1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

CLARENCE MOORE, 

 Plaintiff, 

v. 

BRENNAN SHAY, et al., 

 Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Case No. 6:23-cv-34-JDK-KNM 

ORDER ADOPTING REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

Plaintiff Clarence Moore, a Texas Department of Criminal Justice inmate 

proceeding pro se, brings this civil rights lawsuit under 42 U.S.C. § 1983. The case 

was referred to United States Magistrate Judge K. Nicole Mitchell pursuant to 28 

U.S.C. § 636. 

Before the Court is Defendants’ motion for summary judgment. Docket No. 35. 

On June 24, 2024, Judge Mitchell issued a Report and Recommendation 

recommending that the Court grant Defendants’ motion and dismiss this case with 

prejudice. Judge Mitchell reviewed the parties’ arguments and summary judgment 

evidence and determined that Plaintiff’s excessive force claim lacks merit and that 

Defendants are entitled to qualified immunity. Docket No. 11. Plaintiff filed 

objections. Docket No. 67. 

Where a party timely objects to the Report and Recommendation, the Court 

reviews the objected-to findings and conclusions of the Magistrate Judge de novo. 28 

Case 6:23-cv-00034-JDK-KNM Document 70 Filed 09/12/24 Page 1 of 3 PageID #: 398
2 

U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire 

record and makes an independent assessment under the law. Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other 

grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from 

ten to fourteen days). 

In his objections, Plaintiff argues that the Hudson factors weigh in his favor 

because Defendants maliciously and sadistically used force to harm him after he was 

restrained on the floor and posed no threat to them. Docket No. 67 at 2. But as 

the Report explains, surveillance video submitted by Defendants shows that 

Plaintiff continued to struggle after being taken to the floor and until officers 

were able to subdue him. Docket No. 35, Ex. A. Also, the documented injuries and 

his complaints to the nurse are consistent with Plaintiff hitting his head while 

being taken to the floor and not with a malicious and sadistic use of force. See

id., Ex. C (infirmary photos after incident); Docket No. 37, Ex. E (TDCJ 

medical records). Further, Plaintiff’s objections ignore the fact that he 

precipitated the use-of-force incident by resisting officers and assaulting another 

inmate. Docket No. 35, Ex. A; id., Ex. D. As in Waddleton v. Rodriguez, 750 F. 

App’x 248, 254–56 (5th Cir. 2018), Plaintiff’s actions here created the need 

for force, and the summary judgment evidence demonstrates that the force 

used was not excessive to the need. 

Having conducted a de novo review of the record in this case and 

the Magistrate Judge’s Report, the Court has determined that the Report is 

correct, and Plaintiff’s objections are without merit. Accordingly, the Court hereby 

Case 6:23-cv-00034-JDK-KNM Document 70 Filed 09/12/24 Page 2 of 3 PageID #: 399
3 

ADOPTS the Report of the Magistrate Judge (Docket No. 59) as the opinion of the 

District Court and GRANTS Defendants’ motion for summary judgment (Docket 

No. 35). Plaintiff’s claims are DISMISSED with prejudice. 

So ORDERED and SIGNED this day of

___________________________________

JEREMY D. KERNODLE

UNITED STATES DISTRICT JUDGE 12th September, 2024.

Case 6:23-cv-00034-JDK-KNM Document 70 Filed 09/12/24 Page 3 of 3 PageID #: 400