Carter v. McConnell Unit et al

Filing 28

ORDER OF DISMISSAL (Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
VAN CARTER,
Plaintiff,
VS.
MCCONNELL UNIT, et al,
Defendants.

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CIVIL ACTION NO. 2:14-CV-469

ORDER OF DISMISSAL
This case was filed by Van Carter, a Texas inmate appearing pro se, who alleges
civil rights claims 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 claims against the named Defendants are
DISMISSED with prejudice for failure to state cognizable § 1983 claims and/or as
frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).

In addition,

Plaintiff’s claims of excessive force against the three John Doe officers identified at the
January 26, 2015 evidentiary hearing are DISMISSED with prejudice for failure to state
a claim.
I.

JURISDICTION.
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. Upon

consent of the Plaintiff (D.E. 19), this case was referred to the undersigned United States
magistrate judge to conduct all further proceedings, including entry of final judgment.
(D.E. 9). See 28 U.S.C. § 636(c).
II.

PROCEDURAL BACKGROUND AND PLAINTIFF’S ALEGATIONS.
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 is serving a 25-year sentence entered on November 4, 1996, for
aggravated robbery in Dallas County, Texas.
Plaintiff filed the instant lawsuit on November 28, 2014, alleging that the
following McConnell Unit officials and officers were failing to protect him from threats
and assaults made by other offenders, as well as prison staff: (1) Warden Gary L. Currie;
(2) Assistant Warden Kenneth Putnam, Jr; (3) Assistant Warden Ramirez; (4) Major
Michael Brooks; (5) Captain Joe Gonzales; and (6) Major James A. McKee. (D.E. 1, p.
3).
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A Spears1 hearing was held on January 26, 2015, following which, Plaintiff was
given additional time to file a Memorandum of Law (D.E. 22), and four additional
documents, including his affidavit, in support of his claims. (D.E. 20, 24, 25, 26). The
following allegations were made in Plaintiff’s original complaint (D.E. 1), at the
evidentiary hearing, or in his subsequent pleadings:
(1)

Previous lawsuit.

On August 14, 2014, another inmate filed a lawsuit on behalf of Plaintiff alleging
that Plaintiff was the frequent victim of physical assaults by other inmates and prison
staff as a result of his being physically and mentally disabled in Case No 2:14-cv-347,
styled Carter v. McConnell Unit.2

(Case No. 2:14-cv-347, D.E. 1).

Prior to an

evidentiary hearing being conducted, Plaintiff moved to voluntarily dismiss that lawsuit
(D.E. 21), and on October 31, 2014, the Court granted Plaintiff’s motion for voluntary
dismissal and dismissed without prejudiced Case No. 2:14-cv-347. (Case No. 2:14-cv347, D.E. 22, 23). Plaintiff appealed his voluntary dismissal (Case No. 2:14-cv-347, D.E.
27), and on March 20, 2015, the Fifth Circuit dismissed Plaintiff’s appeal for want of
prosecution. (Case No. 2:14-cv-347, D.E. 37).

1

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).
2

The offender who drafted Case No. 2:14-cv-347 noted that Plaintiff is 51-years old and suffers from a severe heart
condition, seizures, arthritis throughout the joints on his body, Post-Traumatic Stress Disorder (PTSD), and an IQ of
68 which puts him “below learning disabilities” and prevents him from accessing the prison grievance system
because he cannot complete the forms. As a consequence of having these disorders, Plaintiff is singled out to be the
victim of assaults by other inmates, as well as by prison staff.

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(2)

Instant lawsuit.

Plaintiff claims that from 2011 through 2014, Defendants have failed to protect
him from the constant threats and assaults made against him by other offenders and
prison staff. However, he testified that, since 2006, he has been housed in administrative
segregation, which is among the most restricted and secure housing assignments
available.
In February 2013, an inmate attempted to shoot a homemade spear3 at Plaintiff as
he was being escorted to recreation. Plaintiff claims that Warden Ramirez let the inmate
out of his cell at the same time Plaintiff was being escorted in order to allow the inmate to
assault Plaintiff. Plaintiff believes that Warden Ramirez, Warden Currie and Warden
Putnam all knew about the planned attacked, but did nothing to prevent it, “probably” in
retaliation for Plaintiff filing grievances in the past against them and other officials.
Plaintiff was given a tetanus shot and he did not suffer an infection or other injury as a
consequence of the spear shooting.
In April 2014, Plaintiff alleges two unknown prison guards tried to assault him
while in a secluded area. (D.E. 1, p. 5). He told Sergeant Fernandez, the Chaplain, and
state classification authorities, but nothing was done. However, Plaintiff admitted at the
evidentiary hearing that, except for the bruise he sustained following the February 2013
spear incident, he has never sustained any physical injury from any attempted assaults.
He has suffered no broken bones, no cuts or abrasions, or any other physical injury that
needed medical attention. He claims that the constant threats of physical harm have
3

A “spear” in the context of prison contraband is a small homemade dart.

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caused him mental stress and anguish, and that he does not feel safe. He testified that he
is seeking only an injunction to stop the “attacks” on him. He wants to be able to handle
his legal matters without being assaulted. He testified that he was told that, if he did not
stop filing lawsuits, he would be sent to a mental hospital.
(3)

Preliminary Injunction.

On December 17, 2014, Plaintiff filed a motion for a preliminary injunction. (D.E.
5).

Plaintiff claims that he is entitled to injunctive relief based on the fact that

Defendants have denied his grievances, and in support thereof, he offers copies of those
grievances.
Grievance No. 2014201359 was filed by Plaintiff on August 13, 2014. (D.E. 5,
18-19). On this grievance Plaintiff has written “Emergency Grievance!” and “Prison
staff/willful conduct/ life endangerment.”

He alleges that he will be assaulted or

murdered by prison guards or offenders, that his mail is being tampered with, and that
urine and feces were shot into his cell because he has been targeted as a child molester,
homosexual, or dyke female.

On September 26, 2014, Warden Putnam denied the

grievance on the grounds that an investigation revealed no evidence to substantiate
Plaintiff’s claims. (D.E. 5, p. 19). Plaintiff’s Step 2 appeal was denied. (D.E. 5, pp. 2021).
Grievance No 2014201370 was also filed on August 13, 2014, and also states that
it is an “Emergency.” (D.E. 5, pp. 16-17). Plaintiff complains that Officer Ramos
sexually harassed him by using abusive and sexual language in response to Plaintiff’s
complaint about being in administrative segregation. On September 26, 2014, Warden
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Putnam denied the grievance. (D.E. 5, p. 17). Plaintiff’s Step 2 appeal was denied.
(D.E. 5, pp. 14, 15).
On August 19, 2014, Plaintiff filed Grievance No. 2014204408. (D.E. 5, pp. 1213). Plaintiff alleged that Sergeant Ramirez had sexually harassed him on July 13, 2014
and that he had told Sergeant Mayer with the Safe Prisons Program (“SPP”), but that his
claim was not adequately reviewed. (D.E. 5, pp. 8-9). On October 13, 2014, Warden
Putnam denied the grievance noting that at a Unit Classification Committee (“UCC”)
held on September 11, 2014 Plaintiff was “upgraded to 1A custody” and no further action
was necessary. (D.E. 5, p. 9). Plaintiff’s Step 2 appeal was rejected as the grievable time
period had expired. (D.E. 5, pp. 6-7).
On September 14, 2014, Plaintiff filed Grievance No. 2015009664, alleging that
since 2011, various prison officials, including the Defendants, had violated his
constitutional rights by intentionally inflicting cruel and unusual punishment; inflicting
emotional distress; no due process; discrimination under the ADA; aiding and abetting to
commit criminal acts which violate the safe prisons program, convincing [others]
Plaintiff is a homosexual, child molester, dyke female dying with AIDS, or snitch;
exposed to violent threats by prison guards and staff that threaten to assault and rape him.
(D.E. 5, pp. 12-13). On October 14, 2014, Warden Putnam denied the grievance finding
there was no evidence that officers put plaintiff’s life in danger or that TDCJ policy had
been violated. (D.E. 5, p. 13). Plaintiff’s Step 2 appeal was denied as the grievable time
period had expired. (D.E. 5, pp. 10-11).

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III.

LEGAL STANDARD.
Section 1983 provides a vehicle for redressing the violation of federal law by

those acting under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To
prevail on a § 1983 claim, the plaintiff must prove that a person acting under the color of
state law deprived him of a right secured by the Constitution or laws of the United States.
42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A defendant acts under color
of state law if he misuses or abuses official power and if there is a nexus between the
victim, the improper conduct, and the defendant’s performance of official duties.
Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).
“Personal involvement is an essential element of a civil rights cause of action.”
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).

There is no vicarious or

respondeat superior liability of supervisors under section 1983. Thompkins v. Belt, 828
F.2d 298, 303-04 (5th Cir. 1987). See also Carnaby v. City of Houston, 636 F.3d 183,
189 (5th Cir. 2011) (the acts of subordinates do not trigger individual § 1983 liability for
supervisory officials). For a supervisor to be liable under § 1983, the plaintiff must show
that (1) the supervisor failed to supervise or train the subordinate official; (2) a causal
link exists between the failure to train or supervise and the constitutional violation; and
(3) the failure to train or supervise amounts to deliberate indifference to the plaintiff’s
constitutional rights. Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).
Establishing a supervisor’s deliberate indifference generally requires a plaintiff to
demonstrate “at least a pattern of similar violations.” Rios v. City of Del Rio, Tex., 444
F.3d 417, 427 (5th Cir. 2006) (citations omitted).
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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). 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.
IV.

DISCUSISSION.
A.

Statute of limitations.

Plaintiff claims that he is suing Defendants for actions beginning in 2011. He
filed his lawsuit on November 28, 2014.
Federal civil rights actions instituted in Texas, such as those brought pursuant to
42 U.S.C. § 1983, are deemed analogous to personal injury claims, and, therefore, the
applicable limitations period is the two years fixed by Tex. Civ. Prac. & Rem. Code §
16.003(a). Accrual of a § 1983 claim is governed by federal law. A cause of action
accrues when the plaintiff knows or has reason to know of the injury which is the basis of
the action. Gonzales v. Wyatt, 157 F.3d 1016, 1020 (5th Cir.1998). The district court
may raise the defense of limitations sua sponte, and dismissal is appropriate if it is clear
from the face of the complaint that the claims asserted are barred by the applicable statute
of limitations. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
In this case, Plaintiff alleges that Defendants have failed to protect him and/or
conspired to violate his constitutional rights since 2011. However, he did not file his
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original complaint until November 28, 2014, and therefore, any claims arising before
November 28, 2012, are barred by limitations. Accordingly, Plaintiff’s claims against
Defendants arising before November 28, 2012 are DISMISSED with prejudice as time
barred.
B.

Claims against named Defendants.

Plaintiff has sued Defendants in their official and individual capacities.
(1)

Eleventh Amendment bars claims against Defendants in official
capacities for monetary damages.

The Eleventh Amendment bars claims against a state brought pursuant to 42
U.S.C. § 1983 for money damages. Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d
1052, 1054 (5th Cir. 1998). Section 1983 does not waive the state’s sovereign immunity,
see Quern v. Jordan, 440 U.S. 332, 338 n. 7 (1979), and Texas has not consented to this
suit. See Emory v. Texas State Bd. of Med. Exam’rs, 748 F.2d 1023, 1025 (5th Cir.
1984).
To the extent Plaintiff is suing any named Defendant for compensatory and/or
punitive damages in his official capacity, those claims are barred because claims against
state officials in their official capacities are essentially claims against the State itself.
Mairena v. Foti, 816 F.2d 1061, 1064 (5th Cir. 1987) (for purposes of § 1983 liability, a
claim against a public official in his or her official capacity is in effect a suit against the
state or local government he or she represents). Of course, the Eleventh Amendment
does not prohibit claims for prospective injunctive relief against the State or individuals
in their official capacities. Ex parte Young, 209 U.S. 123 (1908). Thus, to the extent
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Plaintiff has sued Defendants in their official capacities for injunctive relief, those claims
are not barred by the Eleventh Amendment.

However, Plaintiff must still meet §

1915A’s screening threshold of establishing facts that, if true, state a constitutional
violation, in order to pursue his claims for injunctive relief.
(2)

Failure to protect.

Plaintiff claims that Defendants failed to protect him from the February 2013 spear
attack and also from numerous daily threats that he receives from other offenders as well
as prison staff.
Prison officials have a duty to protect prisoners from violence at the hand of other
prisoners. Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002) (citing Farmer v. Brennan,
511 U.S. 825, 832 (1994)). A prison official is deliberately indifferent to the inmate’s
safety 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. Cantu, 293 F.3d at
844 (citing Farmer, 511 at 847). Deliberate indifference describes a state of mind “more
blameworthy than negligence”; there must be “more than ordinary lack of due care for
the prisoner=s interests or safety.” Farmer, 511 U.S. at 835.
Here, Plaintiff complains that other offenders and prison staff have wrongfully
characterized him as a child molester, snitch, and homosexual, and as a consequence
thereof, he is the victim of repeated threats of assaults and actual assaults. First, to the
extent Plaintiff is attempting to hold any Defendant liable for failing to investigate his
grievances properly, he fails to state a cognizable claim. A prisoner has no constitutional

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right to have his grievances investigated or answered favorably. See Geiger v. Jowers,
404 F.3d 371, 374 (5th Cir. 2005).
As to his failure to protect claims, Plaintiff fails to establish that any named
Defendant knew or should have known in February 2013 that another inmate might throw
a spear at him. He does not claim that he had filed life in danger claim beforehand to
alert Defendants, and he offers no grievance to suggest that he did so, despite his prolific
grievance record.

In addition, he admits that he was housed in administrative

segregation, the most secure housing available on the McConnell Unit, and that he was
being escorted by an officer at the time. He had not been left alone with another prisoner
allowed unfettered access to him, nor had there been a breach in prison operations. It was
an unfortunate event, but Plaintiff was immediately taken to medical, given a tetanus
shot, and he suffered no further injury other than a bruise.
Plaintiff claims that Major Brooks “kept files” on his situation. This allegation
fails to state a constitutional violation, and to the contrary, indicates that the TDCJ is
monitoring Plaintiff’s complaints and allegations of his life being in danger, as is evident
by the grievances offered by Plaintiff. Plaintiff’s grievances reflect that each time he
filed a life in danger claim an investigation was opened and a UCC conducted. Plaintiff
did not request a unit transfer nor did he request a transfer out of administrative
segregation, only that the threats and attacks be stopped.

However, except for the

February 2013 spear attack, there is no record of Plaintiff being assaulted, physically or
sexually as alleged, nor has he been injured in any manner requiring medical attention.

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Plaintiff complains that he suffers stress which causes him physical discomfort.
This allegation is too tenuous to establish deliberate indifference. See e.g. Scott v.
Goodwin, 2010 WL 2926222, *3 (W.D. La. Jun. 29, 2010) (inmate’s fears of being
transferred with unshackled prisoners failed to state a cognizable failure to protect claim).
Furthermore, Plaintiff’s allegations fail to demonstrate that he has sustained any physical
injury as a result of the alleged failure to protect. Under the PLRA, “no Federal civil
action may be brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody without a prior showing
of physical injury.” 42 U.S.C. § 1997e(e). Although Plaintiff complains of stress from
the comments made by other inmates and staff, he is also 51 years old and in prison, a
stressful situation in-and-of itself, and suffers from PTSD. Plaintiff fails to establish that
any named Defendant knew of a serious risk to Plaintiff’s health or safety and then
ignored that risk, in violation of the Eighth Amendment. Thus, Plaintiff’s claims against
Defendants are DISMISSED for failure to state a claim and as frivolous.
C.

John Doe officers.

At the conclusion of the Spears hearing, Plaintiff alleged that, in the last six
months, he had been assaulted by three John Doe officers whose name tags were either
false or unreadable. Plaintiff was given additional time to brief his claims against these
individuals.
On January 28, 2015, Plaintiff filed a “Memorandum of Law,” that appears to set
forth verbatim sections of the Texas Rules of Civil Procedure (TRCP) regarding Ҥ 3

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Notice of Intent to Dismiss, “§ 3.2 Notice under TRCP 165a,” “§ 4 Hearing,” “§ 4.1 Bar
to Suit,” “4.2 Sanctions,” and “4.3 Dismissal under TRCP 165a.” (D.E. 22).
On March 4, 2015, Plaintiff filed his affidavit in support of motion for counsel as
well as other pleadings. (D.E. 24).
On March 16, 2015, Plaintiff filed a 21-page pleading (D.E. 25, 26), stating that he
is a 51-year old Black disabled prisoner, housed in administrative segregation at the
McConnell Unit, and that Defendants have engaged in a conspiracy to oppress, injure,
and intimidate Plaintiff by violence in violation of the First, Fourth, Eighth, and
Fourteenth Amendments. (D.E. 25, p. 1). He claims that he is tortured mentally 24 hours
a day. He lists his ailments and a litany of transgressions: intentional infliction of
emotion distress; intimidation by fear of violence by continually placing Plaintiff in
imminent danger; imminent injuries/irreparable harm by prison guards and inmate
brutalities and harassment, mental torture, and “defamation of character.” (D.E. 25 pp. 12). Plaintiff goes on to cite case law, including Farmer, and to state that he is seeking a
preliminary injunction. (D.E. p. 25 4, 7). He then sets forth the standards for obtaining
injunctive relief. (D.E. 25, p. 8-10—D.E. 26, p. 1-4). Plaintiff’s document concludes
with copies of several Inmate Request to Officials dated January 22, 2015 through
February 28, 2015. (D.E. 26, pp. 5-16), and an unprocessed Step 1 grievance, (D.E. 26,
pp. 19-20). Nowhere in the documents does Plaintiff detail the alleged assault by the
three John Doe officers that allegedly occurred within the six months prior to the January
26, 2015 Spears hearing. Plaintiff fails to allege any facts to support his claim that he
was assaulted by three John Doe officers, let alone offer proof by way of a medical
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record or grievance or detailed statement, though given the opportunity to do so. There is
simply no evidence that Plaintiff was assaulted by three officers. Accordingly, Plaintiff’s
excessive force claims against the three John Doe officers are DISMISSED with
prejudice.
V.

CONCLUSION.
For the reasons stated herein, Plaintiff’s claims against the named Defendants as

well as the three John Doe officers are DISMISSED with prejudice for failure to state a
claim and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
ORDERED this 14th day of April, 2015.

___________________________________
Jason B. Libby
United States Magistrate Judge

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