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Bourne v. Gunnels

United States Court of Appeals, Fifth Circuit

April 16, 2019

MICHAEL BOURNE, Plaintiff-Appellant,
MICHAEL GUNNELS, Lieutenant; CARLOS A. APPLEWHITE, Sergeant; ANTHONY HOWARD, JR., Sergeant; ROLAND C. WEAVER, Correctional Officer; ROBERT LEBLANC, Correctional Officer; ERNEST PRICE; TAJUDEEN AJISEFINI; SASCHA FORD, Defendants-Appellees.

          Appeal from the United States District Court for the Southern District of Texas

          Before KING, SMITH, and WILLETT, Circuit Judges.


         Michael Bourne, proceeding pro se, sued prison officers under 42 U.S.C. § 1983 for excessive force, failure to intervene, deliberate indifference, and retaliation claims arising from use of force during his confinement. The district court granted summary judgment to defendants, determining that (1) Bourne's claims for monetary damages against the defendants in their official capacities are precluded by the Eleventh Amendment, (2) his excessive-force claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny, or, alternatively, (3) defendants are entitled to qualified immunity ("QI") from his claims because he did not establish a constitutional violation.

         Bourne appeals on his excessive-force claim, maintaining that Heck has "no bearing" and that the court "improperly evaluated the evidence in a light most favorable to [d]efendants" and "disregarded [his] evidence creating a material dispute of fact" on QI. We reverse and remand.


         On November 21, 2014, Bourne was standing at his cell door asking to speak with a Captain Norman regarding some money removed from his inmate trust fund account. Bourne had taken control of the food-tray slot to his cell "and refused to relinquish it," jamming the slot with a sheet and towels, covering the windows to his cell with a sheet, and turning off his cell's light. Consequently, a supervisory official, Captain Vincent, authorized a use of force to regain control of the door. Lieutenant Michael Gunnels assembled a five-person team to use a chemical agent and force, if necessary, to extract Bourne and regain control of the door. Gunnels' team consisted of Officers (1) Anthony Howard, Jr., (2) Ernest Price, (3) Tajudeen Ajisefini, (4) Robert LeBlanc, and (5) Roland Weaver. Officer Sascha Ford recorded the use of force.

         Immediately upon arriving at the cell, Gunnels, at least three times, ordered Bourne to surrender control of the food-tray slot, warning that he would use a chemical agent and that officers would enter the cell if Bourne did not acquiesce. Bourne failed to comply, so Gunnels employed the chemical agent, spraying it through the open food-tray slot for five seconds and using about half a canister. While the officers waited for the chemical agent to take effect for about five minutes, Bourne yelled, cursed, taunted the officers, and invited them to enter the cell and beat him.

         Bourne refused to relinquish control of the food-tray slot and cursed at the officers. They tried to open the cell door, but Bourne had jammed it shut. When the officers finally managed to open it about seven minutes after deploying the chemical agent, Bourne did not retreat from the door but attempted to block the lead officer from entering. The officers entered to restrain Bourne, repeatedly ordering him to "stop resisting." From the video, it is impossible to discern what occurred during the actual use of force inside the cell because the lights are off and Gunnels stands in the cell doorway during much of the altercation.

         Within five minutes of entering the cell, the officers subdued Bourne and restrained his arms and legs. He exited the cell under his own power, and the officers escorted him to a nearby infirmary room for a use-of-force physical examination by a healthcare provider. Bourne was wearing a pair of white shorts covered in orange chemical spray and a pair of shoes and was bleeding from a small cut above one eye.

         During the medical examination, Bourne complained that an officer had struck him in the face and grabbed his genitals. The nurse noted a scratch above Bourne's left eye, swelling near his eyes, and minor abrasions to his back consistent with being taken down to the floor. Bourne refused to open his eyes, stating that they were swollen from the chemical agent and an officer's having gouged them. When Gunnels asked Bourne about other injuries, Bourne complained that his testicles were burning from the chemical agent on his shorts.

         As he was escorted from the infirmary room to his cell, Bourne continued to yell and curse at the officers, inciting other inmates to do the same. While Bourne and the officers waited in the hallway for his cell to be decontaminated, he joked with another inmate who was yelling at the officers. Following the decontamination, officers returned Bourne to his cell. In the video, no chemical agent is visible on the door, the closed food-tray slot, the cell walls, or the floor. Finally, Gunnels instructed Bourne to decontaminate himself by washing with cold water and gave him oral and written instructions concerning his opportunity to provide a statement about the use of force.

         Defendants contend that after entering the cell, they "used the minimum amount of force necessary to gain compliance," which bore "a direct relationship to the level of resistance presented by [Bourne] as well as the threat he presented due to his size and history of non-compliance." In the use-of-force report reviewing the incident, defendants uniformly state that Bourne resisted them and fought the team. Conversely, Bourne focuses on the force he asserts the officers used after he was "handcuffed & shackled" on his cell's floor and "not a threat." He maintains that defendants used excessive force at this point by ...

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