Wren v. Curtis et al

Filing 29

Order. The Court ACCEPTS the Magistrate Judge's recommendations 25 as set forth in his Report and Recommendation. The Court MODIFIES the Magistrate Judge's report to reflect the following: the Attorney General should be required to pro vide Plaintiff with the use-of-force report relevant to his claims within 30 days of the date of this order. It is ORDERED: (1) Plaintiff's claim against Defendant Bryan Collier is dismissed with prejudice for failure to state a claim upon whi ch relief may be granted; (2) the Clerk shall transmit to the Attorney General a copy of this Order, together with a copy of Plaintiff's Complaint 3 and Verified Complaint 4 ; the documents shall be transmitted by email to the appropriate ema il addresses at the Office of the Attorney General for the State of Texas; (3) Defendants Officer Jimmy Curtis, Officer Mendez, Officer Prado, Officer Vandam, Sergeant Alcantar, Sereant Miller, Sergeant Lozano, Lieutenant Cantrell, and Medical Office r Jones shall file an answer or other responsive pleading within thirty (30) days of the date of service of this Order; (4) if a Defendant is no longer employed by the Texas Department of Criminal Justice and will not be contacted and represented by the Attorney General's Office, the Assistant Attorney General assigned to this case shall provide the Court with each such Defendant's last known address, UNDER SEAL WITHOUT A MOTION, on or before the date on which the Defendant's answ er is otherwise due; (5) the Assistant Attorney General assigned to this case shall send to Plaintiff a copy of the relevant use-of-force report within thirty (30) days of the date of this Order, to assist in identifying Defendant Officer John Doe. There is no just reason for delay in entering a final judgment and final judgment should be entered as to the above-named Defendant and claims pursuant to Federal Rule of Civil Procedure 54(b). JUDGMENT SHALL BE ENTERED ACCORDINGLY. (Ordered by Senior Judge Sam R Cummings on 11/13/2017) (jak) (jak)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

JOSHUA WREN,
Institutional ID No. 1982778,
SID No. 6598593,
Plaintiff,
v.

OFFICER JIMMY CURTIS, et ai.,
Defendants.

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CIVIL ACTION NO. 1:16-CV-196-C

ORDER
Plaintiff, acting pro se, filed a civil rights complaint against Defendants Officer Jimmy
Curtis, Officer NFN Mendez, Officer NFN Vandam, Officer NFN Prado, Sergeant NFN
Alcantar, Sergeant NFN Miller, Sergeant NFN Lozano, Lieutenant NFN Cantrell, Medical
Personnel NFN Jones, and Officer John Doe, all of whom were prison officials working at the
John Middleton Unit (Middleton Unit) of the Texas Department of Criminal Justice (TDCJ) at
the time of the events giving rise to Plaintiffs complaint, and Brian Collier, the executive
director of the TDCJ. Plaintiff alleges that he was subjected to an excessive use of force and
subsequent denial or delay of necessary medical attention in violation of his rights under the
Eighth Amendment to the United States Constitution during his confinement at the Middleton
Unit.
Plaintiff specifically alleges that he was physically harmed when Defendants Alcantar,
Curtis, Vandam, Mendez, Prado, and Doe used excessive force after transporting him to a new
housing unit within the prison. Plaintiff claims that Defendants Miller, Lozano, Cantrell, and
Jones observed his injuries after the use-of-force incident and denied Plaintiff medical treatment.

Plaintiff alleges that he did not receive medical care until late in the afternoon, the following day
after the use-of-force incident. Plaintiff claims he has required multiple surgeries and continues
to suffer with pain, double vision, and weakened vision as a result of the force used against him.
Plaintiff also names as a Defendant Brian Collier, Executive Director ofTDCJ, in his
official capacity, but makes no specific claim against him. Plaintiff does not allege that
Defendant Collier knew of or participated in either the use-of-force incident or subsequent denial
of medical care. Plaintiff requests monetary damages and ongoing medical care for his injuries.
The complaint was referred to the docket of the United States Magistrate Judge, who
completed screening of the case, but did not order authenticated records from TDCJ-CID. The
Magistrate Judge found that Plaintiffs excessive force claim was sufficient to require an answer
from all of the Defendants except for Defendant Bryan Collier. Because the Plaintiff has not
consented to the jurisdiction of the Magistrate Judge, the Magistrate Judge entered a Report and
Recommendation regarding the disposition of Plaintiff s claims and transferred the case back to
this Court on September 25,2017. Plaintiff filed a partial objection to the Report and
Recommendation on October 10, 2017.
In the Report and Recommendation, the Magistrate Judge recommended that the Court
find as follows:
(1)

Plaintiffs claim against Bryan Collier in his official capacity as Executive
Director ofTDCJ should be dismissed with prejudice for failure to state a claim
upon which relief may be granted.

(2)

Plaintiff should be required to provide any additional identifying information he
has to assist in service upon the John Doe Defendant, and Plaintiffs claims
against Defendants Officer Jimmy Curtis, Officer Mendez, Officer Prado, Officer
Vandam, Sergeant Alcantar, Sergeant Miller, Sergeant Lozano, Lieutenant

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Cantrell, Medical Officer Jones, and Officer John Doe should move forward at
this stage of the litigation with service of process on these Defendants.
This Court has made an independent examination of the record in this case. The Court
ACCEPTS the Magistrate Judge's recommendations as set forth in his Report and
Recommendation and finds that Plaintiff s claim against Bryan Collier in his official capacity as
Executive Director ofTDCJ should be dismissed with prejudice for failure to state a claim upon
which relief may be granted. Plaintiffs objection is overruled.
The Court further finds that Plaintiff s claims against Defendants Officer Jimmy Curtis,
Officer Mendez, Officer Prado, Officer Vandam, Sergeant Alcantar, Sergeant Miller, Sergeant
Lozano, Lieutenant Cantrell, Medical Officer Jones, and Officer John Doe should move forward
at this stage of the litigation with service of process on these Defendants. Service of Process on
Officer John Doe will be withheld until his identity is provided as discussed below.
The Court MODIFIES the Magistrate's Judge's report to reflect the following:
The Court recognizes its obligation to assist, to some extent, plaintiffs who are
proceeding pro se and informa pauperis in identifying a John Doe Defendant to enable service
of process. See Murphy v. Kellar, 950 F.2d 290,293 (5th Cir. 1992) (holding that complaint was
improperly dismissed as frivolous without allowing the prisoner to conduct discovery to identify
alleged attackers); Cowart v. Dallas Cnty. Jail, 439 F. App'x 332,332-33 (5 Cir. 2011) (per
curiam) (noting that a pro se plaintiff proceeding in forma pauperis was entitled to conduct
discovery to determine the identities of unnamed defendants because '" [i]t is conceivable that'
readily available documentation should reveal the identities of some of the John Doe
Defendants").

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The Court finds that readily available documentation should reveal the identity of Officer
John Doe in this case. Plaintiff has outlined his unsuccessful attempts to obtain this information.
Accordingly, the Attorney General should be required to provide Plaintiff with the use-of-force
report relevant to his claims within 30 days of the date of this order. Plaintiff shall then have 20
days to identify Officer John Doe and provide the Court with his name. Plaintiffs failure to
provide the identity of Officer John Doe will result in the dismissal, without prejudice, of any
claims against Officer John Doe.
It is therefore ORDERED:

(1)

Plaintiff s claim against Defendant Bryan Collier is dismissed with prejudice for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A.

(2)

The Clerk shall transmit to the Attorney General a copy of this Order, together
with a copy of Plaintiffs Complaint (ECF No.3) and Verified Complaint (ECF
No.4). The documents shall be transmitted by email to the appropriate email
addresses at the Office of the Attorney General for the State of Texas. See Fed. R.
Civ. P. 5(b)(2)(E).

(3)

Defendants Officer Jimmy Curtis, Officer Mendez, Officer Prado, Officer
Vandam, Sergeant Alcantar, Sergeant Miller, Sergeant Lozano, Lieutenant
Cantrell, and Medical Officer Jones shall file an answer or other responsive
pleading within thirty (30) days of the date of service of this Order.

(4)

If a Defendant is no longer employed by the Texas Department of Criminal
Justice and will not be contacted and represented by the Attorney General's
Office, the Assistant Attorney General assigned to this case shall provide the
Court with each such Defendant's last known address, UNDER SEAL WITHOUT
A MOTION, on or before the date on which the Defendant's answer is otherwise
due.

(5)

The Assistant Attorney General assigned to this case shall send to Plaintiff a copy
of the relevant use-of-force report within thirty (30) days of the date of this Order,
to assist in identifying Defendant Officer John Doe. Plaintiff shall then have
twenty (20) days from the date of service to identify Defendant Doe and provide
his name to the Court. Plaintiffs failure to provide the identity of Officer John

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Doe will result in the dismissal, without prejudice, of any claims against Officer
John Doe.
There is no just reason for delay in entering a final judgment and final judgment should
be entered as to the above-named Defendant and claims pursuant to Federal Rule of Civil
Procedure 54(b).
JUDGMENT SHALL BE ENTERED ACCO
Dated November

ll, 2017.

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