Soliz v. Sanchez et al

Filing 8

MEMORANDUM AND ORDER. Case DISMISSED with prejudice for failure to state a claim upon which relief can be granted. Email sent to Manager of Three Strikes List. (Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ELI SOLIZ,
TDCJ #02047366,

April 26, 2019
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:18-CV-181
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Plaintiff,
VS.
CESAR SANCHEZ, et al,
Defendants.

MEMORANDUM AND ORDER
State inmate Eli Soliz, proceeding pro se, has filed a civil rights complaint under
42 U.S.C. § 1983. Soliz has paid the filing fee. Plaintiff alleges that Defendant Bryan
Millard, a correctional officer, threatened him with a knife on May 25, 2017. He also
alleges that Defendants Cesar Sanchez, Linda Hone, and Melanie Whitlow failed to
properly handle Plaintiff’s complaints regarding Millard’s conduct. In addition to his
complaint (Dkt. 1), Soliz has provided a more definite statement (Dkt. 7) in compliance
with the Court’s instructions.
Because Soliz is incarcerated and seeks redress from state officials or employees,
the Prisoner Litigation Reform Act (“PLRA”) requires the Court to review the pleadings
and dismiss the case, in whole or in part, if it determines that the action is frivolous,
malicious, or fails to state a claim upon which relief may be granted.

28 U.S.C.

§ 1915A(b). After reviewing all of the pleadings and the applicable law, the Court
concludes that Soliz’s claims must be DISMISSED for the reasons that follow.

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I.

BACKGROUND
On May 25, 2017, Soliz was incarcerated at the Ramsey I Unit in Rosharon,

Texas. He alleges that Defendant Millard, a correctional officer, committed “aggravated
assault with a deadly weapon” against him when he pulled a “personal unissued” knife
and threatened Soliz with it (Dkt. 1, at 6).
The facts as alleged by Plaintiff are as follows: On May 25, 2017, Soliz was
working in the office of Heidi Millard, Defendant Millard’s wife, who also was employed
at the Ramsey I Unit. Defendant Millard entered the office, demanded his wife’s cell
phone, and looked through it (id.; Dkt. 7, at 1-2). Soliz chuckled and, when Defendant
Millard asked, “you think something’s funny?,” Soliz answered, “yeah you are” (id.; see
Dkt. 1, at 6 (Soliz told Millard that he was “a joke”)). Millard then pulled a knife out of
his right pocket and threatened to cut Soliz with it (id.; Dkt. 7, at 2). Millard was eight to
ten feet away from Soliz when he first pulled the knife but came within two to three feet
of him with the knife drawn (id.). After about one minute, when Millard’s supervisor
entered the office, Millard acted as though he had been cleaning his fingernails with the
knife and put it away (id. at 3). Soliz reported the incident to correctional officials who
then searched Millard, found the weapon on him, and escorted him off the unit (Dkt. 1, at
6). Shortly after the incident, Millard was fired (id. at 7).1
Soliz states that he was in fear for his life during the incident because Millard had
pulled his knife on a previous occasion and had accused Soliz of having an affair with
1

Soliz was transferred to solitary confinement immediately after the incident but did not
receive a disciplinary case (id. at 6; Dkt. 7, at 7).

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Heidi Millard (id. at 6; Dkt. 7, at 3). Soliz believed Millard to be unstable and “capable
of anything” (id.). He states that, as an inmate, he was unable to defend himself and that
Millard could have killed him and then “fabricated an alibi to justify his actions” (id.).
Soliz had “no visible scars, cuts, or bruises” but, as a result of the incident,
suffered a “tremendous amount of stress and anxiety,” rapid heartbeat, confusion,
nervous breakdowns, and tightness in his chest (id. at 4).

In November 2018,

approximately 18 months after the incident, he requested medical attention and was
referred for psychiatric counseling (id. at 4-5).

He also received medical care in

December 2018 for hypertension, rapid heartbeat, chest tightness, and other symptoms
(id. at 5-6).
On May 26, 2017, the day after the incident, Soliz gave a recorded statement to
Officer Cesar Sanchez with the Office of the Inspector General (“OIG”), who is named as
a defendant in this action. Soliz alleges that several months later, Sanchez told Plaintiff
that no criminal charges had been filed against Millard because “[t]here was not enough
evidence to submit to the [District Attorney’s] office” (Dkt. 1, at 7). Rather, Sanchez told
him that TDCJ had handled the matter administratively, stating, “He got fired . . . What
else do you want?” (id.).

Plaintiff protested to Sanchez, arguing that a crime had

occurred:
I told Mr. Sanchez, “You have a victim, a weapon, a motive, and even an
alibi. He even admitted he believed an affair was going on all you are
lacking is a confession.” All the elements of a crime were present. He
smiled and said, “Look, you have to understand that you are in prison and
the law applies differently.”

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(id.). Soliz claims that Sanchez’s refusal to pursue criminal charges was “a violation of
[his] 14th Amendment rights” (id.).
Soliz did not file an administrative grievance against Millard (Dkt. 7, at 6).2
However, he filed three grievances regarding Sanchez’s decision not to bring criminal
charges against Millard.

First, Soliz submitted a grievance on August 10, 2017

requesting reconsideration of the OIG decision not to bring criminal charges against
Millard (Dkt. 1-1, at 28-30). The grievance was returned to Soliz with notification that
the issue presented was “not grievable” (id. at 29). Melanie Whitlow, whom Soliz names
as a defendant in this action, added a handwritten note stating, “OIG decisions are not
grievable in this office” (id. at 30). Soliz then filed a step two grievance, on which prison
officials apparently took no action (id. at 32-33). Second, in October 2017, Soliz filed a
new step one grievance complaining that his earlier step two grievance had not been
answered (id. at 39-41). This grievance was returned to Soliz with a notification that the
grievable time had expired (id. at 40).

Linda Hone, whom Soliz also names as a

defendant in this action, signed the notification and wrote, apparently in error, that Soliz
had not filed a step two grievance (id. at 41). Soliz filed another step two grievance,
which reflects no response from officials (id. at 43-44). Third, in November 2017, Soliz
filed a new step one grievance complaining that the step two grievance he filed in
October had not been answered (id. at 46-48). This grievance was returned with a
2

Soliz states that he did not file grievance against Millard “because this particular incident
was a crime which required immediate attention and as a man of integrity I believed the word of
Officer Sanchez when he assured me that he would take care of this and get to the bottom of this.
Captain Smith also assured me that as long as statements were taken by both TDCJ and OIG that
no grievance would be necessary” (id.).
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notification from Hone that the grievance was “inappropriate” and that grievances should
not be used as I-60 requests (id. at 47). Hone explained, “You may not file a Step 2 on a
screened grievance. Next time submit an I-60 to this office, do not use the I-127 form as
an I-60” (id. at 48).
Soliz followed Hone’s instructions and filed an I-60 request. In response, Hone
supplied him with copies of the grievances he had filed (Dkt. 1, at 8). Plaintiff claims
that Hone’s possession of the grievances proves that Hone “had [the grievances] but did
not respond to them,” and therefore was “interfering with the due process of law” (id.).
Based on these facts, Soliz alleges that “[t]he grievance department will not let me
exhaust the grievance procedure” (id.).
Soliz seeks nominal, compensatory, and punitive damages totaling $3.5 million
(id. at 4).
II.

STANDARD OF REVIEW
As required by the PLRA, the Court screens this case to determine whether the

action is frivolous, malicious, fails to state a claim upon which relief may be granted, or
seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C.
§ 1915A(b), § 1915(e)(2)(B). A district court may dismiss a complaint as frivolous “if it
lacks an arguable basis in law or fact.” Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005); see Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). “A complaint lacks an
arguable basis in law if it is based on an indisputably meritless legal theory. . . . A
complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to
present additional facts when necessary, the facts alleged are clearly baseless.” Rogers v.
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Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (internal quotation marks and citation
omitted).
A dismissal for failure to state a claim is governed by the same standard for Rule
12(b)(6) of the Federal Rules of Civil Procedure. See Newsome v. EEOC, 301 F.3d 227,
231 (5th Cir. 2002). Under this standard, the Court “construes the complaint liberally in
favor of the plaintiff,” “takes all facts pleaded in the complaint as true,” and considers
whether “with every doubt resolved on [the plaintiff’s] behalf, the complaint states any
valid claim for relief.” Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147
(5th Cir. 2009) (internal citations and quotation marks omitted).
In reviewing the pleadings, the Court is mindful of the fact that Plaintiff proceeds
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)); see Patrick v. Wal-Mart, Inc., 681 F.3d
614, 617 (5th Cir. 2012). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
omitted). Additionally, regardless of how well-pleaded the factual allegations may be,
they must demonstrate that the plaintiff is entitled to relief under a valid legal theory. See
Neitzke v. Williams, 490 U.S. 319, 327 (1989); Geiger, 404 F.3d at 373.
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III.

ANALYSIS
Section 1983, 42 U.S.C. § 1983, provides a vehicle for a claim against a person

“acting under color of state law,” such as a state prison official, for a constitutional
violation. See Pratt v. Harris Cnty., Tex., 822 F.3d 174, 180 (5th Cir. 2016) (internal
quotation marks and citation omitted); Townsend v. Moya, 291 F.3d 859, 861 (5th Cir.
2002). Plaintiff’s claims regarding an alleged assault by Millard are governed by the
Eighth Amendment’s prohibition against cruel and unusual punishment. His claims
against Sanchez, Horne, and Whitlow regarding their responses to his complaints are
governed by the Fourteenth Amendment’s guarantee of due process.
A.

Eighth Amendment Claim

Plaintiff alleges that Millard assaulted him when Millard threatened him with a
knife. Under the PLRA, inmates bringing an action regarding prison conditions under 42
U.S.C. § 1983 or other federal law must first exhaust all administrative remedies “as are
available.” 42 U.S.C. § 1997e(a). See Ross v. Blake, 136 S. Ct. 1850 (2016); Jones v.
Bock, 549 U.S. 199, 212 (2007). The TDCJ has a two-step formal grievance process, and
an inmate must pursue a grievance through both steps for the claim to be considered
exhausted.

Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). The exhaustion

requirement is mandatory and strictly enforced. Dillon v. Rogers, 596 F.3d 260, 268 (5th
Cir. 2010). Based on Plaintiff’s statement that he did not file an administrative grievance
against Millard (Dkt. 7, at 6), his claim against Millard appears subject to dismissal based
his failure to exhaust administrative remedies. More fundamentally, however, the claim
fails under Eighth Amendment standards for the reasons explained below.
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When a prisoner claims that a prison official used excessive force in violation of
the Eighth Amendment’s ban on cruel and unusual punishments, 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)). “[Not] every malevolent
touch by a prison guard gives rise to a federal cause of action.” Id. at 9. The Eighth
Amendment prohibition “necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is not of a sort repugnant to
the conscience of mankind.” Id. at 9-10 (internal citations and quotation marks omitted).
Hudson, applying Whitley, identified five factors relevant to the Court’s analysis: (1) the
extent of injury suffered by the inmate; (2) the need for application of force; (3) the
relationship between that need and the amount of force used; (4) the threat reasonably
perceived by the responsible officials; and, (5) any efforts made to temper the severity of
a forceful response. Id. at 7; Cowart v. Erwin, 837 F.3d 444, 452-53 (5th Cir. 2016).
Regarding injury to the inmate, the Court stated, “The absence of serious injury is . . .
relevant to the Eighth Amendment inquiry, but does not end it.” Hudson, 503 U.S. at 7.
“Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately
counts.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).
In this case, Soliz does not allege that Millard actually used force against him.
Rather, he alleges that Millard came within two to three feet of him with the knife and
did not make physical contact (Dkt 7, at 2). Although Plaintiff argues that Millard’s
conduct meets the elements of assault under Texas law, an Eighth Amendment claim
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under § 1983 requires a different showing. Soliz has not pleaded facts supporting a claim
for the use of excessive physical force against him, and therefore fails to state a claim
upon which relief can be granted under the Eighth Amendment. See Wilkins, 559 U.S. at
38; Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (“verbal abuse by a prison
guard does not give rise to a cause of action under § 1983” in the absence of sufficient
physical injury); see also White v. Gutierrez, 274 F. App’x 349, at *1 (5th Cir. 2008)
(“[v]erbal abuse and threatening language and gestures . . . do not give rise to a cause of
action under § 1983”); Wallace v. Owens, 48 F. App’x 105, at *1 (5th Cir. 2002)
(dismissing § 1983 claim regarding defendants’ threats to cause bodily harm because
plaintiff had not alleged any physical injury, “de minimus or otherwise”).
Additionally, because Soliz has pleaded no physical injury, the PLRA bars
recovery on his claim. Soliz states that he has no “visible scars, cuts, or bruises” but that,
since the incident, he has suffered stress, anxiety, rapid heartbeat, and other symptoms
and that he received psychiatric counseling 18 months after the incident (Dkt 7, at 4).
The PLRA, 42 U.S.C. § 1997e(e), precludes an action for compensatory damages “for
mental or emotional injury suffered while in custody without a prior showing of physical
injury.” Therefore, his claim is subject to dismissal on this additional basis.
For all of the reasons above, Plaintiff’s § 1983 claim against Millard must be
dismissed for failure to state a claim for which relief may be granted.
§ 1915A(b).

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28 U.S.C.

B.

Fourteenth Amendment Claim

Soliz alleges that Sanchez, the OIG investigator, violated Soliz’s due process
rights when he failed to refer Millard to the district attorney for criminal charges. This
allegation fails to state a claim upon which relief can be granted because Soliz does not
have a constitutional right to have Millard criminally prosecuted. See Oliver v. Collins,
914 F.2d 56, 60 (5th Cir. 1990) (holding that the plaintiff did not have the constitutional
right to a criminal prosecution against prison guards who allegedly beat him); Green v.
Revel, 413 F. App’x 698, 700 (5th Cir. 2011) (“To the extent that [the plaintiff] sought a
criminal investigation of the [alleged] rape [by his cellmate], [the plaintiff] did not have a
constitutional right to have a criminal investigation conducted or the offender
prosecuted”).
Soliz also alleges that defendants Hone and Whitlow violated his due process
rights in their handling of his administrative grievances. However, an inmate’s allegation
that grievances were not adequately investigated or resolved to his satisfaction does not
state a claim for relief under the Due Process Clause. Stauffer v. Gearhart, 741 F.3d 574,
587 (5th Cir. 2014); Geiger, 404 F.3d at 373-74. Soliz alleges that Whitlow and Hone
told him that the grievance procedure was not appropriate for his complaint that Sanchez
had not pursued criminal prosecution of Millard, and that Hone instructed him to use the
I-60 procedure rather than the grievance procedure. Although Plaintiff alleges that “[t]he
grievance department will not let me exhaust the grievance procedure” (Dkt. 1, at 8), in
fact the defendants informed him in writing that the grievance procedure was not
available to seek criminal prosecution of Millard. Therefore, he fails to state a valid due
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process claim against Whitlow or Hone. See Stauffer, 741 F.3d at 587 (because prison
officials investigated the plaintiff’s grievance and provided “a written justification for
why he was not entitled to relief,” the plaintiff had failed to state a due process claim).
Moreover, as held above, Plaintiff did not have a constitutional right to the relief he
ultimately sought, which was the criminal prosecution of Millard. See Geiger, 404 F.3d
at 374 (“As [plaintiff] relies on a legally nonexistent interest, any alleged due process
violation arising from the alleged failure to investigate his grievances is indisputably
meritless”).
Plaintiff’s allegations fail to state a valid due process claim against Sanchez, Hone,
or Whitlow, and must be dismissed. See 28 U.S.C. § 1915A(b).
IV.

CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS that all of Plaintiff’s claims under

§ 1983 are DISMISSED with prejudice pursuant to 28 U.S.C. § 1915A(b) for failure to
state a claim upon which relief can be granted.
The Clerk will provide a copy of this order to the plaintiff.
SIGNED at Galveston, Texas, this 26th day of April, 2019.
___________________________________
George C. Hanks Jr.
United States District Judge

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