    Case: 17-20418    Document: 00514918313     Page: 1   Date Filed: 04/16/2019




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


                                 No. 17-20418
                                                                         FILED
                                                                     April 16, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk

MICHAEL BOURNE,

                                           Plaintiff–Appellant,

versus

MICHAEL GUNNELS, Lieutenant; CARLOS A. APPLEWHITE, Sergeant;
ANTHONY HOWARD, JR., Sergeant;
ROLAND C. WEAVER, Correctional Officer;
ROBERT LEBLANC, Correctional Officer; ERNEST PRICE;
TAJUDEEN AJISEFINI; SASCHA FORD,

                                           Defendants–Appellees.




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




Before KING, SMITH, and WILLETT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Michael Bourne, proceeding pro se, sued prison officers under 42 U.S.C.
§ 1983 for excessive force, failure to intervene, deliberate indifference, and
retaliation claims arising from use of force during his confinement. The district
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                                 No. 17-20418
court granted summary judgment to defendants, determining that (1) Bourne’s
claims for monetary damages against the defendants in their official capacities
are precluded by the Eleventh Amendment, (2) his excessive-force claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny, or, alter-
natively, (3) defendants are entitled to qualified immunity (“QI”) from his
claims because he did not establish a constitutional violation.

      Bourne appeals on his excessive-force claim, maintaining that Heck has
“no bearing” and that the court “improperly evaluated the evidence in a light
most favorable to [d]efendants” and “disregarded [his] evidence creating a
material dispute of fact” on QI. We reverse and remand.

                                       I.
      On November 21, 2014, Bourne was standing at his cell door asking to
speak with a Captain Norman regarding some money removed from his inmate
trust fund account. Bourne had taken control of the food-tray slot to his cell
“and refused to relinquish it,” jamming the slot with a sheet and towels, cov-
ering the windows to his cell with a sheet, and turning off his cell’s light.
Consequently, a supervisory official, Captain Vincent, authorized a use of force
to regain control of the door. Lieutenant Michael Gunnels assembled a five-
person team to use a chemical agent and force, if necessary, to extract Bourne
and regain control of the door. Gunnels’ team consisted of Officers (1) Anthony
Howard, Jr., (2) Ernest Price, (3) Tajudeen Ajisefini, (4) Robert LeBlanc, and
(5) Roland Weaver. Officer Sascha Ford recorded the use of force.

      Immediately upon arriving at the cell, Gunnels, at least three times,
ordered Bourne to surrender control of the food-tray slot, warning that he
would use a chemical agent and that officers would enter the cell if Bourne did
not acquiesce. Bourne failed to comply, so Gunnels employed the chemical
agent, spraying it through the open food-tray slot for five seconds and using
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                                  No. 17-20418
about half a canister. While the officers waited for the chemical agent to take
effect for about five minutes, Bourne yelled, cursed, taunted the officers, and
invited them to enter the cell and beat him.

      Bourne refused to relinquish control of the food-tray slot and cursed at
the officers. They tried to open the cell door, but Bourne had jammed it shut.
When the officers finally managed to open it about seven minutes after deploy-
ing the chemical agent, Bourne did not retreat from the door but attempted to
block the lead officer from entering. The officers entered to restrain Bourne,
repeatedly ordering him to “stop resisting.” From the video, it is impossible to
discern what occurred during the actual use of force inside the cell because the
lights are off and Gunnels stands in the cell doorway during much of the
altercation.

      Within five minutes of entering the cell, the officers subdued Bourne and
restrained his arms and legs. He exited the cell under his own power, and the
officers escorted him to a nearby infirmary room for a use-of-force physical
examination by a healthcare provider. Bourne was wearing a pair of white
shorts covered in orange chemical spray and a pair of shoes and was bleeding
from a small cut above one eye.

      During the medical examination, Bourne complained that an officer had
struck him in the face and grabbed his genitals. The nurse noted a scratch
above Bourne’s left eye, swelling near his eyes, and minor abrasions to his back
consistent with being taken down to the floor. Bourne refused to open his eyes,
stating that they were swollen from the chemical agent and an officer’s having
gouged them. When Gunnels asked Bourne about other injuries, Bourne com-
plained that his testicles were burning from the chemical agent on his shorts.

      As he was escorted from the infirmary room to his cell, Bourne continued
to yell and curse at the officers, inciting other inmates to do the same. While
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                                   No. 17-20418
Bourne and the officers waited in the hallway for his cell to be decontaminated,
he joked with another inmate who was yelling at the officers. Following the
decontamination, officers returned Bourne to his cell. In the video, no chemical
agent is visible on the door, the closed food-tray slot, the cell walls, or the floor.
Finally, Gunnels instructed Bourne to decontaminate himself by washing with
cold water and gave him oral and written instructions concerning his oppor-
tunity to provide a statement about the use of force.

      Defendants contend that after entering the cell, they “used the minimum
amount of force necessary to gain compliance,” which bore “a direct relation-
ship to the level of resistance presented by [Bourne] as well as the threat he
presented due to his size and history of non-compliance.” In the use-of-force
report reviewing the incident, defendants uniformly state that Bourne resisted
them and fought the team. Conversely, Bourne focuses on the force he asserts
the officers used after he was “handcuffed & shackled” on his cell’s floor and
“not a threat.” He maintains that defendants used excessive force at this point
by “physically & sexually assaulting” him, punching him, squeezing and twist-
ing his genitals, and sticking a finger into his anus.

                                         II.
      Bourne sued Gunnels, Sergeant Carlos Applewhite, Howard, Weaver,
LeBlanc, Price, Ajisefini, and Ford under § 1983 seeking compensatory and
punitive damages for excessive force, failure to intervene, deliberate indiffer-
ence, and retaliation. Specifically, Bourne alleged that (1) Gunnels sprayed
him with an entire can of chemical agent, ordered the other officers to continue
the use of force after Bourne submitted, and did not stop an officer from
returning Bourne to his cell contaminated with chemical agent; (2) Howard
punched him in the face and body, “slammed” his face into the floor, rubbed his
face in the chemical agent on the floor, and when he was restrained, gouged

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                                 No. 17-20418
his eyes and punched him in the head; (3) Weaver punched him in the face and
body before he was restrained, and after he was restrained, punched him in
the head and back, stuck a gloved finger covered in chemical agent into his
anus through his boxer shorts, and retaliated against him for filing a sexual
harassment grievance against Weaver; (4) LeBlanc punched him in the face
and body before he was restrained, and after he was restrained, “grabbed [his]
genitals through [his] boxers, and roughly squeezed and twisted them”;
(5) Price and Ajisefini punched him in the face and body before he was re-
strained and continued to do so after he was restrained; (6) Applewhite did not
intervene when the other officers used excessive force, returned him to his cell
despite it being contaminated with chemical agent, refused to give him clean-
ing supplies, and did not allow him to shower; and (7) Ford failed to intervene
and did not record the entire incident.

      Defendants moved for summary judgment, contending that (1) they had
immunity from Bourne’s claims in their official capacities under the Eleventh
Amendment, (2) Heck bars Bourne’s § 1983 claims, and (3) they were entitled
to QI on all claims. Bourne opposed the motion, which the district court
granted.

      First, the court determined that Bourne’s claims seeking monetary
damages against defendants in their official capacities were precluded by the
Eleventh Amendment, which “bars an action in federal court by a citizen of a
state against his or her own state, including a state agency.” Second, the court
held that Heck and its progeny bar Bourne’s excessive-force claims because his
success on those claims necessarily would imply the invalidity of his disciplin-
ary conviction for creating a disturbance that resulted in the use of force.

      Alternatively, the court held that defendants were entitled to QI on the
excessive-force claims.   Examining the summary judgment evidence and

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                                  No. 17-20418
methodically analyzing the five factors from Hudson v. McMillian, 503 U.S. 1
(1992), the court found that “defendants applied limited force” in response to
Bourne’s repeated flouting of orders “and that the force used was done in a
good faith effort to maintain or restore discipline and not maliciously or sadis-
tically to inflict pain or to use force in excess of the need.” Furthermore, under
the same factors, defendants’ actions were objectively reasonable. Bourne thus
failed to show “that excessive force was used in violation of the Eighth
Amendment.”

      Third, the court determined that because Bourne could not show exces-
sive force, he also could not demonstrate liability for failure to intervene to stop
the use of excessive force. Fourth, the court found that defendants’ video evi-
dence contradicted Bourne’s Eighth Amendment conditions-of-confinement
claim, namely, that Applewhite returned him to his cell while it was still con-
taminated with chemical agent. The video shows that Bourne waited in the
hallway with the officers while his cell was cleaned off-camera and was re-
turned to that cell only after Gunnels announced that it was decontaminated.
No orange chemical agent is visible on the door, food-tray slot, cell walls, or
floor recorded in the video. Therefore, the court concluded, Bourne failed to
raise a genuine dispute of material fact to overcome defendants’ assertion of
QI on this claim.

      Fifth, the court determined that “[t]he record does not support Bourne’s
claim that” Weaver violated his First Amendment rights by retaliating against
him for filing a grievance against Weaver. Bourne did not report Weaver’s
alleged insertion of his finger into Bourne’s anus during the post-use of force
medical examination, and the record establishes that “Bourne’s recalcitrant
non-compliance with direct orders” required use of force.           Consequently,
Bourne did not establish a constitutional violation, and his “conclusory

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                                  No. 17-20418
allegations to the contrary” regarding retaliatory intent or causation were
insufficient to overcome QI.

                                       III.
      On appeal, Bourne challenges only the summary judgment on his exces-
sive force claims on the grounds that they are barred by Heck and that defen-
dants are entitled to QI. We review “de novo a . . . summary judgment, apply-
ing the same standard as the district court.” Austin v. Kroger Tex., L.P.,
864 F.3d 326, 328 (5th Cir. 2017) (per curiam).

      “A qualified immunity defense alters the usual summary judgment bur-
den of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Once a
government official asserts QI, the burden shifts to the plaintiff to “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.” Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008). “[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 [QI] when it is ‘bla-
tantly 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 (2007).

      Bourne appeals pro se. “A document filed pro se is to be liberally con-
strued, and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and
citation omitted). “Although we liberally construe the briefs of pro se appel-
lants, we also require that arguments must be briefed to be preserved.” Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (citation omitted).
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                                            IV.
       A plaintiff asserting a § 1983 claim may not “recover damages for alleg-
edly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid,”
unless he “prove[s] that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486–87. Heck’s
principle extends to disciplinary convictions. 1 Heck, however, “is not . . . impli-
cated by a prisoner’s challenge that threatens no consequence for his [under-
lying] conviction or the duration of his sentence.” 2

       Bourne contends that Heck has “no bearing on this case” because he has
“no interest in good time credits because of his incarceration for an aggravated
charge.” Liberally construing Bourne’s appellate contentions, and reviewing
this question of law de novo, United States v. Martinez, 151 F.3d 384, 390 (5th
Cir. 1998), we determine that Heck and its progeny do not bar Bourne’s exces-
sive force claims.

       Bourne was convicted of tampering with his cell door and creating a
disturbance in connection with the use of force, resulting in a forfeiture of
thirty days’ good-time credit. The district court determined that Heck bars the
excessive-force claims because, “if true, [they would] implicate the validity of
his disciplinary conviction for creating the disturbance that resulted in the use



       1 Edwards v. Balisok, 520 U.S. 641, 646–48 (1997) (holding challenge to disciplinary
conviction resulting in loss of good time credits was barred by Heck because success would
imply invalidity of punishment).
       2 Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam). “[T]he incarceration
that matters under Heck is the incarceration ordered by the original judgment of conviction,
not special disciplinary confinement for infraction of prison rules.” Id. at 751 n.1.
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                                        No. 17-20418
of force.” To the contrary, Bourne’s § 1983 excessive-force claims implicate nei-
ther the validity of his underlying conviction nor the duration of his sentence.

       Bourne’s underlying conviction is for aggravated assault with a deadly
weapon. A finding of excessive force here would have no bearing on that con-
viction. Nor would it negate his disciplinary conviction, potentially affecting
the duration of his sentence by restoring his good time credits. Bourne was
disciplined for “[t]ampering with a locking mechanism or food tray slot” and
“[c]reating a [d]isturbance” resulting from his jamming the food-tray slot to his
cell and refusing to relinquish it, thereby requiring the use of force by prison
officials. Conversely, the § 1983 excessive-force claims arise from the specific
force defendants used after he was restrained on his cell floor. The basis of
Bourne’s § 1983 excessive-force claims, therefore, is distinct from the basis of
his disciplinary conviction. A finding of excessive force would not negate the
prison’s finding that Bourne violated its policies and was subject to disciplinary
action as a result. A ruling in Bourne’s favor on his excessive-force claims
would not affect his underlying conviction, his disciplinary conviction, or the
duration of his sentence.          Accordingly, Heck and its progeny do not bar
Bourne’s excessive-force claims. 3

                                               V.
       Regarding QI, “the core judicial inquiry” “whenever prison officials stand
accused of using excessive physical force in violation of the Cruel and Unusual
Punishments Clause” is “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.”



       3  See, e.g., Mosley v. White, 464 F. App’x 206, 210–11 (5th Cir. 2010) (per curiam). “The
district court erred in determining that [plaintiff’s] excessive force claim was barred by Heck
and Edwards” because “[s]uccess in the instant action would not affect the validity of [his]
underlying conviction or the duration of his sentence.” Id. at 211.
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Hudson, 503 U.S. at 6–7. Courts analyze (1) “the extent of [the] injury suf-
fered,” (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. at 7 (internal quotation marks and citation omitted);
see also Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).

      “The amount of force that is constitutionally permissible . . . must be
judged by the context in which that force is deployed.” Ikerd v. Blair, 101 F.3d
430, 434 (5th Cir. 1996). Courts must “decide excessive force claims based on
the nature of the force rather than the extent of the injury.” Wilkins v. Gaddy,
559 U.S. 34, 34 (2010) (per curiam). An inmate need not establish a “significant
injury” to pursue an excessive force claim because “[i]njury and force . . . are
only imperfectly correlated, and it is the latter that ultimately counts.” Id.
at 37–38.

      Bourne asserts that “whether or not [he] initially violated prison rules
and provoked the [d]efendants is irrelevant, because [he] alleged, and pre-
sented evidence to show, that several [d]efendants participated in physically
& sexually assaulting [him] while he was on the cell floor, handcuffed & shack-
led, and not a threat at that point.” Viewing the evidence in the light most
favorable to Bourne and making all inferences in his favor, we conclude that
he has demonstrated a genuine dispute of material fact, namely, whether the
force employed after he was restrained on his cell floor was used “in a good
faith effort to maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm.” Hudson, 503 U.S. at 6 (citation omitted).

      Defendants submitted their motion for summary judgment together with
a video recording, a use-of-force assessment report reviewing the incident, and
relevant portions of Bourne’s medical and disciplinary records. In the use-of-

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force report, defendants uniformly state that Bourne resisted them and fought
the team, thus necessitating force to subdue him. Responding to the motion
for summary judgment, Bourne contested that characterization, asserting that
“several [d]efendants hit him in the head and body while he was on the ground
and handcuffed” and “non[-]resistant.” He supported those contentions with
his own sworn declaration, medical records documenting his injuries resulting
from the use of force, and unsworn declarations of inmates who allegedly wit-
nessed the event, including one that states “Bourne stopped resisting . . . , but
officers continued their . . . attacks . . . while . . . [he] was laying face down.”

      To the extent that the district court considered Bourne’s specific claims
regarding the force defendants used after he was restrained on the floor of his
cell, it appeared to discredit Bourne’s summary judgment rebuttal evidence
without reference to video evidence that “blatantly contradicted” or “utterly
discredited” that evidence. As the court acknowledged, “[b]ecause Bourne had
turned out the lights in the cell, the ensuing altercation cannot be seen from
the hallway.” Bourne’s cell was “completely dark,” and “Gunnels stood in the
doorway to the cell for most of the use of force,” blocking the camera’s view.
Our own review of the video confirms that it is impossible to tell what occurred
during the use of force.

      As stated, we must view the evidence in the light most favorable to
Bourne, drawing all inferences in his favor, so long as they are not “blatantly
contradicted” or “utterly discredited” by a video recording. The video does not
depict what occurred during the five minutes between defendants’ entering the
cell and Bourne’s leaving it. Though the video and other materials defendants
submit in support of their motion for summary judgment may well establish
the constitutionality of defendants’ use of force before entering the cell, or their
use of force in taking Bourne to the ground, they do not resolve all genuine

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disputes of material fact regarding the use of force after Bourne was restrained
in his cell.

       Bourne and defendants offer competing versions of what occurred during
the use of force and whether defendants applied force after Bourne stopped
resisting and was restrained. Defendants assert that Bourne resisted, thus
requiring the use of force in a good faith effort to maintain or restore discipline,
a contention that is supported by the defendants’ yelling “stop resisting” in the
video recording. But Bourne opposes those characterizations with his own
sworn declaration and the unsworn declarations of other inmates, asserting
that because he was restrained and not resisting, the use of force was malicious
and sadistic for the very purpose of causing harm. The video does not resolve
the dispute, so there remains a genuine dispute of material fact.

       The summary judgment is REVERSED and REMANDED for further
consideration as we have explained. We place no limitation on what matters
the district court can consider, or what decisions it should make, on remand.
We express no view on the ultimate merits.




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