Hicks v. Grant et al

Filing 40

MEMORANDUM AND ORDER granting 16 MOTION to Dismiss; granting , 36 MOTION to Dismiss . The 1 Complaint and the 27 Amended Complaint are dismissed. (Signed by Judge Kenneth M Hoyt) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JESSE DALE HICKS,
Plaintiff,
VS.
ROBERT GRANT, et al,
Defendants.

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September 18, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-CV-3752

MEMORANDUM AND ORDER
Plaintiff Jesse Dale Hicks filed a complaint and an amended complaint1 under 42 U.S.C.
§ 1983 and the Americans With Disabilities Act (“ADA”) alleging violations of his
constitutional and statutory rights. Defendants Robert Grant and Jacqueline Benton filed a
motion to dismiss on February 6, 2017, and defendant Rachel Primrose filed a motion to dismiss
on July 21, 2017. Hicks responded to both motions. For the reasons stated below, defendants’
motions to dismiss are granted, and the complaint and amended complaint are dismissed with
prejudice.
I.

Background
Hicks is an inmate in the Texas Department of Criminal Justice (“TDCJ”). He was

designated as a security threat based on what he alleges was an erroneous conclusion that he is a
member of a prison gang. Because of that classification, he is in administrative segregation.
Hicks was admitted to the Administrative Segregation Diversion Program (“ASDP”), a
rehabilitative program allowing inmates to renounce their gang affiliation and to be moved from

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The Amended Complaint did not raise any new claims, but merely substituted
defendant R. Primrose for a defendant erroneously named in the original complaint.

administrative segregation to general population. He was transferred to the TDCJ’s Ellis Unit to
participate in this program.
Hicks alleges that an unidentified TDCJ medical doctor advised TDCJ staff that Hicks
could not remain at the Ellis Unit because Hicks suffers from congestive heart failure and the
Ellis Unit was not equipped to provide the necessary medical care. Hicks alleges that defendants
Grant and Benton removed Hicks from the ASDP, and he was placed in administrative
segregation at the Polunsky Unit. He alleges that defendant Primrose acquiesced in the alleged
ongoing violations of his rights, apparently by refusing to take action to return him to the ASDP.
Hicks contends that these actions violated his rights under the ADA and the United States
Constitution.2
II.

Analysis
A.

Standard of Review

In reviewing a motion to dismiss under rule 12(b)(6), the complaint must be liberally
construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true.
Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). The standard of review under
rule 12(b)(6) has been summarized as follows: "The question therefore is whether in the light
most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states
any valid claim for relief." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 601 (1969).

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Hicks does not identify a specific constitutional right that he believes the defendants
violated. Presumably, he asserts his rights under the Eighth and Fourteenth
Amendments.

B.

Exhaustion of Remedies

Before bringing a federal lawsuit challenging prison conditions, a prisoner must first
exhaust available administrative remedies. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199
(2007).
The Texas prison system has developed a two-step formal
grievance process. The Step 1 grievance, which must be filed
within fifteen days of the complained-of incident, is handled within
the prisoner's facility. After an adverse decision at Step 1, the
prisoner has ten days to file a Step 2 grievance, which is handled at
the state level. This court has previously held that a prisoner must
pursue a grievance through both steps for it to be considered
exhausted.
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir., 2004).
Defendants argues that Hicks’ grievance does not identify any of them. Hicks responds
that his grievance is sufficient because it complains about his removal from the ASDP, and about
his return to administrative segregation.3
Grant and Benton note that any actions they took were in response to orders from TDCJ
medical personnel. Nothing in Hicks’ Step 1 grievance suggests that the defendants violated
Hicks’ rights. His only specific complaints concern “the [medical] provider on Ellis Unit,” and
the State Classification Committee. Id. Hicks points to no grievance concerning Primrose.
The Fifth Circuit has explained that a grievance must give prison administrators enough
information to address the complaint.
[A]s a practical matter, the amount of information necessary will
likely depend to some degree on the type of problem about which
the inmate is complaining. If an inmate claims that a guard acted
improperly, we can assume that the administrators responding to
the grievance would want to know—and a prisoner could
ordinarily be expected to provide—details regarding who was
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The grievance is attached to the Complaint.

involved and when the incident occurred, or at least other available
information about the incident that would permit an investigation
of the matter.
Johnson, 385 F.3d at 517.
Hicks’ grievance complained only about the actions taken by the medical provider and
the classification committee. Nothing in the grievance gives administrators notice of any alleged
wrongdoing by any of the defendants.
Because Hicks did not properly pursue the grievance process with regard to the
defendants, he has failed to properly exhaust his available administrative remedies. Therefore,
this case must be dismissed. 42 U.S.C. § 1997e(a).
C.

Conclusion

For the foregoing reasons, the defendants’ motions to dismiss are granted.
III.

Order
It is ORDERED that:
1.

The motions to dismiss (Doc. # 16 and 36) are GRANTED; and

2.

The Complaint (Doc. # 1) and Amended Complaint (Doc. # 27) are DISMISSED

WITH PREJUDICE.
SIGNED on this 18th day of September, 2017.
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Kenneth M. Hoyt
United States District Judge

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