United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE.
William Gerald Fitzgerald (TDCJ # 1860537)
(“Fitzgerald”), a state inmate proceeding pro
se and in forma pauperis, filed this civil
rights complaint under 42 U.S.C. § 1983 alleging that he
was subjected to excessive force when he was confined in the
Harris County Jail. On August 15, 2017, the Court dismissed
all defendants except Myron Nelson (“Nelson”), a
jailer at the Harris County Jail when the incident at issue
occurred. Docket Entry No. 56. Nelson was personally served
by a Deputy United States Marshal on August 23, 2016 (Docket
Entry No. 30 [under seal]), but never filed an answer in this
case and his time to do so expired long ago. See
Fed. R. Civ. P. 12(a).
October 13, 2017, Fitzgerald moved for default judgment
against Nelson. (Docket Entry No. 63). On December 15, 2017,
the Court ordered Nelson to show cause in writing why default
should not be entered against him pursuant to Rule 55 of the
Federal Rules of Civil Procedure. Docket Entry No. 66. Nelson
never responded to the Order to Show Cause, and the Court
subsequently ordered the entry of default against Nelson and
set a hearing date of April 18, 2018 to determine the amount
of damages for a default judgment. Docket Entry No. 71.
April 18, 2018 hearing, Fitzgerald testified regarding the
damages he sustained in connection with the May 18, 2013 blow
to his eye. Nelson also appeared in this case for the first
time at the hearing without the representation of counsel and
testified briefly about his recollection of the events of May
18, 2013. The Court has considered the testimony of
Fitzgerald and Nelson regarding damages, Fitzgerald's
affidavit, Fitzgerald's medical records, Harris County
investigative records and photographs of the incident, and
the applicable law, and concludes as follows.
18, 2013, Fitzgerald was an inmate at the Harris County Jail
(“Jail”) and Nelson was a jailer. See
Docket Entry No. 50 (“2d Am.
Complaint”). Early that morning after getting his
breakfast, Fitzgerald asked to go to the Jail medical
department. When his request was refused, Fitzgerald became
angry and slammed the door to his 8-man cell. Nelson,
“acting in response to a noticeable slam of a jail
door, ” approached Fitzgerald and directed him to a
sally-port where he instructed Fitzgerald to face the wall.
2d Am. Complaint at 2. Nelson then struck Fitzgerald in the
right eye, causing it to bleed profusely and resulting in
significant damage to the eye tissue. Id. As he
struck Fitzgerald, Nelson allegedly stated, “that will
teach you to slam my doors!” Id. Fitzgerald
asked Nelson for his name, but Nelson covered up his name tag
and refused to answer. Id.
result of the altercation with Nelson, Fitzgerald lost his
vision in his right eye and asked to go to the medical
department. Id. Right after the incident took place,
Officer Jonathan Viningre (“Viningre”), a
Sergeant employed at the Jail who was assigned third shift
supervisor on May 18, 2013, observed that Nelson's name
tag was missing from his uniform at the time Fitzgerald was
taken to the Jail medical department.
was seen by the Jail's medical doctor, Dr. Hamani, who
immediately sent him to Ben Taub Hospital. Fitzgerald
received 12 stitches in his cornea. Id. The lens of
his eye was forced out by the blow to his face and was no
longer in Fitzgerald's eye. The iris of the eye was also
torn and protruded out of the eye, requiring surgical removal
of part of the iris and leaving Fitzgerald with permanent
dilation of his pupil, loss of vision in his right eye, sharp
blinding pain, and a sensitivity to light that now causes him
a dull pain on a daily basis. Id. Medical doctors at
Ben Taub, and then later at John Sealy Hospital, have stated
that it is unlikely that Fitzgerald will ever regain vision
in his right eye.
April 18, 2018 hearing regarding damages, Fitzgerald relayed
the version of events as set forth above, and stated that he
forgives Nelson and does not believe Nelson intended to mess
up his eye to the extent that he did. Fitzgerald added that
he does not excuse Nelson's actions and thinks it is only
fair that Nelson pay for the damage that Nelson caused to his
eye. Fitzgerald testified that doctors at the John Sealy
Hospital have told him that they are not likely to succeed in
restoring his vision. Fitzgerald stated, and the medical
records also show, that he has very limited vision in his
right eye, only seeing shadows and movement with no depth
perception. Fitzgerald testified that he had blinding,
stabbing pain when the incident occurred, particularly when
he arrived at Ben Taub Hospital and had surgery to repair his
eye. He described the pain as ten times worse than being
poked in the eye with a tree branch. He also experiences pain
on a daily basis, describing it as a dull pain with
sensitivity to light. Fitzgerald further testified that his
doctors have stated that the cloudiness in his right eye,
which is readily observable, is the result of an immune
reaction in his eye.
stated that he has not had to pay for medical expenses while
he has been incarcerated and that the doctors do not give him
a good prognosis for eye surgery in the future, although he
may pursue additional treatment or a second opinion from a
different provider following his release from prison.
also testified that before he was imprisoned most recently,
following a conviction for felony DWI, he worked as an
electronics technician for about 20 years for Compaq
computers, making about $20 an hour. Following his employment
at Compaq, he worked for another company doing electronics
for downhole oil tools. He acknowledged that after the last
time he was incarcerated he worked at McDonald's for
minimum wage. In prison, he has been working towards his
certification to change careers to be a licensed chemical
dependency counselor because he wants to help other addicts
and alcoholics with their chemical dependency problems. He
stated that he believes there is currently a high demand for
licensed counselors and that they make about $17-18 an hour.
testified that he has paid a total of $100 in medical
expenses while he has been incarcerated, but that those were
not related to his eye problem. He also testified that his
copying and postage costs for this lawsuit are $200. The
record further reflects that the filing fee assessed against
him in the collection order is $350 in monthly installments.
testified, at the hearing on April 18, 2018, that he does not
recall hitting Fitzgerald, but that someone stated that
Fitzgerald had cancer in his eye and that it was dripping.
Nelson does recall sending Fitzgerald to the clinic. Nelson
is presently unemployed, but is working towards obtaining a
commercial driver's license (CDL). Nelson, pro
se, did not present controverting evidence regarding the
extent of Fitzgerald's injuries.
claims that Nelson, in his individual capacity, violated his
Eighth and Fourteenth Amendment rights by using excessive
force against him in the jail and by singling him out as a
“class of one” by treating him differently from
others who have been accused of slamming doors. Fitzgerald did
not specify the amount of damages he seeks in his Second
Amended Complaint, but in his Affidavit supporting his Motion
for Default Judgment, he seeks $250, 000 in compensatory
damages, $1 million in punitive damages, and $5, 000 in
costs. See Docket Entry No. 64 at 3-4.
defaulting party is deemed to have admitted all well-pleaded
allegations of the complaint pertaining to liability.”
Posos v. Ramos, --- F.Supp.2d ----, 2011 WL 13180219
(W.D. Tex. Jun. 15, 2011). Rule 55 provides a two-step
process for entering default judgments. First, default is
entered when a party shows “by affidavit or
otherwise” that another party “against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend . . . .” Fed.R.Civ.P. 55(a).
Second, after default is entered, a default judgment may be
entered under Rule 55(b). If damages sought against a
defendant are not ascertainable from documentary evidence or
affidavits, the Court may hold a hearing to determine the
amount of damages. See UnitedHealthcare Ins. Co. v.
Holley, No. 17-40354, 2018 WL 775291, at *3 (5th Cir.
Feb. 7, 2018) (citing Fed R. Civ. P. 55(b)(2)).
amount of compensatory damages in section 1983 cases is
determined based on principles derived from the common law of
torts, especially where the constitutional injury results in
physical injury. See Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 306-07 (1986); Carey v.
Piphus, 435 U.S. 247, 254 (1978) (holding that the basic
purpose of a damages award under section 1983 is “to
compensate persons for injuries caused by the deprivation of
constitutional rights”). Thus, the elements of damages
allowable in comparable common law tort actions for physical
injury guide the determination of compensatory damages, which
can include, inter alia, damages for loss of
earnings, pain and suffering, past and future medical
expenses, and mental and emotional distress. See
Carey, 435 U.S. at 257-58; see also Cowart v.
Erwin, 837 F.3d 444, 455 (5th Cir. 2016). “When a
damage award includes recovery for pain and suffering, which
are ‘to a large degree, not susceptible to monetary
quantification, ' the [fact finder] ‘has especially
broad leeway.'” Cowart, 837 F.3d at 455
(quoting Seidman v. Am. Airlines, Inc., 923 F.2d
1134, 1141 (5th Cir. 1991)). On default judgment, a plaintiff
must prove a causal connection between the amount of damages
sought and the injuries suffered. Posos, 2011 WL
13180219, at *6.
punitive damages are awarded is in the discretion of the
fact-finder and is based on whether the conduct exhibited
“reckless or callous disregard for the plaintiff's
rights, as well as intentional violations of federal
law.” Smith v. Wade, 461 U.S. 30, 34-36 (1983)
(citing Adickes v. Kress & Co., 398 U.S. 144,
233 (1970)). The standard for awarding punitive damages is
distinct from that for awarding compensatory damages in
section 1983 cases because the former are the result of
“a discretionary moral judgment.” Id. at
52. Thus, punitive damages may be awarded only if the
official conduct is “motivated by evil intent” or
demonstrates “reckless or callous indifference”
to a person's constitutional rights. Id. at
34-36; see also Sockwell v. Phelps, 20 F.3d 187, 192
(5th Cir. 1994). Nonetheless, even if a party has made a
proper showing to justify an award of punitive damages, the
trier of fact's decision whether to award such damages is
discretionary. Creamer v. Porter, 754 F.2d 1311,
1319 (5th Cir.1985). The reviewing court may not reverse the
award of punitive damages absent an abuse of discretion.
Sockwell, 20 F.3d at 192.
FINDINGS OF FACT
careful review of the record, the evidence on file, the April
18, 2018 testimony of the parties, and the applicable law,
the Court finds ...