Opinion
2:99-CV-0190
March 20, 2001
Plaintiff ROBERT F. SCARBOUGH, while a prisoner incarcerated in the custody of the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants and was permitted to proceed pursuant to Title 28, United States Code, section 1915(b).
On October 18, 2000, a Report and Recommendation was issued by the United States Magistrate Judge analyzing plaintiff's remaining claims and the motions for summary judgment submitted by plaintiff and the defendants, finding as follows: (1) based solely upon plaintiff's allegations, defendant HALLIBURTON is shielded by qualified immunity against plaintiff's claims concerning the initial take-down; (2) plaintiff's allegations of conspiracy and retaliation fail to state a claim on which relief can be granted; (3) plaintiff's remaining allegations against defendants KENNELLEY, BOND, CORLEY, and BROOKS fail to state a claim on which relief can be granted; (4) plaintiff's claims of a false disciplinary charge and false testimony at the disciplinary hearing are frivolous until the Heck conditions have been met; and (5) that defendant HALLIBURTON has shown he is entitled to judgment as a matter of law concerning plaintiff's claims of a brutal post-take-down beating. The Magistrate Judge recommended that plaintiff's motion for summary judgment be denied and defendants' motion for summary judgment be granted.
On March 15, 2000, the Court issued an Order Dismissing All Claims Against Defendants Delarosa and Henderson and Dismissing Selected Claims Against Defendants Kennelley, Brooks, Corley, and Bond, by which all claims against these defendants were dismissed as frivolous except the claim that defendants Kennelley, Brooks, Corley, and Bond failed to stop the beating inflicted by defendant HALLIBURTON.
The certified mail receipt for plaintiff's copy of the Report and Recommendation was executed October 20, 2000, and returned to the Court October 27, 2000. Plaintiff signed, and presumably mailed, his Objections November 2, 2000, twelve days after delivery and one day after expiration of the deadline contained in the Report and Recommendation. Thus, by any standard, plaintiff's objections are untimely.
The Court notes plaintiff has submitted an "advisory to the Court" stating that he submitted the Objections for mailing on November 1, 2000; however, the advisory is not sworn and was executed November 12th almost two weeks after plaintiff's initial attempt to mail his objections. The November 1st date, contained in the Objections, is clearly more reliable. At any rate, plaintiff's Exhibit A, attached to his Advisory, indicates any delay in mailing his already-untimely Objections was the result of plaintiffs failure to follow reasonable prison procedures, such as utilizing an Indigent Supply Envelope and requesting postage.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation. The Court has also reviewed plaintiff's untimely Objections, most of which argue factual issues which are not material to the resolution of his claims. In relevant part, plaintiff argues the Magistrate Judge improperly analyzed plaintiff's challenge to the take-down in light of plaintiff's allegations contained in his original complaint and his Questionnaire responses, both presenting plaintiff's justification of any untoward movements he made as the result of Tourrette's Syndrome. Plaintiff argues that his own account of the events is contradicted by the video tape and that the tape shows he was completely cooperative. Plaintiff concludes defendant HALLIBURTON was not entitled to qualified immunity as to the take-down because "[t]here was no riot at the unit and defendants have presented no evidence their saftey [sic] was compromised." Plaintiff cites no authority for the proposition that force can only be utilized in a riot situation where the immediate safety of the officers is threatened, and the Court knows of none. Force may be appropriately used by prison guards to restore or preserve security, as well as in self-protection.
Such non-material factual issues includes whether plaintiff arrived at or slightly before count time; whether plaintiff's refusal to respond to one question constituted a refusal to cooperate with the PHD physical exam; and whether the challenged takedown occurred precisely as plaintiff and defendants crossed the threshhold or just after.
Plaintiff claims no force of any kind was necessary.
As to the plaintiff's allegations of Tourrette's, plaintiff has utterly failed to amend his complaint and the statement of facts therein. The Court analyzed plaintiff's claim in light of the allegations he made and has not amended. Moreover, the video-tape speaks for itself, and clearly shows plaintiff was repeatedly warned about pulling back from the escorting officers. If plaintiff did not pull away because of Tourette's, HALLIBURTON's decision to utilize force becomes more reasonable. A reasonable officer knowing of plaintiff's repeated refusal to cooperate with various orders and procedures and seeing that refusal escalate from verbal challenge to physical uncooperativeness could conclude that still further escalation was imminent. Plaintiff consistently argues for his "right" not to cooperate. Plaintiff has no such right, even when he wants to resist a "raw deal." He is required to comply with the orders of prison personnel, whether such orders are to state his cell assignment, enter a confinement cage, proceed to various buildings, or not pull against his escorting guards. Consistent and escalating refusal to cooperate, that is, refusal to comply with lawful orders, especially in the face of repeated warnings, may justify some use of force. Plaintiff has presented just such a case; and the Court has concluded HALLIBURTON's decision was one which was reasonable.
Plaintiff now argues his factual allegations in his complaint were made in reliance on Warden Delarosa's statements during a discussion with plaintiff. Plaintiff argues Delarosa intentionally misled plaintiff, leading plaintiff to misstate facts because plaintiff had no way to know what had happened without viewing the tape himself. Plaintiff was present and involved in the incident and certainly had an independent source of knowledge about what happened, providing plaintiff a reliable source of facts about the event.
See, plaintiff's objections at page 5.
The Court considered plaintiff's remaining claim against HALLIBURTON, that of a brutal post-takedown beating, in light of the injuries shown by the evidence agreed on by both plaintiff and defendant, the report by Nurse Chase. Thus, the evidence of plaintiff's injuries is uncontested; and the Court found such injuries to be inconsistent with the claimed post-takedown beating and completely consistent with the initial take-down. Again, plaintiff's failure to present any other evidence to showing a brutal beating dooms this claim.
The video-tape does not support plaintiff's claim; but the claim is defeated by plaintiff's own failure to produce evidence. Although plaintiff repeatedly refers to statements by defendant HALLIBURTON; even after being informed specifically of his failure to present this evidence to the Court, plaintiff has not remedied the defect with his objections.
Further, while plaintiff now asks that the videotape be subjected to examination by experts so that its authenticity may be verified, plaintiff has not stated how he would pay for such an examination nor has he designated his experts. The videotape in question was submitted during a hearing before the Court, and plaintiff has utterly failed to advance anything other than speculation to support his argument that it has been altered.
The Court is of the opinion that the Report and Recommendation of the United States Magistrate Judge, as supplemented herein, should be ADOPTED by the United States District Court.
This Court, therefore, does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge in this case, as supplemented herein.
IT IS THEREFORE ORDERED that:
1. Plaintiff's motion for summary judgment is DENIED.
2. Defendants' motion for summary judgment is GRANTED.
3. This Civil Rights Complaint is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail.
IT IS SO ORDERED.