United States District Court, E.D. Texas, Tyler Division
ORDER OF DISMISSAL
Clark, United States District Judge
Benjamin Leon Blue, an inmate confined at the Polunsky Unit
of the Texas prison system, proceeding pro se and
in forma pauperis, filed the above-styled and
numbered civil rights lawsuit pursuant to 42 U.S.C. §
1983. The complaint was referred to United States Magistrate
Judge K. Nicole Mitchell, who issued a Report and
Recommendation (Dkt. #63) concluding that Defendant
Christopher Holman's motion for summary judgment (Dkt.
#52) should be granted. Judge Mitchell also recommended that
the excessive use of force claim against Defendant
Quantavious Redding should be severed and transferred to the
Southern District of Texas, Galveston Division. Mr. Blue has
filed objections (Dkt. #66).
Blue contends that he was the victim of excessive use of
force. More specifically, he alleges that Defendant Holman, a
Michael Unit Captain, along with Defendant Redding, a
Hospital Galveston Sergeant, brutally beat him into a coma on
July 10, 2015, at the Michael Unit.
of the Magistrate Judge
reviewing the pleadings, including the use of force video
tape, Magistrate Judge Mitchell concluded that the July 10,
2015 use of force occurred at Hospital Galveston in
Galveston, Texas, located within the Southern District of
Texas, and not at the Michael Unit, located within the
Eastern District of Texas. Based on the summary judgment
evidence, the Magistrate Judge recommended that Mr.
Blue's excessive use of force claim against Defendant
Holman should be dismissed. The Magistrate Judge also
concluded that the court lacked jurisdiction over Defendant
Redding and recommended that the use of force claim against
Defendant Redding be severed and transferred to the Southern
District of Texas, Galveston Division.
Objections to the Report and Recommendation
Blue argues in his objections that his claims against
Defendant Holman should not be dismissed. Without sufficient
explanation, Mr. Blue states that Defendant Holman should
have taken actions, other than disciplinary actions, to
correct an employee's unacceptable behavior (Dkt. #66, p.
1). He next states that “participation in or
observation or having prior knowledge of the excessive deadly
force/assault that took place on the Michael Unit on
7-10-2015 is a crime.”
Blue complains that the Officer Statements, the Use of Force
video, and photos of himself are being used by the Defendants
to alter the events by means of falsifying documentary
evidence in an official proceeding with the intent to impair
the integrity or availability of his complaint to cover-up a
crime. Mr. Blue also asks the court to consider a document
attached to his objections entitled “Offender
Moves/Arrivals/Departures, ” bate-stamped Blue-25. He
argues that the names or the initials listed on Blue-25 are
forged. Neither Defendant is listed on Blue-25.
Blue's first objection that Defendant Holman should have
taken some action to correct an unnamed employee's action
is overruled. In his amended complaint, Mr. Blue clearly sued
Defendant Holman for excessive use of force and did not raise
any claim that Defendant Holman failed to properly supervise
any employee or failed to protect Mr. Blue from any other
employee engaged in an excessive use of force or any other
action against him. Issues raised for the first time in
objections to the Report of the Magistrate Judge are not
properly before the District Court. United States v.
Armstrong, 951 F.2d 626, 630 (5th Cir. 1992); Cupit
v. Whitely, 28 F.3d 532, 535 n.5 (5th Cir. 1994).
Mr. Blue's objection that the Defendants submitted
summary judgment evidence that counters his version of the
events on July 10, 2015, that objection is also overruled.
The Supreme Court provided instruction regarding the use of a
videotape in conjunction with an excessive use of force claim
in the context of summary judgment proceedings in Scott
v. Harris, 550 U.S. 372 (2007). While citing the rule in
summary judgment proceedings that the facts must be viewed in
the light most favorable to the nonmoving party, the Supreme
Court also specified that a court should consider a videotape
that discredits a plaintiff's version of events.
Id. at 380-81. The Supreme Court provided the
following analysis: “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 facts for purposes of
ruling on a motion for summary judgment . . . .
Respondent's version of events is so utterly discredited
by the record that no reasonable jury could have believed
him. The Court of Appeals should not have relied on such
visible fiction; it should have viewed the facts in the light
depicted by the videotape.” Id., see
also, Stevenson v. Vinson, No. 9:09cv39, 2009
WL 5062068 at *8 (E.D. Tex. Dec. 15, 2009) (considering a
video tape in an excessive use of force case on a motion for
on the Supreme Court's instructions in Scott v.
Harris, the Magistrate Judge correctly reviewed and
evaluated the use of force videotape applicable to this case.
Based on that review, the videotape depicts that Defendant
Holman was not a participant in the use of force that
occurred on July 10, 2015, and that the use of force did not
occur at the Michael Unit, but rather at the loading dock of
Hospital Galveston in Galveston, Texas. As no reasonable jury
could have believed that the use of force occurred at the
Michael Unit and that Defendant Holman was a participant in
the use of force, the Magistrate Judge correctly granted
summary judgment on behalf of Defendant Holman.
Blue's final objection or request is that the court
consider “Offender Moves/ Arrivals/Departures, ”
bate-stamped Blue-25. He did not submit this document in his
response to the Defendants' motion for summary judgment.
Issues raised for the first time in objections to the Report
of the Magistrate Judge are not properly before the District
Court. United States v. Armstrong, 951 F.2d at 630;
Cupit, 28 F.3d at 535 n.5. Furthermore, this
document, Blue-25, does not counter the visual evidence on
the use of force video ...