Chambers v. A-Avalon Corrections Services, Inc. & Southern Corrections et al

Filing 72

Memorandum Opinion and Order... The court ORDERS that defendants' motion for summary judgment be, and is hereby, granted in part as to plaintiff's claims against the corporate defendants. The court further ORDERS that by November 10, 201 5, plaintiff file an amended complaint alleging with particularity all of his claims against defendant Serrano. The court further ORDERS that by 4:00p.m. on November 10, 2015, defendants file, with plaintiff's cooperation, a document accompanied by an appendix including copies of records reflecting the nature and severity of plaintiff's medical needs. (Ordered by Judge John McBryde on 10/19/2015) (wxc)

IN THE UNITED STATES DISTRICT COURT
F''.
NORTHERN DISTRICT OF TEXA
~-FORT WORTH DIVISION
OCT l
JAMES K. CHAMBERS,
Plaintiff,

§
§
§

s 20i5

CLERK, t;.S. DISTRICT COLIU
By
Deputy

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vs.

§
§

A-AVALON CORRECTIONS SERVICES,
INC., ET AL.,

§
§
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Defendants.

NO. 4:15-CV-387-A

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendants, Avalon
Corrections Services, Inc., which says that it was misnamed "AAvalon Corrections Services, Inc.,"

("Avalon"), Southern

Corrections, Inc., (collectively, the "corporate defendants"), and
L. Serrano, for summary judgment. The court, having considered
the motion, the response of plaintiff, James K. Chambers, the
record, the summary judgment evidence, and applicable
authorities, finds that the motion should be granted as to the
claims asserted against the corporate defendants, and denied as
to the claims against defendant Serrano. The court further finds
that plaintiff should be required to file an amended complaint to
set forth in one document all of his claims against defendant
Serrano and that all records related to plaintiff's claims
against defendant Serrano should be provided.

I.

Background
On May 21, 2015, plaintiff filed his original complaint in
this action complaining of events that occurred on May 18, 2015.
Plaintiff alleged that he went to the orthopedic and sports
medicine clinic and was instructed by a "medical specialistdoctor" to go to the hospital, but that the instruction was
overridden by defendant Serrano, who instructed that plaintiff
not be taken to the hospital; plaintiff was left standing in the
heat for five and one-half hours; and that plaintiff was
eventually rushed to the emergency room where his blood pressure
was found to be 192/183 and his pants had to be cut off of him
due to swelling. In addition, plaintiff urged that defendant
Serrano had attempted to provoke him and get him in trouble with
the probation office. By filings made June 11 and June 24, 2015,
Docs.

1

13 & 18, plaintiff made further allegations urging that

defendant Serrano retaliated against him by causing his probation
to be revoked.
The complaint was verified by plaintiff under penalty of
perjury. As part of the complaint, plaintiff represented that he
had exhausted both steps of the grievance procedure available at
the institution.

1

The "Doc." reference is to the number given the document on the court's docket in this action.
2

II.
Grounds of the Motion
Defendants urge four grounds in support of their motion:
plaintiff did not exhaust his administrative remedies;
did not have an unconstitutional policy;

(1)

(2) Avalon

(3) Serrano did not

deprive plaintiff of medical treatment; and (4) Serrano did not
retaliate against plaintiff.
III.
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.

Fed. R. Civ.

P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986) .

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

"since a complete failure of proof

concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

3

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. Civ. P. 56(c)

asserting that a fact .
the assertion by
the record

("A party

is genuinely disputed must support
citing to particular parts of materials in

.").

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 597 (1986).

In Mississippi Prot. & Advocacy

Sys. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.

929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 2

Celotex Corp., 477 U.S. at 323.

If the record taken as a

whole could not lead a rational trier of fact to find for the

2

In Boeing Co. v. Shipman, 411 F.2d 365,374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
4

non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.
IV.

Analysis
A.

Exhaustion of Remedies
The first ground of defendants' motion urges that plaintiff

failed to exhaust his administrative remedies in that he failed
to proceed past step 1 of the grievance procedure. The court
notes, however, that plaintiff attached to his original complaint
copies of documents that purport to reflect step 2 grievances.
And, plaintiff says in his summary judgment response that he
exhausted his grievance remedies to the extent possible before
his transfer to another facility. Defendants have failed to
establish that they are entitled to judgment as a matter of law
on this ground.
B.

Liability of the Corporate Defendants
The second ground of the motion urges that the corporate

defendants did not have an unconstitutional policy that harmed
plaintiff. As they note, a defendant cannot be held liable under
28 U.S.C.

§

1983 on a theory of respondeat superior or vicarious

liaility. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694
(1978); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 601 (5th

5

Cir. 1988). Instead, liability may be imposed under
"if the [defendant]

§

1983 only

itself subjects a person to a deprivation of

rights or causes a person to be subjected to such deprivation."
Connick v. Thompson, 563 U.S. 51, 131
(quoting Monell, 436
omitted) .

u.s.

at 692)

s. Ct. 1350, 1359 (2011)

(internal quotation marks

To establish liability under

§

1983 thus requires

plaintiff to "initially allege that an official policy or custom
was a cause in fact of the deprivation of rights inflicted."
Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167
(5th Cir. 1997)

(internal quotation marks and citation omitted).

Therefore, liability against the corporate defendants pursuant to
§ 1983 requires proof of a policymaker, an official policy, and a

violation of constitutional rights whose "moving force" is the
policy or custom.
578

Piotrowski v. City of Houston, 237 F.3d 567,

(5th Cir. 2001).
The Fifth Circuit has been explicit in its definition of an

"official policy" that can lead to liability on the part of a
governmental entity, giving the following explanation in an
opinion issued en bane in response to a motion for rehearing in
Bennett v. City of Slidell:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality's lawmaking officers or by an official
to whom the lawmakers have delegated policy-making
authority; or

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2. A persistent, widespread practice of city officials
or employees, which, although not authorized by
officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents municipal policy. Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Actions of officers or employees of a municipality do
not render the municipality liable under § 1983 unless
they execute official policy as above defined.
735 F.2d 861, 862

(5th Cir. 1984)

(per curiam). Other circuits

have applied case law regarding governmental entities to private
corporations. See Street v. Corrections Corp. of Am., 102 F.3d
810, 818

(6th Cir. 1996) (listing cases from other circuits to the

same effect) . There is no reason to believe that the same would
not apply here. Auster Oil & Gas, 835 F.2d at 601; Calloway v.
City of Austin, No. A-15-CV-00103-SS, 2015 WL 4323174, *6 n.2
(W.D. Tex. July 14, 2015).
Further,

"[t]he description of a policy or custom and its

relationship to the underlying constitutional violation,
moreover, cannot be conclusory; it must contain specific facts."
Spiller, 130 F.3d at 167.

Absent from the complaint, however,

are any specific facts pertaining to any policy or how the policy
was the "moving force" behind the plaintiff's alleged damages.
The general rule is that allegations of isolated incidents are
insufficient to establish a custom or policy.

7

Fraire v. city of

Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).

A plaintiff

typically must at least allege a pattern of similar violations.
Although plaintiff says that he will show an unconstitutional
policy and pattern, he makes no effort to do so in his summary
judgment response. Doc. 65. 3 Nor has he shown that there is any
evidence in the record to raise a genuine fact issue in this
regard. The corporate defendants are entitled to judgment.
C.

Claims Against Defendant Serrano
In their third and fourth grounds, defendants urge that

defendant Serrano did not deprive plaintiff of medical treatment
and did not retaliate against plaintiff.
For a prison official's deliberate indifference to serious
medical needs to rise to the level of a constitutional violation,
a prisoner must establish that the official knew of and
disregarded an excessive risk to the prisoner's health or safety.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). "[T]he 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." Id. An official's "failure to alleviate a
significant risk that he should have perceived but did not" does
not constitute an Eighth Amendment violation. Id. at 838. In this
case, based on the materials currently before the court, the

3

Plaintiffs summary judgment response begins at the third page of the document.
8

court cannot conclude that there is no genuine issue of material
fact with regard to plaintiff's deliberate indifference claim.
Plaintiff has alleged under oath that he was directed to go to
the hospital; that defendant Serrano intervened to prevent
plaintiff from going to the hospital; that plaintiff was
transported to the emergency room where he was found to have very
high blood pressure and swelling that required his pants to be
cut away. However, the court has not been provided medical
records or any other records that reflect the sequence of events
or nature of the injuries.
With regard to the claim of retaliation, although there may
be a dispute as to defendant Serrano's motive, it seems to the
court that the claim might be foreclosed by Heck v. Humphrey, 512
U.S. 477, 486-76

(1994), but that argument has not been made.

Thus, the court is not granting judgment as to the retaliation
claim as it has not been established as a matter of law that
defendant Serrano did not retaliate against plaintiff.

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v.
Order
The court ORDERS that defendants' motion for summary
judgment be, and is hereby, granted in part as to plaintiff's
claims against the corporate defendants; that plaintiff take
nothing on his claims against the corporate defendants; and that
such claims be, and are hereby, dismissed.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of plaintiff's claims against the corporate defendants.
The court further ORDERS that by November 10, 2015,
plaintiff file an amended complaint alleging with particularity
all of his claims against defendant Serrano, bearing in mind that
he must plead specific facts and not merely conclusory
allegations to support each of his claims. See Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009);
544, 555

Bell Atl. Corp. v. Twombly, 550 U.S.

(2007).

The court further ORDERS that by 4:00p.m. on November 10,
2015, defendants file, with plaintiff's cooperation, a document
accompanied by an appendix including copies of records reflecting
the nature and severity of plaintiff's medical needs, including,
but not limited to:

(1) all records of the Orthopedic & Sports

Medicine Center pertinent to plaintiff's care on May 18, 2015;
10

(2) all records of the corporate defendants pertinent to
plaintiff's claims in this action, e.g., requests for care made
by plaintiff and disposition of such requests by defendants; and
(3) all records of John Peter Smith or any other hospital that
provided care to plaintiff on or about May 18 or 19, 2015, which
document shall contain a statement that it is being filed
pursuant to this order, and an index listing each of the items
included in the appendix. Each of the items in the appendix shall
be preceded by a tab corresponding to the number given that item
in the index.
SIGNED October 19, 2015.

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