Bell v. Hicks et al

Filing 40

MEMORANDUM OPINION AND ORDER granting 29 MOTION for Summary Judgment with Brief in Support, denying 28 MOTION to Compel, denying 30 MOTION for Sanctions, denying 21 MOTION for Objection to Preserve Error for Appeal, denying [1 9] MOTION to Compel Discovery Production of Evidence/Documents, denying 23 MOTION to Compel Production of Documents, denying 16 MOTION for Reconsideration, denying 18 MOTION to Preserve Error (Objection), denying 15 MOTION to Modify Defendant's Middle Name, denying 33 MOTION for Leave to File Amended Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

§
§
§

PATRICK W. BELLI
TDCJ-CID NO. 1532482 1
Plaintiff

§

l

§
§
§
§
§
§

v.
RICHARD HICKS I et al.

1

Defendants.

CIVIL ACTION NO. H-12-1979

MEMORANDUM OPINION AND ORDER

Patrick W. BellI an inmate of the Texas Department of Criminal
Justice - Correctional Institutions Division
pro se civil rights complaint under 42 U.S.C.
1)

alleging

indifferent

to

No.

rights.

After

that

his

TDCJ-CID

safety

initially

in

(TDCJ-CID)
§

officials

violation

dismissing

the

filed a

1983 (Docket Entry
were

of

I

his

deliberately
constitutional

complaint

I

the

court

reinstated the action with regard to one of the claims and ordered
service on one of the named defendants

I

TDCJ-CID Officer Richard

Hicks.
Hicks has filed a Motion for Summary Judgment with Brief in
Support (Docket Entry No. 29) supported by records and affidavits.
Bell has filed a Response (Docket Entry No. 31) and has submitted
his own evidence.

After considering the pleadings and the records

the court has determined that Defendant Hicks
Judgment should be granted

l

l

I

Motion for Summary

and this action should be dismissed.

I.

Bell's Claims and Allegations

Bell states that he was a passenger in a TDCJ-CID bus that was
transporting inmates from a prison hospital to the TDCJ-CID Byrd
Unit when it collided with another vehicle on February 7, 2012.

He

claims that the wreck occurred because Hicks was driving the bus in
a dangerous manner exhibiting deliberate indifference to Bell's
health and safety.

Bell alleges that the bus was traveling at an

excessive speed and that Hicks disregarded pleas to slow down.
Bell states that the collision caused him to fly forward and that
he had to jam his feet into the floor in order to protect himself.
He states that he suffered a hematoma on his left foot as a result
of the accident.

Bell seeks declaratory and injunctive relief.

He

also seeks compensatory and punitive damages.
II.

Summary Judgment Standards - Qualified Immunity

Hicks has filed a motion for summary judgment and has asserted
the defense of qualified immunity.

A movant is entitled to summary

judgment if he shows "that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law."

Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 106

2548,

2552

Cir.

2012).

"all

facts

(1986); McFaul v. Valenzuela,

In considering such a motion,
and

inferences

nonmoving party."
2010)

684 F.3d 564,

in the

light

571

(5th

this court construes

most

favorable

Dillon v. Rogers, 596 F.3d 260, 266

(internal citation and quotations marks omitted).
-2-

s. Ct.

to

the

(5th Cir.
The movant

has the burden of showing that there is an absence of evidence to
support the nonmoving party's case.

Celotex, 106 S. Ct. at 2554.

In doing so the movant must establish the "absence of evidence to
support an essential element of the non-movant's case."
v. Lone Star State of Texas,

Sossamon

560 F.3d 316, 326 (5th Cir. 2009).

The motion for summary judgment must be denied if the movant fails
to meet this initial burden.
Dist., 268 F.3d 275, 282

Littlefield v.

(5th Cir. 2001)

Forney Indep.

Sch.

However, if the movant

does succeed in meeting this burden, the non-movant must go beyond
the pleadings and identify specific facts showing that there is a
genuine issue of a material fact warranting trial.

Id.

To prove there is an absence of evidence in support of the
non-movant's

claim

the

movant

must

identify

areas

that

are

essential to the claim in which there is an "absence of material
fact."

Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.

2005) .

However,

the movant "need not negate the elements of the

non-movant's case."

Boudreaux v. Swift Transp. Co. Inc., 402 F.3d

536, 540 (5th Cir. 2005).
tions are not

Moreover, mere conclusions and allega-

summary judgment evidence and cannot be used to

defeat or support a motion for
Ehrman.

954

F.2d 1125,

1131

summary judgment.

(5th Cir.

1992).

Topalian v.

To successfully

oppose a motion for summary judgment the non-movant must present
specific facts showing "the existence of a genuine issue concerning
every essential component of its case."

Eagle Airlines,

Inc. v.

Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir. 2003).
-3-

If the non-movant fails to point out evidence opposing summary
judgment, it is not the court's duty to search the record for such
evidence.

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).

If the defense of qualified immunity is raised, the court must
Manis v. Lawson, 585 F.3d 839, 843

conduct a two-step analysis.
(5th Cir. 2009)

Simmons v. City of Paris, Tex., 378 F.3d 476, 479

i

(5th Cir. 2004), citing Glenn v. City of Tyler, 242 F.3d 307, 312
(5th

Cir.

2001)

First,

the

court

must

decide

plaintiff has alleged a constitutional violation.

whether

the

Second, if such

a violation has been alleged, the court must determine whether the
conduct at issue was objectively reasonable in light of clearly
established law at the time the incident occurred.
movant

has

rd.

the burden of negating qualified immunity,

inferences are made in the non-movant's favor.

The nonbut all

Brown, 623 F.3d at

253.
III.

Hicks

Hicks' Arguments and Supporting Evidence

argues

that

he was

not

Bell's health and safety needs.

deliberately indifferent

to

Hicks contends that he did not

operate the bus in a reckless manner and that he was driving at a
safe speed.

He also contends that the accident was unavoidable due

to traffic conditions and a
brakes.

mechanical problem with the bus's

Hicks states that there was heavy traffic at the time of

the accident and that he attempted to stop the bus by applying the
brakes.

However, the brakes were not responding as Hicks expected
-4-

and barely slowed the bus.

Hicks checked his mirrors to see if he

could change lanes but found that he could not safely do so.

He

continued to operate the brakes but could not avoid hitting the car
in front of him.
Hicks has submitted a

sworn affidavit,

which presents the

following narrative of the accident, its causes, and its aftermath:
On February 7, 2012, at about 6:50 pm, I was driving a
TDCJ transport bus, and traveling northbound on I -45 near
exit 50-A in downtown Houston. There was heavy stop and
go traffic at that time.
As traffic began to stop in
front of the bus, I tried to stop the bus by applying the
brake pedal. The brakes on the bus did not respond as I
expected. Instead, the brakes only barely began to slow
the vehicle. I attempted to reapply the brakes, but they
were still only partially effective.
Although the bus
was slowing down, the brakes were not working as well as
they should have.
I checked the mirrors and found that
traffic prevented me from changing lanes.
I then stood
on the brakes, but the bus still hit the car in front of
it.
I contacted Officer Ward on the telephone in the rear of
the bus to let her know that the bus had been in an
accident.
Officer Ward then contacted the supervisor,
Sergeant Hubbard, to let him know that there had been an
auto accident.
About 25 minutes later, Houston Police
Department ("HPD") officers arrived on the scene, and
directed the non-TDCJ vehicles to drive to a nearby Shell
station.
I informed the HPD officers that there was a
problem with the brakes on the bus.
When another HPD
unit arrived on the scene, HPD was able to stop traffic
to allow me to slowly move the TDCJ bus off of the
highway and to the Shell station with the other drivers.
There were 43 offenders on the TDCJ bus at the time of
the accident.
Two of these offenders requested to be
taken to a hospital for treatment. These two offenders
were transported to Ben Taub Hospital, while the other 41
offenders were taken to the TDCJ Byrd Unit in a
replacement bus for a medical examination.
I submitted to routine drug and alcohol tests after the
accident. These tests revealed that there were no drugs
-5-

or alcohol in my system.
HPD did not issue me or TDCJ
any traffic citations as a result of this accident. At
the time of the accident, I had been traveling at a safe
speed and maintaining the proper distance between my
vehicle and others on the road.
The accident occurred
due to a mechanical failure, rather than because of any
unsafe actions on my part.
After the accident, TDCJ mechanical staff inspected the
bus for defects.
The inspection revealed that the
condition of the brakes caused the problem in quickly
stopping the bus. Mechanics found that a ruptured wheel
seal leaked grease on the brakes and the brakes were
glazed over. These issues were unknown to me at the time
of the accident. Moreover, at the time of the accident,
the bus was on the return leg of a round trip journey.
I had driven the bus on the outbound leg of the trip
earlier that day, and the bus had performed without a
problem prior to the accident.
Before the accident, I was not aware of any problem or
potentially unsafe condition that existed with the bus.
Based on my training and experience, I believe that my
actions and Officer Ward's actions in connection with the
incident that form the basis of this suit were reasonable
and appropriate under the circumstances.
Affidavit of Officer Richard Hicks, Exhibit B to Defendant Hicks'
Motion for Summary Judgment, Docket Entry No. 29-2, pp. 2-4.
Hicks has also submitted an affidavit executed by Officer
Ward, which states in part:
On February 7, 2012, at about 6:50 pm, I was the security
officer on a TDCJ transport bus traveling northbound on
1-45 near exit 50-A in downtown Houston. As the security
officer, I was riding at the very back end of the
transport bus. Officer Hicks was the driver of the bus.
We were in heavy stop and go traffic at the time.
As
traffic would repeatedly stop, the bus would also come to
a stop. The bus started moving again as traffic began to
move.
At one point, when we were almost to a stop, I
felt a bump. Officer Hicks called me on the phone from
the front of the bus, and informed me that we had been in
an accident.
-6-

I immediately called our supervisor, Sgt. Hubbard, to let
him know about the accident. About 25 minutes later,
Houston Police Department ("HPD") officers arrived on the
scene, and directed the non-TDCJ vehicles to drive to a
nearby Shell station. Officer Hicks told the HPD officers
that there was a problem with the brakes on the bus.
When another HPD unit arrived on the scene, HPD was able
to stop traffic to allow the TDCJ bus to slowly exit the
highway and pull into the Shell station with the other
drivers.

At the time of the accident, Officer Hicks was not
traveling at an unsafe speed or weaving in and out of
traffic. There was nothing about Officer Hicks' driving
that caused me to believe that he was operating the
vehicle in a dangerous manner.
I was unaware of any
defect of the TDCJ bus.
I had ridden on that same bus
earlier in the day.
At no point prior to the accident
did I become aware of any safety issue with [the] bus.
Nothing about the bus seemed out of the ordinary or
dangerous.
Based upon my training and experience, I believe that my
actions and officer Hicks's actions in connection with
the incident that form the basis of this suit were
reasonable and appropriate under the circumstances.
Affidavit of Officer Melanie Ward, Exhibit C to Defendant Hicks'
Motion for Summary Judgment, Docket Entry No. 29-3, pp. 2-4.
In addition, Hicks submitted a TDCJ Offender Transportation
report, which states the following:
Texas Department of Criminal Justice
Offender Transportation
EAC 1 INCIDENT NUMBER 1-01770-02-12
TO:
THRU:

Emergency Action Center
Warden Lonny Johnson

lEmergency Action Center
-7-

Subject:

VEHICLE ACCIDENT #12-035
2/7/2012

Persons Involved:

correctional Officer V Hicks, Richard
correctional Officer V Ward, Melanie
Offenders:

Summary:

On 2/7/2012 at approximately 6:50 p.m. Officer Hicks,
Richard was driving bus ---- transporting 43 gp [general
population] offenders from Hospi tal Galveston to the
Huntsville area units.
Officer Ward was riding in the
rear.
. of the bus.
He was traveling northbound in the 2400 block of 1-45.
He was approaching mile marker 50A. The traffic slowed
and Officer Hicks attempted to apply the brakes of the
bus, however the bus failed to stop in time and struck
the rear of a privately owned vehicle driven by David
Reay of Houston, Texas.
Mr. Reay's vehicle was then
knocked into a vehicle driven by Mary McCoy of Houston,
Texas and her car was knocked into a car driven by
Theodore Geoca.
[Two]
offenders
complained of
injuries
and were
transported to Ben Taub hospital for treatment by Houston
Fire Dept. EMS. Offenders ---- and ----were treated and
released for transport. The remaining 41 offenders were
loaded on a replacement bus and transported to the Byrd
unit w[h]ere they were seen by Byrd unit medical staff.
All participants in the accident stopped and Houston
Police were notified. HPD officer A. Silva investigated
the accident.
All vehicles involved received minor
damage.
Employee's action/inaction:

Officer Hicks attempted to apply the brakes in a timely
manner. The bus was inspected by TDCJ mechanical staff,
-8-

Chris Williams Fleet safety officer for Offender
transportation and Capt.
E Gonzalez
of
Offender
transportation. The inspection revealed that the condition of the brakes would have caused an issue in quickly
stopping the vehicle.
Offender Transportation was
advised by Southern Region vehicle repair facility that
a ruptured wheel seal had placed grease on the brakes and
the remaining brakes were glazed over.
These issues were unknown at the time.
It is relevant
that the accident occurred on the return trip and the bus
had performed well on the previous run that day.
TDCJ

Offender

Transportation

Mechanical

Inspection

Report,

Exhibit A to Defendant Hicks' Motion for Summary Judgment, Docket
Entry No. 29-1, pp. 3-4.
Hicks contends that he is entitled to qualified immunity as a
state official because his actions were objectively reasonable.

He

also asserts that he is entitled to immunity under the Eleventh
Amendment against claims for damages brought against him in his
official capacity.
IV.

Analysis

Under the Eighth Amendment prisoners have a right to "humane
conditions of confinement"; and prison officials are required to
provide them with adequate food,

shelter,

care, as well as necessary transportation.

clothing,

and medical

Herman v. Holiday, 238

F.3d 660, 664 (5th Cir. 2001), citing Farmer v. Brennan, 114 S. Ct.
1970,

1976

(1994) .

However,

the

Eighth

Amendment

mandates

"reasonable" safety, not "absolute" safety; and prison officials
are not liable when they make good faith errors in assessing a
-9-

potential danger.

See Newton v. Black, 133 F.3d 301, 307 (5th Cir.

1998) .
The

dispositive

indifferent

issue

whether

Hicks

was

deliberately

to Bell's safety while transporting him

prison unit to another.
(1976).

is

from one

See Estelle v. Gamble, 97 S. Ct. 285, 292

The standard for deliberate indifference is extremely high

and requires more than a showing that the defendants were negligent
or

were

mistaken

in

their

judgment.

Id.i

Domino

v.

Texas

Department of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 1999).
A showing of a defendant's negligent conduct does not establish
deliberate indifference.
(5th Cir. 2008),
633,

650

Brumfield v. Hollins, 551 F.3d 322, 333

citing Hare v. City of Corinth, Miss., 74 F.3d

(5th Cir. 1996).

See also Coon v. Ledbetter,

780 F.2d

1158, 1163 (5th Cir. 1986) ("[I]t is plain that a person injured in
an auto accident when a police officer negligently fails to yield
the right-of-way has no claim for deprivation of constitutional
right.").
law'

is

"' [S]ubjective
the

appropriate

recklessness as used in the criminal
test

for

deliberate

indifference."

McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997), quoting
Farmer, 114 S. Ct. at 1980.
To establish deliberate indifference by a prison official a
prisoner must show that the prison official (1) was aware of facts
from which an inference of an excessive risk to the prisoner IS
health or safety could be drawn, and (2) that he actually drew an
-10-

._---_..,-----------

....•

__._------------

_. __.•.

inference that such potential for harm existed.
587 F.3d 764,

citing Farmer, 114 S.

Ct. at

1979; Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999).

"Under

exceptional

770

(5th Cir.

circumstances,

2009),

Brewer v. Dretke,

a

prison official's

knowledge

of

a

substantial risk of harm may be inferred by the obviousness of the
substantial risk."

Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir.

1999), citing Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994),
citing Farmer, 114 U.S. at 1982, n.8.

To demonstrate deliberate

indifference under such circumstances it must be shown that the
risk was so obvious that the defendant official must have known it,
and that he was fully aware of the consequences of his actions or
omissions.

Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004);

Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003), citing Hope v.
Pelzer, 122 S. Ct. 2508, 2514

(2002)

See also Walkman v. Payne,

535 F.3d 342, 350 (5th Cir. 2008).
The

summary

judgment

record

demonstrates

that

Hicks

was

driving the TDCJ bus when the traffic began to slow down In front
of him.

He attempted to stop his vehicle but was unable to do so

because the brakes were malfunctioning although he was unaware of
any mechanical problems with the bus at the time of the accident.
(Docket Entry No. 29-1, pp. 3-4; Docket Entry No. 29-2, pp. 3-4)
He then slowed the bus to the best of his ability, but the bus hit
the back of the next vehicle due to brake failure.

Hicks was not

given a traffic citation for the accident; nor were any drugs or
alcohol found in his system.

(Docket Entry No. 29-2, p. 3)
-11-

The record demonstrates that the collision was caused by a
mechanical

failure

unforeseeable

not

which

accidents

violation claim.
v. Resweber,

of

will

not

was

not

support

an

Such

aware.
Eighth

Amendment

Estelle, at 291, citing Louisiana ex rel. Francis

67 S. Ct. 374

constitute

Hicks

cruel

(1947).

and unusual

An inadvertent accident does
punishment

regardless

injury, pain, and anguish that may have occurred.

of

the

rd.

Hicks is entitled to qualified immunity because there is no
showing that he violated Bell's clearly established constitutional
rights.

See Tolan v. Cotton, 713 F.3d 299, 306 (5th Cir. 2013).

The record shows that Hicks' conduct was objectively reasonable at
the time of the incident.

See Lyle v. Bexar City., Tex'

r

560 F.3d

404, 410 (5th Cir. 2009).
Hicks is also entitled to official immunity.

Federal court

jurisdiction is limited by the Eleventh Amendment and the principle
of sovereign immunity that it embodies.
Florida

v.

Florida,

Pennhurst State Sch.
(1984)

(explaining

116
&

S.

Ct.

Hosp. v.

that

the

1114,

See Seminole Tribe of
1122

Halderman,
Eleventh

(1996)

104 S.

Amendment

i

Ct.

see

also

900,

acts

908

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)
v. Tangipahoa Parish Council r 279 F.3d 273, 280
-12-

i

Cozzo

(5th Cir. 2002)

i

Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002).

Suits against

state employees in their official capacities are in reality suits
against the states that employ them.
State Police, 109 S. Ct. 2304, 2312

will v. Michigan Dept. of

(1989).

Consequently, Bell's

claims against Hicks in his official capacity are barred.
v. Texas Tech University, 80 F.3d 1042, 1047 n.3

Wallace

(5th Cir. 1996),

citing will.
Therefore, Hicks' Motion for Summary Judgment

(Docket Entry

No. 29) will be granted, and this action will be dismissed under
FED. R. CIV. P.

56.
V.

Bell's Motions

The court will address plaintiff Bell's motions as follows:
Bell's Motion for Clerical Error and Correction (Docket Entry
No. 15) to correct the defendant's name will be denied as moot.
Bell has filed a motion seeking reconsideration of the court's
prior dismissal of Melanie Ward as defendant in this proceeding.
Bell argues that Ward is liable because she failed to prevent Hicks
from driving at an unsafe speed.

The court's determination that

the records demonstrate that Hicks did not violate Bell's rights
also applies to Bell's claim against Ward.
766, 768 (5th Cir. 2001).

Lewis v. Lynn, 236 F.3d

Bell also challenges the court's finding

that he has failed to assert a claim of deliberate indifference by
Dr. Fausto Avila, the physician who treated him after the accident.
Bell complains that Dr. Avila failed to personally examine him and
-13-

Bell has submitted medical records

instead relied upon a nurse.

showing that he was examined and treated for his injuries.
records rebut his allegations of deliberate indifference.
v. McFarland,

41 F.3d 232, 235

These

Banuelos

The motion for

(5th Cir. 1995).

reconsideration (Docket Entry No. 16) will be denied.
Bell's Motion to Preserve Error
Motion

for

regarding

Objection to
Ward's

and

(Docket Entry No.

Preserve

Error

Avila's

roles

Dr.

(Docket
and

18)

and

Entry No.

21)

functions

in

the

incidents in question will be denied.
Bell has filed several motions to compel discovery and to
compel production of documents.

The motions (Docket Entry Nos. 19,

23, and 28) will be denied because Hicks and other TDCJ officials
are

entitled

to

qualified

immunity,

which

shields

them

from

See Schultea v. Wood, 47 F.3d 1427, 1436

unnecessary discovery.
(5th Cir. 1994).

Bell has also moved for sanctions claiming that he did not
receive records from Hicks.

Bell's claim is undermined by his

pleadings to which records of
treatment are attached.

the

accident

and his

subsequent

Bell's Motion for Sanctions (Docket Entry

No. 30) will be denied.
Bell filed a motion to file an amended claim (Docket Entry
No. 33), which reiterates his allegations that Hicks operated the
TDCJ bus in a reckless manner causing Bell to suffer injuries in a
collision.
F.3d

The motion will be denied as futile.
2013

WL

4029134

(5th
-14-

Cir.

Aug.

Whitley v. Hanna,
8,

2013),

citing

United States ex reI. Willard v. Humana Health Plan of Tex. Inc.,
336 F.3d 375, 386 (5th Cir. 2003).
VI.

Conclusion

The court ORDERS the following:
1.

The plaintiff's motions (Docket Entry Nos. 15, 16,
18, 19, 21, 23, 28, 30, and 33) are DENIED.

2.

Defendant Hicks'
Motion for Summary Judgment
(Docket Entry No. 29) is GRANTED, and this action
will be dismissed with prejudice.

SIGNED at Houston, Texas, on this 20th day of September, 2013.

SIM LAKE
UNITED STATES DISTRICT JUDGE

-15-