Land v. Gage et al
Filing
7
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
November 09, 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAVID WAYNE LAND, TDCJ #1915216,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
SHERIFF TOMMY GAGE, et al.,
Defendants.
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-2607
MEMORANDUM OPINION AND ORDER
The plaintiff, David Wayne Land (TDCJ #1915216), has filed a
Prisoner's
Civil
("Complaint")
incarcerated,
Rights
(Docket
Complaint
Entry
No.
under
1)
42
U.S.C.
Because
§
plaintiff
1983
is
the court is required to scrutinize the claims and
dismiss the Complaint, in whole or in part, if it determines that
the Complaint "is frivolous, malicious, or fails to state a claim
upon which relief may be granted" or "seeks monetary relief from a
defendant who is immune from such relief."
28 U.S.C.
§
1915A(b).
After considering the pleadings, the court concludes that this case
will be dismissed for the reasons explained below.
I.
Background
Land is currently incarcerated by the Texas Department of
Criminal Justice
The
defendants
are
Correctional Institutions Division
Montgomery
County
Sheriff
Tommy
( "TDCJ") .
Gage
and
Lieutenant Myrick. 1
As outlined below, Land's Complaint concerns
the conditions of his previous confinement at the Montgomery County
Jail.
Land alleges that while in custody of the Montgomery County
Jail in December of 2013 he volunteered to testify against another
inmate identified as Robert L. Wilson,
cell. 2
who was in a neighboring
Wilson found out and began to abuse Land by threatening
Land's life and the lives of his family.
3
Jail Administration was
reportedly aware of Land's effort to testify against Wilson, and
Land told Lieutenant Myrick about Wilson's abuse. 4
Land was never
moved from the "hostile environment" and was subject to Wilson's
abuse "night and day" for 160 days.
5
Land was told by a corporal
that Jail Administration was aware of the matter but was "listening
in" on Wilson's cell, in hopes to "catch" him making threats to use
against him in court. 6
Land complains that he was used as bait. 7
Land does not seek damages from the defendants individually.
Rather,
Land
seeks
"punitive
and
monetary
1
Complaint, Docket Entry No. 1, at 3.
2
Id. at 4.
3
Id.
4
Id.
5
Id.
6
Id.
7
Id.
-2-
damages"
from
Montgomery County and a formal apology for the psychological abuse
that he endured. 8
II.
A.
Discussion
Plaintiff Did Not Exhaust Administrative Remedies
Land's Complaint is governed by the Prison Litigation Reform
Act
("PLRA"),
remedies
which requires prisoners to exhaust administrative
before
§
1997e (a)
§
1997e(a)
filing
The
suit
Supreme
in
federal
Court has
court.
See
U. s . C.
42
repeatedly emphasized that
mandates exhaustion of all administrative procedures
before an inmate can file a suit challenging prison conditions.
See Booth v.
Nussle,
2378,
122
Churner,
Ct.
1819,
1825
(2001);
Porter v.
s. Ct. 983, 988 (2002); Woodford v. Ngo, 126 S. Ct.
2382-83
918-19
121 S.
(2007)
(2006);
see also Jones v.
(confirming
that
"[t] here
Bock,
is
127 S.
no
Ct.
910,
question
that
exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court").
The Montgomery County Jail facility has a two-step grievance
process.
See Cameron v. Correctional Healthcare Cos., Civil Action
No. H-14-1603, 2015 WL 4526932, *3 (S.D. Tex. July 23, 2015).
Under
the first step an inmate must fill out a grievance form and place it
in
a
sealed
envelope
grievance.
8
stating
the
allegation
or
need
for
the
The Jail's Grievance Officer then reviews and
Id. at 3, 4.
-3-
investigates each grievance form and returns a written decision to
the inmate within 15 days.
Id.
Grievance Officer's decision,
If the inmate disagrees with the
the inmate must then complete the
second step of the grievance process by filing an appeal to the Jail
Administrator.
If the inmate does not agree with the Jail
Administrator's decision, the inmate may then appeal the decision to
the Montgomery County Sheriff, whose decision is final.
Id.
Land concedes in his Complaint that he did not exhaust the
jail grievance procedure with respect to the claims that he raises
in this action.
exhaustion
of
9
The Fifth Circuit has emphasized that "pre-filing
prior
grievance
process
is
mandatory"
and
that
district courts lack discretion to excuse a prisoner's failure to
exhaust his administrative remedies.
785,
788
(5th Cir. 2012).
Gonzalez v. Seal,
702 F.3d
Where the face of the complaint makes
clear that an inmate has failed to exhaust administrative remedies,
a district court may dismiss the complaint without requesting an
answer from the defendants.
272
n.3
(5th Cir.
2010)
See Dillon v. Rogers,
(noting
that
sua
sponte
596 F.3d 260,
dismissal
is
appropriate where "failure to exhaust is apparent on the face of a
plaintiff•s complaint")
(citing Carbe v.
Lappin,
492
F.3d 325,
327-28 (5th Cir. 2007)).
Because Land failed to exhaust available
administrative remedies before filing suit in federal court, his
complaint must be dismissed.
9
Complaint, Docket Entry No. 1, at 3.
-4-
B.
Alternatively, the Complaint Fails to State a Claim
Land seeks monetary damages from Montgomery County for the
mental anguish that he experienced as
hostile environment.
a
result
of being in a
To the extent that Land seeks compensatory
damages his claims fail as a matter of law because the PLRA,
U.S.C.
§
42
1997e(e), bars recovery of these types of damages absent
a showing that the plaintiff suffered a physical injury while in
custody.
The Fifth Circuit has held that allegations of "mental
anguish, emotional distress, psychological harm, and insomnia" are
barred by§ 1997e(e).
Cir.
2005).
injury
in
See Geiger v. Jowers, 404 F.3d 371, 374 (5th
Absent an allegation that Land suffered a physical
connection
with
the
complained
of
condition
of
confinement, his claim for compensatory damages lacks an arguable
basis in law and is subject to dismissal for failure to state a
claim upon which relief can be granted.
28 U.S.C. § 1915(e) (2) (B);
Geiger, 404 F.3d at 374.
Moreover,
Land
has
failed
to
state
a
claim
against
Montgomery County or against Sheriff Gage and Lieutenant Myrick in
their official capacities as municipal employees.
As a unit of
local government, Montgomery County cannot be held liable under 42
U.S.C. § 1983 for the actions of officers or employees on a theory
of respondeat superior.
Monell v. Dep't of Social Servs. of the
City of New York, 98 S. Ct. 2018, 2036 (1978).
A municipality such
as Montgomery County is only liable under § 1983 for a deprivation
of rights protected by the Constitution or federal laws that is
-5-
inflicted pursuant to official policy.
Id.
at 2037-38.
Thus,
municipal liability under§ 1983 requires a showing that "(1) an
official
policy
( 2)
promulgated
by
the
municipal
policymaker
(3) was the moving force behind the violation of a constitutional
right."
2010)
Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th Cir.
(citation omitted) .
Land does not allege facts showing that any particular policy
caused him to suffer an injury in this instance.
As such,
his
allegations are insufficient to establish municipal liability.
See
Spiller v. City of Texas City, Police Dep't, 130 F.3d 162, 167 (5th
Cir.
1997)
For this additional reason,
his Complaint will be
dismissed for failure to state a claim upon which relief may be
granted.
III.
Conclusion and Order
Based on the foregoing,
(Docket Entry No.
1)
the court ORDERS that the Complaint
is DISMISSED with prejudice for failure to
state a claim.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties.
The Clerk will also provide a
copy
transmission,
(1)
by
regular
mail,
facsimile
the TDCJ - Office of the General Counsel,
or
P.O.
e-mail
to:
Box 13084,
Austin, Texas 78711, Fax Number 512-936-2159; and (2) the District
Clerk for the Eastern District of Texas, Tyler Division, 211 West
-6-
Ferguson,
Tyler,
Texas 75702,
Attention:
Manager of the Three-
Strikes List.
SIGNED at Houston, Texas, on this 9th day of November, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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