Fraser et al v. Patrick O'Connor & Associates, L.P. d/b/a O'Connor & Associates et al
Filing
188
OPINION AND ORDER; re: 174 MOTION for Summary Judgment re: 171 Renewed Motion for Summary Judgment are DENIED. (Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GERALD CAIN,
TDCJ #00812200,
Plaintiff,
VS.
WILLIAM STEPHENS,
§
§
§
§
§
§
§
§
August 26, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-1979
Defendant.
MEMORANDUM AND ORDER
Pending in this prisoner civil rights case are Defendant Director William Stephens’
Motion to Dismiss (Docket Entry No. 18); Plaintiff Gerald Cain’s Motions for Permanent
Injunction and for Appointment of Counsel (Docket Entry No. 16); and Plaintiff Gerald Cain’s
Motion for Default Judgment (Docket Entry No. 21). After reviewing the pleadings, motions,
responses, and the applicable law, the Court concludes as follows.
I.
Background
Plaintiff Gerald Cain (“Cain”), proceeding pro se and in forma pauperis,1 is currently a
state inmate incarcerated in the Jester IV Unit of the Texas Department of Criminal Justice Correctional Institutions Division (“TDCJ”). Cain alleges that in 2003, TDCJ removed him from
general population, placing him in safekeeping due to the general population prisoners’ attempt
to murder him. Docket Entry No. 1 at 5. Cain alleges that ten years later in 2014, unnamed
prison officials became deliberately indifferent to his safety and placed Cain back into the
general population. Cain alleges that the same security threat groups that allegedly attempted to
1
Cain has three strikes, but due to his assertions that his life is in serious danger, the Court has allowed
him to proceed in forma pauperis in this suit based on the exception in 28 U.S.C. § 1915(g). See Docket
Entry No. 6.
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murder him in 2003 are present in the general population where he has been placed. Cain
contends that the reason TDCJ gave for placing him back into the general population was that he
had violated prison rules and regulations while he was in safekeeping. Docket Entry No. 1 at 5.
Cain asserts that being placed in safekeeping for ten years equates to an admission by
TDCJ that he should be kept in safekeeping. Docket Entry No. 1 at 6. Cain alleges in his
complaint that he recently suffered serious injuries on March 28, 2015 and May 17, 2015, but
does not elaborate on who injured him, where he was injured, or what actually happened. He
alleges further that a unit transfer does not render his claim to be placed into safekeeping moot,
because he suffered serious physical injuries after two unit transfers, but does not state where he
was transferred to or from or who hurt him after he was transferred. Docket Entry No. 1 at 7.
Cain claims that he will remain in imminent danger of serious physical injury as long as he is
forced to be in the general population.
Cain sues the Director of TDCJ-CID, currently Lorie Davis2 (“the Director”), in her
official capacity only, seeking injunctive relief ordering her to return him to safekeeping status.
The Director moves to dismiss, contending that Cain alleges no facts to show that the
Director had any personal involvement in Cain’s housing situation or any knowledge of any
danger to Cain. The Director also argues that Cain cannot hold her liable under a respondeat
superior theory of liability for the actions of her subordinates.
In his response to the Director’s motion to dismiss, Cain argues that the Director is aware
of his plight because he filed a lawsuit and that the Director refuses to take preventative action.
He also claims, for the first time in his response, that he has been raped, stabbed, and beaten
2
Effective May 1, 2016, Lorie Davis succeeded William Stephens as Director of the Texas Department of
Criminal Justice-Correctional Institutions Division. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Davis is substituted in place of Stephens as the defendant in this case.
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because he is transgender. See Docket Entry No. 20 at 1-2.
II.
Legal Standards
A.
Rule 12(b)(6)
Rule 12(b)(6) provides for dismissal of an action for “failure to state a claim upon which
relief can be granted.” FED. R. CIV. P. 12(b)(6). When a district court reviews the sufficiency of
a complaint before it receives any evidence either by affidavit or admission, its task is inevitably
a limited one. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by
Harlow v. Fitzgerald, 457 U.S. 800 (1982). The issue is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b)(6), the district court construes the
allegations in the complaint favorably to the pleader and accepts as true all well-pleaded facts in
the complaint. La Porte Construction Co. v. Bayshore Nat’l Bank of La Porte, Tex., 805 F.2d
1254, 1255 (5th Cir. 1986). To survive dismissal, a complaint must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a complaint “does not need detailed factual
allegations . . . [the] allegations must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555 (citations and internal footnote omitted).
B.
Eighth Amendment Failure to Protect
The Eighth Amendment’s prohibition against cruel and unusual punishment forbids
deliberate indifference to a substantial risk of serious harm to an inmate. Farmer v. Brennan,
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511 U.S. 825, 837 (1994). To state a claim for deliberate indifference, a plaintiff must plead
facts to show that “the official knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id.; see also
Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002); Cantu v. Jones, 293 F.3d 839, 844
(5th Cir. 2002).
Deliberate indifference is an “extremely high standard to meet,” Gobert v. Caldwell, 463
F.3d 339, 346 (5th Cir. 2006), because it “requires a showing that the prison official ‘knows of
and disregards’ the substantial risk of serious harm facing the inmate.” Morgan v. Hubert, 459
F. App’x 321, 326 (5th Cir. 2012) (quoting Farmer, 511 U.S. at 837).
The Fifth Circuit, on rehearing en banc, recently reiterated that to “violate the Cruel and
Unusual Punishments Clause, a prison official must have a ‘sufficiently culpable state of mind . .
. . that state of mind is one of ‘deliberate indifference’ to inmate health or safety.’” Williams v.
Hampton, 797 F.3d 276 (5th Cir. July 28, 2015) (en banc) (holding that the prison guard’s
actions or omissions did not, as a matter of law, rise to the level of deliberate indifference). In
other words, “deliberate indifference cannot be inferred merely from negligent or even a grossly
negligent response to a substantial risk of serious harm.” Thompson v. Upshur County, Tex., 245
F.3d 447, 459 (5th Cir. 2001). Rather, “[i]t is the ‘obduracy and wantonness, not inadvertence or
error in good faith, that characterize the conduct prohibited by the [Eighth Amendment], whether
that conduct occurs in connection with establishing conditions of confinement, supplying
medical needs, or restoring official control over a tumultuous cellblock.’” Bradley v. Puckett,
157 F.3d 1022, 1025 (5th Cir. 1998) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
“Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant
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to the conscience of mankind.” Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997) (citing
Estelle v. Gamble, 429 U.S. 97, 105 (1976)).
III.
Discussion
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
U.S. Const. amend XI. Federal court jurisdiction is limited by the Eleventh Amendment and the
principle of sovereign immunity that it embodies. See Seminole Tribe of Florida v. Florida, 517
U.S. 44, 54-55 (1996); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 10001 (1984) (explaining that the Eleventh Amendment acts as a jurisdictional bar to suit against a
state in federal court). Unless expressly waived, the Eleventh Amendment bars an action in
federal court by, inter alia, a citizen of a state against his or her own state, including a state
agency. See Martinez v. Texas Dep’t of Criminal Justice, 300 F.3d 567, 574 (5th Cir. 2002).
An exception to Eleventh Amendment immunity exists for suits brought against
individuals in their official capacity, as agents of the state or a state entity, where the relief
sought is injunctive in nature and prospective in effect. Aguilar v. Texas Dep’t of Criminal
Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
Cain does not seek monetary damages; instead, he seeks injunctive relief of being
returned to safekeeping. In order to state a claim for injunctive relief, a plaintiff must establish
that there is an ongoing constitutional violation which requires prospective injunctive relief. See
Cantu Servs., Inc. v. Roberie, 535 F. App’x 342, 344-45 (5th Cir. 2013) (citing Papasan v.
Allain, 478 U.S. 265, 278 (1986)) (noting that the exception to Eleventh Amendment immunity
under Ex Parte Young, 209 U.S. 123 (1908), applies where an injunction would end a continuing
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violation of federal law).
Although Cain names the Director in her official capacity and seeks only prospective
injunctive relief, Cain fails to state a valid underlying claim for a continuing violation of federal
law against the Director.
Supervisory officials can be held liable only if the plaintiff demonstrates either one of the
following: (1) the supervisor’s personal involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor’s wrongful conduct and the deprivation. See
Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987); see also Southard v. Texas Bd. of
Criminal Justice, 114 F.3d 539, 550 (5th Cir. 1997) (“[T]he misconduct of the subordinate must
be affirmatively linked to the action or inaction of the supervisor.”). Supervisory liability exists
without overt personal participation in an offensive act only if the supervisory official
implements a policy “so deficient that the policy ‘itself is a repudiation of constitutional rights’
and is ‘the moving force of the constitutional violation.’”
Thompkins, 828 F.2d at 304
(quotations omitted); see also Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (“A supervisory
official may be held liable [under § 1983] . . . if . . . he implements unconstitutional policies that
causally result in the constitutional injury”). Even so, it is not sufficient for a plaintiff to allege,
without elaboration, a policy or a custom and its relationship to the underlying constitutional
violation; instead the plaintiff must plead specific facts. Spiller v. City of Texas City, Police
Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (citing Fraire v. Arlington, 957 F.2d 1268, 1278 (5th
Cir. 1992)). “Allegations of an isolated incident are not sufficient to show the existence of a
custom or policy.” Fraire, 957 F.2d at 1278; see also Rivera v. Houston Indep. Sch. Dist., 349
F.3d 244, 247 (5th Cir. 2003) (“‘[I]solated unconstitutional actions by municipal employees will
almost never trigger liability.’”) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
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Cir. 2001), cert. denied, 534 U.S. 820 (2001)).
Cain does not allege any facts to show that the Director had any personal involvement
with any actions or decisions about Cain’s housing assignments or classification. Further,
although Cain suggests that his lawsuit should have put the Director on notice that he was in
danger, there is no indication that the Director was aware of Cain’s situation or the facts or
allegations about his lack of personal safety in the general population.
In addition, although Cain vaguely claims in his response that the Director has enacted a
policy, Cain does not allege facts to identify the policy which the Director purportedly enacted or
implemented, or that his situation is anything other than an isolated incident not connected to any
policy. Moreover, Cain pleads no facts to show that any policy was the “moving force” which
caused the claimed violation of Cain’s constitutional rights. See Piotrowski, 237 F.3d at 578
(discussing the elements of section 1983 liability pursuant to a policy as requiring a policy
maker, a policy, and a constitutional violation whose “moving force” is the policy or custom).
Cain pleads no facts to show any policy or custom that is the moving force of the alleged
constitutional violation. Construed broadly and taking the facts as pled by Cain in the light most
favorable to him, he does not state a policy that is the moving force of a violation of his
constitutional rights.
Instead, he states that he is “demanding the defendant force his
subordinates to take action that will prevent further rapes, stabbings, and beatings to plaintiff”
and that “his safety is in defendant’s sphere of responsibility.” Docket Entry No. 20 at 5. Cain is
asserting a claim against the Director based on vicarious or respondeat superior liability, but
section 1983 does not create vicarious or respondeat superior liability for the wrongdoing of
others. See Iqbal, 556 U.S. at 677 (“‘[S]upervisory liability’ is a misnomer. Absent vicarious
liability, each Government official, his or her title notwithstanding, is only liable for his or her
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own misconduct.”) (citation omitted); Alton v. Texas A&M Univ., 168 F.3d 196, 200 (5th Cir.
1999) (“Supervisory officers . . . cannot be held liable under § 1983 for the actions of
subordinates . . . on any theory of vicarious liability.”).
Moreover, even if Cain had alleged the Director’s personal involvement in his
reassignment to the general population, Cain does not state facts to show that the Director
violated any of Cain’s constitutional rights. Plaintiff does not plead facts to show that the
Director ever knew of, and disregarded, an excessive risk to Cain’s safety or that the Director
was aware of facts from which the inference could be drawn that a substantial risk of serious
harm existed. See Farmer, 511 U.S. at 837. Cain also pleads no facts to show that the Director
also drew the inference that Cain faced a substantial threat of serious harm by being reassigned
to general population after ten years. Id.
In sum, Cain does not state facts to show that the Director is violating his constitutional
rights on an ongoing basis such that prospective injunctive relief would be appropriate against
the Director. Therefore, Cain’s claims for prospective injunctive relief must be dismissed. See
Cantu, 535 F. App’x at 344-45.
IV.
Cain’s Motions
A.
Motion for a Preliminary Injunction
Cain seeks a preliminary injunction against other prison officials at his unit for slamming
his head through a glass window, taking Cain’s legal materials, and refusing to let Cain make
phone calls.
To obtain a preliminary injunction, the applicant must show (1) a substantial likelihood
that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if
the injunction is not granted, (3) that his threatened injury outweighs the threatened harm to the
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party whom he seeks to enjoin, and (4) that granting the preliminary injunction will not disserve
the public interest. Planned Parenthood of Houston & Southeast Texas v. Sanchez, 403 F.3d
324, 329 (5th Cir. 2005). For a permanent injunction to issue, the plaintiff must prevail on the
merits of his claim and establish that equitable relief is appropriate in all other respects. Dresser–
Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 847–48 (5th Cir. 2004).
Injunctive relief in the form of “superintending federal injunctive decrees directing state
officials” is an extraordinary remedy. Morrow v. Harwell, 768 F.2d 619, 627 (5th Cir. 1985).
Emphasizing its extraordinary character, the Fifth Circuit has cautioned that an injunction
“should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion’
on all four requirements.” PCI Transportation Inc. v. Fort Worth & Western Railroad Co., 418
F.3d 535, 545 (5th Cir. 2005) (citations omitted).
To the extent that Cain’s motion is a duplicative attempt to enjoin the Director to return
him to safekeeping status, Cain cannot establish that there is a substantial likelihood that he will
succeed on the merits of his claim against the Director, as discussed above.
To the extent that Cain is using his motion to assert another claim for a recent, alleged
assault by another prison officer, it appears that he is trying to bring multiple lawsuits against
different defendants for various alleged wrongs under this present lawsuit. In seeking relief
against another defendant for a separate incident by styling his request for relief as a motion for a
preliminary injunction, Cain’s motion does not comport with Rule 18 and Rule 20 of the Federal
Rules of Civil Procedure. See 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY
KANE, FEDERAL PRACTICE AND PROCEDURE § 1583 (2d ed. 1990) (noting that, under Rules 18(a)
and 20, if the claims arise out of different transactions and do not involve all defendants, joinder
should not be allowed); see also Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001) (refusing to
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allow the joinder of multiple plaintiffs attempting to circumvent the PLRA’s unambiguous
requirement that each prisoner be required to pay the full amount of the filing fee); Patton v.
Jefferson Correctional Center, 136 F.3d 458, 464 (5th Cir. 1998) (discouraging “creative joinder
of actions” by prisoners attempting to circumvent the PLRA’s three-strikes provision). The
Court concludes that allowing Cain to attach this new claim--a new lawsuit--onto the present
action would defeat the clear intent of the PLRA’s fee payment and the “three-strikes” provisions
and must not be permitted.
Finally, although Cain claims in his motion for injunctive relief that unnamed guards
have taken his legal and writing materials which would prevent him from responding to motions
and filing documents in court, the record reflects that Cain was able to file a timely response to
the Director’s motion to dismiss. Cain does not establish that he will suffer irreparable harm if
an injunction does not issue, and he has a remedy at law for his claims regarding the alleged
assault, so injunctive relief would not be appropriate for a completed action which is alleged
here. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). Therefore, his motion for a
preliminary injunction will be denied.
B.
Motion for Appointment of Counsel
“A civil rights complainant has no right to the automatic appointment of counsel,” and
“the trial court is not required to appoint counsel for an indigent plaintiff asserting a claim under
42 U.S.C. § 1983 . . . unless the case presents exceptional circumstances.” Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir. 1982). When considering whether exceptional circumstances exist, a
court looks at the following factors:
(1) the type and complexity of the case; (2) whether the indigent is capable of
adequately presenting his case; (3) whether the indigent is in a position to
investigate adequately the case; and (4) whether the evidence will consist in large
part of conflicting testimony so as to require skill in the presentation of evidence
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and in cross examination.
Id. at 213 (citations omitted). Appointment of counsel may be appropriate if a court finds that
special circumstances exist that would prevent a plaintiff from obtaining a meaningful hearing on
colorable claims. See Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015).
The Court has examined the four factors set forth above and concludes that this case does
not present extraordinary circumstances. First, this case is not overly complex. It involves the
single issue of whether the Director should be required, by federal injunction, to place Cain in
safekeeping.
Second, Cain’s pleadings demonstrate that he is reasonably intelligent, articulate, able to
describe his claim, and capable of responding to motions filed by the opposition. Cain appears to
be in a position to adequately investigate and present his case. His pleadings include citation to
relevant authority, demonstrating that he understands the legal issues.
Finally, there is no indication that this is the type of case that would consist in large part
of conflicting testimony and skillful cross-examination.
Cain does not allege facts showing
that this case presents exceptional circumstances of the sort that warrant the appointment of
counsel. Accordingly, Cain’s motion for appointment of counsel is denied.
C.
Motion for Entry of Default
Cain moves for a default judgment against the Director because the Director filed a
motion to dismiss instead of an answer. Federal Rule of Civil Procedure 55(a) provides: “When
a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s
default.” FED. R. CIV. P. 55(a) (emphasis added).
On August 12, 2015, the Court ordered the Director to file an answer within 40 days of
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the receipt of that Order in the Office for the Attorney General for the State of Texas. Docket
Entry No. 5. Court records indicate that the Order was received in the Office of the Attorney
General on August 20, 2015, and that the Director filed a motion to dismiss on September 29,
2015, within 40 days of the date of receipt. Thus, the Director timely filed a defense to Cain’s
complaint, and default judgment would be inappropriate under these circumstances. See Sun
Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 277 (5th Cir. 1989) (“The
filing of a motion to dismiss is normally considered to constitute an appearance.”). Cain’s
motion for entry of default must be denied.
V. Conclusion and Order
For the reasons set forth above, the Court ORDERS as follows:
1.
Defendant’s Motion to Dismiss (Docket Entry No. 18) is GRANTED, and
Plaintiff’s claims are DISMISSED on the merits.
2.
Plaintiff’s Motion for a Preliminary Injunction and for Appointment of Counsel
(Docket Entry No. 16) is DENIED.
3.
Plaintiff’s Motion for Entry of Default (Docket Entry No. 21) is DENIED.
The Clerk of Court will provide a copy of this Order to all the parties of record.
SIGNED AT HOUSTON, TEXAS, THIS 26TH DAY OF AUGUST, 2016.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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