Sandoval v. Thaler et al

Filing 58

MEMORANDUM AND ORDER ON DISMISSAL; 54 MOTION for Summary Judgment is GRANTED, 57 MOTION for Summary Judgment is DENIED, 55 MOTION for Extension of Time file Motion for Summary Judgment is DENIED as moot. This case is DISMISSED with prejudice. All other pending motions, if any, are DENIED.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CATARINO SANDOVAL,
TDCJ-CID N0.11496128,
Plaintiff,
v.
RICK THALER, et al.,
Defendants.

§
§
§
§

CIVIL ACTION NO. H-10-2122

§
§

MEMORANDUM AND ORDER ON DISMISSAL
Plaintiff Catarino Sandoval, a state inmate proceeding pro se
and in forma pauperis, filed a civil rightS suit against numerous
defendants, alleging violations of his civil rights.

The Court

dismissed

U. S.C.

all

1915 (e)(2)(B).
plaintiff's

claims

except

(Docket Entry

one

pursuant

No. 39) .

to

The

28
Court

§

retained

retaliation claim that Sgt. David Turrubiate falsely

charged him with a disciplinary violation and placed him in
prehearing detention on October 31, 2009, because plaintiff filed
(Docket

a written statement in a use-of-force investigation.
Entries No.15, page 11; No.29-1, pages 6-7).

Pending are defendant Turrubiate' s motion for summary judgment
and plaintiff's cross-motion for summary judgment. (Docket Entries
No. 54, No. 57) .
defendant
plaintiff's

For the reasons to follow, the Court will grant

Turrubiate's

motion

for

summary

judgment,

deny

cross-motion for summary judgment, and dismiss this

Plaintiff moves for summary judgment on the ground that Sgt.
Turrubiate

retaliated

against

him

by

giving

him

a

false

disciplinary case for exercising his First and Eleventh Amendment
rights.

(Docket Entry 57).

Defendant contends he is entitled to summary judgment because
plaintiff's

pleadings fail to state a claim giving rise to a

constitutional violation and fail to defeat his entitlement to
qualified immunity.

(Docket Entry No. 54) .

Rule 56(c) of the Federal Rules of Civil Procedure provides
that

summary

judgment

"shall

be

rendered

forthwith

if

the

pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."

FED. R. CIV. P.

56 (c). The moving party bears the burden of initially pointing out
to the court the basis of the motion and identifying the portions
of the record demonstrating the absence of a genuine issue for
trial. Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 276 (5th
Cir. 1992). Thereafter, "the burden shifts to the nonmoving party
to show with 'significant probative evidence' that there exists a
genuine issue of material fact." Hamilton v. Sesue Software, Inc.,
232 F.3d 473, 477 (5th Cir. 2000) (quoting Conklins v. Turner, 18
F.3d 1285, 1295 (5th Cir. 1994))

.

"Qualified immunity is 'an entitlement not to stand trial or
face the other burdens of litigation.'"

Saucier v. Katz, 533 U.S.

194, 199-200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). Qualified immunity "provides ample protection to all but

the plainly incompetent or those who knowingly violate the law."
Mallev v. Briqqs, 475 U.S. 335, 341 (1986).
"To rebut the qualified immunity defense, the plaintiff must
show:

(1) that he has alleged a violation of a clearly established

constitutional right, and (2) that the defendant's

conduct was

objectively unreasonable in light of clearly established law at the
time of the incident."
Cir. 2008)

Waltman v. Pavne, 535 F.3d 342, 346 (5th

(footnote omitted).

The Court has discretion "in

deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the
particular case at hand."

Pearson v. Callahan, 555 U.S. 223, 236

(2009).
"To be clearly established for purposes of qualified immunity,
the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates
that right.

There need not be 'commanding precedentf that holds

that the 'very action in questionf is unlawful; the unlawfulness
need

only

be

'readily

apparent

sufficiently similar situations.'"
236-37

(5th Cir.

2008)

from

relevant

precedent

in

Brown v. Miller, 519 F.3d 231,

(citations omitted).

In essence,

a

plaintiff must allege facts sufficient to demonstrate that no
reasonable officer could have believed his actions were proper.
Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).
The Constitution does not expressly refer to retaliation but
courts have found retaliation claims to be actionable because

retaliatory

actions

constitutional rights.

may

chill

an

individual's

exercise

of

See Perrv v. Sinderman, 408 U.S. 593, 597

(1972). Claims of retaliation from prison inmates, however, must
be regarded with skepticism, lest federal courts embroil themselves
in every adverse act that occurs in penal institutions.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).

Woods v.

To state a retaliation

claim, an inmate must invoke a specific constitutional right, the
defendants' intent to retaliate against the inmate for his or her
exercise of that right, a retaliatory adverse act, and causation,
i . e . "but for the retaliatory motive the complained of incident

. .

would not have occurred."

.

I . The inmate must allege more
d

than his personal belief that he is the victim of retaliation.
Jones v. Greninser, 188 F.3d 322, 325 (5th Cir. 1999). The inmate
must either produce direct evidence of motivation or allege a
chronology of events from which retaliation may plausibly be
inferred.

I . at 324-25.
d

Retaliation is actionable only if the

retaliatory act "is capable of deterring a person of ordinary
firmness from further exercising his constitutional rights." Bibbs
v. Earlv, 541 F.3d 267, 270 (5th Cir. 2008).
Eleventh Amendment
Plaintiff states no facts or law that would give rise to an
retaliation claim based on the Eleventh Amendment; therefore, the
Court will dismiss this claim as conclusory.

First Amendment
Plaintiff alleges that he engaged in speech protected by the
First Amendment when

he

gave a written statement to prison

officials, who were investigating a use-of-force incident involving
another guard and inmate.

Plaintiff claims that on October 31,

2009, around 8:00 a.m. Officer Knotts assaulted inmate Jonathan
Reggins while Reggins was being escorted to the showers on 2 row;
plaintiff claims that Reggins was handcuffed during the assault.
(Docket Entries No.43, page 7, No.57, page 4). Plaintiff, who was
housed on 1 row, claims that after the incident he submitted a
written statement describing Reggins's appearance when Reggins came
down the stairs, i . e . , red marks on his face and side, and what he
clearly heard while Reggins was on 2 row.
page 8).

(Docket Entry No. 43,

He claims that after Officer Palmtree retrieved his

statement, Sgt. Turrubiate approached his cell, visibly upset, and
told plaintiff that plaintiff was going to P-block for writing a
false statement.

Plaintiff claims that Turrubiate said that

plaintiff could not see anything on 2 row and that he could not
file a statement about what he heard.

(

1

.

Plaintiff retorted

that he could file a statement about the red marks that he observed
on Reggins' s face.

(. )
z

Plaintiff claims that Turrubiate then ordered him to pack his
property because he was going to the disciplinary block for making
a false statement.

.

Plaintiff claims he protested that he

had a right to file a witness statement.
5

(Docket Entry No.29-1,

page 7).

Plaintiff was then escorted to the disciplinary block,

where Turrubiate and two officers placed him in a cell.'

(Docket

Entry No. 15, page 11) .
Plaintiff claims he was given a false disciplinary case days
later, for attempting to assault an unknown officer on October 31,
2009.

( a ). At the disciplinary hearing, plaintiff attempted to

call two witnesses but was only allowed to use their written
statements.

(Docket Entry No.29-1, page 5). One officer, who was

on the wing at the time of the incident, gave a statement that
plaintiff was not aggressive or violent while she was present.
( a ).

The

Disciplinary Hearing Officer, Captain Robert

P.

Jennings, found sufficient evidence to support a charge filed by
Turrubiate that plaintiff had attempted to assault an unknown
officer by threatening "to chunk the next gray uniform" and by
attempting to open food slot by hitting it with his fist.'
Entry No.15, page 11).

(Docket

Plaintiff claims his class line level was

dropped, all privileges were taken away, and he was placed on the
disciplinary wing for ninety days.

(Docket Entry No.29-1, page 6).

1 See Step 1 and Step 2 Grievance Number 2010042283 at Docket Entry No.1-4,
pages 3-6.
2 The hearing officer based his finding on the charging officer's report. Among
the evidence considered was a written statement by the inmate for whom plaintiff
had submitted a witness statement. This inmate stated that the officers lied
about the charge and that he witnessed the retaliation. Another inmate submitted
a statement stating that "Turbo said he was going to send him to P-Block for
writing a witness statement for another offender." (Docket Entry No.54-1, pages
8-10). Investigative notes show that plaintiff complained that the disciplinary
charge was in retaliation for plaintiff filing a witness statement. ( a , page
11). Turrubiate indicated on the same report that there had been a use of force
that day and that he had sent an officer to get a statement from the offender.
( a ) .

The record shows that his line class was unchanged and that he was
given cell restriction for fifteen days.
Page 6) .

(Docket Entry No.54-1,

Plaintiff claims Turrubiate and two officers were

investigated by the Unit's administration but no action was taken.
(Docket Entry No.15, page 11).
Defendant Turrubiate contends his actions did not violate
clearly established statutory or constitutional right of which a
reasonable person would have known.

(Docket Entry No.54, page 5).

"That inmates have a well-established constitutional right to
access the courts, based in part of the First Amendment, is clear."
Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999). A prison
official may

not

retaliate against or harass

an inmate

for

exercising the right of access to the courts, McDonald v. Steward,
132 F.3d 225, 231 (5th Cir. 1998), or for complaining through
proper channels about a guard's misconduct.

See

Morris v. Powell,

449 F.3d 682, 684 (5th Cir. 2006).
"Less clear are the contours of free speech rights in the
prison setting."

Thaddeus-X, 175 F.3d at 391.

At least two

circuit courts, however, have found that truthful speech by an
inmate

regarding

misconduct

of

a

prison

official

supports

legitimate penological interests and constitutes a protected First
Amendment activity. See Bridses v. Gilbert, 557 F.3d 541, 551 (7th
Cir. 2009)

(inmate gave eyewitness and aural account in his

affidavit filed in wrongful death suit against prison officials who
allegedly mistreated a gravely ill inmate); Cornell v. Woods, 69

F.3d 1383, 1388 (8th Cir. 1995) (inmate's statements regarding
guard's

violation

of

institutional

rules,

which

prison

administrators procured by promise of immunity during an internal
investigation, were "undoubtedly quite consistent with legitimate
penologicalobjections" and implicated First Amendment protection).
Without question " [p]
risons have an interest in keeping the inmates
as safe and secure as possible while imprisoned, and truthful
speech that describes possible

abuses can actually be

consistent with that objective."

Bridses, 557 at 551.

quite

However,

"neither ordinary citizens nor prisoners have an absolute right to
provide

government

information."

investigators

with

useless

or

irrelevant

Cornell, 69 F.3d at 1388, n. 5.

In this case, prison officials were not investigating the
misconduct of any officer but documenting a use-of-force incident,
which involved another inmate and another guard. Plaintiff was not
an eyewitness to the use-of-force incident; he claims only to have
overheard the incident from his cell and observed red marks on the
inmate's face and body after the incident.

Plaintiff does not

indicate what "criminal acts" he "clearly" heard from his first row
cell; nor does he relay the content of his statement regarding the
incident. Nevertheless, he alleges that the officer assaulted the
inmate while the inmate was handcuffed.

Without

some facts

regarding the content of the statement, from which plaintiff
concluded that the officer committed criminal acts, plaintiff fails
to show that his statement was truthful, useful, or relevant to the

use-of-force investigation.

Therefore,

he

fails to

show a

violation of a First Amendment right to give a truthful statement
in an internal prison investigation.

See Tiahe v. Wall, 100 F.3d

41, 43 (5th Cir. 1996) (retaliation claim fails if inmate cannot
demonstrate violation of specific constitutional right).
Because plaintiff was not an eyewitness to the use-of-force
incident, a reasonable officer could conclude that plaintiff's
account of the incident in his written statement was false and
therefore, in violation of prison disciplinary rules.3 Therefore,
Sgt. Turrubiate's

threat of disciplinary action did not violate

clearly established First Amendment law.
Plaintiff, however, claims that Turrubiate filed a bogus
disciplinary charge against him, which was unrelated to the charge
that he filed a false statement, because plaintiff submitted the
written statement to use-of-force investigators.

Other than

Turrubiate's conduct in ordering plaintiff to prehearing detention
based on a reasonable belief that plaintiff violated a disciplinary
rule by filing a false statement, plaintiff provides no direct
evidence of Turrubiate's
writing the statement.

intent to retaliate against him for

Instead, plaintiff claims that the written

3 Plaintiff claims that Turrubiate moved him to the disciplinary wing on a charge
based on fraud, which is a Level 111, Code 04.0; 18.1 violation. (Docket Entry
No.57, page 6).
See also Rule 29.0 of knowingly making false statements during an official
investigation at TDCJ Disciplinary Rules and Procedures for Offenders, Rev. April
2010, GR-106, at http://www.tdcj.state.tx.us/publications/index.html
(viewed
June 12, 2012); Hart v. Hairston, 343 F3d 762, 763 (5th Cir. 2003).

statement he submitted in the use-of-force investigation was the
"final straw" for Turrubiate, against whom plaintiff had filed
several grievances from October 20, 2009, through October 31, 2009,
regarding medical showers.

(Docket Entry No.57, pages 2-3).

Plaintiff argues that the chronology of events that he has alleged,
which include the grievances and the written statement, give rise
to a plausible inference of Turrubiate's

motive for filing the

allegedly false disciplinary charge against him.

(d,
I . page 3).

This Court found in its Memorandum and Order on Partial
Dismissal that plaintiff's "claim that Sgt. Turrubiate filed the
disciplinary charge in retaliation for grievances that plaintiff
filed regarding medical showers suffers from plaintifffs failure to
allege facts showing causation."

(Docket Entry No. 39) .

Citing

the
Tampa Times Co. v. National Labor Relations ~ o a r d , ~ Court noted
"[tlhat one incident precedes another is not proof of a causal
connection."

(d)
I.
.

Plaintiff' s

disciplinary conviction, which

has

not

been

invalidated, is probative and potent summary judgment evidence to
prove the allegations contained in it. See Woods, 60 F. 3d at 1166.
Although plaintiff proffers the written statements given by two
inmates at the disciplinary hearing as proof that the disciplinary
charge was bogus, neither inmate stated facts that would show that
plaintiff did not commit the disciplinary violation for which he
was convicted.

Inmate Reggins, the offender who was involved in

4 1 9 3 f 2 d 582 ( 5 t h C i r .

1952).

the use-of-force incident, stated that he witnessed retaliatory
acts of denying plaintiff medical showers and food, and refusing to
get rank when requested.

(Docket Entry No.54-1, page 9). Reggins

also stated that he heard the officers threaten plaintiff because
he wrote the witness statement.
that

he

heard

"Turbo"

(

threaten

Inmate Resendez stated

)

to

send

plaintiff

to

the

disciplinary block for writing a witness statement for another
offender and that plaintiff told Turbo that he was "treating" him.

,

page 10).

Neither inmate stated that plaintiff did not

commit the disciplinary violation.
The Fifth Circuit has cautioned district courts to "carefully
scrutinize" claims of retaliation to ensure that prisoners do not
"inappropriately insulate themselves from disciplinary actions by
drawing the shield of retaliation around themselves."
F.3d at 1166).

Woods, 60

Any other rule would allow a prisoner to openly

flout prison regulations after filing a grievance and then bring a
claim under 5 1983 arguing that prison officials disciplined him in
retaliation for filing a grievance.

Orebaush v. Caspari, 910 F.2d

526, 528 (8th Cir. 1990) . Without summary judgment evidence giving
rise

to

a

question

of

fact

regarding

the

validity

of

his

conviction, plaintiff's unsubstantiated claim that the disciplinary
case is bogus is insufficient to show that he was the victim of
retaliation simply because he was given a case after he filed
grievances against Turrubiate and other officers.

Plaintiff fails

to show that but for Turrubiaters intent to retaliate for the

grievances and the written statement, he would not have received
the disciplinary violation.
Accordingly, defendant Turrubiate is entitled to summary
judgment on plaintiff's retaliation claim.
11. CONCLUSION

Based on the foregoing, the Court ORDERS the following:

1.

Defendant David Turrubiate' s Motion for Summary
Judgment (Docket Entry No.54) is GRANTED.
All
claims against defendant Turrubiate are DENIED.

2.

Plaintiff's Motion for Summary Judgment
Entry No.57) is DENIED.

3.

Plaintiff's motion for an extension of time to file
a motion for summary judgment (Docket Entry No.55)
is DENIED, as moot.

4.

This case is DISMISSED WITH PREJUDICE.

5.

All other pending motions, if any, are DENIED.

The Clerk will provide
SIGNED at Houston, Texa

(Docket