Patino v. White et al
MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff's objections are overruled and the report of the magistrate judge 42 is ADOPTED as the opinion of the District Court. The above-styled civil action is DISMISSED WITH PREJUDICE for purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which relief may be granted. The Clerk shall send a copy of this Opinion to the Administrator of the Strikes List for the Eastern District of Texas. All motions which may be pending in this action are hereby DENIED. Signed by Judge Michael H. Schneider on 06/08/16. (mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JONI WHITE, ET AL.
CIVIL ACTION NO. 6:14cv994
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Fernando Patino, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional 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. Patino originally named state classification officer Joni White, Michael
Unit Warden Joel Barbosa, TDCJ Executive Director Brad Livingston, TDCJ-CID Director William
Stephens, and Michael Unit classification officers Tamara Boaz and Debbi Poole as Defendants, but
at an evidentiary hearing, he stated that he wished to sue only White, Stephens, and Livingston.
Patino states that on April 20, 2014, he was strangled and beaten to the point of death by
another inmate, Ed House, but was revived with CPR. Patino explains that he had killed House’s
father on a sudden passion defense and by policy, House should not have been on the same unit, but
the TDCJ classification department assigned House to the same pod and section, only eight cells
away from Patino. He asserted that White failed to check House’s background before placing him
on the same unit as Patino and that Stephens and Livingston were responsible as well. An
evidentiary hearing was conducted pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),
and Patino testified at the evidentiary hearing that he did not believe the officials knew House was
his enemy before putting him on the unit.
Warden Larry Berger testified at the evidentiary hearing that an investigation is conducted
when prison officials know that a problem exists. Inmates can be designated as “not for same
housing” with regard to an enemy. After Patino was assaulted and the prison officials learned what
had happened, the “not for same housing” designation was placed in his file. The response to a Step
One grievance filed by Patino indicated that the unit administration and the agency was not aware
of any connection between Patino and House, just as Patino himself had not been aware.
II. The magistrate judge’s report and the objections
After review of the pleadings and testimony, the magistrate judge issued a report
recommending that the lawsuit be dismissed. The magistrate judge observed that according to
Patino’s testimony and the prison records, the prison officials were not aware that House posed a
danger to Patino until after the assault had occurred. Thus, the magistrate judge concluded that the
named defendants were not deliberately indifferent to Patino’s safety because Patino did not allege,
much less show, that any of these defendants knew of and disregarded a substantial risk to his safety.
Patino filed two sets of objections, but asks that his first one be disregarded. In his second
set of objections, Patino states that the responses to his grievances make clear that policy was
violated. According to policy, House should never have been assigned to the Michael Unit because
Patino was there. He asks why the named defendants were not present at the evidentiary hearing and
argues he needed counsel because he did not have any access to the intake information. If this
information revealed that both Patino and House had family and friends listed in Silverton, Texas,
there should have been a designator that they not be housed together.
Patino argues that the Defendants were acting under color of state law and says that he can
cite “numerous amounts of cases” saying that violations of policy, custom, or regulations can act as
the moving force to civil rights and constitutional violations. He states “surely negligence and policy
violations should be sufficient to trigger a Fourteenth and Eighth Amendment protection.” Patino
maintains that the TDCJ officials’ negligence and violation of policy abused his safety and contends
“merely not knowing is not a defense.”
Patino asks why the named Defendants were not present at the evidentiary hearing, but the
hearing is not a trial nor even an adversarial proceeding. Instead, the purpose of the evidentiary
hearing was to ascertain what it is the prisoner alleges occurred and the legal basis for the claims.
The information received is considered as an amendment to the complaint or a more definite
statement. Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991).
The Supreme Court has stated that
[A] prison official cannot be held liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and disregards
an excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference. ...
But an official's failure to alleviate a significant risk which he should have perceived,
but did not, while no cause for commendation, cannot under our cases be condemned
as the infliction of punishment.
Farmer v. Brennan, 511 U.S. 825, 837-38, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
Patino’s contention that “merely not knowing is not a defense” is incorrect. Even if the
Defendants should have perceived the risk but failed to do so, this does not amount to an Eighth
Amendment violation. See Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677
(1986) (negligence or lack of due care in failing to protect an inmate from assault by another prisoner
did not set out a constitutional claim); Adames v. Perez, 331 F.3d 508, 513-14 (5th Cir. 2003) (no
deliberate indifference on the part of the warden where warden was unaware that correctional
officers were not following standard safety procedures).
Although Patino argues that violations of policies, customs, or procedures can amount to
constitutional violations, the Fifth Circuit has held that a prison official’s failure to follow the
prison’s own policies, procedures, or regulations does not constitute a violation of due process.
Elizondo v. Livingston, slip op. no. 14-11203, 2016 U.S. App. LEXIS 4492 (5th Cir., March 10,
2016), citing Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). In order to prevail, Patino must
show that the Defendants both knew of and disregarded a substantial risk to his safety. Austin v.
Johnson, 328 F.2d 204, 210 (5th Cir. 2003). He alleges no more than the Defendants should have
known but did not. This is not sufficient to set out a constitutional claim. Patino’s objections are
The Court has conducted a careful de novo review of those portions of the magistrate judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the report of the magistrate judge is correct and 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 (docket no. 42) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE for
purposes of proceeding in forma pauperis as frivolous and for failure to state a claim upon which
relief may be granted. It is further
ORDERED that the Clerk shall send a copy of this Opinion to the Administrator of the
Strikes List for the Eastern District of Texas. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
SIGNED this 8th day of June, 2016.
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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