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McClure v. Torres

United States District Court, E.D. Texas, Lufkin Division

December 11, 2019

ROBERT TROY MCCLURE
v.
JUAN A. TORRES

          MEMORANDUM OPINION AND ORDER

          Ron Clark, Senior District Judge

         Plaintiff, Robert Troy McClure, an inmate confined at the Michael Unit with the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983 against defendant Juan A. Torres.

         Factual Background

         This case was severed from Civil Action No. 9:15cv130 in which plaintiff raised a new complaint concerning an alleged assault by defendant Lieutenant Torres (docket entry no. 1). In his Amended Complaint filed August 17, 2016, plaintiff alleges defendant Torres used excessive force against him on October 27, 2015, in violation of the Eighth Amendment. Amended Complaint (docket entry no. 13). Plaintiff seeks compensatory and punitive damages. Id.

         Specifically, plaintiff states he started a hunger strike on October 17, 2015 because of an assault and barbaric treatment.[1] Id. The next day, plaintiff alleges he collapsed on the recreation yard and defendant Torres used excessive force when he slammed into plaintiff's back when he was lying on the ground.[2] Defendant Torres wrote a false disciplinary case against plaintiff for allegedly starting a riot. Id. Plaintiff claims he was then placed on bed rest by a doctor.

         On October 27, 2015, plaintiff alleges he was being escorted by officers Thorp and Holderrieth. Plaintiff contends he showed them both his bed rest pass but officers Thorp and Holderrieth started pulling and pushing plaintiff to walk faster then he could. Plaintiff states officers Thorp and Holderrieth took plaintiff to the Captain's office and defendant Torres was there. According to plaintiff, he was standing for over fifteen minutes and asked officers Thorp and Holderrieth if he could sit down as he was feeling dizzy and sick. Plaintiff asserts officers Thorp and Holderrieth told him they did not care and forced plaintiff to continue to stand. Plaintiff states he was standing in front of the disciplinary captain who told officers Thorp and Holderrieth to take him back as plaintiff could not stand up straight.

         As he turned around to leave, plaintiff blacked out falling to the floor. Plaintiff alleges officers Thorp and Holderrieth both jumped on plaintiff, falling on him with their knees against his neck and lower back.[3] Plaintiff contends he was not resisting but just lying there. According to plaintiff, officer Holderrieth started twisting plaintiff's ankle and hyper extended his knee. Plaintiff states officer Thorp choked him using his knees and took jabs at plaintiff's ribs. Plaintiff contends he was suffering in extreme pain when defendant Torres came out of his office and ran up to him, kicking plaintiff in the face repeatedly. Plaintiff states he suffered injuries to his face and alleges this was not the first time defendant Torres assaulted him. Plaintiff alleges he has filed several complaints against defendant Torres with state officials and grievances.

         Motion for Summary Judgment

         Defendant Torres filed a Motion for Summary Judgment on May 2, 2019 (docket entry No. 76). Defendant Torres argues he is entitled to Eleventh Amendment Immunity as to any claim for money damages against him in his official capacity. In addition, Defendant Torres asserts he is entitled to qualified immunity. Specifically, defendant Torres argues that plaintiff's injuries are de minimis and that the use of force was necessary and proportionate to the response of a reasonably perceived threat. Moreover, defendant Torres argues the competent summary judgment evidence demonstrates he never actually touched plaintiff during the use of force. Defendant Torres relies on the following summary judgment evidence:

Exhibit A: TDCJ Use of Force Report No. M-06768-10-15 [Bates Nos. 1-56];
Exhibit B: TDCJ Correctional Managed Health Care Records regarding Offender McClure, Robert Troy, TDCJ No. 1420457 [Bates Nos. 57-107];
Exhibit C: Copy of Video Accompanying Use of Force Report No. -06768-10-15

         Plaintiff's Response

         Plaintiff filed several responses to the Motion for Summary Judgment (docket entry nos. 80, 83-84, 86 & 91). In support, plaintiff attaches Admissions (docket entry no. 84, pg. 1-3) and a Deposition (docket entry no. 86). Plaintiff states he has ...


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