United States District Court, N.D. Texas, Lubbock Division
REPORT AND RECOMMENDATION
GORDON BRYANT, JR. UNITED STATES 1VMGISTRATE JUDGE
pro se and in forma pauperis, Charles Epley filed
this action under 42 U.S.C. § 1983 complaining of events
alleged to have occurred during his incarceration at the John
Montford Unit (Montford Unit) within the Texas Department of
Criminal Justice (TDCJ). Epley filed his original Complaint on
May 8, 2018 (ECF No. 3), and an Amended Complaint on June 6,
2018. ECF No. 15. The United States District Judge
subsequently transferred this case to the undersigned United
States Magistrate Judge for further proceedings (ECF No. 23).
August 15, 2018, the undersigned granted Epley permission to
proceed in forma pauperis. ECF No. 26. The
undersigned thereafter reviewed Epley's Amended
Complaint and authenticated records from TDCJ, and
ordered Epley to complete a questionnaire pursuant to
Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir.
1976). Epley timely completed and returned the
questionnaire. ECF No. 56.
has not consented to proceed before the undersigned
magistrate judge. In accordance with the order of transfer,
the undersigned enters this Report and recommends that this
action be dismissed under 28 U.S.C. § 1915(e)(2)(B).
Standard of Review
1915(e) requires dismissal of an IFP complaint at any
time if the court determines the complaint is frivolous
or malicious, 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. §
1915(e)(2)(B)(i)-(iii); see Newsome v. E.E.O.C, 301
F.3d 227, 231-33 (5th Cir. 2002) (affirming dismissal of pro
se, non-prisoner plaintiffs claims as frivolous and for
failure to state a claim under § 1915(e)(2)(B)(i) and
(ii)). A frivolous complaint lacks any arguable basis, either
in fact or in law, for the wrong alleged. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A complaint has no
arguable basis in fact if it rests upon clearly baseless
factual contentions, and similarly lacks an arguable basis in
law if it embraces indisputably merifless legal theories.
See Id. at 327. When analyzing a pro se plaintiffs
complaint, the court may consider reliable evidence such as
the plaintiffs allegations, responses to a questionnaire, and
authenticated records. See Wilson v. Barrientos, 926
F.2d 480, 483-84 (5th Cir. 1991); see also Berry v.
Brady, 192 F.3d 504, 507 (5th Cir. 1999) (noting
responses given to a questionnaire are incorporated into the
plaintiffs pleadings); Banuelos v. McFarland, 41
F.3d 232, 234 (5th Cir. 1995) (holding that courts may
dismiss prisoners' in forma pauperis claims as
frivolous based on "medical or other prison records if
they are adequately identified and authenticated").
evaluating the sufficiency of a complaint, courts accept
well-pleaded factual allegations as true, but do not credit
conclusory allegations or assertions that merely restate the
legal elements of a claim. Chhim v. Univ. of Tex. at
Austin, 836 F.3d 467, 469 (5th Cir. 2016). And while
courts hold pro se plaintiffs to a more lenient standard than
lawyers when analyzing complaints, such plaintiffs must
nevertheless plead factual allegations that raise the right
to relief above a speculative level. Id. (citing
Taylor v. Books A Million, Inc., 296 F.3d 376, 378
(5th Cir. 2002)).
names the following persons as Defendants, all employed at
the Montford Unit in Lubbock, Texas: (1) Sergeant Marco
Gonzalez; (2) Correctional Officer (CO) David Camargo; (3) CO
Julio Espinosa; (4) CO Rafael Guitron; (5) CO Bobby
Gutierrez; (6) CO Jonathan Smith; (7) Sergeant Herrera; (8)
Nurse Tara Flores; (9) Nurse Maria Martinez; (10) Nurse
Shaquavia Wagner; (11) Nurse Tasia Rains; (12) Warden Robert
Stevens; and (13) John and Jane Does. See Am.
Compl., at 1-2 (ECF No. 15). Epley further names as
Defendants: (1) John and Jane Does at the French
Robertson Unit in Abilene, Texas; (2) John and Jane Does with
the "Step 2 Medical Grievance Program"; (3)
Grievance Supervisor K. Ward; (4) Grievance Supervisor C.
Martinez; (5) Grievance Supervisor M. Blalock; (6) Assistant
Regional Director Steve Massie; (7) Katheryn Bell, Office of
the Administrative Monitor for Use of Force; (8) Maggie
Schillaci, Office of the Administrative Monitor for Use of
Force; (9) John and Jane Does, State Classification
Committee; (10) Legal Assistant Zeke Tisdale; (11) Assistant
General Counsel Nicholas Morrell; (12) General Counsel Sharon
Felfe Howell; and (13) Attorney General Ken Paxton.
Id. at 2.
alleges that on June 6, 2016, Montford Unit Sergeant Gonzalez
and COs Camargo, Espinosa, Guitron, Gutierrez, and Smith used
excessive force against him and violated his due process
rights. Id. at 17-21. Specifically, Epley avers that
after refusing to accept housing in a four-person cell,
asked Montford "officials to allow [him] to be examined
by a medical doctor/psychiatrist." Id. at 17.
Epley alleges officials thereafter placed him "naked,
except for underwear, inside an empty day-room . . . ."
Id. at 18. According to Epley, Defendants then shot
pepper spray through the food slot; in response, he lay on
his stomach. Thereafter, Epley claims that Defendants entered
the dayroom and "ran toward me and crushed me as I was
laying on the ground compliant, not posing a threat to
anyone, and not evading or struggling with any officer."
Id. Epley further asserts that Sergeant Gonzalez
"forcefully slammed [his] head against the
concrete/cement floor" and used his weight to
"crush" him again." Id. Epley states
that as a result of the incident, he suffered broken ribs, a
broken nose, a concussion, and injuries to his head, neck,
face, right eye, right ear, and teeth. Id. at 20;
Questionnaire, at 4-7 (ECF No. 56). He also alleges he
suffered a traumatic brain injury (TBI), knee pain, and
psychiatric complications. Am. Compl., at 20; Questionnaire,
also contends that Nurses Flores, Martinez, Wagner, and Rains
failed to protect him from the June 6 use of force.
Questionnaire, at 12. He believes that "[t]he nurses
should have prevented the illegal use of force by alerting
the medical doctor on duty and/or Warden Robert Stevens that
[he] was protected by the single-cell medical restriction, as
opposed to allowing that [he] be injured." Id.
Epley further alleges that Montford Unit officials-including
Nurses Flores, Martinez, Wagner, and Rains-denied him
adequate medical care for the injuries he allegedly sustained
during the June 6 use of force incident and violated his due
process rights. See Am. Compl., at 22;
Questionnaire, at 7-8, 12. Epley claims that following the
use offeree, and once he was placed in the four-person cell,
he asked for medical treatment from anyone who happened to
walk by. Questionnaire, at 7. Epley acknowledges, however,
that he did not formally request medical treatment, despite
being given the opportunity to do so, until June 10,
2016-four days after the use of force-because, according to
Epley, he "was overwhelmed by extreme fear" and his
injuries made it difficult "to think coherently."
Id. at 4-5. Epley asserts that Sergeant Herrera
contributed to the alleged denial of medical care by
intimidating medical staff into denying treatment prior to
his transport from the Montford Unit to the Robertson Unit.
Id. at 10-11.
Epley contends that K. Ward, C. Martinez, M. Blalock, Steve
Massie, Katheryn Bell, Maggie Schillaci, Zeke Tisdale,
Nicholas Morrell, Sharon Howell, and Attorney General Ken
Paxton violated his due process rights by
"impeding" grievance investigations and falsifying
documents. Am. Compl., at 3-16. Epley also avers that Warden
Stevens failed to properly train his subordinates and
implemented an unconstitutional informal policy of
"allowing or encouraging illegal acts."
Id. at 21; Questionnaire, at 12-15. He further makes
various state law claims, including assault, battery, and
negligence related to the incidents described above.
See Am. Compl., at 3-11, 48.
generally, Epley also alleges that all Defendants, including
those the court previously severed and transferred, engaged
in a broad conspiracy to violate his constitutional rights
and harm him. Id. at 1-49. He similarly posits that
certain Defendants retaliated against him. Id. at
3-10; Questionnaire, at 21-22. Finally, Epley alleges that
Defendants' actions violated his rights under the
Americans with Disabilities Act (ADA) and the Rehabilitation
Act of 1973 (RA). Am. Compl., at 49; Questionnaire, at 27.
Epley seeks monetary damages for his injuries. Am. Compl., at
Epley has had ample opportunity to develop the factual bases
of his claims.
court initially observes that it permitted Epley to proceed
with an Amended Complaint (the operative document in this
action), which spans almost ninety pages. Moreover, the court
provided Epley with an additional opportunity to develop his
claims through the questionnaire. See, e.g., Cobb v.
Simmons, 373 Fed.Appx. 469, 470 (5th Cir. 2010)
(explaining that pro se plaintiff-prisoner had "had
ample opportunity to set forth the basis for his claims,
including, inter alia, in his responses to the district
court's questionnaire"); Berry, 192 F.3d at
507 (noting responses given to a questionnaire are
incorporated into the plaintiffs pleadings). The majority of
Epley's questionnaire responses, however, provide scant
factual details and are couched with qualifying language such
as "I would have to see the video-recording to
recall/interpret my behavior" or, "A qualified
psychiatrist with a qualified neurologist would be able to
better explain my reaction, conduct and behavior."
See, e.g., Questionnaire, at 1-3. Stated
differently, Epley provided the court with potential
explanations as to why he or the named Defendants behaved
certain ways rather than providing the court with his version
of the facts. See, e.g., Id. at 2 ("The
psychiatrists, who have treated me, have told me to move away
from the stressors when I have feelings of unreality. I was
probably doing that."). Nevertheless, the court
liberally construes Epley's pleadings (Amended Complaint
and questionnaire responses), as it must at this stage of the
proceedings, and analyzes his claims below.
Epley's excessive force claim should be
use of force claim arises from the June 6, 2016, incident. To
establish a constitutional violation for excessive use
offeree by a jail or prison official, a plaintiff must show
that the defendant unnecessarily and wantonly inflicted pain.
See Whitley v. Albers, 475 U.S. 312, 319-21 (1986).
Whether an official's use of force is unnecessary or
wanton depends on if the "force was applied in a
good-faith effort to maintain or restore discipline or
maliciously or sadistically to cause harm." Hudson
v. McMillian, 503 U.S. 1, 6 (1992) (quoting
Whitley, 475 U.S. at 320). Factors relevant to this
determination include, but are not limited to, the following:
(1) the extent of the injury suffered; (2) the need for
application of force; (3) the relationship between that need
and the amount offeree used; (4) the threat reasonably
perceived by the responsible officers; and (5) any efforts
officers made to temper the severity of a forceful response.
See Hudson, 503 U.S. at 7; Baldwin v.
Stadler, 137 F.3d 836, 838 (5th Cir. 1998) (citing
Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992)).
Each of the foregoing factors is discussed below.
Extent of Injury
alleges that he suffered, and continues to experience, a host
of physical and psychological ailments as a result of the
June 6 incident. Epley asserts that as a result of the use
offeree, he suffered broken ribs, a broken nose, a
concussion, and injuries to his head/brain, neck, face, right
eye, right ear, and teeth. Am. Compl., at 20; Questionnaire,
at 4-7. He also contends he continues to experience knee
pain, decreased vision in his right eye, reduced hearing in
his right ear, problems with his teeth, and complications
related to an alleged brain injury as well as psychiatric
symptoms. Am. Compl., at 20; Questionnaire, at 6-7.
video footage and still photos from TDCJ show that Epley had
a bloody nose as well as several scratches and red, bruised
skin following the use of force. The video also reflects that
after the incident, Sergeant Gonzalez asked Epley several
times if he was injured, but Epley refused to answer, instead
muttering unintelligibly in French. Nurse Wagner visually
examined Epley's face and used a towel to wipe the blood
from his face and nose. The video shows that Epley did not
grimace or react in any way as Wagner wiped his face,
including his nose. Based on her visual examination and
Epley's lack of response, Nurse Wagner determined that
Epley had not suffered any injuries (other than scratches and
a bloody nose). On video, Epley was alert and coherent
(albeit distraught), and did not display any outward signs of
pain or other injury as Defendants escorted him to his
authenticated video footage negates many of the more serious
injuries alleged by Epley, e.g., a broken nose and external
injuries to his head, teeth, right eye and ear, and thereby
relieves the court of accepting said allegations as true.
See Scott v. Harris, 550 U.S. 372, 380 (2007)
(holding that the district court did not have to accept the
plaintiffs description of his driving where it was
"blatantly contradicted by" video from the police
car's dash camera); Funari v. Warden of James V.
Allred Unit, No. 7:12-CV-011-O-DA, 2014 WL 1168924, at
*2 (N.D. Tex. Mar. 20, 2014) (finding the court could rely on
video of the event when it blatantly contradicted the
"visible fiction" offered by the plaintiff);
see also Logan v. Smith, 439 Fed.Appx. 798, 800
(11th Cir. 2011) (citing Pourmoghani-Esfahani v.
Gee, 625 F.3d 1313, 1315 (11th Cir. 2010)) ("In the
context of cases involving video evidence, this Court will
accept the video's depiction over the opposing
party's account of the facts where the video obviously
contradicts that version of the facts."); Bourne v.
Gunnels, No. CV H-16-0515, 2017 WL 2483815, at *8 (S.D.
Tex. June 7, 2017) (citing Hanks v. Rogers, 853 F.3d
738, 744 (5th Cir. 2017)) (discounting prisoner's claim
that prison officers' use of force caused prisoner to
lose consciousness where video footage refuted such
allegation). The injuries the video footage reflects Epley
did suffer-a bloody nose, abrasions, and bruised, red
skin-are minor, if not de minimis, injuries. See
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)
(affirming district court's dismissal of plaintiff s
claim for excessive force because injury consisting of
"a sore, bruised ear lasting for three days" was
de minimis); Wyattv. Shaw, No. 95-40030, 1995 WL
450120, at *1 (5th Cir. June 30, 1995) (affirming dismissal
of prisoner's excessive force claim because prisoner
"suffered only temporary, de minimis injuries
as a result of his exposure to the residual effects of the
chemical agent"); Hodge v. Williams, Civil
Action No. 4:08-CV-330-Y, 2009 WL 111565, at *3 (N.D. Tex.
Jan. 16, 2009) (finding as de minimis inmate's
claimed injuries of "cuts on his hand," a cut
inside his lip, and a sore neck).
the authenticated medical records do not reflect Epley
suffered the injuries he has alleged. For example, Epley
claims his ribs were broken on June 6, but the records do not
reflect such a diagnosis. Instead, they show that after Epley
complained of rib pain, TDCJ medical staff at the James
Lynaugh Unit (Lynaugh Unit) ordered x-rays to "rule
out" a possible rib fracture, but Epley refused the
x-rays. The nurse noted that Epley was possibly suffering
from "costochondritis"-inflammation of the rib
cartilage. Epley similarly refused x-rays of his neck and
right knee, despite complaining of pain, as well as a dental
exam. Thus, medical staff was unable to conduct a thorough
analysis of the cause of his subjective pain.
"[a]n inmate's bare assertion of a serious medical
condition is insufficient without medical evidence verifying
the condition exists." Amos v. Jefferson, No.
5:17CV195, 2019 WL 950367, at *10 (E.D. Tex. Feb. 27, 2019)
(citing Aswegan v. Henry, 49 F.3d 461, 465 (8th Cir.
1995)). The court, however, accepts as true Epley's
allegations at this stage of the proceedings. As alleged,
many of Epley's injuries-including a broken nose and
ribs-are more than de minimis. See, e.g., Hudson,
503 U.S. at 10 ("[T]he blows directed at Hudson, which
caused bruises, swelling, loosened teeth, and a cracked
dental plate, are not de minimis for Eighth
Amendment purposes."); Morris v. Bria, Civil
Action No. 7:17-CV-034-O-BP, 2018 WL 2436724, at *6 (N.D.
Tex. May 30, 2018) (finding prisoner suffered more than
de minimis injury where defendants conceded prisoner
"received injuries to his left eye, head, lip, and left
hand, including a fracture of one of his fingers," and
prisoner further "averred, under oath, that the
Defendants' use of force caused him to bleed for hours,
gave him a possible concussion, made his eyes burn from the
chemical agents, and made him dizzy and nauseous to the
extent that he vomited in his cell the day of the
incident"). This factor, therefore, weighs in favor of
allowing Epley's claim to proceed beyond screening.
Need for Force, the Amount of Force Used, and the Reasonably
Amended Complaint and questionnaire responses, Epley admits
that prior to the use of force, he refused to obey
Defendants' orders on at least two occasions-first, by
refusing to accept housing, and second, by refusing to submit
to a strip search and hand restraints after entering the
dayroom. See Am. Compl., at 17 ("During the PM
hours of Monday June 06-2016, 1 was taken to a cell occupied
by three (3) African-American prisoners I had never seen
before. This triggered severe PTSD symptoms which
prevented me from entering the cell occupied by the three
prisoners." (emphasis added)); Questionnaire, at 1
(stating that he "was unable to enter the [cell]
door as a result of being paralyzed by extreme
fear" (emphasis added)), 2 (contending that he did not
submit to hand restraints because he "was afflicted with
feelings of unreality" (emphasis in
original)); see also Id. at 2-3 (explaining that
after Defendants shot pepper spray into the dayroom, he lay
in the prone position but at some point rolled onto his side,
demonstrating that Epley moved despite explicit orders from
Defendants not to move or resist upon their entry into the
dayroom). Epley initially refused to accept housing in a
multi-person cell, believing that he should be single- celled
at all times. Am. Compl., at 17 . Epley then "asked the
officials to allow [him] to be examined by a medical
doctor/psychiatrist." Id. In response, Montford
Unit officials placed him in the dayroom. Id. at 18.
any use of force occurred, Defendants obtained authorization
from the Montford Unit Assistant Warden to use chemical
agents and force, if necessary, to regain Epley's
compliance after he refused to accept housing and thereafter
submit to a strip search and hand restraints. The
authenticated video footage records that after the
five-person team assembled, Sergeant Gonzalez twice ordered
Epley to submit to hand restraints so officers could move him
to his assigned cell, and warned Epley that failure to comply
would result in the use of chemical agents and force, if
necessary. Epley refused to comply with Sergeant
Gonzalez's orders, instead standing against the back wall
of the dayroom with his hands covering his face. The video
subsequently shows that Nurse Wagner ordered Epley to come to
the door and submit to restraints, but he again refused.
Consequently, Officer Espinosa opened the food tray slot, and
Sergeant Gonzalez administered one round of chemical agent
into the dayroom; Espinosa then closed the slot. The video
shows that over a span of approximately thirty seconds,
Sergeant Gonzalez directed Epley to come to the door and
submit to restraints four additional times before Epley
finally lay in the prone position on the floor, which
Defendants interpreted as a sign of submission. Sergeant
Gonzalez advised Epley that the five-person team was going to
enter the room and that he should not get up or resist
because Defendants would use additional force.
written reports from the incident indicate that as the team
entered the dayroom, Epley moved from the prone position,
resulting in CO Gutierrez using his riot shield to restrain
Epley. Epley concedes that after laying on the ground he
moved from his belly to his side at some point. The
authenticated video similarly confirms that Epley actively
resisted Defendants' efforts to apply hand restraints by
stiffening his arms, causing Defendants to noticeably
struggle with Epley before finally bringing his hands behind
his back to apply the hand restraints.
actions justified the use of some degree of force by
Defendants. See Calhoun v. Wyatt, No. 6:11CV4, 2013
WL 1882367, *6 (E.D. Tex. May 2, 2013) (noting that
inmate's refusal to obey orders "set the stage for
the use of force"); see also Soto v. Dickey,
744 F.2d 1260, 1267 (7th Cir. 1984) ("If it is an order
that requires action by the institution, and the inmate
cannot be persuaded to obey the order, some means must be
used to compel compliance, such as a chemical agent or
physical force."). Disobeying orders poses a threat to
the order and security of the prison as an institution.
Bourne, 2017 WL 2483815, at *10; Rios v.
McBain, Civ. No. A504CV84, 2005 WL 1026192, at *7 (E.D.
Tex. Apr. 28, 2005) (noting that "open defiance of
orders plainly poses a threat to the security of the
institution, regardless of whether or not the defiance is
emanating from within a locked cell"). This is true even
where officials mistakenly direct, as Epley contends here, an
inmate to accept housing in a multi-person-as opposed to a
single-person-cell. See Soto, 744 F.2d at 1267
("Inmates cannot be permitted to decide which orders
they will obey, and when they will obey them.");
Amos v. Jefferson, Civil Action No. 5:17cvl95, 2019
WL 950367, at * 12 (E.D. Tex. Feb. 27, 2019) (citing
Soto, 744 F.2d at 1270) (explaining that a
prisoner's refusal to comply with repeated direct orders
is the type of "behavior [that] cannot be tolerated in a
facility of incarceration"); Buentello v.
Rayford, Civil Action No. 6:15cv780, 2018 WL 3625858, at
*6 (E.D. Tex. Mar. 14, 2018) (citing Kitt v. Bailey,
Civil Action No. H-14-0368, 2015 WL 3909116, at *6 (S.D. Tex.
June 24, 2015)) ("An inmate does not have the
constitutional right to pick and choose which prison rules to
obey."); Minix v. Blevins, CA No. 6:06-306,
2007 WL 1217883, at *24 (E.D. Tex. Apr. 23, 2007) (citation
omitted) (recognizing that even where prisoner believes order
to be unjustified or improper, such belief does not give him
the right to disobey at his whim); see also Neals v.
Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (explaining
that "a prison inmate does not have a protectable
liberty or property interest in his custodial classification
and an inmate's disagreement with a classification is
insufficient to establish a constitutional violation").
Defendants reasonably could have perceived Epley-an offender
referred to the Montford Unit for psychiatric observation who
was behaving erratically and failing to comply with orders-as
a threat to their safety and to institutional order and
contention that Defendants' use of force was excessive
because he was "laying on the ground compliant, not
posing a threat to anyone, and not evading or struggling with
any officer" (Am. Compl., at 18) is belied by the video
footage. At no time did Epley comply with Defendants'
orders to: (1) accept housing; (2) come to the dayroom door
to submit to a strip search and hand restraints; or (3)
remain still and not resist so as to avoid an additional use
of force after Defendants entered the dayroom. The video
footage clearly demonstrates that only after Epley repeatedly
refused to comply with orders did Sergeant Gonzalez
administer the chemical agent-one round from a pepper spray
gun-to gain compliance. Because Epley still refused to come
to the door and submit to restrains, Defendants entered the
dayroom, and after a brief, less than one minute struggle,
Defendants were able to apply restraints-which Epley had
repeatedly refused and actively resisted-and exit the
dayroom. The fact that Epley was in a secured dayroom does
not diminish his failures to accept housing and submit to a
strip search and hand restraints, nor does it lead to the
conclusion that he did not pose a security threat. See,
e.g., Soto, 744 F.2d at 1270; Rios, 2005 WL
1026192, at *7.
video footage also conclusively rejects Epley's
contention that Sergeant Gonzalez "forcefully slammed
[his] head against the concrete/cement floor," thus
negating his assertion to the contrary. See
Scott, 550 U.S. at 380. The video footage does show that
after entering the dayroom, CO Gutierrez lay on top of Epley,
pressing the riot shield into Epley with his body weight in
an attempt to shield himself and the other officers. The
video also shows that COs Camargo and Espinosa lay on top of
Epley as they brought his hands behind his back. "Not
every push or shove, even if it may later seem unnecessary in
the peace of a judge's chambers, violates a
prisoner's constitutional rights." Hudson,
503 U.S. at 9 (quoting Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973)). The court does not find, in the
context of Epley's disobedience, that Defendants used
more force than necessary. See, e.g., Bourne, 2017
WL 2483815, at *9 (concluding officer's use of a chemical
agent and subsequent entry into prisoner's cell to
extract prisoner did not amount to excessive force);
Silguero v. Williams, Civil No. 7:10-CV-050-O, 2012
WL 6567366, at *2 (N.D. Tex. Dec. 17, 2012) (concluding
officers' use of a chemical agent and subsequent force
"was the direct result of [prisoner's] own behavior,
was applied in an effort to restore discipline, and was
reasonable under the circumstances").
entered the dayroom to apply hand and leg restraints because
even after administering chemical agent, Epley did not come
to the dayroom door as directed. In sum, Epley has alleged no
facts demonstrating that Defendants used force in any manner
other than to restore order and enforce his compliance. As
such, Hudson factors two, three, and four (i.e., the
need for force, the relationship between that need and the
amount of force used, and the reasonably perceived threat by
Defendants) weigh in favor of finding that Defendants'
use of force was not excessive to the need.
Efforts to Temper the Forceful Response
video footage shows that Defendants provided Epley with
numerous opportunities to comply with their orders prior to
administering a chemical agent and applying force. Sergeant
Gonzalez ordered Epley twice, and Nurse Wagner urged him an
additional time, to submit to a strip search and hand
restraints so that they could move him into his assigned
cell; Gonzalez also advised Epley with each order that his
failure to comply could result in the use of force, including
a chemical agent. Moreover, Sergeant Gonzalez directed Epley
to come to the door and submit to restraints for placement
into his assigned cell four additional times prior
to Defendants entering the dayroom to physically apply the
restraints. Had Epley complied with any of Defendants'
seven orders (or simply accepted his housing assignment in
the first instance), the use offeree would not have been
necessary. See Brewer v. Prier, 334 Fed.Appx. 618,
619 (5th Cir. 2009) (noting that officer attempted to obtain
prisoner's "compliance through non-forceful
means" but prisoner's refusal to comply "made
the use of force necessary"); Davis v. Agosto,
89 Fed.Appx. 523, 526 (6th Cir. 2004) (explaining that had
prisoner obeyed officers' "unexceptional request
[for prisoner to submit to handcuffs], the subsequent use of
mace (to say nothing of batons) would have been
unnecessary"); Bria, 2018 WL 2436724, at *9
(finding defendants "made clear efforts to avoid and
temper the severity" of force where they waited eleven
minutes before entering prisoner's cell and spoke with
prisoner and sprayed chemical agent into his cell in an
attempt to gain his compliance); Bourne, 2017 WL
2483815, at *10 (noting that officers "went to great
lengths to avoid using force," including ordering
prisoner several times to relinquish the food tray, obtaining
authorization to use force if necessary, and warning prisoner
multiple times the officers would use a chemical agent and/or
force if necessary); Zidell v. Morris, No.
4:11-CV-845-A, 2013 WL 704325, at *6 (N.D. Tex. Feb. 26,
2013) (citing Brewer, 334 Fed.Appx. at 619) (noting
that "[n]one of the actions taken by [the officers]
prior to using force had any noticeable effect on plaintiff.
. . making necessary the use of force").
a review of the factors set forth in
Hudson-particularly Defendants' efforts to
preserve institutional order and discipline and Epley's
resistance to the same-demonstrates that Epley pleads no
facts establishing Defendants maliciously and sadistically
applied force in violation of the Eighth Amendment.
Epley's allegations, in combination with the video
footage and authenticated records, show that there was a need
for the application of force-including the use of a chemical
agent and some degree of physical compulsion-and
Defendants' administration offeree was not excessive to
the need. See Baldwin, 137 F.3d at 840 (quoting
Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996))
(explaining that "[t]he amount of force that is
constitutionally permissible . . . must be judged by the
context in which that force is deployed"). Accordingly,
Epley's claims against Sergeant Gonzalez and COs Camargo,
Espinosa, Guitron, Gutierrez, and Smith should be dismissed
as frivolous and for failure to state a claim.
Epley has not pleaded facts demonstrating a viable bystander
liability claim against any Defendant.
asserts that "the five officers"-which the court
construes as referencing the five-person use of force
team-"had personal knowledge that defendant Sergeant
Marco Gonzalez was using excessive force. Then and there the
five officers should have withdrawn, and asked for a medical
official and/or a higher ranking official to intervene."
Questionnaire, at 10. According to Epley, the officers did
not intervene, but instead "became parties to the acts
by holding [him] down so as to facilitate for defendant Marco
Gonzalez to severely injure [him]." Id.
further alleges that Nurses Flores, Martinez, Rains, and
Wagner "should have prevented the illegal use of force
by alerting the medical doctor on duty and/or Warden Robert
Stevens that I was protected by the single-cell medical
restriction, as opposed to allowing that I be injured. The
nurses were not innocent bystanders." Id. at
12. To the extent these allegations may attempt to assert a
claim for bystander liability, Epley's efforts fail.
prison official who does not personally exert excessive force
on an inmate may still incur constitutional liability for
failing to protect the inmate from another's use of
excessive force under a theory of bystander liability.
See, e.g., Hale v. Townley, 45 F.3d 914, 919 (5th
Cir. 1995). Bystander liability for a failure to protect
applies if the officer "(1) knows that a fellow officer
is violating an individual's constitutional rights; (2)
has a reasonable opportunity to prevent harm; and (3) chooses
not to act." Whitley v. Hanna, 726 F.3d 631,
646 (5th Cir. 2013); Hale, 45 F.3d at 919
("[A]n officer who is present at the scene and does not
take reasonable measures to protect a suspect from another
officer's use of excessive force may be liable under
section 1983."). The rationale motivating bystander
liability is that "a bystanding officer, by choosing not
to intervene, functionally participates in the
unconstitutional act of his fellow officer." Terry
v. Castleberry, No. H-06-2025, 2008 WL 687519, at *5
(S.D. Tex. Mar. 12, 2008) (citing Randall v. Prince
George's Cty., 302 F.3d 188, 204 n.24 (4th Cir.
Epley has not stated a viable claim that Sergeant Gonzalez-or
any other Montford Unit Defendant-used excessive force in
violation of the Eighth Amendment, he cannot demonstrate that
COs Camargo, Espinosa, Guitron, Gutierrez, and Smith, or
Nurses Flores, Martinez, Rains, and Wagner violated his
rights by failing to intervene. See Davis v. Cannon,
91 Fed.Appx. 327, 329 (5th Cir. 2004) (concluding that where
the alleged actions did not constitute excessive force,
bystanders are not liable for failing to intervene); see
also Simpson v. Flores, No. SA-09-CV-0125 OG (NN), 2011
WL 675041, at *1 (W.D. Tex. Feb. 15, 2011) (noting courts
must first determine whether an unconstitutional use offeree
took place to determine if an officer failed to protect an
inmate); Hicks v. Page, Civil Action No. H-08-2486,
2010 WL 793684, at *7 (S.D. Tex. Mar. 4, 2010) (dismissing as
frivolous a claim for bystander liability inmate made no
showing that officer used excessive force in violation of the
Eighth Amendment). Epley's claims should therefore be
Epley has not pleaded facts demonstrating deliberate
indifference by Defendants to any serious medical
avers that after the use offeree, "[t]he fear of being
brutalized more prevented [him] from asking for the medical
treatment in the presence of the defendants who had caused
[him] to be injured." Questionnaire, at 4. He further
contends that after Defendants placed him in his assigned
cell (and presumably left the area), he "asked everybody
who happened to walk near the four-person cell that evening
[for medical treatment]," but "[t]hey walked away,
some of them laughing." Id. at 7; see
Am. Compl., at 22. According to Epley, he then "became
so extremely dizzy that [he] could not walk to the window [of
his cell] to ask for help, and [he] eventually lost
consciousness on [his] bunk." Questionnaire, at 7. When
he awoke, Epley asserts that his cellmates "prevented
[him] from trying to call the officials for help."
Id. In addition, Epley alleges that Nurses Flores,
Martinez, Wagner, and Rains were deliberately indifferent to
his serious medical needs "because they compiled medical
records ... after the brutal acts occurred" but did not
provide him with "much-needed medical, dental and
psychiatric treatments for the injuries [he] had sustained .