Opinion
Civil Action No. SA-03-CA-0881 NN.
May 4, 2006
FINDINGS OF FACTS and CONCLUSIONS OF LAW
Plaintiff, Marlon Smith filed suit approximately three years ago against the Defendants asserting each violated his civil rights under 42 U.S.C. § 1983 by subjecting him to an unreasonable and unnecessary excessive use of force on July 4, 2003, when said Defendants, all of whom were officers assigned to the Second Shift Special Emergency Response Team, extracted plaintiff Smith from his cell at the Bexar County Adult Detention Center. Plaintiff Smith claimed that during the cell extraction, the Defendants unnecessarily pulled him from his top bunk causing him to hit his head on the side desk, slammed him to the floor, kicked him, punched him, and hit him with their riot batons. Plaintiff Smith further claimed the Defendants' alleged excessive use of force caused him injury, to wit, two black eyes, a laceration to his forehead, a misaligned nose and bruised ribs. Plaintiff Smith named each Defendant in his individual and official capacity.
Plaintiff Smith and the Defendants have consented to my jurisdiction as a United States Magistrate Judge, to conduct any and all proceedings in this case, including rendering a decision and ordering the entry of final judgment.
See Docket entry nos. 19, 20 22.
On Monday, April 17, 2006, bench trial proceedings in the above entitled case commenced. Over the course of two days, I heard testimony from plaintiff Smith and 18 witnesses — six of whom were named as Defendants. I also reviewed approximately 27 demonstrative evidentiary exhibits.
On April 11, 2006, I Ordered that plaintiff Smith's claim against Defendant Granado be the subject of a separate trial (docket entry no. 107) because defendant Granado, who had been recently added as a party defendant in January of this year, had not yet been served by plaintiff despite plaintiff's attempts to do so, and defendant Granado was no longer employed by Bexar County, was no longer living in Texas, was currently on active military duty and either deployed to Iraq or awaiting deployment from Ft. Polk, Louisiana to Iraq.
Based on a preponderance of the evidence and the applicable law, I make the following findings of fact and conclusions of law as required by Federal Rule Civil Procedure 52(a) and enter judgment in favor of the Defendants on plaintiff Smith's § 1983 civil rights claims.
I. Findings of Fact
The facts contained herein are either undisputed or I have made the finding based on the credibility or believability of each witness. In so doing, I considered all the circumstances under which the witness testified which include: the relationship of the witness to Plaintiff or the Defendants; the interest, if any, the witness has in the outcome of the case; the witness's appearance, demeanor, and manner of testifying while on the witness stand; the witness's apparent candor and fairness, or the lack thereof; the reasonableness or unreasonableness of the witness's testimony; the opportunity of the witness to observe or acquire knowledge concerning the facts to which he or she testified; the extent to which the witness was contradicted or supported by other credible evidence; and whether such contradiction related to an important factor in the case or some minor or unimportant detail. When necessary, I comment on the credibility of a witness or the weight to be given a witness's testimony.
1. On July 4, 2003, plaintiff Smith was a pre-trial detainee at the Bexar County Adult Detention Center (BCADC).
2. On July 4, 2003, defendants Saul Zuniga, Rolando Espinosa, Fernando Rodriguez, Frederick Feliciano, Alex Urriegas, Patrick Granado, and Erich Arredondo, were employed by the BCADC.
a. On July 4, 2003, Saul Zuniga was employed as a Bexar County Sheriff's Deputy.
b. On July 4, 2003, Rolando Espinosa was employed as a Bexar County Sheriff's Deputy.
c. On July 4, 2003, Fernando Rodriguez was employed as a Bexar County Sheriff's Corporal.
d. On July 4, 2003, Frederick Feliciano was employed as a Bexar County Sheriff's Deputy.
e. On July 4, 2003, Alex Urriegas was employed as a Bexar County Sheriff's Deputy.
f. On July 4, 2003, Patrick Granado was employed as a Bexar County Sheriff's Deputy.
g. On July 4, 2003, Erich Arredondo was employed as a Bexar County Sheriff's Deputy.
3. On July 4, 2003, defendants Zuniga, Espinosa, Rodriguez, Feliciano, Urriegas, Granado, and Arredondo, comprised the seven corrections officers forming the Second Shift Special Emergency Response Team (SERT team).
4. On July 4, 2003, Lt. Frank Turriglio was the shift commander and on-duty administrator at BCADC.
5. As shift commander, Lt. Turriglio had absolute authority to determine whether the SERT team should be deployed to deal with disruptive inmates. Although his authority was absolute, recommendations from other officers regarding how to "handle" an inmate in a specific situation were considered.
6. On July, 4, 2003, Lt. Turriglio received a phone call from Deputy Sergeant Tucker, the 4th floor supervisor.
7. Deputy Sergeant Tucker informed Lt. Turriglio that inmate Smith had just had a verbal altercation with Deputy Sergeant Tucker and Deputy Brad Bridges, wherein inmate Smith was reported to have been boisterous and cursing, to have threatened Deputy Bridges and violating BCADC inmate regulations by hiding a SAC lunch under his arm under his shirt.
In fact, on July 21, 2003, at a disciplinary hearing Smith was found guilty of yelling at Deputy Bridges. Plaintiff's Ex. 6.
8. Deputy Sergeant Tucker also informed Lt. Turriglio that after Smith proceeded to his unit, Smith approached Deputy Lane and asked to speak to a classification officer and be moved to administrative segregation. At one point during the discussion, Smith threatened to break out all the windows in the unit.
9. Smith then went to his cell. There were no other altercations with any officers after he returned to his cell, prior to the arrival of the SERT team.
10. Deputy Sergeant Tucker testified that the threat to destroy BCADC property prompted him to call Lt. Turriglio and report Smith's behavior.
11. Smith testified his threat to break the windows was intended as a joke. Regardless, his agitated behavior and his comment had been taken seriously and was relayed to Lt. Turriglio.
12. After hearing about Smith's behavior and threat to property, Lt. Turriglio decided to deploy the Second Shift SERT team to relocate Smith to a more secure unit.
Plaintiff's counsel thoroughly examined Lt. Turriglio about whether Lt. Turriglio fully complied with BCADC procedures regarding the decision to deploy a SERT team, but Lt. Turriglio's compliance or non-compliance with BCADC protocol has no bearing on what this Court must focus on — whether the officers who were deployed to perform the extraction subjected Smith to an excessive and unreasonable use of force during said extraction.
13. Lt. Turriglio's decision to relocate Smith to a different unit was based upon his familiarity with Smith's history of disruptive, antagonistic, and unpredictable behavior, and the accumulation of recent events, including: Smith's verbal altercations with officers Tucker and Bridges, Smith's threat to officer Bridges, and Smith's threat to destroy property.
14. Lt. Turriglio assembled the Second Shift SERT team and briefed them that they were to go to the 4th floor to relocate a disruptive inmate to the intensive supervision unit. He further instructed the SERT team that they were first to seek the inmate's cooperation but to be prepared to perform a cell extraction.
15. Lt. Turriglio subsequently accompanied the SERT team to Smith's cell on the 4th floor, but Corporal Rodriguez was the corrections officer in charge of the SERT team, and accordingly responsible for directing and coordinating the SERT team actions when the SERT team encountered Smith.
16. The SERT team members wore their black SERT team uniform and helmets, which distinguished them from other corrections officers at the BCADC.
17. Prior to approaching Smith's cell, the SERT team members left their riot batons in the picket.
18. When the SERT team arrived at Smith's cell at approximately 8:45 p.m. at least one of the cell's two lights was illuminated. The SERT team lined-up in formation outside of Smith's cell. The cell door, which was closed included a vertically oriented rectangular window approximately six inches wide and eighteen inches in length. Through the window, the SERT team saw Smith lying on the top bunk of his cell.
19. Corporal Rodriguez stood at the window at Smith's cell door and gave Smith two oral commands to get off the bunk and get on the floor. Corporal Rodriguez also pointed to the floor as he issued his oral commands.
20. Smith, despite seeing Corporal Rodriguez in SERT gear gesturing toward the floor, did not get off his bunk as directed to so do. Instead Smith gestured in return with a shrug of his shoulders as if to say "What?"
21. Corporal Rodriguez, seeing Smith's failure to comply with his oral commands and gesture to get off the bunk, directed the first three members of the SERT team to extract Smith from the cell.
a. Deputy Sheriff Feliciano, Deputy Granado, and Deputy Espinosa entered the cell and approached Smith's bunk.
b. Deputy Zuniga entered the cell just inside the cell door and awaited orders from Corporal Rodriguez to participate.
c. Corporal Rodriguez observed and directed the cell extraction from the cell's doorway.
d. Deputy Arredondo did not participate in the extraction but awaited orders from Corporal Rodriguez to participate.
e. Deputy Urriegas waited outside of the cell and awaited orders from Corporal Rodriguez to participate.
22. The Second Shift SERT team had never extracted an inmate from a top bunk.
Plaintiff's counsel elicited testimony that the extraction may not have been performed precisely to the BCADC's extraction protocol policy, but further witness testimony indicated the protocol manual does not address extracting a non-compliant or disruptive inmate from a top bunk and the SERT team does not train for extracting a non-compliant or disruptive inmate from the top bunk.
23. Deputy Sheriff Feliciano and Deputy Granado grabbed Smith's body and inmate uniform where they could and began to pull Smith from the top bunk.
24. Smith resisted by kicking, twisting and turning.
25. As Smith's body was pulled from the top bunk, Smith hit his face on the desk, which was attached to the wall on the right side of the bunks.
I describe the orientation of the SERT team members, the bunks and the desk from the perspective of an individual looking into the cell from the cell door. The bunks are affixed to the wall at the opposite end of the cell and the desk runs along the wall on the observer's right side. Testimony of the witnesses places a toilet on the same side as the desk but approximately four to five feet away from the end of the desk.
26. Smith landed face down on the cell's floor.
27. After being pulled from his bunk, Smith felt a blow to the head, which he believed to be caused by a blunt object. He did not see the officers use riot batons during the cell extraction.
28. Smith's size (Smith stands over 6 ft tall), Smith's resistance, his encounter with the desk and gravity caused Smith to hit the back of his head on the toilet as he landed.
29. Smith continued to resist the SERT officers while on the ground.
30. Deputy ESPINOSA applied handcuffs to Smith's wrists.
31. Deputy Feliciano applied leg irons to Smith's ankles.
32. No SERT team member used their fists, batons or kicked Smith into compliance.
33. After Smith was secured in restraints, the SERT team removed Smith from the cell and took him to medical because Smith had blood on his face.
34. The cell extraction lasted approximately two to three minutes.
35. BCADC policies require the use of a video camera to document cell extractions.
a. No video camera was used to document the cell extraction of Smith.
b. Each shift has a video camera available to them for use.
c. The video cameras are locked and secured with each shift's SERT team having access only to the camera designated for it's use.
d. The Second Shift SERT team's video camera was inoperable on the day of Smith's extraction and had been inoperable for several months preceding Smith's extraction.
e. The Second Shift SERT team was not authorized to access, unlock, or use the other shift's video cameras.
f. BCADC administrating and budgeting staff is responsible for repairing inoperable or damaged video camera equipment, or for purchasing and procuring a replacement.
g. Had the Second Shift SERT team had a video camera to document the extraction, a SERT member would have filmed the extraction from Corporal Rodriguez' oral command to Smith to get off his bunk and onto the floor, to Smith's arrival at medial. The video camera would then have been turned off at medical because an inmate's right to privacy during his medical examination emanates from the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936 ("HIPPA"), which has served to implement new precautionary regulations for medical providers.
36. While enroute to medical, Smith yelled obscenities at Lt. Turriglio and continued to verbally abuse the officers.
37. At medical Smith refused to be treated by the attending nurse, Nurse Johnson, demanding that his injuries be photographed prior to treatment.
38. Nurse Johnson's medical notes indicate: Smith was ambulatory when he arrived at medical accompanied by the SERT team at approximately 8:50 p.m. and that he was yelling and screaming. Noting there was blood about Smith's forehead and bridge of nose, Nurse Johnson wrote she was presently unable to assess Smith because he was being very uncooperative.
Plaintiff's Ex. 2. Treatment Room Record of Nurse Johnson dated 7/4/03 at 20:50 p.m.
39. It is not BCADC policy to take pictures of inmates in medical.
40. After Smith refused medical assessment and treatment, he was escorted to cell 18 in Unit BJ — a more intensively supervised unit.
41. At Lt. Turriglio's recommendation, Nurse Johnson visited Smith at his cell on the BJ unit later that evening, at approximately 9:50 p.m. Per Nurse Johnson's notes, she was unable to assess Smith because he continued to refuse treatment and was uncooperative.
Id. at Treatment Room Record of Nurse Johnson dated 7/4/03 at 21:50 p.m.
42. On July 5, 2003, at approximately 12:40 p.m., Smith was once again taken to medical for assessment and treatment by the attending nurse, Nurse Gibbons.
43. Nurse Gibbon's medical notes indicate Smith was ambulatory. She noted Smith had multiple bruises to his face and head, a small bruise to his left clavicle area, a bump on the right rear of his head and that his nose was misaligned.
Id. at Treatment Room Record of Nurse Johnson dated 7/5/03 at 12:40 p.m.
44. Thereafter Smith did not receive medical treatment for any injuries relating to the cell extraction.
II. Conclusions of Law
Any finding of fact which may also constitute a conclusion of law shall be deemed a conclusion of law, and any conclusion of law which may also constitute a finding of fact shall be deemed a finding of fact.
A. The Nature of Section 1983
Title 42 U.S.C. § 1983 does not create any substantive rights, but instead provides a remedy for violations of federal statutory and constitutional rights. In order to state a cause of action under § 1983, the plaintiff's claim for relief must allege facts establishing: (1) that plaintiff has been deprived of a right secured by the Constitution or laws of the United States; and (2) that the defendant acted under color of state law.
See LaFleur v. Texas Department of Health, 126 F.3d 758, 759 (5th Cir. 1997).
Doe v. Dallas I.S.D., 153 F.3d 211, 215 (5th Cir. 1998).
B. Section 1983 Liability for Excessive Use of Force
The Due Process Clause of the Fourteenth Amendment of the United States Constitution imposes liability for the use of excessive force by state actors directed toward pretrial detainees. The use of force applied to a pretrial detainee is considered excessive when unnecessary and wanton pain and suffering is inflicted thereby; and such a determination depends on `whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.'"
Valencia v. Williams, 981 F.2d 1440 (5th Cir. 1993).
Id.
Because there is usually little or no evidence of the detention facility official's subjective intent, "the trier of fact must base its determination on objective factors suggestive of intent." These factors include: "(1) the extent of the injury suffered; (2) the need for the application of force; (3) the relationship between the need and amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of the forceful response."
Id.
Hudson v. McMillan, 962 F.2d 522, 523 (5th Cir. 1992).
In examining the evidence in this case in light of these factors, I note that plaintiff Smith's documented injuries included an abrasion to his forehead, a bump to the back right head, a mal-aligned nose, and a bruise to his left clavicle. These injuries were more than de minimus. However, after considering all of the evidence I conclude that these injuries were suffered as a result of the application of force necessary to relocate Smith from his cell to another unit.
Notably, the Constitution does not authorize the Court to second-guess — with all the benefits of hindsight — the wisdom of the decision by a jail official to remove a prisoner from his cell and relocate him to another unit. Regardless of the correctness of that decision, the Court must focus on whether the force used to accomplish that objective was reasonable. Further, the Constitution does not impose liability on state actors for the failure to comply with their own internal operating procedures and policies, or even those rules and regulations which might be imposed by local or state governmental authorities. Importantly, the focus of this Court in this case remains on whether the Due Process Clause of the Fourteenth Amendment was violated when defendants used force to remove plaintiff from his cell.
A review of the facts here demonstrates that while plaintiff's injuries were significant, the force used by Defendants was consistent with the objective of removing plaintiff Smith from his cell and plaintiff's injuries resulted from their good faith attempts to carry out that objective. In this case, the SERT team initially attempted to accomplish the objective of removing Smith from his cell voluntarily. Defendant Rodriguez issued several commands to plaintiff to get to the floor, both verbally and through gesture. Defendant Rodriguez observed plaintiff's reply to the command by gesture, indicating that plaintiff was aware that a command had been issued, and reasonably interpreted plaintiff's failure to come down off his bunk to the floor as non-compliance. Upon his refusal to comply, the Defendants' job was to forcibly relocate plaintiff. Because of plaintiff's size, his location on the top bunk of the cell, the location of the desk in relation to the top bunk, the concrete floor, the location of the toilet, and particularly plaintiff Smith's continued thrashing about and refusal to comply, the force used by the SERT team members to remove Smith from the top bunk and place him on the floor where he could be cuffed and taken to the more secure unit resulted in injury to Smith. However, the force used by defendants was no more than was necessary to accomplish the removal of plaintiff Smith from his cell, beginning with his removal from the top bunk to the floor of the cell and continuing through the placing of restraints on a twisting, turning and generally uncooperative and agitated inmate.
Plaintiff Smith vigorously argued that the failure of the SERT team to record the cell extraction using a video camera or photograph his injuries suggests that the defendants maliciously and sadistically assaulted Smith. However, I find that the cumulative witness testimony and demonstrative evidence does not support such a conclusion. The video camera assigned to the Second Shift SERT team had been inoperable for months and there were no other cameras available to the Second Shift team on the night in question. Further, BCADC administrators were responsible for replacing and repairing equipment, not the SERT team members themselves. With respect to the refusal to photograph plaintiff's injuries when he arrived in the medical unit, there was testimony that photographs are rarely if ever taken in that unit based at least in part on the employees' understanding of HIPPA restrictions. No bad faith intent can properly be drawn from the fact that the events were neither videotaped or photographed.
For these reasons, I conclude that Defendants' use of force was reasonably objective given the situation they encountered, and not employed maliciously or sadistically. Accordingly, I conclude that Defendants did not violate plaintiff Smith's constitutional rights and are not liable under section 1983 for subjecting him to an excessive use of force.
C. Qualified Immunity
Qualified immunity shields government officials from individual liability for performing discretionary functions, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. A qualified immunity defense is analyzed under a two-step process. The first step is to determine whether the plaintiff has alleged a violation of a clearly established constitutional rights under currently applicable constitutional standards. The second step requires the Court to determine whether the defendant's conduct was objectively reasonable under existing clearly established law. Officials who act reasonably but mistakenly are nevertheless entitled to the defense. Qualified immunity gives ample room for mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.
Colston v. Barnhart, 130 F.3d 96, 98 (5th Cir. 1997); Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532-33 (5th Cir. 1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 393 (5th Cir. 2000); Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998) (on appeal after remand); Colston, 130 F.3d at 99.
Jacobs, 228 F.3d at 393; Hare, 135 F.3d at 325; Coleman, 113 F.3d at 533.
Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001); Jacobs, 228 F.3d at 393; Foster, 28 F.3d at 428-29.
Anderson, 483 U.S. at 641; Malley v. Briggs, 475 U.S. 335, 341 (1986); Hare, 135 F.3d at 325.
Because the trial testimony and exhibits show that the Defendants did not violate Smith's constitutional civil rights during the cell extraction on July 4, 2003, the Defendants are entitled to qualified immunity.
III. Conclusion
For the reasons stated herein, I conclude plaintiff Smith failed to prove by a preponderance of the evidence that any of the Defendants subjected him to an unreasonable and unnecessary excessive use of force in violation of 42 U.S.C. § 1983, when they extracted him from his cell on July 4, 2003.
Accordingly, the Defendants are entitled to judgment in their favor, and all claims brought by plaintiff Smith are DISMISSED with prejudice.
It is so ORDERED.