IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

LUBBOCK DIVISION 

KEVIN KELLY JOE BA TES, 

Institutional ID No. 155577, 

§ 

§ 

§ 

Plaintiff, § 

V. 

§ CIVIL ACTION NO. 5:22-CV-102-BQ 

§ 

§ 

SHERIFF KELLY ROWE, et al., § 

§ 

Defendants. § 

FINDINGS, CONCLUSIONS, AND 

RECOMMENDATION AND ORDER OF TRANSFER 

The Honorable James Wesley Hendrix, United States District Judge, transferred this case 

to the undersigned United States Magistrate Judge by order dated June 6, 2022. ECF No. 6. In 

accordance with the order's directive, the undersigned conducted preliminary screening as 

described in 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and determined that prose Plaintiff Kevin 

Kelly Joe Bates's claim against Defendant Davian Moore in his individual capacity for excessive 

force, as well as Bates's bystander liability claims against Defendants Martin Rosas and Jeremy 

Tidwell in their individual capacities, survive preliminary screening.

1 ECF No. 25. Consequently, 

the Court entered an order requiring Defendants to answer or otherv.ise plead to Bates's claims. 

Id Defendants timely filed Answers. ECF Nos. 32, 33, 34. As of today's date, not a11 parties 

have consented to jurisdiction by the magistrate judge. Upon review of Defendants' Answers, it 

is the opinion of the undersigned that this matter must be transferred to the district judge for further 

proceedings. 

1 The Court identities Defendants by the names reflected in their Answers. See ECF Nos. 32, 33, 34. 

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I. Discussion 

The undersigned previously found that Bates's claims for excessive force and bystander 

liability against Defendants in their individual capacities survive preliminary screening.2 See ECF 

No. 25, at 16-23. The Court addresses these claims below. 

A. Excessive Force 

Bates's use of force claim arises under the Fourteenth Amendment because he allegedly 

sustained injuries while detained at Lubbock County Detention Center (LCDC). See Compl. 5, 

ECF No. 1;3 see also Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015) (abrogating lower 

courts' application of Eighth Amendment excessive force standards 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." Kingsley, 576 U.S. at 396-97. " [O]bjective reasonableness turns on the 'facts and 

circumstances of each particular case."' Id. 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 plaintiffs injury; (3) any effort made by the officer to temper or limit the 

2 The Court concluded that a ll of Bates's other 42 U.S.C. § 1983 claims failed to state a claim for relief and dismissed 

them through the same order. See ECF Nos. 25, 27. 

3 Page citations to Bates's Complaint refer to the electronic page number assigned by the Court's electronic filing 

system. 

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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 authenticated records and camera footage reflect that on April 20, 2022, Bates learned 

from LCDC officers that he would be receiving a disciplinary charge for earlier misconduct. Tr. 

3:19-4:4, 5:8- :18, ECF No. 31. The authenticated records indicate that he became upset upon 

hearing this information. Bates contends, however, that he was never angry or aggressive. Tr. 

5:8-6:5. Regardless, Bates refused to return to his cell as directed by officers. Tr. 5:23-6:5; see 

Kulka BWC I 0:00-:09.4 Officers subsequently used force to gain Bates's compliance and 

eventually handcuffed him. See ECF No. 25, at 3-6.5 

Bates avers that after he was cuffed and subdued, Defendant Moore pushed his knee into 

Bates's head, grinding it into the concrete floor. Compl. 6; Tr. 15:9- :20, 16:19-:23, 17:2-:5.6 As 

a result of the use of force, Bates asserts he suffered pain and swelling in his face and neck that 

lasted approximately one week. Tr. 19:25- 20:5, 27:8- : 17. 

As noted by the Court in its previous order, the videos capture snippets of Defendant 

Moore's actions, but they are of insufficient clarity and duration to clearly refute a claim of 

excessive force. Because of the fact-intensive nature of the inquiry, the Court cannot conclude at 

4 "BWC" stands for body-worn camera. There are two different body-camera files attributed to "Kulka." Citations 

to "Kulka BWC I" refer to the file ending in -3306 and citations to "Kulka BWC II" refer to the file ending -3307. 

Based on the perspective of the Kulka BWCs, the Court believes Officer Garza was the individual wearing that body 

camera. 

5 In its prior order, the Court thoroughly reviewed Bates's contentions along with video and audio evidence in the 

authenticated records and reconstructed Bates's factual assertions to create a timeline reflecting his allegations except 

where clearly contradicted by video or audio evidence. ECF No. 25, at 3- 7. Here, the Court focuses only on the 

allegations relevant to Bates's live claims. 

6 While Defendant Moore's knee is immediately next to Bates's head during the confrontation, the video never shows 

Moore placing his knee on top of Bates's head or grinding it into the concrete. See Facility 3:50- 5:05; Kulka BWC 

II 2:40- 6:30; Johnson BWC 0:00-3:40; Lara BWC 2:40- 3:20. But Moore does place his hand on Bates's neck for 

approximately thirty seconds after Officer Lara secured the handcuffs. See Lara B WC 2: 16-2:56; Kulka B WC Jl 

l :51 - 2:31. Bates's head is turned to the left and he does not, or is unable to, move his head during this time, although 

he can be heard giving audible responses to comments/questions by the officers. Lara BWC 2: 16- 2:56; Kulka BWC 

lI 1:51- 2:3 I. 

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screening, as a matter of law, that the force applied by Defendant Moore was reasonable under the 

circumstances. 

Specifically turning to the Kingsley factors, Bates alleges that: he did not present any threat 

to the officers, including Defendant Moore; the purported force was excessive to the need; and 

Defendant Moore did not temper his use of force. See Comp!. 6; Tr. 15:9-:20, 16:19-:23, 17:2-

:5. As a result, the first, third, fourth, fifth, and sixth Kingsley factors (i.e., the relationship between 

the need for the use of force and the amount of force used, any effort made by the officer to temper 

or limit the amount of force, the threat to institutional order reasonably perceived by the officer, 

the severity of the security problem at issue, and plaintiff's active resistance) weigh in Bates's 

favor at this stage. 

In contrast, the second Kingsley factor (i.e., the extent of plaintiffs injury) heavily weighs 

in Defendant Moore's favor. According to Bates, he suffered pain and swelling in his face and 

neck that lasted approximately one week, for which he did not seek medical care other than asking 

for pain reliever. See Tr. 19:25- 20:5, 23:8- 27:25. Bates's injuries, if any, are undeniably minor. 

On balance, however, weighing Defendant Moore's alleged actions- gratuitous force used on a 

handcuffed and no-longer-resisting detainee lying face down on the ground- the Court finds that, 

for screening purposes, Bates has pleaded adequate facts plausibly stating a claim "that the force 

purposely or knowingly used against him was objectively unreasonable." Kingsley, 576 U.S. at 

396- 97; see Preston v. Hicks, 721 F. App'x 342, 345 (5th Cir. 2018) (per curiam) (stating in the 

Eighth Amendment context that "[o]nce a prisoner has been subdued, using gratuitous force on 

him is unreasonable"). 

In sum, the Court finds Bates's factual assertions state a claim sufficient to survive 

preliminary screening, i.e., a Fourteenth Amendment excessive force claim against Defendant 

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Moore. See, e.g., Tucker v. City of Shreveport, 998 F.3d 165, 181-82 (5th Cir. 2021) ("[A] use of 

force that may begin as reasonably necessary in order to obtain compliance may cease to be so as 

a suspect becomes more compliant."); Quintanilla v. Araiza, No. SA-20-CV-00927-XR, 2021 WL 

2019204, at *6- 7 (W.D. Tex. May 20, 2021) (denying defendants' motion to dismiss detainee's 

excessive force claim despite minimal injury, where detainee plausibly alleged that defendants 

gratuitously used force on "a handcuffed and unresisting detainee during an escort inside the jail 

that resulted in injuries"); Luke v. Beagron, No. 16-13461, 2016 WL 8740486, at * 12- 13 (E.D. 

La. Dec. 28, 2016) (recommending pretrial detainee's excessive force claim proceed beyond 

preliminary screening where detainee suffered a pinched nerve as a result and he alleged he did 

not resist- "[i]f (his] version of events is accurate, it appears that no use of force was in fact 

necessary"), R. & R. adopted by 2017 WL 1407719 (E.D. La. Apr. 20, 2017); Walker v. Jefferson 

Par. Sherif/Newell Norman, No. 16-2890, 2016 WL 6609170, at *3-4 (E.D. La. Oct. 17, 2016) 

(recommending detainee's excessive force claim proceed where detainee claimed that defendants' 

actions caused him back, wrist, and neck pain and court could not, at screening stage, determine 

"whether the force used by the defendants ... was objectively reasonable or necessary under the 

circumstances"), R. & R. adopted by 2016 WL 6603180 (E.D. La. Nov. 8, 2016); see also Petta v. 

Rivera, 143 F.3d 895, 902 (5th Cir. 1998) (per curiam) ( explaining within the context of a 

Fourteenth Amendment substantive due process analysis, "the extent of injury is only one relevant 

factor and cannot be exclusively determinative" ( citation omitted)); Williams v. City of Houston, 

No. H-16-3342, 2019 WL 2435854, at* 10 (S.D. Tex. June 11, 2019) (denying officer's summary 

judgment motion where although "summary judgment evidence show[ed) that [detainee] had 

earlier resisted arrest and [a] blood test, that resistance could not justify [officer's] later use of 

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force if resistance had ceased," and thus determining there remained a factual dispute as to 

"whether the force used was reasonably necessary to restrain [detainee]"). 

B. Bystander Liability 

Bates also maintains that during the use of force, Defendants Tidwell and Rosas were 

present. Tr. 17:6- 19:4. Bates contends that Defendants could have prevented the purportedly 

unconstitutional act of Defendant Moore. Compl. 3-4, 6- 7; Tr. 17:6-19:4. 

An official's failure to intervene in another's use of excessive force against an arrestee may 

violate the Constitution and subject the official to § 1983 liability. Whitley v. Hanna, 726 F.3d 

631, 646 (5th Cir. 2013 ). To prevail on a bystander liability claim, a plaintiff must establish that 

an officer: "( 1) kno\YS that a fellow officer is violating an individual's constitutional rights; (2) has 

a reasonable opportunity to prevent the harm; and (3) chooses not to act." Hamilton v. Kindred, 

845 F.3d 659, 663 (5th Cir. 2017) (citation omitted). 

The Court similarly accepts Bates's allegations as true, as it must at this stage of the 

proceedings, and concludes they state a claim sufficient to survive preliminary screening, i.e., 

claims for bystander liability against Defendants Tidwell and Rosas. See, e.g., Greene v. DeMoss, 

No. 3:20-CV-00578, 2020 WL 7755690, at *8-9 (W.D. La. Dec. 11, 2020) (finding defendants 

were not entitled to qualified immunity on plaintiff's bystander liability claims, where plaintiff 

alleged that each defendant used unconstitutional force and was therefore "necessarily ... close 

enough to [plaintiff] that [each] could have opted to cease harming [plaintiff]," but instead watched 

the other defendants use force "without intervening"), R. & R. adopted by 2020 WL 7755655 

(W.D. La. Dec. 29, 2020), aff'd, No. 21-30044, 2022 WL 3716201 (5th Cir. Aug. 29, 2022). 

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II. Recommendation 

Given the timeframe set forth by the district judge in the referral order, it appears prudent 

to transfer the case back to the district judge for implementation of a scheduling order. Because 

Defendants have asserted the affirmative defense of qualified immunity, it is the undersigned's 

RECOMMENDATION that the United States District Judge enter a limited scheduling order, 

requiring Defendants to file a dispositive motion for the purpose of making a preliminary 

determination on qualified immunity. See ECF No. 32, at 1-2 (raising several defenses, including 

qualified immunity); ECF No. 33, at 1-2 (same); ECF No. 34, at 1-2 (same). Alternatively, the 

undersigned recommends that a Rule 16 scheduling order be entered, setting dates certain for 

pretrial deadlines and filing dispositive motions. 

It is therefore ORDERED that the transfer of this case to the United States Magistrate 

Judge is terminated and the case is hereby transferred back to the docket of the United States 

District Judge. This case shall hereinafter be designated as Civil Action Number 5:22-CV-102-H. 

III. Right to Object 

A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within fourteen days after being served 

with a copy. See 28 U.S.C. § 636(b)(l) (20 16); FED. R. C1v. P. 72(b). To be specific, an objection 

must identify the specific finding, conclusion, or recommendation to which objection is made, 

state the basis for the objection, and specify the place in the magistrate judge's Findings, 

Conclusions, and Recommendation where the disputed determination is found. An objection that 

merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. 

Failure to file specific written objections will bar the aggrieved party from appealing the factual 

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findings and legal conclusions of the magistrate judge that are accepted or adopted by the district 

court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 

1415, 1417 (5th Cir. 1996). 

Dated: March '):6', 2023. 

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