Shafer et al v. Rutledge et al

Filing 69

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS granting in part and denying in part re: 41 MOTION to Dismiss , and denying 60 MOTION for Reconsideration of 6 MOTION to Certify Plaintiffs in a Class. (Copy of DE# 62 - MAILED TO RICHARD SCOTT SHAFER) (Signed by Judge Nelva Gonzales Ramos) Parties notified.(vrios, 2)

Case 2:21-cv-00040 Document 69 Filed on 01/17/23 in TXSD Page 1 of 6
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RICHARD SCOTT SHAFER, et al.,
Plaintiffs,
VS.
MICHAEL RUTLEDGE, et al.,
Defendants.

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January 17, 2023
Nathan Ochsner, Clerk

CIVIL ACTION NO. 2:21-CV-00040

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Defendants’ Motion to Dismiss (D.E. 41) and Plaintiff’s
Motion for Reconsideration of his request for certification of a class action (D.E. 60).
On October 4, 2022, United States Magistrate Judge Julie K. Hampton issued an Amended
Memorandum and Recommendation (D.E. 64), recommending that Defendants’ motion to
dismiss on recommitted claims be denied in part with claims proceeding against a limited
group of Defendants and that Plaintiff’s motion for reconsideration be denied. Petitioner
timely filed his objections (D.E. 66) on October 13, 2022.
The M&R recommends that Plaintiff’s First Amendment Free Exercise (Kosher
Diet) and his First Amendment Free Exercise (Religious Headwear) claims proceed against
current Defendant Wright (Kosher Diet) and Defendant Garcia (Religious Headwear) in
their respective individual capacities, and be dismissed against other current Defendants.
It further recommends that these claims proceed against TDCJ Director Lumpkin (Kosher
Diet) and McConnell Unit Warden Jerry Sanchez (both claims) (Defendants to be added)
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in their official capacities because they are in a position to provide prospective relief.
Plaintiff has requested that those new Defendants be joined. D.E. 56.
However, Plaintiff objects to the dismissal of the claims against the other
Defendants, arguing that the Magistrate Judge does not appreciate the personal
involvement of supervisors who find out about a constitutional violation and fail to address
it after-the-fact. For that proposition, he cites Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.
1996), a Second Circuit case. This Court is governed by Fifth Circuit law, which requires
more than after-the-fact notice of a violation. See Mouille v. City of Live Oak, Tex., 977
F.2d 924, 929 (5th Cir. 1992).
And even Black, which relied on Wright v. Smith, 21 F.3d 496, 501–02 (2d Cir.
1994), does not impose liability in the circumstances that Shafer has pled. In Wright, the
Second Circuit stated that a prison official is not personally responsible simply because he
is in a high position of authority or is part of the chain of command. Supervisory liability
requires participation in the act or the power to halt ongoing, or prevent future,
constitutional violations. Id. (describing the official being put on notice in time to take
action to end a violation). For that reason, the Magistrate Judge properly recommended
that the TDCJ Director and Unit Warden be added in order to address any ongoing
violations. But supervisors are not responsible for any individual’s past action in which
they did not participate.
Shafer argues that the problems are rampant within the McConnell Unit or the entire
State. This invokes the need to make the claim against the Warden or TDCJ Director, not
against those with lesser authority. While Shafer contends that the Director of Chaplaincy
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“bears sole ministerial responsibility to ensure that the rights of inmates, under the First
Amendment, are protected, and that position would require them to report such violations
and implement corrective actions to remedy them,” this statement contemplates that the
matter be reported to some other official before it could be corrected. See D.E. 66, p. 3.
Nothing in Shafer’s objection suggests that the Director of Chaplaincy has authority over
the kitchen’s food preparation or the commissary’s product inventory.
Shafer’s objection to the M&R’s treatment of the requirement of personal
participation is OVERRULED. See D.E. 66, ¶¶ 2, 3. His complaints will proceed only
against the Defendants directly responsible for the alleged constitutional violations and
those of sufficient rank to effect systemic change.
Shafer objects that he has not been provided a copy of the Court’s “Order Rejecting
in Part, Modifying in Part, and Adopting in Part Memorandum and Recommendation”
(D.E. 62). D.E. 66, ¶ 1. Notice of same was required to be sent to Shafer by the Clerk of
Court. Upon investigation, it appears that the Clerk of Court did not provide that notice.
The Court SUSTAINS the objection and ORDERS the Clerk of Court to send to Shafer a
copy of the Order (D.E. 62).
Shafer also complains that he was not given access to “evidence filed under D.E.
52.”

Id., ¶ 4.

That docket entry number is for the original Memorandum and

Recommendation on Defendants’ motion to dismiss. The only evidence referenced in that
M&R, other than Plaintiff’s own grievances, are the summary judgment affidavits
accompanying the motion to dismiss. See D.E. 41-1, 41-2. The motion bears a certificate

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of service indicating that Defendants served the motion and its attachments on Plaintiff.
D.E. 41.
The Court OVERRULES Shafer’s objection that he has not been copied with the
Defendants’ summary judgment evidence. In the event that Shafer requires additional
copies, he may obtain them through the ordinary procedures of the office of the Clerk of
Court.
Last, Plaintiff objects to the recommendation that his motion seeking class
certification be denied. D.E. 66, ¶ 5. He argues that the M&R’s authority is insufficient
to support a denial because the case involved an immigration detainee, whereas Shafer is a
United States citizen. This is a distinction without a difference here. Citizenship status is
not a determinative fact.
Shafer further argues that his own legal skills, if sufficient to represent himself, are
sufficient to represent fellow inmates. He then lists his educational accomplishments,
including paralegal studies. At the same time, his conclusion asks the Court to give him
special leeway because he is not trained as an attorney and Defendants, represented by the
Office of Attorney General, have an advantage. D.E. 66, p. 6. Shafer, proceeding pro se,
is not in a position to adequately represent a state-wide class of over 10,000 members (the
class identified in his objections). Should it appear, as this case progresses, that a class
action is appropriate, this Court will be able to reassess the denial of counsel and the denial
of the class action. Based on the current posture of the case, the Court OVERRULES the
objection.

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Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Plaintiff’s
objections, and all other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation
to which objections were specifically directed, the Court SUSTAINS Plaintiff’s objection
regarding his right to receive a copy of the Court’s Order (D.E. 62). In all other respects,
Plaintiff’s objections are OVERRULED. The Court ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, the Court ORDERS as follows:
• Defendants’ Motion to Dismiss (D.E. 41) is GRANTED IN PART and
DENIED IN PART as follows:
o Plaintiff’s First Amendment Free Exercise (Kosher Diet) claim is:
(1)

DISMISSED with prejudice against Rutledge, the
Commissary Manager, Garcia, and Garza in their individual
capacities for failure to state a claim for relief and on qualified
immunity grounds;

(2)

DISMISSED against Hazelwood, Wright, the Commissary
Manager, Garcia, and Garza in their official capacities for lack
of standing;

(3)

RETAINED against Wright in his individual capacity;

(4)

RETAINED against TDCJ Director Lumpkin and McConnell
Unit Warden Jerry Sanchez in their official capacities in the
event that Plaintiff joins these Defendants;

o Plaintiff’s First Amendment Free Exercise (Religious Headwear) claim is:

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(1)

DISMISSED with prejudice against Rutledge, Wright, the
Commissary Manager, and Garza in their individual capacities
for failure to state a claim for relief and on qualified immunity
grounds;

(2)

DISMISSED against Hazelwood, Wright, the Commissary
Manager, Garcia, and Garza in their official capacities for lack
of standing;

(3)

RETAINED against Garcia in her individual capacity; and

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(4)

RETAINED against Warden Sanchez in his official capacity
in the event Plaintiff joins this Defendant.

• Plaintiff’s Motion for Reconsideration of his motion to certify this case as a class
action (D.E. 60) is DENIED.
ORDERED on January 17, 2023.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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