United States District Court, S.D. Texas, Galveston Division
MELVIN L. MOBLEY, III, TDCJ # 01502681, Plaintiff,
JOSEPH DAVIS, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. HANKS JR UNITED STATES DISTRICT JUDGE.
Melvin L. Mobley III, an inmate at the Texas Department of
Criminal Justice-Correctional Institutions Division
(“TDCJ”), proceeds pro se and in
forma pauperis. Mobley alleges that TDCJ officers Joseph
Davis, Eric Grimes, Eric Hunter, and DeAndre Jackson
subjected him to an unconstitutional use of force at Hospital
Galveston on August 1, 2017. He further alleges that officers
Demetria Oliver and Regina Laday were bystanders and failed
to intervene. Defendants Davis, Grimes, and Laday have
filed a motion for summary judgment (Dkt. 66), which
Defendants Hunter and Oliver have joined. See Dkt.
73, Dkt. 81. Plaintiff has filed multiple responsive
documents and motions. See Dkt. 57 (declaration in
opposition to summary judgment); Dkt. 58 (summary judgment
response); Dkt. 60 (summary judgment response); Dkt. 68
(motion to take testimony of inmate witnesses); Dkt. 69
(motion for writ of habeas corpus ad testificandum); Dkt. 70
(motion requesting a special traverse); Dkt. 76 (motion for
summons for Hunter and Jackson); Dkt. 82 (motion for entry of
default against Jackson); Dkt. 93 (notice to the Court
regarding Oliver); Dkt. 94 (response to Oliver's summary
judgment motion); Dkt. 95 (declaration).
pending motions are ripe for decision. Having considered
the pleadings, the briefing, the legal authorities, and all
matters of record, the Court determines that summary judgment
should be granted for Defendants for the
reasons that follow.
complains in this lawsuit of Defendants' use of force
against him at Hospital Galveston on August 1, 2017.
Defendants claim the use of force ensued because Mobley
“refused to submit to housing, ” was disruptive,
and assaulted Lieutenant Davis (Dkt. 66, at 2). Defendants
have supplied the Court with the video recording of the use
of force (Dkt. 75). They also submit TDCJ's Use of Force
Report (Dkt. 67-1), which contains records from the
investigation by TDCJ personnel and the Office of the
Inspector General (“OIG”), including multiple
witness statements and investigative summaries.
August 1, 2017, Plaintiff travelled to Hospital Galveston for
a follow-up consultation with “ortho-hand” (Dkt.
57, at 1). Plaintiff states that he was incontinent
and had an “accident” during his travel to the
hospital, but that officials ignored and ridiculed his
requests to clean himself (id.; Dkt. 95, at 1). He
claims that, as Defendants Hunter and Jackson escorted him to
his medical appointment, he told both officers that,
“if [he] got the chance, [he] was going to punch
[Defendant] Davis in the mouth” because Davis denying
him food, and that “everybody! including
Def[endant] Davis knew about the threat” Plaintiff made
against Davis (Dkt. 57, at 1 (emphasis original);
see Dkt. 95, at 1). After the appointment, Plaintiff
alleges that Davis made “a face like a bad
smell” and was “ridiculing [Plaintiff] about
his medical condition fecal incontinence” (Dkt. 57, at
2 (emphasis original); see Dkt. 95, at 2). He states
that he started arguing with Davis and Grimes and that,
around the same time, Defendant Oliver arrived with a video
camera and began recording (Dkt. 57, at 2; Dkt. 95, at 2).
video recording in the Court record shows Mobley in his cell
talking with officers and using profanity as they remove his
leg irons (Dkt. 75, at 0:00-1:00).Defendants state that Mobley
refused officers' orders to turn around and kneel down
for removal of his leg irons (Dkt. 66, at 3). Plaintiff
describes himself as “getting combative” when
Hunter ordered him to turn around (Dkt. 57, at 2; Dkt. 95, at
2). Although only Mobley's upper body is in view on the
video, he appears to use his foot or leg to prevent officers
from rolling the cell door closed (Dkt. 75, at 1:04). He then
steps partially outside the cell (id. at 1:06).
Defendants state that Mobley lunged at Davis and prevented
him from closing the cell door (Dkt. 66, at 3).
again attempted to close the cell door. As the door started
to roll closed, Mobley punched Davis with his closed left
fist (Dkt. 75, at 1:08). Defendants state that the blow
landed on Davis' face (Dkt. 66, at 3). See Dkt.
75, at VTS013 (still photos show Davis with injury to mouth);
Dkt. 95, at 2 (Plaintiff states that he “punched Davis
in the mouth”). Several officers then entered the cell
and pushed Mobley to the back wall, and the video shows one
officer with a raised club (Dkt. 75, at 1:10-1:11).
See Dkt. 95, at 2 (Plaintiff states that Hunter,
Grimes, Jackson, and Davis entered his cell after he punched
Davis and that Laday said, “get him!”). The video
is chaotic for several seconds and Mobley is not in view.
state that, after the officers entered the cell, Mobley
refused to submit to hand restraints and that they used
several blows to gain control of his arms. The video captures
officers administering some blows, and the audio is
consistent with punches or the use of a baton, but Mobley is
not in view at the time force was used (Dkt. 75, at
1:10-1:21). As the video camera stabilizes, four officers are
in the cell, in addition to two female officers in the cell
near the door, and Mobley apparently is on the floor near the
back wall (id. at 1:18). Officers tell Mobley to
give them his hands and to stop resisting (id. at
1:20-1:35). The incident lasted less than thirty seconds from
the time Mobley punched Davis.
alleges that Defendants intentionally obstructed the video
recording (Dkt. 57, at 4-5; Dkt. 58-1, at 24 (Bates 702)). He
also alleges that he was unconscious when Defendants were
striking him and therefore could not have been resisting.
Although Plaintiff asserts that the video “clearly
shows” that he was unconscious,  his body is not
visible on the video during the time that blows were
administered. Plaintiff alleges that when he regained
consciousness, he heard officers telling him to stop
resisting (Dkt. 95, at 2-3). He also alleges that Defendants
made inappropriate statements during the
video then shows officers bent over and apparently
restraining Plaintiff's wrists (Dkt. 75, at 1:40).
Defendants state that Mobley continued to resist. Dkt. 66, at
3. The officers then stand up, and Laday begins the video
narration (Dkt. 75, at 2:45). Mobley's upper body is not
clearly visible in the video until approximately a minute
later, when he is cuffed, lying on the floor, with blood next
to him on the floor and on the wall (id. at 3:40).
Mobley then sits up on the cell floor, with wounds visible on
the top of his head and at his right temple. See
Dkt. 95, at 3 (referring to “chunk of flesh hanging at
the side of my head”).
investigated the incident the same day and took witness
statements, which are contained in the Use of Force Report.
The supervisor's summary narrative, dated August 1, 2017,
states that Defendant Hunter “pinned” Mobley
against the wall but Mobley continued to resist hand
restraints (Dkt. 67-1, at 22 (Bates 700)). It further states
that, when Defendant Davis attempted to restrain
Plaintiff's arms, Plaintiff tried to pull Davis down on
the ground with him (id.). Officers then used
punches and the riot baton to subdue Mobley:
As Lt. Davis was attempting to grab his arms to restrain him,
while on the ground Offender Mobley grabbed Lt. Davis left
arm and jacket and would not let go and was attempting to
pull Lt. Davis down towards him still attempting to assault
Lt. Davis with his right fist. While Offender Mobley was
kicking and trying to swing at Lt. Davis, Lt. Davis struck
the offender several times in the facial area with a closed
right fist to get him to release him to no avail. Officer
Grimes struck the offender with the riot baton on his right
clavicle several times also in an attempt to stop the assault
from Offender Mobley. The offender was subdued by the
correctional staff of Officer Hunter, Officer Grimes, Officer
Razack Yessoufou CO-II and Lt. Davis. The hand restraints
were applied by Lt. Davis onto the offender's wrists and
Officer Yessoufou double locked them. Lt. Davis instructed
Sgt. Ramirez to narrate the Use of Force on camera.
(id.). This summary narrative is based on, and
consistent with, statements from the officers who were
involved. All inmate witnesses, including Mobley,
declined to make a statement for the
investigation. Plaintiff argues that the
“Offender Group Refusal” forms contained in the
report are invalid because they were signed by Davis and
Oliver, both of whom were present for the use of
video recording continues for more than twenty minutes after
Mobley was cuffed in his cell, although Defendants did not
use additional force. In the hallway as officers transported
him to a different cell, Mobley whipped his head, apparently
to fling blood from his head wound onto the officers (Dkt 75,
at 6:09). The officers then seated Mobley in a
wheelchair for transport. See Dkt. 67-1, at 22
(Bates 700) (Use of Force Report narrative states that
Defendants Jackson and Davis pushed Mobley backwards and
pulled on his shirt to seat him in the wheelchair). In the
new cell, Mobley was able to remove his hand restraints,
which he states were loose (Dkt. 95, at 3), and tapped the
cell window with them, speaking aggressively (Dkt. 75, at
ten minutes later, after Mobley submitted to reapplication of
the hand restraints, medical personnel entered the cell. The
Use of Force Report states that Mobley had a 3/4-inch scrape
on his right shin and a one-inch superficial cut to the right
side of his head (Dkt. 67-1, at 23 (Bates 701); id.,
at 64-64 (Bates 741-42)). Later that same day, he would
receive three stitches to his head. The remainder of the
video footage shows medical personnel cleaning and treating
Mobley's injuries while Mobley continued to talk about
the incident, claiming that it could have been avoided,
talking about reviewing the videotape, requesting the names
of everyone involved, and stating he intended to file a
future lawsuit (Dkt. 75, at VTS012).
August 14, 2017, after reviewing the investigative records
from the incident, Major Angela Chevalier concluded that TDCJ
officials did not comply with TDCJ policies and procedures
during the incident (Dkt. 67-1, at 3-6 (Bates 681-84)).
Chevalier issued a Letter of Instruction to Lieutenant Davis
explaining several procedural violations, including his
failure to leave the area once he was relieved to prevent
further aggression from Mobley (id. at 11 (Bates
689)). She also referenced Davis' failure to provide
officers with proper instructions about having Mobley face
the back wall and kneel for removal of leg restraints
(id.). Chevalier corrected Sergeant Laday for her
failure to ensure that participants were relieved and that
officers conducted a proper strip search, as well as for her
failure to properly narrate the second video, to take proper
photos of Mobley, and to ask Mobley whether he had received
injuries (id. at 4 (Bates 682)). She corrected
Officer Oliver for failing to keep Mobley in full head to toe
view while operating the camera (id.). She found
Officer Grimes' actions to be appropriate (id.
at 14 (Bates 692)). Defendants' procedural violations
were addressed at their unit (id. at 3 (Bates 681)),
and both Davis and Laday received re-training on TDCJ's
Use of Force policy (id. at 24 (Bates 702)). No.
employee was disciplined in connection with the incident
(id. at 3-4 (Bates 681-82)).
the noted policy violations, Chevalier's report also
concluded that the use of force against Mobley was justified
because Mobley had struck Davis in the mouth with a closed
fist (id. at 3 (Bates 681)). Upon reviewing the
report, the senior warden stated, “In all, Offender
Mobley provoked the incident and employees reacted to gain
compliance and maintain control and order”
(id. at 4 (Bates 682)). An investigator from OIG
reviewed the video from the incident, “did not observe
anything that he would consider excessive, ” and
determined the force to be “justified and
necessary” (id.; see id. at 6 (Bates
684)). The incident was not referred to OIG for formal review
(id. at 19 (Bates 697)).
STANDARDS OF REVIEW
The PLRA and Pro Se Pleadings
the plaintiff is an inmate proceeding in forma
pauperis, the Court is required by the Prison Litigation
Reform Act (“PLRA”) to scrutinize the claims and
dismiss the complaint at any time, in whole or in part, if it
determines that the complaint “is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
” or “seeks monetary relief from a defendant who
is immune from such relief.” 28 U.S.C. §§
1915A(b), 1915(e)(2)(B); see also 42 U.S.C. §
1997e(c) (providing that the court “shall on its own
motion or on the motion of a party dismiss an action”
if it is satisfied that the complaint is “frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is
immune from such relief”). A claim is frivolous if it
lacks any arguable basis in law or fact. Samford v.
Dretke, 562 F.3d 674, 678 (5th Cir. 2009). “A
complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory.” Rogers v.
Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (internal
quotation marks and citation omitted). “A complaint
lacks an arguable basis in fact if, after providing the
plaintiff the opportunity to present additional facts when
necessary, the facts alleged are clearly baseless.”
Id. (internal quotation marks and citation omitted).
reviewing the pleadings, the Court is mindful of the fact
that Plaintiff proceeds pro se. Complaints filed by
pro se litigants are entitled to a liberal
construction and, “however inartfully pleaded, must be
held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks and citation
omitted). Even under this lenient standard a pro se
plaintiff must allege more than “‘labels and
conclusions' or a ‘formulaic recitation of the
elements of a cause of action.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citation omitted). Regardless
of how well-pleaded the factual allegations may be, they must
demonstrate that the plaintiff is entitled to relief under a
valid legal theory. See Neitzke v. Williams, 490
U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997).
Summary Judgment-Rule 56
have moved for summary judgment. Rule 56 of the Federal Rules
of Civil Procedure mandates the entry of summary judgment
“if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Curtis v. Anthony,710 F.3d 587, 594 (5th
Cir. 2013). Once the movant presents a properly supported
motion for summary judgment, the burden shifts to the
nonmovant to show with significant probative evidence the
existence of a genuine issue of material fact. Hamilton
v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir.
2000). “A fact is ‘material' if its
resolution in favor of one party might affect the outcome of
the lawsuit under governing law.” Id.
“An issue is ‘genuine' if the evidence is
sufficient for a reasonable jury to return a verdict for the
nonmoving party.” Id. The nonmoving ...