Martinez v. Nueces County Sheriff's Office/Jail et al
Filing
83
ORDER ADOPTING IN PART and DECLINES TO ADOPT IN PART M&R 1 32 . The Court DECLINES TO ADOPT M&R 2 74 , and DENIES 50 Defendant's motion for summary judgment. The Court DECLINES to find that Martinez's claims are barred by the statute of limitations. The Court RETAINS Plaintiff's Eighth Amendment deliberate indifference claims with regard to (1) bedding supplies, (2) unsanitary conditions (3) insufficient food against Perales and Zapata. The Court substitutes Nueces County i n place of Nueces County Sheriffs Office/Jail as a party defendant in this case. The Court DISMISSES Plaintiff's claims for money damages against certain defendants in their official capacities as barred by the Eleventh Amendment. The Court DISM ISSES Plaintiff's claims for declaratory and injunctive relief against all Defendants because it is moot by Plaintiff's transfer to a TDCJ facility. The Court DISMISSES Plaintiffs remaining claims against all other Defendant's as frivolous and/or for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
FRED G. MARTINEZ,
Plaintiff,
VS.
NUECES COUNTY SHERIFF’S
OFFICE/JAIL, et al,
Defendants.
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January 14, 2020
David J. Bradley, Clerk
CIVIL NO. 2:18-CV-00158
MEMORANDUM AND ORDER
The Court is in receipt of the Magistrate Judge’s November 18, 2018
Memorandum and Recommendation (“M&R 1”) Dkt. No. 32, subjecting Plaintiff’s
claim to screening. The Court is also in receipt of Plaintiff’s objections to M&R 1,
Dkt. Nos. 37, 46, 47, and Defendants’ objections to M&R 1 Dkt. Nos. 37, 48.
The Court is in receipt of the Magistrate Judge’s September 19, 2019
Memorandum and Recommendation (“M&R 2”), Dkt No. 74. The Court is in receipt
of Plaintiff’s Objections to M&R 2, Dkt No. 80.
After independently reviewing the filings, the record, and applicable law, the
Court ADOPTS IN PART and DECLINES TO ADOPT IN PART M&R 1, Dkt
No. 32. The Court DECLINES TO ADOPT M&R 2, Dkt. No. 74.
I.
Background
Fred G. Martinez (“Martinez”) is imprisoned in the state of Texas and he filed
this civil rights action under 42 U.S.C. § 1983. Martinez is pro se and is proceeding
in forma pauperis. Dkt. Nos. 8, 29. Martinez’s claims arise from his confinement at
the Nueces County Jail during two periods: from March 23 to April 11, 2016
(“Period 1”) and from May 23 to May 26, 2016 (“Period 2”). Dkt. No. 28-1.
Among the details of his complaint, Martinez alleges that for the weeks he
was at the Nueces County Jail he was forced to sleep without bedding in an
inadequate holding cell and that he was fed inadequate food, poor-quality bologna
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sandwiches. Id. at 4-5. He alleges he was denied basic sanitary supplies and he was
denied access to the courts. Id. Martinez also alleges he suffered a serious medical
issue that was diagnosed when he left Nueces County Jail and required
reconstructive surgery of his nasal air passage that was performed on April 4, 2018.
Id. at 5.
Martinez also attached two letters to his complaint from the Texas
Commission of Jail Standards (“TCJS”). Dkt. No. 28-3 at 2-4. The letters seemingly
respond to a grievance procedure from Martinez. Id. The first letter, dated January
24, 2017 and written by Inspector Jackie Semmler, informed him “that an area of
concern did exist” at Nueces County Jail and that “Nueces County officials took
immediate action to resolve the issues and a change to procedures was enacted.” Id.
at 2. The second letter, dated February 9, 2017 and written by Assistant Director
Shannon J. Herklotz, informed Martinez that no violation of jail standards had
occurred. Id. at 3-4. It further stated that “This is your final appeal. We will be
taking no further action and have closed this case.” Id. at 3-4 [emphasis in original]
II.
M&R 1
After noting relevant facts, the Magistrate Judge recommended under an
Eighth Amendment analysis that: “Plaintiff’s deliberate indifference claims
regarding Plaintiff’s bedding situation be retained against two defendants in their
individual capacity.” Dkt. 32 at 2. The Magistrate further recommended:
“ (1) Plaintiff’s claims for money damages against certain defendants in their
official capacities be dismissed as barred by the Eleventh Amendment; (2)
Plaintiff’s claims for declaratory and injunctive relief against Defendants be
dismissed as rendered moot by Plaintiff’s transfer to a TDCJ facility; and (3)
Plaintiff’s remaining claims against all Defendants be dismissed as frivolous
and/or for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1).”
Dkt. No. 32 at 2.
Officers Perales and Zapata (“Defendants”) object to the M&R’s retention of
the deliberate indifference claims against them. Dkt. Nos. 37, 48. They argue that
Martinez’s complaint was time barred by Texas’ two-year statute of limitations.
Dkt. No. 37 at 2.
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Martinez responds that: (1) the complaint states facts that are plausible on
their face, (2) the dismissal of TCJS as a party was improper because it is not
immune from suit, (3) officials otherwise immune are not shielded when they violate
federal law, (3a) he can pursue claims against state officials in their individual
capacity, (4) the Sheriff Jim Kaelin (“Kaelin”) should not be dismissed from the case
because he was aware of wrongdoing and was “an active wrongdoer,” (5) a due
process violation occurred implicating a liberty interest because of the jail’s
violation of its 48-hour policy, (6) the poor sanitary conditions were not short term
and caused him harm, (7) eating only bologna sandwiches for weeks was by itself
insufficient nutritional value under the law amounting to excessive punishment and
it caused him harm, (8) his improper confinement led to a shortened period to hire
the right attorney causing him prejudice, (9) dismissing unknown officers is
improper because other officers could be responsible (10) Nueces County officials’
continuous “faulty” conduct should be corrected. Dkt. No. 46.
In addition, Martinez argues that the cause of action accrued later than
defendants claim it accrued, making the statute of limitations defense inapplicable.
Dkt. 47 at 3. Martinez further responds the continuing tort doctrine or other
equitable tolling doctrine under Texas law applies to his claim and that the
grievance investigation process also served to toll the statute of limitations. Id.
III.
Legal Standard
Under the Prison Litigation Reform Act (“PLRA”), 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
28 U.S.C. §§ 1915(e)(2), 1915A. The Court reviews objected-to portions of a
Magistrate Judge’s proposed findings and recommendations de novo. 28 U.S.C. §
636(b)(1). If the objections are frivolous, conclusive or general in nature the court
need not conduct a de novo review. Battle v. United States Parole Comm’n, 834 F.2d
419 (5th Cir. 1987). When proceeding in forma pauperis, a plaintiff’s allegations
must be weighted in the plaintiff’s favor when a court conducts a frivolousness
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review. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The § 1915 frivolousness
determination does not serve as factfinding for disputed facts and a claim should be
dismissed as factually frivolous when irrational or wholly incredible. Id. at 33.
a. Statute of Limitations
The Magistrate Judge did not make a recommendation regarding the statute
of limitations objection raised by the officers in M&R 1. When it is clear that an
action is barred by the statute of limitations those claims are properly dismissed as
frivolous or malicious. Gartell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
i. Time Period
The limitations period for a § 1983 suit is determined by the general statute
of limitations governing personal injury in the forum statute. Price v. City of San
Antonio, 431 F.3d 890, 892 (5th Cir. 2005). The applicable statute provides that the
claims must be brought no later than two years after the cause of action accrues.
Id.; Tex. Civ. Prac. & Rem. Code Ann. § 16.003.
ii. Accrual
Courts determine the accrual date of a § 1983 action under federal law.
Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008). An action accrues under federal
law when the plaintiff can file suit and obtain relief. Id. Put another way, “a cause
of action accrues when the plaintiff knows or has reason to know of the injury which
is the basis of the action.” Gartrell, 981 F.2d at 257. A continual violation can occur
when a plaintiff continues to sustain harm and that claim accrues when the harm
ceases. Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir. 1980); Interamericas
Investments, Ltd. v. Bd. of Governors of the Fed. Reserve Sys., 111 F.3d 376, 382 (5th
Cir. 1997).
Martinez argues that there was one period of continuous acts which
concluded on May 26, 2016. Dkt. No. 47 at 2. However, Martinez’s complaint alleges
two periods of harm. The transfer on April 11, 2016 from the Nueces County Jail
holding cell ended the first claimed period of harm. See Dkt. No. 28-1 at 9. Martinez
alleges he again sustained harm when he was incarcerated in Nueces County Jail
from May 23 until May 26, 2016. Id. Therefore, there appear to be two alleged
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continual violations that accrued on April 11, 2016 and May 26, 2016 respectively,
because each alleged claim accrued when the period of harm ended. See Lavellee,
611 F.2d at 1132.
b. Filing Date
A pro se litigant’s complaint is deemed filed on the day he places it in the
prison mail system. Cooper v. Brookshire, 70 F.3d 377, 380 (5th Cir. 1995).
Martinez’ initial complaint was signed May 5, 2018. Dkt. No. 1 at 4. There are also
handwritten dates on the original complaint as late as May 16, 2018. Dkt. No. 1 at
20. The postage stamp bears the date May 30, 2018. Id. at 26. In M&R 1, the date
the complaint was deposited with prison officials is unclear therefore the date the
action is commenced is also unclear. See Cooper, 70 F.3d at 380.
c. Tolling
When applying a state’s statute of limitations, the federal court should also
apply relevant state tolling provisions. Gartrell v. Gaylor, 981 F.2d at 257 (declining
to apply tolling in a pre-mandatory exhaustion prison case). This includes equitable
tolling, which is sparingly used by Texas and federal courts and typically depends
on whether a plaintiff diligently pursued their rights. Myers v. Nash, 464 F. App'x
348, 349 (5th Cir. 2012). Incarceration is not a legal disability for tolling in Texas.
See Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (West); White v. Cole, 880 S.W.2d
292, 295 (Tex. App. 1994).
Additionally, the PLRA requires that no action shall be brought with respect
to prison conditions under § 1983 by an incarcerated person “until such
administrative remedies as are available are exhausted.” 42 U.S.C.A. § 1997e. The
exhaustion requirement applies to any case seeking remedy for any prison
circumstances or occurrences regardless of whether they involve particular episodes
or general circumstances of incarceration. Porter v. Nussle, 534 U.S. 516, 532
(2002). The exhaustion requirement applies irrespective of what kind of remedy is
sought. Booth v. Churner, 532 U.S. 731, 740 (2001). When a prison conditions suit is
brought by an incarcerated person, the statute of limitations is tolled during the
time that the claimant is exhausting their available administrative remedies.
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Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999) (“[T]his court held that the
Texas statute of limitations was tolled while the plaintiff exhausted his available
state administrative remedies”) (citing Rodriguez v. Holmes, 963 F.2d 799 (5th Cir.
1992)); see Wisniewski v. Fisher, 857 F.3d 152, 158 (3d Cir. 2017) (holding the
district court erred in dismissing § 1983 claims without considering if the plaintiff
properly exhausted administrative remedies and the extent the limitations period
should be tolled).
As noted above, the first accrual date of a claims is April 11, 2016, making
the statute of limitations expire for that claim after April 11, 2018, unless some
form of tolling applies. See Walker, 550 F.3d at 414. Martinez argues that tolling
principles apply to all of his claims. Dkt. No. 47 at 1. Defendants correctly contend
that principles of equitable tolling such as the discovery doctrine or fraudulent
concealment would not apply to this case because the harm was not undiscoverable
nor was it concealed. See Valdez v. Hollenbeck, 465 S.W.3d 217, 229 (Tex. 2015).
The two documents Martinez submitted with his complaint indicate he took
up his claims via an administrative grievance procedure at the prison. Dkt. No. 28-3
at 3. Those documents indicate he exhausted those procedures on February 9, 2017
when he received notice of his “final appeal” and that his case was closed. Id. There
is no evidence in the record of M&R 1 of the date Martinez began this grievance
process. See id. The Court concludes the statute of limitations period should be
tolled for the presently unknown time Martinez’s administrative remedies were
exhausted in the prison. See Harris, 198 F.3d at 158.
When it is clear that an action is barred by the statute of limitations those
claims are properly dismissed as frivolous. Gartell, 981 F.2d at 256. Here, the record
is not clear that Martinez’s claims are barred by the statute of limitations for either
of the alleged claims that accrued on April 11 and May 26, 2016. The Court notes
the extensive objections from the defendants on statute of limitations grounds,
including the argument that the second accrual period would be insufficient to
sustain an Eighth Amendment claim. See Dkt. Nos. 37, 48. Without more, the Court
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concludes the facts alleged are not “clearly baseless” on statute of limitations
grounds. See Gartrell, 981 F.2d at 259.
Accordingly, the Court DECLINES to dismiss the claims for being frivolous on
statute of limitations grounds.
IV.
Additional Objections
Martinez’s objections to M&R 1 can be grouped into several categories (a)
plausible claims, (b) immunity, remedies, proper defendants, (c) violation of the 48hour cell policy, (d) access to the courts, (e) cell conditions. The Court will consider
each of these groups of objections in turn.
a. Plausible Claims
Martinez objects to the proposed dismissal of his claims by arguing he is not
merely reciting labels and stating conclusions and that his claims are not irrational
or wholly incredible. Dkt. No. 46 at 1. Martinez correctly provides the standard of
review for his claims. See Denton, 504 U.S. at 32.
b. Immunity, Remedies, Proper Defendants
Martinez objects the Magistrate Judge’s recommendation to dismiss claims
against the TCJS and its employees. Dkt. No. 46 at 2. Martinez argues those parties
are not immune from suit and the investigation conducted by the body was “faulty
in part.” Id. The Magistrate Judge’s M&R addresses this objection in detail:
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). Plaintiff’s claims seeking monetary relief
against the TCJS, therefore, are barred by the Eleventh Amendment.
Coalwell v. Bexar Adult Detention Center, No. SA-16-CA-506, 2016 WL
4033272, at *2 (W.D. Tex. Jul. 27, 2016). Accordingly, the undersigned
respectfully recommends that Plaintiff’s claims against the TCJS be
dismissed with prejudice.
Furthermore, 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
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capacities. See Oliver, 276 F.3d at 742 (recognizing that the Eleventh
Amendment bars prisoner’s suit for money damages against prison officials
in their official capacities).
To the extent Plaintiff sues TCJS Inspector Benningfield and TCJS
Assistant Director Herklotz in their official capacities for money damages,
those claims are barred by the Eleventh Amendment. Accordingly, it is
respectfully recommended that Plaintiff’s claims for money damages against
these defendants in their official capacities be dismissed with prejudice
Dkt. No. 32 at 8-9.
Plaintiff’s allegations, at best, point to his dissatisfaction with the
investigation into his TCJS complaint and the ultimate decision by
Defendants Benningfield and Herklotz to reject his complaint. When
prisoners file institutional grievances and then challenge through a prisoner
civil action the investigations into and the decisions rendered as to those
grievances, courts generally hold that such challenges fail to state a
cognizable constitutional claim. See Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119, 138 (1977) (Burger, C.J., concurring) (applauding
institution of grievance procedures by prisons but noting that such
procedures are not constitutionally required); Geiger v. Jowers, 404 F.3d 371,
374 (5th Cir. 2005) (prisoners do not have a federally protected liberty
interest in having grievances investigated, let alone resolved in their favor)
Dkt. No 32 at 13-14.
The Court ADOPTS the M&R findings on the immunity of TCJS and
Martinez’s dissatisfaction with the prison investigation.
Martinez requests injunctive or declaratory relief based on his conditions of
confinement. Dkt. No. 46 at 10. He argues the court should intervene to correct bad
jail conduct. Id. The M&R addressed this point:
Plaintiff seeks injunctive and declaratory relief against Defendants
based on his conditions of confinement at the Nueces County Jail. Claims for
declaratory and injunctive relief based on the conditions of confinement,
however, are rendered moot upon prisoner’s release from custody or transfer
to another facility. Smith v. City of Tupelo, Mississippi, 281 F. App’x 279, 282
(5th Cir. 2008) (citing Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001)).
See also Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000) (requests for
injunctive and declaratory relief become moot when inmate is transferred to
another facility). Furthermore, the possibility of Plaintiff’s return to the
Nueces County Jail is much too speculative to warrant relief. Smith, 281 F.
App’x at 282. Because Plaintiff is no longer incarcerated at the Nueces
County Jail, it is respectfully recommended that his claims for declaratory
and injunctive relief against Defendants be dismissed.
Dkt. No. 32 at 7-8.
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The Court ADOPTS the M&R findings regarding declaratory and injunctive
relief.
Martinez also argues that officials are not shielded by immunity when they
violate federal law and that claims can be pursued against officials in their
individual capacity. Dkt. No. 46 at 2-3. Martinez correctly notes that individual
capacity suits are possible under § 1983 actions. See Thompkins v. Belt, 828 F.2d
298, 303 (5th Cir. 1987) (discussing the breadth of individual capacity suits).
Martinez objects to the M&R’s recommendation to dismiss claims against
Kaelin in his individual capacity and in his official capacity as part of a claim
against the county. Dkt. No. 46 at 3. Martinez argues that he believes Kaelin likely
frequented the basement where his cell was located and should have been aware of
the activities alleged and consequently Kaelin was an active wrongdoer and moving
force behind the violations. Id. Both arguments are based on speculation. See id.
The Magistrate Judge’s M&R also addresses these issues:
Plaintiff sues Sheriff Kaelin in his supervisory role. “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). Supervisory
officials may be held liable only if: (1) they affirmatively participate in acts
that cause constitutional deprivation; or (2) a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional
deprivation. Evett v. Deep East Tex. Narcotics Trafficking Task Force, 330
F.3d 681, 689 (5th Cir. 2003) (citing Thompkins, 828 F.2d at 304).
Plaintiff alleges that Sheriff Kaelin “is legally responsible for the
overall operations of the Nueces County Jail.” (D.E. 28-1, p. 2). He fails,
however, to allege any facts to suggest that Sheriff Kaelin participated in any
acts causing constitutional violations or that a causal connection exists
between Sheriff Kaelin’s conduct and the alleged constitutional deprivations.
Accordingly, it is respectfully recommended that Plaintiff’s claims against
Sheriff Kaelin in his supervisory role be dismissed as frivolous and/or for
failure to state a claim for relief.
Dkt. No. 32 at 12.
In order to state that Nueces County is liable for any constitutional
violations based on Plaintiff’s allegations, Plaintiff must state that any
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constitutional deprivations were caused by (1) an official policy or custom; (2)
promulgated by the municipal policy-maker; (3) that was the moving force
behind the violation of his constitutional rights. Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t of Social Services of
the City of New York, 436 U.S. 658, 694 (1978)). Municipal liability cannot be
established on the basis of respondeat superior. Monell, 436 U.S. at 694. A
municipality is almost never liable for an isolated unconstitutional act on the
part of an employee; it is liable only for acts directly attributable to it
“through some official action or imprimatur.” Piotrowski, 237 F.3d at 578.
Dkt. No. 32 at 10.
Plaintiff has alleged no facts in this case suggesting that Nueces
County had either an official policy or a wide-spread practice that compelled
Sheriff Kaelin or other officials at the Nueces County Jail to deprive Plaintiff
of his rights by placing him in an inadequate jail, denying him the minimal
necessities of life, and denying him access to the courts. The allegations in
Plaintiff’s complaint center on his claims that Defendants violated the
policies and jail standards in place and not on whether the policies and
standards themselves were the moving force behind the alleged
constitutional deprivations. See Hill v. Texas, No. 4:13-CV-652, 2013 WL
5273342, at *3 (N.D. Tex. Sep. 19, 2013) (dismissing claim for municipal
liability against Parker County because amended complaint failed to allege
facts showing the alleged policy was the moving force behind any
constitutional violation). Because Plaintiff’s allegations are insufficient to
state a § 1983 claim for municipal liability, it is respectfully recommended
that Plaintiff’s claims against Nueces County be dismissed with prejudice as
frivolous and/or for failure to state a claim for relief.
Dkt. No. 32 at 11.
The Court ADOPTS the M&R findings regarding claims against Kaelin and
municipal liability.
Finally, Martinez objects to the dismissal of claims against “unknown
officers” as parties who might bear equal responsibility for his injuries with named
defendants after discovery. Dkt. No. 46 at 8-9. The Court notes the objection and
directs Martinez to Federal Rule of Civil Procedure 15(c). See Jacobsen v. Osborne,
133 F.3d 315, 320 (5th Cir. 1998)1; Weiland v. Palm Beach Cty. Sheriff's Office, 792
F.3d 1313, 1318 (11th Cir. 2015) (“As a general matter, fictitious-party pleading is
not permitted in federal court.”).
1
Rule 15(c) “‘is meant to allow an amendment changing the name of a party to relate back to the original complaint
only if the change is the result of an error, such as a misnomer or misidentification.’” Barrow v. Wethersfield Police
Dept., 66 F.3d 466, 469 (2d Cir.1995), modified by 74 F.3d 1366 (2d Cir.1996)” Jacobsen, 133 F.3d at 320.
10 / 19
c. 48-hour cell policy
Martinez objects to the dismissal of his due process claims relating to the
alleged violation of the jail’s 48-hour policy for holding cell detention. Dkt. No. 46 at
4-5. He claims the violation of the jail policy alone is a violation of due process. Id.
The Magistrate Judge’s M&R also addressed this issue:
Liberally construed, Plaintiff claims that his placement in a holding cell
beyond the 48-hour time limit allowed for the booking/holding process
violated his due process rights. Plaintiff alleges that he was held in this cell
from March 23, 2016 through April 11, 2016, and from May 23, 2016 through
May 26, 2016. To the extent Plaintiff claims his time in the holding cell
exceeded the 48-hour jail policy, such claim without more does not amount to
a constitutional violation. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.
1996) (holding “that a prison official’s failure to follow the prison’s own
policies, procedures, or regulations does not constitute a violation of due
process, if constitutional minima are nevertheless met”).
Dkt. No. 32 at 14-15.
The Court ADOPTS the M&R findings regarding due process.
d. Access to the Courts
Martinez also objects to the M&R’s recommendation to dismiss his claims
regarding access to the courts. Dkt. No. 46 at 8. Martinez argues that he was unable
to retain legal counsel during his incarceration at Nueces County Jail impacting his
ability to find a lawyer. Id. The Magistrate Judge also addressed this issue:
Prisoners have a constitutionally protected right of access to the
courts. See Lewis v. Casey, 518 U.S. 343, 360 (1996) (citing Bounds v. Smith,
430 U.S. 817, 821 (1977)). Because the right of access is not a “freestanding
right,” to state a cognizable First Amendment claim, the plaintiff must
demonstrate actual injury resulting from an alleged denial of access to the
courts. Lewis, 518 U.S. at 351; Chriceol v. Phillips, 169 F.3d 313, 317 (5th
Cir. 1999). Without a showing of an actual injury, a plaintiff lacks standing to
pursue a claim of denial of access to the courts. Lewis, 518 U.S. at 349.
Dkt. No. 32 at 20-21.
However, it is well settled in the Fifth Circuit that “a criminal
defendant’s right of access to the courts is not infringed if he is represented
by counsel. Haley v. Natchitoches Parish Detention Center, 602 F. App’x 1008,
1009 (5th Cir. 2015) (citing Tarter v. Hury, 646 F.2d 1010, 1014 (5th Cir.
11 / 19
1981)). As noted above, Plaintiff was sentenced on March 23, 2016. Plaintiff
acknowledges that he was represented by an attorney who filed a petition
with the trial court seeking a new trial. Plaintiff has attached to his amended
complaint: (1) an order from the Nueces County district court setting a
hearing on Plaintiff’s motion for new trial on May 13, 2016 (D.E. 28-3, p. 7);
and (2) an exhibit showing that he was unable to prevail on his argument in
support of his motion for new trial (D.E. 28-3, p. 9).
Dkt. No. 32 at 21.
The Court ADOPTS the M&R findings regarding access to the courts.
e. Cell Conditions
The M&R recommends retaining the Eighth Amendment claims about
bedding against Perales and Zapata in their individual capacities. Dkt. No. 32 at 18.
Defendants object to retaining these claims on statute of limitations grounds. Dkt.
Nos. 37, 48. This Court conducted a de novo review and has declined to dismiss the
claims based on the statute of limitations. See supra Section III(a).
The Court ADOPTS the M&R findings to RETAIN the Eighth Amendment
claims against Officers Perales and Zapata regarding the denial of bedding.
Martinez objects to the M&R’s recommendation to dismiss claims related to
sanitation as improper because he claims the poor sanitary conditions were not
short term and helped exacerbate his physical injury. Dkt No. 46 at 6. The
Magistrate Judge addressed these concerns in part:
A constitutional violation under the Eighth Amendment occurs only when
two requirements are met. “First, there is an objective requirement that the
condition must be so serious as to deprive prisoners of the minimal civilized
measure of life’s necessities, as when it denies the prisoner some basic human
need.” Woods, 51 F.3d at 581 (internal quotations and citation omitted).
“Second, under a subjective standard, [the court] must determine whether
the prison official responsible was deliberately indifferent to inmate health
and safety.” Woods, 51 F.3d at 581
Dkt. No. 32 at 16.
The Fifth Circuit has recognized that an unsanitary environment can support
an Eighth Amendment claim of deliberate indifference. For example, in
Daigre v. Maggio, 719 F.2d 1310 (5th Cir. 1983), the Fifth Circuit recognized:
As a safeguard against the “gratuitous infliction of suffering,” the
eighth amendment forbids confinement under conditions that can lead
to painful and tortuous disease with no penological purpose. We
concluded over a decade ago that the eighth amendment forbids
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deprivation of the basic elements of hygiene. We observed this
“common thread” woven through judicial condemnations of prison
conditions, noting in most of the prior cases the deprivation of facilities
for elementary sanitation. Daigre, 719 F.2d at 1312.
Dkt No. 32 at 16-17.
In addition, confinement in unsanitary conditions for a few days usually does
not rise to a serious deprivation. See Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir.
1998). But longer periods of exposure to unsanitary conditions can be grounds for
such a claim. Hutto v. Finney, 437 U.S. 678, 686-87 (1978). Martinez’s complaint
alleges a lack of working toilets and sinks, sanitary supplies and a denial of showers
that allegedly occurred during Period 1 (19 days) and Period 2 (four days) of
incarceration in Nueces County Jail. Dkt. No. 28-1 at 3-4. Because of the length of
the alleged denial of sanitation supplies and working facilities, this Court declines
to adopt the Magistrate Judge’s determination that Martinez failed to state an
Eighth Amendment claim regarding sanitation. See Denton, 504 U.S. at 32; Dkt No.
32 at 17.
The Court DECLINES TO ADOPT the M&R 1 recommendation and
RETAINS Martinez’s Eighth Amendment claim regarding unsanitary conditions.
Finally, Martinez objects that eating only poor-quality bologna sandwiches
for weeks did not provide sufficient nutrients as required and caused him harm.
Dkt. No. 46 at 7; Dkt. No. 28-1. The M&R addressed this claim:
“[t]he constitution requires only that inmates be provided with wellbalanced meals, containing sufficient nutritional value to preserve health.”
Davis v. Stephens, No. 2:15-CV-211, 2015 WL 4887577, at *8 (S.D. Tex. Aug.
17, 2015) (citing Green v. Ferrell, 801 F.2d 765, 770-71 (5th Cir. 1986)). The
prison system is not required to provide inmates with three meals a day.
Green, 801 F.3d at 770.
Dkt. No. 32 at 19.
In addition, the Supreme Court has spoken disapprovingly of deprivation
diets consisting of low-quality food which provide insufficient calories per day.
Hutto, 437 U.S. at 683. The Court finds it is not implausible or frivolous to assert
that eating only bologna sandwiches for several weeks is nutritionally insufficient
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and could have caused Martinez harm. See Dkt. No. 28-1 at 4-5; Denton, 504 U.S. at
33.
The Court DECLINES TO ADOPT the M&R 1 recommendation and
RETAINS Martinez’s Eighth Amendment claim regarding insufficient food.
V.
M&R 2
a. Summary Judgment Evidence
Defendants moved for summary judgment on statute of limitations grounds.
Dkt. No. 50. Defendants offered as summary judgment evidence an Affidavit of
Michael Crow (Assistant Warden for the Mark W. Stiles Unit) along with TDCJ’s
record of Plaintiff’s outgoing mail for May 30, 2018. Dkt. No. 50-1. Martinez offered
letters from the TCJS investigations dated January 24, 2017 and February 9, 2017
and his medical records. Dkt. No 70 at 20-24. M&R 2 states that according to the
summary judgment evidence, Martinez deposited his complaint in the prison mail
on May 30, 2018. Dkt. No. 74 at 6. M&R 2 recommended dismissal of Martinez’s
claims on statute of limitations grounds. Dkt. No. 74. Martinez objected to M&R 2
and argued the statute of limitations for his claims should be tolled. Dkt. No. 80 at
10.
VI.
Legal Standard
The M&R correctly states the standard for summary judgment:
Summary judgment is proper if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). A genuine issue exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The Court must examine “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Id. at 251-52. In making
this determination, the Court must consider the record as a whole by reviewing
all pleadings, depositions, affidavits and admissions on file. Caboni v. Gen.
Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). The Court may not weigh the
evidence, or evaluate the credibility of witnesses. Id. The Court must view the
facts in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor. Salazar-Limon v. City of Houston, 826 F.3d
272, 274-75 (5th Cir. 2016). Furthermore, “[a]n affidavit or declaration used to
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support or oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). The moving
party bears the initial burden of showing the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party demonstrates an absence of evidence supporting the nonmoving party’s
case, then the burden shifts to the nonmoving party to come forward with
specific facts showing that a genuine issue for trial does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To sustain this
burden, the nonmoving party cannot rest on the mere allegations of the
pleadings. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248. “After the nonmovant
has been given an opportunity to raise a genuine factual issue, if no reasonable
juror could find for the nonmovant, summary judgment will be granted.” Caboni,
278 F.3d at 451. “If reasonable minds could differ as to the import of the
evidence ... a verdict should not be directed.” Anderson, 477 U.S. at 250-51.
Dkt. No. 74 at 6-7.
M&R 2 then states: “Pursuant to Rule 56(d), a nonmoving party could obtain
leave to take discovery if he could show ‘by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition.’ Fed. R. Civ. P.
56(d)(2). Martinez has failed to show by affidavit or declaration a legitimate need to
delay this proceeding and conduct discovery with respect to issues of timeliness
presented in Defendants’ summary judgment motion.” Dkt. No. 74 at 8. The Court
DECLINES TO ADOPT this statement. As discussed above in the analysis of
M&R 1, tolling is a procedure which can apply to Martinez’s claim. Supra III(c).
M&R 2 states that: “Thus, assuming the presence of a continuous tort in
connection with Martinez’s separate confinement in the holding cell between March
23, 2016, and April 11, 2016, and again between May 23, 2016, and May 26, 2016,
Martinez’s complaint is time-barred unless he can establish sufficient equitable
tolling of the limitations period to excuse his late filing.” Dkt. No 74 at 11. The
Magistrate Judge then determined that neither the discovery doctrine or fraudulent
concealment doctrine of equitable tolling apply. Dkt No. 74 at 11. The Court
ADOPTS these conclusions.
The Magistrate Judge then turns to the State Action Delay doctrine and
writes:
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“Martinez states that he filed his complaint with the TCJS on December 1,
2016 and that the investigation ended 70 days later on February 9, 2017.
Martinez contends that equitable tolling applies under federal law because
his claims were delayed by the TCJS’s 70-day “state action” in investigating
the matter. (D.E. 55, pp. 3-4). Defendants respond that, to the extent that
“state-action delay” could be a basis for equitable tolling, no state action
existed to excuse Martinez’s late filing. The undersigned has found no case
law to support Martinez’s contention that a “state action delay” entitles a §
1983 plaintiff to equitable tolling of the Texas two-year limitations period. In
contrast, equitable tolling of the one-year limitations period for filing federal
habeas actions “is permitted ‘only in rare and exceptional circumstances.’”
Cousin v. Lensing, 310 F.3d, 843, 848 (5th Cir. 2002) (quoting Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). In such circumstances,
“[e]quitable tolling is warranted … only in situations where the plaintiff is
actively misled by the defendant … or is prevented in some extraordinary
way from asserting his rights.” Cousin, 310 F.3d at 843 (internal quotations
and citation omitted). Even assuming that the equitable tolling principle
articulated in Cousin is applicable to this case, Martinez has failed to present
any competent summary judgment evidence to show that he was actively
mislead in any way or otherwise prevented from asserting his rights in a
timely fashion. Furthermore, the undersigned finds no authority to suggest
that the pendency of a TCJS investigation, which examines whether state jail
standards have been violated, serves as a bases to equitably toll the
limitations period under Texas law. Accordingly. even when construing the
facts in favor of Martinez, he has failed to demonstrate a genuine issue of fact
as to whether he is entitled to equitable tolling for the period of time the
TCJS investigation was pending. Martinez, therefore, has failed to show any
entitlement to equitable tolling under a theory of “state action delay.”
Dkt. No. 74 at 14 (emphasis added)
The Court DECLINES TO ADOPT this statement of law. There are Fifth Circuit
cases directly on point for the issue of tolling for administrative exhaustion. When a
civil rights suit is brought by an incarcerated person, the statute of limitations is
tolled during the time that the claimant is exhausting their available
administrative remedies. Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999)
(tolling the statute of limitations period for the time plaintiff exhausted his prison
system administrative remedies) (citing Rodriguez v. Holmes, 963 F.2d 799 (5th Cir.
1992)); see Wisniewski v. Fisher, 857 F.3d 152, 158 (3d Cir. 2017) (holding the
district court erred in dismissing § 1983 claims without considering if the plaintiff
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properly exhausted administrative remedies and the extent the limitations period
should be tolled).
A failure to exhaust prevents a Court from acting on a plaintiff’s action. Harris,
198 F.3d at 158. A plaintiff “could not file this federal civil rights suit until he
exhausted the available state administrative remedies, as section 1997e requires.
This exhaustion requirement functioned as a ‘legal cause which prevented the
courts or their officers from taking cognizance of or acting on the plaintiff's action.’”
Id. “This doctrine, probably founded on the principles of equity, justice, fairness, or
even natural law suspends the running of prescription when the ‘plaintiff was
effectually prevented from enforcing his rights for reasons external to his own will.’”
Id. The Court in Rodriguez found this equitable tolling principle appears in Texas
law as well. Rodriguez, 963 F.2d at 804. (citing Hughes v. Mahaney & Higgins, 821
S.W.2d 154, 157 (Tex.1991)). The Texas tolling rule means “[t]he time during which
the litigant is pursuing the available state remedies would toll the statute of
limitations, thus allowing the litigant to return to federal court within the
limitations period.” Rodriguez, 963 F.2d at 805.
Administrative processes and prison investigations can be complex and lengthy.
It is reasonable to infer that a complex investigation could stretch out for months or
years. Without the doctrine stated in Harris and Rodriguez, claimants could be
effectively barred from bringing suit by following the mandatory exhaustion
procedures which last longer than a statute of limitations period. Harris, 198 F.3d
at 158; Rodriguez, 963 F.2d at 804. Justice demands tolling for administrative
exhaustion. See id.
Defendants’ summary judgment evidence has established that the filing date of
the complaint was May 30, 2018, when Martinez deposited into the mail. Dkt No.
50-1 at 54. As M&R 2 states, Martinez’s claims accrued on April 11, 2016 and May
26, 2016. Dkt. No. 74 at 10. As also stated in M&R 2, Martinez claims he filed his
complaint with TCJS on December 1, 2016 and the investigation ended 70 days
later on February 9, 2017. Id. at 14. Martinez has produced competent summary
judgment evidence regarding the conclusion of the TCJS investigation. Dkt. No. 2817 / 19
3 at 3. Under Rule 56(d)(2) he is entitled to conduct discovery in order to obtain
evidence of the date of his filing to prompt the TCJS investigation. See Fed. R. Civ.
P. 56(d)(2). This date would establish the length of the tolling of his claim. See
Harris, 198 F.3d at 158; Rodriguez, 963 F.2d at 804.
The statute of limitations is an affirmative defense that puts the burden of proof
on the party pleading it. Frame v. City of Arlington, 657 F.3d 215, 239 (5th Cir.
2011). A complaint can be dismissed if the allegations demonstrate that the
plaintiff’s claims are barred and fail to raise some basis for tolling. Id. Because
Plaintiff has both produced in his complaint and in his opposition to summary
judgment evidence that demonstrates a basis for tolling, Defendants have not
produced evidence showing the absence of a genuine issue of material fact regarding
the statute of limitations for Martinez’s claims. See id.; Celotex Corp. v. Catrett, 477
U.S. at 323; See Harris, 198 F.3d at 158. The Court concludes a genuine issue of
material fact exists regarding the statute of limitations period and its tolling. See
id.; Dkt. Nos. 74 at 14, 28-3 at 3. The Court DENIES Defendant’s motion for
summary judgment, Dkt. No. 50.
VII.
Conclusion
The Court independently reviewed the record and considered the applicable
law. The Court conducted a de novo review of objected to portions of M&R 1 and
M&R 2. After review, the Court ADOPTS IN PART and DECLINES TO ADOPT
IN PART M&R 1. Dkt No. 32. The Court DECLINES TO ADOPT M&R 2. Dkt.
No. 74, and DENIES Defendant’s motion for summary judgment, Dkt. No. 50.
In summary, the Court DECLINES to find that Martinez’s claims are barred
by the statute of limitations. The Court RETAINS Plaintiff’s Eighth Amendment
deliberate indifference claims with regard to (1) bedding supplies, (2) unsanitary
conditions (3) insufficient food against Perales and Zapata. The Court substitutes
Nueces County in place of Nueces County Sheriff’s Office/Jail as a party defendant
in this case. The Court DISMISSES Plaintiff’s claims for money damages against
certain defendants in their official capacities as barred by the Eleventh
Amendment. The Court DISMISSES Plaintiff’s claims for declaratory and
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injunctive relief against all Defendants because it is moot by Plaintiff’s transfer to a
TDCJ facility. The Court DISMISSES Plaintiffs remaining claims against all other
Defendant’s as frivolous and/or for failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1).
SIGNED this 13th day of January, 2020.
___________________________________
Hilda Tagle
Senior United States District Judge
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