Guerrero v. Turner et al
Filing
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MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION OF THE U. S. MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT. It is ordered that Plaintiff's objections are overruled and this civil action is dismissed with prejudice as frivolous and for failure to state a claim upon which relief may be granted. Signed by Judge Ron Clark on 3/7/12. (mrp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
RUBEN GUERRERO #1635715
§
v.
§
TY N. TURNER, ET AL.
§
CIVIL ACTION NO. 9:11cv82
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Ruben Guerrero, 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 matter 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. As Defendants, Guerrero named correctional officers Ty Turner and
Kenneth Ragland, Major Tove Butcher, and Wardens Michael Sizemore and Gregory Oliver.
In his complaint and at an evidentiary hearing, Guerrero says that he arrived at the Eastham
Unit around June 1, 2010, and stayed on transient status until June 23, when he was given a housing
assignment and a job assignment to the field force. The next day, he did not turn out for work
because he was having “psychological issues.” Officer Turner came to his cell to see why he did not
turn out for work and Guerrero told him about these issues. He thought Turner would take him to
the medical department, but instead, Turner threatened to shoot him.
Turner then talked to Ragland, who wrote Guerrero a disciplinary case for attempted escape.
At the hearing, Ragland testified that Guerrero’s conversation with Turner had actually been with
him, Ragland, although this was not true. Guerrero was convicted of the attempted escape charge.
On July 2, 2010, Guerrero stated that he went to a unit classification hearing and told Warden
Sizemore what had happened, and Sizemore laughed at him and said that if Turner wanted to keep
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his job, “he better shoot you.” Sizemore transferred Guerrero to another field squad, away from
Turner, saying that maybe the officer in charge of that squad would not shoot him.
At another classification hearing six days later, Guerrero told Major Butcher what had
happened, but Butcher showed no concern, and asked for Guerrero’s emergency contact information,
implying that something bad was going to happen.
On July 10, 2010, Guerrero filed a grievance, but he says that it “got lost.” He filed another
one in November of 2010, which was denied. He wrote to the Governor of Texas, who referred the
letter back to TDCJ, and the Office of the Inspector General told him that they would not do
anything. A life endangerment hearing was held in November and Warden Oliver dismissed
Guerrero’s concerns as “nothing.”
Guerrero stated that several years earlier, he had been at the Huntsville Unit. He was
assigned a job outside of the prison walls, but he could not handle it, so he was reassigned inside.
He was labeled as an escape risk. When talking to Turner in 2010, Guerrero said, he told the officer
that he had been labeled as an flight risk, but Turner said that he did not care, he had a gun and
would shoot him. Ragland then conspired with Turner to write the disciplinary case and cover up
the threat.
As a result of the disciplinary case, Guerrero said that he had “lost everything,” including
being dropped to medium custody, and is now on loss of privileges status. He conceded that he is
still refusing to turn out for work, stating that the officers come by his cell and ask him if he is going
to work and he says no.
The TDCJ records, offered into evidence at the evidentiary hearing in this case, show that
Guerrero received a disciplinary case for expressing an intention to escape from custody, in that he
said that “I am a flight risk and if I go to the fields, I am going to run.” According to a statement by
Guerrero in the disciplinary case, Turner asked him why he did not go to work and he said that this
was supposed to have been taken care of in 2003, when he asked to be moved from an outside job
to an inside job for psychological reasons. When he asked why his status had changed, he was told
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that he had been labeled as a flight risk. Guerrero explained this to Turner, who said “that’s medical
and has nothing to do with me, I got a gun, I will shoot you.”
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed. The Magistrate Judge first cited Fifth Circuit case law to the effect that
threatening words and gestures from a custodial officer do not themselves amount to constitutional
violations, and so Turner’s threat to shoot Guerrero did not amount to a violation of Guerrero’s
constitutional rights.
The Magistrate Judge next said that because the threat did not amount to a constitutional
violation, Guerrero’s complaint that Ragland conspired to cover up the threat also was not a
constitutional violation. The Magistrate Judge stated that to recover on a claim of conspiracy, there
must be an actual deprivation of a constitutional right, not merely a conspiracy to deprive.
With regard to Guerrero’s claim that the disciplinary case he received from Ragland was
false, the Magistrate Judge stated that there is no free-standing constitutional right to be free from
malicious prosecution, and that Guerrero cannot seek damages concerning a prison disciplinary case
through a civil rights lawsuit absent a showing that the case has been expunged, overturned, or
otherwise set aside. Thus, the Magistrate Judge concluded that Guerrero’s claims against Ragland
lacked merit.
Next, the Magistrate Judge stated that the evidence, including Guerrero’s testimony, showed
that TDCJ officials believed that Turner’s statement was not a threat per se, but a response to
Guerrero’s statement about being a flight risk, indicating that Guerrero would be shot if in fact he
tried to run. The response to Guerrero’s Step Two grievance says that he had been “warned of
impending results if you did attempt to run from the field force; however, that is an interpretation
of policy and not a direct threat to your safety or well-being.”
Thus, the Magistrate Judge determined that Guerrero had failed to show that Major Butcher
knew of and disregarded an excessive risk to his health or safety, as required for a showing of
deliberate indifference to his safety. The Magistrate Judge stated that even if Major Butcher should
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have known that Turner’s statement amounted to a “significant risk” to Guerrero’s safety, this by
itself does not show deliberate indifference. Even if Turner’s statement was an over-reaction to what
Guerrero said, this does not make the statement itself a constitutional violation, nor does it show that
Major Butcher was deliberately indifferent to Guerrero’s safety by failing to take action.
Although Guerrero complained that Warden Sizemore had laughed at him and not taken his
fears seriously, the Magistrate Judge concluded that Guerrero had not shown that Sizemore was
deliberately indifferent to his safety, particularly in light of the fact that Sizemore in fact did take
action, by moving Guerrero to another field squad, away from Turner. Similarly, the Magistrate
Judge determined that Guerrero had not shown that Warden Oliver was deliberately indifferent to
his safety by failing to take the actions which Guerrero thought appropriate. Guerrero also said that
he had written to Warden Oliver about other problems on the unit, including incidents of staff
misconduct, but nothing was done; the Magistrate Judge noted that Guerrero did not indicate that
any of these incidents involved him, and that Guerrero did not have a constitutional right to have the
complaints expressed in these letters resolved to his satisfaction.
Guerrero filed objections to the Magistrate Judge’s Report on February 28, 2012. In his
objections, Guerrero states that Officer Turner, for his own “gratuitous pleasure,” threatened his life
by saying “I got a gun, I will shoot you.” He says that the practice of slavery has been abolished and
that it shocks the conscience to learn that Turner, in the course of his employment, “preserves
characteristics of early slavery.” Guerrero adds that it is even more shocking that Turner disregards
TDCJ guidelines, shows deliberate indifference to Guerrero’s medical needs, and has “gratuitously
inflicted suffering and fear.” He says that Turner had a duty to notify the medical department of
Guerrero’s psychological needs, but instead threatened to take his life.
These objections fail to address the Magistrate Judge’s conclusion that threatening words do
not rise to the level of a constitutional violation. See Bender v. Brumley, 1 F.3d 271, 274 n.3 (5th
Cir. 1993). Nor does the fact that Turner did not escort him to the medical department upon being
told by Guerrero that the inmate was suffering from unspecified “psychological problems” show that
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a constitutional violation occurred; Guerrero has not shown that these “psychological problems”
amounted to a serious medical need, nor that he was denied medical or mental health treatment. See
Estelle v. Gamble, 429 U.S. 97, 105 (1976) (interference with medical assistance by security officers
may state a valid claim if the interference amounts to deliberate indifference to a serious medical
need). Guerrero’s objection on this point is without merit.
Next, Guerrero complains again that he received the disciplinary case from Ragland, not
Turner, and that Ragland “conspired to cover up a constitutional violation.” The fact that Ragland
was the charging officer in the disciplinary case does not violate Guerrero’s constitutional rights.
As the Magistrate Judge correctly concluded, Guerrero cannot seek damages for the disciplinary case
in a Section 1983 action without a showing that the case has been expunged, overturned, or
otherwise set aside. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998). The claim that Ragland
conspired with Turner to cover up Turner’s threat does not set out a constitutional violation because
the threat itself is not a constitutional violation, and a conspiracy claim requires that an actual
violation take place. Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984). Guerrero’s
objection on this point is without merit.
Next, Guerrero says that Warden Sizemore “condoned” Turner’s threat and assigned him to
another squad, but he believes, though unable to verify, that his new squad is headed by “one of
Turner’s brothers.” The evidence showed that the TDCJ officials interpreted Turner’s alleged threat
as a statement that if Guerrero tried to run away, Turner would shoot him. Guerrero concedes that
a life endangerment investigation was done, which concluded that there was no credible threat to his
life. Guerrero has not shown that Sizemore actually knew of and disregarded a substantial risk to
his safety. His objection on this point is without merit.
In any event, Guerrero says, the very fact that he was assigned back to work in the field force
shows that the officers were deliberately indifferent to his safety. He says that after the evidentiary
hearing in this case, he met an inmate named Gary Moton, who had recently been released from
administrative segregation after being there eight years on a charge of “verbal attempted escape.”
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He fails to show how this fact renders the Defendants deliberately indifferent to his safety. This
objection is without merit.
Guerrero says that Major Butcher suggested that if Guerrero did not vacate his cell in prehearing detention and go to population, “some impending danger” awaited. In his complaint, he
stated that Major Butcher told him that he was not going to use the pre-hearing detention cells to
“hide out” and that he had to go to population. Butcher also asked him about the accuracy of his
contact information. None of these actions show that Butcher knew of or disregarded an excessive
risk to Guerrero’s health or safety. Even if Butcher’s statements could somehow be construed as a
threat, the Magistrate Judge properly determined that mere threatening language did not amount to
a constitutional violation. Nor has Guerrero shown that he in fact faced a significant risk to his
health or safety. His objection on this point is without merit.
Next, Guerrero says that Warden Oliver “clearly had been aware of all the facts,” because
Oliver had signed off on the Step One grievance.
In addition, Oliver conducted the life
endangerment investigation, and dismissed Guerrero’s fears as “nothing.”
Although the Magistrate Judge stated that Guerrero appeared to be complaining about
violations of other persons’ rights with regard to his letters to Oliver, Guerrero says that the nature
of these complaints was to establish deliberate indifference by Oliver and the unit administration
towards his health and safety as well as that of other inmates. He says that “many instances exist”
in which he was the victim of staff misconduct and assault and that these are for the trier of fact, not
the Magistrate Judge. However, the claim in the present case does not concern those alleged
instances of staff misconduct and assault, but rather the assertion by Guerrero that Oliver was
deliberately indifferent to his safety by not taking the actions which Guerrero believed appropriate
on the letters which Guerrero wrote. The Magistrate Judge correctly determined that Guerrero does
not have a constitutionally protected liberty interest in having his complaints resolved to his
satisfaction, and so there was no violation of due process when Warden Oliver failed to do so.
Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). Guerrero has not shown that the fact that
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the letters which he wrote to Warden Oliver were not resolved to his satisfaction amounted to a
constitutional violation, nor that Warden Oliver was deliberately indifferent to his safety. His
objections are without merit.
The Court has conducted a careful de novo review of the pleadings and testimony in this case,
along with 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. 16) is hereby 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. 28 U.S.C. §1915A(b).
It is further
ORDERED that any and all other motions which may be pending in this civil action are
hereby DENIED. Finally, it is
ORDERED that the Clerk shall send a copy of the opinion in this case to the Administrator
of the Three Strikes List for the Eastern District of Texas.
So ORDERED and SIGNED this 7 day of March, 2012.
___________________________________
Ron Clark, United States District Judge
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