United States District Court, E.D. Texas, Lufkin Division
MEMORANDUM OPINION AND ORDER
Clark, Senior District Judge
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.
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.
plaintiff states he started a hunger strike on October 17,
2015 because of an assault and barbaric
treatment. 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. 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.
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.
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. 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.
for Summary Judgment
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
Exhibit A: TDCJ Use of Force Report No. M-06768-10-15 [Bates
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.
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