Lester v. Flores et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ALBERT SHANE LESTER,
Plaintiff,
v.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:23-CV-00263
STEVEN A. FLORES,
Defendant.
MEMORANDUM AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
In this prisoner civil rights action, plaintiff Albert Shane Lester, proceeding in forma
pauperis and now represented by appointed counsel, alleges excessive force by defendant Steven
A. Flores. See Doc. No. 1. Defendant has moved for summary judgment based on qualified
immunity. (Doc. No. 103.) The district court should GRANT the motion.
A. Jurisdiction.
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case has
been referred to the undersigned magistrate judge for case management and recommendations on
dispositive matters pursuant to 28 U.S.C. § 636.
B. Proceedings.
After Plaintiff filed his verified complaint, the Court screened his case pursuant to the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(c), 28 U.S.C. § 1915A. Upon receiving and
reviewing Plaintiff’s response to the Court’s questionnaire (Doc. Nos. 7, 15), the undersigned
recommended that the district court retain Plaintiff’s excessive force claim against Defendant.
United States District Court
Southern District of Texas
ENTERED
March 26, 2026
Nathan Ochsner, Clerk
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(Doc. No. 18.) The undersigned recommended dismissal of all of Plaintiff’s other claims. Id.
The district court adopted those recommendations. (Doc. No. 46.)
Defendant, represented by counsel employed by the Texas Attorney General’s Office,
filed an answer, in which he raised the defense of qualified immunity. (Doc. No. 39; id. at 3 ¶ 4.)
The Court issued an order directing Defendant to file a motion either for judgment on the
pleadings or for summary judgment, to resolve the qualified immunity issue. (Doc. No. 40.)
Alternatively, the Court ordered, if Defendant believed that his assertion of qualified immunity
depended on resolution of disputed factual matters, he could instead file an advisory stating as
much. Id. at 2. Defendant opted for the latter path, advising the Court that he sought to pursue
discovery in order to resolve Plaintiff’s “heavily fact intensive” claims. (Doc. No. 43, p. 1.)
Defendant stated that he did not intend to use his invocation of qualified immunity “as a shield to
discovery in this case” and consented to the entry of a scheduling order governing discovery, but
“reserve[d] the right to argue [his] entitlement to qualified immunity in a post-discovery motion
for summary judgment.” Id. The Court then entered an order setting deadlines in this case,
setting discovery in motion. (Doc. No. 44.)
On November 21, 2024, four days before what at that time was the dispositive motions
deadline, Defendant filed an “advisory regarding motion for summary judgment.” (Doc. No.
51.) In it, Defendant stated “that he does not intend to file a Motion for Summary Judgment.”
Id. at 1. Defendant “concede[d] that genuine issues of material fact exist as to whether
[Defendant] used excessive force” against Plaintiff. Id. at 2. After recounting the factors
considered in analyzing excessive force claims as set forth in Hudson v. McMillian,1 Defendant
1 503 U.S. 1 (1992).
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stated that “[a]ll five factors have genuine issues of material fact surrounding them.” Id.
Defendant concluded by stating:
Defendant Officer Flores concedes that genuine issues of material fact exist as to
whether or not there was excessive force used against Mr. Lester on June 19,
2023. As a result, Officer Flores does not intend to file a dispositive motion and
prays that this case will proceed to trial.
Id.
After an unsuccessful mediation, the Court appointed counsel to represent Plaintiff, see
Doc. Nos. 68, 72, 79, and discovery continued. A revised deadline required dispositive motions
to be filed by December 15, 2025. (Doc. No. 99.) On that date, Defendant, now represented by
new counsel (who, like prior counsel, is an attorney employed by the Texas Attorney General’s
Office) filed a motion for summary judgment based on qualified immunity. (Doc. No. 103.)
Plaintiff responded. (Doc. No. 107.) Defendant did not file a reply to Plaintiff’s response.
C. Plaintiff’s factual allegations.
Plaintiff’s factual allegations in this section are drawn from his complaint, his response to
the Court’s screening questionnaire, and his competent summary judgment evidence.
Plaintiff arrived at the McConnell Unit in or around October 2022, after being convicted
in Texas state court of multiple felony offenses, including assault of a public servant and
burglary of a habitation; he was sentenced to a total term of imprisonment of five years. (Doc.
No. 1, p. 1; Doc. No. 15, p. 1.)
Plaintiff alleges that several months later, on or around June 8, 2023, the McConnell
Unit’s mental health department placed Plaintiff on Constant and Direct Observation (“CDO”),
during which time Plaintiff was allegedly confined to a “cage.” (Doc. No. 1, p. 4; Doc. No. 15,
pp. 1-2.) Plaintiff alleges that on June 19, 2023, at approximately 1:30 p.m., Plaintiff had “an
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exchange of words” with Defendant over Defendant’s throwing away extra lunches that another
officer stated he could give to inmates on CDO. (Doc. No. 15, p. 4; Doc. No. 1, p. 4.) When
asked by the Court what specific words were exchanged (Doc. No. 7, p. 4), Plaintiff responded
that he could not recall the exact words but remembers “a lot of cussing” between himself and
Defendant. (Doc. No. 15, p. 4.) Plaintiff noted in his Step One grievance that Defendant told
Plaintiff to “shut up or you’re not going to eat,” and that Plaintiff then became quiet, sat in the
cage, and then laid down to sleep. (Doc. No. 17-1, p. 1.)2
Later that day, at approximately 5:00 or 5:30 p.m., Plaintiff allegedly awoke to Defendant
kicking Plaintiff’s cage and asking Plaintiff “you still talking that shit?” (Doc. No. 1, p. 4; Doc.
No. 17-1, p. 1.) Plaintiff also claims that Defendant simultaneously sprayed Plaintiff with “tear
gas” or some other “chemical agent.”3 (Doc. No. 1, p. 3; Doc. No. 15, p. 2; Doc. No. 17-1, p. 1.)
Plaintiff states that he then leapt to his feet, pressed his hands to his eyes to try to stop the
“burning, stinging sensation” he was experiencing, and told Defendant that he wanted to talk to
the supervising officer. (Doc. No. 15, p. 2.) Plaintiff alleges that he had had no negative
interactions with Defendant prior to this one-time incident. Id. at 4.
Plaintiff alleges that he was able to wash off the spray “[r]oughly [one] hour and a half”
after the incident, at around 7:00 or 8:00 p.m., but that he did not receive any medical care for his
2 Plaintiff confirmed that he was the only inmate confined in the cage. (Doc. No. 15, p. 3.)
3 Asked by the Court how Plaintiff knew the substance allegedly sprayed by Defendant was tear gas, Plaintiff stated
that he asked another officer whether the substance was tear gas, and that that officer had responded, “yes pretty
much.” (Doc. No. 7, p. 3; Doc. No. 15, p. 2.) Plaintiff also stated that he asked a different officer if the spray issued
to officers in the McConnell Unit (“oleoresin capsicum or OC”) is tear gas, and that officer replied in the
affirmative. Id. At the screening stage, the Court took judicial notice of the fact that OC is a form of pepper spray,
which differs from tear gas in composition. See Doc. No. 18, p. 3 n.2 (citing R. David Tidwell & Brandon K. Willis,
Tear Gas and Pepper Spray Toxicity, NAT’L LIBR. MED., https://www.ncbi.nlm.nih.gov/books/NBK544263/
(updated as of May 14, 2023)). However, because the Plaintiff described the substance as “tear gas,” the Court did
so also at screening.
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injuries, despite his requests for attention. (Doc. No. 15, p. 3.) Plaintiff also alleges that his
injuries from the alleged incident remained and continue to affect his ability to see with his right
eye, stating: “To date, these injuries still persist. I see spots in my vision and my sight in my
right eye has remained diminished.” Id. Plaintiff states that he told a nurse that his right eye was
injured and that he was seeing spots and had diminished vision. Id. at 2. As part of his summary
judgment evidence, Plaintiff submitted an expert ophthalmological report indicating that the
spray caused corneal damage, which led to “permanent visual distortion.” (Doc. No. 109-7, p.
3.)
Plaintiff states that he reported the incident to several prison officials. (Doc. No. 15, pp.
5-6; Doc. No. 17-1, p. 1.) Plaintiff allegedly learned from an officer that Defendant had received
a “disciplinary write-up” for “an unreported use of force.” (Doc. No. 1, p. 4; Doc. No. 15, pp. 4-
5.) However, Plaintiff did not know who issued the write-up or what consequences might have
resulted from it. He states that Defendant remained employed by the McConnell Unit. (Doc.
No. 15, p. 5.)
Plaintiff thereafter filed a Step One grievance about the incident, requesting a transfer for
fear of retaliation and that disciplinary action be taken against Defendant. (Doc. No. 1-1, p. 2;
Doc. No. 17-1, pp. 1-2.) Because he allegedly did not receive a response to his Step One
grievance, Plaintiff filed a Step Two grievance. (Doc. No. 1-1, p. 2; Doc. No. 17-1, pp. 3-4.) He
subsequently wrote to the Texas Department of Criminal Justice’s (“TDCJ’s”) Ombudsman
Office. (Doc. No. 1-1, p. 2.) Neither the Step Two grievance or his letter to the Ombudsman
Office yielded a response before Plaintiff filed the instant suit or responded to the Court’s
questionnaire. (Doc. No. 1-1, p. 2; Doc. No. 15, p. 7.)
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Plaintiff claims to have received responses to his grievances on or around February 8,
2024, although the responses were dated October 20, 2023, and November 7, 2023. (Doc. No.
17, p. 1.) The responses allegedly stated that there had been a delay in response because of the
unit’s staffing issues, but that Plaintiff’s “allegations of staff misconduct and/or policy violations
have been investigated,” and “[a]fter reviewing all written statements and records, th[e] office
has found no evidence to support” Plaintiff’s allegations, therefore “[n]o further action is
warranted.” (Doc. No. 17-1, pp. 2, 4.)
Defendant did not report the discharge of pepper spray to anyone. (Doc. No. 107-8, p. 7.)
Based on this incident, Defendant was disciplined by TDCJ for an unreported use of force. He
was suspended for four days and was placed on six months of disciplinary probation. Id.
D. Defendant’s motion and submitted evidence.
In his summary judgment motion, Defendant contends that Plaintiff has failed to show
that Defendant’s actions “amounted to malicious and sadistic conduct for the purpose of causing
him harm, where evidence contradicts [Plaintiff’s] allegations. By failing to establish a
cognizable constitutional claim, [Plaintiff] cannot overcome Defendant’s entitlement to qualified
immunity.” (Doc. No. 103, p. 3.) According to Defendant, Plaintiff did not suffer anything
more than a de minimis injury from the alleged use of force – just blurry vision the next day, with
eye damage not being reported until January of the following year (the spraying incident
occurred in late June). Id. at 6-8. Defendant contends that any vision issues noted the following
year were attributable to a subsequent suicide attempt by Plaintiff. See id. at 7. Because Plaintiff
suffered at most a de minimis injury, Defendant says, “Plaintiff must establish that Defendant
acted maliciously and sadistically in order to cause harm,” id. at 8, but the competent summary
judgment evidence supports at most a finding of negligence. Id. at 8-11. Consequently,
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Defendant says, Plaintiff fails to establish a constitutional injury, and Defendant therefore retains
qualified immunity from suit and liability. Id. Defendant also argues that the law was not
clearly established at the time that his alleged conduct violated Plaintiff’s Eighth Amendment
right to be free from cruel and unusual punishment. Id. at 11-12.
Defendant has submitted the following evidence with his summary judgment motion:
• Chemical agent issue log (Doc. No. 103-1);
• Behavioral intervention and use of force report from the June 19, 2023 incident (Doc. No.
103-2);
• Medical record showing that Plaintiff refused treatment or service for an eye appointment
in January 2024 (Doc. No. 105-1) (filed under seal);
• Extract of Plaintiff’s medical records (Doc. No. 105-2) (filed under seal); and
• Plaintiff’s complete medical records (Doc. Nos. 105-3, 105-4, 105-5) (filed under seal).
Although he challenges the summary judgment motion (and contends that Defendant
waived his right to file it), Plaintiff has not objected to Defendant’s submitted evidence.
E. Plaintiff’s response and submitted evidence.
Responding to the summary judgment motion, Plaintiff first argues that Defendant
waived his right to seek summary judgment at all. By filing the November 2024 advisory
forswearing any bid for summary judgment, Plaintiff contends, Defendant should not be
permitted to seek summary judgment now. (Doc. No. 107, pp. 11-12.) On the merits, Plaintiff
contends that a genuine issue of material fact exists regarding whether Defendant used excessive
force. Id. at 13-15. Plaintiff argues further that genuine fact issues exist regarding whether
Plaintiff’s injury was de minimis or whether his vision problems stemmed from his later suicide
attempt instead of from Defendant’s use of force. Id. at 17-18. He contends that there is no
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evidence that Defendant acted merely negligently or wrongfully as a matter of law, rather than
maliciously and sadistically. Id. at 19-20. And Plaintiff argues that the law was clearly
established at the time of Defendant’s conduct. Id. at 15-16.
Plaintiff has submitted the following evidence with his summary judgment response:
• Declaration by attorney Robert Kaltenbach, one of Plaintiff’s appointed counsel in this
case (Doc. No. 107-1);
• Defendant’s advisory to the Court, through prior counsel, that he would not submit a
summary judgment motion (Doc. No. 107-2; see also Doc. No. 51);
• Grievances submitted by Plaintiff regarding the use of force (Doc. No. 107-3);
• Excerpts from the deposition transcript of Lieutenant Nicholas Pecot, a jail official (Doc.
No. 109-1) (filed under seal);
• TDCJ’s Behavioral Intervention Plan (Doc. No. 109-2) (filed under seal);
• Excerpts from the deposition transcript of Defendant (Doc. No. 109-3) (filed under seal);
• Defendant’s responses and objections to Plaintiff’s first set of interrogatories and request
for production (Doc. No. 107-8);
• Photograph of the CDO room (Doc. No. 107-9);
• Defendant’s response to Plaintiff’s second set of interrogatories and request for
admissions (Doc. No. 107-10);
• Plaintiff’s medical records from June 1, 2023 to May 28, 2024 (Doc. No. 109-4) (filed
under seal);
• Plaintiff’s medical records from May 29, 2024 to the “present” (apparently the date on
which the summary judgment motion was filed) (Doc. No. 109-5) (filed under seal);
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• Behavioral intervention and use of force report from the June 19, 2023 incident (Doc. No.
109-6) (filed under seal4); and
• Expert report of Dr. Todd Lefkowitz (Doc. No. 109-7) (filed under seal).
Defendant did not reply to Plaintiff’s summary judgment response, and so has not
objected to Plaintiff’s submitted evidence.
F. Legal standards.
1. Summary judgment.
Summary judgment is proper if there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Scott v. Harris, 550
U.S. 372, 380 (2007). The Court must examine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251-52. If the nonmovant fails to sufficiently
raise a genuine factual issue essential to his case and on which he bears the burden of proof at
trial, and if no reasonable juror could find for the nonmovant, then summary judgment must be
granted. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Caboni v. Gen. Motors Corp.,
278 F.3d 448, 451 (5th Cir. 2002). “If reasonable minds could differ as to the import of the
evidence ... a verdict should not be directed.” Anderson, 477 U.S. at 250-51.
When a properly supported motion for summary judgment is filed, “the nonmovant must
go beyond the pleadings and designate specific facts in the record showing that there is a genuine
4 This same report is an unsealed exhibit attached to Defendant’s summary judgment motion. See Doc. No. 103-2.
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issue for trial.” Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). Courts consider
the record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on file,
Caboni, 278 F.3d at 451, and must draw all justifiable inferences in favor of the party opposing
the motion and resolve any disputed material facts in the nonmovant’s favor. Anderson, 477
U.S. at 255; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).
Thus, the moving party bears the initial burden of showing the absence of a genuine issue
of material fact. Celotex, 477 U.S. at 323. If the moving party demonstrates an absence of
evidence supporting the nonmoving party’s case, then the burden shifts to the nonmoving party
to come forward with specific facts showing that a genuine issue for trial does exist. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
To sustain this burden, the nonmoving party cannot rest on the mere allegations of the
pleadings. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. at 248. Unsubstantiated assertions,
improbable inferences, and unsupported speculation also are not competent summary judgment
evidence. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Where a
pro se plaintiff’s allegations are verified under penalty of perjury, they are deemed competent
summary judgment evidence. See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003).5 But
summary judgment “may not be thwarted by conclusional allegations, unsupported assertions, or
presentation of only a scintilla of evidence.” Hemphill v. State Farm Mut. Auto. Ins. Co., 805
F.3d 535, 538 (5th Cir. 2015). “The party opposing summary judgment must identify specific
evidence in the record and articulate the precise manner in which that evidence supports his
claim.” Acosta v. Williamson Cnty., Tex., No. 1:21-CV-00615-DII, 2023 WL 5352324, at *4
5 Plaintiff was pro se when he filed his verified complaint and when he responded to the Court’s screening
questionnaire under penalty of perjury. Counsel was not appointed until after Plaintiff had submitted these filings.
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(W.D. Tex. Aug. 21, 2023), adopted, 2023 WL 6612521 (W.D. Tex. Oct. 10, 2023), aff’d, No.
23-50777, 2024 WL 3833303 (5th Cir. Aug. 15, 2024) (unpublished) (citing Adams v. Travelers
Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006)).
2. Qualified immunity.
The doctrine of qualified immunity protects government officials from suit under 42
U.S.C. § 1983 “unless their conduct violates clearly established law.” Zorn v. Linton, 607 U.S.
___, ___ S. Ct. ___, 2026 WL 795469, at *2 (Mar. 23, 2026) (per curiam) (citing Rivas-Villegas
v. Cortesluna, 595 U.S. 1, 5 (2021) (per curiam)). The doctrine immunizes officials “sued in
their individual capacities ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 328 (5th Cir. 2020)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A qualified immunity defense “‘alters
the usual summary judgment burden of proof.’” Ford v. Anderson Cnty., Tex., 102 F.4th 292,
307 (5th Cir. 2024) (quoting Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)). “Once an
official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by
establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct violated
clearly established law.” Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017). To meet this
burden of demonstrating that the qualified immunity defense is not available, the plaintiff must
provide something more than “[c]onclusory allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation.” Orr v. Copeland, 844 F.3d
484, 490 (5th Cir. 2016).
Qualified immunity is a generous shield: it provides “ample protection to all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,
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341 (1986). The doctrine “gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
Thus, a government official can be held personally liable for monetary damages only if the
official’s particular conduct: (1) “violated a statutory or constitutional right,” and (2) “the right
was ‘clearly established’ at the time of the violation.” Ford, 102 F.4th at 307 (quoting al-Kidd,
563 U.S. at 735 (quoting Harlow, 457 U.S. at 818)); see also Anderson v. Creighton, 483 U.S.
635, 640 (1987). “If the plaintiff fails at either step, the federal court can grant qualified
immunity by addressing either step or both of them.” Cleveland v. Bell, 938 F.3d 672, 676 (5th
Cir. 2019).
A government official’s conduct violates clearly established law when, at the time of the
challenged conduct, “the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” al-Kidd, 563 U.S. at 741
(citing Anderson, 483 U.S. at 640 (cleaned up)). A binding court case “directly on point” is not
required, but “existing precedent must have placed the statutory or constitutional question
beyond debate.” Id.; see also Malley, 475 U.S. at 341.6 “Abstract or general statements of legal
principle untethered to analogous or near-analogous facts are not sufficient to establish a right
‘clearly’ in a given context; rather the inquiry must focus on whether a right is clearly established
as to the specific facts of the case.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015)
(citing Brousseau v. Haugen, 543 U.S. 194, 198 (2004)). Absent controlling authority, there
must be a “robust ‘consensus of cases of persuasive authority.’” al-Kidd, 563 U.S. at 741
(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). And the controlling decision or consensus
6 In Zorn, the Supreme Court stated that it “assume[d] without deciding that controlling Circuit precedent can
clearly establish law for qualified immunity purposes.” 2026 WL 795469, at *2 n.3 (internal quotation marks
omitted) (citing Rivas-Villegas, 595 U.S. at 5).
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must be with regard to the official’s “particular conduct,” described with specificity. Harmon v.
City of Arlington, Tex., 16 F.4th 1159, 1166 (5th Cir. 2021) (citing Mullenix v. Luna, 577 U.S. 7,
12 (2015) (per curiam) (emphasis in original)).
“It is not enough that the rule is suggested by then-existing precedent. The precedent
must be clear enough that every reasonable official would interpret it to establish the particular
rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018).
“Otherwise,” said the Supreme Court, “the rule is not one that ‘every reasonable official’ would
know.” Id. (quoting Reichle v. Howards, 566 U.S. 658, 666 (2012)).
3. 42 U.S.C. § 1983.
Section 1983 provides a vehicle for redressing the violation of federal law by those acting
under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004); Albright v. Oliver, 510
U.S. 266, 271 (1994). To prevail on a § 1983 claim, the plaintiff must prove that a person acting
under the color of state law deprived him of a right secured by the Constitution or laws of the
United States. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A defendant acts under
color of state law if he or she misuses or abuses official power and if there is a nexus between the
victim, the improper conduct, and the defendant’s performance of official duties. Townsend v.
Moya, 291 F.3d 859, 861 (5th Cir. 2002).
4. Excessive force.
“The Eighth Amendment proscribes the unnecessary and wanton infliction of pain, which
includes actions that are ‘so totally without penological justification that it results in the
gratuitous infliction of suffering.’” Johnson v. Jones, No. 2:24-CV-238, 2025 WL 3648061, at
*6 (N.D. Tex. Nov. 21, 2025), adopted, 2025 WL 3646614 (N.D. Tex. Dec. 16, 2025) (citing
Gregg v. Georgia, 428 U.S. 153, 183 (1976)). To establish a use of excessive force under the
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Eighth Amendment’s prohibition against cruel and unusual punishment, a plaintiff must show
that a prison official applied force against him maliciously or sadistically to cause harm, as
opposed to in a good-faith effort to maintain or restore discipline. See Byrd v. Harrell, 48 F.4th
343, 347 (5th Cir. 2022) (citing Hudson, 503 U.S. at 7). This analysis is the “‘core judicial
inquiry.’” Id. (quoting Hudson, 503 U.S. at 7). The inquiry is “necessarily fact-intensive;
whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances
of each particular case.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)).
Courts focus on the prison official’s subjective intent to determine whether force was
wanton and unnecessary, see Byrd, 48 F.4th at 347, and consider factors set forth in Hudson.
These factors include the need for application of force, the relationship between that need and the
amount of force used, the threat reasonably perceived by the responsible officials, and any efforts
made to temper the severity of the force used. See Hudson, 503 U.S. at 7; see also Bourne v.
Gunnels, 921 F.3d 484, 491 (5th Cir. 2019). Proof of a significant injury is not required, but the
absence of significant injury can provide insight regarding the amount of force applied. See
Lewis v. King, No. 6:25cv129, 2026 WL 568647, at *5 (E.D. Tex. Jan. 22, 2026), adopted, 2026
WL 565805 (E.D. Tex. Feb. 27, 2026) (citing Cowart v. Erwin, 837 F.3d 444, 453 (5th Cir.
2016)). As Hudson puts it, the extent of an inmate’s injury is “one factor that may suggest
whether the use of force could plausibly have been thought necessary in a particular situation, or
instead evinced such wantonness with respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur.” Hudson, 503 U.S. at 7 (citing Whitley v.
Albers, 475 U.S. 312, 321 (1986) (cleaned up)). At the same time, the Eighth Amendment’s
prohibition does not apply to de minimis uses of physical force, so long as that force is not
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“‘repugnant to the conscience of mankind.’” Hudson, 503 U.S. at 9-10 (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); id. at 9 (“not every malevolent touch by a prison guard gives
rise to a federal cause of action”).
G. Defendant waived his right to move for summary judgment on qualified immunity,
but the district court should consider his motion anyway.
Before engaging on the merits, Plaintiff argues that Defendant expressly waived the right
to bring this summary judgment motion. In Plaintiff’s view, Defendant should be held to the
assertion, made by prior counsel, that genuine issues of material fact exist on the question of
excessive force. (Doc. No. 107, pp. 11-12.) The parties “have proceeded as though this case is
being prepared for trial,” he says, and Defendant’s “capricious change in position” would
prejudice Plaintiff. Id. at 12. Defendant did not file a reply to Plaintiff’s summary judgment
response, so the Court does not have the benefit of Defendant’s view (if any) on this point.
In November 2024, four days before what at that time was the dispositive motions
deadline, Defendant’s prior counsel filed an advisory with the Court. In addition to outlining
Plaintiff’s allegations, counsel stated:
Officer Flores concedes that there are genuine issues of material fact for trial and
inform[s] the Court that he does not intend to file a Motion for Summary
Judgment.
…
Defendant Officer Flores concedes that genuine issues of material fact exist as to
whether Officer Flores used excessive force against Mr. Lester on June 19, 2023.
The Supreme Court has laid out the following factors to analyze excessive force
claims: (1) “the extent of the injury suffered;” (2) “the need for the application of
force;” (3) “the relationship between the 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.” Hudson v. McMillian, 503
U.S. 1, 7 (1992).
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All five factors have genuine issues of fact surrounding them. Officer Flores
asserts that no force was used on Mr. Lester and as such he suffered no injuries.
Thus, Mr. Lester’s allegations, if true, would create a genuine issue of material
fact for a jury concerning the alleged use of force.
…
As a result, Officer Flores does not intend to file a dispositive motion and prays
that this case will proceed to trial.
(Doc. No. 51, pp. 1-2.) Despite this statement, Defendant, through successor counsel, later
executed an about-face and filed the instant motion for summary judgment. This, after discovery
and other pretrial activities had proceeded for more than a year.
Waiver is the intentional relinquishment or abandonment of a known right. United States
v. Olano, 507 U.S. 725, 733 (1993); see also Occidental Fire & Cas. Co. of N. Carolina v. Cox,
161 F.4th 849, 860 (5th Cir. 2025). A party may also waive a right by engaging in intentional
conduct that is inconsistent with claiming that right. See Matter of Langston, 159 F.4th 346, 354
(5th Cir. 2025).
Even the most fundamental rights are subject to waiver. See Shutte v. Thompson, 15
Wall. 151, 159 (1873) (“A party may waive any provision, either of a contract or a statute,
intended for his benefit.”). This is true even in criminal cases. See Peretz v. United States, 501
U.S. 923, 936 (1991) (“The most basic rights of criminal defendants are … subject to waiver.”).
Thus, courts have found that a party may waive its right to move for summary judgment. E.g.,
AP Links, LLC v. Global Golf, Inc., No. CV 08-3602, 2011 WL 13302697, at *2 (E.D.N.Y. June
3, 2011) (counsel found to have waived his right to move for summary judgment after
representing to the court that he did not plan to move for summary judgment); Youngdale & Sons
Const. Co., Inc. v. United States, 22 Cl. Ct. 345, 347 (1991) (party waived right to file summary
judgment motion); cf. Kothari v. Motiva Enters., L.L.C., Civ. No. H-05-0499, 2006 WL
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2129097, at *5 n.28 (S.D. Tex. July 27, 2006) (Lake, J.) (examining purported waiver of right to
file summary judgment motion and finding that waiver had not occurred).
“Under our system of representative litigation, ‘each party is deemed bound by the acts of
his lawyer-agent.’” Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 92 (1990) (quoting Link v.
Wabash R. Co., 370 U.S. 626, 634 (1962)). And “[a]n express waiver by experienced counsel is
binding if anything is.” Danielson Food Prods., Inc. v. Poly-Clip System, 120 F. Supp. 2d 1142,
1144 (N.D. Ill. 2000). While some basic rights “cannot be waived by an attorney without the
fully informed and publicly acknowledged consent of the client, the lawyer has – and must have
– full authority to manage the conduct of the trial.” New York v. Hill, 528 U.S. 110, 114-15
(2000). The fact that a party might later change counsel is of no moment: the party is still bound
by his prior counsel’s decisions. See Weatherford Int’l, LLC v. Ameen, No. 4:23-cv-2420, 2025
WL 4089353, at *5 (S.D. Tex. Oct. 16, 2025) (Bennett, M.J.) (client bound by prior counsel’s
agreement that confidentiality order would govern discovery in the case); Nguyen v. Versacom,
LLC, No. 3:13-CV-4689, 2016 WL 7426126, at *3 (N.D. Tex. Dec. 23, 2016) (a “recent change
of counsel does not entitle [a party] to attempt to undo the strategic choices made by [the party’s]
prior counsel”).
Defendant’s prior counsel in this case filed a clearly worded waiver: counsel outlined the
allegations, outlined the five Hudson factors, and stated that “[a]ll five factors have genuine
issues of material fact surrounding them.” (Doc. No. 51, p. 2.) Counsel concluded: “As a result,
Officer Flores does not intend to file a dispositive motion and prays that this case will proceed to
trial.” Id. This statement can readily be accepted as an intentional relinquishment of
Defendant’s known right to file any motion for summary judgment, whether based on qualified
immunity or any other ground. Cf. Olano, 507 U.S. at 733.
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One perhaps could try to quibble with the breadth of the waiver. The waiver is based on
Defendant’s position that he did not use force against Plaintiff at all, see Doc. No. 51, p. 2
(“Officer Flores asserts that no force was used on Mr. Lester and as such he suffered no
injuries.”), and Defendant seems to maintain that position now. See Doc. No. 103, pp. 7-8
(suggesting that no chemical agent was released from the can, or that at most one-tenth of one
ounce was released). Qualified immunity shields a defendant if the plaintiff fails to show either
(1) a constitutional violation or (2) that the law was clearly established at the time of the
occurrence. See Ford, 102 F.4th at 307. While prior counsel opted on Defendant’s behalf to
leave the question of excessive force for trial rather than seeking summary judgment, he did not
eschew the qualified immunity defense altogether, and he did not mention the state of the law at
the time of Defendant’s alleged conduct. But the qualified immunity standard is the same today
as it was when prior counsel announced Defendant’s waiver: a summary judgment motion filed
back then would have addressed whether excessive force was used and whether the law was
clearly established, just as the instant motion does now. Prior counsel’s waiver is therefore
broad enough to encompass any summary judgment motion by Defendant, and its plain meaning
indicates a decision to forgo any such motion prior to trial. The waiver evinces Defendant’s
intent that a jury decide whether excessive force was used and whether the law was clearly
established.7
Just because prior counsel waived the right to seek summary judgment, however, does
not mean that the Court is obliged to accept and enforce that waiver. Prior counsel’s waiver is
7 Defendant unhelpfully failed to reply to Plaintiff’s summary judgment response. Such a reply could have offered
some insight regarding why the waiver might have been invalid or more narrow, why Defendant’s position on
summary judgment changed, or why successor counsel failed to notify the Court or Plaintiff of the change in
position prior to simply filing the motion.
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not the type that, if accepted, would irreparably discredit the federal courts,8 but there yet
remains a preference in federal practice for the grant of summary judgment where appropriate, in
the interest of avoiding unnecessary trials. Indeed, that is the purpose of summary judgment.
See Carantzas v. Iowa Mut. Ins. Co., 235 F.2d 193, 195 (5th Cir. 1956) (summary judgment rule
“is a salutary one for the purpose of avoiding unnecessary trials, that is, trials where there is
nothing of fact to be tried” (citation omitted)); see also Fontenot v. Upjohn Co., 780 F.2d 1190,
1197 (5th Cir. 1986) (summary judgment “reinforces the purpose of the Rules, to achieve the
just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful
end to litigation that would otherwise be lengthy and expensive”). But Rule 56(a) provides that a
party “may” move for summary judgment, not that it “must” do so. A litigant is therefore under
no obligation to file a summary judgment motion, and can give up that right either through
inaction (by not filing anything) or affirmative waiver (as here) and leave all contested issues for
trial. Cf. Britt v. Mississippi Farm Bureau Casualty Ins. Co., No. 22-60094, 2022 WL
17443734, at *2 (5th Cir. Dec. 6, 2022) (unpublished) (defendant not required to move for
summary judgment, and burden of proof for all elements of claim remained with plaintiff).9
Defendant’s prior waiver of summary judgment is valid, but that waiver collides with successor
counsel’s position that qualified immunity applies, the general preference for summary judgment
instead of unnecessary trials, and federal courts’ obligation to resolve qualified immunity
8 Cf. United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (“No doubt there are limits to waiver; if the parties
stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent,
because some minimum of civilized procedure is required by community feeling regardless of what the defendant
wants or is willing to accept.”).
9 This case is different from Smith v. United States, cited by Plaintiff. (Doc. No. 107, pp. 11-12.) In Smith, the
plaintiffs had conceded all but two issues in their summary judgment motion, and were found to have waived their
right to litigate those conceded issues. 328 F.3d 760, 768-70 (5th Cir. 2003). By contrast, in this case Defendant
has not waived the right to pursue a qualified immunity defense altogether; his waiver merely gives up the right to
press that defense in a summary judgment motion.
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questions as early as possible in the proceedings. See Hunter v. Bryant, 502 U.S. 224, 227
(1991) (per curiam).
Plaintiff, for his part, does not suggest any particular prejudice in allowing the summary
judgment motion. Plaintiff states that the Court “cannot accept Defendant’s capricious change in
position now without prejudicing Mr. Lester.” (Doc. No. 107, p. 12.) Defendant’s change in
position certainly was abrupt, and Plaintiff’s appointed counsel has “proceeded as though this
case is being prepared for trial.” Id. But although counsel has undoubtedly expended time and
resources on discovery and other pretrial matters, counsel would expend yet more resources
preparing for a trial that could be rendered unnecessary by consideration of this motion. Plaintiff
does not articulate any specific prejudice he might suffer from consideration of the motion, and
the undersigned discerns no prejudice to him from the Court’s considering, and perhaps
resolving, the qualified immunity issue now, on summary judgment, rather than waiting until
trial. After all, if Plaintiff is unable to survive this summary judgment motion, then no
reasonable jury could find for him at trial anyway, and his case would fail there for the same
reasons it would fail on summary judgment. Cf. Nunez v. Borstnar, No. 3:18-cv-165, 2020 WL
14034784, at *2 (W.D. Pa. July 20, 2020) (no abuse of discretion in allowing summary judgment
motion based on excusable neglect in missing deadline, in part because plaintiff would suffer no
prejudice from consideration of summary judgment motion prior to trial).
The district court could opt to enforce Defendant’s waiver of his right to file his summary
judgment motion. The better path, though, is for the district court to consider Defendant’s
summary judgment motion, and that is the path the undersigned recommends.
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H. The district court should grant the summary judgment motion.
Despite prior counsel’s waiver, the district court should grant Defendant’s motion for
summary judgment. In the qualified immunity setting, summary judgment is inappropriate if
disputed material issues remain regarding whether a constitutional violation occurred and
whether the law regarding that violation was clearly established at the time of the defendant’s
conduct. Here, a material fact issue exists with regard to Defendant’s violation of Plaintiff’s
constitutional rights, but Plaintiff fails to show that the law was clearly established at the time of
the 2023 incident that Defendant’s conduct amounted to a constitutional violation.
Both sides have presented summary judgment evidence. Their briefing is somewhat
narrow in scope, and is summarized in a moment. Courts are not obliged to “sift through the
record in search of evidence to support a party’s opposition to summary judgment.” Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992). This principle applies equally to
evidence to support a party’s bid for summary judgment: if a summary judgment movant fails to
meet Rule 56’s initial burden of demonstrating the absence of a genuine issue of material fact,
then the court should deny the motion. See Evans v. Lumpkin, No. 6:22-CV-00187, 2023 WL
9550463, at *5 (E.D. Tex. Dec. 13, 2023), adopted, 2024 WL 479612 (E.D. Tex. Feb. 7, 2024)
(citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
1. Constitutional violation.
As Defendant states: “Lester’s sole allegations against Flores are that Flores used
chemical spray against him, without warning, when Lester was in his cell. … Lester claims that
he received lasting eye damage from this use of a chemical agent on him. … It is Lester[’]s
contention that Flores sprayed him in the face because he was angry with [Lester] from an
argument earlier in the day about sack lunches.” (Doc. No. 103, p. 6) (record citations omitted).
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Defendant argues that, even assuming their truth, Plaintiff’s allegations do not rise to the level of
a constitutional violation. Id. This, Defendant says, is because Plaintiff fails to show that his
injury was anything more than de minimis. Id. at 6 (“the competent summary judgment evidence
does not demonstrate [Plaintiff] sustained any cognizable injury from this alleged use of force
that was more than de minimis”). Defendant contends that the evidence indicates that, at most,
one-tenth of one ounce of spray was discharged from Defendant’s spray can on the date of the
incident. Id. at 7-8 (citing Doc. No. 103-1, p. 8 (chemical agent issue log); Doc. No. 103-2, p. 25
(use of force report)). Defendant insists that “[s]everal Fifth Circuit cases had concluded that
chemical spray and analogous uses of force were de minimis,” and that the force used was not of
the type that is “repugnant to the conscience of mankind.” Id. at 6-8. Defendant argues further
that Plaintiff must therefore show that Defendant acted sadistically or maliciously, but that
Plaintiff fails to make such a showing. Id. at 8-9. Defendant chalks up his own conduct to
“nothing more than negligence and poor judgment.” Id. at 11.
Responding, Plaintiff argues that he has presented evidence that he complained of his eye
injury contemporaneously with the force incident and that he did not receive immediate medical
care for his injury despite having requested it. (Doc. No. 107, p. 17 (citing Doc. No. 15, p. 3
(questionnaire response, submitted under penalty of perjury)).10 Plaintiff points to evidence that
he attributed his blurry vision to Defendant’s use of force against him. Id. at 18 (citing Doc. No.
109-5, p. 5 (medical record)). Plaintiff also cites his submitted expert ophthalmological evidence
that the failure to irrigate his eyes within ten minutes after the spraying resulted in corneal
damage, leading to “permanent visual distortion.” Id. (citing Doc. No. 109-7, p. 3) (report of Dr.
10 As discussed, the Court may consider Plaintiff’s verified allegations – including his sworn response to the Court’s
questionnaire – as competent summary judgment evidence. See Hart, 343 F.3d at 765.
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Lefkowitz). Plaintiff also points to evidence that both he and other officers reported suffering
adverse effects because of the use of the spray. Id. at 18-19 (citing Doc. No. 109-1, pp. 11, 12,
13.)11
a. The force used was not, as a matter of law, de minimis.
As an initial matter, Defendant appears to argue that use of pepper spray is de minimis as
a matter of law. See Doc. No. 103, pp. 6-7, 8, 10. The Eighth Amendment’s prohibition on cruel
and unusual punishment does not extend to de minimis uses of force, so long as that force is not
“‘repugnant to the conscience of mankind.’” Hudson, 503 U.S. at 9-10 (quoting Estelle, 429
U.S. at 106); cf. Reid v. Coughlin, No. 86 Civ. 1351, 1994 WL 23152, at *3 (S.D.N.Y. Jan. 26,
1994) (“regardless of whether or not [defendant’s] conduct was malevolent, the actions in which
that motive was manifested were legally insignificant and not repugnant to the conscience of
mankind”) (cleaned up).
Defendant argues that “it is well known by courts in the 5th Circuit and certainly by
officers of TDCJ that pepper spray is merely a temporary irritant.” (Doc. No. 103, p. 10 (citing
Clay v. Stacks, No. 9:04CV72, 2006 WL 688999, at *3 (E.D. Tex. Mar. 15, 2006) (Eighth
Amendment deliberate indifference claim for failure to decontaminate inmate after pepper-spray
incident dismissed because inmates can decontaminate themselves: “no special decontamination
procedures are required for OC pepper spray because it is biodegradable and will not persist on
clothing or affected areas; in addition, the effects of this agent last from 20 to 90 minutes.”)). He
11 Plaintiff also argues that the Court, applying the Hudson factors, has already found that Plaintiff’s harm was more
than de minimis, and assails Defendant for attempting to relitigate the matter. (Doc. No. 107, p. 14.) While the
Court did retain Plaintiff’s excessive force claim past the screening stage, see Doc. No. 18, p. 10, that retention was
based solely on Plaintiff’s factual allegations. Defendant was free to argue and present evidence at the summary
judgment stage indicating that only a de minimis injury occurred or that Plaintiff suffered no injury at all.
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also cites cases in which applications of chemical agents like pepper spray were found to have
been de minimis. But all of the authorities Defendant cites appear to have involved either
fleeting injuries or no injury at all to the plaintiffs in those cases. E.g., Martinez v. Day, 639 F.
App’x 278, 279-80 & n.6 (5th Cir. May 6, 2016) (unpublished) (per curiam) (no injury suffered);
Bradshaw v. Unknown Lieutenant, 48 F. App’x 106, 2002 WL 31017404, at *1 (5th Cir. Aug.
21, 2002) (unpublished) (per curiam) (temporary injury); Oakley v. Weaver, 162 F.3d 1159,
1998 WL 792669, at *1 (5th Cir. Nov. 2, 1998) (unpublished) (summary calendar) (per curiam)
(no injury noted); Baldwin v. Stalder, 137 F.3d 836, 841 (5th Cir. 1998) (temporary injury, if
any); Williams v. United States, Civ. No. H-08-2250, 2009 WL 3459873, at *13 (S.D. Tex. Oct.
20, 2009) (Hoyt, J.) (temporary injury, if any); Siglar v. Hightower, 112 F.3d 191, 193-94 (5th
Cir. 1997) (temporary injury – plaintiff’s ear twisted by defendant); Thomas v. Comstock, 222 F.
App’x 439, 442 (5th Cir. 2007) (unpublished) (temporary injury, if any); McCoy v. Alamu, 950
F.3d 226, 232-34 (5th Cir. 2020), vacated and remanded on other grounds, __ U.S. __, 141 S.
Ct. 1364 (2021) (apparently temporary injury); Jackson v. Culbertson, 984 F.2d 699, 700 (5th
Cir. 1993) (no injury; plaintiff sprayed with fire extinguisher). These decisions do not purport to
hold that use of pepper spray is de minimis as a matter of law. To the contrary, excessive force
cases are fact-intensive, and are to be examined individually, considering the specific
circumstances and context. See Deville, 567 F.3d at 167. Indeed, other case law recognizes this
with specific regard to pepper spray. E.g., Lawrence v. Bowersox, 297 F.3d 727, 731-32 (8th
Cir. 2002) (recognizing that not all applications of pepper spray result in de minimis injury and
that factual inquiry needed to consider extent of pain inflicted in order to determine whether
constitutional deprivation had occurred).
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Meanwhile, research reveals instances where courts have held that an ongoing or
permanent injury can result in a finding of greater-than-de minimis force. E.g., Caporasso v.
Barnes, No. 1:23CV825, 2025 WL 3300248, at *9 (M.D.N.C. July 21, 2025), adopted, 2025 WL
3296490 (M.D.N.C. Nov. 26, 2025) (Eighth Amendment pepper spray case; force resulting in
difficulty breathing, dizziness, headaches, blurry vision, and eye irritation “for months” held
more than de minimis or trivial); Callaway v. Travis Cnty., No. A-15-CA-00103, 2016 WL
4371943, at *4 (W.D. Tex. July 28, 2016) (Fourth Amendment case; force resulting in
permanent nerve damage in arms held more than de minimis); Wiley-Stiger v. O’Bannon, No.
3:14-CV-295, 2016 WL 7422682, at *6-*7 (W.D. Ky. Dec. 22, 2016) (on summary judgment,
finding evidence of conduct greater than de minimis where plaintiff presented evidence of injury
requiring ongoing treatment).
Although Defendant presents evidence indicating that only a small amount of spray was
used (0.1 ounces at most), Plaintiff has presented evidence that even that small amount of spray
was sufficient to cause ongoing injury to him. The district court should conclude that the force
allegedly used by Defendant was not de minimis or trivial as a matter of law, and should proceed
to consideration of Defendant’s conduct in light of the Hudson factors, including whether the use
of force was de minimis in this case.
b. Review of the Hudson factors shows a genuine fact issue regarding
whether Defendant acted maliciously and sadistically.
Considering the Hudson factors, and taking the facts in the light most favorable to
Plaintiff (as the Court must), Plaintiff brings forth sufficient competent summary judgment
evidence to raise a genuine issue of material fact that Defendant acted maliciously and
sadistically.
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i. Need for application of force.
Plaintiff’s summary judgment evidence, to which Defendant did not object, indicates that
there was no need for any application of force at all. According to Plaintiff’s evidence, Plaintiff
was asleep in the CDO cage when Defendant kicked the cage, asked Plaintiff if he was “still
talking that shit,” and simultaneously sprayed Plaintiff. (Doc. No. 1, p. 4; Doc. No. 15, p. 4.)
While Plaintiff acknowledges that he and Defendant had exchanged profanities earlier, see Doc.
No. 15, p. 4, there is no indication that Plaintiff was resistant or defiant (or even awake) when
Defendant used force against him. This Hudson factor weighs in Plaintiff’s favor.
ii. Relationship between need for application of force and
amount of force used.
Because there was no need for the application of any force, the amount of force used was
excessive to the need. But at the same time, the amount of force actually used by Defendant,
even viewing the evidence most favorably to Plaintiff, was minute: at most, Defendant
discharged only one-tenth of one ounce of spray from his five-ounce spray can – two percent of
the spray at Defendant’s disposal. This Hudson factor favors Plaintiff, but only slightly.
iii. Threat reasonably perceived by the responsible official.
Defendant does not claim that he perceived any threat from Plaintiff. Because there is no
evidence that Defendant perceived any threat, this Hudson factor weighs in Plaintiff’s favor.
iv. Any efforts made to temper the severity of the force used.
The undisputed summary judgment evidence indicates that Defendant discharged, at
most, only one-tenth of one ounce of spray from his five-ounce spray can. (Doc. No. 103-1, p. 8
(chemical agent issue log, showing five ounces of spray in the can at both the beginning and end
of Defendant’s work shift); Doc. No. 103-2, p. 12 (use of force report indicates 0.1 ounces of
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spray used).) This is, as Defendant argues (Doc. No. 103, p. 8), a “miniscule” amount: only two
percent of the amount of spray that Defendant had at his disposal. This factor favors Defendant.
v. Consideration of the injury suffered.
Although not strictly a Hudson factor, the absence of significant injury can provide
insight regarding the amount of force applied. See Cowart, 837 F.3d at 453. In this case, there is
dispute over the severity of Plaintiff’s injury. Plaintiff presents evidence that he sees spots and
that his “sight in [his] right eye has remained diminished.” (Doc. No. 15, p. 3.) Plaintiff also
presents expert ophthalmological evidence (to which Defendant has not objected) that he
suffered damage to his cornea leading to “permanent visual distortion.” (Doc. No. 109-7, p. 3.)
Plaintiff does not present summary judgment evidence, though, about the precise degree to
which his vision is diminished or his cornea damaged. Defendant’s summary judgment evidence
indicates that Plaintiff was seen by medical personnel on the day after the alleged use of force
and that he did not display signs of injury, nor did he complain about diminished vision or any
other injury. (Doc. No. 105-3, p. 65.) Additionally, Defendant notes that Plaintiff did not report
vision issues until January 2024, more than six months after the use of force. See Doc. No. 103,
p. 7 (citing Doc. No. 105-3, p. 6).
Defendant’s evidence indicates that only a small amount of spray was used (0.1 ounces at
most, see Doc. No. 103-2, p. 12), but Plaintiff has presented evidence that whatever small
amount of spray might have been used, it was enough to cause ongoing injury to him. Defendant
also protests that Plaintiff did not seek medical treatment for blurry vision until more than six
months after the incident and that he refused medical treatment even when appointments were
set. (Doc. No. 103, p. 7 (citing medical records).) Some evidence seems to support this view,
and it might sway a jury to conclude that any injury was in fact minimal or nonexistent, and thus
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that Defendant’s force was de minimis, but Plaintiff’s competent summary judgment evidence
indicates that he did request medical treatment immediately and did not receive it. (Doc. No. 15,
p. 3.) Summary judgment is not the time to make credibility determinations or weigh the
evidence; the Court must view all disputed facts in the light most favorable to Plaintiff. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); First Colony Life Ins. Co.
v. Sanford, 555 F.3d 177, 180 (5th Cir. 2009).
vi. Evidence regarding Defendant’s subjective intent.
Plaintiff has submitted competent summary judgment evidence that Defendant acted
maliciously and sadistically to cause harm. See Hudson, 503 U.S. at 9. Defendant, seeking
summary judgment, argues that Plaintiff “at most establishes, taking his allegations
uncontroverted by competent summary judgment evidence as true, that [Defendant] acted
negligently or wrongfully when he sprayed a miniscule amount of pepper spray at him, causing
de minimis injury.” (Doc. No. 103, p. 9.)
A defendant does not violate the Constitution by acting negligently or making an error of
judgment. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“negligently inflicted
harm is categorically beneath the threshold” for a constitutional violation); Whitley, 475 U.S. at
322; see also Hare v. City of Corinth, Miss. 74 F.3d 633, 647-48 (5th Cir. 1996). Here, though,
Defendant does not specify in his summary judgment motion what was negligent or erroneous
about his conduct.12 Instead, he cites evidence indicating that his spray can discharged no more
than one-tenth of one ounce of spray. (Doc. No. 103, pp. 10-11 (citing Doc. No. 103-1, p. 8;
Doc. No. 103-2, p. 27).) Defendant’s sole proffered basis for contending that he did not
12 Defendant may intend to rely at some point on an argument that his conduct was negligent or accidental, but any
such argument is inadequately briefed in his summary judgment motion.
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discharge the spray deliberately is the quantity of spray discharged, which he argues is “so low”
that “it cannot possibly support a constitutional claim.” Id. at 11.
The lone case that Defendant cites for this proposition, though, is distinguishable for the
same reason as his other cited cases: it does not present a situation involving evidence of a
permanent or ongoing injury. In Amos v. Jefferson, the plaintiff was sprayed with pepper spray
and claimed ongoing injury. The court recognized cases finding that the “normal effects of being
sprayed with pepper spray are de minimis” and noted that the plaintiff had presented only his
own assertion of ongoing injury. Because the plaintiff could not rely only on his own conclusory
statements on summary judgment, the court dismissed his excessive force claim. No.
5:17CV195, 2019 WL 950367 (E.D. Tex. Feb. 27, 2019), aff’d, 861 F. App’x 596 (5th Cir. 2021)
(unpublished). By contrast, in this case Plaintiff has presented more than just his own allegations
– he has presented an expert’s opinion that he suffered permanent damage. This is enough, on
summary judgment, to set Plaintiff’s case apart from Amos.
Other summary judgment evidence of malicious conduct exists, including Plaintiff’s
statement that Defendant sprayed him while kicking Plaintiff’s cage and asking him “you still
talking that shit?” (Doc. No. 1, p. 4; Doc. No. 17-1, p. 1.)13 Plaintiff also points to evidence that
Defendant failed to report his use of the spray (and was suspended for four days and placed on
six months of disciplinary probation for failing to do so) and that Plaintiff and Defendant had
sparred verbally before the spraying but that the incident had long since ended and that Plaintiff
was sleeping when Defendant approached him. (Doc. No. 107, p. 19 & nn.81-83; Doc. No. 107-
8, p. 8; see also Doc. No. 103-2, p. 10.)
13 As discussed, Plaintiff’s statements are competent summary judgment evidence, as he made them under penalty
of perjury in response to the Court’s questionnaire. See Hart, 343 F.3d at 765.
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On the other hand, Plaintiff, who bears the burden on summary judgment in the qualified
immunity setting, offers nothing to counter the evidence that Defendant used almost no force
against him. At most, Defendant discharged only one-tenth of one ounce of spray, or two
percent of the spray he possessed. Plaintiff’s summary judgment evidence indicates that he sees
spots and has suffered “permanent visual distortion,” but the true severity of any injury is not
clear from either party’s evidence. Meanwhile, the foreseeability of causing a significant injury
in a single brief incident with such a small amount of spray is questionable. Plaintiff states that
he has suffered ongoing blurry vision since the incident, and has provided expert
ophthalmological evidence (to which Defendant did not object) that the failure to irrigate his
eyes after the use of force resulted in corneal damage and permanent visual distortion. But a
defendant who intended to act sadistically and maliciously could reasonably have been expected
to use a lot more spray than Defendant did here.
vii. Review of Hudson factors.
Consideration of the Hudson factors as a whole yields something of a mixed bag. On one
hand, there is no evidence Plaintiff posed any threat or that any force was needed. Plaintiff was
not even awake at the time of Defendant’s use of force. Because there was no need for force,
any amount of force was greater than the need for it, but it is also relevant that Defendant’s force
was minimal. The summary judgment evidence also indicates that Defendant bore Plaintiff ill
will because of their profanity-laced interaction, as shown by Defendant’s subsequent kicking of
Plaintiff’s cage and asking whether Plaintiff was “still talking that shit” while simultaneously
spraying him. On the other hand, this was a brief, one-time incident that involved a minimal use
of force and a “miniscule” amount of spray, resulting in an injury of uncertain severity, thus
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evoking Hudson’s statement that “not every malevolent touch by a prison guard gives rise to a
federal cause of action.” 503 U.S. at 9.
Considering the Hudson factors, the undersigned concludes that Plaintiff has produced
sufficient competent summary judgment evidence that Defendant’s conduct in this one-time
incident violated Plaintiff’s Eighth Amendment rights. In reaching this conclusion, the
undersigned is swayed by the absence of threat, resistance, or defiance at the time of the incident,
the evidence of Defendant’s ill will towards Plaintiff, Defendant’s subsequent failure to report
his use of force (which can be interpreted, in the light most favorable to Plaintiff, as an attempt
by Defendant to cover up his use of force), and the ongoing injury Plaintiff suffered. The district
court therefore should not grant summary judgment for Defendant based on qualified immunity
on this ground.
2. Clearly established law.
Defendant argues that even assuming a constitutional violation occurred, “it can not be
said that the spraying of 0.1 or less ounces of pepper spray at an inmate amounts to a violation of
clearly established law. If anything, Fifth Circuit precedent … makes clear that such conduct is
not excessive force.” (Doc. No. 103, p. 12) (emphasis deleted).
On summary judgment in this qualified immunity setting, Plaintiff bears the burden to
show that both the unconstitutionality of Defendant’s conduct and the nontriviality of the force
were clearly established by law at the time of the conduct. See Estrada v. Norton, No. 1:22-CV-
00073, 2025 WL 3272089, at *6 (N.D. Tex. Oct. 16, 2025), adopted, 2025 WL 3270659 (N.D.
Tex. Nov. 24, 2025); White v. Pauly, 580 U.S. 73, 79 (2017) (it must be “beyond debate” that the
defendant broke the law); see also Zorn, 2026 WL 795469, at *2 (quoting City and Cnty. of San
Francisco v. Sheehan, 575 U.S. 600, 616 (2015) (“In short, officers receive qualified immunity
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unless they could have ‘read’ the relevant precedent beforehand and ‘know[n]’ that it proscribed
their specific conduct.”). This analysis presents a question of law.
Plaintiff could satisfy his burden by identifying a case or a body of relevant case law in
which an officer exercising similar force under similar circumstances was held to have violated
the Constitution. See Estrada, 2025 WL 3272089, at *4 (citing Joseph, 981 F.3d at 330). Such
case authority need not be binding: a “robust consensus” of persuasive authority can suffice. See
al-Kidd, 563 U.S. at 741-42. If Plaintiff argues that binding case law exists, that case law must
be published, because only published authority clearly establishes the law for qualified immunity
purposes. See Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019) (because unpublished
opinions are not precedential, they “do not establish binding law for the circuit” and therefore
“cannot be the source of clearly established law for qualified immunity analysis”); Cooper v.
Brown, 844 F.3d 517, 525 n.8 (5th Cir. 2016).14
Plaintiff’s burden is not so stringent as to require him to identify a case that is directly on
point, but he must show that any prior cases gave Defendant “reasonable warnings that the
conduct at issue violated constitutional rights.” Estrada, 2025 WL 3272089, at *4 (citing
Batyulova v. Doege, 994 F.3d 717, 726 (5th Cir. 2021)). Such prior cases must have been clear
enough – and not so general or abstract – so as to make every reasonable officer understand that
the challenged conduct is unlawful. See al-Kidd, 563 U.S. at 741; cf. City of Tahlequah v. Bond,
595 U.S. 9, 12 (2021) (per curiam) (prior cases do not suffice to establish the law clearly if they
define the law at too high a level of generality). It is not enough that a rule is suggested by or
can be divined from existing precedent: the authority must be sufficiently specific such that an
14 As noted, the Supreme Court stated in Zorn that it “assume[d] without deciding that controlling Circuit precedent
can clearly establish law for qualified immunity purposes.” 2026 WL 795469, at *2 n.3 (internal quotation marks
omitted) (citing Rivas-Villegas, 595 U.S. at 5).
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officer could have read the relevant precedent beforehand and known that it proscribed their
specific conduct. See Zorn, 2026 WL 795469, at *2; Wesby, 583 U.S. at 63.
For the reasons discussed below, Plaintiff fails to satisfy this high burden.
a. Binding case? Robust consensus of persuasive authority?
In McCoy v. Alamu, the Fifth Circuit concluded that the law was not clearly established
(as of 2020, the time of that decision) that a prison guard’s one-time injurious use of pepper
spray against a celled inmate, for no reason, violated the Constitution. 950 F.3d at 233-34.
Plaintiff argues that, in the wake of McCoy, the law now is clearly established. (Doc. No. 107,
pp. 15-16.) This case does bear resemblance to McCoy: as in that case, Plaintiff’s allegations
and his version of the disputed summary judgment evidence indicate that Defendant used pepper
spray for no reason at all, causing ongoing or permanent injury. Cf. McCoy, 950 F.3d at 231-32.
The problem, though, is that the Supreme Court vacated the Fifth Circuit’s decision in
McCoy. __ U.S. __, 141 S. Ct. 1364 (2021). Although that vacatur’s purpose was to allow
consideration of the case in light of Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam), the result is
that McCoy is no longer a published decision, and it therefore cannot clearly establish the law for
purposes of the qualified immunity analysis in this case. See Los Angeles Cnty. v. Davis, 440
U.S. 625, 634 n.6 (1979) (“Of necessity our decision vacating the judgment of the Court of
Appeals deprives that court’s decision of precedential effect.”) (cleaned up); Reynolds v.
Preston, No. 23-15504, 2024 WL 2891205, at *1 (9th Cir. June 10, 2024) (unpublished) (vacated
decision cannot clearly establish the law for qualified immunity purposes); Ryan v. Nagy, No.
20-11528, 2022 WL 17091985, at *3 (E.D. Mich. Nov. 21, 2022) (citing United States v. Sigma
Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002)) (“Vacated decisions are not law, let alone
clearly established law.”).
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There is hope for Plaintiff’s position beyond just McCoy. Although Plaintiff does not cite
them, research reveals three district court cases in this circuit that concluded the law has long
been clearly established that a defendant’s use of pepper spray was unlawful. Closer
examination, though, indicates that the precedents do not establish the law clearly enough.
In Hensley v. Thompson, Civ. No. 18-877, 2022 WL 636049, at *4 (M.D. La. Feb. 11,
2022), adopted, 2022 WL 628533 (M.D. La. Mar. 3, 2022), the court found that the law was
clearly established as of 2018 that “an officer may not use chemical spray on an inmate without
provocation or any reason for the use of the spray.” The plaintiff claimed that during a jail
disturbance involving other inmates in other cells, the defendant sprayed him with a chemical
agent “for no reason at all” while Plaintiff was in his cell; prior to being sprayed, allegedly,
Plaintiff had not even spoken. Id. at *1. The Hensley court relied on the Supreme Court’s
Taylor decision and several unpublished or out-of-circuit cases and said that
[f]or decades, it has been clear that punching or hitting an offender for no reason
is excessive; the fact that the force employed was a chemical rather than fist
makes no difference. In both circumstances, it is clear that if force is
unnecessary, any force used is excessive. Further, other circuits have, for
decades, found that it is a violation of the Eighth Amendment for prison officials
to use mace, tear gas or other chemical agents in quantities greater than necessary
or for the sole purpose of infliction of pain.
Id. at *4 & nn.54-57 (internal quotation marks omitted) (citing Terral v. Ducote, Civ. No. 15-
2366, 2017 WL 6568516, at *8 (W.D. La. Sept. 28, 2017) (“as early as 2004-2005, courts have
recognized that it was clearly established that an officer’s use of pepper spray is excessive where
the detainee already is handcuffed and hobbled”); Iko v. Shreve, 535 F.3d 225, 240 (4th Cir.
2008); Hill v. Crowe, No. 19-1051, 2020 WL 2750284, at *3-*5 (D.S.C. May 6, 2020); Furnace
v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013)).
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Hensley’s assemblage of cases arguably did not put the question “beyond debate.” See
White, 580 U.S. at 79. Taylor involved conduct far different from Defendant’s here, see 592
U.S. at 7-8 (describing how prisoner was held in squalid conditions), and none of the other cases
presented fact scenarios closely comparable to this case, either.15 Because the qualified
immunity analysis looks to an officer’s particular conduct, the law can be “clearly established”
only when the conduct at issue is sufficiently similar, not viewed from too high a level of
generality. See Bond, 595 U.S. at 12; Vincent, 805 F.3d at 547. And Hensley itself, being a
district court decision, cannot itself clearly establish the law of the circuit, although its holding
regarding its own facts could perhaps be included in a collection of persuasive authority on the
matter.16
In Jones v. Gooden, the court relied on Hensley on summary judgment and concluded
that the law was clearly established “that an officer could not spray a chemical agent on a
compliant inmate with no justification for the use of force.” Civ. No. 21-372, 2025 WL
15 See Terral, 2017 WL 6568516, at *8 (defendant sprayed in face and groin while he was restrained after being
subdued by officers); Iko, 535 F.3d at 231-35 (prisoner wrongful death case based on asphyxia caused in part by
multiple applications of pepper spray against a passive inmate); Hill, 2020 WL 2750284, at *4 (prisoner assaulted
with security keys and chemical spray while in cell; no discussion of clearly established law – opinion discusses
only whether the defendant violated the plaintiff’s rights); Furnace, 705 F.3d at 1025 (inmate sprayed for up to a full
minute with two canisters of pepper spray).
16 Or perhaps it might not. The Supreme Court had this to say:
“A decision of a federal district court judge is not binding precedent in either a different judicial district, the
same judicial district, or even upon the same judge in a different case.” 18 J. Moore et al., Moore’s Federal
Practice § 134.02[1] [d], p. 134–26 (3d ed.2011). Many Courts of Appeals therefore decline to consider
district court precedent when determining if constitutional rights are clearly established for purposes of
qualified immunity. See, e.g., Kalka v. Hawk, 215 F.3d 90, 100 (C.A.D.C.2000) (Tatel, J., concurring in
part and concurring in judgment) (collecting cases). Otherwise said, district court decisions—unlike those
from the courts of appeals—do not necessarily settle constitutional standards or prevent repeated claims of
qualified immunity.
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011). Thus, even the court that issued Hensley would not be bound by
its own decision when considering whether the law is clearly established. Nor would the court that decided Rivens-
Baker v. Collier, discussed in a moment.
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1913376, at *3 & n.38 (M.D. La. Feb. 24, 2025), adopted, 2025 WL 1913376 (M.D. La. June 30,
2025). In that case, the plaintiff alleged that the defendant officer sprayed him with a chemical
agent even though the plaintiff was compliant, and despite the fact the defendant was aware the
plaintiff had a “non-chemical duty status.” Id. at *1.
Rivens-Baker v. Collier, a case from this district and division, involved a use of spray in
the CDO cage at the McConnell Unit – the same prison as in this case. The plaintiff alleged that
one defendant sprayed a different prisoner who was only 12 feet away from the plaintiff, causing
injury to the plaintiff. No. 2:23-cv-00334, 2025 WL 642927, at *6 (S.D. Tex. Jan. 17, 2025),
adopted, 2025 WL 642051 (S.D. Tex. Feb. 27, 2025). The defendant allegedly denied the
plaintiff’s request for medical attention by laughing at him and ignoring him. Id. at 2. In a
separate incident, the plaintiff alleged, another defendant sprayed him while falsely claiming that
the plaintiff was trying to cut himself with a razor. Id. Evaluating a motion to dismiss filed by
the defendants based on qualified immunity, the court found that as of early 2022 the law was
clearly established through Fifth Circuit case law and a “robust consensus” of persuasive
authority that “a prison official’s use of force – including the use of a chemical spray – without
provocation on a compliant and restrained inmate supports Eighth Amendment excessive force
claims.” Id. at 8 (citing Cowart, 837 F.3d at 454; Hensley, 2022 WL 636049, at *4; Wingard v.
Louisiana through Dep’t of Pub. Safety & Corrs., 594 F. Supp. 3d 704, 726 (M.D. La. 2022)).
Rivens-Baker itself cannot be part of a robust consensus of persuasive authority in this
case, because it was decided after Defendant’s 2023 conduct, but the cases it relied upon could
be considered as part of such authority. One may question, however, whether the cases cited in
Rivens-Baker clearly established the law with respect to Defendant’s particular conduct in this
case. The court cited Hensley, discussed above. Wingard, a district court case, found at the
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screening stage a colorable claim of excessive force made where the fully compliant and
restrained inmate plaintiff was dragged and sprayed with a chemical agent. 594 F. Supp. 3d at
726. That case did not find a constitutional violation, but only a colorable claim. Cowart,
meanwhile, involved a prison fracas in which an officer allegedly punched the plaintiff at least
twice in the face, resulting in injuries that could have been found to include bruising, contusions,
and a ruptured eardrum. 837 F.3d at 453-54. While Rivens-Baker cites Cowart’s statement that
“courts have frequently found constitutional violations in cases where a restrained or subdued
person is subjected to the use of force” (id. at 454 (citing Kitchen v. Dallas Cnty., Tex., 759 F.3d
468, 479 (5th Cir. 2014)), the qualified immunity analysis needs to be tied sufficiently closely to
a defendant’s particular conduct, so that every reasonable officer will understand that the
challenged conduct is unlawful. See Bond, 595 U.S. at 12. The question of whether the law was
clearly established must be undertaken in light of the specific facts of the case, not as a broad
general proposition. See Mullenix, 577 U.S. at 11. The cases cited in Rivens-Baker arguably are
too dissimilar from the facts of this case to have allowed Defendant to read the relevant
precedent and know that it proscribed his conduct. Cf. Zorn, 2026 WL 795469, at *2 (citing
Sheehan, 575 U.S. at 616).
There is some case law from outside our circuit indicating that conduct like Defendant’s
here violated clearly established law. In Roberson v. Torres, the United States Court of Appeals
for the Sixth Circuit upheld a district court’s denial of qualified immunity where an officer, in an
initial attempt to wake up a sleeping prisoner locked in a cell, sprayed the prisoner with a
chemical agent. The appellate court found that “using a chemical agent in an initial attempt to
wake a sleeping prisoner, without apparent necessity and in the absence of mitigating
circumstances, violates clearly established law.” 770 F.3d 398, 407 (6th Cir. 2014); see also
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Foulk v. Charrier, 262 F.3d 687, 701-02 (8th Cir. 2001) (malicious and sadistic pepper-spraying
of compliant prisoner, done with intent to injure and causing injury, violates the Eighth
Amendment); cf. Brathwaite v. Rispoli, Civ. No. 04-1542, 2007 WL 1795880, at *5 & n.2 (D.
Del. June 21, 2007) (denying motion to dismiss where prisoner alleged excessive force by being
pepper-sprayed while asleep, and noting that “nothing in the record indicates pepper spray was
used on the sleeping Brathwaite to maintain or restore discipline”); Wimberly v. Baca, No.
CV06-06005, 2007 WL 10130112, at *13 (C.D. Cal. Nov. 19, 2007) (Fourth Amendment case,
finding law was clearly established such that reasonable officer would not believe it was lawful
to pepper-spray a sleeping man in the face). Considered together, these opinions and cited cases
do produce a body of law indicating that pepper-spraying a sleeping or compliant inmate in the
face is unlawful. See al-Kidd, 563 U.S. at 741-42.
But is that a robust enough consensus? The undersigned concludes that it is not.
Robustness is not an especially well-defined concept, but Vincent held that opinions by two
federal appellate courts and an intermediate state appellate court did not “constitute persuasive
authority adequate to qualify as clearly established law sufficient to defeat qualified immunity in
this circuit.” 805 F.3d at 549. Other circuits have found similarly. E.g., Avant v. Doke, 104
F.4th 203, 211 (10th Cir. 2024) (two out-of-circuit opinions did not clearly establish law); King
v. Riley, 76 F.4th 259, 269 (4th Cir. 2023) (two out-of-circuit cases were not enough for a clearly
established right); L.G. through M.G. v. Columbia Public Schs., 990 F.3d 1145, 1150 (8th Cir.
2021) (two circuit cases and several district court cases are not enough to create a robust
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consensus); Stewart v. City of Euclid, 970 F.3d 667, 675 (6th Cir. 2020) (two out-of-circuit cases
did not provide robust consensus).17
Some in-circuit authority suggests that conduct like that of Defendant did not violate
clearly established law because the force used was not shown to be greater than de minimis. To
overcome qualified immunity, Plaintiff must show that the law was clearly established both (1)
that his conduct was applied maliciously and sadistically to cause harm and (2) that it was greater
than de minimis. Estrada, 2025 WL 3272089, at *6.18 Estrada found that the law was not
clearly established in 2020 that the use of chemical spray on a compliant inmate was an unlawful
use of force that was more than de minimis. See id. The court cited Thomas and Jackson, as
well as McCoy (which had not yet been vacated at the time of the Estrada defendant’s conduct)
and found that they comprised “a body of case law that discusses the constitutionality of
chemical spray in prisons and considers chemical spray a de minimis use of force.” Id. at *8.
Estrada has its factual dissimilarities from this case, as do the cases it relied upon.
Estrada had allegedly been subjected to multiple forms of force, but suffered no injury from the
chemical spray. See Estrada, 2025 WL 3272089, at *3 (possible broken arm the only injury
alleged). So too with Thomas and Jackson. See Thomas, 222 F. App’x at 441 (no apparent
injury, no complaints by plaintiff to medical, and no medical care administered); Jackson, 984
F.2d at 700 (no injury from being sprayed with fire extinguisher). The plaintiff in McCoy
17 Even if more courts from outside the Fifth Circuit had weighed in, some believe there may be a limit to the extent
to which officers should be expected to research. See Guptill v. City of Chattanooga, Tenn., 160 F.4th 768, 783 (6th
Cir. 2025) (Thapar, J., concurring) (noting that the Supreme Court has not yet decided what precedents, other than
its own, qualify as controlling authority for qualified immunity purposes, and stating: “It’s even worse to suggest
that officers must pore over not only our cases, but also those from our eleven sister circuits. To the extent our case
law suggests they must do so, it’s incorrect.”).
18 Plaintiff does not alternatively contend that Defendant’s use of the pepper spray, even if found to be a de minimis
use of force, was repugnant to the conscience of mankind. See Hudson, 503 U.S. 9-10 (citing Whitley, 475 U.S. at
327).
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alleged that he suffered injuries, but that now-vacated opinion does not reflect whether the
allegation was of enduring or permanent injury as opposed to harm of a temporary nature when
the force was used. Here, unlike Estrada, Thomas, Jackson, and arguably McCoy, Plaintiff’s
summary judgment evidence indicates an enduring or permanent injury.
But Estrada points up that the use of chemical spray has not been clearly established to
be greater than a de minimis use of force. 2025 WL 3272089, at *6. And ultimately, this is
where Plaintiff’s position founders. Even if case law were found to be clear enough that
Defendant could not gratuitously pepper-spray a sleeping inmate, Plaintiff fails to show that the
use of pepper spray is clearly established as more than a de minimis use of force.
b. Alternatively, obviousness?
Another potential path remains for finding that the law was clearly established: the
violation at issue could be so obvious that particularized case law addressing similar
circumstances was not required in order to put Defendant on sufficiently clear notice that his
conduct was wrongful. See Estrada, 2025 WL 3272089, at *5; see also Brousseau, 543 U.S. at
199. Such obviousness is rare, though, and the standard for it is “sky high.” Joseph, 981 F.3d at
338. One example is Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012). There, the court found
that the repeated tasing of nonthreatening, compliant arrestee violated clearly established Fourth
Amendment law even without body of relevant case law. Although it involved tasing and not
pepper spray, Newman noted that the lawfulness of a prison official’s actions in an excessive
force case does not rely on the particular means the official uses to exert that force. Id. at 763-64
(“Qualified immunity will not protect officers who apply excessive and unreasonable force
merely because their means of applying it are novel.”).
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In this summary judgment context, the Court must credit Plaintiff’s evidence that he was
asleep in the CDO cage, presenting no threat to anyone, when Defendant kicked his cage, asked
him whether he was “still talking that shit” and sprayed him, and then failed to report having
done so. Taking the facts in the light most favorable to Plaintiff as the nonmovant, Defendant
gratuitously sprayed Plaintiff with a chemical agent. Competent summary judgment evidence
also indicates that this spraying was done not for any legitimate reason but rather out of malice:
there was no resistance, no disobedience or argument occurring, no larger disturbance to quell.
Plaintiff was asleep in his cage, alone and quiet.
The “obviousness” line of reasoning possesses appeal here. It is hard to imagine that any
reasonable officer could possibly have thought in 2023 that gratuitously pepper-spraying an
inmate in a situation like this case was permissible: any reasonable officer, if asked, would say
that you can’t just pepper-spray, for no reason, a sleeping inmate locked in a cage. A baseless
use of force like the one presented by the summary judgment evidence here arguably meets the
“sky high” obviousness standard discussed in Joseph with regard to whether Defendant acted
maliciously and sadistically. Cf. McCoy, 950 F.3d at 236 (Costa, J., dissenting in part) (cases
involving obvious constitutional violations should be the easiest ones in which to find that an
officer was plainly incompetent or knowingly violated the law).
But obviousness proves elusive when it comes to the second part of the question: whether
the force used was de minimis. Plaintiff is required to show that the law is clearly established
that Defendant’s force exceeded a trivial level. See Estrada, 2025 WL 3272089, at *6. In this
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case, one-tenth of one ounce of spray was discharged, at most. The release of this infinitesimal
quantity of spray is not so obviously non-de minimis as to render case law unnecessary.19
The district court should conclude that the law was not clearly established that
Defendant’s conduct was wrongful at the time he engaged in it, and therefore should grant
summary judgment based on qualified immunity.
I. Conclusion and recommendation.
The district court should GRANT Defendant’s motion for summary judgment (Doc. No.
103) and DISMISS this case.
J. Notice.
The Clerk will file this Memorandum and Recommendation and transmit a copy to each
party or counsel. Within 14 days after being served with a copy of the Memorandum and
Recommendation, a party may file with the Clerk and serve on the United States Magistrate
Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1),
and General Order No. 2002-13, United States District Court for the Southern District of Texas.
A failure to file written objections to the proposed findings, conclusions, and recommendation in
a magistrate judge’s report and recommendation within 14 days after being served with a copy
shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-
19 The evidence that Plaintiff suffered an enduring injury does not change this result. If an enduring injury were all
that were required to clearly establish a use of force as “obviously” greater than de minimis, the obviousness
exception would swallow the general rule requiring sufficiently clear case law regarding the conduct. And an
officer cannot be fairly warned ahead of time about the unlawfulness of his conduct based on an injury he has not
yet caused and arguably cannot foresee. Thus, while Plaintiff’s quantum of injury could conceivably be relevant to
the question, it cannot alone serve as the barometer of obviousness.
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to proposed factual findings and legal conclusions accepted by the district court. See Douglass v.
United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
SIGNED on March 26, 2026.
_____________________________
MITCHEL NEUROCK
United States Magistrate Judge
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