Cortez v. Richardson et al

Filing 12

ORDER OF PARTIAL DISMISSAL overruling objections and adopting 8 Report and Recommendation. Pltf may proceed with his excessive use of force claim against Sgt K Anthony. Pltf's remaining claims are dismissed with prejudice pursuant to 28 USC 1915A(b)(1). Signed by Judge Ron Clark on 10/27/16. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

HERNAN CORTEZ, #1542111

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VS.

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JEFFREY RICHARDSON, ET AL.

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CIVIL ACTION NO. 6:16cv1115

ORDER OF PARTIAL DISMISSAL
Plaintiff Hernan Cortez, an inmate confined at the Coffield Unit of the Texas prison
system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights
lawsuit pursuant to 42 U.S.C. § 1983. The complaint was referred to United States Magistrate
Judge K. Nicole Mitchell, who issued a Report and Recommendation for the disposition of the
lawsuit. Mr. Cortez has filed objections.
Factual Allegations
Mr. Cortez contends that he was the victim of excessive use of force. More specifically,
he alleges that Sgt. K. Anthony violated his Eighth Amendment rights by spraying him with two
cans of a chemical agent on May 4, 2015. He was in his cell at the time. He asserts that his
reaction to the chemical agent became a serious medical issue. He alleges that she subjected him
to an unnecessary and wanton infliction of pain and suffering.
Mr. Cortez has sued four prison administrators in addition to Sgt. Anthony. He states that
he is suing the administrators because they “allowed and promoted Sgt. K. Anthony after she
assaulted [him] with gas.”
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Report of the Magistrate Judge
After reviewing the pleadings, Magistrate Judge Mitchell concluded that Mr. Cortez
should be permitted to proceed with his excessive use of force claim against Sgt. Anthony. She
also concluded that his claims against the remaining defendants should be dismissed.
Plaintiff’s Objections to the Report and Recommendation
Mr. Cortez argues in his objections that his claims against the remaining defendants should
not be dismissed. He acknowledges that the remaining defendants are prison administrators and
that they did not participate in the use of force incident. Mr. Cortez, nonetheless, focuses on the
prison system’s use of force plan in arguing that the administrators should remain in the lawsuit.
He noted that they were obligated under the plan to review the use of force documents compiled in
this case to determine whether the use of force was justified.

He complains that the

administrators turned a blind eye to Sgt. Anthony’s use of force and subsequently promoted her to
the rank of lieutenant.
Discussion and Analysis
As an initial matter, the United States Supreme Court has recognized that “the unnecessary
and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth
Amendment.” Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084 (1986) (citations and
internal quotation marks omitted). In deciding whether a use of force was wanton or unnecessary,
a court may consider “the need for application of force, the relationship between that need and the
amount of force used, the threat reasonably perceived by the responsible officials, and any efforts
to temper the severity of the forceful response.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct.
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995, 999 (1992) (citations and internal quotation marks omitted). The absence of a serious injury
is “relevant to the Eighth Amendment inquiry, but does not end it.” Id. Magistrate Judge
Mitchell appropriately concluded that Ms. Cortez has alleged facts sufficient to proceed with his
excessive use of force claim against Sgt. Anthony.
Mr. Cortez’s focus on the prison system’s use of force plan in his objections in an effort to
keep the administrators in the case is misplaced. Allegations that prison officials failed to follow
prison regulations do not, standing alone, provide a basis for a potentially meritorious civil rights
lawsuit; instead, a plaintiff must show a constitutional violation. Hernandez v. Estelle, 788 F.2d
1154, 1158 (5th Cir. 1986). Mr. Cortez must allege facts showing that each defendant violated his
constitutional rights, as opposed to merely violating the use of force plan.
Mr. Cortez also argues that he should be permitted to proceed against the administrators
because of their role in reviewing the incident. He complains that they allowed and promoted Sgt.
K. Anthony after she assaulted him with gas. The United States Supreme Court has held,
however, that the doctrine of respondeat superior does not apply in § 1983 actions. Monell v.
Dep’t of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978). Moreover, the term
supervisory liability in the context of a § 1983 lawsuit is a “misnomer” since “[e]ach Government
official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v.
Iqbal, 556 U.S. 662, 677, 129 S. Ct. 1937, 1949 (2009). A supervisor may be held liable only if
one of the following exists: (1) his personal involvement in the constitutional deprivation, or (2)
sufficient causal connection between the supervisor’s wrongful conduct and the constitutional
violations. Thompkins v. Belt, 828 F.2d 298, 303-304 (5th Cir. 1987). Mr. Cortez has not
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alleged facts showing that the administrators were personally involved in the use of force incident
or that there was a causal connection between their wrongful conduct and a constitutional
violation. The Fifth Circuit has specifically rejected claims by a prisoner against administrators
because they allegedly “acted with deliberate indifference by taking no action after learning about
the incident.” Widner v. Aguilar, 398 F. App’x 976, 979 (5th Cir. 2010). Magistrate Judge
Mitchell appropriately found that the claims against the administrators should be dismissed.
Conclusion
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Mr. Cortez to the Report, the court is of
the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr. Cortez’s
objections are without merit. Therefore the court adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the court. It is accordingly
ORDERED that Mr. Cortez may proceed with his excessive use of force claim against Sgt.
K. Anthony. It is finally
ORDERED that Mr. Cortez’s remaining claims are DISMISSED with prejudice pursuant
to 28 U.S.C. § 1915A(b)(1).
So ORDERED and SIGNED this 27 day of October, 2016.

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Ron Clark, United States District Judge

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