Garner v. Metz et al

Filing 16

ORDER DISMISSING CERTAIN CLAIMS AND RETAINING CASE. (Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WILLI FREE I GARNER,

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§
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§ CIVIL ACTION NO. 2:13-CV-259
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§
§
§

Plaintiff,
VS.
KELLY METZ, et al,
Defendants.

ORDER DISMISSING CERTAIN CLAIMS AND RETAINING CASE
This civil rights action was filed by a Texas state prisoner pursuant to 42 U.S.C.
§ 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996), any prisoner action brought under federal law must be dismissed if the complaint
is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. See 42 U.S.C. § 1997e(c); 28
U.S.C. §§ 1915(e)(2), 1915A.

Plaintiff’s action is subject to screening regardless

whether he prepays the entire filing fee or proceeds as a pauper. Ruiz v. United States,
160 F.3d 273, 274 (5th Cir. 1998) (per curiam); Martin v. Scott, 156 F.3d 578, 580 (5th
Cir. 1998) (per curiam), cert. denied, 527 U.S. 1041 (1999). Plaintiff’s pro se complaint
must be read indulgently, Haines v. Kerner, 404 U.S. 519, 520 (1972), and his allegations
must be accepted as true, unless they are clearly irrational or wholly incredible, Denton v.
Hernandez, 504 U.S. 25, 33 (1992).

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Applying these standards, plaintiff’s excessive force claim against Lieutenant
Kelly Metz is retained, and service shall be ordered on this defendant in his individual
capacity. Plaintiff’s remaining claims against the remaining defendants are dismissed
with prejudice for failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1).
I.

Jurisdiction.
The Court has federal question jurisdiction over this civil rights action pursuant to

28 U.S.C. § 1331.

Upon consent of the plaintiff1, this case was referred to the

undersigned United States magistrate judge to conduct all further proceedings, including
entry of final judgment. (D.E. 14). See 28 U.S.C. § 636(c).
II.

Background facts and plaintiff’s allegations.
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal

Institutions Division (“TDCJ-CID”), and he is currently confined at the McConnell Unit
in Beeville, Texas. He filed his original complaint on August 19, 2013, and named the
following three individuals as defendants: (1) Lieutenant Kelly Metz (no longer at the
McConnell Unit); (2) Major Adam Gonzales (now an assistant warden at the Robertson
Unit in Abilene); and (3) Lanelle White-Roell (a licensed vocational nurse who formerly
worked at the McConnell Unit infirmary). (D.E. 1 at 3). Plaintiff claims that on June 29,
2012, Lieutenant Kelly used excessive force against him, and that Major Gonzales
effectively encouraged the unauthorized use of force and/or failed to protect plaintiff, in
1

The plaintiff consented to the undersigned magistrate judge being the presiding judge for all purposes at the Spears
hearing on November 21, 2013. See D.E. for 11/21/2013.

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violation of plaintiff’s Eighth Amendment right to be free from cruel and unusual
punishment. Id. He claims that Nurse White-Roell failed to provide appropriate medical
treatment following the use of force, in deliberate indifference to his serious medical
needs. Id.
On November 21, 2013, a Spears2 hearing was conducted.

The following

allegations were made in plaintiff’s original complaint (D.E. 1), or at the hearing:
Sometime in 1998, plaintiff was involved in an altercation in which he was
seriously injured, necessitating inter alia, cervical surgery in which certain vertebrae
were fused. (D.E. 1, p. 7). He is partially disabled, experiences chronic pain, and is
restricted to perform sedentary work only. Id. Because of his neck restriction and pain,
plaintiff was provided a medical pass allowing him to wear a front-zipper shirt as
opposed to the regular pull-over prison shirt. Id., p. 6.
On June 29, 2012, plaintiff went to pick-up his legal mail, passing through several
gates and checkpoints, as well as walking past Lieutenant Kelly and Lieutenant Todd
who were stationed in front of 3-Building dining facility, without incident. (D.E. 1, p. 4).
Once at the mail room, plaintiff began talking to other inmates in line; however, he
suddenly noticed Major Gonzales “rush out” of the administrative building and head
toward the mail room. Id., p. 7. Major Gonzales angrily approached plaintiff and
ordered him to tuck his shirt into his pants, stating that, just because plaintiff had won his

2

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996) (stating
that testimony given at a Spears hearing is incorporated into the pleadings).

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quarter-inch beard lawsuit, he was still required to follow all other prison rules.3 Id.
Plaintiff responded that he was wearing the front-zipper shirt for medical reasons. Id.
Major Gonzales walked away “filled with rage…”. Id.
Thereafter, plaintiff observed Major Gonzales talking with Lieutenant Metz and
pointing at plaintiff. (D.E. 1, p. 7). Plaintiff gathered his legal mail and began walking
back to his housing area in 7-Building.

Id., p. 8. As plaintiff entered the Gate 1 area,

Lieutenant Metz ordered plaintiff to tuck in his shirt. Id. Plaintiff briefly tried to explain
his medical condition and that his neurologist had recommended that the shirt be worn
un-tucked. Id.

Lieutenant Metz looked over at Major Gonzales who was standing

nearby, and then asked plaintiff if he had a medical pass to wear the front-zipper shirt untucked. Id.

Plaintiff explained that, although he had numerous medical passes to

accommodate his disability, including the front-zipper shirt, a cervical collar, and a
double cuff/front hand-cuff pass, he did not have a specific pass to wear the front-zipper
shirt un-tucked, but that it had never been a problem until today. Id., pp. 8-9. Lieutenant
Metz stated that he had spoken to Dr. Whitt and that plaintiff’s injuries were a “hoax,”
and he asked plaintiff if he was refusing to obey a direct order to tuck in his shirt. Id., p.
9. Plaintiff responded that Lieutenant Metz had a history of “childish anger issues” and
of assaulting inmates, and refused to tuck in his shirt. Id.
Major Gonzales then told Lieutenant Metz to write plaintiff a disciplinary case for
refusing to follow an order and to escort him to pre-hearing detention (APHD@). (D.E. 1,

3

See Garner v. Morales, Case No. 2:06-cv-218 (in which plaintiff successfully challenged the TDCJ’s no-beard
grooming policy under RLUIPA and was given permission to wear a quarter-inch beard.

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p. 10). Initially, Lieutenant Metz began to handcuff plaintiff with one set of handcuffs,
but Lieutenant Todd intervened and added his handcuffs to make double-cuffs in
compliance with plaintiff=s medical restrictions. Id. However, as Lieutenant Metz was
placing the double-cuffs on plaintiff, he used his body weight to Aslam plaintiff into the
steel fence pole,@ and he twice quickly banged plaintiff=s forehead against the pole while
telling plaintiff not to resist.

Id., p. 10-11.

Thereafter, Lieutenant Metz ordered

Lieutenant Todd to escort plaintiff to medical. Id., p. 11.
At the infirmary, plaintiff complained of a knot on his head and a throbbing
headache. (D.E. 11). Plaintiff was examined by Nurse White-Roell who took his blood
pressure and temperature. Id. Nurse White-Roell examined the knot on plaintiff’s head
but sarcastically told him that it was only a small bump and would not kill him, and she
cleared him for release to pre-hearing detention. Id.
Lieutenant Todd escorted plaintiff to 11-Building for pre-hearing detention. (D.E.
1, p. 12). Plaintiff told Lieutenant Todd that he was feeling nauseated and light headed,
and Lieutenant Todd assisted him to the holding cage where he could sit down. Id. After
about twenty minutes in the holding cage, Sergeant Morales arrived and stated that Major
Castro wanted to know why plaintiff was in lock-up. Id. Plaintiff related that he believed
Major Gonzales was angry about plaintiff’s on-going litigation, and that the disciplinary
case had been fabricated around plaintiff=s un-tucked shirt. Id. Sergeant Morales left to
report to Major Castro, and when she returned, she ordered Officer Garza to release
plaintiff from 11-Building and to vacate the disciplinary case. Id. at 13.

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Plaintiff left 11-Building and went to the infirmary where he told Nurse WhiteRoell that that he was seeing spots and had a headache, and he requested Tylenol. (D.E.
1, p. 13). Nurse White-Roell told plaintiff to submit a sick call request (ASCR@), noting
that he had received a use of force examination earlier and that he did not require
medication. Id. Plaintiff left the infirmary with a headache and feeling dizzy, which
continued throughout the weekend. Id. at 14.
On June 29, 2012, plaintiff filed a Step 1 grievance, Grievance No. 2012189772,
concerning the June 29, 2012 use of force (“UOF”), and it was denied on August 7, 2012.
(D.E. 1, p. 14). Plaintiff filed a Step 2 appeal, and it was denied also. Id.
On July 3, 2012, plaintiff received a notice of a minor disciplinary case, Case No.
20120298255, in which he was charged with refusing to obey an order and creating a
disturbance. (D.E. 1, p. 14). On July 6, 2012, plaintiff spoke to Major Castro who
confirmed his understanding that he was not to receive a disciplinary case regarding the
June 29, 2012 incident, and she indicated that she would have the case terminated prior to
a disciplinary hearing. Id. To date, no disciplinary hearing has been conducted on the
minor disciplinary case.
Plaintiff is seeking compensatory and punitive damages.4

4

Plaintiff also claims to be seeking a preliminary and permanent injunction “ordering prison officials to cease their
physical violence and retaliation toward plaintiff…”. (D.E. 1, p. 18). However, injunctive relief cannot be imposed
against persons or entities not a party to this lawsuit. See F.D.I.C. v. Faulkner, 991 F.2d 262, 267 and n. 7 (5th Cir.
1993) (an injunction is binding only upon the parties to the action and the persons acting in privity with them).

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III.

DISCUSSION.
A.

Legal standard.

Regardless of whether a plaintiff has properly exhausted his administrative
remedies, his action may be dismissed for failure to state a claim upon which relief can
be granted. 42 U.S.C. § 1997e(c)(2). “To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege the violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); see also Biliski
v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995). An action may be dismissed for failure to
state a claim when it is clear that the prisoner can prove no set of facts in support of his
claim entitling him to relief. Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). The
complaint must be liberally construed in favor of the prisoner and the truth of all pleaded
facts must be assumed. Id.
B.

Official capacity claims.

Plaintiff does not state whether he is suing defendants in their official or individual
capacities, and therefore, it is assumed that he is suing them in both.
A suit against a state officer in his or her official capacity is effectively a suit
against that state official’s office. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). The Eleventh Amendment, however, bars claims for money damages against a
state or state agency. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996);
Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
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As

such, an action for monetary damages against a state official in his or her official capacity
is one against the state itself, and is barred by the Eleventh Amendment. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985). Indeed, the Fifth Circuit has extended the Eleventh
Amendment immunity specifically to TDCJ-CID officers and officials acting in their
official capacities. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (Eleventh
Amendment bars prisoner’s suit for money damages against prison officials in their
official capacities).
To the extent plaintiff is suing any defendant in his or her official capacity for
money damages, those claims are barred by the Eleventh Amendment. Accordingly,
plaintiff’s claims for money damages against all defendants in their official capacities are
dismissed with prejudice as barred by the Eleventh Amendment.
C.

Excessive force.

Plaintiff claims that Lieutenant Metz used excessive force against him when he
applied the handcuffs because he purposely pushed plaintiff into a metal pole and twice
struck plaintiff’s head against the pole. Plaintiff claims that he was dizzy, nauseated and
had a headache after the use of force, that the headache lasted the entire weekend, and
that he is now more prone to headaches.

Plaintiff contends that Major Gonzales

effectively participated in the use of force by “encouraging” Lieutenant Metz.
Inmates have a constitutional right to be free from the use of excessive force. See
Anthony v. Martinez, 185 Fed. Appx. 360, 363 (5th Cir. 2006). To state an excessive
force claim, a plaintiff must show that the force was not applied in a good-faith effort to

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maintain or restore discipline, but was applied maliciously and sadistically to cause harm,
and that the injury he suffered was more than de minimis but not necessarily significant.
See Hudson v. McMillian, 503 U.S. 1, 6-7, 10, (1992).

Thus, a prison official’s

“excessive physical force against a prisoner may constitute cruel and unusual punishment
when the inmate does not suffer serious injury.” Id. at 4; see also Wilkins v. Gaddy, 559
U.S. 34, 38 (2010) (reversing district court’s dismissal of prisoner’s excessive force claim
based entirely on its determination that his injuries were “de minimis,” reasoning that it
was “at odds with Hudson’s direction to decide excessive force claims based on the
nature of the force rather than the extent of the injury.”). Additional relevant objective
factors in the inquiry of the application of excessive force include (1) the extent of the
injury suffered; (2) the need for application of force; (3) the relationship between that
need and the amount of force used; (4) the threat reasonably perceived by the responsible
officials; and (5) any effort made to temper the severity of a forceful response. Gomez v.
Chandler, 163 F.3d 921, 923-24 (5th Cir. 1999).
Although a de minimis injury is not cognizable, the extent of the injury necessary
to satisfy the injury requirement “is directly related to the amount of force that is
constitutionally permissible under the circumstances.” Ikerd v. Blair, 1010 F.3d 430,
434-35 (5th Cir. 1996) (citations omitted); see also Flores v. City of Palacios, 381 F.3d
391, 399 (5th Cir. 2004) (noting that the minimum qualifying injury “changes with the
facts of each case”); Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999) (“What
constitutes an injury in an excessive force claim is ... subjective -- it is defined entirely by
the context in which the injury arises.”).
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Here, plaintiff claims that Lieutenant Metz slammed him against a pole and twice
struck his forehead upon the pole while placing him in restraints, despite the fact that
plaintiff offered no attempt to resist the application of handcuffs. Plaintiff’s testimony
also suggests that Lieutenant Metz was agitated and acting out of anger. Taking
plaintiff’s allegations as true, plaintiff has stated a claim of excessive force against
Lieutenant Metz as there is no evidence that any force was necessary to escort plaintiff to
pre-hearing detention based on the charge of refusing to tuck in his shirt. Therefore,
plaintiff’s excessive force claim against Lieutenant Metz is retained, and service shall be
ordered on Lieutenant Metz in his individual capacity.
Plaintiff claims that Major Gonzales participated in the excessive force because he
witnessed Lieutenant Metz’s conduct and did not correct it, thereby encouraging it.
However, to state a cognizable constitutional violation, a plaintiff must allege facts that
demonstrate the official was personally involved in the constitutional deprivation.
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). Plaintiff does not suggest that
Major Gonzales participated in the use of force, but offers only his conclusory opinion
that he “encouraged” the force by not stopping it. The fact that Major Gonzales was a
bystander does not equate with personal involvement.
Moreover, to the extent plaintiff is attempting to allege that Major Gonzales failed
to protect him from Lieutenant Metz’s use of force, he fails to state a constitutional
violation. A prison official is deliberately indifferent to an inmate’s safety only if the
official knows that the inmate faces a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825,
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832 (1994). Plaintiff does not allege any facts to suggest that Major Gonzales knew, or
should have known, that Lieutenant Metz would use excessive force when placing
plaintiff in restraints. Plaintiff fails to state an Eighth Amendment claim against Major
Gonzales.
D.

Retaliation.

Plaintiff claims that Lieutenant Metz and Major Gonzales harassed him about his
un-tucked shirt and fabricated the disciplinary case against him in retaliation for his filing
lawsuits.
Retaliation is not expressly referred to in the Constitution; however, it is
nonetheless actionable because retaliatory actions may tend to chill an individual’s
exercise of constitutional rights. See Perry v. Sinderman, 408 U.S. 593, 597 (1972).
Retaliation is actionable only if the retaliatory act “is capable of deterring a person of
ordinary firmness from further exercising his constitutional rights.” Bibbs v. Early, 541
F.3d 267, 270 (5th Cir. 2008). It is well-settled that a prison official may not retaliate
against or harass an inmate for exercising the right of access to the courts, or for
complaining to a supervisor about a guard’s misconduct. Woods v. Smith, 60 F.3d 1161,
1164 (5th Cir. 1995). However, the Fifth Circuit has emphasized that “prisoners’ claims
of retaliation are regarded with skepticism and are carefully scrutinized by the courts.”
Adeleke v. Fleckenstein, 385 Fed. Appx. 386, *1 (5th Cir. Jul. 12, 2010) (unpublished),
citing Wood, 60 F.3d at 1166.

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To state a valid § 1983 claim for retaliation, “a prisoner must allege (1) a specific
constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or
her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Jones v.
Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999) (citing McDonald v. Stewart, 132 F.3d
225, 231 (5th Cir. 1998). An inmate must allege more than his personal belief that he is
the victim of retaliation. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)
(citation omitted).

Mere conclusory allegations of retaliation will not withstand a

summary judgment challenge. Woods, 60 F.3d at 1166.
Plaintiff suggests that Major Gonzales was angry about plaintiff’s pending and
previous lawsuits and specifically referenced plaintiff’s success in an earlier action
challenging the TDCJ grooming policy.

However, the fact that Major Gonzales

referenced plaintiff’s successful lawsuit or that he was aware of plaintiff’s litigation
activity does not establish that Major Gonzales was motivated by retaliation when he
confronted plaintiff about his shirt being un-tucked. Indeed, plaintiff admits that his
front-zipper shirt was not tucked in, and he also admits that his medical pass did not
excuse him from the TDCJ requirement that prisoners wear their shirts tucked into their
pants. Thus, plaintiff cannot establish that, but for a retaliatory motive, Major Gonzales
would not have confronted him about the shirt.
Similarly, plaintiff related that Lieutenant Metz effectively ignored him when he
first passed by to get his mail, and it was only after the encounter with Major Gonzales
that Lieutenant Metz became involved and, upon Major Gonzales’ order, placed plaintiff
in restraints to be taken to pre-hearing detention. There is no evidence to suggest that
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Lieutenant Metz’ actions were motivated by retaliation, but to the contrary, that he was
simply following the instructions of Major Gonzales. Indeed, there is no chronology of
events from which retaliation can be inferred. Thus, plaintiff’s retaliation claims against
Major Gonzales and Lieutenant Metz are dismissed with prejudice for failure to state a
claim.
E.

Denial of medical treatment.

Plaintiff claims that Nurse White-Roell was deliberately indifferent to his serious
medical needs following the use of force, alleging that she performed only a cursory
examination and refused to give him pain medication.
In order to state a § 1983 claim for denial of adequate medical treatment, a
prisoner must allege the defendant acted with deliberate indifference to his serious
medical needs. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Estelle v. Gamble, 429 U.S.
97, 105 (1976); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). To act with
deliberate indifference, a defendant must be aware of the plaintiff’s serious medical need
or aware of specific facts from which an inference could be drawn that a serious medical
need exists, and perceiving the risk, must deliberately fail to act. Farmer, 511 U.S. at
837. Negligent medical care does not constitute a valid § 1983 claim. Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). See also Graves v. Hampton, 1 F.3d 315,
319 (5th Cir. 1993) (“[i]t is well established that negligent or erroneous medical treatment
or judgment does not provide a basis for a § 1983 claim”). If a prison medical employee
exercises professional medical judgment, his behavior will not violate a prisoner’s
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constitutional rights. Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982). Finally, active
treatment of a prisoner’s serious medical condition does not constitute deliberate
indifference, even if treatment is negligently administered. See Stewart v. Murphy, 174
F.3d 530, 534 (5th Cir. 1999); Mendoza, 989 F.2d at 195; Varnado, 920 F.2d at 321.
“Deliberate indifference is an “extremely high standard to meet.” Domino v. Texas Dep’t
of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
Taking plaintiff’s allegations as true, his claims are no more than a mere
disagreement with the medical treatment provided by Nurse White-Roell. Plaintiff does
not claim that she refused to treat him, and indeed, he admits that she conducted an
examination that included taking his blood pressure and temperature. Nurse White-Roell
examined plaintiff’s head and characterized his injury as a “small bump.” She did not
provide him with pain medication, and found him stable enough to be released to prehearing detention.
Plaintiff does not claim that he was bleeding or could not ambulate. He was able
to walk on his own to pre-hearing detention, and walk back to the infirmary after his
release. Nurse White-Roell instructed him to file a sick call request for further treatment,
and plaintiff understood this instruction. Thus, Nurse White-Roell assessed plaintiff’s
medical condition and found no serious medical need, and there is no evidence that she
denied plaintiff appropriate treatment or ignored a serious medical need. Thus, plaintiff’s
claim of deliberate indifference against this defendant is dismissed with prejudice for
failure to state a claim.

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IV.

Conclusion.
For the reasons stated above, plaintiff’s excessive force claim against Lieutenant

Metz is retained and service shall be ordered on this defendant in his individual capacity.
Plaintiff’s remaining claims are dismissed with prejudice for failure to state a claim upon
which relief can be granted and/or as frivolous pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A(b)(1).
ORDERED this 17th day of December, 2013.

___________________________________
Jason B. Libby
United States Magistrate Judge

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