Ray v. Wilson et al

Filing 42

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 31 Report and Recommendations. Claims against Lynne Sharp, R Smallie (Grievance Investigator at Telford Unit), J Wilson (Warden at Telford Unit) and Kelvin Scott (TDCJ Regional Director) are DISMISSED WITHOUT PREJUDICE. IT IS ORDERED that Plaintiff's claims against Major Harris be SEVERED from this case and TRANSFERRED to the United State District Court for the Northern District of Texas, Wichita Falls Division. In accordance with Local Rule 83, the Clerk of the Court is directed to transmit the severed case after 21 days from the date of the order transferring, if no timely motion for reconsideration has been filed. The dismissals and transfer shall have no effect on Plaintiffs claim of deliberate indifference against Captain Oakes. Signed by District Judge Robert W. Schroeder, III on 4/19/2018. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JERREMY RAY,
Plaintiff,
v.
J WILSON, WARDEN AT TELFORD
UNIT; MS. LYNNE SHARP, COATES,
CAPTAIN AT TELFORD UNIT; FNU
HARRIS, MAJOR AT JAMES ALLRED
UNIT; KELVIN SCOTT, TDCJ REGIONAL
DIRECTOR; R SMALLIE, GRIEVANCE
INVESTIGATOR AT TELFORD UNIT;
AND
OFFICE OF THE ATTORNEY
GENERAL AS AMICUS CURAIE,
Defendants.

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CIVIL ACTION NO. 5:16-CV-00115-RWS

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Jerremy Ray, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. The Court referred this case
to United States Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. §636(b)(1) and (3)
for consideration pursuant to applicable laws and orders of this Court. The Magistrate Judge issued
a Report and Recommendation of the United States Magistrate Judge (“Report”) (Docket No. 31),
recommending that Plaintiff’s claims against Warden Wilson, Regional Director Kelvin Scott,
grievance investigator Rachel Smallie, and Prison Rape Elimination Act (“PREA”) Ombudsmen
Lynne Sharp be dismissed without prejudice for failure to state a claim upon which relief may be
granted. The Magistrate Judge further recommended that Plaintiff’s claims against Major Harris
be severed out of this lawsuit and transferred to the Northern District of Texas, Wichita Falls

Division. Docket No. 31. The Magistrate Judge also recommended that Plaintiff be allowed to
proceed on his claim of deliberate indifference against Captain Oakes.1
The Court has received and considered the Report and Recommendation along with the
record and pleadings. Plaintiff filed objections (Docket No. 33) and amended objections (Docket
No. 34) to the Report. No response to the objections was filed. The Court reviews the objectedto portions of the Report de novo, and addresses each point of objection in turn. FED. R. CIV. P.
72(b)(2).
Warden Wilson
First, Plaintiff reiterates that Warden Wilson is legally responsible for the operation of the
Telford Unit and notes that Warden Wilson received letters and phone calls about Plaintiff, but did
not respond. He further contends Warden Wilson is personally liable because he had to sign off
on the investigation.
In order to show Warden Wilson was deliberately indifferent to his safety, Plaintiff must
allege sufficient facts stating a claim which is plausible on its face. Montoya v. FedEx Ground
Packaging System Inc., 614 F.3d 145, 149 (5th Cir. 2010). Conclusory allegations, unwarranted
factual inferences, or legal conclusions are not sufficient. Plotkin v. IP Axess Inc., 407 F.3d 690,
696 (5th Cir. 2005). His allegations fall well short of this standard.
As the Magistrate Judge correctly observed in her Report, Plaintiff’s contention that
Warden Wilson is legally responsible for the operation of the Telford Unit is a claim of respondeat

1

Although Plaintiff identified this defendant as “Captain Oates,” the Attorney General for the State indicates the
correct spelling of her surnames is Oakes. The Attorney General further states Captain Oakes has left the
employment of TDCJ-CID and now uses the surname of Studdard.

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superior liability, which is generally inapplicable in §1983 claims. Docket No. 31 at 7 (citing
Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir.2005)). Instead, the unit warden may
only be held liable if there is personal involvement in a constitutional deprivation, a causal
connection between the supervisor's wrongful conduct and a constitutional deprivation, or if he
implemented a policy so deficient that the policy itself is a repudiation of constitutional rights and
is the moving force behind a constitutional deprivation. Id. (citing Thompkins v. Belt, 828 F.2d
298, 304 (5th Cir. 1987)).
Plaintiff has not set out a plausible allegation of any of these factors. The fact that Warden
Wilson did not respond to Plaintiff’s letters or the telephone calls on his behalf does not
demonstrate personal involvement or wrongful conduct which was causally connected to a
constitutional violation.

Similarly, approval by Warden Wilson of the results of an OPI

investigation does not demonstrate deliberate indifference absent a showing that the warden knew
or should have known that the results of the investigation were incorrect but still disregarded them.
See Cudjo v. Delarosa, Civil Action No. 6:12-cv-334, 2013 WL 2242456 (E.D.Tex. May 21,
2013). That Warden Wilson may have believed the investigator’s conclusion, instead of Plaintiff’s
claims, likewise does not show deliberate indifference. Plaintiff’s objections to the dismissal of
Warden Wilson are overruled.
Regional Director Scott
Plaintiff next reargues that he wrote and sent grievances to Regional Director Kelvin Scott,
but that Director Scott failed to respond or intervene to protect him. Plaintiff also notes that no
investigation occurred. The Magistrate Judge is correct that the mere fact that Plaintiff addressed
letters to Director Scott, and that Director Scott did not respond to Plaintiff’s grievances and letters,
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does not give rise to a constitutional claim. See Docket No. 31 at 8 (citing Johnson v. Johnson,
385 F.3d 503, 526 (5th Cir. 2004); Smith v. Bell, Civil Action No. 5:10-cv-58, 2011 WL 806205
(E.D.Tex. Jan. 25, 2011), report and recommendation adopted, 2011 WL 778200 (E.D.Tex. Mar.
1, 2011)). Plaintiff’s objections regarding the dismissal of Regional Director Scott are, therefore,
overruled.
Grievance Investigator Smallie
Third, Plaintiff complains that Grievance Investigator Rachel Smallie did not address
Plaintiff’s request for a review of the surveillance cameras and refused to investigate or process
his grievances. Plaintiff asserts that it is Investigator Smallie’s job to review incidents and
investigate them to the best of her ability, and that Plaintiff requested a camera review for
“documentary evidence for a breach of security.” The Magistrate Judge properly concluded that
Plaintiff has no constitutional right to have his grievances investigated to his satisfaction, nor any
right to have the investigator review the surveillance cameras. Docket No. 31 at 9–10 (citing
Geiger v. Jowers, 404 F.3d 371, 374–375; Arceneaux v. Pearson, 449 F.App’x 396 (5th Cir. Nov.
10, 2011)). This objection is without merit.
To the extent Plaintiff complains that Investigator Smallie prevented him from exhausting
his administrative remedies, the Magistrate Judge construed this claim as an allegation of denial
of access to courts and determined that this argument lacked merit because Plaintiff failed to show
he suffered actual harm. Id. Plaintiff did not specifically object to this conclusion. See Lewis v.
Casey, 518 U.S. 343, 350 (1996). Instead, Plaintiff’s argues in his amended objections that the
failure to process or investigate his grievances amounted to an equal protection violation. This
argument is unconvincing as well.
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In order to state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege
that either (1) a state actor intentionally discriminated against him because of membership in a
protected class; or (2) he has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment. Gibson v. Texas Dept. of
Insurance—Div. of Workers' Compensation, 700 F.3d 227, 238 (5th Cir. 2012). The alleged
discrimination must be purposeful, and the Fifth Circuit has explained that “discriminatory purpose
in an equal protection context implies that the decision-maker selected a particular course of action
at least in part because of, and not simply in spite of, the adverse impact it would have on an
identifiable group.” Johnson v. Rodriguez, 110 F.3d 299, 307 (5th Cir. 1997) (citing Woods v.
Edwards, 51 F.3d 577, 580 (5th Cir. 1995)). A violation of equal protection occurs only when the
government treats someone differently than others similarly situated. Brennan v. Stewart, 834
F.2d 1248, 1257 (5th Cir. 1988).
In Flores v. Livingston, 406 F.App’x 931 (5th Cir. Dec. 27, 2010), the Fifth Circuit stated
that the plaintiff “did not allege that he was treated differently from similarly situated prisoners
with respect to the investigation of the incident or of the grievances or that the defendants engaged
in purposeful discrimination; thus, his complaint failed to state an equal protection claim and the
magistrate judge did not err in dismissing this claim.” Here, Plaintiff likewise did not allege, much
less show, intentional discrimination or that he was treated differently than similarly situated
prisoners. His equal protection claim fails to state a claim upon which relief may be granted and
his objection on this point is overruled.
PREA Ombudsman Lynne Sharp
Plaintiff contends he and a friend wrote to Ombudsman Lynne Sharp, making her office
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aware of his complaint that he had been sexually abused or assaulted, but that she did not respond
to these letters and the situation went unaddressed. Plaintiff argues that the Supreme Court has
found prison officials to be liable when they knew a prisoner faced a substantial risk of harm but
failed to address it. However, Plaintiff has failed to cite to case law where a court found that an
inmate has a constitutionally protected liberty interest in having grievances investigated and
resolved to his satisfaction, as is the allegation here. To the contrary, the Fifth Circuit has found
that an alleged due process claim arising from a failure to investigate grievances is “indisputably
meritless.” Geiger, 404 F.3d at 374–75. Plaintiff’s objection on this point is overruled.
The Other Defendants
Plaintiff does not object to the Magistrate Judge’s recommendations as to Major Harris and
Captain Oakes. The Court, therefore, reviews these portions of the Magistrate Judge’s Report for
plain error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc),
superseded on other grounds by 28 U.S.C. § 636(b)(1); see also U.S. v. Wilson, 864 F.2d 1219,
1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (1989) (where no objections to a Magistrate
Judge’s Report are filed, the standard of review is “clearly erroneous, abuse of discretion and
contrary to law.”).
Having reviewed these portions of the Report, the Court agrees with the Magistrate Judge
that Plaintiff’s claims against Major Harris should be transferred, and that Plaintiff’s claims against
Captain Oakes should go forward.
CONCLUSION
Having made a de novo review of the written objections filed by Plaintiff in response to
the Report, the Court concludes that the findings and conclusions of the Magistrate Judge are
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correct and that Plaintiff’s objections are without merit.
Accordingly, Plaintiff’s objections (Docket Nos. 33 and 34) are OVERRULED and the
findings of facts and conclusions of law contained in the Magistrate Judge’s Report (Docket No.
31) are ADOPTED in their entirety as the findings and conclusion of the Court.
It is further ORDERED that Plaintiff’s claims against Defendants Warden Wilson,
Regional Director Scott, Investigator Smallie, and Ombudsman Sharp are DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.

.

It is further ORDERED that Plaintiff’s claims against Major Harris be SEVERED from

this case and TRANSFERRED to the United State District Court for the Northern District of
Texas, Wichita Falls Division, for such other and further proceedings as that Court may deem
appropriate. In accordance with Local Rule 83, the Clerk of the Court is directed to transmit the
severed case after 21 days from the date of the order transferring, if no timely motion for
reconsideration has been filed.
The dismissals and transfer shall have no effect on Plaintiff’s claim of deliberate
indifference against Captain Oakes.
SIGNED this 19th day of April, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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