Bangmon v. Lance
Filing
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MEMORANDUM OPINION AND ORDER granting in part, denying in part 10 MOTION to Dismiss 1 Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6),denying 16 MOTION for Discovery, denying 17 MOTION for Appointment of of Counsel, denying 13 MOTION to Compel Discovery. The Court ORDERS the State Attorney Generals Office to provide a Martinez report to the Court for its review within sixty (60) days. (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JERRY LENEZ BANGMON,
TDCJ # 01568309,
Plaintiff,
VS.
HENRY LANCE, et al,
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March 04, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. 3:18-CV-0019
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Jerry Lenez Bangmon, an inmate in the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”), brings this lawsuit pro se under 42
U.S.C. § 1983. Plaintiff alleges that Defendant Captain Henry Lance used excessive
force when he knocked a cafeteria tray out of Bangmon’s hand on October 10, 2016 and
caused Bangmon’s hand to hit a steel hand rail.1 Defendant has filed a motion to dismiss
(Dkt. 10), and Plaintiff has responded (Dkt. 12). Plaintiff also has filed a motion to
compel discovery (Dkt 13), a second motion for discovery (Dkt 16), and a motion for
appointment of counsel (Dkt 17). The motions are ripe for decision. Having considered
the pleadings, the briefing, all matters of record, and the applicable law, the Court
determines that Defendants’ motion to dismiss should be granted in part and denied in
part, and that Plaintiff’s motions should be denied.
Plaintiff originally brought his claim against Lance in Bangmon v. Kelly, Civil Action
No. 3:17-138. The Court severed the claim against Lance and instructed the Clerk to open this
civil action (Dkt. 7). Plaintiff’s excessive force claim against Defendant Lance is the only claim
in this lawsuit.
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I.
Defendant’s Motion to Dismiss
Plaintiff brings an Eighth Amendment claim of excessive force under 42 U.S.C.
§ 1983.
Defendant seeks dismissal of Plaintiff’s official capacity claim under Rule
12(b)(1). Defendant also seeks dismissal of Plaintiff’s individual capacity claim under
Rule 12(b)(6).
A.
Legal Standards
1.
Pro Se Pleadings
“Pleadings must be construed so as to do justice.”
FED. R. CIV. P. 8(e). In
reviewing the pleadings and litigation history, the Court is mindful of the fact that
Plaintiff is a TDCJ inmate proceeding pro se. Complaints filed by pro se litigants are
entitled to a liberal construction and, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks and citation omitted). Even under this
lenient standard a pro se plaintiff must allege more than “‘labels and conclusions’ or a
‘formulaic recitation of the elements of a cause of action.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation omitted).
2.
Rule 12(b)(1) Standard
“A case is properly dismissed for lack of subject matter jurisdiction when the court
lacks the statutory or constitutional power to adjudicate the case.” Smith v. Regional
Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (quoting Krim v. pcOrder.com, Inc., 402
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F.3d 489, 494 (5th Cir. 2005)).
A motion to dismiss for lack of subject matter
jurisdiction should be granted only if it appears certain that the plaintiff cannot prove a
plausible set of facts that establish subject matter jurisdiction. Venable v. La. Workers’
Comp. Corp., 740 F.3d 937, 941 (5th Cir. 2013). The Court must “take the well-pled
factual allegations of the complaint as true and view them in the light most favorable to
the plaintiff.” In re Mirant Corp, 675 F.3d 530, 533 (5th Cir. 2012).
3.
Rule 12(b)(6) Standard
A motion to dismiss under Rule 12(b)(6) may be granted if the pleading “fail[s] to
state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In considering
a Rule 12(b)(6) motion, courts generally must accept the factual allegations contained in
the complaint as true. Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th
Cir. 2009). Federal pleading rules require “only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’” Twombly, 550 U.S. at 555 (quoting FED.
R. CIV. P. 8(a)(2)). The complaint must, however, contain sufficient factual allegations,
as opposed to legal conclusions, to state a claim for relief that is “plausible on its face.”
Iqbal, 556 U.S. at 678 (2009); see Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir.
2012). The pleadings also must claim that the plaintiff is entitled to relief under a valid
legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005).
When, on a motion under Rule 12(b)(6), matters outside the pleadings are
presented and not excluded, “the motion must be treated as one for summary judgment
under Rule 56.” FED. R. CIV. P. 12(d). However, “[d]ocuments that a defendant attaches
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to a motion to dismiss are considered part of the pleadings if they are referred to in the
plaintiff’s complaint and are central to her claim.” Causey v. Sewell Cadillac–Chevrolet,
Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498–99 (5th Cir. 2000)).
B.
Analysis
1.
Official Capacity Claims
Defendant Lance urges dismissal of Plaintiff’s official capacity claims based on
sovereign immunity. A claim against a TDCJ official in his or her official capacity is a
claim against TDCJ, and thus a claim against the State of Texas. See Mayfield v. Tex.
Dep’t of Crim. Justice, 529 F.3d 599, 604 (5th Cir. 2008).
Because the Eleventh
Amendment protects the states’ sovereign immunity, federal courts lack jurisdiction over
suits against a state for money damages unless the state has waived its immunity or
Congress has clearly abrogated that immunity. NiGen Biotech, L.L.C., v. Paxton, 804
F.3d 389, 393-94 (5th Cir. 2015); Moore v. La. Bd. of Elem. and Secondary Educ., 743
F.3d 959, 963 (5th Cir. 2014). Texas has not waived its Eleventh Amendment immunity,
and Congress did not abrogate that immunity when enacting Section 1983. NiGen, 804
F.3d at 394.
To the extent Plaintiff sues Lance for monetary damages in his official capacity,
the State is immune under the Eleventh Amendment. Defendant’s motion to dismiss the
official capacity claim for lack of jurisdiction will be granted.
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2.
Individual Capacity Claims
Plaintiff alleges that Defendant Lance used excessive force against him in
violation of the Eighth Amendment when he knocked a cafeteria tray from Bangmon’s
hand and caused Bangmon to hit his hand against a steel rail. In considering an Eighth
Amendment claim for use of excessive force, the “core judicial inquiry” is “whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley
v. Albers, 475 U.S. 312 (1986)).
Lance’s motion to dismiss relies on an attachment to Plaintiff’s complaint, which
purports to be a letter from a TDCJ ombudsman to the Inmate Assistance League (Dkt. 1,
at 24). The letter, which is dated November 21, 2016, responded to a letter Bangmon had
sent to the Inmate Assistance League regarding multiple topics, including the incident
with Lance at issue in this suit. The TDCJ ombudsman reported that investigation had
revealed no support for Bangmon’s allegations:
The Darrington Unit administration initiated an investigation on November
8, 2016, into offender Bangmon’s claims of staff assault. The investigation
revealed that offender Bangmon was escorted to the unit medical
department for an examination. Medical staff treated him, however,
medical staff could not determine how the offender was injured. The
incident was reviewed on the unit’s video surveillance system by a security
supervisor and an OIG investigator and evidence did not support offender
Bangmon’s claims.
(id.). Defendant urges that the letter “disproves” Bangmon’s allegations regarding use of
force and warrants dismissal of his claim. In response, Plaintiff states that he attached the
letter “to prove that the video was viewed” but that the TDCJ ombudsman’s statements in
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the letter are a “conspired endeavor to cover up the incident due to the fact that prison
officials failed to follow use of force policy on the date of incident” (Dkt. 12, at 5).
In deciding Defendant’s motion under Rule 12(b)(6), a court should presume that
a plaintiff’s well-pleaded factual allegations are true, even if doubtful, and then determine
whether they plausibly give rise to an entitlement to relief. See Iqbal, 556 U.S. at 679;
Harrington, 563 F.3d at 147. Given Plaintiff’s factual allegations in his complaint and
response, his attachment of the letter to his complaint was not an endorsement of, or
representation of the accuracy of, all statements in the letter. To the contrary, he alleges
that a use of force occurred and that TDCJ is concealing it (Dkt 12, at 5). Defendant’s
motion to dismiss Plaintiff’s individual capacity claim therefore will be denied without
prejudice.
In order to evaluate Bangmon’s claims concerning the alleged use of force by
Lance, the Court will order the State Attorney General’s Office to provide a report within
sixty (60) days under Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1987). See Cay v.
Estelle, 789 F.2d 318, 323 & n.4 (5th Cir. 1986) (discussing the utility of a Martinez
report).
The report should include any use of force records relevant to the incident on
October 10, 2016, any medical records from October 10 or 11, 2016,2 and any other
records the Attorney General feels would assist the Court in evaluating Bangmon’s
claims.
Plaintiff has alleged that he received medical testing and treatment on October 10 and 11,
2016, in connection with the alleged use of force. See Dkt. 13, Dkt. 16.
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II.
Motions for Discovery
Plaintiff has filed two motions for discovery (Dkt. 13, Dkt. 16).
Plaintiff’s
requests include in camera inspection of the video evidence, production of his medical
records from October 10 and 11, 2016, and production of written statements or reports
about the alleged use of force. In light of the Court’s order for a Martinez report,
Plaintiff’s motions for discovery will be denied without prejudice. After the Martinez
report is filed, Plaintiff may reurge his motions, if warranted.
III.
Motion to Appoint Counsel
Bangmon has moved for appointment of counsel (Dkt. 17), arguing that he cannot
afford a lawyer and that his incarceration limits his ability to litigate this matter. There is
no automatic constitutional right to appointment of counsel in civil rights cases.
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982). A district court may appoint counsel to advance the proper
administration of justice in exceptional circumstances and where an indigent litigant has
colorable claims that will not receive a meaningful hearing without counsel. See 28
U.S.C. § 1915(e)(1); Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015); Ulmer,
691 F.2d at 213. When deciding whether to appoint counsel, the Court considers the type
and complexity of the case, whether the indigent litigant can adequately investigate and
present his case, and the level of skill required to present the evidence. Baranowski, 486
F.3d at 126.
Bangmon has thus far shown himself capable of self-representation and has filed
appropriate motions for relief. His claims in this suit center on an alleged use of force,
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which does not present a complex case or novel question of law. The Court finds that
this is not an exceptional case involving complex legal issues that would justify the
appointment of counsel at this time. Plaintiff’s motion therefore will be denied. As the
case progresses, however, the Court will revisit the issue on its own motion as necessary.
IV.
Conclusion
For the reasons stated above the Court ORDERS that:
1.
Defendant’s motion to dismiss (Dkt. 10) is GRANTED in part and
DENIED in part. Plaintiff’s claims against Defendant Lance in his official
capacity for monetary damages are DISMISSED for lack of subject matter
jurisdiction. In all other respects, the motion is denied at this time.
2.
The Court ORDERS the State Attorney General’s Office to provide a
Martinez report to the Court for its review within sixty (60) days.
3.
Plaintiff’s motions for discovery (Dkt. 13, Dkt. 16) are DENIED without
prejudice.
4.
Plaintiff’s motion for appointment of counsel (Dkt. 17) is DENIED at this
time.
The Clerk will provide copies of this order to the parties.
SIGNED at Galveston, Texas, this 4th day of March, 2019.
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George C. Hanks Jr.
United States District Judge
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