Garrett v. Davis et al
ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS denying re: 12 Garrett's MOTION for Judgment, adopting 19 Memorandum and Recommendations; and Granting 8 Defendant's MOTION to Dismiss PURSUANT TO 28 U.S.C. § 1915(g), and adopting 11 Memorandum and Recommendations (Signed by Judge Hilda G Tagle) Parties notified.(vrios, 2)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
LORIE DAVIS, et al,
July 24, 2017
David J. Bradley, Clerk
CIVIL NO. 2:16-CV-308
Petitioner Michael Garrett (“Garrett”) is in the custody of the Texas
Department of Criminal Justice (TDCJ) and is currently incarcerated at the
McConnell Unit in Beeville, Texas. He filed a civil rights action under 42 U.S.C. §
1983 and an application to proceed in forma pauperis on July 21, 2016, Dkt. Nos. 1,
2, and 3. He alleges that he is in imminent danger and living in inhumane
conditions as a result of flooding in his cell, in violation of the Eighth Amendment’s
prohibition on cruel and unusual punishment. See Dkt. Nos. 1, 2. He seeks
declaratory judgment and an injunction condemning his living quarters until
conditions have improved. Id. Garrett also seeks a motion for entry of default
against TDCJ Defendants Lorie Davis, Oscar Mendoza, and Crystal Rodriguez
(collectively, “Defendants”). See Dkt. Nos. 12, 19.
The Court now has before it Garrett’s complaint, Dkt. Nos. 1, 2; his motion to
proceed in forma pauperis, Dkt. No. 3; Defendants’ motion to dismiss pursuant to 28
U.S.C. § 1915(g), Dkt. No. 8; Garrett’s response to this motion, Dkt. Nos. 8, 9; the
Memorandum and Recommendations (“M&Rs”) of the Magistrate Judge to whom
this case was referred pursuant to 28 U.S.C. § 636(b), addressing Defendants’
motion to dismiss and Garrett’s motion for entry of default, respectively, Dkt. Nos.
11, 19; and Garrett’s objections to the M&R addressing Defendants’ motion to
dismiss, Dkt. No. 16. The Court reviews objected-to portions of a Magistrate Judge’s
proposed findings and recommendations de novo. 28 U.S.C. § 636(b)(1) (“A judge of
the court shall make a de novo determination of those portions of the report or
specified proposed findings and recommendations to which objection is made.”)
Defendants’ Motion to Dismiss
The Magistrate Judge found on August 31, 2016 that Garrett is a three
strikes litigant barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g),
a provision of the Prison Litigation Reform Act (PLRA). Dkt. No. 11 at 2. All
prisoner civil rights actions are subject to the PLRA and its three strikes rule,
which “provides that a prisoner who has had, while incarcerated, three or more
actions or appeals dismissed as frivolous, malicious, or for failure to state a claim
upon which relief can be granted, is prohibited from bringing any more actions or
appeals in forma pauperis.” Dkt. No. 11 at 3; 28 U.S.C. § 1915(g). This rule contains
an exception, however, allowing prisoners under “imminent danger of physical harm
to proceed without prepayment of the filing fee.” Dkt. No. 6. As Garrett’s complaint
pleads this exception, the Magistrate Judge allowed this case to proceed without the
filing of this fee, despite Garrett’s status as a three strikes litigant.1 Id.
The Magistrate Judge recommends that the Court grant Defendants’ motion
to dismiss Garrett’s claims pursuant to § 1915(g), on the basis that Garrett is not in
imminent danger of physical harm. Dkt. No. 11. The substance of Garrett’s Eighth
Amendment claim alleges that he slipped and fell on accumulated rainwater in his
cell on May 31, 2016, and that continued leaks and flooding at the McConnell Unit
create an ongoing risk of physical harm to Garrett. See Dkt. Nos. 1, 2, 9, 10, and 16.
In their motion to dismiss, Defendants respond that “TDCJ makes every effort to
address and fix repair issues, such as water leaks into cells”; that the specific repair
issues Garrett complains of have been addressed pursuant to the grievance
investigation he initiated at the McConnell Unit; and that in any case, Garrett has
been moved to a new building and cell at the McConnell Unit, which no evidence or
Garrett also argues he should not be considered a three strikes litigant, on the basis that his three
previous civil rights law suits were filed before the PLRA was enacted. See Dkt. No. 9. The Court will
not disturb the Magistrate Judge’s finding on this issue, however, as the Fifth Circuit established
almost a decade ago that § 1915(g) applies to cases filed prior to the enactment of the PLRA. See Dkt.
No. 11 at 4 (citing Patton v. Jefferson Correctional Center, 136 F.3d 458, 462 (5th Cir. 1998)).
grievance suggests has a flooding issue. See Dkt. No. 8. Garrett replies that his new
housing assignment has not eliminated the risk his cell will flood, on the basis that
all buildings at the McConnell Unit create the risk of “leaking water throughout the
living quarters or cells.” Dkt. No. 9 at 2. On consideration of these pleadings, the
Magistrate Judge notes that Garrett “does not assert that his cell has been flooded
with rainwater since he moved,” and recommends that “[t]he fact that [Garrett’s]
new living quarters might flood the next time it rains does not rise to the level of
real and proximate danger” required for his complaint to satisfy the “imminent
danger” exception to § 1915(g). Dkt. No. 11 at 5.
The Court agrees. Garrett’s objections to the M&R addressing Defendants’
motion to dismiss claim that the Magistrate Judge has erred for two reasons. First,
Garrett alleges that the Magistrate Judge failed to assess his claims under the
correct legal standard, an allegation this Court dismisses out of hand on review of
Garrett’s objections and the relevant law. Second, Garrett alleges that “he is still
under imminent danger of serious physical injury” as a result of rainwater leaks,
and attaches the affidavits of two other individuals incarcerated at the McConnell
Unit, Mark Kearney and Kenneth Scott, to substantiate his claim. Dkt. No. 16 at 1.
Only Scott, however, lives in the same building that Garrett now resides in. See
Dkt. No. 16-2, Aff. of Scott. While Scott does allege that rainwater leaks into his
living quarters, he does not suggest that he has personal knowledge of any leaks
into Garrett’s cell, nor that he has filed a grievance with the TDCJ regarding his
allegation. Id. Accordingly, the Court finds that Scott’s affidavit does not
corroborate Garrett’s claim that he remains in imminent danger of serious physical
For the foregoing reasons, Garrett’s objections to the M&R addressing
Defendants’ motion to dismiss pursuant to § 1915(g) are OVERRULED.
Defendants have demonstrated that Garrett’s grievance regarding leaks in his former cell resulted
in related repairs, and ultimately, Garrett’s relocation to a new cell. Dkt. No. 8 at 2. Absent evidence
suggesting that the conditions in Garrett’s new cell, in particular, pose an imminent risk that the
TDCJ has failed to redress, the Court finds that Garrett has not met his burden to show he is at risk
of “real and proximate” danger. See Dkt. No. 11 at 5; see also, e.g., Clay v. Ambriz, 2012 WL 1309137
at *2 (S.D. Tex. Feb. 27, 2012) (“Courts have determined that in order to meet the imminent danger
requirement of § 1915(g), the threat must be ‘real and proximate.’”) (citation omitted).
Garrett’s Motion for Entry of Default
The Magistrate Judge construes Garrett’s “Motion for Judgment,” filed on
January 5, 2017, Dkt. No. 12, as a motion requesting entry of default against
Defendants. See Dkt. No. 19. The M&R addressing this motion recommends that
the Court deny Garrett’s motion, as Defendants are not in default. The deadline to
file objections to this M&R has passed, and the docket sheet shows that no
objections have been filed. See 28 U.S.C. § 636(b)(1) (setting 14-day deadline to file
objections); Fed. R. Civ. P. 72(b)(2) (same); see also M&R at 2 (advising parties of
Having independently reviewed the record and considered the applicable law,
having reviewed the findings of fact, conclusions of law, and recommendations
proposed by the Magistrate Judge’s M&Rs as well as Garrett’s objections, and
having made a de novo disposition of the portions of the M&R addressing
Defendants’ motion to dismiss to which Garrett specifically directed objections, the
ADOPTS the M&R addressing Defendants’ motion to dismiss, Dkt. No. 11,
and GRANTS Defendants’ Motion to Dismiss, Dkt. No. 8; and
ADOPTS the M&R addressing Garrett’s motion for judgment, Dkt. No. 19,
and DENIES Garrett’s Motion for Judgment, Dkt. No. 12.
The Clerk shall close this case following entry of the accompanying judgment.
SIGNED this 24th day of July, 2017.
Senior United States District Judge
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