Almond v. Tarver, Civil Action No. 1:05-CV-009.

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Writing for the CourtCrone
Citation468 F.Supp.2d 886
PartiesJessie ALMOND, Plaintiff, v. Travis TARVER, Kevin Delord, Joe Jackson, Jr., Reginald Goings, Sedonia Stewart, Reginald Wallace, and Rizalino Reyes, Defendants.
Decision Date15 August 2006
Docket NumberCivil Action No. 1:05-CV-009.

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468 F.Supp.2d 886
Jessie ALMOND, Plaintiff,
v.
Travis TARVER, Kevin Delord, Joe Jackson, Jr., Reginald Goings, Sedonia Stewart, Reginald Wallace, and Rizalino Reyes, Defendants.
Civil Action No. 1:05-CV-009.
United States District Court, E.D. Texas.
August 15, 2006.

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COPYRIGHT MATERIAL OMITTED

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Danna Kirk Mayhall, Mayhall & Associates, Athens, TX, for Plaintiff.

Kimberly Fuchs, Office of the Attorney General, Austin, TX, for Defendants.

MEMORANDUM AND ORDER

CRONE, District Judge.


Pending before the court is Defendant Kevin DeLord's ("DeLord") First Amended Motion for Summary Judgment (# 40). Defendant seeks summary judgment on Jessie Almond's ("Almond") federal civil

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rights claims arising under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and state law tort claims for assault and battery and intentional infliction of emotional distress. Having reviewed the motion and supporting documents, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment is warranted in part.

I. Background1

At the time of the alleged events giving rise to the instant action, Almond, a white male, was incarcerated by the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ"). Almond alleges that on January 8, 2003, Travis Tarver ("Tarver"), a correctional officer, made a racial slur against him in the cafeteria of the LeBlanc Unit in Beaumont, Texas. Almond asserts that after he responded in a non-threatening manner, Tarver cursed at him and refused to listen to him. Next, Almond claims that DeLord and Joe Jackson, Jr. ("Jackson"), fellow correctional officers, involved themselves in the altercation by threatening him and escorting him to a security room. Although Almond allegedly attempted to apologize to defuse the situation, Tarver "continued to stand in a fighting stance" until pulled away by Jackson. According to Almond, DeLord then seized him by his shirt, slammed him through a sheetrock wall into an iron beam, and then threw him on the floor onto his back. Jackson supposedly observed these events, but he left the room without further action.

Following the incident, Almond was treated briefly for his injuries — a contusion to his elbow and back pain — which were not deemed to be serious by TDCJ's medical staff. In the ensuing months, however, Almond frequently complained of back pain, generating voluminous medical records as a result. Though no structural damage to his back was apparent, the medical staff treated Almond for his pain, restricted his activities to a level suitable for his reported injuries, and provided him with various prescription pain killers and anti-inflammatory drugs, with allegedly mixed results. Almond asserts that Tarver and DeLord continued to threaten and sexually harass him for "some time," during both this specific incident and throughout the duration of Almond's stay at the facility. While mental health records show that Almond participated in several therapeutic counseling sessions beginning March 11, 2003, the records do not indicate that his confrontation with DeLord was a source of significant emotional distress. Rather, the records focus on Almond's concerns regarding his forthcoming parole, reintegration into society, and difficulty coping with stress.

Almond filed a Step 1 grievance related to his altercation with DeLord on January 10, 2003, which TDCJ marked as received on January 13, 2003. On February 19, 2003, TDCJ notified Almond that it needed additional time to evaluate the grievance. Sometime thereafter, TDCJ referred the matter to the Office of the Inspector General ("Inspector General") for further investigation and disposition. No' evidence suggests that Almond filed a Step 2 grievance to appeal this referral. Almond wrote an additional letter, dated March 21, 2003, to the Inspector General, expressing his dissatisfaction at not being notified of the ultimate outcome of his grievance. On April 16, 2003, TDCJ sent Almond a reply,

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stating that his case was, still under active investigation.

During this period, TDCJ disciplined DeLord for the use of excessive force against Almond. On January 21, 2003, penalties were assessed against DeLord, including a year-long probation, a three-week unpaid suspension, and demotion from the position of Lieutenant to Correctional Officer III. On November 19, 2003, the Inspector General issued an Offense/Investigative Report, concluding that DeLord "grabbed Almond and shoved him into the sheetrock wall. The force caused Almond to break the surface of the sheetrock wall."

Almond was released from the LeBlanc facility sometime after August 26, 2003, though the precise date is not disclosed in the available record. Henderson County records indicate that Almond was jailed again on October 17, 2004, and that he subsequently returned to TDCJ custody on April 4, 2005. He filed the instant action on January 7, 2005, alleging claims against DeLord, Tarver, Jackson, Reginald Goings ("Goings"), Sedonia Stewart ("Stewart"), Reginald A. Wallace ("Wallace"), and Rizalino Reyes ("Reyes"). On June 2, 2005, the court granted Goings's Motion to Dismiss for Failure to State a Claim. Almond's claims against Tarver and Stewart were dismissed on March 8, 2006, for failure to serve either defendant with process in violation of Federal Rule of Civil Procedure 4(m). Almond abandoned his claims against Jackson in his Second Amended Complaint and his claims against Reyes, and Wallace in his Third Amended Complaint. Thus, only his claims against DeLord remain pending before the court.

II. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R.CIV.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for his motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which he believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir.2006); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir.2003); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002). Where a defendant moves for summary judgment on the basis of an affirmative defense and, thus, bears the ultimate burden of persuasion, "it must adduce evidence to support each element of its defenses and demonstrate the lack of any genuine issue of material fact with regard thereto." Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999), cert. denied, 528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000) (citing Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir.), cert. denied, 522 U.S. 915, 118 S.Ct. 299, 139 L.Ed.2d 231 (1997)); see Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). To warrant judgment in its favor, the movant "`"must establish beyond peradventure all of the essential elements of the defense."'" Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412

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(5th Cir.2003) (emphasis in original) (quoting Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir.2002) (quoting Fontenot, 780 F.2d at 1194)).

"A fact is `Material' if it `might affect the outcome of the suit under governing law." Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.2001) (emphasis in original) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir.2005); Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 471 (5th Cir.2001); Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.1999); Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "An issue is `genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3d at 489 (emphasis in original). Thus, a genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord EMCASCO Ins. Co. v. American Int'l Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir.2006); Cooper Tire & Rubber Co., 423 F.3d at 454; Harken Exploration Co., 261 F.3d at 471; Merritt-Campbell, Inc., 164 F.3d at 961. The moving party, however, need not negate the elements of the nonmovant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322 n. 3, 106 S.Ct. 2548 (citing FED.R.CIV.P. 56(e)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); EMCASCO Ins. Co., 438 F.3d at 523; Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir.2004); Malacara v. Garber, 353...

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  • Conradt v. Nbc Universal, Inc., No. 07 Civ. 6623 (DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 26, 2008
    ...gravamen of his complaint,'" and argues that plaintiff here is seeking to do just that. (Def. Mem. at 12) (quoting Almond v. Tarver, 468 F.Supp.2d 886, 904-05 (E.D.Tex.2006)). Second, NBC argues that the alleged conduct was not sufficiently "outrageous and extreme" to meet the requirements ......
  • Miles v. TDCJ-Cid, CIVIL ACTION H-15-0456
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 13, 2017
    ...grievance at the institutional level followed by a Step 2 appeal if the result is unfavorable); see also Almond v. Tarver, 468 F. Supp.2d 886, 896 (E.D. Tex. 2006) (citing 37 Tex. Admin. Code Ann. § 283.3 (2006)). A Step 1 grievance, which is reviewed by officials at the inmate's assigned f......
  • Longoria v. Cnty. of Dall., Civil Action No. 3:14-CV-3111-L
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • March 13, 2017
    ...19 law because it was "based on the same operative facts as his claims for constitutional violations" under § 1983); Almond v. Tarver, 468 F. Supp. 2d 886, 905 (E.D. Tex. 2006) ("Because § 1983 and the common law tort of assault are the appropriate avenues for redress of Almond's alleged in......
  • Lozano v. Ortega, EP-14-CV-239-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • November 19, 2014
    ...the elements of a cause of action for assault and battery are the same in civil law as they are in criminal law." Almond v. Tarver, 468 F. Supp. 2d 886, 903-04 (E.D. Tex. 2006) (collecting Texas cases so holding). The Texas legislature has consolidated assault and battery into a single sect......
  • Request a trial to view additional results
22 cases
  • Conradt v. Nbc Universal, Inc., No. 07 Civ. 6623 (DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 26, 2008
    ...gravamen of his complaint,'" and argues that plaintiff here is seeking to do just that. (Def. Mem. at 12) (quoting Almond v. Tarver, 468 F.Supp.2d 886, 904-05 (E.D.Tex.2006)). Second, NBC argues that the alleged conduct was not sufficiently "outrageous and extreme" to meet the requirements ......
  • Miles v. TDCJ-Cid, CIVIL ACTION H-15-0456
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 13, 2017
    ...grievance at the institutional level followed by a Step 2 appeal if the result is unfavorable); see also Almond v. Tarver, 468 F. Supp.2d 886, 896 (E.D. Tex. 2006) (citing 37 Tex. Admin. Code Ann. § 283.3 (2006)). A Step 1 grievance, which is reviewed by officials at the inmate's assigned f......
  • Longoria v. Cnty. of Dall., Civil Action No. 3:14-CV-3111-L
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • March 13, 2017
    ...19 law because it was "based on the same operative facts as his claims for constitutional violations" under § 1983); Almond v. Tarver, 468 F. Supp. 2d 886, 905 (E.D. Tex. 2006) ("Because § 1983 and the common law tort of assault are the appropriate avenues for redress of Almond's alleged in......
  • Lozano v. Ortega, EP-14-CV-239-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • November 19, 2014
    ...the elements of a cause of action for assault and battery are the same in civil law as they are in criminal law." Almond v. Tarver, 468 F. Supp. 2d 886, 903-04 (E.D. Tex. 2006) (collecting Texas cases so holding). The Texas legislature has consolidated assault and battery into a single sect......
  • Request a trial to view additional results

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