UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

UNDRAY LOVE,

INSTITUTIONAL ID NO. 02383027,

Plaintiff,

v. No. 4:22-cv-0423-P

OFFICER T. THORSELL, ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER

In this civil-rights action, Plaintiff Undray Love complains about an

incident that occurred when he was being held as a pretrial detainee in

Tarrant County Green Bay Jail. See ECF No. 6. Love alleges that, on 

October 28, 2021, two jail officers—Defendants Officer T. Thorsell and 

Corporal Phylicia N. Hollie—used excessive force against him, causing 

him to sustain injuries. As a result of the same incident, Love was

convicted of assaulting a public servant and sentenced to two years’ 

imprisonment. He is currently incarcerated in the TDCJ Michael Unit. 

Proceeding pro se and in forma pauperis (“IFP”), Love seeks

monetary damages and injunctive relief under 42 U.S.C. § 1983. For the 

following reasons, the Court DISMISSES Love’s Amended Complaint.

BACKGROUND

Although the precise factual circumstances surrounding the incident 

are unclear to the Court, Love alleges that he was “preparing food” when 

an unidentified jail officer called a code. Love contends that he followed 

the officer’s instructions to return to his bunk area “when [Thorsell]

grabbed [his] wrist, snitched the food out of [his] hand [and] then 

followed these actions with a very aggressive elbow coming toward 

[him]...” See ECF No. 6 at 4. Love ducked, causing him to fall to the 

ground with Thorsell, where he was subsequently handcuffed. Id. Love 

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alleges that Hollie maced him after he had been handcuffed, causing his 

eyes to burn. See ECF No. 10 at 5–6.

LEGAL STANDARDS

A. Nature of Claims

Before a district court adjudicates the merits of a pro se prisoner’s 

claim, it should review and decipher the underlying nature and essence 

of the claim, regardless of the title affixed to the suit. See Odom v. West, 

174 F.3d 198, 1999 WL 153008, at *1 (5th Cir. 1999) (citing United 

States v. Santora, 711 F.2d 41, 42 n.1 (5th Cir. 1983)). 

A § 1983 action is the appropriate remedy for recovering damages for 

illegal state action. Taylor v. Cass Cnty. Dist. Ct., 178 F.3d 1291, 1999 

WL 236119, at *1 (5th Cir. 1999) (citing Heck v. Humphrey, 512 U.S. 477 

(1994)). The writ of habeas corpus is the appropriate federal remedy for 

a state prisoner challenging the fact or duration of his confinement. See

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Deters v. Collins, 

985 F.2d 789, 792–96 (5th Cir. 1993). 

B. 28 U.S.C. § 1915

A district court must dismiss a prisoner’s IFP complaint if, at any 

time, it determines that the action is frivolous or malicious; fails to state 

a claim on which relief may be granted; or seeks monetary relief against 

a defendant that is immune from such relief. See 28 U.S.C. § 

1915(e)(2)(B); see also Norwood v. O’Hare, 404 F. App’x 923, 924 (5th 

Cir. 2010). 

Dismissals for failure to state a claim under § 1915(e) are reviewed 

de novo, using the same standard applicable to dismissals under Federal 

Rule of Civil Procedure 12(b)(6). See Hale v. King, 642 F.3d 492, 497 (5th 

Cir. 2011) (citing Praylor v. Tex. Dep’t of Crim. Just., 430 F.3d 1208, 

1209 (5th Cir. 2005)). Under the 12(b)(6) standard, all well-pleaded facts 

are viewed in the light most favorable to the plaintiff, but the plaintiff 

must allege facts that support each element of the cause of action in 

order to state a valid claim. See City of Clinton, Ark. v. Pilgrim’s Pride 

Corp., 632 F.3d 148, 154–55 (5th Cir. 2010) (citing Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough 

to raise a right to relief above the speculative level.”)). The court does 

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not accept as true “[t]hreadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements.” City of Clinton, Ark., 

632 F.3d at 153 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

C. 42 U.S.C. § 1983

To state a claim for relief under 42 U.S.C. § 1983, the plaintiff must 

allege that (1) some person has deprived him of a federal right; and (2) 

that the person acted under color of state or territorial law. See Arnold 

v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citing Gomez v. Toledo, 

446 U.S. 635, 640 (1980)). 

1. Capacities

Section 1983 claims may be brought against persons in their 

individual or official capacity, or against a governmental entity. See 

Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009) (citations 

omitted). Personal-capacity suits seek to impose liability upon a 

government official as an individual while official-capacity suits 

generally represent another way of pleading an action against the entity 

of which an officer is an agent. Id. (citing Monell v. New York City Dep’t 

of Social Serv.’s, 436 U.S. 658, 690 n. 55 (1978)).

In order to recover damages under § 1983 from municipal employees 

in their official capacities, a plaintiff must demonstrate that the 

municipality itself is liable for the alleged unlawful conduct.

Municipalities are only liable if their official policies or customs cause 

injuries to the plaintiff. Id.

2. Excessive Force

Because Love complains about events that occurred while he was a 

pretrial detainee, his claims are governed by the Due Process Clause 

rather than the Eighth Amendment. See Jackson v. Culbertson, 984 F.2d 

699, 700 (5th Cir. 1993) (citing Valencia v. Wiggins, 981 F.2d 1440 (5th 

Cir. 1993)). Regardless, Love’s excessive-force claims are still analyzed 

under the same standard applicable to an Eighth Amendment excessiveforce claim. See Haddix v. Kerss, 203 F. App’x 551, 554 (5th Cir. 2006) 

(citing Jackson, 94 F.2d at 700)).

To prevail on such a claim, a plaintiff bears the burden of showing 

(1) an injury; (2) which resulted directly and only form the use of force 

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that was excessive to the need; and (3) the force used was objectively 

unreasonable. See Haddix, 203 F. App’x at 554 (citations omitted). 

In evaluating excessive-force claims under the Eighth Amendment, 

the “core judicial inquiry” is “whether force was applied in a good-faith 

effort to maintain or restore discipline, or maliciously and sadistically to 

cause harm.” Cowart v. Erwin, 837 F.3d 444, 452 (5th Cir. 2016) (citing 

Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)). The focus of this standard 

is on the official’s subjective intent to punish, which is determined by 

reference to the well-known Hudson factors—the extent of injury 

suffered; 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 

a forceful response. See Cowart, 837 F.3d at 452–53 (citations omitted). 

Although a showing of “significant injury” is no longer required, the 

plaintiff must allege that he suffered at least some form of injury. See 

Haddix, 203 F. App’x at 554 (citations omitted). The plaintiff must have 

suffered a more than de minimis physical injury, but there is no 

categorical requirement that the physical injury be significant, serious, 

or more than minor. See Roberson v. Dallas Cnty., 207 F.3d 658, 2000 

WL 122449, at *1 (5th Cir. 2000) (citing Gomez v. Chandler, 163 F.3d 

921, 924 (5th Cir. 1999)). The extent of the injury may supply insight as 

to the amount of force applied. See Cowart, 837 F.3d at 453.

ANALYSIS

After reviewing Love’s Amended Complaint and Answers to the 

Court’s Questionnaire, the Court concludes that he raises both habeas 

and § 1983 claims in this action. The Court will address each category 

below.

A. Habeas Claims

Love admits that, as a result of this incident, he was convicted of 

assaulting a peace officer. See ECF No. 10 at 1–2. He seeks to challenge 

the legality of that conviction here. Id. at. 2. Specifically, Love asks the 

Court to vacate his conviction and sentence. See ECF No. 6 at 4; see also

ECF No. 10 at 2. 

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Because Love is challenging the legality of his current confinement,

the Court concludes that his claim for injunctive relief is habeas in 

nature and not cognizable under § 1983. See Brown v. Estelle, 530 F.2d 

1280, 1282–84 (5th Cir. 1976) (citing Braden v. 30th Judicial Circuit Ct. 

of Kentucky, 410 U.S. 484 (1973)). The Court, therefore, concludes that 

it lacks jurisdiction to adjudicate this claim under § 1983.

B. § 1983 Claims

Love seeks to recover monetary damages from Defendants Thorsell 

and Hollie for their alleged unlawful use of force against him.

1. Corporal Phylicia N. Hollie

Love alleges that Hollie maced him after he “was already on the 

ground with handcuffs on behind [his] back.” See ECF No. 10 at 5. In 

essence, Love contends that Hollie’s use of force was excessive because, 

when she applied it, Love had already been restrained and did not 

otherwise pose a threat. He claims that Hollie’s use of force caused him 

to sustain “burning eyes.” Id. at 6. 

However, Love specifically states that he is suing Hollie—

presumably a Tarrant County employee—in her official capacity only.

See ECF No. 10 at 2. As previously noted, to recover damages from Hollie 

in that capacity, Love must demonstrate that Tarrant County is liable 

for Hollie’s conduct.

Love fails to do so here. He does not event allege, much less plead 

any facts to show, that Tarrant County had any type of policy or custom 

that is responsible for this incident. The Court, therefore, concludes that 

Love has failed to state a plausible § 1983 claim against Hollie in her 

official capacity.1

1 Alternatively, even if Love had sued Hollie in her individual capacity, the Court 

concludes that such claim would fail because Love does not allege that he suffered more 

than a de minimis injury. See Bradshaw v. Unknown Lieutenant, 48 F. App’x 106, 2002 

WL 31017404, at *1 (5th Cir. 2002) (finding that alleged injuries including burning 

eyes and skin for approximately 24 hours as a result of the use of mace constituted de 

minimis injuries). Here, Love describes his injury as “burning eyes.” That’s it. He does 

not allege how long his eyes burned or that he sought any medical treatment. 

Moreover, the fact that Love was subsequently convicted of assaulting a public servant 

as a result of this incident strongly suggests that the use of mace was objectively 

reasonable under the circumstances. 

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2. Officer T. Thorsell

Love sues Thorsell in his individual and official capacities. See ECF 

No. 10 at 2. He alleges that Thorsell “grabbed [his] left wrist and with 

no hesitation proceeded to use unnecessary forces.” Id. at 4. He insists

that Thorsell “came on the [scene] with the intent to harm” because he 

grabbed Love’s hand, snatched soup from his hand, and proceeded to 

“use brutal force.” Id. 

But Love admits that he was not injured as a result of Thorsell’s 

conduct. Id. at 6. This is fatal to Love’s claim because establishing that 

he sustained some form of injury is an essential element of his excessiveforce claim. See Haddix, 203 F. App’x at 554. 

Because Love has failed to plead a constitutional violation, the Court 

concludes that he has failed to state a plausible § 1983 claim against 

Thorsell.2

CONCLUSION 

For the foregoing reasons, Love’s habeas claim is DISMISSED 

WITHOUT PREJUDICE for lack of jurisdiction.3

Love’s § 1983 claims against Defendants Thorsell and Hollie are 

DISMISSED WITH PREJUDICE for failure to state a claim. See 28 

U.S.C. § 1915(e)(2)(B)(ii).

SO ORDERED on this 31st day of March, 2023.

2For the same reasons stated in the Court’s analysis of Love’s § 1983 claim brought 

against Hollie in her official capacity, the Court concludes that Love has likewise failed 

to state a plausible § 1983 claim against Thorsell in his official capacity.

3

This order does not prohibit Love from attempting to raise his habeas claims in a 

procedurally correct manner. However, should Love choose to do so, the Court 

expresses no opinion on the merits of his claims.

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