Enrique Cardona v. Orlando Taylor ( 2020 )

Case: 17-11533 Document: 00515573007 Page: 1 Date Filed: 09/21/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 21, 2020
No. 17-11533
Lyle W. Cayce
Clerk
Enrique Cardona,
Plaintiff—Appellant,
versus
Orlando Taylor; Timothy Denney; Burton; Capps;
Miguel Alvarado; Rebecca Shults; Office of the
Attorney General of Texas,
Defendants—Appellees.
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 7:14-CV-42
Before Barksdale, Elrod, and Ho, Circuit Judges.*
Per Curiam:**
Following a raid of his prison cell, Enrique Cardona filed a pro se suit
against various officers of the Texas Department of Criminal Justice for
*
Judge Ho concurs only in the judgment.
**
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 17-11533 Document: 00515573007 Page: 2 Date Filed: 09/21/2020
No. 17-11533
excessive use of force, deliberate indifference, and failure to intervene under
the Eighth Amendment. As ordered by the district court, the Texas Attorney
General filed a Martinez report, which included a video recording of the
incident. Relying on the report and video, the district court dismissed
Cardona’s suit for failure to state a claim.
Because the district court erred by using the Martinez report to resolve
material disputed facts and because Cardona’s complaint does state a claim
for relief, we reverse and remand.
I.
As discussed infra, we take as true the facts alleged in Cardona’s
complaint, viewing them in the light most favorable to him. See Alderson v.
Concordia Par. Corr. Facility, 848 F.3d 415, 419 (5th Cir. 2017). Responding
to an alleged disciplinary violation by Cardona and his cellmate, the prison
assembled an eight-person “use of force” squad to raid their prison cell. The
squad fired tear gas into the cell after Cardona and his cellmate initially
ignored demands to remove obstructions blocking the entrance. Once the
officers managed to open the door, they shackled Cardona and strip-searched
him. The officers then moved Cardona, who was still incapacitated by the
tear gas, outside his cell, where they body-slammed him to the concrete floor.
After forcing him to the ground, and while he remained shackled and
handcuffed, the officers kneed Cardona in the back and repeatedly bent his
thumb backwards. They then ordered Cardona, still naked, back into his tear-
gas-filled cell.
Cardona suffered head trauma, facial contusions, a nose fracture,
interior bleeding, chipped teeth, and injuries to his left hand, lower back, and
pubic bone following the altercation. He was later treated by medical
personnel.
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According to a departmental investigation, the officers’ use of force
violated Texas Department of Criminal Justice policy. Members of the squad
were disciplined for their actions. One officer was fired, and another was
placed on probation.
Cardona brought suit under 42 U.S.C. § 1983. The district court
ordered the Texas Attorney General 1 to investigate and file a Martinez report
detailing its findings. 2 After reviewing the report, which included a video
recording of the incident, the court dismissed Cardona’s claims for failure to
state a claim pursuant to the Prison Litigation Reform Act, 28 U.S.C.
§ 1915(e)(2)(B)(ii). Cardona appeals.
II.
A dismissal under § 1915(e)(2)(B)(ii) “for failure to state a claim is
reviewed de novo under the same standard applied to dismissals pursuant to
Federal Rule of Civil Procedure 12(b)(6).” Alderson, 848 F.3d at 419. “Thus,
we review the district court’s dismissal ‘taking the facts alleged in the
complaint as true and viewing them in the light most favorable to’ the
plaintiff.” Id. (quoting Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010)).
1
The Attorney General’s appearance as amicus is inappropriate in cases, like this
one, where it uses its amicus position to make arguments as a party would. As such, we
deem it to have appeared as a party. On remand, the district court shall direct the State of
Texas to formally appear. See Brown v. Taylor, 911 F.3d 235, 242 n.6 (5th Cir. 2018)
(deeming the State of Texas to have appeared as a party in the appeal after the Attorney
General “submitted a[n] [amicus curiae] brief, volunteered to appear for oral argument,
and addressed the merits of the case”). The court acknowledges that Brown was not filed
until after the Attorney General had appeared as amicus.
2
This court has adopted the procedure used in Martinez v. Aaron, 570 F.2d 317
(10th Cir. 1978), as a tool by which an administrative record is constructed to assist in
assessing whether prisoner complaints are frivolous for screening purposes under 28
U.S.C. § 1915. See Norton v. Dimazana, 122 F.3d 286, 292–93 (5th Cir. 1997). The resulting
administrative record is commonly referred to as a “Martinez report.”
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To survive dismissal, a complaint must contain sufficient factual
matter that, when taken as true, states a claim for relief that is plausible on its
face. Legate v. Livingston, 822 F.3d 207, 210 (5th Cir. 2016) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). Put another way, the plaintiff must allege
facts “sufficient to support a reasonable inference that the defendants are
liable under § 1983.” Alderson, 848 F.3d at 419.
Last, we must also consider Cardona’s suit in light of his status as a
pro se litigant. His complaint is therefore “held to less stringent standards
than formal pleadings drafted by lawyers.” Calhoun v. Hargrove, 312 F.3d
730, 733 (5th Cir. 2002) (quoting Taylor v. Books A Million, Inc., 296 F.3d 376,
378 (5th Cir. 2002)). After Cardona’s pro se appellate brief was filed, counsel
was appointed for him and filed a supplemental brief. There is a difference of
opinion in our court about whether to consider the pro se brief on appeal in
light of appointed counsel’s later filing a supplemental brief. Compare
Humphrey v. Cain, 130 F.3d 524, 530 n.2 (5th Cir. 1997), reh’g en banc, 138
F.3d 552 (1998), with Mayberry v. Tarrant Cty., 34 F. App’x 962, at *2 n.3
(5th Cir. 2002). We need not address that difference because the pro se brief
standing alone is only addressed in note 4 for a claim raised only in that brief
and rejected in that note.
III.
Cardona argues that dismissal for failure to state a claim was improper
because (1) the district court failed to accept as true the facts alleged in his
complaint, relying instead on the Martinez report in making its factual
determinations and (2) were the district court to actually take the facts
alleged in his complaint as true, he would have surpassed the threshold to
survive dismissal for failure to state a claim. We agree with Cardona.
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A.
First, the district court assigned “great weight” to the Martinez report
in concluding that Cardona failed to state a claim. But Cardona disputes the
Martinez report’s findings. And we have stated, on numerous occasions, that
information from a Martinez report may not be used to resolve material
disputed facts when the information conflicts with the plaintiff’s pleadings.
E.g., Hamer v. Jones, 364 F. App’x 119, 123 (5th Cir. 2010) (specifically
referring to the district court’s adoption of video evidence contained in the
Martinez report); Newby v. Quarterman, 325 F. App’x 345, 354 (5th Cir.
2009); Johnson v. Seckler, 250 F. App’x 648, 649 & n.1 (5th Cir. 2007); Wiley
v. Thompson, 234 F. App’x 180, 182 (5th Cir. 2007); Williams v. Mason, 210
F. App’x 389, 390 (5th Cir. 2006); Hendrickson v. Davis, 172 F. App’x 48, 48
(5th Cir. 2006); see also Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)
(“[T]he court is not authorized to accept the factual findings of the prison
investigation [contained in the Martinez report] when the plaintiff has
presented conflicting evidence.”).
The district court therefore erred by resolving factual disputes in favor
of the Martinez report’s findings rather than in favor of Cardona’s complaint.
B.
Second, taking the facts alleged in Cardona’s complaint as true, we
conclude that he properly stated a claim for relief. 3 Cardona pleaded three
claims: (1) excessive use of force; (2) deliberate indifference; and (3) failure
to intervene. 4 We consider each in turn.
3
Prior to receiving the Martinez report, the district court had found that Cardona’s
complaint had alleged sufficient facts to allow his claims to proceed.
4
Cardona also contends in his pro se brief on appeal that the district court violated
his right to a jury trial under the Seventh Amendment. But as we have noted, dismissal
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1.
To establish a claim for excessive force under the Eighth Amendment,
the plaintiff must assert that “force was not ‘applied in a good-faith effort to
maintain or restore discipline, [but] maliciously and sadistically to cause
harm.’” Eason v. Holt, 73 F.3d 600, 601–02 (5th Cir. 1996) (alteration in
original) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
Here, Cardona alleges that two officers slammed him against the
concrete floor while he was handcuffed, shackled, and still incapacitated by
the tear gas. One or both officers then proceeded to knee Cardona in the back
and repeatedly bend his thumb backwards until it nearly fractured.
As a result of this force, Cardona sustained a concussion, sprained
thumb, fractured nose, injuries to his lower back and pubic bone, and quite a
few chipped teeth. He contends that at the time he was shoved to the ground,
he was not resisting and could not have posed a physical threat to any officer.
To Cardona, the officers’ actions constitute malicious and sadistic use
of force. Taking his allegations as true, and viewing them in the light most
favorable to Cardona, we agree. See Bourne v. Gunnels, 921 F.3d 484, 492 (5th
Cir. 2019) (concluding that the plaintiff demonstrated a genuine dispute of
material fact where force was employed after he was handcuffed and shackled
on the floor, notwithstanding the officers’ contention that the plaintiff
continued resisting); Preston v. Hicks, 721 F. App’x 342, 345 (5th Cir. 2018)
(holding that the plaintiff alleged facts sufficient to state an excessive-force
claim, despite medical documentation indicating that his injuries might not
have been that severe, where the prison guard twisted the plaintiff’s right arm
“pursuant to a valid . . . motion [to dismiss for failure to state a claim] does not violate [the
plaintiff’s] right to a jury trial under the Seventh Amendment.” Haase v. Countrywide Home
Loans, Inc., 748 F.3d 624, 631 n.5 (5th Cir. 2014).
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while he was “face down on the ground”). Cardona has thus stated a claim
for relief on this ground.
2.
Cardona also alleges that officers were deliberately indifferent to his
health and safety. “Deliberate indifference is established by showing that the
defendant officials ‘(1) were aware of facts from which an inference of
excessive risk to the prisoner’s health or safety could be drawn and (2) that
they actually drew an inference that such potential for harm existed.’”
Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001) (quoting Bradley v.
Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998)).
Cardona alleges the officers were deliberately indifferent when they
ordered him back into his cell still filled with tear gas, refused to provide
supplies for decontamination, denied him the opportunity to go to the
medical department for treatment for injuries and exposure to the tear gas,
and declined to house him in a cell free of the tear gas. This, according to
Cardona, violated both the prison’s policies and procedures regarding
ventilation and decontamination and ignored the warnings provided by the
manufacturer of the tear gas.
Here, too, Cardona has stated a plausible claim for relief. Although the
district court, in dismissing this claim, noted that the medical records did not
reflect any complaint by Cardona that he was in need of decontamination or
that he was suffering from any risk to his health or safety by being placed back
in his tear-gas-filled cell, his complaint says otherwise. And as we have said,
information from a Martinez report may not be used to resolve material
disputed facts when the information conflicts with the plaintiff’s pleadings.
E.g., Williams, 210 F. App’x at 390 (citing Norton v. Dimazana, 122 F.3d 286,
292–93 (5th Cir. 1997)) (holding that the “district court should not have
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relied” on the medical records contained in the Martinez report to refute the
plaintiff’s deliberate-indifference claim “at this stage in the proceeding”).
Even assuming that we could consider medical records themselves
without any doctors’ affidavits, it would not change the outcome here. In
Norton, we held that it was error (albeit harmless) to consider a doctor’s
affidavit when reviewing a deliberate-indifference claim. See 122 F.3d at 293.
But we also considered the prisoner’s medical records. In that case, the
records indicated that Norton “was afforded extensive medical care by
prison officials, who treated him at least once a month for several years,
prescribed medicine, gave him medical supplies, and changed his work status
to reflect the seriousness of his problem.” Id. at 292. Here, unlike in Norton,
the medical records themselves do not reflect any treatment for Cardona’s
alleged injuries. Therefore, Cardona’s deliberate-indifference claim should
be allowed to proceed.
3.
Finally, Cardona alleges that some officers failed to intervene to
protect him from the excessive force used against him. To state a claim, the
prisoner must allege sufficient facts showing that an officer knew that a fellow
officer was violating the prisoner’s constitutional rights; the officer had a
reasonable opportunity to prevent the harm; and the officer chose not to act.
Kitchen v. Dallas Cty., 759 F.3d 468, 480 (5th Cir. 2014), abrogated on other
grounds by Kingsley v. Hendrickson, 576 U.S. 389 (2015).
Because we determined that Cardona sufficiently stated a claim for
relief regarding the officers’ use of excessive force, and because he alleges
that other officers, including the supervising officer, were present during the
raid but failed to intervene, we conclude that he has stated a claim for relief
on this ground as well.
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IV.
For the foregoing reasons, we REVERSE and REMAND.
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