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Epley v. Gonzalez

United States District Court, N.D. Texas, Lubbock Division

May 29, 2019

MARCO GONZALEZ, Sergeant at Montford, et al., Defendants.



         Proceeding 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).[1] 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).

         On August 15, 2018, the undersigned granted Epley permission to proceed in forma pauperis. ECF No. 26. The undersigned thereafter reviewed Epley's Amended Complaint[2] 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.[3] ECF No. 56.

         Epley 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).

         I. Standard of Review

         Section 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").

         In 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)).

         II. Discussion

         A. Epley's Claims

         Epley 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[4] (ECF No. 15). Epley further names as Defendants[5]: (1) John and Jane Does at the French Robertson Unit in Abilene, Texas[6]; (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.

         Epley 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, [7] he 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, at 6-7.

         Epley 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.

         Moreover, 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.

         More 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[8] 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 49.

         B. Epley has had ample opportunity to develop the factual bases of his claims.

         The 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.

         C. Epley's excessive force claim should be dismissed.

         Epley's 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.

         1. Extent of Injury

         Epley 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.[9] Am. Compl., at 20; Questionnaire, at 6-7.

         The 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 assigned cell.

         The 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).

         Moreover, 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.

         Generally, "[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.

         2. Need for Force, the Amount of Force Used, and the Reasonably Perceived Threat

         In his 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.

         Before 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.

         Defendants' 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.

         Epley's 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 security.

         Epley's 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.

         The 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.[10] 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").

         Defendants 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.

         3. Efforts to Temper the Forceful Response

         The 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").

         In sum, 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.

         D. Epley has not pleaded facts demonstrating a viable bystander liability claim against any Defendant.

         Epley 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.

         Epley 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.

         A 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. 2002)).

         Because 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 dismissed.

         E. Epley has not pleaded facts demonstrating deliberate indifference by Defendants to any serious medical need.

         Epley 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 . ...

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