Fernando Narro v. E. Edwards ( 2020 )

Case: 18-40912 Document: 00515575564 Page: 1 Date Filed: 09/23/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 23, 2020
No. 18-40912 Lyle W. Cayce
Clerk
Fernando S. Narro,
Plaintiff—Appellant,
versus
E. Edwards, Officer; Sergeant Duminski; D. O. Mowry;
D. O. Killgore; D. O. Stanford; D. O. Gregory,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:16-CV-310
Before Dennis, Graves, and Willett, Circuit Judges.
Per Curiam:*
Mr. Fernando S. Narro, who is currently incarcerated in Texas and is
proceeding pro se, filed this 42 U.S.C. § 1983 civil rights action against law
enforcement officers Colton Edwards, Daniel Duminski, Darren Mowery,
*
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opinion should not be published and is not precedent except under the limited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.
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Sean Killgore, and Michael Gregory (collectively, “Defendant-Appellees”). 1
Mr. Narro asserts that, while he was in pretrial detention at the Brazoria
County Detention Center on September 26, 2016, these officers used
excessive force against him in violation of his rights under the Eighth
Amendment. The district court granted summary judgment in favor of
Defendant-Appellees and dismissed Mr. Narro’s claims with prejudice. We
AFFIRM.
I. FACTUAL OVERVIEW AND PROCEDURAL HISTORY
A. Allegations and Affidavits
The parties’ allegations regarding the events in question differ. They
agree that at approximately 2:00 a.m. on September 26, 2016, Defendant
Edwards told Mr. Narro that he had to move to another cell because the night
light in his existing cell was not working. At the time, Mr. Narro was housed
on “A-Row,” which the officers allege “houses inmates who are segregated
from the general population due to disciplinary problems, mental health or
medical issues, or other reasons.” Defendant Edwards explained in an
affidavit filed with the district court that he decided to move Mr. Narro
because his cell was “completely dark” and because “a cell two or three
doors down . . . had just come available.” Mr. Narro refused. 2
According to Mr. Narro, Defendant Duminski got upset and started
yelling at him. Defendant Duminski entered the cell, and an officer
1
Mr. Narro also named “D.O. Stanford” in his suit. The Brazoria County District
Attorney’s Office appeared on behalf of all defendants except Stanford and stated that
“[t]he Brazoria County Sheriff’s office . . . employed no detention officer with this name
at the time of the alleged incident.”
2
Mr. Narro alleges that he refused the officers’ verbal orders twice, but that he
agreed to move after the third request. Defendant Edwards alleges that Mr. Narro refused
him at least three times and subsequently refused Defendant Duminski.
2
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“blindsided” Mr. Narro. Defendant Duminski then slammed Mr. Narro’s
head into the wall and against the railing of his bunk. Mr. Narro put his hands
up by his head to protect himself, at which point Defendant-Appellees and
an unknown officer allegedly started punching Mr. Narro in the face and head
area. Mr. Narro maintains that he was still in bed, under the mattress cover,
and not a threat. The officers then put restraints on Mr. Narro’s wrists and
moved him to what he describes as the “mental” cell, the officers term the
“violent” cell, and we refer to as the “second” cell. Mr. Narro alleges that
Defendant-Appellees continued to assault him until a nurse arrived.
According to the officers, 3 after Mr. Narro refused repeated requests
to move, Defendant Edwards called for a supervisor. Defendant Mowery,
Defendant Duminski, and Sergeant Stacy Holmes arrived to assist Defendant
Edwards. When Defendant Duminski entered the cell, Defendant Edwards
saw Mr. Narro “sit up quickly and square his body” toward Defendant
Duminski. The officers allege that, after they repeatedly ordered Mr. Narro
to turn around to be handcuffed, he refused to comply and raised clenched
fists. When Defendant Edwards tried to grab Mr. Narro’s right arm in order
to handcuff him, Mr. Narro became violent and started thrashing and moving
his arms and upper body and kicking his legs. Defendant Mowery averred
that Mr. Narro’s movements were aggressive and that he “looked like he was
going to engage in an altercation.” Defendant Duminski averred that Mr.
Narro cursed and threatened the officers, sat up in the bed and tensed up,
and raised his fists to his chest. Defendant Duminski then struck Mr. Narro
once on the head with his fist. He alleges that he “did not intend to strike
3
Two groups of officers filed motions for summary judgment. The affidavits filed
by the first group, which comprised Defendants Duminski, Edwards, and Mowery, are
described below. The summary judgment motion filed by Defendants Gregory and
Killgore, meanwhile, argues that those officers did not participate in any use of force.
3
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[Mr. Narro] in the head, but . . . reacted as quickly as possible to avoid being
hit.” After Mr. Narro was handcuffed, Defendant-Appellees allege, he was
pulled to the ground because he continued to pull away, kick, and threaten
the officers. Mr. Narro was then transferred to the second cell, but he
continued to resist. Specifically, Defendants Edwards, Mowery, and
Duminski allege, he kicked at the officers and hit Defendant Edwards in the
face above his eye. Mr. Narro eventually calmed down, and a nurse bandaged
his cut while the officers secured him. The officers removed the handcuffs
and backed out of the cell. They allege that Mr. Narro got up during this
process and moved toward the cell door in a threatening manner, but that the
officers were able to close the door.
Mr. Narro’s complaint was accompanied by an inmate grievance form
that he filed regarding the incident. He later filed a statement by another
inmate who overheard the use of force and Mr. Narro’s protests.
B. Photos and Videos
Defendant-Appellees filed video of the incident alongside their
motions for summary judgment.
The first video, Exhibit 9F, was taken by a “Deputy Barrett,” and
begins sometime after Mr. Narro was handcuffed. 4 It reflects a struggle in the
original, dark cell, in which Mr. Narro can be heard speaking belligerently
and cursing. The officers are visible on the video working to remove the
mattress cover that was wrapped around Mr. Narro’s legs. They then pull
Mr. Narro to his feet and escort him to the second cell. There, the video
shows Mr. Narro continuing to thrash, kick, and speak belligerently as the
4
In a use-of-force report filed by Defendant-Appellees, Deputy Barrett states that
he “heard yelling on the front side of A-row,” “grabbed the camera,” and went to film the
incident.
4
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officers attempt to restrain him. Less than two minutes after Mr. Narro
enters the second cell, the video shows a nurse arriving at the cell and treating
him as several officers continue to restrain him. The officers, who state in
their affidavits that they removed Mr. Narro’s clothing, can be seen on the
video explaining what they are doing and tossing the clothing out of the cell.
They then remove Mr. Narro’s handcuffs and back out of the cell, closing the
door quickly behind them.
The second video, which has no audio, appears to have been taken
from a security camera at the end of the hall in which Mr. Narro’s cell was
located. It shows officers arriving outside of Mr. Narro’s cell and entering
the cell. An officer, presumably Deputy Barrett, arrived outside of the cell
and began to film approximately forty-seven seconds after officers entered
the cell. Shortly thereafter, the video shows the officers walking Mr. Narro
to the second cell.
Photos taken after the incident were also filed with the district court,
although they are of low quality. They show the left side of Mr. Narro’s face,
his cell door, and blood within the cell.
C. Procedural History
Mr. Narro filed suit. In addition to a small cut on his left temple,
documented in the photos referenced above, he alleges injuries to his
shoulder that require pain medication to the present time, a bruise near his
pelvis, an abrasion on his forehead, and the swelling and bruising of both
ears. 5 Defendant-Appellees filed a motion to dismiss and motions for
5
Mr. Narro, who submitted to this court an audiology report documenting his loss
of hearing, now argues that the officers’ actions caused him to suffer possible permanent
hearing loss. He did not make that allegation at the district court. This court may not
consider new claims or new evidence presented for the first time on appeal, so we do not
5
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summary judgment. As noted above, see supra note 3, the summary judgment
motion filed by Defendants Duminski, Edwards, and Mowery directly refutes
Mr. Narro’s allegations and asserts qualified immunity. The motion filed by
Defendants Gregory and Killgore, meanwhile, asserts that those officers did
not participate in any use of force.
After reviewing those motions, the district court granted summary
judgment in favor of Defendant-Appellees and dismissed Mr. Narro’s claims
with prejudice. In doing so, the court reasoned that Mr. Narro had “failed to
demonstrate a genuine issue of material fact as to whether the force
Defendants used against him was ‘objectively unreasonable.’” This appeal
followed.
II. STANDARD OF REVIEW
We review “a grant of summary judgment de novo, applying the same
standard as the district court.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 328
(5th Cir. 2017); Miss. River Basin All. v. Westphal, 230 F.3d 170, 174 (5th Cir.
2000). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of
material fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Austin, 864 F.3d at 328 (internal
quotation marks and citation omitted). All facts and reasonable inferences are
construed in favor of the nonmovant, and the court should not weigh
evidence or make credibility findings. Deville v. Marcantel, 567 F.3d 156, 163–
64 (5th Cir. 2009).
analyze that alleged injury. See Burge v. St. Tammany Parish, 336 F.3d 363, 372 (5th Cir.
2003); Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
6
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Qualified immunity “shield[s] a government official 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 Cty., Tex., 245 F.3d 447, 456 (5th Cir. 2001). For
an official’s violative conduct to be objectively unreasonable, so as to
preclude qualified immunity, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates
that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987), modified on other
grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that courts
need not consider the two-step analysis of qualified immunity claims in any
particular order).
“A qualified immunity defense alters the usual summary judgment
burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
Once an officer invokes the defense, the plaintiff must rebut it by establishing
(1) that the officer violated a federal statutory or constitutional right and
(2) that the unlawfulness of the conduct was “clearly established at the
time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)); see Gates v. Tex. Dep’t of
Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008) (“The
plaintiff must rebut the defense by establishing that the official’s allegedly
wrongful conduct violated clearly established law and that genuine issues of
material fact exist regarding the reasonableness of the official’s conduct.”).
To prevail on his excessive force claim, Mr. Narro must therefore
establish “(1) injury, (2) which resulted directly and only from a use of force
that was clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).
“[T]he core judicial inquiry is . . . whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). Courts analyze (1)
7
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“the extent of [the] injury suffered,” (2) “the need for [the] application of
force,” (3) “the relationship between that need and the amount of force
used,” (4) “the threat reasonably perceived by the responsible officials,” and
(5) “any efforts made to temper the severity of a forceful response.” Id.
(internal quotation marks and citation omitted); see also Baldwin v. Stalder,
137 F.3d 836, 839 (5th Cir. 1998). “[A]ll inferences are drawn in [the
plaintiff’s] favor.” Brown, 623 F.3d at 253. But “a plaintiff’s version of the
facts should not be accepted for purposes of qualified immunity when it is
‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.”
Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (citation omitted); see also
Scott v. Harris, 550 U.S. 372, 380–81 (2007).
III. DISCUSSION
The parties dispute what took place on the relevant night, as described
in detail above. Crucially, however, only Defendant-Appellees’ version is
supported by competent summary judgment evidence. Mr. Narro’s version
is supported by only two filings: his unverified complaint and an unsworn
inmate grievance form. 6
In general, parties may not rest on their own pleadings at the summary
judgment stage. Instead, “Rule 56(e) . . . requires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477
6
As noted above, Mr. Narro also submitted a statement by another inmate. That
inmate averred that (1) the officers were going to move Mr. Narro because the night light
was out; (2) the light had been out for a few days; and (3) he heard Mr. Narro say “I am
not the one,” that Mr. Narro wanted to stay in the cell in case he had a seizure, and that
Mr. Narro said “y’all going to beat me up” while handcuffed. None of those statements
support Mr. Narro’s version of the events that transpired after he expressed disinterest in
moving cells.
8
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U.S. 317, 324 (1986) (quotation marks omitted); see also Nat’l Ass’n of Gov’t
Emps. v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994) (“Conclusory allegations unsupported by specific facts . . . will not
prevent an award of summary judgment; the plaintiff [can]not rest on his
allegations . . . to get to a jury without any significant probative evidence
tending to support the complaint.”) (quotation marks and citation omitted).
Because Mr. Narro did not submit a sworn affidavit or other competent
evidence, the court cannot credit his version of events.
In contrast, Defendant-Appellees submitted several affidavits.
According to that evidence, the officers were aware that Mr. Narro was
“frequently housed in A-Row for disciplinary violations” and had previously
“attempted to harm a jailer.” Mr. Narro refused repeated instructions to
move to another cell, resisted and threatened officers, kicked, swung his fists,
and thrashed his body. When officers entered his cell, which was dark, Mr.
Narro sat up in bed, tensed up, and raised his fists; Defendant Duminski
reacted to avoid being hit and struck Mr. Narro once on the head. After he
was handcuffed, Mr. Narro continued to pull away, kick, and threaten the
officers. The officers therefore pulled him to the ground. After Mr. Narro
was transferred to the second cell, he continued to resist and kicked the
officers, and he hit Defendant Edwards in the face above the eye. A nurse
bandaged a cut on Mr. Narro’s forehead, and the officers removed his clothes
and handcuffs. As the officers backed out of the cell, Mr. Narro got up and
moved toward the cell door in a threatening manner. The officers were able
to close the door, and the encounter concluded.
As noted above, the burden is on Mr. Narro to rebut the officers’
invocation of qualified immunity by establishing (1) that the officers violated
a federal statutory or constitutional right and (2) that the unlawfulness of
their conduct was “clearly established at the time.” Wesby, 138 S. Ct. at 589
(internal quotation marks and citation omitted). Because Plaintiff failed to
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submit any relevant and competent summary judgment evidence permitting
us to draw inferences in his favor, he has not met that burden. 7
Defendant Duminski’s affidavit must be treated as evidence of his
version of events (i.e., that he used a non-deadly punch to gain control of a
resisting inmate and prevent his own assault). Although the officers could
have used less forceful conduct, there was no settled authority to put them
on notice that their use of force violated Mr. Narro’s constitutional rights.
See Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (“We must
evaluate an officer’s use of force from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” (internal
quotation marks and citation omitted)); see also Griggs v. Brewer, 841 F.3d
308, 315 (5th Cir. 2016) (finding that an officer was entitled to qualified
immunity as to claims that he punched an individual who was ignoring his
commands until the officer could regain control of the individual’s arms and
handcuff him). We therefore agree with the district court that Mr. Narro has
not met his burden to rebut the officers’ invocation of qualified immunity.
AFFIRMED.
7
We note also that “a plaintiff’s version of the facts should not be accepted for
purposes of qualified immunity when it is ‘blatantly contradicted’ and ‘utterly discredited’
by video recordings.” Hanks, 853 F.3d at 744. Mr. Narro’s allegations regarding his
demeanor are discredited by video, but no useful footage reflects the exact events leading
to Defendant Duminski’s striking Plaintiff. But because Plaintiff’s version of events was
not substantiated by competent summary judgment evidence, he cannot benefit from that
lapse in footage.
10