Rodriguez v. Wise County Jail et al
Filing
33
MEMORANDUM OPINION and ORDER: The court ORDERS that all claims and causes of action asserted in the above-captioned action against any person or entity designated as a defendant in any of the documents filed by plaintiff in this action, including Wise County, Texas, be, and are hereby, dismissed pursuant to the authority of 28 U.S.C. § 1915A. (Ordered by Judge John McBryde on 11/22/2016) (tln)
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IN THE UNITED STATES DISTRICI
NORTHERN DISTRICT OF
FORT WORTH DIVISION
ISRAEL TREY RODRIGUEZ
I
§
§
§
§
§
WISE COUNTY JAIL, SHERIFF
OFFICE ET AL.
I
llr~IIIV
§
§
vs.
I
Defendants.
NO. 4:16-CV-662-A
§
MEMORANDUM OPINION
and
ORDER
After having thoroughly considered the record in the abovecaptioned action, the testimonial statements given by plaintiff,
Israel Trey Rodriguez,
duri~g
a telephone/Spears 1 hearing,
documents received by the court for consideration as part of the
Spears hearing process, and pertinent legal authorities, the
court has concluded that all claims asserted by plaintiff in the
above-captioned action should be dismissed pursuant to the
authority of 28 U.S.C.
§
1915A.
I.
Statutory Authority for the Dismissal
As plaintiff is a prisoner seeking redress from government
officials, his complaint is subject to preliminary screening
under 28 U.S.C.
1
§
1915A.
See Martin v. Scott, 156 F.3d 578, 579-
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
I
I
Cl ~ Rh', U.S. Dl,:O, 1 RICJ Cot 'lrJ
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Plaintiff,
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80 (5th Cir. 1998).
Section 1915A(b) (1) mandates sua sponte
dismissal if the court finds that the complaint either is
frivolous or fails to state a claim upon which relief may be
granted.
Having upon preliminary screening considered plaintiff's
pleaded claims against defendants, the court concludes that they
should be dismissed under the authority of 28 U.S.C.
§
1915A both
because the allegations he made against defendants were
frivolously made and because of plaintiff's failure to state a
claim upon which relief may be granted against Wise County,
Texas, and certain of the individual defendants.
II.
Plaintiff's Pleaded Claims
Plaintiff initiated this action on July 11, 2016, by the
filing of a form Prisoner's Civil Rights Complaint. 2
He named as
defendants: Officer Lieutenant David Armstrong ("Armstrong");
Wise County Jailers, Guards; Officer Sergeant Bruener [sic]
("Brunner") 3 ; Officer Sergeant Thomas ("Thomas"); Officer Shepps
("Shepps"); Administrator Rick Denney ("Denney"); Officer Fabela
("Fabela"); Officer Vallez ("Vallez"); Sergeant Taylor
2
The envelope the item came in showed that plaintiff was an inmate of a unit of the Texas
Department of Criminal Justice.
3
Records of Wise County jail indicate that the correct spelling of this defendant's name is
"Brunner."
2
("Taylor"); Sheriff David Walker ("Walker"); Captain Gillan
("Gillan"); Medical Nurse, Medical Officer.
His claims relate to his having been sprayed with a chemical
substance while in the Wise County, Texas, jail from May 19-21,
2015.
He claimed he was sprayed multiple times with multiple
chemicals, and contended that all but one of the persons he sued
participated in spraying him, or were in some manner responsible
for his having been sprayed.
Defendant Medical Nurse, Medical
Officer allegedly refused to help him when he requested medical
attention while the chemical agents ate away his skin.
According
to his complaint, the chemical agent damaged his face.
He
alleged in a statement he submitted with his complaint that once
he was released from jail on May 21, 2015, he reported to his
parole station in Mineral Wells, Texas, and that while he was
there a parole officer took pictures of his face and the open
wounds caused by the chemical agent, and documented the incident
that caused the damage to his face.
He said that he was being
recorded as he was being questioned.
He added that his parole
officer, Stuarte, visited him before he was released from the
Wise County Jail on May 21, 2015, and had witnessed the incident
while he was incarcerated in the jail.
Plaintiff asserted claims under 42 U.S.C.
§
1983 for
excessive force to recover $1.2 million in damages he suffered as
3
a result of having been sprayed.
He attached to his complaint a
photograph of his face showing red spots on his face that he
claims the chemical agents caused.
On July 27, 2016, plaintiff filed another item headed
"Complaint," apparently intending the document to be an amended
complaint.
The July 27 filing contained basically the same
allegations plaintiff made in his July 11 filing.
He listed what
he characterized as his claims A, B, C, D, E, F, G, H, I, and J,
the allegation of each of which relates to his contention that he
was injured when sprayed with chemicals during his May 19-21,
2015 jail stay.
He added in this pleading that he has been
diagnosed with P.T.S.D., claimed that he is currently taking
medication to treat the P.T.S.D., and said that the incident that
happened on May 19-21, 2015, caused the P.T.S.D.
On August 12, 2016, plaintiff filed a document by which he
asked permission to add supplemental claims to his amended
complaint.
As part of that document he submitted what appear to
be his supplemental claims K, L, and M, which do not seem to add
anything to the claims he described in his earlier filings.
On August 24, 2016, plaintiff filed a document disclosing he
had learned from an order of the court that the court planned to
have a Spears hearing.
He expressed the concern that the court
might not have received the photograph that he included with his
4
July 11 filing that, according to him, showed open wounds on his
face.
On September 6, 2016, plaintiff filed a document requesting
permission to add a claim N to his amended complaint pursuant to
42 U.S.C.
§
1983.
The wording of his proposed claim N was
included in the filing.
It did not add anything new.
On September 19, 2016, plaintiff filed two documents.
One
asked permission to add claims N, 0, P, Q, and R to his amended
complaint.
So far as the court can tell, what he designated as
claims N, 0, P, Q, and R do not add anything to his previous
complaints, except to say that he has flashbacks of the anguish
inflicted on him by the Wise County jail in May 2015 and that he
has anxiety problems for which he has to take medication to
control.
By the time he prepared the September 19 filings, he
had received copies of the records the court had requested
agencies to provide the court for use during the Spears hearing,
and he commented in the September 19 document on the contents of
some of those records.
The second September 19 document appeared to be criticisms
of records the Office of the Attorney General of Texas had
provided for the court's information in response to a request
made in the Spears hearing order.
Plaintiff said that he is
"currently taking Dx of P.T.S.D. because of the Anxiety that was
5
caused from Wise County Jail Sheriff office violating [his] 8th
Amendment by causing [him] physical injuries and open wounds as
Documented."
Doc. 25 at 2d unnumbered page. 4
Plaintiff's most-recent filing, which was received by the
clerk on November 9, 2016, was a request by plaintiff to file a
Second Supplemental Claim to the First Amended Complaint for the
purpose of asserting claims against Wise County.
Wise County is an indispensable party.
He alleged that
This filing came after
the October 24, 2016 telephone Spears hearing when, near the end
of his testimony, plaintiff informed the court that he intended
to sue the individuals he named in his complaint in their
official capacities rather than their individual capacities,
Doc. 31 at 47-48; and, he explained that his intent was to sue
Wise County.
Id. at 48-49.
The court is considering the filings mentioned above,
collectively, as constituting plaintiff's complaint.
4
The "Doc. _ " references are to the numbers assigned to the referenced items on the docket in
this Case No.4: 16-CV-662-A.
6
III.
The Spears Hearing and Preparation for the Hearing
A.
Documents and Information Provided by Wise County and State
Officials in Advance of the Spears Hearing 5
1.
Documents Provided by Wise County
On July 28, 2016, the court issued an order informing
plaintiff of the court's conclusion that it could better evaluate
whether all or some of his claims should be permitted to go
forward if the court were to conduct a Spears hearing; and, in
the same order, the court requested Wise County to provide the
court in advance of the hearing certain information and
documentation from which the court might benefit in conducting
the hearing.
Doc. 11.
Wise County's response, which was received on August 10,
2016, listed three times when plaintiff was an inmate in the Wise
County jail, and provided copies of records pertaining to
plaintiff's May 19-21, 2015 stay in the jail.
5
"[T]he court may require the defendants in prisoner-rights cases to construct an administrative
record to assist the court in determining whether the complaint is frivolous." Norton v. Dimazana, 122
F.3d 286, 292 (5th Cir. 1997); see also Wilson v. Barrientos, 926 F.2d 480, 483 (5th Cir. 1991)(on
rehearing)( approving an arrangement between the district court and the attorney general's office that the
court would be furnished with "such medical and other prison records as were requested, for use by the
complainant[s] and review by the court in its 28 U.S.C. § 1915(d) determination about the viability ofthe
complaint.").
7
The records contained the following description of the
circumstances that led up to plaintiff's arrest:
01. On 05/19/2015, Sgt. Hughes was dispatched to
637 Hunter Trail in reference to a medical call. Upon
arrival, Hughes met with owner of the residence
identified as James Dakes.
02. James advised the following information; his
step-son, identified as Israel Trey Rodriguez (W/M, DOB
09/13/1993) in currently under the influence of
Methamphetamines and has been attempting to enter into
his neighbor's homes on Hunter Trail. James also
advised he wishes to have Trey issued a criminal
trespass warning for his property.
03. Hughes met with Trey and he admitted to his
use of Methamphetamines (ICE). Hughes used a flash
light which emits a light at approximately 300 lumens
and observed Treys pupils did not close and trey did
not appear to have any discomfort from the exposure to
the light. Trey demanded to speak with the Texas
Attorney General, Officer Snodgrass and Investigator
Lanier in reference to the drug issues in Wise County.
04. Hughes placed Trey under arrest for Public
Intoxication and Disorderly Conduct by placing him into
double locked handcuffs and seating him into the right
rear seat of unit # 345. Hughes transported _Trey to the
Wise County Jail without incident. Hughes also issued
Trey a criminal trespass warning and left a copy with
his personal property in the jail. Hughes has given the
original trespass warning to Wise County Central
Dispatch. Hughes cleared this call for service with an
incident report.
Doc. 13 at ECF 23. 6
The handwritten report of plaintiff's arrest
showed that the time of arrest was 11:55 on May 19, 2015, and
6
ECF _ refers to the page number references in the ECF header at the tops of the pages in the
specified document.
8
added that "Trey admitted to have used meth. as well as
attempting to enter residences on Hunter Trail without
permission".
Id. at ECF 24.
Another Wise County jail record disclosed that "INMATE VERY
BELIGERANT [sic] AND COMBATIVE AMONG [sic] ARRIVAL INTO THE
FACILITY."
Id. at ECF 25.
Because of plaintiff's conduct,
shortly after he was brought to the jail, Sergeant Brunner, in
the company of Officer Davis, sprayed plaintiff through his
cell's food tray slot with an OC Chemical Agent in an attempt to
stop his yelling and banging on the door/window of his cell
notwithstanding warnings he had received that he would be pepper
sprayed if he continued his disruptive conduct.
The report by
Brunner of these events in the jail records disclosed that:
On 05-20-2015~ at approximately 0050 hours, inmate
Rodriguez, Israel was brought to the jail by Wise
County Patrol Sergeant Hughes. Due to inmate
Rodriguez's mental state, he was changed out and placed
in Detox 2 by Sergeant Brunner and Officers Davis and
Hacker.
At approximately 0109 hours inmate Rodriguez began
yelling and banging on Detox 2's cell window and door.
Sergeant Brunner went to Detox 2 and gave inmate
Rodriguez a verbal warning to stop yelling and banging
on the door/window, or he would be pepper sprayed.
Shortly, after Sergeant Brunner departed the area,
inmate Rodriguez began yelling again and hit the cell's
door very hard. Sergeant Brunner went to control and
retrieved oc Chemical Agent at that time.
A short time later, Sergeant Brunner was met by
Officer Davis at booking. Officer Davis took possession
9
of the OC Chemical Agent and both he and Sergeant
Brunner proceeded to Detox 2. The cell's food tray slot
was opened and Officer Davis applied OC Chemical Agent
on inmate Rodriguez at approximately 0117 hours.
Afterwards, the food tray slot was closed and both
officers departed the area.
Later, Sergeant Brunner and Officers Davis and
Hacker escorted inmate Rodriguez to the shower in
booking, where he was allowed to shower. He was
provided ice water, clean clothing, a mat and blanket.
After he was finished showering, inmate Rodriguez
was placed in Detox 1 and is being compliant with all
officer's directives, at this time. EOR
Id. at ECF 44.
That description of events was confirmed by a
report of Officer Davis.
Id. at ECF 45.
A medical screening record based on an evaluation made
shortly after plaintiff was booked into the jail noted that the
screener suspected mental illness/mental retardation and observed
plaintiff to be under the influence of something intoxicating,
and said that he "ADMITTED TO BE ON METH."
Id. at ECF 12.
A
medical and mental screening form contained the observations that
plaintiff said he was on meth, that his speech was rapid, and
that he was experiencing withdrawals.
Id. at ECF 13.
Another
form shows that shortly after plaintiff was admitted to the jail
he had an open wound.
Id. at ECF 11.
At 4:04 a.m. on May 20, 2015, a Medical Sick Call Request
was made out for plaintiff, but indicates that he refused to sign
it.
Id. at ECF 17.
10
At 5:55 a.m. on May 20, 2015, Sergeant Thomas placed
plaintiff on Special Watch, which meant that plaintiff was
checked every thirty minutes because of mental concerns.
ECF 18.
Id. at
That same form indicated that, at the direction of
Sergeant Brunner, plaintiff was to be escorted by two officers at
all times.
Id.
A memo by Sergeant Thomas said that at 6:21
a.m., due to plaintiff's behavior, Thomas placed him on a twenty
minute mental watch.
Id. at ECF 26.
The jail records disclose that later in the morning on
May 20, 2015, plaintiff was again subjected to pepper spray.
at ECF 19 & 27.
A detailed description of that incident is
contained in a report prepared by Sergeant Thomas:
On 05/20/2015, at approximately 0955 hrs., Sgt.
Thomas sprayed inmate Rodriguez with a 3 sec burst of
O.C. spray. Inmate Rodriguez had been warned several
times during the morning that if he continued to cause
a disruption of the facility programs or continued to
hit on the cell door and walls that he would be sprayed
with O.C. gas. Inmate Rodriguez was behaving as if he
were intoxicated on some type of drug causing him to
behave irrationally and disruptive, he was sprayed with
O.C spray during the 3rd shift because of behavioral
issues and had calmed down until 1st shift came on duty
at which time he started yelling out and hitting the
cell door. While Sgt. Thomas was deploying the O.C.
spray inmate Rodriguez charged Sgt. Thomas grabbing at
his arms and legs at which time Sgt. Thomas delivered a
leg strike to inmate Rodriguez upper right thigh,
causing Rodriguez to retreat. Sgt. Thomas, along with
Officer Fabela and Officer Raper, exited the cell and
secured the cell door. Inmate Rodriguez calmed down
after approximately 5 minutes and complied with being
hand cuffed and taken to the booking shower to be
11
Id.
decontaminated. After allowing the inmate to shower and
change his jail clothing he was placed in cell detox 2
without further incident.
Id. at ECF 27.
Officer Fabela made a report of the same
incident, which is consistent with Sergeant Thomas's, reading as
follows:
On 05/20/2015, at approximately 1000 hrs.,
Rodriguez, Israel' #85118 was causing a disturbance in
the booking area in cell holding 4 by screaming and
banging on the door. Inmate was given numerous orders
to stop causing a disturbance and to settle down.
Inmate refused to follow directives and continued to
cause a disturbance. At that time Sgt. Thomas, along
with Officers Raper and Fabela, accessed holding 4 and
Sgt. Thomas then proceed to give the inmate a 3 sec.
burst of o.c. spray. Inmate then dropped to the ground
and started grabbing at Sgt. Thomas legs trying to take
him to the ground. Sgt. Thomas then followed up with
leg strikes to inmate's lower body until inmate began
to retreat and at that time officers were able to exit
the cell safely.
Id. at ECF 28.
A report by Officer Raper of the 10:00 a.m.
incident is consistent with the reports made by Thomas and
Fabela.
Id. at ECF 29.
The jail records show that after having posted a bail bond,
plaintiff was released from custody shortly after Noon on May 21,
2015.
Id. at ECF 38-42.
2.
Documents Received from State Officials
After having received the document plaintiff filed July 27,
2016, in which he said that he had been diagnosed with P.T.S.D.
and was taking medicine to treat it, the court issued an order on
12
August 15, 2016, requesting the Texas Attorney General to provide
information for use in the Spears hearing concerning the records
of the Texas Department of Criminal Justice pertaining to any
treatment for, or diagnosis of, any condition of plaintiff that
could be related to the incident of which plaintiff complained in
his July 27, 2016 filing.
Doc. 16.
was made an exhibit to the order.
A copy of the July 27 filing
Id. at ECF 4.
On August 29,
2016, the Office of the Attorney General responded by filing a
document titled "Martinez Report."
Doc. 19.
It was accompanied
by a set of records that were authenticated to be records
pertaining to medical care of plaintiff while an inmate at
facilities of Texas Department of Criminal Justice during the
pertinent time period.
Id.
The Martinez Report gave the following explanation of the
medical records that were submitted with it:
Statement of the Facts
Offender Rodriguez claims that in May of 2015, he
was allegedly sprayed with chemical agents by officers
at the Wise County Jail. Offender Rodriguez claims
that, as a result, he suffered burns on his face, and
then in July 2016, he was diagnosed with posttraumatic stress disorder as a result of this alleged
incident.
Discussion
Offender Rodriguez has medical records dating back
to 2011. In 2015 and 2016, Plaintiff only had a
handful of medical visits, they consisted of the
13
following. Offender Rodriguez received an intake review
on June 21, 2016 when he entered the Gurney Unit. No
injuries, or post-traumatic stress disorders were
noted. On July 15, 2016, Offender Rodriguez received
care for an injured wrist and knee after getting into a
fight. On July 29, 2016, Offender Rodriguez received a
dental chain in review.
Offender Rodriguez's outpatient mental health
evaluation is the first mention in his records of
possible post-traumatic stress disorder. On July 11,
2016, Offender Rodriguez received a mental health
evaluation where he stated that he was suffering from
post-traumatic stress disorder after an alleged
incident where he states that he was sprayed with
chemical agents. The medical unit did not find obvious
signs of post- traumatic stress, however, recommended a
trial of Zoloft. On August 2, 2016, at his mental
health evaluation, it was noted that the possibility of
post-traumatic stress disorder was ruled out by the
medical professionals as one of the possible causes for
his problems.
Offender Rodriguez filed one grievance with TDCJ.
This grievance was filed on July 13, 2016, and regarded
his request for copies of his alleged injury regarding
this matter.
There are no additional medical or grievance
records for Offender Rodriguez. There are no records
that indicate that Offender Rodri[g]uez was ever[]
sprayed with a chemical agent. There are no records
indicating that Offender Rodriguez had any facial
injuries within the last two years. There are also no
records from a medical department confirming that
Offender Rodriguez suffers from post-traumatic stress
disorder.
Conclusion
The Office of the Attorney General has not found
any records that substantiate Plaintiff's claims.
14
Id. at ECF 2-3 (footnotes omitted).
A review of the records
supplied with the Martinez Report confirms the accuracy of the
above-quoted statements made in the Report.
On September 1, 2016, the Texas Department of Criminal
Justice submitted a group of medical records that appear to be
identical to those the Office of the Attorney General provided
with the Martinez Report.
B.
Doc. 21.
Plaintiff's Spears Hearing Testimony
On October 19, 2016, the court issued an order that
plaintiff be present at a telephone conference/hearing on
October 24, 2016, in the nature of a Spears hearing.
Such a hearing was conducted on that date.
Doc. 27.
Docs. 28 & 31.
Plaintiff was placed under oath at the commencement of the
hearing, and acknowledged that he knew that he was under oath and
that if he answered any of the court's questions falsely, he
could be prosecuted for perjury or making a false statement under
oath.
Doc. 31 at 6-7.
The court started the questioning by attempting to determine
from plaintiff what caused him to be taken into custody on
May 19, 2015.
After relating what seemed to be rather bizarre
descriptions of what he was doing when he was taken into custody,
he finally said that he could not remember what caused him to be
taken into custody, saying "it's kind of confusing, you know what
15
I mean? It,s just a lot.
A lot was happening."
Id. at 13.
The
different explanations he gave before acknowledging his lack of
memory provided insight into plaintiff,s mental condition on
May 19-20, 2015.
See, id., at 8-13.
He admitted that he had been using methamphetamine before he
was taken into custody, id. at 10, but he did not remember how
long he had been using it, except to say that "[l]ike when I
started work, when I went to work at Jack in the Box," id. at 1314.
He did not remember how long he had worked that day, but
said he used methamphetamine throughout the time he was working.
Id. at 14.
Plaintiff was vague on the subjects of how much
methamphetamine he used before he was arrested, or how frequently
he used it.
Id. at 15.
Plaintiff denied that he was disruptive once he was put in a
jail cell, and said that he was just asking a question, "trying,
you know, to make a phone call where I could call somebody and
see how my family was doing."
Id. at 16-17.
He denied that he
received any warning about his conduct before he was sprayed,
though he acknowledged that they told him to quit asking
questions.
Id. at 17-18.
When asked if he could explain why the
jail records showed that he was yelling and banging on the cell
window and doors, he said that he did not know, and that he had
no reason to question whether what the record said actually
16
happened, explaining, ui mean, I remembered everything. I woke up
and I just remembered everything."
Id. at 18.
He said that he was sprayed with a chemical multiple times.
Id. at 18.
According to him, he was sprayed the first time by
Sergeant Brunner, and that at that time: uThey sprayed a whole
bottle -- you know those big fire extinguishers?
with the whole bottle."
Id. at 20-21.
They sprayed me
Brunner kept on
threatening him, saying that he was going to go ahead and spray
him again if he did not shut his mouth.
Id. at 22.
After he was sprayed, he was taken to the shower, but the
shower did not help because he kept burning.
Id. at 22.
in the shower awhile trying to get the gas off him.
24.
Id. at 23-
He washed his face off good, and showered all over.
24-25.
He was
Id. at
He was provided clean clothes to use when he completed
taking a shower.
Id. at 25.
When asked what happened next, he
repeated "[t]hey sprayed me multiple times."
Id. at 26.
His
memory was vague as to what happened after he showered and
changed clothes.
Id. at 26-29.
When asked how many times he had been in jail, he said that
he did not know, he did not keep track of them.
Id. at 29.
When
asked if he had been in jail in Wise County a lot of times, he
said u[y]es, Your Honor, since I was 17," and he went on to say
17
that he can't remember how many times and that "I stopped keeping
count after they stopped arresting me."
Id.
He said one of the times when he was sprayed, the shower was
off, and he was told to go to the sink to wash it off, and he
tried, but he could not wash it off.
Id.
After he repeatedly
said that he had been sprayed multiple times, the court asked him
to tell about each time he was sprayed.
He said that Thomas
sprayed him, and that Thomas kicked him because he was on the
ground.
Id. at 30.
According to plaintiff, Thomas sprayed him
when he was on the phone talking to his mother.
When Thomas
sprayed him, it might have been the third or fourth time.
31.
Id. at
The time Thomas sprayed him was the last time he was
sprayed.
When asked to tell who sprayed him any other time, he
said that Sergeant Brunner did.
Id.
Then he said that another
officer sprayed him when he was in booking, an incident that was
•
not in the report.
Id. at 33.
He added "[i]t was a Lieutenant
Armstrong, but I don't know that officer's name."
Id.
He was
then asked if he knew the name of anybody who sprayed him besides
Thomas and Brunner, and he said "[n]o, sir, but I can name the
whole staff, all the officers that were working."
Id.
Finally
he said that the only two he can say sprayed him were Brunner and
Thomas.
Id. at 34.
He could not remember whether he went to the
shower again after Thomas sprayed him, explaining "[i]t's hard to
18
remember stuff when they're spraying me with that chemical agent.
Like you close your eyes and you just fall to the ground."
Id.
He doesn't remember whether he took a shower and got a change of
clothing after Thomas sprayed him.
Id.
Plaintiff was questioned about the conduct of each of the
individuals he sued.
When asked about Armstrong, he said that:
"[h]e was on shift and he should have stopped them."
Id. at 35.
Shepps is the officer who booked him into the jail, and "[s]he
just laughed at me and said I deserved what I did."
Id. at 37.
The only thing Denney did was to be aware of what happened.
at 37-38.
Id.
Fabela participated with Thomas in spraying him; he
was with Thomas, but Thomas is the one who did the spraying.
at 38.
Id.
Also, Fabela participated with Thomas when they were
kicking him.
Id.
He then changed his testimony to say that
Fabela just happened to be present while Thomas was kicking him,
and he is pretty sure that it was not Fabela's idea for Thomas to
kick him.
Id. at 39.
Vallez did not do anything except to
threaten to spray him again when plaintiff asked him for medical
treatment.
Id. at 39-40.
He testified that Vallez, Fabela, Denney, Armstrong, and
Taylor did not do anything to harm him, but then he said that
they all participated, they were all working together.
40-41.
Id. at
He said that Walker did not do anything to harm him.
19
Id.
He named Gillan as a defendant because he was a superior officer,
not because he did anything harmful to him.
Id. at 41-42.
He
named Medical Nurse, Medical Officer because she neglected to
give him medical treatment.
Id. at 42.
He currently is in prison based on a conviction of evading
arrest in a vehicle.
Id. at 47.
The evading-arrest offense
occurred on July 22, 2015, two months after he was discharged
from the Wise County jail.
He is suing all the people he named in the lawsuit as
defendants in their official capacities.
Id. at 47-48.
intent ultimately is to sue Wise County.
Id. at 48.
His
When asked
if his "intent is to sue Wise County or to sue these people to
get money out of these people," he answered "[t]o sue Wise
County."
Id.
He finally made clear that he was trying to sue
Wise County during the following exchange:
THE COURT: Well, I'm trying to find out who
you intend to sue. You named a lot of people, but
I get the idea from what you just said, you sued
all them in their official capacity?
MR. RODRIGUEZ: No. I was trying to sue the
agency.
THE COURT: Which is Wise County?
MR. RODRIGUEZ: Yes, sir.
Id. at 49.
20
IV.
Analysis
A.
Plaintiff's Claims Do Not Survive Preliminary Screening
1.
Plaintiff's Claims Are Frivolous
a.
Pertinent Legal Principles
A claim is frivolous if it "lacks an arguable basis either
in law or in fact."
(1989).
Neitzke v. Williams, 490 U.S. 319, 325
The "term 'frivolous,' when applied to a complaint,
embraces not only the inarguable legal conclusion, but also the
fanciful factual allegation."
Id.
(emphasis added).
When evaluating the frivolousness issue, the court is to
bear in mind that the preliminary review provisions for possible
sua sponte dismissal are "designed largely to discourage the
filing of, and waste of judicial and private resources upon,
baseless lawsuits that paying litigants generally do not initiate
because of the costs of bringing suit and because of the threat
of sanctions for bringing vexatious suits
"
Id. at 327. 7
To that end, the statute "accords judges . . . the unusual power
to pierce the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
7
Section 1915A, mandating sua sponte dismissal for, inter alia, frivolousness or failure to state a
claim, had, in addition, the goal of helping to bring relief to a civil justice system overburdened by
frivolous prisoner lawsuits. See 141 Cong. Rec. S14408-01 (daily ed. Sept. 27, 1995)(Statement of Sen.
Dole), 1995 WL 568915 at 17-18; 141 Cong. Rec. S14408-01 (daily ed. Sept. 27, 1995)(Statement of
Sen. Hatch), 1995 WL 568915 at 33; see also Walp v. Scott, 115 F.3d 308, 309 (5th Cir. 1997).
21
baseless."
Id.
(emphasis added); see also Denton v. Hernandez,
504 u.s. 25, 32 (1992).
With respect to a district court's evaluation as to whether
facts alleged are "clearly baseless," the Supreme Court in
Denton, in response to a request that it define the "clearly
baseless" guidepost with more precision, said "we are confident
that the district courts, who are 'all too familiar' with
factually frivolous claims, are in the best position to determine
which cases fall into this category," and thus declined "the
invitation to reduce the 'clearly baseless' inquiry to a
monolithic standard."
Denton, 506 U.S. at 33 (citation omitted).
The Neitzke and Denton decisions both dealt with a version
of 28 U.S.C.
§
1915 that contained in its subsection (d) an
authorization for the district court to dismiss a claim filed in
forma pauperis "if satisfied that the action is frivolous."
Neitzke, 490 U.S. at 324i Denton, 504 U.S. at 27.
current version of
§
While the
1915 in its subsection (e) (2) (B) (i) still
mandates dismissal of an in forma pauperis complaint if it is
frivolous, the court's focus here is the part of the Prisoner
Litigation Reform Act codified as 28 U.S.C.
§
1915A, which
directs the court to review "as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee
22
of a governmental entity" (28 U.S.C.
§
1915A(a)), and, on review,
to "dismiss the complaint, or any portion of the complaint, if
the complaint is frivolous," 28 U.S.C.
1915A(b).
§
The court has no reason to think that the Supreme Court or
the Fifth Circuit would give to the "frivolous" dismissal
provision of
1915A a narrower meaning than that given to the
§
similar dismissal provision in
§
1915.
In its unpublished
opinion in Widner v. Aguilar, 398 F. App'x 976, 978-79 (5th Cir.
2010), the Fifth Circuit equated the two.
history of
§
The legislative
1915A suggests that the courts could well have even
broader discretion in the frivolousness evaluations in litigation
filed by prisoners against the government or prison employees or
officials.
Emphasizing the important role that a Spears hearing can
.
have in the frivolousness inquiry, the Fifth Circuit gave the
following explanation in Wilson v. Barrientos:
We have recognized in our district courts an
especially broad discretion in making the determination
of whether an IFP proceeding is frivolous.
Frivolousness in this context is not coterminous with
failure to state a claim, but it is to be equated with
the raising of a wholly insubstantial federal claim.
Within the context of the Spears hearing the trial
judge has the discretion to decide the best way to
elicit the complainant's articulation of his grievance
23
and the basis for making any credibility assessment
needed.
926 F.2d 480, 482-83 (5th Cir. 1991) (citations and internal
quotation marks omitted) .
"The barrier to frivolous suits embraces not only the
inarguable legal conclusions, but also the fanciful factual
allegation
II
Naranjo v. Thompson, 809 F.3d 793, 799 (5th
Cir. 2015) (internal quotations marks omitted) (emphasis added).
In Naranjo, the Fifth Circuit reminded that "[i]f the plaintiff
is a prisoner, the district court must formally review the
complaint immediately after it is filed and dismiss any claims it
deems frivolous."
Id.
(citing 28 U.S.C.
§
1915A(b) (1)).
In the
instant action, this court conducted such a review as soon as
practicable after the court received the official records.
b.
The Spears Hearing Information Shows that
Plaintiff's Claims are Frivolous
The information acquired through the Spears hearing process
has caused the court to conclude that the allegations made by
plaintiff in his various filings are frivolous and fanciful.
They appear to be but faulty re-creations of events experienced
in May 2015 by a methamphetamine-addled mind.
records inevitably lead to that conclusion.
The official
Plaintiff's Spears
hearing testimony establishes just how uncertain and confused he
is concerning the May 19-20, 2015 events.
24
Unless there was some
sort of grand conspiracy against plaintiff by the Wise County
personnel who arrested plaintiff, brought him to the jail, and
had contact with him while he was in the jail, the records from
Wise County prove with certainty that the spraying of plaintiff
with pepper spray on two occasions was justified, and
necessitated, by his conduct, that he was afforded, and took
advantage of, an opportunity to clean himself and change clothes
after each of the two times he was exposed to the pepper spray,
and that the jail employees were appropriately concerned with
plaintiff's welfare while he was in jail on May 19 and 20.
The
court has no reason to think there was any such conspiracy, and
is impressed with the consistency of the entries in the Wise
County records in descriptions of relevant events.
In contrast,
plaintiff's versions during the Spears hearing are inconsistent,
erratic, and, for the most part, meaningless.
The records received by the court from the State authorities
add confirmation to the frivolous nature of plaintiff's claims.
They do not bear out, and are inconsistent with, plaintiff's
claims that he is having ongoing problems as a result of having
been exposed to pepper spray on May 20, 2015.
The frivolous and fanciful nature of plaintiff's factual
allegations provides a reason why all his claims should be
dismissed pursuant to the authority of
25
§
1915A(b).
The court
concludes that all of the claims are fanciful and clearly
baseless.
2.
Other Reasons Why Dismissal at This Time Is Appropriate
The screening process of
§
1915A(b) contemplates that:
On review, the court shall . . . dismiss the
complaint, . . . if the complaint-(1) is frivolous, malicious, or fails to state a
claim upon which relief may be grantedi or
(2) seeks monetary relief from a defendant who
is immune from such relief.
28 U.S.C.
§
1915A(b).
All of the individual defendants are eligible to assert the
qualified immunity defense.
Although a plaintiff is not
obligated to anticipate such a defense in his complaint at the
risk of dismissal under Rule 12 of the Federal Rules of Civil
Procedure, see Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir.
1995), the wording of
§
1915A(b) (2) suggests that qualified
immunity is a factor the court should consider in the screening
process.
The records of Wise County provide strong evidence that
none of the individual defendants violated any of plaintiff's
Constitutional rights, and that, even if they had, they conducted
themselves as a reasonable jail employee would have thought
appropriate under the circumstances, and not in violation of any
constitutional excessive force constraint.
26
Moreover, as to the individual defendants, a fair reading of
plaintiff's Spears hearing testimony is that he is not intending
to sue the employees of Wise County in their individual
capacities, but, instead, is seeking only to recover damages from
Wise County.
That, in itself, is a sufficient reason for
concluding that plaintiff should not be permitted to pursue his
claims against the individuals further.
If one were to look at plaintiff's allegations from a
standpoint of whether they state any claim upon which relief may
be granted, they are woefully short of the specificity,
particularity, and plausibility required by the Supreme Court
decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), thus
providing yet another basis for a dismissal of plaintiff's
claims.
Nor does plaintiff fare any better in his attempt to extract
money from Wise County.
To whatever extent he has sued
individuals in their official capacities, such a suit is
tantamount to a suit against Wise County.
And, the court is
considering plaintiff's November 9, 2016 filing as a supplement
to his complaint adding Wise County, Texas, as a named defendant.
But, plaintiff has made no allegation, and offered no Spears
hearing testimony, establishing any facts that would impose
27
liability on Wise County for any of the conduct about which he
complains.
That would be true even if the court were to give
credence to plaintiff's theory that one or more of the
individuals he named as defendants used excessive force against
him.
The conduct of the individual employees are not imputed to
Wise County under the doctrine of respondeat superior, nor can
Wise County be held liable for the conduct of its employees
unless that conduct was pursuant to a policy or custom of Wise
County that led to constitutionally violative conduct.
Monell v.
York City Dep't of Soc. Servs., 436 U.S. 658, 691 {1978);
Piotrowski v. City of Houston, 237 F.3d 567, 578 {5th Cir. 2001).
Thus, there are additional reasons why plaintiff's claims against
Wise County must be dismissed as part of the court's screening
process.
v.
Order
For the reasons give above,
The court ORDERS that all claims and causes of action
asserted in the above-captioned action against any person or
entity designated as a defendant in any of the documents filed by
plaintiff in this action, including Wise County, Texas, be, and
28
are hereby, dismissed pursuant to the authority of 28 U.S.C.
§
1915A.
SIGNED November 22, 2016.
District
29
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