Cooks v. Demerson et al
Filing
44
MEMORANDUM OPINION, ORDER granting 29 Motion for Summary Judgment and Order of Dismissal filed by Samual A Demerson. Ordered that Pltf's claims against dft Demerson in his official capacity is dismissed without prejudice FRCP 12(b)(2) and pl tf's claims against dft Demerson in his individual capacity are dismissed with prejudice. This Court declines to exercise pendant jurisdiction of any state law claims asserted; and they are therefore, Dismissed Without Prejudice. The Dismissal of pltf's claims against dft TDCJ without prejudice for failure to state a claim on which relief can be granted by Order of Partial Dismissal issued 10/19/10 qualifies as a "strike" under the PLRA. (Ordered by Judge Mary Lou Robinson on 9/28/2011) (plh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
ROBERT DANIEL COOKS, PRO SE,
also known as ROBERT D. COOKS,
TDCJ-CID No. 522351.
$
$
$
$
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Plaintiff,
$
$
v.
2:10-CV-0195
$
SAMUAL1 A. DEMERSON,
Industrial Specialist 3, and
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE (TDCJ),
$
$
$
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Defendants.
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MEMORANDUM OPINION, ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT, AND ORDER OF DISMISSAL
On this day came for consideration defendant DEMERSON's January 27,2011 motion
for summary judgment, with supporting brief and appendix of exhibits,
as
well
as
plaintiff
s
February 25,2011 response, with supporting brief and appendix of exhibits. Plaintiff s claims
against defendant TEXAS DEPARTMENT OF
CRIMINAL JUSTICE (TDCJ) were dismissed
without prejudice for failure to state a claim on which relief can be granted by Order of Panial
Dismissal issued October 19. 2010.
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed the instant cause while
a prisoner
confined in the Texas
Department of Criminal Justice, Correctional Institutions Division, pursuant to Title 42,United
States Code, section 1983, complaining against defendants DEMERSON and TDCJ for
Plaintiff s claims against defendant TEXAS DEPARTMENT OF CRIMINAL JUSTICE
(TDCJ) were dismissed without prejudice on October 19,2010, for failure to state a claim on
which relief can be granted.
rAs shown by defendant's pleadings, defendant actually spells his name, "Samuel."
By his August 20,2010 Amended Complaint, plaintiff alleges on April 15, 2009,
defendant DEMERSON assigned plaintiff to perform work which violated his medical
restrictions of
oono
work around machinery with moving parts" and with knowledge that plaintiff
was physically and mentally unable to perform the
job. Plaintiff
also asserts his training was
inadequate and that, on the day in question, he informed defendant DEMERSON he was unable
to perform his job assignment because his medications were making him lightheaded and dtzzy
and he lacked the concentration necessary to work on the machine. Plaintiff says DEMERSON's
response was to require
plaintiff to continue working and to tell him to do the best he could.
About two hours later, plaintiff suffered a work-related injury when the shoe-press
machine came down on the end of his finger, punching a hole in it and breaking
it. Plaintiff
says
he received four sutures, wore a finger splint for six weeks, and now has only 40-50% use of the
finger.
Plaintiff requests monetary damages against defendant DEMERSON which he
denominates as follows: $75,000.00 compensatory, $75,000.00 punitive, and $100,000.00
permanent damages.
UNDISPUTED FACTS
Although neither party expressly acknowledges it, it is clear there is no dispute that
plaintiff was a prisoner confined in the Clements Unit of the Texas Department of Criminal
Justice, Correctional Institutions Division (TDCJ-CID) and defendant DEMERSON was
employed with the Texas Department of Criminal Justice at all times relevant to this lawsuit and
was acting under color of state law.
Defendant and plaintiff further agree as follows:
A.
On February 23,2009 an HSM 18 was issued for plaintiff showing work
restrictions of (1) no lifting over 50 pounds, (2) no work in direct sunlight, (3) no
temperature extremes, and (4) no humidity extremes.
On March 4,2009, plaintiff was assigned to work at the Clements Unit Shoe
Factory.
C.
On March 5,2009, plaintiff completed his training for the use of hand tools. On
March 9,2009 plaintiff completed his training at the DESMA Pre-Heater position.
On March 23,2009 plaintiff completed his training as a canvas trimmer.
D.
On April 8, 2009 plaintiff wrote a Step 1 grievance alleging his work assignment
violated his medical work restrictions and asking to be placed back on Inside
Medical Squad. Plaintiff complained in the grievance he was being required to
work around machines that gave off excessive heat.
E.
The grievance was investigated, but the parties dispute the substance or
significance of Ms. Shipp's answer. Ms. Holligan from Unit Classification
responded to plaintifPs complaint that assignment to the Shoe Factory was
appropriate to his medical work restrictions. Mr. McCrary, Asst. Manager of the
Shoe Factory responded to plaintiff s complaint by saying the She Factory
machines do not give off excessive hat with regard to work restrictions and
outlined some of the ventilation equipment used in the Shoe Factory.
F.
The grievance investigation concluded that plaintiff was appropriately assigned to
the Shoe Factory and the Step 2 grievance resolution concurred.
G.
Should temperatures rise, the Shoe Factory is equipped with five large exhaust
fans mounted in the roof of the building and approximately seventeen hanging
fans blowing directly on inmate work stations. Two fans blew directly on
plaintiff s work position at the DESMA 2. Also the Shoe Factory has five large
o'swamp
coolers" generally utilized in the summer months.
H.
Amarillo had a low temperature of 48 degrees and a high temperature of
degrees and received .08 inches of rain on April 16,2009.
71
April 16,2009 at approximately 10:15 a.m., plaintiff caught his right middle
fingei between the shoe plate and base plate of the DESMA 2 machine, breaking
the tip of his fin ger and requiring four stitches.
On
J.
K.
Mr. McGaha of Shoe Factory Maintenance and an inmate inspected the DESMA 2
machine shortly after the accident and found it was working properly with no
malfunctions.
On June 1I,2009, plaintiff received a thirty-day work restriction for no repetitive
use of hands and sedentary work only.
L.
The medical work restrictions that would prohibit an inmate from working on a
DESMA machine are: (1) no repetitive use of hands and/or (2) no work around
machines with moving parts. Plaintiff did not have either of these restrictions
during his assignment at the Shoe Factory prior to the accident of April 16,2009.
M.
Each DESMA has an emergency stop button located on the control panel. Each
DESMA position is operated by two air valve levers. The right lever opens and
closes the foot mold and the left lever raises and lowers the foot form. These
levers are positioned away from the moving parts and are located in a recessed
area below the press area. These levers can only be hand activated; the recessed
levers cannot be activated using a hip, knee, or leg. Bumping a lever or rubbing
against a lever will not activate the lever.
N.
Every Friday, the DESMA machines are checked to ensure proper operation and
any necessary maintenance is performed.
DEFENDANT' MOTION FOR SUMMARY JUDGMENT
By his motion for summary judgment, defendant DEMERSON presents the following
evidence in his Appendix, with accompanying business records affidavits as needed:
D-l:
TDCJ HSM-I8 forms for plaintiff;
1.
Exhibit
2.
Exhibit D-2: TDCJ Grievance Investigation Records for plaintiff;
J.
Exhibit D-3: TDCJ Incident Report Records for the April 16, 2009 incident;
4.
Exhibit D-4: Affidavit of Stuart Williams; and
5.
Exhibit D-5: Affidavit of defendat Demerson.
Defendant argues he is entitled to Eleventh Amendment immunity as to plaintifls claims
against him in his
official capacity. Defendant further contends plaintiff cannot show deliberate
indifference by defendant DEMERSON and, in any event, defendant has adduced evidence
showing his actions were reasonable. Defendant concludes he is entitled to qualified immunity
as
to plaintiff s claims against him in his individual capacity.
By his February 25,2011 response, plaintiff presents summary judgment evidence in his
Appendix as follows:
1.
2.
3.
4.
5.
6.
7.
Exhibit A-1: Affidavit of Robert Cooks;
Exhibit A-2: Affidavit of Curtis Felts;
Exhibit A-3: Aff,rdavit of Fred Abbott;
Exhibit B-1: Incident Report of Accident on April 16,2009;
Exhibit B-2: Classification and Disciplinary Records;
Exhibit B-3: Medical Records; and
Exhibit B-4: TDCJ Policies.
Plaintiff contends he has shown defendant is not entitled to qualified immunity and has
raised a genuine issue of material fact which overcomes defendant's motion for summary
judgment.
THE STANDARD OF SUMMARY JUDGMENT REVIEW
Summary judgment may be granted where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Federal Rule of Civil Procedure 56(c). Consequently, after adequate time for discovery
and upon motion, summary judgment should be entered against aparty who fails to make a
showing sufficient to establish the existence of an element essential to that party's case and on
which that party bears the burden of proof. Celotex v. Catrett, 477 U.5.317,322-23, 106 S.Ct.
2548, 2552, 9t L.Ed.2d 265 (1986).
Because the consequences of summary judgment are so severe, the court must be careful
to avoid premature termination of legitimate lawsuits merely because of unskilled presentations.
Murrell v. Bennett,615 F.2d 306 (5th Cir. 1980). In determining a movant's request for summary
judgment, all reasonable inferences must be made in favor of the party opposing the motion.
Phillip's Oil Co. v. OKC Corp.,812F.2d265,272 (5th Cir.), cert. denied,484 U.S. 851, 108
S.Ct. 152, 98 L.Ed.2d 107 (1987). Only disputes of facts that could affect the outcome of the suit
at
trial will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477
u .s. 242, 248, 106 S.Ct. 2505, 25 r0,
g
r L.Ed2d 202 (19g6).
A complete failure of proof concerning an essential element of the nonmoving party's
case is fatal and entitles the moving party to judgment as a matter of
law. Celotex v. Catrett, 477
U.S. at 322-23,106 S.Ct. at2552. The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. Upon such a showing, the burden of production
shifts to the nonmovant to delineate specific facts which demonstrate the presence of a genuine
issue of material
fact. Id.; Judwin Properties, Inc. v. U.S. Fire Ins. Co.,973 F .2d 432, 435 (5th
Cir.1992). A motion for judgment
as a matter
of law is properly granted when the facts and
inferences point so strongly in favor of the movant that a rational
jury could not arrive at a
contrary verdict. If there is substantial evidence, that is, evidence of such quality and weight that
reasonable and fair-minded jurors might reach a different conclusion, then the motion for
judgment as a matter of law should be denied. Waymire v. Harris County, Texas,86 F.3d 424,
42t (sthCir.
1996),
THE STANDARD OF SUMMARY JUDGMENT REVIEW
UPON A PLEA OF QUALIFIED IMMUNITY
Since qualified immunity depends on whether the defendant violated a clearly established
constitutional right, a preliminary inquiry must be made whether the plaintiff has asserted a
violationof anyconstitutionalright atall. Siegertv, Gi\\ey,500U.S.226,231, 111S.Ct. 1789,
1793,lI4L.Ed.2d277 (199I). Analysis
at this stage is performed under the "currently
applicable constitutional standards." Rankinv. Klevenhagen,5F.3d 103, 106 (5th Cir. 1993).
The second prong of the qualified immunity test is whether the constitutional right
alleged to have been violated was clearly established at the time of the incident; and,
whether the conduct of the defendant was objectively unreasonable
if
so,
in light of contemporaneous
clearly-established law. Hare v. City of Corinth,l35 F.3d 320,328 (1998). Although analysis
under the first prong requires the court to consider currently applicable constitutional standards,
analysis under the second prong requires a court to measure the objective reasonableness of an
offrcial's conduct with reference to the law as it existed at the time of the conduct in question.
(citing Rankinv. Klevenhagen,5F.3d 103, 108 (5th Cir. 1993).
In deciding which of the two prongs to address first, the court may utilize its sound
discretion in light of the circumstances in the particular case at hand. Pearson v. Callahan,
u.s._,
129 S.Ct. 808,
r72L.8d.2d 565 (2009).
-
1d.
THE LAW AND ANALYSIS
ELEVENTH AMENDMENT IMMUNITY
Plaintiff argues in the supporting brief to his summary judgment response, that he has
sued
plaintiff solely in his individual capacity. Review of the'oRelief' section of his amended
complaint, to which plaintiff refers, fails to reveal any language limiting his claim against
DEMERSON to defendant's individual capacity.
In any event, suit for monetary relief against a defendant in his official capacity is barred
by the Eleventh Amendment. The Eleventh Amendment restricts federal court jurisdiction only
in those cases in which the state is the real parfy in interest. Hander v. San Jacinto Junior
College,519 F.2d 273,278 (5th Cir. 1975). A suit against an offrcial in his official capacity is
actually a suit against the state. Hafer v. Melo,502 U.S.
21,ll2
S.Ct. 358, 361-62,116L.Ed.2d
301 (1991); Sanders v. English,950 F.2d 1152,1158 (5th Cir. 1992). Nothing about plaintiff
requested relief leads the Court to conclude
plaintiff
s
s
claim falls within the Ex parte Young
exception for injunctive relief. Consequently, plaintiffs action against defendant DEMERSON
in his official capacity for monetary relief is foreclosed by the Eleventh Amendment.
"Because [Eleventh Amendment] sovereign immunity deprives the court ofjurisdiction,
the claims barred by sovereign immunity can be dismissed only under Rule 12(b)(l) and not with
prejudice." Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (5th Cir.1996).
QUALIFIED IMMUNITY
One of the basic human needs which prisons are required to provide prisoners is
ooreasonable
safety." Hellingv. McKinney,509 U.S.25,33,113 S.Ct. 2480-81,I25L.8.2d22
(1993) (quoting Deshaneyv. Winnebago County Dept. of Social Services,489 U.S. 189,200,I09
s.ct. 998, 1005, 103 L.8.2d.249 (1989).
In gauging the conduct of state officials, the Court must use minimum constitutional
standards as the measurs, not the standards applicable to private industry or the recommendations
or safety codes of private organizations. Bell v. Woffish,441 U.S. 520,543 n.27,99 S.Ct. 1g61,
1876 n.27, 60 L.Ed.2d 447 (1979), Standards suggested by experts are merely advisory. Bell, at
543
n.27,99 S.Ct. at 1876 n.27.
To state a constitutional violation regarding work conditions, plaintiff must show the
work exposed him to a serious health or safety risk to which prison officials were deliberctely
indifferent. Jaclcson v. Cain,864 F.2d 1235, T246-47
(sth
Cir. 1989). "Deliberate indifference is
an extremely high standard to meet." Domino v. Texas Dep't of Criminal Justice,Z3g F.3d,752,
756 6rh Cir. 2001).
The appropriate definition of "deliberate indifference" under the Eighth Amendment is
"subjective recklessness as used in the criminal law." Farmer v. Brennan, 5I1 U.S. 825,837,
114 S.Ct. 1970, 1980, 128 L.Ed.2d 8l
I (lgg0;
Reeves
v. Collins,2T F.3d.174 (5thCir.1994).
In this regard the Supreme Court has cautioned:
[.A] p11sgn gfficial cannot be found liable under the Eighth Amendment . . . unless
the official know-s o!1nd 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.
Farmer v. Brennan, 511 U.S. qt 837-38, 114 S.Ct. at 1979. It is only under exceptional
circumstances that a- prison offigial s knowledge of a substantial risli of harm muy be infened by
the obviousness of the substantial risk. Id.
Absent a showing of deliberate indifference, the claim is necessarily one of negligence
and no constitutional liability accrues. See, e.g., Strhan v. Scott,6l Fed.Appx. 919 (5M iir.
?99i)(!|1tate not provided protective gear for exposure to "PVC"); Jact
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