Dearson v. Mixon et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
BRANDON SCOTT DEARSON, §
§
§
§
§
§
§
§
Plaintiff,
v. CIVIL ACTION NO. 6:26-CV-00029
MARK MIXON,
Defendant.
MEMORANDUM AND RECOMMENDATION
TO RETAIN CASE AND TO DISMISS CERTAIN CLAIMS
Plaintiff Brandon Scott Dearson, appearing pro se and in forma pauperis, has filed
this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s case is subject to
screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28 U.S.C.
§§1915(e)(2), 1915A.
Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) and for the reasons
discussed below, the undersigned respectfully recommends that the district court RETAIN
Plaintiff’s excessive force claim against Officer Mark Mixon in his individual capacity for
monetary relief. The undersigned will order service separately on Officer Mixon with
respect to the excessive force claim retained in this case. The undersigned recommends
further that the Court DISMISS with prejudice:
● Plaintiff’s request for injunctive relief in the form of a formal apology; and
● Plaintiff’s municipal liability claim against Lavaca County for failure to state a
claim for relief.
United States District Court
Southern District of Texas
ENTERED
May 27, 2026
Nathan Ochsner, Clerk
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I. 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 making
recommendations on dispositive motions pursuant to 28 U.S.C. § 636.
II. PROCEDURAL BACKGROUND AND PLAINTIFF’S ALLEGATIONS
Plaintiff is currently confined at the Lavaca County Jail in Halletsville, Texas.
Plaintiff’s allegations arise in connection with his previous confinement at the Lavaca
County Jail in 2024.
In his complaint, Plaintiff sues Lavaca County Correctional Officer Mark Mixon.
(D.E. 1, pp. 1, 3). Plaintiff claims that Officer Mixon used excessive force on him. (D.E. 1,
pp. 3-4). While not naming Lavaca County directly, Plaintiff indicated that he wanted to
“sue the County.” Id. at 4. At the Court’s direction, Plaintiff has filed a More Definite
Statement to further explain his claims. (D.E. 13). Plaintiff alleges the following pertinent
facts in his Complaint and More Definite Statement.
Plaintiff states that he was arrested on July 19, 2024, and was taken into custody at the
Lavaca County Jail. (D.E. 11, p. 1). He further states that: (1) the incident in question with
Officer Mixon occurred sometime between July 1, 2024 and August 5, 2024; (2) Plaintiff
was subsequently released from jail on October 19, 2024; and (3) Plaintiff was taken back
into custody at the Lavaca County Jail on March 20, 2026. (D.E. 11, pp. 1, 3). While
Plaintiff indicates that he is not currently a pretrial detainee (D.E. 11, p. 2), the undersigned
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construes his allegations to reflect that he was a pretrial detainee at the time of the incident
with Officer Mixon.
Plaintiff alleges the following relevant facts regarding the incident with Officer
Mixon:
● after Officer Mixon handed Plaintiff his medications, Plaintiff threw the pills
down the hallway;
● Officer Mixon then called for help from a sheriff’s deputy to bring Plaintiff to
the detox cell;
● Plaintiff was restrained, removed from his cell for “acting up,” and escorted by
Officer Mixon and the sheriff’s deputy to the detox cell;
● Plaintiff was not acting in a combative manner or otherwise resisting and
threatening the officers in any way while being carried away;
● when Plaintiff arrived at the detox cell, he was placed on his knees and
remained cuffed from behind;
● Officer Mixon then shoved Plaintiff’s face and head forward directly into the
concrete slab;
● Plaintiff instantly felt pain and a pop in his neck;
● the other officer told Officer Mixon to stop and backed away;
● Plaintiff neither resisted Officer Mixon nor threatened him in any way while
they were in the detox cell;
● Officer Mixon proceeded to put his knee in Plaintiff’s back and stripped
Plaintiff of his boxers; and
● Plaintiff speculated that Officer Mixon removed Plaintiff’s boxers because he
thought Plaintiff was suicidal.
(D.E. 1, pp. 3-4; D.E. 11, pp. 4-9).
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As a result of Officer Mixon’s use of force, Plaintiff alleges that he suffered neck
issues and migraines which “have been rapidly declining since this incident” and have lasted
to this day. (D.E. 1, p. 4; D.E. 11, p. 10). Plaintiff adds that he has suffered from pain in the
head since the day of the incident. (D.E. 11, p. 10).
Plaintiff clarifies in the More Definite Statement that he seeks to sue Lavaca County.1
(D.E. 11, p. 12). Plaintiff seeks to hold Lavaca County responsible for: (1) training its
employees; (2) allowing Officer Mixon to remain employed despite Plaintiff’s experience;
(3) failing to stop Officer Mixon and instead “push[ing] it under the rug”; and (4) condoning
unspecified issues regarding “all levels of rank.” (D.E. 11, pp. 12-13).
Plaintiff primarily seeks monetary relief. (D.E. 1, p. 4; D.E. 11, p. 14). He further
asks that all officials involved in the excessive force incident accept responsibility and
formally apologize. (D.E. 11, p. 14).
III. GOVERNING LAW
A. Legal Standard for Screening of Plaintiff’s Action
When a prisoner seeks to proceed in forma pauperis the Court shall evaluate the
complaint and dismiss it without service of process if the Court finds the complaint
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. See
28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis
1 In a separate Order, the undersigned has added Lavaca County as a party defendant.
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complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from an immune
defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an
indisputably meritless legal theory, “such as if the complaint alleges the violation of a legal
interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
A claim has no arguable basis in fact if “after providing the plaintiff the opportunity to
present additional facts when necessary, the facts alleged are clearly baseless.” Talib v.
Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
“In analyzing the complaint, [the Court] will accept all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d 322,
324 (5th Cir. 1999). “The issue is not whether the plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claim. Thus, the Court should not
dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or
any possible theory that he could prove consistent with the allegations in the complaint.” Id.
(citations omitted). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff must allege sufficient facts in support of its legal conclusions that give rise to a
reasonable inference that Defendant is liable. Id.; Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2007). The factual allegations must raise Plaintiff’s claim for relief above the
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level of mere speculation. Twombly, 550 U.S. at 555. As long as the complaint, taken as a
whole, gives rise to a plausible inference of actionable conduct, Plaintiff’s claim should not
be dismissed. Id.
Pleadings filed by pro se litigants like Plaintiff are construed using a less stringent
standard of review. Documents filed by pro se litigants are to be liberally construed, and pro
se complaints, however inartfully drafted they might be, are held to less stringent standards
than formal pleadings drafted by lawyers. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir.
2002) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Estelle v. Gamble, 429
U.S. 97, 106 (1976). A plaintiff’s well-pleaded factual allegations in the complaint are to be
taken as true for purposes of screening, but such deference does not extend to conclusory
allegations, unwarranted factual inferences, or legal conclusions. DeMarco v. Davis, 914
F.3d 383, 386-87 (5th Cir. 2019).
B. Relevant law regarding § 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). 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
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
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859, 861 (5th Cir. 2002). “Personal involvement is an essential element of a civil rights
cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
IV. DISCUSSION
A. Plaintiff’s Request for a Formal Apology
Plaintiff’s request for a formal apology is not a remedy which this Court is
empowered to order under either § 1983 or any other provision. Jackson v. Nero, No. 25-
1673, 2025 WL 3002056, at *8 (E.D. La. Sep. 10, 2025), adopted, 2025 WL 2997438 (E.D.
La. Oct. 24, 2025); see also Devonish v. Atlantic Cnty. Justice Sys. Facility, 2010 WL
3024858, *3 (D. N.J. Jul. 29, 2010) (construing the plaintiff’s request for an apology as
injunctive relief and finding that “the remedy of ‘apology’ is not cognizable, either within
the meaning of a Section 1983 action or as a general legal remedy that a court has the power
to order, under any provision.”) (citations omitted). Accordingly, the undersigned
recommends that the district court DISMISS with prejudice Plaintiff’s request for
injunctive relief in the form of a formal apology.
B. Claims against Lavaca County
Plaintiff seeks to hold Lavaca County responsible for: (1) training its employees; (2)
allowing Officer Mixon to remain employed despite Plaintiff’s experience; (3) failing to stop
Officer Mixon and instead “push[ing] it under the rug”; and (4) condoning unspecified issues
regarding “all levels of rank.” (D.E. 11, pp. 12-13). Under § 1983, a municipality or local
government entity such as Lavaca County may be held liable for acts for which it is actually
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responsible. See Doe on Behalf of Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th
Cir. 1998) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)).
The governmental body must either itself subject a person to a deprivation of rights or
cause a person to be subjected to such deprivation. Connick v. Thompson, 563 U.S. 51, 59
(2011). A municipality is liable for the constitutional violations of its employees only if the
alleged constitutional deprivations resulted from municipal policy or custom. Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); see also Zarnow v. City of Wichita
Falls, Tex., 614 F.3d 161, 166 (5th Cir. 2010) (noting that a municipality may not be subject
to liability merely for employing a tortfeasor; liability requires deliberate action attributable
to the municipality that is the direct cause of the alleged constitutional violation). An official
municipal policy “includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to practically have the
force of law.” Connick, 563 U.S. at 60.
Liability of a municipality under § 1983 therefore requires proof of three elements: a
policymaker; an official policy; and a violation of constitutional rights whose “moving
force” is the policy or custom. Monell, 436 U.S. at 694; Piotrowski v. City of Houston, 237
F.3d 567, 578 (5th Cir. 2001). “[I]solated unconstitutional actions by municipal employees
will almost never trigger liability,” because “the unconstitutional conduct must be directly
attributable to the municipality through some sort of official action or imprimatur.”
Piotrowski, 237 F.3d at 578.
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Plaintiff’s allegations, accepted as true for purposes of screening, fail to plausibly
state the elements required for municipal liability against Lavaca County under § 1983.
Plaintiff does not allege the existence of any official written policies or customs that apply
with respect to Officer Mixon’s use of force on Plaintiff. Plaintiff certainly does not allege
such policies or customs in any depth of detail to suggest that they are the “moving force”
behind the alleged violations of Plaintiff’s constitutional rights. Cf. Spiller v. City of Tex.
City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (holding that a plaintiff must provide
specific facts regarding the description of a policy and its relationship to the underlying
constitutional violation); Rodriguez v. Southern Health Partners, Inc., No. 3:20-CV-0045-D,
2020 WL 2928486, at *5 (N.D. Tex. June 3, 2020) (citations omitted) (“[B]oiler plate
allegations of municipal policy, entirely lacking in any factual support that a municipal
policy does exist, are insufficient.”).
Plaintiff generally references Lavaca County’s failure to train employees like Officer
Mixon. “In limited circumstances, a local government’s decision not to train certain
employees about their legal duty to avoid violating citizens’ rights may rise to the level of an
official government policy for purposes of § 1983.” Connick, 563 U.S. at 61. However, a
governmental entity’s “culpability for a deprivation of rights is at its most tenuous where a
claim turns on a failure to train.” Id.; see also City of Oklahoma City v. Tuttle, 471 U.S. 808,
822-823 (1985) (plurality opinion) (“[A] ‘policy’ of ‘inadequate training’ ” is “far more
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nebulous, and a good deal further removed from the constitutional violation, than was the
policy in Monell.”).
To establish Monell liability on a failure-to-train theory, a plaintiff must prove that:
(1) the entity or supervisor failed to train or supervise the subordinate official; (2) a causal
link exists between the failure to train or supervise and the violation of the plaintiff’s rights;
and (3) the failure to train or supervise amounts to deliberate indifference. Estate of Davis ex
rel. McCully v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). The
Supreme Court has emphasized that deliberate indifference “is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence of his
action.” Connick, 563 U.S. at 61 (quoting Board of Cnty. Com’rs of Bryan Cnty. v. Brown,
520 U.S. 397, 410 (1997)). Thus, to succeed on a claim of failure to train or supervise under
§ 1983, the plaintiff usually must demonstrate “a pattern of violations.” Estate of Davis, 406
F.3d at 382 (quoting Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (internal quotations
omitted) (emphasis in original)). “Without notice that a course of training is deficient in any
respect, decisionmakers can hardly be said to have deliberately chosen a training program
that will cause violations of constitutional rights.” Id. The focus is on the adequacy of the
training program in relation to the tasks that particular employees must perform, and a
plaintiff must allege with specificity how a particular training program is defective. See
Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).
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Here, Plaintiff merely indicates that Lavaca County was responsible for the training of
Officer Mixon. (D.E. 11, p. 12). While generally alluding to the fact that “all levels of rank”
had condoned various unspecified issues, Plaintiff does not articulate any specific facts
concerning how Officer Mixon or other Lavaca County Jail employees were trained, why or
how their training was deficient, how any failure to train resulted in a violation of his
constitutional rights, or how any failure to train amounts to deliberate indifference that
subjects Lavaca County to municipal liability. See Melton v. Hunt Cnty., No. 3:14-cv-2202-
N, 2019 WL 5067907, at *3 (N.D. Tex. Oct. 8, 2019) (“[The plaintiff’s] pleading consists of
only conclusory allegations. [The plaintiff] does not establish that Hunt County’s failure to
train was the ‘moving force’ behind the constitutional violation nor does [the plaintiff] allege
any facts that show that Hunt County or Sheriff Meeks acted with deliberate indifference.”).
Plaintiff’s allegations, therefore, are wholly insufficient to allege a plausible claim for
municipal liability against Lavaca County. Accordingly, the undersigned recommends that
Plaintiff’s claims against Lavaca County be dismissed with prejudice for failure to state a
claim for relief. See Jackson v. Dallas Cnty. Dist. Attorney, No. 3:24-CV-2824-X-BW, 2026
WL 1191526, at *3 (N.D. Tex. Apr. 10, 2026), adopted, 2026 WL 1191525 (N.D. Tex. Apr.
30, 2026).
C. Excessive Force Claim against Officer Mixon
Plaintiff claims that Officer Mixon used excessive force against him. This excessive
force claim arises under the Fourteenth Amendment because the incident at issue was
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presumed to occur while Plaintiff was a pretrial detainee at the Lavaca County Jail. See
Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015) (abrogating the application of Eighth
Amendment excessive force standards articulated in Hudson v. McMillian, 503 U.S. 1
(1992), to pretrial detainees). To sufficiently state an excessive force claim, “a pretrial
detainee must show only that the force purposely or knowingly used against him was
objectively unreasonable.” Id.
“[O]bjective reasonableness turns on the ‘facts and circumstances of each particular
case.’” Kingsley, 576 U.S. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
The reasonableness of the force used must be assessed “from the perspective and with the
knowledge of the defendant officer” and with “deference to policies and practices needed to
maintain order and institutional security.” Id. at 399-400. In determining the objective
reasonableness of an officer’s use of force, a court should consider the following non-
exclusive factors: (1) “the relationship between the need for the use of force and the amount
of force used;” (2) “the extent of the plaintiff’s injury;” (3) “any effort made by the officer to
temper or limit the amount of force;” (4) “the severity of the security problem at issue;” (5)
“the threat reasonably perceived by the officer;” and (6) “whether the plaintiff was actively
resisting.” Id. at 397.
The Supreme Court recognizes that, while no particular quantum of injury is required,
the extent of injury suffered by an inmate is an important factor courts consider when
determining whether the amount of force used on a pretrial detainee was reasonable. See
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Kingsley, 576 U.S. at 397; Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). The Fifth Circuit and
district courts have consistently dismissed cases where the inmate alleges nothing more than
a de minimis injury in the complaint. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193-94
(5th Cir. 1997) (affirming district court’s dismissal of plaintiff's excessive force claim where
injury consisted of “a sore, bruised ear lasting for three days” was de minimis); Welsh v.
Correct Care Recovery Solutions, 845 F. App’x 311, 318 (5th Cir. 2021) (affirming district
court's dismissal of plaintiff's excessive force claim where injuries consisting of bruising and
swelling lasting for one week were de minimis).
Nevertheless, “[a]ny force found to be objectively unreasonable necessarily exceeds
the de minimis threshold, and, conversely, objectively reasonable force will result in de
minimis injuries only.” Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013) (footnote
omitted). “[O]bjective reasonableness turns on the ‘facts and circumstances of each
particular case.’” Kingsley, 576 U.S. at 397. “[A]s long as a plaintiff has suffered ‘some
injury,’ even relatively insignificant injuries and purely psychological injuries will prove
cognizable when resulting from an officer's unreasonably excessive force.” Brown, 524 F.
App’x at 79 (footnotes omitted) (quoting Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996)).
Applying the Kingsley factors to the facts alleged by Plaintiff, which must be accepted
as true for purposes of screening, the undersigned concludes that the actions of Officer
Mixon—in pushing Plaintiff violently to the ground while Plaintiff was restrained and not
resisting—were objectively unreasonable especially in light of the significant and lasting
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injuries reportedly suffered by Plaintiff to his head and neck as a result of the use of force.
See, e.g., Fennell v. Quintela, 393 F. App’x 150, 152 (5th Cir. 2010) (holding that allegations
that one prison officer slammed plaintiff against a wall and injured his shoulder and another
officer grabbed and twisted his wrists and injured his wrists, presented a fact issue as to
whether the force used was excessive and clearly unreasonable); Drumm v. Valdez, No. 3:16-
CV-3482-M-BH, 2019 WL 7494443, at *5 (N.D. Tex. Dec. 3, 2019), adopted, 2020 WL
85163 (N.D. Tex. Jan. 6, 2020) (finding that detainee’s allegations of officers hitting him,
placing him on the floor, restraining his arms, choking him, and closing a cell door on him
reasonably suggested that the use of force by several officers was objectively unreasonable).
Plaintiff’s allegations further indicate that he did not provoke the use of such extensive force,
that Officer Mixon made little to no effort to temper or limit his violent shove from behind,
and that Plaintiff did not present Officer Mixon with a serious security issue at the time of
the use of force since he was restrained in a detox cell at the time of the incident.
Accordingly, accepting Plaintiff’s allegations as true, the undersigned finds that
Plaintiff states a plausible Fourteenth Amendment excessive force claim against Officer
Mixon. The undersigned recommends that this claim be retained against Officer Mixon in
his individual capacity.
V. RECOMMENDATION
For purposes of screening and for the reasons discussed above, the undersigned
respectfully recommends that the district court RETAIN Plaintiff’s excessive force claim
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against Officer Mixon in his individual capacity for monetary relief. The undersigned will
order service separately on Officer Mixon with respect to the excessive force claim retained
in this case. The undersigned recommends further that the Court DISMISS with prejudice:
● Plaintiff’s request for injunctive relief in the form of an apology; and
● Plaintiff’s municipal liability claim against Lavaca County for failure to state a
claim for relief.
Respectfully recommended on May 27, 2026.
____________________________
Julie K. Hampton
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to each
party or counsel. Within FOURTEEN (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), General Order No. 2002-13, United States District Court for the Southern
District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN (14)
DAYS after being served with a copy shall bar that party, except upon grounds of plain error,
from attacking on appeal the unobjected-to proposed factual findings and legal conclusions
accepted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.
1996)(en banc).
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