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

                                                                    FILED
                                                                 February 18, 2013

                                  No. 12-20063                     Lyle W. Cayce
                                                                        Clerk

BRUCE A. ROGERS,

                                             Plaintiff-Appellant
v.

SHAWNA TALBOT BOATRIGHT, Supervisor, Texas Department of Criminal
Justice-Correctional Institution Division; JOSE L. GARCIA, JR.,
Transportation Driver, Security; HERBERT J. GARCIA, Transportation
Driver, Security,

                                             Defendants-Appellees



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before JOLLY, JONES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Bruce A. Rogers, Texas prisoner # 566928, appeals the district court’s sua
sponte dismissal of his civil rights complaint as frivolous and for failure to state
a claim upon which relief may be granted. We REVERSE in part, AFFIRM in
part, and REMAND for further proceedings not inconsistent with this opinion.
                        FACTS AND PROCEEDINGS
      Rogers filed a pro se civil rights complaint in the district court, naming as
defendants corrections officers Jose L. Garcia, Jr. and Herbert J. Garcia, and
their supervisor, Shawna T. Boatright. Rogers complained that he was seriously
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                                      No. 12-20063

injured when the prison van in which he was riding stopped abruptly, and that
he was provided with inadequate and untimely medical care for his injuries.
       The following factual statements are in Rogers’s affidavit appended to the
complaint. On the morning of June 10, 2008, Jose Garcia and Herbert Garcia
were transporting Rogers to the Houston Veterans Hospital (“V.A. hospital”) in
a prison van. Jose Garcia was driving the van recklessly, darting in and out of
traffic at high speeds while Rogers was caged in the back. Rogers sat on a
narrow bench that ran the length of the caged portion of the van, shackled in leg
irons and handcuffs that were attached together by a chain. There was no
seatbelt. At one point, Garcia was driving so fast that he had to brake hard to
avoid hitting a vehicle in front of him. Rogers was thrown head-first into the
end of the cage. He could not break his fall because of his leg irons and
handcuffs. Rogers sustained head, neck, spinal, vision, and hand injuries. There
was a three-inch laceration on his scalp and his hand was gouged open to the
bone. He was bleeding profusely. When asked if he was okay, he responded “No,
you got me pretty good, I’m bleeding everywhere.”
       Jose Garcia continued on to the V.A. hospital without stopping to check
Rogers’s condition. He called the prison dispatch to report the incident. The
dispatch instructed Garcia to run Rogers through the V.A. hospital, since they
were already there. A V.A. physician interviewed Rogers and instructed Jose
Garcia and Herbert Garcia, “when [the physician] finished with the interview,
x-rays and blood tests[,] to take [Rogers] to the emergency room and EM [sic]
would take care of [Rogers’s] open bleeding wounds.”1 Jose Garcia did not reply
to the physician’s instruction. Instead of taking Rogers to the emergency room,
the officers took him back to the medical department at the Wayne Scott Unit,


       1
        It appears that there were no x-rays or blood work performed on Rogers that day. In
his opening appellate brief, Rogers seems to indicate that the physician only interviewed him
and intended for the x-rays and blood work to be performed in the emergency room.

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                                      No. 12-20063

resulting in a five-and-a-half hour delay in the treatment of his injuries. Upon
their return to the prison unit, “Officer Courtney asked if these type[s] of
incidents occurred often and [Garcia] stated ‘Yes’ that just the week before there
had been a [similar] incident where ‘Six’ other inmates were injured due to
having to slam on the brakes. He said, ‘it happens all the time, isn’t a big deal.’”
Rogers is still being treated for serious injuries to his back and for vision
problems resulting from the incident.
       The district court permitted Rogers to proceed in forma pauperis (IFP).
In its initial screening of the case, the court determined that Rogers’s complaint
was frivolous and failed to state a claim upon which relief may be granted. The
court concluded that Rogers’s allegations with respect to Jose Garcia’s unsafe
driving merely asserted a claim of negligence or gross negligence and did not
raise a constitutional claim. The court also concluded that Rogers had failed to
allege facts showing that the defendants had acted with deliberate indifference
to his serious medical needs or that Rogers’s medical condition was worsened by
the delay in treatment. Before the defendants filed any responsive pleadings,
the court sua sponte dismissed the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B).2 Rogers gave timely notice of his appeal, and he has paid the
appellate filing fee.




       2
        28 U.S.C. § 1915(e)(2) applies to IFP proceedings and states, in pertinent part, the
following:
       Notwithstanding any filing fee, or any portion thereof, that may have been paid,
       the court shall dismiss the case at any time if the court determines that . . . the
       action or appeal—
              (i) is frivolous or malicious;
              (ii) fails to state a claim on which relief may be granted; or
              (iii) seeks monetary relief against a defendant who is immune from such
              relief.



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                                  DISCUSSION
A. Standard of Review
      This court reviews the dismissal of a civil rights complaint as frivolous for
an abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). A
dismissal of a civil rights complaint for failure to state a claim is reviewed de
novo, using the same standard applicable to dismissals under Federal Rule of
Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
Under that standard, a complaint fails to state a claim upon which relief may be
granted when it does not contain “sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quotation omitted). Allegations of pro se complaints are held to
less stringent standards than formal pleadings drafted by lawyers. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
B. Analysis
      “To plead a constitutional claim for relief under § 1983, [a plaintiff must]
allege a violation of a right secured . . . by the Constitution or laws of the United
States and a violation of that right by one or more state actors.” Johnson v.
Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). Under 28 U.S.C. §
1915(e)(2)(B)(i) & (ii), the district court shall dismiss an IFP complaint at any
time if it determines that the complaint is frivolous or malicious or fails to state
a claim upon which relief may be granted. See Jones v. Bock, 549 U.S. 199, 202
(2007) (holding that Prison Litigation Reform Act mandates early judicial
screening of prisoner complaints). “A complaint is frivolous if it lacks an
arguable basis in law or fact. A complaint lacks an arguable basis in law if it is
based on an indisputably meritless legal theory, such as if the complaint alleges
the violation of a legal interest which clearly does not exist.” Berry, 192 F.3d at
507 (quotations omitted). “A complaint lacks an arguable basis in fact if, after



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                                       No. 12-20063

providing the plaintiff the opportunity to present additional facts when
necessary, the facts alleged are clearly baseless.” Id. (quotation omitted).
       Under the Eighth Amendment, conditions of confinement in state prisons
must be “humane” and “must not involve the wanton and unnecessary infliction
of pain.” Palmer v. Johnson, 193 F.3d 346, 351-52 (5th Cir. 1999) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981), and Farmer v. Brennan, 511 U.S.
825, 832 (1994)). Eighth Amendment claims have objective and subjective
components.       Id. at 352.      The deprivation alleged must be “objectively,
sufficiently serious,” and the prison official sued must have a sufficiently
culpable state of mind—that is, the official must have been deliberately
indifferent to the prisoner’s health and safety. Id. (quoting Farmer, 511 U.S. at
834). “To establish deliberate indifference, the prisoner must show that the
defendants (1) were aware of facts from which an inference of an 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.” Id. (quotation omitted).3
       1. Whether the district court erred in sua sponte dismissing as frivolous
       and for failure to state a claim Rogers’s claim that a corrections officer,
       knowing that Rogers was shackled and without a seatbelt in a prison van’s
       security cage, acted with deliberate indifference to Rogers’s safety by
       driving the van recklessly.
       The district court erred in sua sponte dismissing at the initial screening
stage Rogers’s claim that Jose Garcia acted with deliberate indifference to his
safety. Rogers alleged in his complaint that he was not provided with a seatbelt
and that he could not protect himself when the prison van stopped abruptly
because he was shackled in leg irons and handcuffs. He alleged that Jose Garcia
knew that other prisoners had been injured when the prison van in which they

       3
        Rogers has failed to brief his claims against Shawna Boatright and has therefore
waived his claims against her. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Fed.
R. App. P. 28(a)(9) (requiring brief to contain contentions, reasons for them, and citations to
authority and record).

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                                 No. 12-20063

were riding stopped abruptly. Notwithstanding that knowledge, Garcia drove
the van recklessly and Rogers sustained serious injuries when Garcia had to
brake suddenly to avoid hitting another vehicle.
      In Crumbliss v. Darden, 469 F. App’x 325 (5th Cir. Mar. 27, 2012)
(unpublished), a prisoner alleged that he was injured while riding in a prison
van. Crumbliss, 469 F. App’x at 326-27. The prisoner was in a wheelchair with
a halo brace on his leg because of a prior injury. Although the defendant prison
guards knew that there were no tie-down straps in the van for the wheelchair,
the defendant supervisor instructed the guards to use the van to transport the
prisoner. The prisoner’s leg was re-injured when the chair was jostled because
of the way the van was driven by one of the guards. The prisoner sued the two
guards and their supervisor, alleging that the defendants had acted with
deliberate indifference to his safety.       The defendants moved for summary
judgment. In granting the motion, the district court held that the prisoner had
not shown that the defendants knew subjectively that the prisoner had been
placed at substantial risk of serious harm. We held that the summary judgment
evidence supported the district court’s conclusion that the defendants had not
acted with deliberate indifference.
      In Cooks v. Crain, 327 F. App’x 493 (5th Cir. May 15, 2009) (unpublished),
a prisoner complained that he was being transported in vehicles that lacked
seatbelts. Cooks, 327 F. App’x at 493. In affirming the dismissal of the civil
rights complaint as frivolous, we reasoned that the inmate’s complaint did not
concern a present and continuing harm but merely asserted “the need for an
extra measure of safety against the possibility of harm.”             Id. at 494
(distinguishing Helling v. McKinney, 509 U.S. 25, 35 (1993) (holding that
prisoner stated an Eighth Amendment claim by alleging that prison officials had
acted with deliberate indifference to his exposure to second-hand tobacco
smoke)); see also Bell v. Norwood, 325 F. App’x 306, 307-08 (5th Cir. Apr. 13,

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2009) (unpublished) (affirming dismissal of civil rights claim because inmate did
not show that prison officials infringed his constitutional rights by transporting
him in a vehicle without seatbelts).
      In Jabbar v. Fischer, 683 F.3d 54 (2d Cir. 2012) (citing Cooks and
distinguishing Brown v. Fortner, 518 F.3d 552 (8th Cir. 2008)), the Second
Circuit held that the failure of supervisory prison officials to provide seatbelts
to inmates riding in prison vehicles, standing alone, does not violate an inmate’s
Eighth Amendment rights.
      The Eight Circuit, however, has allowed claims to proceed with facts more
similar to those now before us—namely, the additional allegation of reckless
driving. In Brown, an inmate sued the driver of a prison van, alleging that he
was injured when the driver operated the van recklessly after refusing to buckle
the inmate’s seatbelt. Brown, 518 F.3d at 559-60. The inmate was unable to
buckle the seatbelt himself because he was shackled. The Eighth Circuit
affirmed the district court’s order denying the defendant driver’s claim to
qualified immunity and motion for summary judgment. Id. at 559-60.
      Rogers alleged that he sustained a serious injury because Jose Garcia
operated the prison van recklessly, knowing that there was a substantial risk
that Rogers would be injured if the van stopped abruptly because Rogers was
shackled in leg irons and handcuffs and was not provided with a seatbelt.
Rogers’s allegation that Jose Garcia told another officer that other inmates
similarly had been injured the prior week and during other incidents, which
“happen[] all the time,” states more than mere negligence. Garcia’s alleged
statement, if true, is sufficient to demonstrate that he knew of the risk to
Rogers. See Palmer, 193 F.3d at 352.
      Our holdings in Cooks and Bell and the Second Circuit’s holding in Jabbar
are distinguished because those cases did not involve the additional allegation
that the prisoner was injured when the defendant operated the prison vehicle

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                                       No. 12-20063

recklessly knowing of the danger to the prisoner. Our holding in Crumbliss is
also distinguished because the complaint there was dismissed after the
defendant’s motion for summary judgment, and not at the initial pleading stage.
We should note, however, that although persuasive and deserving respect, we
are not bound by these decisions.4
      In the light of these distinctions, Rogers has a nonfrivolous argument that
Jose Garcia violated his Eighth Amendment right to freedom from cruel and
unusual punishment by acting with deliberate indifference to his safety. See
Brown, 518 F.3d at 559-60. Thus, the district court abused its discretion in sua
sponte dismissing this claim against Jose Garcia at the initial screening stage
and before the filing of any responsive pleadings, and we remand for further
proceedings not inconsistent with this opinion. We, of course, express no opinion
on the ultimate merits of Rogers’s claim.
      2. Whether the district court erred in sua sponte dismissing Rogers’s
      denial of medical care claim, when corrections officers ignored a
      physician’s orders to take Rogers to the emergency room and instead drove
      him back to the prison to visit the medical department.
      The district did not err in sua sponte dismissing Rogers’s denial of medical
care claim against Jose Garcia and Herbert Garcia.
      Prisoners are entitled to receive “‘adequate . . . medical care.’” Easter v.
Powell, 467 F.3d 459, 463 (5th Cir. 2006) (quoting Farmer, 511 U.S. at 832). “A
prison official violates the Eighth Amendment’s prohibition against cruel and
unusual punishment when his conduct demonstrates deliberate indifference to
a prisoner’s serious medical needs, constituting an ‘unnecessary and wanton
infliction of pain.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). “A
prison inmate can demonstrate an Eighth Amendment violation by showing that
a prison official refused to treat him, ignored his complaints, intentionally


      4
          Our decisions in Cooks, Bell, and Crumbliss are non-precedential.

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                                  No. 12-20063

treated him incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs. ” Id. at 464 (quotation
omitted).
      Again, there is both an objective and subjective standard. “A prison
official acts with deliberate indifference ‘only if [(A)] he knows that inmates face
a substantial risk of serious bodily harm and [(B)] he disregards that risk by
failing to take reasonable measures to abate it.’” Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006) (quoting Farmer, 511 U.S. at 847) (holding that prisoner
failed to demonstrate that a physician disregarded a known substantial health
risk, as required to establish deliberate indifference to serious medical need).
“Unsuccessful medical treatment, acts of negligence, or medical malpractice do
not constitute deliberate indifference, nor does a prisoner’s disagreement with
his medical treatment, absent exceptional circumstances.” Id. “[D]elay in
medical care can only constitute an Eighth Amendment violation if there has
been deliberate indifference that results in substantial harm.” Easter, 467 F.3d
at 464 (quotation omitted).
      Rogers does not dispute that he was examined and treated by a physician
after he was returned by Jose Garcia and Herbert Garcia to his prison unit.
Nevertheless, he complains that the prison physician’s examination was
perfunctory and that his injuries were dismissed as superficial. He states for the
first time on appeal that the extent of his injuries was only fully discovered more
than a year after the incident when an MRI was performed, and that prison
officials have refused to give him morphine as prescribed by his treating
neurologist.
      Because Rogers has not sued any medical personnel, the only issue is
whether Jose Garcia and Herbert Garcia acted with deliberate indifference to
Rogers’s medical condition by transporting him to the prison medical department
instead of taking him for immediate evaluation and treatment in the V.A.

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                                  No. 12-20063

hospital emergency room. Rogers’s argument, liberally construed, is that the
severity of his injuries would have been discovered earlier, and further
exacerbation could have been prevented, if the officers had taken him to the
emergency room as ordered by the V.A. physician.
      The district court concluded that Rogers had not alleged facts from which
it could be concluded that the officers knew that ignoring the V.A. physician’s
orders and taking Rogers instead to the prison medical department would pose
a substantial risk of serious harm to Rogers, or that the five-hour delay that
resulted from their decision to take Rogers to the prison medical department had
resulted in substantial harm.
      We agree with the district court that the officers did not show deliberate
indifference regarding Rogers’s denial of medical treatment claim. Moreover,
because the officers took Rogers to see a V.A. hospital physician after the
incident and transported him subsequently to the prison medical department for
treatment, they did not act with wanton disregard for Rogers’s serious medical
condition. See Easter, 467 F.3d at 464. Therefore, the district court did not err
in sua sponte dismissing Rogers’s denial of medical care claim.
      3. Whether the district court erred in dismissing the denial of medical care
      claim without giving Rogers an opportunity to file an amended complaint.
      Rogers argues that he should have been given an opportunity to state a
more definite claim prior to dismissal of his complaint under § 1915(e)(2)(B)(i)
& (ii). He contends that the district court should have notified him that it was
considering dismissing his complaint, and that he could have amended his
complaint to clarify that it was not based on a claim of negligence, to show that
the defendants acted under color of state law, and to further demonstrate that
his injuries were sufficiently serious.
      As for the claim regarding Rogers’s injury in the van, this issue is moot.
As for the denial of medical care claim, Rogers has not shown on appeal that he


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                                  No. 12-20063

could have alleged in an amended complaint any additional facts that would
have precluded the district court from reaching its conclusion. Therefore,
allowing Rogers to amend his complaint regarding this claim would have been
futile, and the district court did not err in declining to provide leave to file an
amended complaint. See Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir.
2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)) (listing futility of
amendment as one of five possible reasons to deny leave to amend complaint);
Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 111 (3d Cir. 2002) (holding
in Prison Litigation Reform Act context that, even if plaintiffs do not seek leave
to amend, “plaintiffs whose complaints fail to state a cause of action are entitled
to amend their complaint unless doing so would be inequitable or futile.”).
                                CONCLUSION
      For the foregoing reasons, we REVERSE in part, AFFIRM in part, and
REMAND for further proceedings not inconsistent with this opinion.




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                                   No. 12-20063

EDITH H. JONES, Circuit Judge, dissenting.

      With due respect to my colleagues, I dissent from the holding that Rogers’
conclusory statements about reckless driving by Officer Jose Garcia suffice to
plead an Eighth Amendment claim for deliberate indifference. My concerns may
be easily listed.
      First, there is no constitutional requirement that inmates be buckled with
seatbelts during transportation. Nearly all courts have rejected such claims,
because the use of seatbelts on shackled prisoners presents inevitable,
non-trivial security concerns for other passengers and the guards. See Jabbar
v. Fischer, 683 F.3d 54, 58 (2d Cir. 2012) (citing cases).
      Second, this prisoner’s allegations of “reckless driving” are factually
insufficient to meet the demanding constitutional standard and pleading
requirements. To establish deliberate indifference, the prisoner must show that
the prison official knew of and disregarded an excessive risk to inmate health or
safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994). The
prisoner must show both that the official was aware of facts from which the
inference could be drawn that a substantial risk of serious harm existed and that
the official actually drew the inference. Id. The prisoner’s pleadings, moreover,
must allege “sufficient factual matter, accepted as true, to state a claim for relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1970, 1949 (2009) (internal quotation marks and citation omitted).
      Rogers’ allegations of Garcia’s excessive speed, reckless driving, and
darting in and out of traffic are conclusory, because he was seated in the back
of a prison van, where his view of surrounding traffic had to be obstructed: the
majority explain that he was seated perpendicular to oncoming traffic. Unlike
the prisoner in the Brown case, relied on by the majority, he neither requested
a seatbelt nor urged Jose Garcia to drive slower or more carefully. That Garcia


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“recklessly” caused the collision is even more doubtful, as Rogers states in his
appellate brief that “Garcia was forced to slam on the transport van’s brakes to
avoid rear-ending a vehicle stopped in the freeway early morning traffic.”
Taking this statement as an addendum to Rogers’s pleadings, two implications
are possible. Either Garcia, even though negligent in his driving, responded to
an unusual, unanticipated situation, negating the inference that he knew a
serious risk of substantial harm to Rogers existed; or Rogers’s allegations lack
sufficient factual detail from which an inference of recklessness can fairly be
drawn.
      Similarly lacking are factual allegations that Garcia was actually aware
of a substantial risk of serious harm to Rogers in these circumstances. The only
alleged corroboration to Rogers’ conclusion is Garcia’s statement that prisoners
have been injured during transportation in other instances. This statement,
however, says nothing about whether Garcia was the driver on those occasions,
nothing about whether actual reckless driving occurred, nothing about the type
or extent of injuries sustained, nothing about driving conditions, and nothing
about the use of seatbelts. Thus, I disagree that Garcia’s statement can be
taken to indicate the heightened state of culpability inherent in a constitutional
violation. As the Supreme Court holds, “[An] official’s failure to alleviate a
significant risk that he should have perceived, but did not . . . [cannot] be
condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.
      Lack of seatbelts alone, as the majority concede, does not pose “an
excessive risk to inmate health or safety.” Further, because all driving in the
congested and unpredictable traffic of the Houston metropolitan area poses some
risk, the line between negligence and unconstitutional deliberate indifference
must be securely drawn so that the Constitution does not simply become a “font
of tort law.” Daniels v. Willaims, 474 U.S. 327, 332, 106 S. Ct. 662, 665 (1986)



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(internal quotation marks and citation omitted). The only way to preserve this
distinction is to insist on careful factual allegations.
      Third, the majority’s reliance on Brown is misplaced for two reasons.
First, allegations of reckless driving were supported in that case by facts. The
facts were that the convoy drove at speeds up to 75 miles per hour; the guards
had refused multiple requests for seatbelts as the prisoners were being loaded
into the vans; the guards “taunted” the inmates about safety concerns; the vans
followed each other too closely; the vans were passing other cars when road
signs “suggested otherwise.” Brown v. Mo. Dep’t of Corr., 353 F.3d 1038, 1040
(8th Cir. 2004). No such facts are pled by Rogers. Second, the majority relies on
the second Brown decision, which denied qualified immunity to two defendants,
Brown v. Fortner, 518 F.3d 552 (8th Cir. 2008), rather than the first Brown
decision, Brown v. Mo. Dep’t of Corr., 353 F.3d 1038 (8th Cir. 2004), which
reversed a dismissal for failure to state a claim. Any unintended reference to a
denial of qualified immunity in the second Brown decision, following discovery
and summary judgment motions, is premature and inapposite to this case.
      The majority’s decision to allow this complainant to proceed is
unfortunate, but Rogers must prove far more to overcome Garcia’s likely defense
of qualified immunity and actually sustain his assertions of a constitutional
violation.




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