Land v. Gage et al
Filing
57
MEMORANDUM OPINION AND ORDER granting 45 MOTION for Summary Judgment , denying 54 MOTION to Seal All Proceedings (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
June 20, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAVID LAND,
§
§
§
§
§
§
Plaintiff,
v.
SHERIFF RAND HENDERSON, et al.,
Defendants. 1
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-2607
§
§
§
MEMORANDUM OPINION AND ORDER
The plaintiff, David Land, has filed a Prisoner's Civil Rights
Complaint under 42 U.S.C.
§
1983 ("Complaint")
(Docket Entry No. 1)
concerning the conditions of his confinement at the Montgomery
County Jail, which is operated by the Montgomery County Sheriff's
Office ("MCSO").
for
Summary
Pending before the court is Defendants' Motion
Judgment
filed
by Montgomery
County
Henderson and Lieutenant Myrick ("Defendants' MSJ")
No.
45).
Land has
filed a
Motion of Response
Answers ("Plaintiff's Response")
Seeking That All
Seal")
exhibits,
1
and
the
Rand
(Docket Entry
to Defendants'
(Docket Entry No. 51) and a Motion
Proceedings Be Sealed
(Docket Entry No. 54).
Sheriff
("Plaintiff's Motion to
After considering the pleadings, the
applicable
law,
the
court
will
grant
the
The Complaint listed former Montgomery County Sheriff Tommy
Gage, who has since retired, as the lead defendant. The court has
substituted current Montgomery County Sheriff Rand Henderson, who
succeeded Gage, as the proper party pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure.
Defendants'
MSJ
and
will
dismiss
this
case
for
the
reasons
explained below.
I.
Background
In December of 2013 Land was in custody at the Montgomery
County
Jail,
pending
administrative
against
him
criminal
segregation
(child
charges. 2
because
pornography)
the
and
He
nature
his
was
of
status
housed
the
as
in
charges
a
former
sheriff's deputy, who previously worked as a detention officer at
the Harris County Jail,
put him at risk of violence by other
inmates. 3
While he was confined at the Montgomery County Jail in March
of 2013,
about
a
Land told his defense attorney that he had information
fellow
inmate
housed
near
him
in
administrative
segregation, Robert L. Wilson, who had made inculpatory admissions
about
murder
December
13,
charges
2013,
that
were
pending
Land entered a
pornography charges against him. 5
against
guilty plea
to
him. 4
the
On
child-
Shortly before he entered that
2
Complaint, Docket Entry No. 1, p. 4. For purposes of
identification, all page numbers refer to the pagination inserted
at the top of the page by the court's electronic filing system,
CM/ECF.
Affidavit of Jeremiah Richards
("Richards Affidavit"),
attachment 3 to Defendants' MSJ, Docket Entry No. 45-3, p. 3 ~ 15.
3
Plaintiff' s More Definite Statement, Docket Entry No. 25,
p. 3; Complaint, Docket Entry No. 1, p. 4; Letter, attachment 2 to
Complaint, Docket Entry No. 1-2, p. 1.
4
Plaintiff' s More Definite Statement,
pp. 1-2.
5
-2-
Docket Entry No.
25,
plea,
Land
sent
a
letter
to
Lieutenant
Myrick
at
the
Montgomery County Jail stating that he had overheard inculpatory
remarks made by Wilson and that he wanted to "testify"
him.
6
According to Land,
Dotson)
December
contacted
9,
the
2013,
another officer at the Jail
District Attorney's
regarding
Land's
offer
Office
to
against
(Sergeant
by e-mail
testify
on
against
Wilson. 7
On December 16, 2013, Wilson returned to his cell following a
visit with his criminal defense attorney who, coincidentally, also
represented Land. 8
During this visit Wilson allegedly found out
that Land had offered to testify against him, and Wilson began to
threaten Land's life and the lives of his family.
On January 7,
Lieutenant Myrick,
however,
Jail. 11
2014,
9
Land allegedly sent another letter to
complaining about Wilson's threats. 10
Myrick,
failed to intervene or move Land to another area of the
Land contends that he was subject to verbal abuse "night
and day" and endured a "hostile environment" for a period of 106
6
Letter, Docket Entry No. 45-1, pp. 6-7; Plaintiff's More
Definite Statement, Docket Entry No. 25, pp. 13-16.
7
Plaintiff' s
More Definite Statement,
Docket Entry No.
25,
p. 3.
8
Complaint, Docket Entry No. 1, p. 4;
Definite Statement, Docket Entry No. 25, p. 2.
9
Plaintiff's
More
Complaint, Docket Entry No. 1, p. 4.
10
Plaintiff' s More Definite Statement,
p. 5.
ncomplaint, Docket Entry No. 1, p. 4.
-3-
Docket Entry No.
25,
and day" and endured a "hostile environment" for a period of 106
days until he was transferred to the Texas Department of Criminal
Justice ("TDCJ") on March 31, 2014. 12
During this time, Land claims
that Wilson threatened him on a daily basis,
reminding Land that
Wilson could easily find him because Land would have to register as
a sex offender for the rest of his life. 13
Land believes that "Jail Administration" did not move him away
from Wilson at the request of prosecutors and that Jail "staff" was
"listening in"
to overhear threats
Wilson in court. 14
that
could be used against
Land complains that he was used as bait. 15
Land
did not ultimately testify against Wilson, who reportedly entered
a plea agreement in the case against him. 16
Because
of
Wilson's
threats,
Land
suffered
recurring
nightmares and developed ulcers in his stomach due to the mental
anguish he experienced. 17
Arguing that his constitutional rights
were violated by housing him in a "hostile environment," Land seeks
12
Id.; Plaintiff's More
No. 25, p. 2 and pp. 7-8 ~ 5.
13
Definite
Statement,
Plaintiff' s More Definite Statement,
Docket
Entry
Docket Entry No.
25,
p. 7.
14
Complaint, Docket Entry No. 1, p. 4;
Definite Statement, Docket Entry No. 25, p. 6.
15
Plaintiff' s More Definite Statement,
16
Id.
p. 6.
-4-
Plaintiff's
Docket Entry No.
More
25,
damages from the defendants under 42 U.S.C.
§
1983 and a formal
apology for the psychological abuse that he endured. 18
The
answer
court
to
Henderson. 19
the
authorized service of
Complaint
from
process
Lieutenant
and requested an
Myrick
and
Sheriff
These defendants now move for summary judgment, noting
that Land did not exhaust administrative remedies as required by
the Prison Litigation Reform Act
before filing suit. 20
( "PLRA") , 42 U.S. C.
§
1997e (a) ,
The defendants argue in the alternative that
Land's claims fail as a matter of law because he does not show that
Lieutenant Myrick violated a clearly established constitutional
right and he does not otherwise overcome Myrick's entitlement to
qualified immunity. 21
The defendants also argue that Land has not
established the liability of Sheriff Henderson, who is sued in his
capacity as a supervisory official. 22
II.
Standard of Review
Motions for summary judgment are governed by Rule 56 of the
Federal Rules of Civil Procedure.
Under this rule a
reviewing
court "shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is
18
Complaint, Docket Entry No. 1, pp. 3, 4.
0rder for Service of Process,
Docket Entry No.
27;
Supplemental Order for Service of Process, Docket Entry No. 34.
19
20
Defendants' MSJ, Docket Entry No. 45, pp. 7-9.
21
Id. at 9-18.
22
Id. at 18-23.
-5-
entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552
(1986).
A fact is "material" if its resolution in favor of one party might
affect the outcome of the suit under governing law.
Anderson v.
Liberty Lobby,
An issue is
Inc.,
106 S.
Ct.
2505,
2510
(1986).
"'genuine'" if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.
Id.
In deciding a summary judgment motion the reviewing court must
"construe all facts and inferences in the light most favorable to
the nonmoving party."
Dillon v. Rogers,
Cir.
quotation
2010)
However,
(internal
the non-movant
qualified
immunity
Hidalgo County,
original) .
is
marks
596 F.3d 260,
and
"cannot rest on
asserted.
246 F.3d 481,
490
citation
[his]
Bazan,
(5th Cir.
et
266
omitted) .
pleadings"
rel.
2001)
(5th
where
Bazan
v.
(emphasis in
Nor can the non-movant avoid summary judgment simply by
presenting "[c]onclusional allegations and denials,
speculation,
improbable inferences, unsubstantiated assertions, and legalistic
argumentation."
Jones v.
344, 348 (5th Cir. 2012)
Lowndes County,
Mississippi,
678 F.3d
(quoting TIG Ins. Co. v. Sedgwick James of
Washington, 276 F.3d 754, 759 (5th Cir. 2002)); see also Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en bane)
(a
non-movant cannot demonstrate a genuine issue of material fact with
conclusory
allegations,
scintilla of evidence) .
unsubstantiated
assertions,
or
only
a
If the movant demonstrates an "absence of
evidentiary support in the record for the nonmovant's case," the
-6-
burden shifts to the nonmovant to "come forward with specific facts
showing that there is a genuine issue for trial."
Young County,
Texas,
866 F.3d 274,
279
(5th Cir.
Sanchez v.
2017)
Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812
2010))
i
(citing
(5th Cir.
see also Matsushita Electric Industrial Co., Ltd. v. Zenith
Radio Corp., 106 S. Ct. 1348, 1356 (1986).
The plaintiff proceeds pro se in this case.
Courts construe
pleadings filed by pro se litigants under a less stringent standard
than those drafted by lawyers.
594,
S.
596
Ct.
( 1972)
2197,
(per curiam)
2200
(2007)
liberally construed [.] '")
285, 292 (1976)).
See Haines v. Kerner,
see also Erickson v.
i
("A document
filed pro se
(quoting Estelle v.
Gamble,
92 S. Ct.
Pardus,
is
127
'to be
97 S.
Ct.
Nevertheless, "prose parties must still brief
the issues and reasonably comply with [federal procedural rules]."
Grant v.
omitted)
by
the
Cuellar,
59
F.3d 523,
524
(5th Cir.
1995)
(citations
The Fifth Circuit has held that "[t]he notice afforded
Rules
of
Civil
Procedure
and
the
local
rules"
is
"sufficient" to advise a pro se party of his burden in opposing a
summary judgment motion.
Martin v. Harrison County Jail, 975 F.2d
192, 193 (5th Cir. 1992)
(per curiam).
III.
A.
Discussion
Exhaustion of Administrative Remedies
Because Land was incarcerated when he filed his Complaint,
this action is governed by the PLRA, which requires prisoners to
-7-
exhaust
court.
that
administrative
See 42 U.S.C.
1997e(a)
§
§
remedies
1997e(a).
mandates
before
filing
suit
in
federal
The Supreme Court has emphasized
exhaustion
of
all
administrative
procedures before an inmate can file any suit challenging prison
conditions.
See Booth v. Churner, 121 S. Ct. 1819, 1825 (2001);
Porter v. Nussle, 122 S. Ct. 983, 988 (2002); Woodford v. Ngo, 126
S. Ct.
910,
2378,
918-19
2382-83
(2007)
(2006);
see also Jones v. Bock,
127 S. Ct.
(confirming that "[t]here is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court").
To
exhaust
Montgomery
process. 23
administrative
County
Jail
is
remedies
required
to
an
inmate
complete
a
at
the
three-step
First, the inmate must file a grievance with the Inmate
Grievance Board, which will issue a reply. 24
Second, if the inmate
is unsatisfied with the Inmate Grievance Board's reply,
appeal that decision to the Jail Administrator. 25
Third,
he must
if the
inmate is not satisfied with the Jail Administrator's decision, he
must appeal to the Sheriff, whose decision is final. 26
The record shows that Land was aware of the administrative
remedy process,
which is explained to all
inmates
23
Defendants' MSJ, Docket Entry No. 45, p. 7
24
Id. a t 7 - 8 cr 4 •
11
25
Id.
a t 8 cr 4 •
11
26Id.
-8-
~
4.
in the Jail
Handbook, 27 and that "Grievance forms are available to any inmate. " 28
There
is
no
evidence
classification or
the
that
Land
conditions
administrative segregation. 29
filed
of
a
his
grievance
about
housing assignment
his
in
Land concedes that he did not file
a formal grievance concerning the issues that he presents in his
Complaint, explaining that he did not do so because he was denied
access
to
grievance
forms.
30
The
defendants'
evidence
shows,
however, that Land filed several formal grievances regarding issues
unrelated to the Complaint,
requisite
forms
while
reflecting that he had access to the
confined in administrative
segregation. 31
Land's conclusory allegation that he was denied access to grievance
forms is not sufficient to refute this evidence or raise a genuine
issue of material fact.
See Kidd v. Livingston, 463 F. App'x 311,
3 13 , 2 0 12 WL 614 3 7 2 , at * 1 ( 5th Ci r . 2 0 12 ) .
Land
also
appears
to
argue
that
the
letter
he
sent
to
Lieutenant Myrick in January of 2014 complaining about Wilson's
threatening behavior should be considered sufficient to exhaust the
Id. ~~5-6; Acknowledgment of Receipt, Docket Entry No. 45-1,
p. 8 (Land's acknowledgment that he received and read a copy of the
Inmate Handbook) .
27
28
Richards Affidavit, attachment 3 to Defendants' MSJ, Docket
Entry No. 45-3, p. 1 ~ 3.
29
Id. at 1-2
~~
3-4.
30
Plaintiff' s Response, Docket Entry No. 51, p. 2.
Nor is
there any evidence that Land filed any informal grievances.
31
Inmate Grievance Forms, Docket Entry No. 45-1, pp. 3-5.
-9-
grievance process. 32
As the defendants note, however, Lieutenant
Myrick was not a Jail Administrator. 33
There is no evidence that
Jail Administration would have been aware of information imparted
to Lieutenant Myrick in the letter. 34
Land cites no authority and
the court has not found any case in which the writing of a letter,
outside
the
context of a
formal
grievance procedure,
sufficient to properly exhaust administrative remedies.
was held
The Fifth
Circuit has repeatedly taken a "strict" approach, demanding proper
compliance with administrative grievance procedures for purposes of
satisfying the exhaustion requirement.
F.3d 571, 582
(5th Cir. 2017)
(citing
See Butts v. Martin,
877
Days v. Johnson, 322 F.3d
863, 866 (5th Cir. 2003)); see also Wilson v. Epps, 776 F.3d 296,
299-300
(5th Cir.
grievance
2015)
procedures
requirement)
is
(observing that
not
enough
to
substantial
satisfy
compliance
the
exhaustion
(citing Dillon, 596 F.3d at 268).
Based on this record Land has not shown that he exhausted
administrative remedies regarding his claims or that the grievance
process was unavailable to him, and he has not raised a material
fact question on this issue.
The Fifth Circuit has emphasized that
"pre-filing exhaustion of prison grievance processes is mandatory"
and that district courts lack discretion to excuse a prisoner's
failure to exhaust his administrative remedies.
Gonzalez v. Seal,
32
Plaintiff's Response, Docket Entry No. 51, p. 2.
33
Richards Affidavit, Docket Entry No. 45-3, p. 3
34Id.
-10-
~
12.
702 F.3d 785,
that
Land
788
failed
(5th Cir.
to
2012).
exhaust
Because the record reflects
available
administrative
remedies
before filing this action, the defendants are entitled to summary
judgment on this issue.
Although this issue is dispositive, the
court will also address the defendants' alternative arguments.
B.
Claims Against Lieutenant Myrick
The defendants state that all of the events that form the
basis of Land's Complaint took place after he pled guilty and was
convicted of
2013. 35
the criminal charges against him on December 13,
The defendants argue that Land fails
violation
of
Constitution,
the
Eighth
Amendment
Ct.
1861,
the
United
States
which governs claims concerning the conditions of
confinement by convicted prisoners. 36
S.
to
to demonstrate a
1869-70
(1979)
See Bell v.
Wolfish,
99
(comparing standards under the Due
Process Clause that apply to pretrial detainees with standards
under the Eighth Amendment that apply to those convicted of a
crime); Hare v. City of Corinth, Mississippi, 74 F.3d 633, 639 (5th
Cir. 1996)
(same).
Arguing further that Land fails to establish
that a constitutional violation occurred, Lieutenant Myrick moves
for
summary
judgment
on
the
grounds
that
he
is
entitled
qualified immunity from Land's claims against him. 37
35
Defendants' MSJ, Docket Entry No. 45, p. 15
36
Id. at 15-18.
37Id.
-11-
~
24.
to
1.
Qualified Immunity
"The
officials
conduct
doctrine
'from
does
known."'
qualified
liability
not
constitutional
of
for
violate
rights
of
immunity
civil
damages
clearly
which a
protects
government
insofar
established
as
their
statutory
or
reasonable person would have
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738 (1982)).
(quoting
A plaintiff
seeking to overcome qualified immunity must satisfy a two-prong
inquiry by showing:
constitutional
"(1) that the official violated a statutory or
right,
and
(2)
that
the
right
was
established' at the time of the challenged conduct."
al-Kidd, 131 S. Ct. 2074, 2080 (2011)
A
right
is
"clearly
'clearly
Ashcroft v.
(citation omitted) .
established"
if
its
contours
are
"sufficiently clear that a reasonable official would understand
that what he is doing violates that right."
10 7
s.
Ct. 3 0 3 4
3 0 3 9 ( 19 8 7) .
I
To make this showing, a plaintiff
must point to "controlling authority persuasive authority -
Anderson v. Creighton,
or a robust consensus of
that defines the contours of the right in
question with a high degree of particularity."
659
F.3d
359,
371-72
(5th Cir.
quotation marks omitted) .
on point,
2011)
(citations
internal
"existing precedent must have placed the statutory or
S. Ct. 305, 308 (2015)
an
and
While there need not be a case directly
constitutional question beyond debate."
is
Morgan v. Swanson,
"exacting
Mullenix v.
Luna,
(quoting al-Kidd, 131 S. Ct. at 2083).
standard,"
City and
-12-
County of
San
136
This
Francisco,
California v. Sheehan, 135 S. Ct. 1765, 1774 (2015), that "protects
'all but the plainly incompetent or those who knowingly violate the
law.'"
Mullenix, 136 S. Ct. at 308 (quoting Malley v. Briggs, 106
S. Ct. 1092, 1096 (1986)).
As
this
standard
reflects,
qualified immunity alters
"[a]
good-faith
assertion
of
the usual summary judgment burden of
proof, shifting it to the plaintiff to show that the defense is not
available."
King v. Handorf, 821 F.3d 650, 653-54 (5th Cir. 2016)
(internal quotation marks and citations omitted).
must
rebut
the
defense
by
establishing
that
"The plaintiff
the
official's
allegedly wrongful conduct violated clearly established law and
that
genuine
issues
of
material
fact
reasonableness of the official's conduct."
exist
the
at 654
(quoting
Gates v. Texas Dep't of Protective & Regulatory Servs.,
537 F.3d
404,
419
(5th Cir.
2008)).
Id.
regarding
"To negate a defense of qualified
immunity and avoid summary judgment, the plaintiff need not present
'absolute proof,'
Id.
but must offer more than
'mere allegations.'"
(quoting Manis v. Lawson, 585 F.3d 839, 843
2.
(5th Cir. 2009)).
Conditions of Confinement Under the Eighth Amendment
As a convicted felon, Land's claims concerning the conditions
of
his
confinement
are
subject
to
scrutiny
under
the
Eighth
Amendment, which prohibits cruel and unusual punishment, i.e., the
"unnecessary and wanton infliction of pain."
S. Ct. 2321, 2323 (1991)
Wilson v. Seiter, 111
(quoting Estelle v. Gamble, 97 S. Ct. 285,
-13-
291 (1976)).
The Eighth Amendment prohibits the use of excessive
physical force by correctional officers and also imposes certain
duties on prison officials, "who must provide humane conditions of
confinement[.]"
Specifically,
Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994).
"prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must take
reasonable measures to guarantee the safety of the inmates[.]"
Id.
(internal quotation marks and citations omitted).
The
Supreme
Court
has
recognized,
however,
that
prison
conditions may be "restrictive and even harsh" without violating
the Eighth Amendment,
Rhodes v.
Chapman,
101 S.
Ct.
2392,
2399
(1981), noting that "the Constitution does not mandate comfortable
prisons [.]"
Id. at 2400.
To demonstrate a violation of the Eighth
Amendment where conditions of confinement are concerned, a prisoner
must demonstrate that his confinement resulted in a deprivation
that was "objectively, sufficiently serious," such that it resulted
in
the
denial
necessities."
of
"the
Farmer,
minimal
114 S.
civilized
Ct.
at 1977
S. Ct. at 2399); Herman v. Holiday,
2001) .
of
life's
(quoting Rhodes,
238 F.3d 660,
664
101
(5th Cir.
To make this showing a plaintiff must demonstrate that he
was denied "some basic human need."
581
measure
(5th
Cir.
1995)
(citations
Woods v. Edwards, 51 F.3d 577,
and
internal
quotation
marks
omitted) .
See,
Cir. 1999)
(finding that conditions violated the Eighth Amendment
~'
Palmer v.
Johnson,
193 F.3d 346,
354
(5th
where inmates were herded into a small outdoor space, deprived of
-14-
protection from excessive cold and wind, and provided no sanitary
means of disposing of their waste) .
If a sufficiently serious deprivation is shown, a plaintiff
must
then
show
indifference"
that
prison
officials
acted
with
"deliberate
to the effect this deprivation would have on his
health and safety.
Farmer, 114 S. Ct. at 1977 (citations omitted).
"Deliberate indifference is an extremely high standard to meet."
Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th
Cir. 2001).
Eighth
"[A] prison official cannot be found liable under the
Amendment
confinement
for
unless
denying
the
an
official
inmate
knows
humane
of
and
conditions
of
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."
Farmer, 114 S. Ct. at 1979.
A prison official acts
with the requisite deliberate indifference "only if he knows that
inmates face a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it."
Id. at
1984.
The condition of
verbal
threats
of
confinement at
harm
by
another
issue concerns persistent
inmate
while
Land
was
in
administrative segregation, which reportedly caused Land to suffer
recurrent nightmares,
stress.
As
noted
mental anguish,
above,
it
is
well
and stomach ulcers due to
established
that
prison
officials have a duty to protect inmates from physical assault by
-15-
other inmates.
assaulted
criminal
See Farmer, 114 S. Ct. at 1977 ("Being violently
in prison
offenders
is
pay
simply
for
not
their
(quoting Rhodes, 101 S. Ct. at 2399)
'part
offenses
of
the
against
penalty
that
society.'")
However, Land does not cite,
and the court has not found, any case which holds that an inmate
has a constitutional right to be protected from verbal threats from
another inmate. 38
Assuming that the threats and the attendant level of mental
anguish posed a sufficiently serious deprivation of a basic human
need, Land does not allege facts showing that Lieutenant Myrick was
aware of the adverse effects on his health, but that he failed to
take
reasonable measures
indifference.
to abate
the problem with deliberate
Although Land reportedly sent Lieutenant Myrick a
letter in January of 2014 complaining about the threats, he does
not allege facts showing that he alerted Myrick to any ill effects
on his health.
Moreover, at the time the threats were made Land
and Wilson were housed in administrative segregation where they
could not interact and there was no threat of physical harm.
Land
has not presented evidence showing that a reasonable officer in
38
The Fifth Circuit has repeatedly held that verbal threats
against an inmate by a prison guard do not amount to a
constitutional violation and are not actionable under 42 U.S.C.
§ 1983.
See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir.
2002); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997);
Robertson v. Plano City of Texas, 70 F.3d 21, 24 (5th Cir. 1995)
(citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983));
Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993); Spicer v.
Collins, 9 F. Supp. 2d 673, 683 (E.D. Tex. 1998) (citations
omitted) .
-16-
Lieutenant Myrick's position would have known that Land was unsafe
or that the conditions of confinement posed a
health.
danger to Land's
Under these circumstances Land does not demonstrate that
Myrick violated his constitutional rights by failing to move him to
another area of the Jail when he was first apprised of the threats.
Even assuming that a constitutional violation occurred, Land's
claim that he was subjected to persistent verbal abuse in violation
of the Eighth Amendment is not based on a particular holding or a
robust consensus of cases of persuasive authority that places the
question beyond debate.
See Morgan,
al-Kidd, 131 S. Ct. at 2084).
659 F.3d at 371-72
(citing
Therefore, Land has not demonstrated
that the challenged conduct violated a constitutional right that
could be considered clearly established for purposes of qualified
immunity.
See Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015).
As
a result, Land fails to overcome Lieutenant Myrick's entitlement to
qualified immunity;
and the defendants are entitled to summary
judgment on this issue.
C.
Claims Against Sheriff Henderson
Land sues Sheriff Henderson in his capacity as a supervisory
official who is responsible for the care, custody, and control of
inmates at the Montgomery County Jail alleging that he failed to
properly train his employees to separate inmates who complain about
persistent verbal threats. 39
39
A supervisory official cannot be held
Plaintiff's More Definite Statement,
p. 8.
-17-
Docket Entry No.
25,
liable under
§
1983 for the actions of subordinates "on any theory
of vicarious liability."
Cir.
1987)
Thompkins v. Belt, 828 F.2d 298, 303 (5th
(citations omitted).
"A supervisory official may be
held liable . . . only if (1) he affirmatively participates in the
acts
that
cause
the
constitutional
deprivation,
or
(2)
he
implements unconstitutional policies that causally result in the
constitutional injury."
Cir.
446
(5th
(internal quotation marks and citation omitted)
2011)
Porter v.
A
supervisor may also be
supervise if:
"(1)
failure
plaintiff's
amounts
to
to
failure
to
train or
the supervisor either failed to supervise or
train
rights;
659 F.3d 440,
liable based on a
train the subordinate official;
the
Epps,
or
and
deliberate
(2) a causal link exists between
supervise
( 3)
the
and
failure
indifference."
the
to
Id.
violation
of
the
train or supervise
(quoting Goodman v.
Harris County, 571 F.3d 388, 395 (5th Cir. 2009)).
"' [D]eliberate indifference' is a stringent standard of fault,
requiring proof
that a
municipal actor disregarded a
obvious consequence of his action."
known or
Board of County Commissioners
of Bryan County, Oklahoma v. Brown, 117 S. Ct. 1382, 1391 (1997);
City of Canton, Ohio v. Harris,
109 S. Ct.
1197, 1204-05
(1989)
("Only where a municipality's failure to train its employees in a
relevant
rights
of
respect
its
evidences
inhabitants
a
'deliberate
can
such a
indifference'
shortcoming
be
to
the
properly
thought of as a city 'policy or custom' that is actionable under
-18-
§
1983.").
To establish the requisite deliberate indifference in
this context, a plaintiff must show that the supervisory official
had "actual or constructive notice that a particular omission in
their training program causes city employees to violate citizens'
constitutional rights," but that the official nevertheless chose to
retain that program.
(2011)
Connick v. Thompson, 131 S. Ct. 1350, 1360
(citation and internal quotation marks omitted) .
"A pattern
of similar constitutional violations by untrained employees
ordinarily
necessary
to
demonstrate
deliberate
is
indifference,"
because "[w]ithout notice that a course of training is deficient in
a particular respect,
decisionmakers can hardly be said to have
deliberately chosen a training program that will cause violations
of constitutional rights."
Id.
Land has not demonstrated that his constitutional rights were
violated in this case.
Even assuming that a violation occurred, he
has not established a pattern of similar violations as the result
of a failure to train officers at the Jail or that the Sheriff
maintained
a
deficient
training
program
with
deliberate
indifference to the likelihood that such violations would occur.
Because Land has not raised a genuine issue of material fact on
this issue, he fails to establish liability on the part of Sheriff
Henderson or his predecessor, former Sheriff Tommy Gage, who was in
charge
of
the
Jail
while
Land
was
there.
Accordingly,
defendants are entitled to summary judgment on this issue.
-19-
the
IV.
Land's Motion to Seal
Citing the threats made by Wilson and concerns for his safety,
Land has filed a motion to seal these proceedings. 40
oppose the request,
The defendants
noting that court proceedings and judicial
records are typically open and accessible to the public as a matter
of common law. 41
"Courts have recognized that the public has a common law right
to inspect and copy judicial records."
990
F.2d
845,
Communications,
848
(5th
Inc.,
Broadcasting Corp. v.
Cir.
98
Clark,
s.
1993)
Ct.
S. E. C. v. Van Waeyenberghe,
(citing
1306,
654 F.2d 423,
Nixon
1312
429
v.
Warner
(1978);
(5th Cir 1981)).
Access may be restricted at a district court's discretion "where
court files might have become a vehicle for improper purposes."
Id.
"' [T] he district court's discretion to seal the record of
judicial proceedings is to exercised charily,'" and "must balance
the public's
common law right
favoring nondisclosure."
Id.
of access
against
the
interests
There is a "strong presumption that
[court] proceedings should be subject to scrutiny by the public" by
remaining unsealed.
United States v.
Holy Land Foundation for
Relief and Development, 624 F.3d 685, 690 (5th Cir. 2010)
(quoting
United States v. Ladd, 218 F.3d 701, 704 (5th Cir. 2000))
40
Plaintiff's Motion to Seal, Docket Entry No. 54, p. 1.
41
Defendants' Response to Plaintiff's Motion to Seal, Docket
Entry No. 56, p. 1.
-20-
The Complaint in this case stems from threats that were made
against Land while he was in custody at the Montgomery County Jail
over four years ago.
Land, who was recently released from state
prison on parole, has not presented any evidence showing that he
has been subjected to any additional threats, either by Wilson or
others associated with him,
since Land was transferred from the
Montgomery County Jail to TDCJ in 2014.
is
a
matter
of
public
record
Moreover, Land's address
because
he
is
subject
registration requirement as a convicted sex offender.
circumstances,
sealing these proceedings does
public's right of access.
Therefore,
to
a
Under these
not outweigh the
Plaintiff's Motion to Seal
will be denied.
V.
Conclusion and Order
Accordingly, the court ORDERS as follows:
1.
Defendants' Motion for Summary
Entry No. 45) is GRANTED.
Judgment
(Docket
2.
Plaintiff David Land's Motion Seeking That All
Proceedings Be Sealed (Docket Entry No. 54) is
DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the 20th day of June, 2018.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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