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Bangmon v. Lance

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

October 30, 2019

JERRY LENEZ BANGMON, TDCJ # 01568309, Plaintiff,
v.
CAPT. HENRY LANCE, Defendant.

          MEMORANDUM OPINION AND ORDER

          Jeffrey Vincent Brown United States District Judge.

         Plaintiff Jerry Lenez Bangmon, an inmate in the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ”), proceeds pro se and in forma pauperis. Plaintiff filed a civil-rights complaint (Dkt. 1) under 42 U.S.C. § 1983 alleging that Defendant Lance used excessive force against him. The Office of the Attorney General has filed a Martinez report (Dkt. 24) with relevant TDCJ records. Plaintiff has filed two declarations (Dkt. 25, Dkt. 26) in response to the Martinez report.

         The Court is required to scrutinize every complaint filed by a plaintiff proceeding in forma pauperis and must dismiss the case at any time, in whole or in part, if it determines that the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Having reviewed the pleadings, the Martinez report, Plaintiffs filings, the applicable law, and all matters of record, the Court concludes that Plaintiffs claims must be DISMISSED for the reasons that follow.

         The Attorney General's motion to seal the Martinez report and its exhibits (Dkt. 23) will be granted because the filings contain Plaintiff's confidential medical information. Plaintiff's renewed motion for appointment of counsel (Dkt. 27), motion requesting admissions (Dkt. 37), and motion to withdraw a proposed order (Dkt. 38) will be denied as moot. His motion for production of photographic evidence, video evidence, and medical records (Dkt. 28) will be denied in part as moot based on the Martinez report exhibits and otherwise denied. His motions for discovery-related sanctions (Dkt. 29, Dkt. 30, Dkt. 32) will be denied. His recent requests for emergency relief against officials at the Stiles Unit (Dkt. 31) will be denied.

         I. BACKGROUND

         Plaintiff alleges that, on October 10, 2016, Defendant Lance used excessive force against him in the Darrington Unit's dining hall. He alleges that Lance, whom he identifies as the unit's “kitchen captain, ” acted “maliciously and sadistically” by “hitting the Plaintiff and knocking the his [sic] tray of food out of his hand causing the Plaintiff's hand to bang against the steel hand rail” (Dkt. 1, at 5; see Id. at 10).[1] Plaintiff states that he is handicapped and was using a walking cane at the time of the incident (id. at 5, 10). In a separate memorandum, he recounts the incident as follows:

Plaintiff was inside the Darrington Unit inmate dining room standing in line waiting to be served lunch[.] [T]he main course on the menu was pork chops. As Plaintiff [was] about to be served Plaintiff requested a pork[-]free meal . . . [A]n inmate kitchen worker . . . had put the pork chop and rice on [his] tray . . . Plaintiff had tried to give the tray with [the] pork chop on it back to [the] kitchen sergeant and Ms. Ashlaq . . . . Ms. Ashlaq started to make a scene[.] She then told me that she was not going to . . . afford me a pork[-]free meal, because I had touched the tray . . . [The] kitchen worker . . . had informed Ms. Ashlaq that he had made the mistake of putting the pork chop on my food tray and that I did in fact request a pork[-]free meal . . . Ashlaq . . . summoned for kitchen captain Mr. Henry Lance. She then said something to him that instigated and agitated him, he then told me not to move and as I stood there he unlocked the door and came from behind the food serving line and deliberately up close in my personal space towering over me due to him being approx. 6 ft 4 in 280 lbs. and me being 5 ft 8 in and 160 lbs. Mr. Lance had begun to swing on me at which time I kept trying to avoid him by turning away from him[.] [H]e constantly kept coming after me[.] He then made physical body contact with me by using unnecessary excessive force on me by knocking my tray of food out of my hand causing food to fly everywhere, he caused my hand to hit the steel hand rail causing pain to my backside of my right hand.

(Dkt. 4, at 2) (emphasis added). Bangmon also alleges that Lance taunted him with profanity as he escorted Bangmon out of the dining hall (id.).

         Bangmon claims that Lance acted “without need or provocation” (Dkt. 1, at 5). He alleges that the force was “applied out of bad faith to cause Plaintiff harm” and “was not applied in a good faith effort to maintain or restore discipline” (id. at 10). He supplies unsworn declarations from several other inmates who witnessed the incident and state that Lance knocked the food tray from Bangmon's hand and caused his hand to strike the steel rail (Dkt. 4, at 18-20, 27).

         Bangmon states that he received first aid for his right hand (Dkt. 1, at 5; Dkt. 4, at 2). He attaches medical records from October 10, 2016, reflecting his complaints of pain, stiffness, and swelling (Dkt. 1, at 26-27; see Dkt. 24-2). The nurse's notes are generally consistent with Bangmon's allegations in this lawsuit, recounting his report that “while in line to get his lunch tray the tray was pulled away causing him to hit his right hand on the guard rail causing injury to right hand” (Dkt. 1, at 26). The records reflect “slight swelling and pain with movement” in his right hand (id.). Bangmon states that he was treated with an ice pack and “about 15” ibuprofen tablets (Dkt. 4, at 3; see Dkt. 1, at 26-27, 29-30). He supplies a radiology report from October 11, 2016, finding “no acute fracture or dislocation” (id. at 25). Many of these same records are attached to the Attorney General's Martinez report. See Dkt. 24-2, at 4-10.

         Plaintiff reported the incident to the Office of the Inspector General (“OIG”) and filed an administrative grievance. See Dkt. 4, at 10 (in step-one grievance filed on October 11, 2016, Plaintiff alleges that Lance “maliciously and sadistically assau[l]ted me out of ill will, spite, or grudge by swinging on me attempting to snatch my food tray out of my right hand”). When his grievance was denied, he filed a step-two grievance. At both stages, TDCJ officials determined that the evidence was insufficient to open an OIG investigation or to substantiate Bangmon's allegations (Dkt. 4, at 10-17; see Dkt. 24-1).

         Bangmon complains that the Martinez report contains no photographs of his injured hand and that “corrupt” TDCJ officials have covered up their use of force by failing to produce video evidence (Dkt. 25, at 1).[2] He also claims that his medical records were “altered” because the “‘chief complaint' does not state what actually happened” (Dkt. 26, at 1). Specifically, he insists that, rather than stating that his tray was “pulled away” causing him to hit his right hand on the guard rail, the nurse's notes should have stated that the tray was “smacked out of [his] hand causing [his] hand to hit the guard rail” (id.) (emphasis added). He alleges that Lance “attacked [him] for requesting a pork[-]free meal” (Dkt. 25, at 1).

         II. THE PLRA AND PRO SE PLEADINGS

         Because the plaintiff is an inmate bringing suit about prison conditions, 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 ...


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