Molina v. Wise County Texas et al

Filing 35

ORDER RESOLVING MOTION FOR RULING and SECOND OPINION and ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. § 1915(e)(2)(B): Therefore, Molina's Motion for Ruling and Motion for Leave to Amend Process (doc. 33 ) is DENIED. Furthermore, all of Molina's claims against the second Correctional Officer Roberts are DISMISSED WITH PREJUDICE under authority of 28 U.S.C. § 1915(e) (2)(B)(ii). Furthermore, the Summons in a Civil Action issued by the clerk of Court on April 18, 2019 (d oc. 32 ), for service upon the second Officer Roberts is QUASHED and of no force and effect. All claims against the second Officer Roberts are dismissed and no appearance or answer is required. (Ordered by Senior Judge Terry R Means on 5/20/2019) (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.

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CIVIL ACTION 4:17-CV-809-Y

ORDER RESOLVING MOTION FOR RULING and
SECOND OPINION and ORDER OF PARTIAL DISMISSAL
UNDER 28 U.S.C. § 1915(e)(2)(B)
I.

BACKGROUND
In this civil suit, pro-se inmate/plaintiff Ronnie Robert

Molina

asserted

claims

against

several

Wise

County

jail

officials, arising from their alleged failure to protect him
from a sexual assault by a fellow inmate, even though he had
informed them of incidents with, and threats from, the fellow
inmate on several instances prior to the assault.(Compl. (doc.
3) at 4-5.) In an opinion and order of partial dismissal
entered on February 21, 2019, the Court dismissed 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.), and all of Plaintiff’s remaining
claims against Wise County, Texas. (Op. and Order (doc. 17 at
1-14.) The Court allowed service of Molina’s claims against
Sergeant Thomas, Officer Larson, Officer Roberts, Detective
Mayo, and unnamed officer “B”. (Id. at 14.)

Four of those

defendants have appeared by the filing of a First Amended
Answer: James Mayo, Joseph Thomas, Lance Larson, and Jennifer
Roberts. (Answer (doc. 34).)

II.

MOTION FOR RULING AND FOR LEAVE TO AMEND PROCESS
Now pending is Molina’s motion for ruling and motion for

leave to amend process, along with a completed summons for a
second and different “Officer Roberts.” (Docs. 32, 33.) By the
motion, Molina points to portions of the complaint and more
definite

statement

(“MDS”)

that

show

that

he

actually

identified two separate persons as defendants named Officer
Roberts, and he asks the Court to authorize the issuance of
summons

and

allow

service

upon

the

second

Roberts

defendant.(Mot. (doc. 33) at 1-2.)
Upon review of the complaint and MDS, it appears that
Molina has listed claims against two separate persons named
Officer Roberts. The first Roberts is frequently referred to
as a female in Molina’s more definite statement. (MDS (doc. 16)
at 6.) This Roberts appears to be Jennifer Roberts, who has
answered the constitutional claims arising from the events that
took place prior to the May 22 alleged assault.(First Am.
Answer (doc. 34).) Further review confirms, however, that
Molina referred to a second Roberts in his pleadings.
In the complaint, Molina wrote: “On Sunday, May 22, 2016,
I made a Prison Rape Elimination Act of 2003 declaration to a
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second C.O. Roberts.” (Compl. (doc. 3) at 4.) In the MDS he
also wrote: “[w]hen I told C.O. Roberts [on May 22, 2016] the
truth that Rodriguez had been sexually harassing me, and that
I had already told C.O. Larson, C.O. Roberts and Sgt. Thomas,
Roberts did not begin a P.R.E.A. investigation that would
include a medical exam.” (MDS (doc. 16) at 9-10.) As Molina
points out in his motion for ruling, he also wrote in the
margins of the MDS the words: “I would like to include C.O.
Roberts as a defendant. There are two C.O. Roberts [sic].” (MDS
(doc. 16) at left margin.) Upon review, the Court acknowledges
that it failed to address Molina’s claims against this second
Officer Roberts in the prior opinion and order.

III. REVIEW UNDER 28 U.S.C. § 1915(e)(2)(B)
Now turning to review of Molina’s claim against the second
Roberts defendant, the Court observes that the only assertion
against this defendant Roberts is a failure to initiate a
Prison

Rape

Elimination

Act

(“PREA”)

investigation.

As

addressed in the prior opinion and order, 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
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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. See Krieg v. Steele, 599 F. App’x 231, 232–33 (5th
Cir. 2015). Following this circuit precedent, another district
court explained that “[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 against the second
Officer Roberts under the provisions of the PREA must be
dismissed under authority of 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim upon which relief may be granted.

IV.

ORDER
Therefore, Molina’s Motion for Ruling and Motion for Leave

to Amend Process (doc. 33) is DENIED.
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Furthermore,

all

of

Molina’s

claims

against

the

second

Correctional Officer Roberts are DISMISSED WITH PREJUDICE under
authority of 28 U.S.C. § 1915(e)(2)(B)(ii).
Furthermore, the Summons in a Civil Action issued by the clerk
of Court on April 18, 2019 (doc. 32), for service upon the second
Officer Roberts is QUASHED and of no force and effect.

All claims

against the second Officer Roberts are dismissed and no appearance
or answer is required.
SIGNED May 20, 2019.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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