reiterates the same exact
arguments raised in his initial complaint and addressed by
the Magistrate Judge's Report and Recommendation.
Summary Judgment Evidence
Loftis submitted several reports stemming from the incident.
First, the TDCJ use-of-force report notes that Yarborough
“assaulted staff by spitting on officer's chest
area thus resulting in a use of force in that staff applied
minimum force necessary to prevent further assault.”
(Dkt. #27, Exhibit A at 4). While the report indicates that
officers failed to record the incident, as required by TDCJ
policy, TDCJ did not find that failure to be an aggravation
of the rules. Moreover, the injury report shows that injuries
were not present when Yarborough was screened and that he was
not treated for any injuries. (Dkt. #27, Exhibit A at 23).
The injury report denotes only that Yarborough experienced
facial redness. (Dkt. #26, Exhibit A at 22-25).
nurse examined Yarborough five days after the incident. He
complained that he was experiencing problems with eating and
drinking stemming from a cut inside his mouth; he
specifically noted on the form that his pain was a
“0.” The nurse found “no visible injuries
or respiratory distress” and assessed no “adverse
health effects from use of force.” Yarborough was then