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Pro se Texas Prisoner Wins $250,550 Default Judgment in Use of Force Case

by Ed Lyon

William Gerald Fitzgerald was a pre-trial detainee at a jail in Harris County, Texas when, on May 18, 2013, he was attacked from behind by jailer Myron Nelson. Nelson struck Fitzgerald in the right eye hard enough to dislodge the lens, tearing both the iris and cornea, and requiring partial removal of the iris and 12 stitches to repair the cornea. Nelson reportedly assaulted Fitzgerald because he had slammed his cell door.

Doctors at Houston’s Ben Taub Hospital and the Texas Department of Criminal Justice’s John Sealy Hospital in Galveston agreed that Fitzgerald would never see with his right eye again. The injuries caused by Nelson left Fitzgerald with a permanently dilated pupil with an attendant acute painful light sensitivity and loss of vision.

Fitzgerald filed a pro se 42 U.S.C. § 1983 complaint in federal court against the Harris County Sheriff, Nelson and other defendants, alleging excessive use of force.

On August 15, 2017, the court dismissed all the defendants except Nelson, who never filed a response to the suit despite being served by the U.S. Marshals Service. Two months later, Fitzgerald moved for default judgment against Nelson, who again failed to respond. The default judgment was granted and a hearing scheduled to determine the amount of damages.

Nelson appeared at the hearing and testified to having no memory of striking Fitzgerald; he did not present any otherwise controverting testimony. No longer working as a jailer, Nelson was unemployed and trying to earn a commercial driver’s license.

Fitzgerald told the court he had spent $200 in postage and copying costs associated with the suit plus a $350 filing fee. His last employment prior to prison was a minimum wage job at McDonald’s, but he was working to earn a certificate as a substance abuse counselor.

The district court awarded Fitzgerald $250,000 in compensatory damages plus $550 in costs in a May 1, 2018 order.

Punitive damages were denied due to a lack of sufficient evidence to support a finding of “reckless or callous disregard for plaintiff’s rights” by Nelson. Fitzgerald will have to try to collect the judgment himself before seeking any assistance from the court. He attempted to appeal the district court’s dismissal of Harris County as a defendant, but his appeal to the Fifth Circuit was dismissed for failure to pay the filing fee. See: Fitzgerald v. Harris County Sheriff’s Office, U.S.D.C. (S.D. TX), Case No. 4:15-cv-01330. 

 

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Fitzgerald v. Harris County Sheriff’s Office


 

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