Alexander v. Texas Department Of Criminal Justice

Filing 36

MEMORANDUM AND ORDER Email sent to Manager of Three Strikes List. (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ARTRAI TURONE ALEXANDER,
TDCJ #2054329,
Plaintiff,
v.
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, et al.,
Defendants.

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November 28, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3520

MEMORANDUM AND ORDER
State inmate Artrai Turone Alexander has filed a complaint under 42 U.S.C.
§ 1983, concerning the conditions of his confinement in the Texas Department of
Criminal Justice - Correctional Institutions Division (“TDCJ”). At the Court’s
request, Alexander has submitted a more definite statement of his claims [Doc. # 14].
The State Attorney General’s Office has supplemented the pleadings further with a
special report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1987) (a
“Martinez Report”), which includes administrative records [Docs. # 28, # 29, # 30].
Alexander has filed an affidavit in response to the special report [Doc. # 33], as well
as a motion for appointment of counsel [Doc. # 32], and a motion for leave to file an
amended complaint [Doc. # 34]. After reviewing all of the pleadings and submissions,
the Court concludes that this case must be dismissed for reasons that follow.

I.

BACKGROUND
Alexander was admitted to TDCJ most recently on March 25, 2016,1 and is

currently confined at the Ferguson Unit in Midway, Texas. Alexander filed this
lawsuit originally against TDCJ, alleging that he was denied food and adequate
medical care in the form of medication for “chronic pain” and a mental health issue
when he was placed in a “red-tagged cell” for approximately 12-14 hours on or about
July 27, 2016.2 Alexander, who reportedly suffers from pain in his neck, back, and
legs as the result of an automobile accident that occurred in 2001 or 2002,3 claims
further that he asked a nurse practitioner for pain medication on July 27, 2016, but
was told he needed to submit a “sick call” request to see a physician.4 The Court
construes these claims to arise under the Eighth Amendment, which prohibits
conditions of confinement that are cruel and unusual.
Alexander has filed a motion for leave to amend the complaint, asserting that
the following defendants are liable for the July 27, 2016 incident: TDCJ, Warden
Rocky Moore, Assistant Warden Kevin Belt, Assistant Warden Lincoln Clark, and

1

More Definite Statement [Doc. # 14], at 1. For purposes of identification, all page
numbers refer to the pagination inserted by the Court’s electronic filing system, CM/ECF.
2

Complaint [Doc. # 1], at 3, 4; More Definite Statement [Doc. # 14], at 2.

3

More Definite Statement [Doc. # 14], at 2.

4

Id. at 2, 3.
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other unidentified supervisory officers (“leutenants [sic], sergents [sic], captains,
majors”).5 The Court will treat the motion for leave to amend as a proposed amended
complaint or supplemental pleading. Alexander seeks compensatory damages in the
amount of $150,000.00 and punitive damages in the amount of $35,000.00 from these
defendants.6
II.

STANDARD OF REVIEW
Alexander filed this civil action while incarcerated and he has been granted

leave to proceed in forma pauperis. Thus, the Court is required by the Prison
Litigation Reform Act (the “PLRA”) 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), § 1915(e)(2)(B).
“A district court may dismiss as frivolous the complaint of a prisoner
proceeding IFP if it lacks an arguable basis in law or fact.” Geiger v Jowers, 404 F.3d
371, 373 (5th Cir. 2005). “A complaint lacks an arguable basis in law if it is based on
an indisputably meritless legal theory, such as if the complaint alleges the violation

5

Motion to Amend Complaint [Doc. # 34], at 1.

6

Id. at 2.
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of a legal interest which clearly does not exist.” Siglar v. Hightower, 112 F.3d 191,
193 (5th Cir. 1997). The Fifth Circuit has authorized the use of a Martinez Report to
assist a district court in making a determination of frivolity. See Norton v. Dimazana,
122 F.3d 286, 292-93 (5th Cir. 1997).
Alexander proceeds pro se in this case. Complaints filed by pro se litigants are
entitled to a liberal construction and, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted). Even under
this lenient standard, however, a plaintiff must allege more than “labels and
conclusions’ or a ‘formulaic recitation of the elements of a cause of action[.]” Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To state a claim for which relief may be
granted, “[a] complaint must be plausible on its face based on factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Whitaker v. Collier, 862 F.3d 490, 497 (5th Cir. 2017) (internal
quotation marks and citations omitted).
III.

DISCUSSION
As an initial matter, Alexander does not state an actionable claim against TDCJ

because the Eleventh Amendment bars a suit for monetary damages under 42 U.S.C.

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§ 1983 against a state agency. See Martinez v. Texas Dep’t of Criminal Justice, 300
F.3d 567, 574 (5th Cir. 2002). The Eleventh Amendment also bars recovery of money
damages under § 1983 from state employees in their official capacity. See Oliver v.
Scott, 276 F.3d 736, 742 (5th Cir. 2001); Aguilar v. Texas Dep’t of Criminal Justice,
160 F.3d 1052, 1054 (5th Cir. 1998). Accordingly, the claims against TDCJ and all
of the individual defendants in their official capacity as state employees must be
dismissed.
Alexander also does not state an actionable claim against the officials listed in
his amended complaint in their individual or personal capacity. It is evident that these
individual defendants (Warden Rocky Moore, Assistant Warden Kevin Belt, Assistant
Warden Lincoln Clark, and other unidentified lieutenants, sergeants, captains, and
majors) are supervisory officials who did not have any personal involvement in the
underlying claims concerning the incident that forms the basis of Alexander’s
complaint about the conditions of his confinement on July 27, 2016. Without overt
personal participation in the complained of condition or action, liability is available
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 v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987) (citations and
internal quotation marks omitted); see also Porter v. Epps, 659 F.3d 440, 446 (5th Cir.

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2011) (“A supervisory official may be held liable [under § 1983] . . . if . . . he
implements unconstitutional policies that causally result in the constitutional injury”).
None of Alexander’s allegations implicate a particular policy or demonstrate the
requisite causal connection between the supervisory officials that he identifies and the
complained of conditions of confinement. Accordingly, Alexander fails to establish
liability on the part of the supervisory officials who are named in the proposed
amended complaint.
The Court has considered all of the pleadings and supplements filed by
Alexander, including his proposed amended complaint, and concludes that his
remaining allegations do not state a meritorious claim. In that regard, Alexander’s
claim that he was denied food for a period of 12 to 14 hours is insufficient to
demonstrate a constitutional violation. See Berry v. Brady, 192 F.3d 504, 507 (5th
Cir. 1999) (holding that denial of dinner on eight occasions over a seven-month span
failed to establish an Eighth Amendment violation).
Likewise, Alexander’s allegation that a nurse practitioner told him to submit a
sick call request to see a physician about his need for pain medication does not
establish that he was denied care with the requisite deliberate indifference for
purposes of stating a claim under the Eighth Amendment. See Estelle v. Gamble, 429
U.S. 97, 104 (1976). To establish deliberate indifference under this standard, the

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prisoner must show that the defendants were both (1) aware of facts from which an
inference of an excessive risk to the prisoner’s health or safety could be drawn, and
(2) that they actually drew an inference that such potential for harm existed. See
Farmer v. Brennan, 511 U.S. 825, 827 (1994). The deliberate indifference standard
is an “extremely high” one to meet. Domino v. Texas Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001). A showing of “mere negligence in failing to supply
medical treatment” will not suffice. See Gibbs v. Grimmette, 254 F.3d 545, 549 (5th
Cir. 2001); Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
Medical records provided by the Attorney General’s Office confirm that
Alexander was seen by Nurse Practitioner Wanda Isbell in the clinic on July 27, 2016,
for purposes of monitoring his blood pressure.7 He was also seen by a mental health
provider on that same day.8 Alexander’s treatment records reflect that he had several
prescriptions from a physician at that time for hypertension and depression, but no
prescription for pain medication.9 There is no record showing that he complained of
pain during these appointments or that he followed Nurse Isbell’s instructions by
submitting a sick call request to see a physician about his request for pain medication.
7

Correctional Managed Care, Provider Chronic Clinic Note [Doc. #29-2], at 11- 13;
[Doc. # 29-3], at 1-3 (Bates Stamp Nos. 121-26).
8

Correctional Managed Care, Outpatient Mental Health Services [Doc. # 30-2], at 12;
[Doc. # 30-3], at 1-2 (Bates Stamp Nos. 220-22)
9

Correctional Managed Care, Provider Chronic Clinic Note [Doc. #29-2], at 11.
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Because the medical records for the time period in question demonstrate that his
concerns were not being ignored, Alexander’s claim that he was denied medical
treatment in violation of the Eighth Amendment is without merit. See Varnardo v.
Lynaugh, 920 F.2d 320 (5th Cir. 1991); McCord v. Maggio, 910 F.2d 1248, 1251 (5th
Cir. 1990) (upholding the dismissal of a deliberate indifference to medical needs claim
where medical records document that the prisoner was not denied medical attention).
Although Alexander’s pleadings are difficult to decipher, the Court has
reviewed them carefully and can discern no other allegation that rises to the level of
a constitutional violation actionable under 42 U.S.C. § 1983. Accordingly, for all of
the foregoing reasons, the case will be dismissed as legally frivolous.10
IV.

CONCLUSION AND ORDER
The Court ORDERS as follows:
1.

This case is DISMISSED with prejudice under 28 U.S.C.
§ 1915(e)(2)(B) as legally frivolous.

2.

The dismissal will count as a strike under 28 U.S.C. § 1915(g).

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The Attorney General’s Office asserts that Alexander did not exhaust administrative
remedies as required by presenting his claims for consideration through TDCJ’s two-step
grievance process. See Martinez Report [Doc. # 28], at 4-5. Because the complaint fails for
other reasons, the Court does not address this argument.
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3.

Artrai Alexander’s motion for appointment of counsel [Doc. # 32] is
DENIED and, to the extent that it is not moot, his motion for leave to
file his amended complaint [Doc. # 34] is GRANTED.

The Clerk is directed to provide a copy of this order to the parties. The
Clerk will also provide a copy of this order to the Manager of the Three-Strikes
List at [e-mail].
SIGNED at Houston, Texas, on November 28, 2017.

NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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