     Case: 18-20551      Document: 00515190998         Page: 1    Date Filed: 11/07/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit


                                    No. 18-20551                          FILED
                                  Summary Calendar                 November 7, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
FLOYD WILLIAM HALL,

                                                 Plaintiff-Appellant

v.

C. S. DAIGLE; BRIAN S. SMITH; KELLY STRONG; JULIA RODRIGUEZ;
JESSE MCKEE; WILLIAM STEPHENS; BRAD LIVINGSTON, EXECUTIVE
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE; KRYSTAL
ROTRAMEL; LIEUTENANT RICHARD ALFORD; LORIE DAVIS,
DIRECTOR,     TEXAS   DEPARTMENT     OF  CRIMINAL   JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; BRYAN COLLIER; TONY
O'HARE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2227


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Floyd William Hall, Texas prisoner # 763209, filed a pro se civil rights
complaint under 42 U.S.C. § 1983, alleging that correctional officers at the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-20551

Wayne Unit of the Texas Department of Criminal Justice (TDCJ) used
excessive force against him; that supervisory officials violated his rights by
either creating, implementing, or overseeing unconstitutional policies
regarding the use of force; and that Krystal Rotramel, a licensed vocational
nurse at the Wynne Unit, falsified records and acted with deliberate
indifference to his serious medical needs.
      The district court determined that the supervisory officials and Rotramel
were entitled to qualified immunity and dismissed Hall’s claims against them
under Federal Rule of Civil Procedure 12(b)(6). After considering the factors
set out in Hudson v. McMillian, 503 U.S. 1, 7 (1992), the district court
determined that the correctional officers were likewise entitled to qualified
immunity and granted summary judgment.
      Hall argues: (1) that the supervisory officials are not entitled to qualified
immunity because, even though they did not personally participate in the
alleged constitutional deprivation, they implemented an unconstitutional
policy regarding the use of force; (2) that he raised sufficient factual allegations
that Rotramel acted with deliberate indifference to his serious medical needs;
(3) that the district court incorrectly analyzed one of the Hudson factors, and
thus erred in granting summary judgment to correctional officers Shayne
Daigle, Julia Rodriguez, and Jesse McKee; and (4) that the district court
abused its discretion in denying his pending discovery motion as moot. Finally,
Hall also moves for the appointment of counsel.
      A.    Standard of Review
      The grant of a motion to dismiss under Rule 12(b)(6) for failure to state
a claim is reviewed de novo, “accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiff[].” Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (internal quotation



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                                  No. 18-20551

marks and citation omitted). The grant of summary judgment is also reviewed
de novo, applying the same standards as the district court. Austin v. Kroger
Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017).
       B.    Dismissal of Supervisory Officials
       Because Hall sought to hold the supervisory officials vicariously liable
based solely on their role as supervisors, the district court did not err in
dismissing Hall’s § 1983 claims against them in their individual capacities.
See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Hall’s claims against
the supervisory officials in their official capacities fail because as employees of
the state, they are protected by the Eleventh Amendment. Aguilar v. Tex. Dep’t
of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). Though Eleventh
Amendment immunity does not apply to Hall’s request for injunctive relief, see
id., Hall has not identified “continuing, present adverse effects” from the
alleged use of excessive force that would entitle him to injunctive relief, Bauer
v. Texas, 341 F.3d 352, 358 (5th Cir. 2003) (citation omitted). Accordingly, the
district court did not err in dismissing Hall’s claims against the supervisory
officials.
       C.    Dismissal of Rotramel
       Though Hall complains about the extent of his “cell side” evaluation
immediately after the use of force, his medical complaints were not ignored,
nor was he denied medical treatment. See Domino v. Tex. Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001). His complaints about Rotramel’s
failure to take pictures of his injuries or complete certain forms do not amount
to deliberate indifference to his serious medical needs. Moreover, his claim
that Rotramel falsely reported his injuries to delay and interfere with his
medical treatment is simply not supported by the record. Because Hall failed
to plead factual matter sufficient to state a constitutional claim against



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                                  No. 18-20551

Rotramel that is plausible on its face, the district court did not err in granting
her motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
      D.    Hudson Factor Analysis
      According to Hall, the district court erred in its analysis of the third
Hudson factor: the relationship between the need and the amount of force used
and should not have granted summary judgment in favor of Daigle, Rodriguez,
and McKee. Hall does not dispute that he climbed the ceiling rafters of the
dining hall or that he refused to comply with numerous orders to come down.
Instead, he maintains that this factor favors him because Daigle violated the
prison’s use of force policy by using the pepper spray pellet launcher prior to
using the aerosol pepper spray.
      Neither Hudson nor the prison’s use of force policy required that
defendants use the aerosol spray first. The policy required that defendants use
“the minimal amount of force . . . necessary to achieve the desired results.”
Furthermore, the TDCJ use of force policy specifically provides that “the
immediate response may be to use a higher level of force” when justified. Hall
provides no evidence that an aerosol spray alone would have achieved the
desired result. Indeed, a higher level of force was certainly justified given the
danger he placed himself and others in by climbing the ceiling rafters and
refusing multiple orders to come down. Because Hall fails to raise a genuine
dispute of material fact with respect to his excessive force claim against Daigle,
Rodriguez, and McKee, the district court’s grant of summary judgment is
affirmed. See FED. R. CIV. P. 56(a).
      E.    Motion for Discovery
      Hall argues that the district court erred in denying his motion to compel
discovery as moot when it granted summary judgment; however, he makes no
effort to show how additional discovery would defeat the summary judgment



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                                 No. 18-20551

motion filed by Daigle, Rodriguez, and McKee. Because Hall relies on vague
assertions regarding the need for additional discovery, he has failed to show
that the district court abused its discretion in denying his pending motion to
compel as moot. See Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267
(5th Cir. 1991) (“The nonmoving party must show how the additional discovery
will defeat the summary judgment motion . . . and may not simply rely on vague
assertions that additional discovery will produce needed, but unspecified
facts.” (internal quotation marks omitted)).
      F.    Conclusion
      Based on the foregoing, the judgment of the district court is AFFIRMED.
Further, because Hall has not shown that his case presents exceptional
circumstances, his motion for the appointment of counsel is DENIED. Naranjo
v. Thompson, 809 F.3d 793, 799 (5th Cir. 2015).




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