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Mobley v. Davis

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

July 24, 2019

MELVIN L. MOBLEY, III, TDCJ # 01502681, Plaintiff,
JOSEPH DAVIS, et al., Defendants.



         Plaintiff 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.[1] 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).

         All pending motions are ripe for decision.[2] 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.

         I. BACKGROUND

         Plaintiff 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).[3] 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.

         On August 1, 2017, Plaintiff travelled to Hospital Galveston for a follow-up consultation with “ortho-hand” (Dkt. 57, at 1).[4] 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).[5] 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).

         The 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).[6]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).

         Defendants 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.

         Defendants 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.

         Plaintiff 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, [7] 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 incident.[8]

         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”).

         TDCJ 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.[9] All inmate witnesses, including Mobley, declined to make a statement for the investigation.[10] 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 force.[11]

         The 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).[12] 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 9:25-9:30).[13]

         Approximately 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.[14] 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).

         On 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)).

         Despite 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)).


         A. The PLRA and Pro Se Pleadings

         Because 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).

         In 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).

         B. Summary Judgment-Rule 56

         Defendants 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 ...

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