Welsh v. Williams et al

Filing 32

ORDER ACCEPTING THE FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re: 18 Findings and Recommendations on re: 1 Complaint filed by Lonnie Kade Welsh. The Court orders: (1) Welsh's state-law claims, an d his claims against Defendants Scott Say and Rickie Redman for their non-prosecution of the alleged 2022 assaults, are dismissed without prejudice. (2) All remaining claims and defendants are dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. (3) All relief not expressly granted is denied and any pending motions are denied. Judgment shall be entered accordingly. (Ordered by Judge James Wesley Hendrix on 11/26/2024) (bmh)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
LONNIE KADE WELSH,
Institutional ID No. 27818
Plaintiff,
v.

No. 5:22-CV-00183-H

BRIAN WILLIAMS, et al.,
Defendants.
ORDER ACCEPTING THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This lawsuit arises out of a use-of-force incident at the Texas Civil Commitment Center
(TCCC) on September 15, 2020, and the events that followed. Welsh, a civilly detained
Sexually Violent Predator (SVP), sued 12 defendants alleging a variety of constitutional
violations under 42 U.S.C. § 1983 as well as state law. He seeks monetary damages.
United States Magistrate Judge D. Gordon Bryant, Jr., made findings, conclusions, and
a recommendation (FCR) in this case. Dkt. No. 18. Specifically, Judge Bryant recommended
that the Court (1) dismiss without prejudice Welsh’s claims against Defendants Say and
Redman for their non-prosecution of alleged assaults that occurred on March 4, 2022, May 31,
2022, and between May 31 and October 1, 2022; (2) dismiss without prejudice his state-law
claims against all parties; and (3) dismiss all of Welsh’s other claims with prejudice. Welsh filed
lengthy objections. Dkt. No. 25. 1
“The district judge must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1). In

Page references to this document refer to the page number assigned as docketed in ECF, as
opposed to the page numbers handwritten by Plaintiff.

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contrast, the district judge reviews any unobjected-to findings, conclusions, and
recommendations for plain error. The Court need not consider frivolous, conclusive, or general
objections. See Battle v. U.S. Parole Com’n, 834 F.2d 419 (5th Cir. 1987), overruled on other grounds
by Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996).
The Court has examined the record and reviewed the unobjected-to portions of the FCR
for plain error and, finding none, expressly accepts and adopts those portions of the Magistrate
Judge’s findings, conclusions, and recommendation. Additionally, in light of Welsh’s specific
objections, the Court has conducted a de novo review of the relevant portions of the FCR and
the record in this case. Many of Welsh’s objections are either restatements of arguments made
in his complaint (as supplemented by his response to the Court’s questionnaire), arguments
thoroughly addressed by the FCR, conclusory statements, or mere disagreements with the
Magistrate Judge’s wording. Where objections are repetitive of arguments already made to the
Magistrate Judge and the district court finds no error, the court need not make new findings or
reiterate the findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d
37, 40 (5th Cir. 1993). For that reason, the Court finds it unnecessary to address all but two of
Welsh’s objections. Thus, except as noted below, the Court expressly accepts and adopts the
findings, conclusions, and recommendation of the United States Magistrate Judge. Welsh’s
objections are overruled.
1.

Background
Welsh is an experienced and determined litigant who has filed more than twenty federal

civil actions challenging various aspects of his confinement in different institutions over the past

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several years. 2 Welsh was a civil detainee in the TCCC when he filed this suit, and he is
proceeding pro se and in forma pauperis.
Welsh sues the following defendants: (1) Littlefield Police Department (LPD) Officer
Brian Williams in his individual capacity; (2) LPD Officer John Doe in his individual capacity;
(3) Lamb County Sheriff Gary Maddox in his individual and official capacities; (4) Lamb
County District Attorney (DA) Scott Say in his individual and official capacities; (5) Assistant
District Attorney (ADA) Rickie Redman in her individual and official capacities; (6) TCCC
Facility Administrator Wayne Schmoker in his individual capacity; (7) Management and
Training Corporation (MTC) security guard Julian Chavez in his individual capacity; (8) the
City of Littlefield, Texas (the City), with LPD Chief Ross Hester as official policymaker; (9)
Lamb County, Texas (the County), with Sheriff Gary Maddox, DA Say, and ADA Redman as
official policymakers; and (10) MTC with Schmoker as its “principle agent.” Id. at 1–5.
This lawsuit focuses on events that took place on September 15, 2020—while Welsh was
civilly detained at the TCCC—and the subsequent charges against Welsh for felony assault
against a security officer. The FCR thoroughly details the facts in this case, and the Court finds
it unnecessary to repeat them in full here. Instead, the Court will include only a basic summary
of the incidents as they unfolded on that day:
•

Welsh covered the window of his room—ostensibly while he used the restroom—in
violation of facility rules. Captain Rodriguez asked him to take down the covering at
least three times, but Welsh refused. So, Rodriguez called a security team.

•

Security staff arrived and ordered Welsh to submit to hand restraints. But because Welsh
had uncovered the window by that time, he refused. After three requests, staff opened

Indeed, this Court recently joined the Fifth Circuit Court of Appeals, the Supreme Court of the
United States, and the Texas state-court system in the conclusion that Welsh is a vexatious litigant
who has repeatedly abused the Court’s process. See No. 5:20-CV-00024-H, Dkt. No. 128 (describing
Welsh’s prior lawsuits filed in this Court, as well as warnings and sanctions from other courts).
There, the Court sanctioned Welsh with a monetary sanction of $500 and barred him from filing any
new civil action in this Court until he has paid the sanction in full. Id. at 49. Welsh’s appeal of the
sanction remains pending. See U.S.C.A. No. 24-10891.
2

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the food port and sprayed a chemical agent. But Welsh stood on a box, blocked the gas
with a sheet, and continued to refuse requests to submit to hand restraints. After several
minutes and unsuccessful attempts to gain compliance, a five-man team was instructed
to enter Welsh’s room. To slow down the staff, Welsh threw a bunch of papers on the
floor.
•

Welsh claims that as the team entered, Defendant Chavez, who was in the lead, hit him
several times and pushed him back—despite allegedly having his hands up in a motion
to surrender. Chavez slipped on the papers that Welsh had thrown on the floor, and
Welsh alleges that Chavez held onto Welsh’s shirt and hit him in the genital region and
stomach as he was kneeling or falling to the ground. In the meantime, Welsh removed
Chavez’s helmet to reveal his identity. Staff then took the helmet from Welsh, placed
him on the ground, and secured hand and leg restraints. Video of the incident shows a
line of blood on Chavez’s face.

•

Staff transported Welsh to another room and removed the leg restraints, but Welsh
refused to relinquish the hand restraints. 3 Welsh then hid under the bed, so Defendant
Schmoker ordered security officer Scott to spray chemical agents twice to gain
compliance. Welsh finally surrendered the restraints by placing his hands through the
food port. Welsh was in the hand restraints for approximately two and a half hours.

•

LPD Officers Williams and Doe responded to the scene, and Chavez and Welsh gave
their version of events. Welsh alleges that the audio from the officers’ body-worn
camera includes Schmoker telling them that he spoke with DA Say and ADA Redman
about the incident. The officers then informed Welsh that he would be charged with
assault on a security guard, placed him in handcuffs, and allowed him to leave the room
to make a written statement. They also photographed Welsh’s knee.

•

Next, Welsh was instructed to return to his room, but he refused and demanded to wash
off the residual chemicals or change clothes. Schmoker told him he would turn on the
water but would not give him anything else to remove the chemical spray from the
room. So, Welsh ran to the recreation yard, took the handcuffs, and wrapped them in a
chain attached to the fence that could not be removed. He refused to move or return to
his room unless he was given cleaning supplies. Welsh repeatedly refused instructions to
return to his room and continued attempting to negotiate, and, after 15 minutes, security
staff was called to remove him from the fence.

•

After several warnings that he would be sprayed if he did not submit, a security officer
removed Welsh’s sunglasses and sprayed him. Welsh responded by taunting the officers
and continuing to refuse orders. Staff eventually managed to physically extract him
from the fence, carried him back to his room, and told him to de-contaminate.

•

Officers Williams and Doe took Welsh into custody on the assault charge.

Welsh claims he refused to relinquish the hand restraints because he could not position himself
properly so they could remove them due to an injury for which Welsh refused treatment.
3

4

•

Welsh remained in the Lamb County Jail for approximately 18 months until the State
dropped the charges.

See Dkt. No. 18 at 3–9.
As summarized in the FCR, “Welsh’s allegations, confirmed by the video footage, paint
the picture of an escalating resident compliance issue in which Welsh repeatedly defied orders,
resisted and/or blocked chemical agents, and continued to fight against physical restraints once
security personnel entered his room. Moreover, Welsh orally and in writing confirmed to
Officer Williams that he removed Chavez’s helmet.” See Dkt. No. 18 at 47.
Welsh later added claims against Defendants Say and Redman for their failure or refusal
to criminally prosecute TCCC personnel for their alleged assaults against him on March 4,
2022, May 31, 2022, and between May 31 and October 1, 2022. 4
2.

The Magistrate Judge’s Findings, Conclusions, and Recommendation
The Magistrate Judge endeavored to interpret Welsh’s detailed pleadings and thoroughly

reviewed Welsh’s claims as described in his complaint. Additionally, Welsh was permitted to
supplement his complaint with responses to a questionnaire designed to allow him a chance to
further develop his claims and to assist in the judicial screening process. See Watson v. Ault, 525
F.3d 886, 893–94 (5th Cir. 1976). The Magistrate Judge also received and reviewed
authenticated records from Lamb County and the Texas Civil Commitment Office (TCCO),
including incident reports, court records, grievances, inmate requests, and other records. See
Wilson v. Barrientos, 926 F.2d 480, 483–84 (5th Cir. 1991); Banuelos v. McFarland, 41 F.3d 232,
234 (5th Cir. 1995). The Magistrate Judge accepted the facts stated by Welsh in his complaint
and answers to the questionnaire as true. However, the Court did not accept as true
“[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory

4

Welsh raised these claims in his responses to the questionnaire. Dkt. No. 17.
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statements.” City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 153 (5th Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
After this screening, the Magistrate Judge concluded that Welsh failed to state viable
claims and recommended that the Court dismiss Welsh’s claims with prejudice, except for
Welsh’s claims against Defendants Say and Redman for their non-prosecution of the alleged
assaults in 2022 and his state-law claims against all parties, which the FCR recommends be
dismissed without prejudice.
3.

Welsh’s Objections
Welsh filed handwritten objections totaling 82 pages with attachments. Dkt. No. 23. In

his objections, Welsh recounts portions of the FCR and his pleadings. Welsh attempts to
further clarify the factual basis of his claims and rehashes his claims with additional support
from a variety of cases—most of which are inapposite to his claims. Welsh also submitted an
exhibit consisting of a copy of the contract between the TCCO and Correct Care, LLC for
provision of services at the TCCC. Welsh concluded his objections with a request for leave to
amend his complaint in order to cure the deficiencies identified in the FCR.
As previously explained, the Court overrules Welsh’s objections and will address only
two objections: (1) that the FCR failed to conduct a Fourth Amendment analysis of his claim
that Defendants Say, Redman, and Williams over-charged him with a felony, and (2) that the
Court should exercise supplemental jurisdiction over his state-law claims based on diversity
jurisdiction because Defendant MTC is a Utah corporation.
A.

Fourth Amendment Analysis of the “Over-Charging” Claim

Welsh expressly relied on the Fourteenth Amendment for his claim that Defendants Say,
Redman, and Williams purposely over-charged him with a felony instead of a misdemeanor.
The FCR characterizes the claim as an attempt to allege a “conspiracy-type fabrication-of6

evidence claim.” See Dkt. No. 18 at 33. But Judge Bryant concluded that the Fourteenth
Amendment is inapplicable because any assertion that Defendants “over charged” Welsh falls
under the Fourth Amendment, which “establishes the minimum constitutional ‘standards and
procedures’” for arrest and detention. Manuel, 580 U.S. at 365 (quoting Gerstein v. Pugh, 420
U.S. 103, 111 (1975)).” See Dkt. No. 18 at 33. In his objections, Welsh complains that Judge
Bryant should have then analyzed the claim under the Fourth Amendment. See Dkt. No. 25 at
41–43. And Welsh appears to shift his allegations from a claim that he was over-charged with a
felony to an argument that he should have been released from pretrial confinement sooner than
he was.
The Court notes that the FCR does not specifically analyze Welsh’s conspiracy-type
fabrication-of-evidence claim under the Fourth Amendment. But the Court concludes that it
was unnecessary to do so because the same analysis is encompassed in the FCR’s thorough
Fourth Amendment discussion of the probable-cause determinations and “minimum
constitutional standards and procedures” relating to Welsh’s arrest for the felony charge. See
Dkt. No. 18 at 33–49 (discussing Malley v. Briggs, 475 U.S. 335, 344–45 (1986) and Franks v.
Delaware, 438 U.S. 154, 155-56 (1978)).

Welsh was detained on the felony charge of assault of

a security guard, but he disagrees with the felony enhancement—not the assault charge itself.
And it is undisputed that a grand jury found probable cause to indict him for the felony. But he
argues that the defendants “knew they could not prosecute [him] under a felony, yet, they
maintained confinement even though they could not get a felony conviction past the statutory
max for a misdemeanor assault.” Dkt. No. 25 at 41. Interestingly, in his objections Welsh
“concedes that to make the initial arrest, Williams had probable cause.” Dkt. No. 25 at 35.

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In short, the FCR thoroughly analyzed Welsh’s arrest under the Fourth Amendment,
and Welsh’s claims fail because the record shows—and Welsh concedes—that his arrest was
supported by probable cause. Welsh’s objection is overruled.
B.

Diversity Jurisdiction Does Not Exist

Welsh also objected to the recommendation that the Court should decline to exercise
supplemental jurisdiction over his state-law claims. He argues that those claims should go
forward under 28 U.S.C. § 1332 because Defendant MTC is a Utah Corporation. In the
absence of federal-question jurisdiction, Welsh must establish that the Court has diversity
jurisdiction in this case. See Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
Diversity jurisdiction requires complete diversity of citizenship between adverse parties and that
the matter in controversy exceeds $75,000. See 28 U.S.C. § 1332. For a case to be filed in
federal court based on diversity jurisdiction, “all persons on one side of the controversy [must]
be citizens of different states than all persons on the other side.” Harvey v. Grey Wolf Drilling Co.,
542 F.3d 1077, 1079 (5th Cir. 2008) (quoting McLaughlin v. Miss. Power Co., 376 F.3d 344, 353
(5th Cir. 2004) (per curiam)). In other words, all of the defendants must be from a different state
than Welsh. That does not appear to be the case here. While it may be true that MTC, as a
Utah Corporation, is a citizen of a different state, Welsh has not alleged—much less
demonstrated—that all of the other defendants are also citizens of a state other than Texas.
Welsh has failed to establish that the Court has diversity jurisdiction in this case based on
complete diversity of citizenship between himself and Defendants, so his objection is overruled.
And even if he could establish complete diversity, the Court would accept and adopt the FCR’s
recommendation to decline exercising supplemental jurisdiction.

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C.

Welsh’s Request to Amend

At the end of his objections, Welsh seeks leave to amend his complaint. See Dkt. No. 25
at 62. Given the posture of this case, Welsh may only amend or supplement his pleading if the
Court grants him leave to do so. See Fed. R. Civ. P. 15(a). Rule 15(a)(2) requires a trial court to
“freely give leave when justice so requires.” Welsh is not automatically entitled to amend his
complaint, however, and decisions concerning motions to amend are left to the sound discretion
of the Court. See Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998). To aid the
exercise of that discretion, Courts in the Fifth Circuit consider five factors: (1) undue delay; (2)
bad faith or dilatory motive; (3) repeated failure to cure deficiencies by previous amendments;
(4) undue prejudice to the opposing party; and (5) futility of the amendment. Smith v. EMC
Corp., 393 F.3d 590, 595 (5th Cir. 2004).
Here, Welsh has had at least two chances to hone his factual allegations. He filed
responses to the Magistrate Judge’s questionnaire, Dkt. No. 17, and detailed objections to the
Magistrate Judge’s findings, conclusions, and recommendations. Dkt. No. 25. The Court finds
that Welsh has been given ample opportunity to plead his best case. Permitting further
amendment now would unnecessarily delay disposition of the case. Welsh has been given
notice and opportunity of the deficiencies in his complaint and has not addressed the
deficiencies before now. In addition to his failure to cure the deficiencies, the Court finds that
leave to amend would cause undue prejudice to the defendants and, in any event, would be
futile. Thus, Welsh’s general request to amend is denied.
4.

Conclusion
Welsh’s objections are overruled, and the Court accepts and adopts the findings,

conclusions, and recommendation of the Magistrate Judge.

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As a result, the Court orders:
(1)

Welsh’s state-law claims, and his claims against Defendants Scott Say and Rickie

Redman for their non-prosecution of the alleged 2022 assaults, are dismissed without prejudice.
(2)

All remaining claims and defendants are dismissed with prejudice under

28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
(3)

All relief not expressly granted is denied and any pending motions are denied.

Judgment shall be entered accordingly.
Dated November 26, 2024.

James Wesley Hendrix
United States District Judge

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