Molina v. Wise County Texas et al

Filing 17

OPINION and ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. § 1915(e)(2)(B): Therefore, all of Plaintiff's claims against any defendant under the Federal Tort Claims Act, the Texas Tort Claims Act, and the Prison Rape Elimination Act (includin g all claims against Sheriff Akin and John Waggoner Polheums Jr.) are DISMISSED WITH PREJUDICE under authority of 28 U.S.C. § 1915(e)(2)(B)(ii). Furthermore, all of Plaintiff's remaining claims against Wise County, Texas, are DISMISSED WITH PREJUDICE under authority of 28 U.S.C. § 1915(e)(2)(B)(ii). (Ordered by Senior Judge Terry R Means on 2/21/2019) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RONNIE ROBERT MOLINA
(Reg. No. 35504-177)
Plaintiff,
V.

§
§
§
§
§
§
§
§

WISE COUNTY, TEXAS, et al.
Defendants.

CIVIL ACTION 4:17-CV-809-Y

OPINION and ORDER OF PARTIAL DISMISSAL
UNDER 28 U.S.C. § 1915(e)(2)(B)
This

case

is

inmate/plaintiff

before

Ronnie

the

Robert

Court

for

Molina’s

review

of

pleadings

pro-se-

under

the

screening provision of 28 U.S.C. § 1915(e)(2)(B). As explained
below, the live pleadings subject to review under these statutes are
Molina’s complaint and his more definite statement.
and

consideration

of

Molina’s

claims

as

set

After review

forth

in

these

pleadings, the Court determines that many of Molina’s claims must
be dismissed, and the remaining claims served upon some defendants.

I.

BACKGROUND/PLEADINGS
In this suit Molina initially filed a typed civil-rights

complaint naming as defendants Wise County, Texas; Sergeant Thomas;
Officer Larson; Officer Roberts; Unknown Officer “B”; and Wise
County Sheriff Akin. (Complaint (doc. 3) at 1.) Molina recites in
a “statement of facts” section of the complaint that while he was
housed in the Wise County Jail on May 19, 2016, he was sexually
abused and assaulted by fellow jail inmate Israel Trey Rodriguez.

(Id. at 4.) He recites that he had, prior to the assault, informed
Sergeant Thomas, Officer Larson, Officer Roberts, and Officer “B”
that Rodriguez was sexually harassing him, and though he was told
it would be taken care of, he alleges they were not separated and
he was then raped. (Id. at 4.)
The

majority

of

Molina’s

remaining

allegations

in

the

statement-of-facts section relate to his having presented a Prison
Rape Elimination Act (“PREA”) claim to several persons, including
through a declaration to Wise County Detective Mayo; writing a
letter to Sheriff Akin; and giving a written statement to Wise
County Detective Jay Polhemus and Wise County Deputy Alsup. Molina
alleges that nothing ever came of his PREA claim to Wise County
officials. Molina reports that later in May 2016, he was transferred
to the Parker County jail, and though he subsequently notified
numerous other Wise County officials of his PREA claim, “not one
individual attempted to have me interviewed.” (Id.)
After being housed in the Parker County jail for a few months,
Molina was transferred into the Federal Medical Center, Rochester
Minnesota, where he remains. Molina recites that he reported the
PREA claim to numerous federal officials when he was transferred
there in January 2017, but that it was not until May 5, 2017, that
he was finally interviewed by Investigator J. Grimsley and Chief of
Psychology Dr. Jason Gabel. (Id.) Molina reports that he was
informed that a PREA notice would be sent to the Wise and Parker
County jails, and that Grimsley and Gabel “found the sexual abuse,
2

harassment and physical assault to be egregious and traumatizing.”
(Id.)
After review of the complaint, the Court directed Molina to
file a more definite statement giving answers to the Court’s
particular questions about the claims made in the complaint. (Order
(doc. 15).) Plaintiff filed a handwritten more definite statement.
(More Definite Statement (MDS) (doc. 16).) In that document, Molina
recites that in addition to his claim under the PREA, he seeks
relief for violation of his Eighth and Fourteenth Amendment rights,
apparently under 42 U.S.C. § 1983.1 He also claims that some
defendants failed to protect him from a threat to his safety, and
thus that defendants violated the Federal Tort Claims Act (“FTCA”),
and the Texas Tort Claims Act (“TTCA”), citing Texas Civil Practice
and Remedies Code § 101.106.(MDS (doc. 16) at 2.)
In response to the Court’s detailed questions regarding whether
inmate Rodriguez had threatened or sexually harassed him before the
May 19, 2016 sexual assault, and if so, whether any such conduct was
relayed by Molina to any defendant before the May 19 assault, Molina
made allegations relating to Sergeant Thomas, Officer Larson,
Officer Roberts, and unnamed Officer “B.” (MDS (doc. 16) at 2–9.)
Molina alleges that each of these persons knew there was a serious
risk of harm to his health and safety but showed deliberate
1

“Every person who, under color of [state law] . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.” 42
U.S.C.A. § 1983 (West 2012).

3

indifference by not removing him from the same cell and duty
assignment with Rodriguez. (Id. at 8–9.)
Molina also requests to add as defendant a Detective Mayo,
alleging that Mayo failed to have him medically examined after
Molina related that he had been the victim of a sexual assault.(MDS
(doc. 16) at 10–11.) Molina also wants to add as a defendant Wise
County Officer John Waggoner Polhemus Jr arising from Polhemus’s
alleged

failure

to

follow

PREA

protocol

and

conduct

an

investigation of the assault.(MDS (doc. 16) at 12–13.)2 Molina also
clarified his claims against Wise County, Texas, and he notified the
Court that although he had listed several additional persons to whom
he relayed a PREA notice while housed at the Parker County jail and
at FMC-Rochester, he “did not intend to add any other defendant’s
[sic] related to these additional recitations.” (MDS (doc. 16) at
14.) Thus, no other defendants will be added to this suit. Molina
seeks compensatory damages, punitive damages, declaratory relief,
and costs and attorneys fees.

II.

(Complaint (doc. 3) at 2.)

PRELIMINARY SCREENING UNDER 28 U.S.C. § 1915(e)(2)(B)
Plaintiff is an inmate who has been permitted to proceed in

forma pauperis. Because he is proceeding in forma pauperis, his
complaint is subject to screening under § 1915(e)(2). That statute
provides for sua sponte dismissal of the complaint, or any portion

2

The clerk of Court is directed to add defendants Wise County Detective Mayo and
Wise County Officer John Waggoner Polhemus Jr. as defendants.

4

thereof, if the Court finds it is frivolous or malicious, if it
fails to state a claim upon which relief may be granted, or if it
seeks monetary relief against a defendant who is immune from such
relief.
A complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). A claim lacks an arguable basis in law when it is “based on
an indisputably meritless legal theory.” Id. at 327. A complaint
fails to state a claim upon which relief may be granted when it
fails to plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
avoid dismissal for failure to state a claim, plaintiffs must allege
facts sufficient to “raise the right to relief above the speculative
level.”Twombly, 550 U.S. at 555. Mere “labels and conclusions” nor
a “formulaic recitation of the elements of a cause of action”
suffice to state a claim upon which relief may be granted. Id.

III. ANALYSIS
A.

Failure to State a Claim Upon Which Relief May be Granted

(1)

Claim under the Federal Tort Claims Act (FTCA)

Molina alleges that the “defendants violated the Federal Tort
Claims Act.”(MDS (doc. 16) at 2.) The FTCA waives the United States’
sovereign immunity from tort suits. McGuire v. Turnbo, 137 F.3d 321,
324 (5th Cir. 1998)(citing 28 U.S.C. § 2674). Because the FTCA
5

provides such a waiver, the limitations and conditions upon which
the government consents to be sued must be construed strictly in
favor of the United States. Atorie Air, Inc., v. Federal Aviation
Administration, 942 F.2d 954, 957 (5th Cir. 1991)(citing Lehman v.
Nakshian, 453 U.S. 156, 160 (1981)). In order to sue successfully
under the FTCA, “a plaintiff must name the United States as the sole
defendant.” McGuire, 137 F.3d at 324, citing Atorie Air, Inc., 942
F.2d at 957. Molina does not further allege which defendant he
targets on the FTCA claim, or whether he is asserting such a claim
in an official or individual capacity. As the United States is the
only proper party defendant for a claim brought under the FTCA,
Molina’s claims under the FTCA against any other defendant must be
dismissed. See Woodard v. United States, No.1:17-cv-174, 2018 WL
4517624, at * 7 (E.D. Tex. Aug. 31, 2018) (as USA is only proper
defendant, motion to dismiss any claim brought under the FTCA
against individual defendant acting in official capacity must be
granted), rep. and rec. adopted, 2018 WL 4517495 (E.D. Tex. Sep. 19,
2018); Lewis v. United States, No.18-3423, 2018 WL 3619443, at * 2
(E.D. La. July 30, 2018)(noting that for claims under the FTCA
federal employees are improper defendants in both their official and
individual capacities). Thus, Molina’s claims under the FTCA against
the parties named in this suit must be dismissed.
(2)

Claim under the Texas Tort Claims Act (TTCA)

In both his complaint and again in the more definite statement,
6

Molina recites that defendants violated the Texas Civil Practice and
Remedies Code § 101.106. But that provision is an election-ofremedies provision of the Texas Tort Claims Act (“TTCA”). The TTCA
provides for a limited waiver of the common law doctrine of
governmental

immunity

under

certain

circumstances.

Drain

v.

Galveston County, Et Al., 979 F. Supp. 1101, 1104 (S.D. Tex. Oct.
7, 1997). Under the election-of-remedies provision of the TTCA, a
plaintiff who sues under the TTCA must elect between suing a
governmental unit and suing an employee of that unit. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.106; Bustos v. Martini Club, Inc., 599
F.3d 458, 462 (5th Cir. 2010). Plaintiff does not list which
defendant, but of course, as noted above, he has named both Wise
County, Texas,

and several individual officers of Wise County. As

Plaintiff has named the governmental unit, Wise County, this suit
“constitutes an irrevocable election by [Molina] and immediately and
forever bars any suit or recovery by [Molina] against any individual
employee of the governmental unit [Wise County] regarding the same
subject matter.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a).
Thus, by suing the county, Molina has made an election that bars any
suit under the TTCA against the individual defendants, and any
claims under the TTCA against the individual defendants must be
dismissed.
Moreover, the TTCA claim against Wise County, Texas, also
fails. Another court has explained the doctrine of sovereign

7

immunity, the TTCA waiver of such immunity, and the exceptions to
that waiver:
Under the doctrine of sovereign immunity, a governmental
unit is not liable for the torts of its officers or
agents in the absence of a constitutional or statutory
provision creating such liability. State v. Terrell, 588
S.W.2d 784, 785 (Tex. 1979). The Texas Tort Claims Act
(“TTCA”) creates a limited waiver of sovereign immunity.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon
1997). In order for immunity to be waived under the TTCA,
the claim must arise under one of the three specific
areas of liability for which immunity is waived, and the
claim must not fall under one of the exceptions from
waiver. Alvarado v. City of Brownsville, 865 S.W.2d 148,
155 (Tex.App.-Corpus Christi 1993), rev'd on other
grounds, 897 S.W.2d 750 (Tex.1995). The three specific
areas of liability for which immunity has been waived
are: (1) injury caused by an employee's use of a motordriven vehicle; (2) injury caused by a condition or use
of tangible personal or real property; and (3) claims
arising from premise defects. See Tex. Civ. Prac. & Rem.
Code Ann. § 101.021 (Vernon 1997). However, the waiver of
immunity does not extend to claims arising out of
intentional torts. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.057 (Vernon 1997).
Medrano v. City of Pearsall, 989 S.W.2d 141, 143–44 (Tex. App.-San
Antonio 1999, no pet.).
As noted, among the exceptions to the waiver of sovereign
immunity is this: the TTCA does “not apply to a claim . . . arising
out of assault, battery or other intentional tort . . . .” Tex. Civ.
Prac. & Rem. Code Ann. § 101.057(2); see Delaney v. Univ. of
Houston, 835 S.W. 2d 56, 59 (Tex. 1992). “This provision shields
municipalities from suits arising out of intentional torts committed
by governmental employees and should be liberally construed to
accomplish this objective.” Gillum v. City of Kerrville, 3 F.3d 117,

8

123 (5th Cir. 1993)(citations omitted). Thus, even if immunity “is
waived

under

section

101.021

of

the

TTCA,

a

claim

is

still

prohibited if it falls within the section 101.057(2) exception.”
Tarrant Cty. Hosp. Dist. v. Henry, 52 S.W.3d 434, 441(Tex. App.-Fort
Worth 2001, no pet)(citing Delaney, 835 S.W.2d at 58).
Here, the alleged conduct by the Wise County individual
defendants is that each of them was deliberately indifferent to the
risk of serious harm to Molina’s health and safety. (MDS (doc. 16)
at 7-9.) Other courts have recognized that claims of deliberate
indifference fit within the intentional-tort exception. See Jones
v. Nueces Cty., No. C-12-145, 2012 WL 4867556, at *5 (S.D. Tex. Oct.
12,2012)(recognizing

that

to

extent

claims

of

deliberate

indifference to serious medical needs state intentional torts, they
are excluded from the TTCA waiver of immunity); Drain v. Galveston
Cty., 979 F. Supp. at 1104 (“Plaintiff’s § 1983 cause of action and
her claims under the [TTCA] are mutually exclusive. A plaintiff
cannot pursue pendent state law claims under the [TTCA] where they
are

based

on

a

single

event,

an

event

alleged

under

a

contemporaneous § 1983 cause of action to be an intentional tort”)
(citation omitted).
Thus, having considered Molina’s pleading of a state-law claim
against Wise County based upon the allegation that Wise County
officials acted with deliberate indifference toward him, the Court
concludes that he has alleged an intentional tort for purposes of

9

the exception from the waiver of sovereign immunity under the TTCA.
Thus, Wise County, Texas is cloaked with governmental immunity, and
is immune from Molina’s state-law claims. Therefore, Molina’s claims
under the TTCA must be dismissed.
(3)

Claim under the Prison Rape Elimination Act

The bulk of Molina’s pleadings recite claims under provisions
of the Prison Rape Elimination Act (“PREA”).That statutory scheme,
originally codified in 15 U.S.C. § 15601–15609 (West 2103 and West
Supp. 2018), was transferred to 34 U.S.C. § 30301–30309 (West
Pamphlet 2018). Although the PREA was drafted to “address the
problem of rape in prison, authorize grant money, and create a
commission to study the issue[,] it does not give prisoners any
specific rights.” Johnson v. Rupert, No. 6:11-cv-446, 2014 WL
6969202 at *5 (E.D. Tex. Dec. 9, 2014) (citing Chinnici v. Edwards,
No.1:07-cv-229, 2008 WL 3851294 at *3 (D. Vt. Aug. 13, 2008).
Rather, “courts have held that nothing in the [PREA] suggests that
Congress intended to create a private right of action for inmates
to sue prison officials for noncompliance with the [PREA].” Id.
(citing De’Lonta v. Clarke, No.7:11-cv-483, 2012 WL 4458648 (W.D.
Va. Sep. 11, 2012) (collecting cases)). The Fifth Circuit has
expressly found that the PREA does not create a private right of
action:
Insofar as Krieg argues that his rights under the Prison
Rape Elimination Act of 2003 (PREA), 42 U.S.C. § 15601 et
seq., were violated, other courts addressing this issue
have found that the PREA does not establish a private
10

cause of action for allegations of prison rape. See
Diamond v. Allen, No. 7:14–CV–124, 2014 WL 6461730, at *4
(M.D. Ga. Nov.17, 2014) (citing cases); Amaker v.
Fischer, No. 10–CV–0977, 2014 WL 4772202, at *14 (W.D.
N.Y. Sept. 24, 2014) (holding that the PREA cannot
support such a cause of action by an inmate); Simmons v.
Solozano, No. 3:14CV–P354–H, 2014 WL 4627278, at *4 (W.D.
Ky. Sept.16, 2014) (holding that the PREA creates *233 no
private right of action). Krieg has cited no case in
support of his position; therefore, any claim raised
under the PREA is properly dismissed as frivolous.
Krieg v. Steele, 599 F. App’x 231, 232–33 (5th Cir. 2015). Following
this circuit precedent, another district court explained “[e]ven if
the [officers] conduct did violate that statute, which is an issue
the undersigned need not and does not reach, plaintiff’s claim would
not be actionable because the PREA simply does not establish a
private cause of action.” Harold v. Goff, No.16-13041, 2016 WL
8137642, at *4 (E.D. La. Dec. 1, 2016) (citing Krieg, 599 F. App’x
at 232) (other citations omitted)), rep and rec. adopted, 2017 WL
413082 (E.D. La. Jan. 30, 2017)).
Because the PREA does not create or provide a private cause of
action, Molina’s claims for relief under its provisions must be
dismissed for failure to state a claim upon which relief may be
granted as to all defendants.
(4)

Claim for violation of the Constitution against
Wise County, Texas

Although a city or county is a “person” within the meaning of
42 U.S.C. § 1983, a municipal government may not be held liable
“unless action pursuant to official municipal policy of some nature

11

caused a constitutional tort.” Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 691 (1978). The Supreme Court, in
Monell v. New York City Department of Social Services, emphasized
that a local government entity cannot be held liable under § 1983
on a respondeat superior basis:
[T]herefore . . . a local government may not be sued
under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a
government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury
that the government entity is responsible under § 1983.
Id. at 694. Thus, with regard to any claim by Molina that Wise
County is responsible to him due to the actions of the officers at
the Wise County jail, as this claim is essentially a claim that the
county is responsible on a vicarious liability or respondeat
superior basis, such claim is without legal merit.
Instead of vicarious liability for the actions of government
employees, § 1983 liability attaches against a local government
entity only “if the governmental body 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, 59 (2011)
(quoting Monell, 436 U.S. at 692); City of Canton v. Harris, 489
U.S. 378, 385 (1989) (liability “only where the municipality itself
causes

the

constitutional

violation

at

issue”)(emphasis

in

original). An official municipal policy “includes the decisions of
a government’s lawmakers, the acts of its policymaking officials,
12

and practices so persistent and widespread as to practically have
the force of law.” Prince v. Curry, 423 F. App’x 447, 450 (5th Cir.
2011) (quoting Connick, 563 U.S. at 60.)
The Court directed Molina to provide any facts to show how
“any custom or policy of Wise County, Texas” related to his claims
against the county. (Order for MDS (doc. 15, at 5.) In response
Molina wrote: “Wise County oversees the Wise County jail’s policies,
practices, customs and training.” (MDS (doc. 16) at 13.) But this
conclusory statement is not a recitation of a fact related to any
actual policy or custom of the county that relates to the claims in
this suit. Thus, even though he was given an opportunity, Molina has
wholly failed to allege any basis for holding Wise County, Texas,
liable on any claims of violation of his constitutional rights under
§ 1983.

IV.

SERVICE OF REMAINING CLAIMS
As noted above, Molina alleges claims under either the Eighth

Amendment or the Fourteenth Amendment3 against Sergeant Thomas,

3

On the information available at this time, the Court is unable to be certain
whether Plaintiff was a pre-trial detainee or a convicted inmate at the time of
the May 2016 events made the basis of the complaint. The Eighth Amendment’s
prohibition against “cruel and unusual punishment” protects the rights of
convicted prisoners; the rights of pre-trial detainees are protected by the “due
process clause” of the Fourteenth Amendment. See Hare v. City of Corinth, 74 F.3d
633, 639 (5th Cir. 1996)(citations omitted); see generally Escobedo v. Garza
County Sheriff’s Dept., No.5:16-cv-166-BQ, 2017 WL 6759136, at *3 n.2 (N.D. Tex.
Oct. 23, 2017) (noting that although the Supreme Court, in Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2470 (2015), applied an objective test to excessive
force claims brought by pre-trial detainees, the Fifth Circuit in Alderson v.
Concordia Par. Corr. Facility, 848 F.3d 415, 419-20 & n.4 (5th Cir. 2017)
subsequently reaffirmed that a subjective deliberate-indifference standard

13

Officer Larson, Officer Roberts, and unnamed Officer “B”, as well
as Detective Mayo. (MDS (doc. 16) at 7-11.) Plaintiff has alleged
sufficient facts to form arguable claims for relief for a violation
of the constitution against these five defendants. Thus, the Court
will allow service of these remaining claims through the assistance
of the officers of the Court under 28 U.S.C. § 1915(d) and Federal
Rule of Civil Procedure 4(c)(3). See Rochon v. Dawson, 828 F.2d
1107, 1109-1110 (5th Cir.1987).4

V.

ORDER
Therefore, all of Plaintiff’s claims against any defendant

under the Federal Tort Claims Act, the Texas Tort Claims Act, and
the Prison Rape Elimination Act (including all claims against
Sheriff Akin and John Waggoner Polheums Jr.) are DISMISSED WITH
PREJUDICE

under

authority

of

28

U.S.C.

§

1915(e)(2)(B)(ii).

Furthermore, all of Plaintiff’s remaining claims against Wise
County, Texas, are DISMISSED WITH PREJUDICE under authority of 28
U.S.C. § 1915(e)(2)(B)(ii).
SIGNED February 21, 2019.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

applies to all failure-to-protect claims, regardless of whether the prisoner is
a pretrial detainee or a prisoner)(other citations omitted)).
4

A separate order will issue regarding service of these remaining claims upon
five defendants.

14