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Perez v. Livingston

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

March 8, 2018

ROBERTO PEREZ, Plaintiff,
v.
BRAD LIVINGSTON, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          ALFRED H. BENNETT, UNITED STATES EISTRICT JUDGE.

         Plaintiff, a state inmate proceeding pro se, filed this section 1983 lawsuit against nine prison officers for the alleged violation of his constitutional rights. Five of the defendant officers - Christopher LaCox, Arij Ramadan, Amber Taylor, James McClellan, and Jim Pitcock - filed a motion for partial summary judgment (Docket Entry No. 26), to which plaintiff filed a response in opposition (Docket Entry No. 42).

         Having carefully considered the motion, the response, the probative summary judgment evidence, the record, and the applicable law, the Court GRANTS the motion for partial summary judgment, as follows.

         I. Background and Claims

         For purposes of the pending motion, plaintiff alleges that warden Christopher LaCox ("LaCox") and correctional officers Arij Ramadan ("Ramadan"), Amber Taylor ("Taylor"), James McClellan ("McClellan"), and Jim Pitcock ("Pitcock"), violated his civil rights at the Estelle Unit on June 30, 2015. He claims that on that date, during a temporary two-day assignment to the Estelle Unit from the Coffield Unit, he was subjected to an unreasonable use of force by defendants Ramadan, Taylor, McClellan, and Pitcock. He asserts that the water in his shower had been too hot, and that Ramadan and Taylor refused to lower the temperature. The officers ordered plaintiff to exit the shower, but he refused and demanded that a ranking officer be called to the scene. The parties dispute how it occurred, but Ramadan sustained a scratch along her arm. Defendants Pitcock and McClellan arrived to restrain plaintiff and return him to his cell. Plaintiff claims that Pitcock, McClellan, Taylor, and Ramadan physically assaulted him without provocation during the return to his cell, causing him serious injury. The defendants allege that their conduct was a reasonable use of force necessitated by plaintiffs attempts to break away from the group. A video camera team was called to tape the use of force, but it was only able to record the end of the incident and plaintiffs ensuing cell-side medical examination. Plaintiff was transferred back to the Coffield Unit the next day.

         In this lawsuit, plaintiff complains of use of excessive force, criminal conspiracy, violations of his First Amendment rights, denial of medical care following the incident and, as to LaCox, failure to supervise and investigate. Defendants seek summary judgment as to all of plaintiff s claims except his claim for use of excessive force.

         II. Summary Judgment Standards

         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); Transamerica Ins. Co. v. Avenall, 66 F.3d 715, 718-719 (5th Cir. 1995).

         Once 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, 77 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, 477 U.S. at 248-250; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         "At 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. Id.

         Substantive law determines what is material. Anderson, 477 U.S. at 249. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id., at 248. If the nonmovant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). This burden cannot be met with "some metaphysical doubt as to the material facts, " Matsushita, 475 U.S. at 586, "conclusory allegations, " Lujan v. National Wildlife Federation, 497 U.S. 871, 871-73 (1990), "unsubstantiated assertions, " Hopper v. Frank, 16 F.3d 92 (5th Cir. 1994), or by a mere "scintilla" of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). In the absence of proof, the court does not assume that the nonmoving party could or would prove the necessary facts at a later point. Little, 37 F.3d at 1075.

         Although a pro se plaintiffs pleadings are held to a less stringent pleading standard than those drafted by attorneys and are entitled to a liberal construction, Haines v. Kerner, 404 U.S. 519, 521 (1972), they must still comply with the rules of civil procedure and make arguments capable of withstanding summary judgment. Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991).

         III. Analysis

         A. Official ...


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