Urias v. Ground

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 14 Report and Recommendations. Signed by Judge David Folsom on 12/14/11. (mrm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
SOILO URIAS #1189938

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v.

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WARDEN DAWN GROUNDS, ET AL.

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CIVIL ACTION NO. 5:11cv142

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Soilo Urias, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this civil action complaining of alleged
violations of his rights. This Court ordered that the case be referred to the United States Magistrate
Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local
Rules for the Assignment of Duties to United States Magistrate Judges.
In his original complaint, Urias stated that he is bringing a claim of “negligence per se” for
violating his constitutional rights. He said that Warden Grounds, the sole named defendant, is
violating various provisions of the Texas Penal Code, making her liable.
Urias complained that Warden Grounds called a “unit shakedown” on July 6, 2011, which
is a lockdown of the whole unit to search all inmates’ persons and property. During the lockdown,
inmates were denied television privileges and restricted to their cells, denied outside recreation and
commissary, and denied hot meals. Urias contended that this amounted to “official oppression” and
a denial of “enjoyments, privileges, and immunities.”
After reviewing the complaint, the Magistrate Judge ordered Urias to file an amended
complaint setting out a short and plain statement of his claims. In his amended complaint, Urias
again casts his complaint in terms of “negligence per se.” He claims that Warden Grounds is
violating the Texas Penal Code, which he states “insures an inmate’s enjoyments, privileges, and
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immunities.” He states that because he had committed no infractions at the time of the July 6
shakedown, he had no restrictions which would prohibit him from exercising the enjoyments,
privileges, and immunities guaranteed to him by the Penal Code. He complained that Grounds failed
to take “proper safety measures” to ensure that his rights are not violated and asserted that
shakedowns can be conducted without suspending other privileges.
The Magistrate Judge observed that a number of Urias’ claims simply mirrored those which
he made in a prior lawsuit which he had filed, styled Urias v. Hudson, civil action no. 5:09cv146
(E.D.Tex., dismissed August 17, 2010, aff’d June 21, 2011). In that case, Urias complained about
a May 2009 lockdown, asserting that a lockdown of the whole unit without probable cause violated
the Fourth and Eighth Amendments. He stated that while on lockdown status, he could not have hot
meals or go to the commissary or dayroom. Urias also complained that during the lockdown,
inmates could not get outdoor exercise, had to undergo strip searches in the presence of female
officers, and that the living areas and showers were not cleaned during the lockdown.
The Defendants in that lawsuit filed a motion for summary judgment, which was granted.
The Court concluded that: the conducting of lockdowns was done pursuant to a legitimate
governmental interest and Urias had failed to show that they were unlawful; inmates received
reasonably adequate food during the lockdown; there was no constitutional right to outdoor
recreation for convicted prisoners; there was no constitutional right for prisoners to be free from
searches of their property; the mere presence of female guards during strip searches was not a
constitutional violation where the presence of the officers is required to protect a legitimate
governmental interest such as maintaining security, a condition which existed in the present case;
the complaint about the condition of the showers was based upon respondeat superior liability and
thus lacked merit, and Urias could not recover any damages for his claims of emotional distress. The
Fifth Circuit affirmed the judgment of the district court dismissing Urias’ claims with prejudice.
In the present case, the Magistrate Judge noted that Urias was complaining of a different
lockdown, but the facts presented are essentially the same, albeit couched in terms of “negligence
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per se” and “deprivation of enjoyment, privileges, and immunities” rather than as civil rights
violations under 42 U.S.C. §1983.
Urias also complains of violations of the Texas Penal Code, but the Magistrate Judge
concluded that the Penal Code does not create private causes of action, nor does it give rise to
“enjoyments, privileges, and immunities” which may be enforced by a private party. The Magistrate
Judge also determined that Urias did not state a claim under the Privileges and Immunities Clause
of the U.S. Constitution.
Although Urias argued that shakedowns could be conducted without imposing other
restrictions, the Magistrate Judge stated that this did not make TDCJ policies and procedures
regarding shakedowns unconstitutional. The Court rejected his claim in the prior case that
shakedowns and lockdowns were unconstitutional, and inmates have no protected liberty interests
in commissary and recreation privileges, nor any constitutional right to receive hot meals.
The Magistrate Judge determined that Urias’ claims concerning strip searches carried out in
the presence of female guards lacked merit, that he failed to provide facts in support of his claims
of unsanitary living conditions, that the TDCJ lockdown policy was not unconstitutional, and that
Urias had failed to set out any claims against Warden Grounds, the sole named defendant.
Accordingly, the Magistrate Judge recommended that the lawsuit be dismissed.
Urias filed objections to the Magistrate Judge’s Report on November 30, 2011. In his
objections, Urias first takes issue with the characterization of his lawsuit as a civil rights action under
42 U.S.C. §1983, contending that it is a “tort action under state law.” He asks that the Court exercise
its supplemental jurisdiction to hear his state law claims.
Urias argues that his case is one of “negligence per se,” which he defines as “a common-law
doctrine in which a duty is imposed based on a standard of conduct imposed by a penal statute rather
than on the reasonably prudent standard used in ordinary negligence claims.” He asserts that the
Magistrate Judge erred in concluding that he could not bring claims under the Texas Penal Code,
arguing that his claim is one of negligence per se.
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Next, Urias argues that his prior lawsuit is not relevant because he is suing the warden as an
individual, not an official, and he is not challenging prison conditions but rather a personal violation,
as the Texas Penal Code prevents Warden Grounds from abusing her position. He concludes by
posing five questions, of which the first three relate to whether negligence per se is the proper
vehicle to bring his claim, the fourth concerns the conduct of the Magistrate Judge in recommending
that the lawsuit be dismissed, and the fifth asks whether the Court will accept jurisdiction over his
negligence claim.
Under Texas law, negligence per se is a common-law doctrine that allows courts to rely on
a penal statute to define a reasonably prudent person’s standard of care. However, the fact that the
Texas Legislature enacts a criminal statute does not mean that the Texas courts will recognize a civil
cause of action predicated on that statute. In determining whether a penal statute provides the basis
for a civil cause of action, the state courts consider whether recognizing such an accompanying civil
action would be inconsistent with legislative intent. Reeder v. Daniel, 61 S.W.3d 359, 361-62
(Tex.2001).
In Simmons v. Sosa, civil action no. 14-92-01322-CV, 1996 WL 707146 (Tex.App.-Houston
[14th] writ denied, rehearing of writ of error overruled), the plaintiff Alton Simmons, a TDCJ
inmate, filed a civil action against prison officials which claimed, inter alia, negligence per se based
upon a violation of the Penal Code provision. The Texas court of appeals stated that any infraction
which the plaintiff may have for violations of his constitutional rights arose under 42 U.S.C. §1983,
which is enforceable in Texas state courts as well as the federal courts, and stated that “where a
cause of action is derived solely from a statute, the statutory provisions are mandatory and exclusive
and must be complied with or the action is not maintainable.” Harris District Attorney’s Office v.
Burns, 825 S.W.2d 198, 200 (Tex.App.-Houston [14th Dist.] 1992, writ denied). The Court of
Appeals went on to explain that Texas law does not provide a common-law cause of action for
statutory violations when there is an express and comprehensive statutory cause of action for such
violation. Johnson v. Sawyer, 47 F.3d 716, 729 (5th Cir. 1995).
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In the present case, Urias has consistently maintained that his lawsuit was for “negligence
per se” under Texas state law, as applied to claimed violations of the Texas Penal Code. However,
the Supreme Court has explained that many acts which may be actionable as violations of state tort
law do not amount to constitutional violations. Baker v. McCollan, 443 U.S. 137, 146 (1979). Thus,
state law claims, standing alone, do not provide federal jurisdiction. Simi Inv. Co. Inc v. Harris
County, Texas, 236 F.3d 240, 247 (5th Cir. 2000). In order to state a claim which is cognizable in
federal court, the plaintiff must allege “a violation of the Constitution or laws of the United States.”
James v. Texas Collin County, 535 F.3d 365, 373 (5th Cir. 2008); see also Hamilton v. Foti, 372
Fed.Appx. 480, 2010 WL 1286935 (5th Cir., March 30, 2010).
In relying on the Texas common-law doctrine of negligence per se, Urias has failed to set out
a basis for federal jurisdiction. He resisted the Magistrate Judge’s efforts to construe his case as
brought under 42 U.S.C. §1983. Although Urias seeks to invoke the supplemental jurisdiction of
the Court, such jurisdiction requires that the district court have original jurisdiction, as for example
under §1983. See 28 U.S.C. §1367. Because Urias maintains that his claim is one of “negligence
per se,” he has failed to show any basis for original jurisdiction, and thus no basis for supplemental
jurisdiction over his state-law claims.
Even were this Court to somehow acquire jurisdiction over Urias’ claims of “negligence per
se,” he has not shown any merit to these claims. The Court has located no case, in state or federal
court, upholding claims of “negligence per se” as applied to the provisions of the Texas Penal Code
which Urias cites. On the contrary, in Simmons, the Fourteenth Judicial District Court of Appeals
rejected such a claim, holding that the plaintiff-prisoner’s claims arose under 42 U.S.C. §1983 and
that this statute provided the exclusive vehicle for litigating these claims. Nor has Urias shown that
Warden Grounds was “negligent per se” or that he is otherwise entitled to recovery against her,
whether under 42 U.S.C. §1983 or any other legal theory. His objections are without merit.
The Court has conducted a careful de novo review of the pleadings and documents in this
case, including the Plaintiff’s complaint and pleadings, the Report of the Magistrate Judge, the
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Plaintiff’s objections thereto, and all other pleadings, documents, and records in the case. Upon
such de novo review, the Court has concluded that the Report of the Magistrate Judge is correct and
that the Plaintiff’s objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice
as frivolous and for failure to state a claim upon which relief may be granted. It is further
ORDERED that any and all motions which may be pending in this action are hereby
.
DENIED. Finally, it is
ORDERED that the Clerk shall send a copy of this opinion to the Administrator of the Strikes
List for the Eastern District of Texas.

SIGNED this 14th day of December, 2011.

____________________________________
DAVID FOLSOM
UNITED STATES DISTRICT JUDGE

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