Kidd v. Thaler et al

Filing 38

MEMORANDUM ORDER ADOPTING 33 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 12/21/11. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
CARLOS RAY KIDD #1079464

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v.

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RICK THALER, ET AL.

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CIVIL ACTION NO. 9:11cv18

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Carlos Ray Kidd, 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.
Kidd says as background to his claim that in 2003, he was sexually assaulted by a TDCJ
officer named James Larsen. He reported the incident and Larsen was fired and criminally
prosecuted.
However, Kidd says, Larsen was “highly valued” by the prison gang known as the Aryan
Brotherhood because he brought in contraband such as case, drugs, cell phones, tobacco, and
weapons for the gang. When Kidd’s complaint had Larsen terminated, Kidd became a “marked
man.” He says that he has been harassed, threatened, assaulted, and extorted by the gang, and that
he has been “labeled as a snitch," causing him to endure abuse from both inmates and staff.
In 2004, Kidd says that he was sexually assaulted and beaten unconscious while in
administrative segregation. He contacted the ACLU, which has contacted Texas prison officials on
Kidd’s behalf. Because moving Kidd around, from cell to cell, from wing to wing, and from unit

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to unit has not alleviated the problem, Kidd says that the ACLU asked that he be transferred to
another state or into federal custody, but this has not happened.
Kidd was transferred to the Ramsey I Unit, which has a protective custody section, but even
here, he began to suffer harassment, abuse and threats; he states that he received a note, purportedly
from the Aryan Brotherhood, threatening to kill him. Kidd says that one inmate tried to shoot him
with a spear and another tried to push a bare electrical cord into the shower while Kidd was there.
He again contacted the ACLU, which sought a higher level of protection for him, but to no avail.
As a result of this danger, Kidd says that he escaped from a medical transport in 2005 in order to
preserve his own life.
During the course of this escape, Kidd says that he was out for less than 24 hours before
being recaptured. After his recapture, however, instead of increasing his protection level, the
Director of TDCJ and the State Classification Committee decreased his protection level by placing
him back into administrative segregation - security detention, rather than protective custody.
Kidd concedes that he has been transferred to 15 different prisons around the state, but says
that the abuse and threats follow him wherever he goes. He complains that the defendants will not
use “the tools at their disposal” to ensure his safety, including a transfer to another state or to federal
custody, or even back to administrative segregation - protective custody.
All of the above is background to the claims in the present case. The claims in the current
lawsuit begin in January of 2010, when Kidd met with Ralph Bales, the Prison Rape Elimination Act
ombudsman from the Texas Board of Criminal Justice. Kidd had just arrived at the Gib Lewis Unit,
but was already being harassed, threatened, and called a snitch. He gave Bales a note, purportedly
from a former Aryan Brotherhood member, saying that the Brotherhood intended to kill him, and a
purported note from a former Aryan Circle gang member saying that the writer had witnessed
members of the Aryan Brotherhood plotting to kill him. Bales made copies of the notes and returned
them to Kidd.

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Kidd says that Bales promised to discuss the matter with prison officials, but that a month
or so later, a staff psychologist contacted Bales, who said that Kidd would not be transferred to
another state or to federal prison, or into protective custody.
One of the notes was found in Kidd’s cell and confiscated by guards. He asked Warden
Ginsel about it and expressed fears for his safety, and Ginsel told him to send in a request form
asking for the note. Kidd filed a grievance, but nothing was done to assure his safety.
On May 10, 2010, Kidd was assaulted by an Aryan Brotherhood member named Shirley, who
used a home-made slingshot to shoot Kidd in the face with pieces of metal. Kidd stated that he had
opened the food slot door of his cell to get the attention of officers when Shirley, who was in his own
cell, shot him. The wing officer called Lt. Adcock, who did not take Kidd to the infirmary but just
told him to wash off his face. Kidd did not do so, wanting his injury to be seen and treated.
After shift change, Kidd was taken to the infirmary, where a nurse washed his face but took
no other action, and made no notation of the wound. Three days later, he saw a doctor, who
documented the injury and gave him ibuprofen for pain.
Despite this, Kidd says that he was forced to live in close proximity to Shirley for another
three weeks, although Shirley was gone from the unit during one of these weeks. Kidd contacted an
outside group called Just Detention International and they pressured the prison officials into moving
Kidd to another wing, but this did not resolve the problem, which simply persisted on the next wing
where he was moved.
On July 22, 2010, Kidd had a hearing in another lawsuit which he had filed in this Court.
Kidd v. Perry, et al., civil action no. 9:10cv57 (E.D.Tex.). He had filed this lawsuit prior to the May
10 assault but discussed that incident at the evidentiary hearing. Warden Motal, a TDCJ official,
testified that Kidd was being provided with the highest level of protection available, but Kidd said
that the warden contradicted himself by saying that Kidd was eligible for placement in protective
custody, although the State Classification Committee would have to make that change.

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Kidd says that he is also harassed by security staff. He asserts that his cell is searched every
day and his legal papers routinely scattered around. The security staff requires him to undergo strip
searches even though they know that he was a sexual assault victim. Officers Garcia and Jackson
have verbally harassed him during strip searches and have made him stand naked on the run in front
of other inmates, who harassed him.
On October 29, 2010, Kidd says that a cell search was done by a riot team. Kidd was
handcuffed, but the handcuffs malfunctioned and had to be cut off. His feet were shackled so tightly
he could not walk. Kidd says that he was picked up and carried into the cell, and his head “rammed”
into a corner of the bunk. He was then slammed and the floor and punched in the face. After the
restraints were removed, Kidd saw that he had sustained injuries and asked for medical care, but the
sergeant refused.
On October 31, 2010, Kidd says that he was finally taken to the medical department. His
injuries were documented as bruises and a contusion, but the medical records state that Kidd did not
report these injuries to security.
Kidd filed grievances about the assault, but says that these only resulted in more retaliation.
On December 25, Lt. Vincent, Sgt. Butler, and a five-man riot team woke Kidd up, entered his cell,
and confiscated pens, soap, combs, his mattress, and a box containing over 2000 documents, which
were disclosure items sent to him in another lawsuit. He asked Vincent why this was being done and
Vincent said “because I can.” Kidd received no confiscation papers for his property.
On December 29, Kidd says that he spoke to Lynn Sharpe from the Safe Prisons Program.
He told her about the abuse, but she said that there was nothing she could do, stating that Kidd had
already been transferred all over the state to many different prisons. Sharpe said that even if Kidd
were transferred, the problem “seems like it will persist.” Sharpe added that TDCJ Director Brad
Livingston had assigned Kidd to the Gib Lewis Unit and so unless a transfer was ordered, Kidd was
stuck there and would have to make the best of a bad situation.

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When Kidd asked Sharpe about being transferred back to protective custody, she said that
this was not possible because of the 2005 escape. She also told Kidd that the State of Texas would
not transfer him to another state or into federal custody. Kidd contends that the prison officials are
“largely ignoring” his need for protection and are forcing him to live in a dangerous environment.
He asks for monetary damages and a transfer to an institution outside of TDCJ where his safety can
be assured.
In reviewing Kidd’s lawsuit, the Magistrate Judge first took note of Kidd’s litigation history.
On April 22, 2010, Kidd filed the lawsuit referenced above, Kidd v. Perry. An evidentiary hearing
was conducted and the lawsuit was dismissed as frivolous on July 23, 2010. No appeal was taken.
On August 31, 2009, Kidd filed a lawsuit in the U.S. District Court for the District of
Columbia, complaining of a First Amendment violation in that U.S. currency bears the inscription
“In God We Trust.” This lawsuit was dismissed for failure to state a claim upon which relief could
be granted on October 26, 2009. Kidd appealed to the District of Columbia Circuit, which affirmed
the dismissal in an unpublished order dated July 21, 2010.
On June 23, 2008, Kidd filed a lawsuit in the Eastern District of Texas complaining of the
conditions of confinement at the Michael Unit. The Defendants were ordered to answer this lawsuit
and filed a motion to dismiss arguing that Kidd had failed to state a claim upon which relief could
be granted because he had failed to exhaust his administrative remedies. This motion was granted
and the lawsuit was dismissed on February 4, 2009. No appeal was taken. ‘
After reviewing these cases, the Magistrate Judge issued a Report on August 26, 2011,
recommending that the lawsuit be dismissed. The Magistrate Judge concluded that these three
dismissals amounted to three strikes within the meaning of 28 U.S.C. §1915(g), which provides that
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on three or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the ground that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.

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After discussing the validity and scope of Section 1915(g), the Magistrate Judge observed
that all of Kidd’s strikes became final prior to the filing of the present lawsuit and noted that Kidd
did not pay the filing fee of $350.00.
With regard to a possible showing of imminent danger, the Magistrate Judge said that the
threat must be “real and proximate,” and that allegations of past harm do not suffice; the harm must
be imminent or occurring at the time that the lawsuit is filed, and the exception refers to “a genuine
emergency where time is pressing.” In this case, a number of the specific incidents to which Kidd
referred had happened in the past, and thus did not support a finding that he is in imminent danger
as of the time of the filing of the lawsuit.
The Magistrate Judge referred to King v. Livingston, civil action no. 3:05cv464 (S.D.Tex.,
September 8, 2005), in which the plaintiff Gerald King alleged that his complaints against prison
officials through grievances and lawsuits had brought him “threats of bodily harm, making sure I
don’t make parole, and threats I would never leave the Texas prison system.” He stated that “these
threats have been carried out through physical assaults by the Defendants, bogus and retaliatory
disciplinary cases, major and minor tampering and denial of medical treatment and restrictions, and
denials and delays of chronic prescribed medications as a plot to medically induce my death.” He
mentioned an assault which had occurred two months before the filing of the complaint and said that
his asthma inhaler had been changed from a 30 day renewal to a 90 day renewal so that he would be
without it for 60 days, to “medically induce my death.”
Although King asserted that he was in imminent danger, the Southern District disagreed,
stating that King had three strikes and that “a review of the complaint fails to prove that King is in
imminent danger of serious physical injury.” On appeal, the Fifth Circuit stated as follows:
King argues that he is in imminent danger of serious physical injury because he has
been assaulted several times by the defendants and other inmates and because the
defendants have attempted to cause him serious physical injury from the time of
Hurricane Rita to the present. King fails to meet the showing required to avoid
application of the three strikes bar under 28 U.S.C. §1915(g). See Baños v.
O'Guin,144 F.3d 883, 884-85 (5th Cir. 1998).

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In the present case, the Magistrate Judge said that Kidd’s claim of on-going “imminent danger” as
a result of the failure to protect him in the way that he believes appropriate is essentially the same
claim that he raised in Kidd v. Perry, which lawsuit was dismissed as frivolous. In that case, Kidd
discussed the sexual assault by Larsen in 2003 and his transfer to the Gib Lewis Unit, where the
incidents in that lawsuit as well as the present one took place. Kidd testified that at the Gib Lewis
Unit, he is confined in a single man cell in administrative segregation and is escorted by officers
every time he leaves his cell, as are all other inmates housed in that area. He also acknowledged that
the prison officials were responsive to his concerns, repeatedly moving him to different areas within
the prison and to different prisons within the state. The Court concluded that Kidd is being provided
the highest level of protection available in the prison system and concluded that his claim of
deliberate indifference to his safety was frivolous.
The Magistrate Judge stated in the present case that Kidd offered nothing to show that his
situation had changed in any meaningful way between the filing of the previous case and the filing
of the present one. Kidd concedes that he has been housed at all times in administrative segregation,
which includes being housed in a cell by himself and escorts by officers whenever he leaves his cell.
The Magistrate Judge cited Gamer v. Martinez, civil action no. 2:06cv266, 2005 WL 2206203
(S.D.Tex., September 12, 2005, Report adopted and case dismissed November 12, 2005, appeal
dismissed), in which the U.S. District Court for the Southern District of Texas noted that “even if
the plaintiff could establish that his life was in danger, his placement in administrative segregation,
where he is confined to a cell 23 hours a day, is perhaps the safest housing assignment at the unit.”
The Magistrate Judge stated that the security measures under which Kidd was confined when this
lawsuit was filed were sufficient to show that any danger which he may face is not “imminent”
within the meaning of the statute.
The Magistrate Judge cited a concurring opinion by Justice Thomas noting that “prisons are
necessarily dangerous places,” see Farmer v. Brennan, 114 S.Ct. 1970, 1990 (1994) (Thomas, J.,
concurring in the judgment). The fact that prisons are dangerous places does not thereby render all
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prisoners, at all times, in “imminent danger of serious physical injury;” rather, some more concrete
showing must be made by an inmate who is subject to the Section 1915(g) bar. Because Kidd did
not make such a showing, nor did he pay the full filing fee, the Magistrate Judge recommended that
the lawsuit be dismissed with prejudice as to the refiling of another in forma pauperis lawsuit raising
these same claims, but without prejudice as to Kidd’s right to refile the lawsuit without seeking in
forma pauperis and upon payment of the full filing fee. The Magistrate Judge also recommended
that should Kidd pay the full filing fee within 15 days after dismissal of the lawsuit, he should be
allowed to proceed as though the full fee were paid from the outset.
Kidd filed objections to the Report on September 6, 2011, in the form of a “motion for de
novo review.” In this motion, he says that the Magistrate Judge claimed that he had abused the in
forma pauperis procedures, but that in fact, he is not a lawyer and has filed several in forma pauperis
lawsuits which he believed were meritorious, but which he did not know how to formulate because
of his lack of legal training.
Kidd says that if an attorney had filed his lawsuits, and done it professionally, the complaints
would have been moved forward, but because of his lack of legal expertise, they get dismissed “for
one reason or another.” With regard to the imminent danger exception, Kidd asks that the Court hold
a trial so that he can prove the elements of danger to his safety. He says that he will need access to
the Court’s law library for six months to a year before such a trial can be held, so that he can give
himself some legal training. He says that once he is “transformed into an attorney,” with the help
of the Court, his pleadings will no longer be fruitless as they have been in the past.
However, Kidd says, the Court may not “convert” him into an attorney, meaning that in the
future, he will not be respected by the Court, but regarded as “a low life inmate in a filthy prison, and
of no real concern to a federal judge in his or her courtroom, where Plaintiff can easily be dismissed
and disposed of as frivolous or failure to state a claim excuses.” He claims that whether or not his
life is in danger is “of no real concern” to a judge who has immunity.

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If the Court grants him relief against TDCJ, Kidd says, then TDCJ will “get mad at the
Court,” which could have “a powerful fall back on the court some way or another, so I really don’t
expect the court to do anything for me.” He suggests that “if the court pisses TDCJ off then they
may even lock up the judges and have officers to rape them, so we don’t want that do we?” He says
that it is easy to write threatening letters to federal judges without any substance behind them, as he
has done in the past, but that it is “impossible” to get an injunction to be protected. Specifically,
Kidd states as follows:
It’s easy to threaten to KILL federal judges as I have done before, with no real
substance to the threat, but as a ploy to get a federal charge placed on me so I will be
removed from TDCJ to face the federal charge. Writing a letter threatening to kill
a federal judge is more like a motion for injunction than anything else to me. It gets
me some temporary relief, and more prison time, but oh well, it gets me away from
the danger I face in TDCJ for a little while.
So you may get a threatening letter from me before too long, and I’d appreciate for
you to file charges on me so I will be sent to the federal system for a year or two, at
least that will buy me a little time, and afford me the opportunity to come out of my
cell to shower, and have some recreation with [sic] the ever present threat of assault
or death. I may end up with a life sentence for those threat letters, but in my
desperation, I really have no other way. I could maybe escape again, but I have
nowhere to go on the streets, plus if I do that again to even protect my life, I’ll get
more time in TDCJ where I’m already in danger, so that would be counterproductive.
Kidd goes on to state that it is “useless” to list the grounds upon which the Magistrate
Judge’s decision should be overturned because the Court will adopt the Magistrate Judge’s opinion
in any event. He again asks that charges be filed upon him if he sends a threatening letter.
Next, Kidd says that he has been swallowing razor blades and “sticking razor blades in his
penis,” sometimes because he is suicidal because of his situation, and sometimes just to try to “end
it all.” But usually he does this because he is “desperate to get away from the people who are trying
to cause me harm.” He says that these actions get him away from the danger, though only
temporarily. Kidd then says that he really does not want to kill himself but that he may end up with
this being the only option. Kidd concludes by again asking that charges be filed on him if he writes
a threatening letter, saying that if this is not done, he will “figure out some other desperate act to
perform to get myself into a safer situation.”
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Kidd did not object to the Magistrate Judge’s conclusion that he has three strikes, nor did he
raise any specific objections to the Magistrate Judge’s conclusion that he was not in imminent danger
of serious physical injury because of his housing status. Accordingly, Kidd is barred, except upon
grounds of plain error, from appellate review of those proposed factual findings and legal
conclusions, which have been accepted and adopted by the district court.

Douglass v. United

Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).1
The Court has conducted a careful de novo review of the pleadings and testimony in this case,
including the Report of the Magistrate Judge and the Plaintiff’s objections thereto. 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 (docket no. 33) is hereby ADOPTED in its entirety as the opinion of the District Court. It is
further
ORDERED that the Plaintiff Carlos Kidd’s leave to proceed in forma pauperis is hereby
REVOKED. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice
as to the refiling of another in forma pauperis lawsuit raising the same claims as herein presented,
but without prejudice to the refiling of this lawsuit without seeking in forma pauperis status and
upon payment of the statutory $350.00 filing fee. It is further
ORDERED that should the Plaintiff pay the full filing fee within 15 days after the date of
entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as through the full
fee had been paid from the outset. Finally, it is

Plain error is “error so obvious and substantial that failure to notice it would affect the
fairness, integrity, or public reputation of the judicial proceedings and would result in manifest
injustice.” Garriott v. NCSoft Corp., — F.3d —, 2011 WL 5009950 (5th Cir., October 21, 2011)
(not yet published).
1

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ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

So ORDERED and SIGNED this 21 day of December, 2011.

___________________________________
Ron Clark, United States District Judge

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