Martinez v. Stephens et al

Filing 27

MEMORANDUM OPINION AND ORDER GRANTING 19 MOTION to Dismiss Pursuant to Rule 12(b)(6), and 42 U.S.C.§ 1997e(a). (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FRANCISCO C. MARTINEZ, #01185238,
Plaintiff,
v.
WILLIAM STEPHENS, ET AL.,
Defendants.

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February 15, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-0195

MEMORANDUM OPINION AND ORDER
Plaintiff, a state inmate proceeding pro se, filed this section 1983 lawsuit against
Texas Department of Criminal Justice (“TDCJ”) officials William Stephens, Joni White, and
Tony O’Hare for violations of his constitutional rights. Defendants filed a motion to dismiss
(Docket Entry No. 19), to which plaintiff filed a response (Docket Entry No. 20).
Having considered the motion, the response, the record, and the applicable law, the
Court GRANTS the motion to dismiss and dismisses this lawsuit for the reasons that follow.
Background and Claims
Plaintiff is serving a life sentence for aggravated sexual assault of an 11-year-old boy.
He states that he has been assigned to protective custody for ten years. In January 2015, he
requested to be removed from protective custody at the Estelle Unit and be housed in general
population. He claims that despite an alleged recommendation of his request from the Unit
Classification Committee (UCC) in early February 2015, the State Classification Committee

(SCC) ultimately denied his request in late February 2015. He complains that prisoners in
protective custody are more restricted than prisoners in general population, and that his
continued housing in protective custody violates his constitutional rights. As judicial relief,
plaintiff asks this Court to grant a declaratory judgment and injunctive relief for his transfer
to general population. No monetary compensation is sought. (Docket Entry No. 13.)
Defendants argue that plaintiff failed to exhaust administrative remedies through the
prison grievance system prior to filing this lawsuit. They further argue that plaintiff’s
allegations fail to state a viable section 1983 as plaintiff fails to allege facts showing that the
named defendants had any personal involvement in the events made the basis of this lawsuit.
Failure to Exhaust
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, provides that “[n]o
action shall be brought with respect to prison conditions under § 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The
Fifth Circuit Court of Appeals has recognized this exhaustion requirement as “mandatory and
nondiscretionary,” Moussazadeh v. Texas Dep’t of Criminal Justice, 703 F.3d 781, 788 (5th
Cir. 2012), and has held that “district courts have no discretion to waive the PLRA’s
pre-filing exhaustion requirement.” Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
The exhaustion requirement applies to “all inmate suits about prison life, whether they

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involve general circumstances or particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion under the PLRA requires “proper exhaustion.” Woodford v. Ngo, 548 U.S.
81, 88 (2006). To properly exhaust administrative remedies, “a prisoner must complete the
administrative review process in accordance with the applicable procedural rules.” Id.
Although the PLRA itself does not specify what constitutes proper exhaustion, the Supreme
Court has held that this involves asking whether the prisoner has complied with the prison
grievance process of his unit of confinement. Jones v. Bock, 549 U.S. 199, 218–19 (2007).
Texas prisons use a two-step formal grievance process. Johnson v. Johnson, 385 F.3d
503, 515 (5th Cir. 2004). A Texas prisoner must file a step 1 grievance within fifteen days
of the incident being grieved. Id. Upon receiving an adverse step 1 grievance response, a
prisoner may then appeal by filing a step 2 grievance within fifteen days. Id. The Fifth
Circuit requires a prisoner to strictly adhere this prison grievance procedure to exhaust a
claim. Id. (“[A] prisoner must pursue a grievance through both steps for it to be considered
exhausted.”); Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (“Under our strict
approach, we have found that mere ‘substantial compliance’ with administrative remedy
procedures does not satisfy exhaustion.”).
Defendants state that the SCC denied petitioner’s request to return to the general
population on February 19, 2015; accordingly, he had fifteen days in which to file a step 1

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grievance – that is, by March 6, 2015. Plaintiff filed his step 1 grievance on March 12, 2015,
and prison officials received the grievance on March 16, 2015. Defendants contend that this
untimely grievance resulted in plaintiff’s failure to exhaust his administrative remedies.
Plaintiff counters defendants’ argument by pointing out that the correct chronology
of events is stated in his step 1 grievance filed March 12, 2015; as stated therein, he did not
receive notice of the SCC’s final decision until March 2, 2015, and that his step 1 grievance
was timely filed on March 12, 2015. The step 1 grievance response, however, also shows
that the UCC denied plaintiff’s request on February 5, 2015. Thus, the underlying triggering
dates are unclear from the parties’ arguments and documents.
It appears that removal of a prisoner from protective custody is a two-tiered process,
requiring decisions at both the UCC and SCC level. The Court has not been provided
sufficient information by any party as to the prison’s requirements and procedures for
exhausting administrative remedies under such circumstances. Plaintiff states that he
exhausted his administrative grievances. It is not clear whether he did, or did not, exhaust
his grievances as to both the UCC and SCC decisions, nor is it entirely clear that
administrative grievance exhaustion was required at both levels under prison rules and
regulations. Given these uncertainties, the Court declines to dismiss this lawsuit for failure
to exhaust administrative remedies.

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Failure to State a Claim
Plaintiff claims that defendants violated his Eighth and Fourteenth Amendment rights
in refusing to move him from protective custody to general population housing. Defendants
argue that plaintiff has not set forth factual allegations in his second amended complaint
showing that the named defendants were personally involved in the underlying decision to
keep plaintiff in protective custody.
It is well established that, to establish a viable section 1983 claim against a prison
employee, an inmate must show that the prison employee was personally involved in the
alleged constitutional violation. Section 1983 does not give a cause of action based on the
conduct of subordinates. Monell v. New York Department of Social Services, 436 U.S. 658,
693 (1978). Personal involvement is an essential element of a civil rights cause of action.
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983); see also Rizzo v. Goode, 423 U.S.
362, 371–72, 377 (1976) (holding that an affirmative link is needed between an injury and
conduct of a defendant).
Liability based on supervisory capacity exists only if the supervisor was personally
involved in the constitutional deprivation, or if a sufficient causal connection existed between
his or her wrongful conduct and the deprivation. Thompkins v. Belt, 828 F.2d 298, 304 (5th
Cir. 1987). Such liability exists even without overt participation if the supervisor implements
a policy that is itself a repudiation of constitutional rights and is the moving force behind the
constitutional violation. Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002).

Plaintiff has named as defendants William Stephens (former TDCJ Director), Joni
White (TDCJ Assistant Director for Classification and Records) , and Tony O’Hare (Warden
of the Estelle Unit).
Defendant Williams Stephens
A careful review of plaintiff’s second amended complaint, as well as the record as
a whole, shows no factual allegations of personal involvement as to Stephens. Although
plaintiff states that he sent a letter to Stephens protesting the SCC’s decision and that
Stephens referred the issue to the Ombudsman’s Office, these allegations establish no
independent wrongful act by Stephens or a causal link or connection between Stephen’s
actions and SCC’s decision. Indeed, plaintiff’s allegations clearly show that the root of the
alleged constitutional denial was the SCC’s decision, which had already occurred at the time
he wrote to Stephens. Although plaintiff also asserts that Stephens was “legally responsible
for the overall operation of the [TDCJ],” such allegation does not give rise to personal
involvement in plaintiff’s claims.
Plaintiff has not pleaded factual allegations showing that Stephens was personally
involved in a constitutional violation, that wrongful conduct by Stephens was causally
connected to a constitutional violation, or that Stephens implemented a constitutionally
deficient policy which was the moving force behind a constitutional deprivation. The mere
fact that Stephens was director of the prison system does not give rise to section 1983
liability for the actions of subordinate officers. To any extent plaintiff claims that Stephens
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failed to supervise his employees, plaintiff fails to allege any facts supporting such a claim.
That plaintiff disagrees with the classification decision is not a factual allegation supporting
a failure to supervise. Plaintiff has failed to state a claim against Stephens upon which relief
may be granted, and Stephen’s motion to dismiss is granted.
Defendant Tony O’Hare
Nor has plaintiff set forth factual allegations of personal involvement as to O’Hare.
At most, plaintiff’s allegations state that the prior Estelle Unit warden, Tracy Bailey, signed
a grievance response that denied plaintiff’s grievance. Because the denial of a prisoner’s
administrative grievance is not actionable under section 1983, no wrongful conduct as to
either Bailey or O’Hare is alleged. See Geiger v. Jowers, 404 F.3d 371, 373–74 (5th Cir.
2005). The Fifth Circuit Court of Appeals has not held that the signing of a response to a
grievance constitutes “personal involvement” for purposes of section 1983, and this Court
is not inclined to so find.
Plaintiff has not pleaded factual allegations showing that O’Hare was personally
involved in a constitutional violation, that wrongful conduct by O’Hare was causally
connected to a constitutional violation, or that O’Hare implemented a constitutionally
deficient policy which was the moving force behind a constitutional deprivation. The mere
fact that O’Hare was senior warden of the Estelle Unit does not give rise to section 1983
liability for the actions of subordinate officers or of the SCC. That plaintiff disagrees with
the classification decision is not a factual allegation supporting a failure to supervise.
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Plaintiff has failed to state a claim against O’Hare upon which relief may be granted, and
O’Hare’s motion to dismiss is granted.
Defendant Joni White
Plaintiff fares no more favorably in his claims against White. White, as the Assistant
Director for Classification and Records, supervises the management of intake and
classification operations and of the State Classification Committee and Classification
Records Office. Plaintiff does not allege that White herself makes classification decisions,
nor does he allege that she was involved in the decision to maintain his protective custody
status. Indeed, plaintiff pleads no factual allegations for a cause of action against White.
Plaintiff has not pleaded factual allegations showing that White was personally
involved in a constitutional violation, that wrongful conduct by White was causally
connected to a constitutional violation, or that White implemented a constitutionally deficient
policy which was the moving force behind a constitutional deprivation. The sole fact that
White was an assistant director for TDCJ-wide classification and records does not give rise
to section 1983 liability for the actions of subordinate officers or of the SCC. That plaintiff
disagrees with the classification decision is not a factual allegation supporting a failure to
supervise. Plaintiff has failed to state a claim against White upon which relief may be
granted, and White’s motion to dismiss is granted.
The Court allowed plaintiff to amend his complaint against the defendants, and it has
thoroughly reviewed his response in opposition to the motion to dismiss. The Court is
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satisfied that plaintiff has been provided ample opportunity to plead his best case, and that
he has pleaded and presented his best case in this instance.
Conclusion
Defendants’ motion to dismiss (Docket Entry No. 19) is GRANTED and this lawsuit
is DISMISSED WITHOUT PREJUDICE for failure to state colorable claim for which relief
can be granted under section 1983. Any and all pending motions are DENIED AS MOOT.
This dismissal constitutes a “strike” for purposes of section 1915(g), and is plaintiff’s
third strike. See Martinez v. Stephens, C.A. No. H-04-2252 (S.D. Tex. May 4, 2015);
Martinez v. Livingston, C.A. No. 6:11-cv-0063 (W.D. Tex. Oct. 4, 2011). Plaintiff is now
barred from proceeding in forma pauperis in any federal civil lawsuit or appeal unless he
shows that he is in imminent danger of serious physical injury at the time of filing.
Signed at Houston, Texas on February 15, 2017.

Gray H. Miller
United States District Judge

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