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finding that causing plaintiff to strike his head, resulting in a headache, is de minimis
Summary of this case from Tamfu v. Two Unknown Agents of TDCJOpinion
CIVIL ACTION NO. 5:01-CV-258-C.
April 25, 2003.
ORDER
Plaintiff, Jerry Don Rader, acting pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that employees of the Lubbock County Sheriff s Office used excessive force against him and conspired to cover up the unconstitutional acts. Defendants filed an Amended Answer on May 6, 2002, which generally denied Plaintiffs allegations, raised the defenses of limitations, qualified immunity, and sovereign immunity, and argued that the complaint failed to state a claim for which relief could be granted. Plaintiff seeks only monetary damages.
BACKGROUND
Plaintiff signed and dated his civil rights complaint on September 12, 2001, and filed it on September 14,2001. He named the following defendants: Lubbock County, Texas; David Gutierrez, Sheriff of Lubbock County; Thomas Bostwick, Deputy Sheriff; [Victor] Lugo, Lieutenant; [Cindy] Stinson, Lieutenant; Greg Parrott, Sergeant; Mike West, Lieutenant; [Kevin] Overstreet, Sergeant; Lee Corn, Sergeant; [Debbie] Russell, Corporal; and John Doe Numbers 1,2, 3, and 4. Plaintiff was subsequently granted permission to proceed in forma pauperis and his complaint was referred to the United States Magistrate Judge for screening pursuant to 28 U.S.C. § 1915 and 1915A.
The Magistrate Judge scheduled and conducted a Spears evidentiary hearing by televideo conferencing on January 8,2002. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) (authorizing an evidentiary hearing for a prisoner plaintiff proceeding pro se to expound upon his written complaint). Pursuant to the Order scheduling the evidentiary hearing, Defendants had filed copies of Plaintiff's jail records on December 12 and 28, 2001.
By Order dated January 10, 2002, the Magistrate Judge ordered Defendants to file an answer. Defendants Lubbock County, Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, and Russell filed an Original Answer on February 11, 2002, but did not identify or respond for John Doe Numbers 1, 2, 3, and 4. By Order dated February 21, 2002, the Magistrate Judge ordered Plaintiff to provide identifying information on John Doe Numbers 1 through 4.
Plaintiff consented to have the Magistrate Judge conduct all proceedings in his case on January 9, 2002, but on February 25, 2002, Defendants declined to consent. Hence, the case was transferred to the docket of this Court by Order dated March 5, 2002.
Plaintiff responded to the Magistrate Judge's Order to identify the John Doe defendants on April 3, 2002, and identified John Doe Number 1 as Captain Clint Galloway of the Lubbock County Sheriff's Office, John Doe Number 2 as Lieutenant Kelly Rowe of the Lubbock County Sheriff's Office, and John Doe Number 3 as [Deputy] Wayne Case of the Lubbock County Sheriffs Office. Plaintiff was unable to identify John Doe Number 4; therefore, by Order dated April 5, 2002, John Doe Number 4 and all claims alleged against him were dismissed from the instant complaint. In that same Order, Defendants Galloway, Rowe, and Casey were ordered to file an answer or responsive pleading.
On May 6,2002, Defendants Lubbock County, Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, and Russell filed an Amended Answer which included an answer and response for Defendants Galloway, Rowe, and Casey. See Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996) (noting that it is well settled in the Fifth Circuit that an amended complaint supersedes the original complaint); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) ("An amended complaint supersedes the original complaint and renders it of no legal consequence unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading."). In the amended answer, Defendants raised the defenses of qualified immunity, sovereign immunity, and limitations, and argued that Plaintiff had failed to state a claim for which relief could be granted.
After discovery was completed, both Plaintiff and Defendants filed motions for summary judgment. Defendants filed a Motion for Summary Judgement and Brief in Support thereof on February 12, 2003, and argued that they were entitled to judgment as a matter of law because Plaintiff's claims were barred by the applicable statute of limitations; Plaintiff could not produce evidence to support his claim of violations of his constitutional rights; Plaintiffs claims under theories of vicarious liability did not apply under § 1983; Plaintiff's claims were barred by the defenses of official immunity, qualified immunity, and sovereign immunity; and Plaintiff could not demonstrate that he was injured or produce evidence sufficient to support his claims for monetary damages. The only summary judgment evidence attached to Defendants' motion and brief was an authenticated letter from Defendant Corn to Plaintiff and an affidavit from Defendant Overstreet. Plaintiff filed a rebuttal and objections to the Defendants' motion for summary judgment on March 10, 2003. Plaintiff, however, neither filed his objections under oath or penalty of perjury nor attached a sworn affidavit to the objections.
Defendants stated in the conclusion paragraph in their supporting brief that "Plaintiff Sondley has produced no evidence that Lubbock County . . . had an official policy or custom. . . ." The Court notes that there is no "Plaintiff Sondley" in the instant cause of action; therefore, the Court has disregarded this paragraph in its entirety.
Although Defendants filed copies of Plaintiff s jail records for review at the Spears hearing, such records were not properly authenticated pursuant to Federal Rules of Evidence 803(6) and 902(11) and Defendants did not refer to these records in the brief accompanying their motion for summary judgment. Accordingly, this Court did not consider the records in ruling on Defendants' Motion for Summary Judgment. See Marshall v. Norwood, 741 F.2d 761, 764 (5th Cir. 1984) (holding that a district court properly referred to an inmate's prison record where the record was submitted as an exhibit to the motion for summary judgment; it was properly certified; and it was referred to in the defendant's affidavit). See also Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (holding that documents admitted at a Spears hearing should be properly identified and authenticated).
Plaintiff filed a Motion for Summary Judgment and Brief in Support on February 13, 2003. In his motion, Plaintiff made the same allegations that he raised in his complaint and argued that the records produced by Defendants in discovery would support his allegations. Plaintiff did not, however, attach any records or affidavits to his motion for summary judgment nor did he sign the pleading under oath or penalty of perjury. Defendants filed a Response and Memorandum in Opposition to Plaintiffs Motion for Summary Judgment on March 14, 2003.
PLAINTIFF'S COMPLAINT
This Court has reviewed the videotape of the Spears hearing conducted by the Magistrate Judge on January 8, 2002. Thus, "Plaintiff s Complaint" includes the allegations raised in his original complaint and the statements that he made under oath at the Spears hearing. See Eason v. Holt, 73 F.3d at 603 (holding that a plaintiff's testimony at a Spears hearing becomes part of his pleadings).
In his complaint, Plaintiff alleged that
[o]n or about August 9, 1999, [he] was physically assaulted and threatened by Officer Thomas Bostwick causing bodily injuries requiring medical care. Grievances were filed with Sheriff David Gutierrez and Lt. Lugo. Again on or about August 15, 1999, [he] was assulted [ sic] and threatened with death by Officer Thomas Bostwick which required medical care and subsequently left permanent scars on [his] body. This second assult [ sic] could have been avoided because [he] informed Lt. Stinson and Cp. Russell a problem existed but they both ignored [him] and the assult [ sic] took place. Once again grievances were filed with Sheriff David Gutierrez and Sgt. Lee Corn. [He] asked for criminal charges to be filed but this was all covered up and no real investigations were ever conducted by Lt. West, Sgt. Parrott, Sgt. Overstreet, Sgt. Lee Corn, and John Doe Numbers 1 through 4. The United States Attorney asked for an investigation November 16, 1999, and the FBI became involved. [he] was contacted January 20, 2000, by Special Agent Samuel Garza, FBI Dallas Civil Rights Division and in February 2000 [he] took and passed a Federal polygraph concerning this incident. However, as of this date [he has] yet to be answered by Sheriff David Gutierrez and the investigations resulted nothing.
At the Spears hearing on January 8, 2002, Plaintiff expounded on the allegations in his complaint. He explained that on August 9, 1999, Defendant Bostwick came to his cell and under the pretext of checking his blood pressure, pulled on Plaintiff's arm until his head hit the cell bars. He did not seek medical treatment at this time, but he filed grievances and complaints about Defendant Bostwick.
Plaintiff stated that about a week later, on August 15, 1999, Defendant Bostwick was assigned to escort him to the emergency room at University Medical Center because Plaintiff was having chest pains and problems with his blood pressure. Although Plaintiff explained his problem with Defendant Bostwick to Defendant Stinson, she refused to assign another deputy to escort Plaintiff to the hospital. Defendant Russell heard Defendant Stinson refuse his request but failed to do anything to help him avoid Defendant Bostwick.
Once Plaintiff and Defendant Bostwick arrived at the hospital, his handcuffs were removed so that an IV could be started. Defendant Bostwick then placed a handcuff on Plaintiffs right wrist so tightly that it bloodied his wrist. After spending several hours at the hospital with his right wrist handcuffed too tightly, Plaintiff was escorted back to the jail. On the morning of August 16, 1999, Plaintiff complained to jail officials about his wrist, and a nurse or medical technician at the jail cleaned his wrist, applied antibiotic ointment, and bandaged it. Plaintiff acknowledged that when he returned to the emergency room at University Medical Center on August 16, 1999, the consulting physician did not note or document any abnormalities with his right wrist. Plaintiff also acknowledged that Defendant Bostwick did not assault him after August 15, 1999, but did continue to threaten and harass him.
Plaintiff further alleged that no one at the Lubbock County Jail would respond to his complaints and grievances, but he conceded under oath that he had been notified by letter from Defendant Corn dated November 29, 1999, that an investigation of his complaints had been conducted but the claims could not be substantiated.
Plaintiff stated that he is suing each defendant in both his individual and official capacities and made the following allegations:
(1) Lubbock County, Texas, employed the other defendants and "allowed" the "assault" and the "cover-up" to happen;
(2) Defendant Gutierrez allowed Bostwick to assault him and did nothing even though Plaintiff filed grievances with him;
(3) Defendant Bostwick assaulted him by pulling his head into the cell bars and making the handcuffs too tight on his wrist, harassed and threatened him, and "covered up" the assaults;
(4) Defendant Lugo supervised Defendant Bostwick and did nothing to stop or prevent his unlawful behavior;
(5) Defendant Stinson assigned Defendant Bostwick to escort Plaintiff to the hospital on August 15, 1999, even though Plaintiff explained his problems with the officer and requested another escort;
(6) Defendant Parrott was an investigating officer for "CID" and he failed to take any action to correct Defendant Bostwick's unlawful behavior;
(7) Defendant West supervised Defendant Parrot and failed to take any action to correct the problems even though Plaintiff personally advised him of the problems;
(8) Defendant Overstreet worked in the Internal Affairs Division and even though he received Plaintiff's grievance about the problems, he failed to take any action to correct the problems and he "covered up" the facts;
(9) Defendant Corn advised Plaintiff that his complaint had been investigated even though he never met the Plaintiff and he "covered up" the facts;
(10) Defendant Russell heard Plaintiff request that Defendant Stinson assign another officer to escort Plaintiff to the hospital but did nothing to help Plaintiff;
(11) Defendant Galloway is the supervisor of Defendant Bostwick and after meeting with Defendant Gutierrez and two outside attorneys about the two assaults, he assured Plaintiff that nothing further would happen;
(12) Defendant Rowe is the Assistant Jail Supervisor in charge of personnel and he attended the meeting with Defendants Galloway and Gutierrez and the attorneys, and he also assured Plaintiff that nothing further would happen; and
(13) Defendant Casey interviewed Plaintiff and numerous witnesses about the assault by Defendant Bostwick but he failed to take any action.
SUMMARY JUDGMENT STANDARD
A motion for summary judgment permits a court to resolve a lawsuit without conducting a trial if the court determines (1) there is no genuine dispute as to any material facts and (2) the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The Fifth Circuit has summarized the summary judgment standard in Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999):
The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of a genuine issue of material fact. If the moving party carries its initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of a genuine issue of material fact. This showing requires more than some metaphysical doubt as to the material facts. While the party opposing the motion may use proof filed by the movant to satisfy its burden, only evidence — not argument, not facts in the complaint — will satisfy the burden.Id. at 465 (internal citations and quotations omitted).
The moving party satisfies the requirement to demonstrate the absence of a genuine issue of material fact by either (1) submitting evidentiary documents that negate the existence of some material element of the non-moving party's claim, or (2) merely pointing out the absence of evidence to support the non-moving party's claim, if the non-moving party will bear the burden of proof on that claim at trial. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Although the evidence and all reasonable inferences to be drawn therefrom must be considered in the light most favorable to the nonmoving party, he "may not rest on the mere allegations or denials of [his] pleadings, but must respond by setting forth specific facts indicating a genuine issue for trial." Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000) (quoting Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999)).
"A dispute about a material fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248)).
A district court does not have to limit the basis for summary judgment to the facts listed in a motion for summary judgment but may grant summary judgment on facts not briefed by the moving party if the non-moving party has notice of the issue. Turco v. Hoechst Celanese Chem. Group, Inc., 101 F.3d 1090, 1093 (5th Cir. 1996).
DISCUSSION
"[Section] 1983 is not itself a source of substantive rights; it merely provides a method for vindicating federal rights conferred elsewhere." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 n. 3 (5th Cir. 1999). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that an individual acting "under color of law" caused the deprivation of a right secured by the United States Constitution. 42 U.S.C. § 1983; Scott v. Moore, 85 F.3d 230, 232 (5th Cir. 1996).
Construed liberally, Plaintiffs complaint raises claims of constitutional violations for excessive use of force, retaliation, failure to protect, and conspiracy
I. Plaintiff's Motion for Summary Judgment
In Plaintiffs Motion for Summary Judgment and Brief in Support, he repeated his original arguments that Defendant Bostwick assaulted him in retaliation and the other Defendants failed to protect him and conspired to cover up the assaults. As previously noted, Plaintiff did not support his motion with a sworn affidavit or any evidence.
To the extent that Plaintiff raises claims in his motion for summary judgment or in his response to the Defendants' motion for summary judgment that he did not raise in his original complaint or at the Spears hearing, the Court will not consider the new claims. See Ghoman v. New Hampshire Ins. Co., 159 F. Supp.2d 928, 936 n. 9 (N.D. Tex. 2001) (noting that the district court will not consider belated arguments raised for the first time in a reply).
The Court has reviewed the pleadings and all summary judgment evidence but finds that Plaintiff has failed to demonstrate that he is entitled to judgment as a matter of law. Accordingly, Plaintiffs Motion for Summary Judgment should be denied in all things.
II. Defendants' Motion for Summary Judgment
In Defendants' Motion for Summary Judgment, they argue Plaintiffs claims are barred by the applicable statute of limitations; the defenses of official immunity, qualified immunity, and sovereign immunity; Plaintiff s failure to provide evidence that any defendant acted with deliberate indifference; Plaintiff's failure to demonstrate that any injuries were the result of Lubbock County policy or custom; Plaintiffs failure to demonstrate each defendant's individual liability; and Plaintiff's failure to provide evidence of sufficient injuries to support his claims for monetary damages.
Plaintiff filed a response and objections, but he did not attach any affidavits or evidence to his response and the response was not made under oath or penalty of perjury.
A. Exhaustion
Title 42 U.S.C.A. § 1997e, as amended by the Prison Litigation Reform Act, requires that a state prisoner exhaust available administrative remedies before filing a civil rights complaint under § 1983. Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998). The Supreme Court has determined that this exhaustion requirement applies "irrespective of the forms of relief sought and offered through [the] administrative avenues." Booth v. Churner, 532 U.S. 731,741 n. 6 (2001). See Porter v. Nussle, 534 U.S. 516,524 (2002) ("The PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."). This exhaustion requirement "is not jurisdictional and may be subject to certain defenses such as waiver, estoppel or equitable tolling." Wright v. Hollingsworth, 260 F.3d 357, 358 n. 2 (5th Cir. 2001) (citing Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998)).
Defendants first alleged in their Amended Answer that "Plaintiff failed to follow the administrative procedures for inmate grievances" and that the "policies regarding the investigation of grievances by inmates in the Lubbock County Jail were lawful, reasonable and were exercised in good faith." Defendants did not raise the issue of exhaustion in their Motion for Summary Judgment, but they did argue in their supporting brief that "Plaintiff has not exhausted the grievance process and his Complaint should be dismissed on this basis."
Defendants did not, however, provide any evidence of the Lubbock County Jail policies regarding inmate grievance procedures or explain how Plaintiff failed to comply with the procedures. They also stated in their Amended Answer that their "actions were reasonably based on the information provided to them by the Plaintiff," and they "fully investigated all grievances and accusations made by the Plaintiff and no sustainable policy violations were found." Moreover, Defendants conceded in the brief supporting the Motion for Summary Judgment that Plaintiff had in fact filed a complaint or grievance with Lubbock County on August 12, 1999, regarding Defendant Bostwick's alleged harassment and assault.
In light of Defendants' contradictory pleadings and their failure to provide any evidence to support their request for judgment as a matter of law based on Plaintiff's alleged failure to exhaust the administrative remedies, the Court finds that Defendants' request for summary judgment based on inexhaustion should be denied.
B. Statute of Limitations
"The statute of limitations for a suit brought under § 1983 is determined by the general statute of limitations governing personal injuries in the forum state." Piotrowski v. City of Houston, 237 F.3d 567,576 (5th Cir. 2001). "The applicable statute of limitations in Texas is two years." Cooper v. Brookshire, 70 F.3d 377, 380 n. 20 (5th Cir. 1995). See Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon Supp. 1998). "Accrual of a § 1983 claim[, however,] is governed by federal law: `Under federal law, the [limitations] period begins to run "the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured."'" Piotrowski v. City of Houston, 237 F.3d at 576 (quoting Russell v. Bd. of Trustees, 968 F.2d 489, 493 (5th Cir. 1992) (quoting Helton v. Clements, 832 F.2d 332, 335 (5th Cir. 1987))).
Defendants argue that Plaintiff's complaint is barred by the two-year statute of limitations because his § 1983 cause of action accrued "on or about" August 9,1999, and August 15, 1999, but he did not file his complaint until September 14, 2001, a month after the two-year limitation period expired. Citing Cooper v. Brookshire, 70 F.3d at 380, Defendants also argue that the "prison mailbox rule" does not apply to Plaintiff s complaint because he did not sign his complaint until after the limitation period had expired. Plaintiff responds that because his complaint was being investigated by jail officials until November 29, 1999, his claims did not accrue until then.
Defendants' argument that the prison mailbox rule does not apply to Plaintiffs complaint is without merit. In Cooper v. Brookshire, the Fifth Circuit Court of Appeals determined that a prisoner's pro se complaint would be deemed to be filed "as of the moment it was delivered to prison officials" for mailing. Id. at 379-80. There is no language in Cooper that limits the prison mailbox rule to complaints that are signed and dated before the limitation period expires and Defendants have cited no authority for such argument. The earliest date that Plaintiff could have delivered his complaint to jail officials for mailing was September 12, 2001, the date he signed and dated his complaint. So, even though Plaintiff's complaint was file-marked September 14,2001, it should be deemed to be filed as of September 12, 2001, the date he signed and dated his petition.
Plaintiff incorrectly argues that his complaint accrued on November 29, 1999, when the internal administrative investigation was complete, but his argument can be liberally construed as a request for equitable tolling.
The Fifth Circuit has determined that because exhaustion of administrative remedies is mandatory before a prisoner can file his § 1983 complaint, the statute of limitations should be tolled while he is pursuing such remedies. Harris v. Hegmann, 198 F.3d 153, 157-58 (5th Cir. 1999). Hence, Plaintiff is entitled to equitable tolling of the limitation period during the time he was pursuing his administrative jail remedies. See Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001) (holding that an inmate's complaint of deliberate indifference to his serious medical need was "dismissed without prejudice pending exhaustion of TDCJ grievance procedures and limitations [would] be tolled pending exhaustion"); Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 2002) (holding that inmate's failure-to-protect claim is subject to 42 U.S.C. § 1997e(a)'s administrative exhaustion requirement and therefore the limitation period should be equitably tolled during the pendency of any state administrative proceeding). Defendants acknowledge and Plaintiff does not disagree that Plaintiff sent a grievance to Defendant Gutierrez on August 12, 1999, and that said grievance was answered on November 29, 1999. Hence, the limitation period should be tolled for the 110 days that Plaintiff was attempting to exhaust his administrative remedies, and his civil rights complaint should have been filed on or before December 3, 2001. The Court finds that Plaintiff's complaint deemed to be filed on September 12, 2001, was timely and Defendants' motion for judgment as a matter of law based on limitations should be denied. See Rodriguez v. Holmes, 963 F.2d 799, 805 (5th Cir. 1992) (holding that the statute of limitations applicable to § 1983 should be tolled under state law or equitably tolled under federal law while a prisoner exhausts his state administrative remedies).
C. Claims Against Lubbock County and Defendants in Their Official Capacities
"[D]amages actions against public officials require careful adherence to the distinction between personal- and official-capacity suits." Kentucky v. Graham, 473 U.S. 159, 165 (1985). "Personal- [or individual-]capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law." Id. "Official-capacity suits, in contrast, `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Id. at 165-66 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55 (1978)).
Defendants seek summary judgment on Plaintiffs claims against them in their official capacities. They argue that the claim against Defendant Gutierrez in his official capacity is actually a suit against Lubbock County and should therefore be dismissed; the claims against Defendants Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey in their official capacities should be dismissed because they are entitled to official immunity; and Defendant Lubbock County should be dismissed because Plaintiff failed to demonstrate that his alleged injury was the result of any county policy, practice, or custom.
"When a plaintiff sues a county or municipal official in [his] official capacity, the county or municipality is liable for the resulting judgment and, accordingly," the suit is treated as a suit against the county or the municipality. Bennett v. Pippin, 74 F.3d 578, 584 (5th Cir. 1996). See Brooks v. George County, Miss., 77 F.3d 834, 841 (5th Cir. 1996) (holding that a suit against a sheriff in his official capacity is treated as a claim against the county). Thus, Plaintiff s claims against Defendants Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey in their official capacities should be treated as claims against Lubbock County.
"Congress did not intend to impose liability on a municipality unless deliberate action attributable to the municipality itself is the `moving force' behind the plaintiffs deprivation of federal rights." Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 400 (1997). Thus, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents[;]" rather, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978). See Conner v. Travis County, 209 F.3d 794, 796 (5th Cir. 2000) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)) ("Counties and supervisors are not liable for constitutional violations committed by county employees unless those violations resulted directly from a municipal custom or policy.").
"When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses, such as objectively reasonable reliance on existing law[,]" absolute immunity, or qualified immunity. Kentucky v. Graham, 473 U.S. at 166-67 (citations omitted). The only immunities available to a municipal officer in his official capacity, however, "are those that the governmental entity possesses." Hafer v. Melo, 502 U.S. 21, 25 (1991). "[M]unicipalities do not enjoy immunity from suit — either absolute or qualified — under § 1983." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993). Furthermore, the Eleventh "Amendment does not ordinarily apply to municipal corporations and other political subdivisions of the state." Lewis v. Midwestern State University, 837 F.2d 197, 198 (5th Cir. 1988). See Edelman v. Jordan, 415 U.S. 651, 667 n. 12 (1974) ("[A] county does not occupy the same position as a State for purposes of the Eleventh Amendment."); Crane v. State of Texas, 759 F.2d 412, 417 (5th Cir. 1985) ("Eleventh Amendment immunity does not, as a general rule, extend to counties."). Hence, Defendant Lubbock County, including Defendants Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey in their official capacities, are not entitled to assert the defenses of qualified immunity or official or sovereign immunity in this § 1983 complaint.
To succeed on his claims against Lubbock County and the named Defendants in their official capacities, Plaintiff must show "(1) that [a] municipal employee violated his clearly established constitutional rights with subjective deliberate indifference; and (2) that this violation resulted from a municipal policy or custom adopted and maintained with objective deliberate indifference." Olabisiomotosho v. City of Houston, 185 F.3d at 528-29. He must "prove a direct causal link between the municipal policy [or custom] and the constitutional deprivation; then [he] must establish that the [municipality] consciously enacted a policy reflecting `deliberate indifference' to the constitutional rights of its citizens." Snyder v. Trepagnier, 142 F.3d 791, 795-96 (5th Cir. 1998).
In Texas, the sheriff of a county is that county's official policymaker in county-related law enforcement. Paz v. Weir, 137 F. Supp.2d 782, 798 (S.D. Tex. 2001). Plaintiff makes no allegations that Defendant David Gutierrez, Sheriff of Lubbock County, enacted a policy which was the `moving force' behind the alleged violations of his constitutional rights, nor does he show that Defendants Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, Russell, Galloway, Rowe and Casey were county policymakers. Plaintiff also made no attempt to argue that a custom or practice existed in Lubbock County which was the moving force behind the alleged constitutional violations. In fact, in his unsworn response to the motion for summary judgment, Plaintiff clearly states that he never made any "allegations about any policy decisions being made or any control over policy decisions" but that the named Defendants "made their own decisions outside Lubbock County policy . . ."
Accordingly, the Court finds that Plaintiff failed to allege any facts or present any evidence to support his claims for § 1983 liability against Defendant Lubbock County and Defendants Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey in their official capacities, and the Motion for Summary Judgment by Lubbock County and Defendants Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey in their official capacities should be granted.
D. Claims Against Defendants Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey in Their Individual Capacities
"Personal involvement is an essential element of a civil rights cause of action." Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). Thus, under 42 U.S.C. § 1983 a supervisory official, such as a sheriff, is not liable for the actions of subordinates on any theory of vicarious liability. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). See Pierce v. Texas Dept. of Crim. Justice, Inst. Div., 37 F.3d 1146, 1150 (5th Cir. 1994) (holding that claims raised under the doctrine of respondeat superior are not actionable under § 1983). Thus, a supervisory official may be held liable for his subordinates' actions only if a plaintiff demonstrates that the official "affirmatively participate[d] in acts that cause[d] constitutional deprivation," or he "implement[ed] unconstitutional policies that causally result[ed] in plaintiff's injury." Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992). See also Edwards v. Harris County Sheriff's Dept., 864 F. Supp. 633,636 (S.D. Tex. 1994) ("[A] sheriffs department may not be held liable under § 1983 absent a showing that its policy of improperly training or supervising its deputies directly caused the constitutional violations.").
Defendants argue that they are entitled to summary judgment on Plaintiffs claims against them in their personal or individual capacities because Plaintiff failed to demonstrate that (1) Defendants Gutierrez, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey were personally involved in any of the alleged violations; (2) the supervisory defendants participated in the acts allegedly causing the constitutional deprivations or implemented unconstitutional policies; (3) the actions of any Defendants were carried out in their individual capacities; and (4) his claims are "supported by competent summary judgment evidence or pled in a manner which adequately states a cause of action for which relief can be granted." The Defendants have also argued that they are entitled to qualified immunity.
"The doctrine of qualified immunity serves to shield . . . government official[s] from civil liability for damages based upon the performance of discretionary functions if the official[s'] acts were objectively reasonable in light of then clearly established law." Thompson v. Upshur County, TX, 245 F.3d 447, 456 (5th Cir. 2001) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "The bifurcated test for qualified immunity asks whether the plaintiff has alleged a violation of a clearly established right and, if so, whether the defendant[s'] conduct was objectively unreasonable." Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). Thus, when a defendant has filed a motion for summary judgment raising the defense of qualified immunity, a court must first determine whether the facts, "[t]aken in the light most favorable to the party asserting the injury," establish that the defendant officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).
A prisoner-plaintiff bears the burden of defeating a defendant prison official's claim to qualified immunity. Al-Raid v. Ingle, 69 F.3d at 33.
"If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. at 201. If the plaintiff has established the violation of a constitutional right, however, a court must then determine whether the right was "clearly established at the time of incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of that then clearly established law." Palmer v. Johnson, 193 F.3d at. This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Saucier v. Katz, 533 U.S. at 201. See Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997) (holding that the first inquiry "will generally involve analysis at a higher level of generality than the second, which focuses not only on the state of the law at the time of the complained of conduct, but also on the particulars of the challenged conduct and/or of the factual setting in which it took place").
"`Clearly established' means that `the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates'" the plaintiffs constitutional rights. Thompson v. Upshur, 245 F.3d at 457 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, 533 U.S. at 202.
A defendant official's "acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the United States Constitution or the federal statute as alleged by the plaintiff." Thompson v. Upshur, 245 F.3d at 457 (emphasis in original). "The `defendant's circumstances' includes facts know[n] to the defendant," but "because qualified immunity turns only upon the objective reasonableness of the defendant's acts, a particular defendant's subjective state of mind has no bearing on whether that defendant is entitled to qualified immunity." Id. (emphasis in original).
As previously noted, Plaintiff has failed to allege or demonstrate that any Defendants implemented unconstitutional policies at the Lubbock County Jail. Thus, he must demonstrate that each individual defendant personally participated in an act (or acts) that resulted in a constitutional deprivation. Plaintiff alleges that Defendant Bostwick assaulted him on two occasions in retaliation for his complaints and then conspired to cover up his actions; Defendants Gutierrez, Lugo, West, Galloway, and Rowe were supervisors who failed to take the necessary steps to prevent Defendant Bostwick from assaulting him; Defendants Parrott, Overstreet, Stinson, Russell, and Casey failed to take steps to protect him from Defendant Bostwick; and some or all of the Defendants conspired to cover up Defendant Bostwick's unconstitutional actions.
1. Excessive-Use-of-Force Claim
"In the Fifth Circuit, to succeed on an excessive force claim, the plaintiff bears the burden of showing: `(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable." Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (quoting Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). The plaintiff must demonstrate that the injury was more than a de minimis physical injury, but "there is no categorical requirement that the physical injury be significant, serious, or more than minor." Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999). "[W]ithout this de minimis threshold, every `least touching' of a [prisoner] would give rise to a section 1983 claim. . . . Not only would such a rule swamp the federal courts with questionable excessive force claims, it would also constitute an unwarranted assumption of federal judicial authority to scrutinize the minutiae of state detention activities." Riley v. Dorton, 115 F.3d 1159, 1167 (5th Cir. 1997).
Although the parties discuss Plaintiff s claims under the Eighth Amendment, it is unclear from the record whether Plaintiff was a pretrial detainee or a convicted prisoner in August of 1999. Nevertheless, the same standard would apply for his excessive force claim regardless of his status as a pretrial detainee or convicted prisoner. See Rankin v. Klevenhagen, 5 F.3d 103, 105-06 (5th Cir. 1993) (quoting Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir. 1993)) ("[I]t is impractical to draw a line between convicted prisoners and pretrial detainees for the purpose of maintaining jail security.").
Plaintiff alleges that on August 9, 1999, Defendant Thomas Bostwick approached his cell and asked Plaintiff to place his arm between the cell bars so that he could check Plaintiff's pulse and blood pressure. Plaintiff alleges that when he complied with the officer's instructions, Defendant Bostwick pulled on his arm and caused Plaintiffs head to strike the cell bars. Plaintiff alleges that several other inmates witnessed the incident, but he completely fails to allege or demonstrate that he suffered any physical injury from his head striking the cell bars. Although this Court can reasonably infer that Plaintiff might have suffered a headache or some pain when his head struck the bars, Plaintiff has failed to come forward with any evidence to demonstrate that he suffered more than a de minimis injury to support his claim for an unconstitutional use of force. See Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997) (holding that a sore, bruised ear which caused pain for three days is a de minimis injury which would not support a claim for an excessive use of force); Dale v. Bridges, No. Civ. A. 3:96-CV-3088-AH, 1997 WL 810033, *3 (N.D. Tex. 1997) (holding that an allegation of a "swollen black eye which lasts only a few days" is insufficient to satisfy the "some injury" requirement).
In his original complaint, his testimony at the Spears hearing, and his response to Defendants' motion for summary judgment, Plaintiff alleges that the first assault happened on August 9, 1999, but in his Motion for Summary Judgment and Brief in Support, he alleges that the first assault occurred on August 3, 1999.
Plaintiff also alleges that on August 15, 1999, Defendant Bostwick intentionally tightened the handcuff on his right wrist too tight in retaliation, and he suffered pain, a "bloody wrist," and scars. Plaintiff states that this happened when he was being treated in the emergency room at University Medical Center and Defendant Bostwick left the handcuff on for about three or four hours. Plaintiff does not allege that he complained to any of the medical staff in the emergency room or that he asked for treatment of his wrist from the medical staff before he was escorted back to the Lubbock County Jail by Defendant Bostwick. He states that he sought treatment from the jail medical staff the next day on August 16, 1999, and the jail staff applied an antibiotic ointment and a bandage to his wrist. Plaintiff does not allege, however, that when he returned to the emergency room on August 16, 1999, he complained about his wrist to the emergency room staff or asked them for further medical treatment. Plaintiff also does not allege that he received any further medical treatment for his wrist. The Court finds that Plaintiff has failed to come forward with sufficient evidence of "some injury" to support his claim that Defendant Bostwick used excessive force on August 15, 1999. See Pfannstiel v. City of Marion, 918 F.2d 1178, 1186 (5th Cir. 1990) (holding that claims of neck strain from a chokehold, scratches, "marks" left on wrists by handcuffs, and rough treatment causing elevated blood pressure did not amount to injuries sufficient to support claims of constitutional excessive use of force); Wesson v. Oglesby, 910 F.2d at 283 (finding that allegation of officer placing petitioner in a chokehold until he lost consciousness was insufficient to support a claim for excessive force because the injury was de minimis); and Raley v. Fraser, 747 F.2d 287, 289 (5th Cir. 1984) (holding that use of force which resulted in sore throat and hoarseness for two weeks and raised welts from tightened handcuffs did not amount to abuse of power that shocked the conscience).
In Glenn v. City of Tyler, 242 F.3d 307, 311 (5th Cir. 2001), the Fifth Circuit addressed a plaintiffs claim that a police officer tightened her handcuffs so tightly that her right hand became swollen. Finding that the plaintiff failed to allege that the officer acted with malice, the Fifth Circuit held that "handcuffing too tightly, without more, does not amount to excessive force." Id. at 314. Although Plaintiff argues in a conclusory manner that Defendant Bostwick acted intentionally and with deliberate indifference, he does not show that Defendant Bostwick's use of force was of the kind `repugnant to the conscience of mankind.' See Gomez v. Chandler, 163 F.3d at 924 n. 4 (citing Siglar v. Hightower, 112 F.3d at 193) (leaving open the "possibility that a physical injury which is only de minimis may nevertheless suffice for purposes" of an excessive force claim under § 1983 "if the force used is of the kind `repugnant to the conscience of mankind"'). Assuming that Defendant Bostwick did excessively tighten the handcuff, this Court does not condone such behavior but "[n]ot 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 v. McMillian, 503 U.S. 1, 9 (1992) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson v. McMillian, 503 U.S. at 6. Accordingly, the Court finds that Plaintiff has failed to come forward with sufficient facts to support his claim for an excessive use of force by Defendant Bostwick on August 15, 1999, and Defendant Bostwick's claim to qualified immunity and motion for summary judgment should be granted.
Finally, the Court notes that although Plaintiff has alleged that Defendant Bostwick verbally, harassed, taunted, and threatened him, "mere threatening language and gestures of a custodial office[r] do not, even if true, amount to constitutional violations." Robertson v. Piano City of Texas, 70 F.3d 21, 24 (5th Cir. 1995) (quoting McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983)). See Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993) (holding that claims of verbal abuse and harassment are not actionable under § 1983).
2. Retaliation Claims
"To prevail on a claim of retaliation, a prisoner must establish (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his . . . exercise of that right, (3) a retaliatory adverse act, and (4) causation." McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). "Causation" requires the prisoner to show that "but for the retaliatory motive the complained of incident . . . would not have occurred." Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). "The [prisoner] must allege more than his personal belief that he is the victim of retaliation." Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999). Thus, the prisoner "must produce direct evidence of motivation or, the more probable scenario, `allege a chronology of events from which retaliation may plausibly be inferred.'" Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)). "This places a significant burden on the [prisoner]." Woods v. Smith, 60 F.3d at 1166.
Plaintiff offers no evidence of a retaliatory motive or chronology of events to support his claim of retaliation other than his own conclusory allegations. Accordingly, the Court finds that Plaintiff's conclusory allegations of retaliation are insufficient to establish a constitutional claim for retaliation and defeat Defendants' claims to qualified immunity and summary judgment. See Woods v. Smith, 60 F.3d at 1166 ("Mere conclusionary allegations of retaliation will not withstand a summary judgment challenge.").
3. Failure-to-Protect Claims
"To prevail on a section 1983 failure to protect claim, a prisoner must demonstrate that `he was incarcerated under conditions posing a substantial risk of serious harm and that [jail] officials were deliberately indifferent to his need for protection." Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999) (quoting Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998)). "In order to act with deliberate indifference, `the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Neals v. Norwood, 59 F.3d 530,533 (5th Cir. 1995) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). "[T]he `failure to alleviate a significant risk that [the official] should have perceived, but did not' is insufficient to show deliberate indifference." Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. at 838).
Plaintiff complains that even though he filed complaints and grievances about Defendant Bostwick, Defendants Gutierrez, Lugo, Parrott, West, Overstreet, Corn, Galloway, Rowe, and Casey failed to prevent the assaults by Defendant Bostwick or take any action to sanction him for his actions. Defendants provided as summary judgment evidence, however, a copy of a report from Defendant Corn to Plaintiff advising Plaintiff that the complaints had been investigated but could not be substantiated. Plaintiff concedes that he received this report and also acknowledges that Defendant Casey conducted an investigation into his complaints. Plaintiff also complains that even though he told Defendant Stinson on August 15, 1999, that he had a problem with Defendant Bostwick, she refused to assign another officer to escort him to the emergency room and thus gave Defendant Bostwick the opportunity to assault him again. He further alleges that because Defendant Russell overheard this conversation, she should have intervened to see that another officer was assigned to escort him to the emergency room.
Plaintiff has failed to allege any facts to establish that any of these Defendants were actually aware of facts sufficient to support an inference that Plaintiff was under a substantial risk of serious harm from Defendant Bostwick, or that any officer ever drew such an inference. See Olabisiomotosho v. City of Houston, 185 F.3d at 527-28 (holding that summary judgment was warranted where nothing in the record demonstrated that defendant subjectively knew of a substantial risk to plaintiff nor was there anything in the record which could even support an inference of a substantial risk of serious harm).
Plaintiff likewise fails to allege facts sufficient to support his claim that these Defendants acted with subjective deliberate indifference to his safety. "Deliberate indifference is an extremely high standard to meet." Domino v. Texas Dep't of Criminal Justice, 239 F.3d at 756. It "cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm." Thompson v. Upshur County, TX 245 F.3d at 459. The legal conclusion of deliberate indifference must rest on facts clearly evincing "obduracy and wantonness, not inadvertence or error in good faith." Whitley v. Albers, 475 U.S. 312, 319 (1986). Other than his conclusory allegations, Plaintiff has failed to offer any evidence to support his claims that Defendants deliberately ignored his complaints about Defendant Bostwick or that any of the Defendants were aware that Defendant Bostwick posed a substantial risk to Plaintiff's health and safety. Accordingly, the Court finds that Defendants' claims to qualified immunity and motion for summary judgment on Plaintiff's failure-to-protect claims should be granted. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) ("[M]ere conclusory allegations are not competent summary judgment evidence, and such allegations are insufficient, therefore, to defeat a motion for summary judgment.").
4. Conspiracy Claims
To establish a conspiracy claim cognizable under § 1983, a plaintiff must demonstrate (1) an agreement between persons acting under color of law to commit an illegal act, and (2) an actual deprivation of the plaintiff's constitutional rights in furtherance of the conspiracy. Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). To succeed, the plaintiff must plead specific facts that, if proved, would establish the elements of the claim. Marts v. Hines, 68 F.3d 134, 136 (5th Cir. 1995). Mere conclusory allegations of a conspiracy are insufficient to support a claim under § 1983. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992).
Other than his conclusory allegations, Plaintiff has failed to provide evidence or even allege specific facts to support his claims of conspiracy. Accordingly, the Court finds that Defendants Gutierrez, Bostwick, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey are entitled to summary judgment on Plaintiffs claims of conspiracy.
CONCLUSION
For the reasons stated above, the Court finds that the Motion for Summary Judgment by Defendants Lubbock County, David Gutierrez, Thomas Bostwick, Victor Lugo, Cindy Stinson, Greg Parrott, Mike West, Kevin Overstreet, Lee Corn, Clint Galloway, Debbie Russell, Kelly Rowe, and Wayne Casey should be granted, but the Motion for Summary Judgment by Plaintiff Jerry Don Rader should be denied.
It is, therefore, ORDERED that
1. Plaintiffs Motion for Summary Judgment is denied.
2. Plaintiff's claims against Defendant Lubbock County, Texas, and Defendants David Gutierrez, Victor Lugo, Cindy Stinson, Greg Parrott, Mike West, Kevin Overstreet, Lee Corn, Clint Galloway, Debbie Russell, Kelly Rowe, Wayne Casey, and Thomas Bostwick in their official capacities are dismissed with prejudice.
3. Defendants Gutierrez, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey in their individual capacities are entitled to qualified immunity and summary judgment.
4. Plaintiffs claims against Defendants Gutierrez, Lugo, Stinson, Parrott, West, Overstreet, Corn, Galloway, Russell, Rowe, and Casey in their individual capacities are dismissed with prejudice.
Judgement shall be entered accordingly.
All relief not expressly granted is denied and all pending motions are hereby denied.