Weaver v. Collier et al

Filing 48

MEMORANDUM AND ORDER denying 11 , 12 MOTIONS to Dismiss. The motions to dismiss are denied as to plaintiffs Eighth Amendment claims for injunctive relief against defendants Collier, Gonzalez, and Blake, and as to plaintiffs Eighth Amendment claims for money damages against defendants Collier, Gonzalez, and Blake in their individual capacities.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CALVIN EDWARD WEAVER,
Plaintiff,
VS.
BRYAN COLLIER, et al,
Defendants.

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March 29, 2019
David J. Bradley, Clerk

CIVIL ACTION NO. 4:18-CV-1652

MEMORANDUM AND ORDER
Calvin Edward Weaver, proceeding pro se, filed suit under 42 U.S.C. § 1983 alleging
violations of his civil rights. The defendants moved to dismiss in two separate motions on
August 13, 2018. One motion was brought by defendants Bryan Collier, James Blake, and
Warden Comstock. The other motion is brought by Kwabena Owusu, M.D., and Jose Gonzalez.
All the defendants are employed by Texas Department of Criminal Justice (“TDCJ”). Weaver
responded to the motions on November 28, 2018. Based on the pleadings, the motions, and the
applicable law, the defendants’ motions are granted in part and denied in part.
I.

Background
Weaver alleges that he was diagnosed “as being hyper-allergic to the wool blanket issued

by TDCJ.” Complaint (Doc. # 1), at 4. He contends that he was issued a medical pass approving
him for a cotton blanket, but that the pass was not renewed in 2009. He further alleges that in
2009, TDCJ issued all inmates who were allergic to wool a non-wool blanket “with a recycled
blend of waste by-products.” Id. He alleges that the new blankets caused itching, open sores,
and sleep deprivation resulting in hypertension and anxiety. Id. At 5. He alleges that defendant
Dr. Owusu “failed to report [an] inhumane policy instituted by contaminated blanket use,” id. at

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3, and defendant Gonzalez ignored his complaints about the blanket. The defendants now move
to dismiss the complaint under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure.
II.

Analysis
A.

Standard of Review
1.

The Rule 12(b)(1) Standard

A federal court must dismiss a case for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) when the court lacks the statutory or constitutional power to
adjudicate the plaintiff’s claims. Home Builders Assoc' of Miss., Inc., v. City of Madison, 143
F.3d 1006, 1010 (5th Cir.1998). In resolving a motion under Rule 12(b)(1), a court may refer to
evidence outside the pleadings. Espinoza v. Mo. Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (5th
Cir.1985). When the jurisdictional issue is of a factual nature rather than facial, plaintiff must
establish subject matter jurisdiction by a preponderance of the evidence. Irwin v. Veterans
Admin., 874 F.2d 1092, 1096 (5th Cir.1989).
2.

The Rule 12(b)(6) Standard

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).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted).

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B.

Eleventh Amendment Immunity

All the defendants argue that they are immune from Weaver’s claims for money damages
against them in their official capacities. “[I]n the absence of consent a suit in which the State or
one of its agencies or departments is named as the defendant is proscribed by the Eleventh
Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A suit for
damages against a state official in his official capacity is not a suit against the individual, but
against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991). Because Weaver’s claims against the
defendants in their official capacities are claims against the State of Texas, Weaver’s official
capacity claims for money damages are barred by the Eleventh Amendment.
C.

Injunctive Relief

Weaver seeks injunctive relief directing the defendants to replace his blanket and for a
medical examination by a third party. Defendants Collier, Blake, and Comstock seek dismissal
of this claim. They argue that his claim is medical in nature, that they are not doctors, and that
they therefore cannot provide the relief requested. They also argue that Weaver’s claim for
injunctive relief is barred by the Eleventh Amendment.
Defendant Collier is the Executive Director of TDCJ, defendant Comstock is the Warden
of Weaver’s unit, and defendant Blake is, according to the complaint, a TDCJ Major and Unit
Supervisor. These defendants’ argument that replacing Weaver’s blanket is beyond their power
because they are not Medical Doctors is disingenuous. It appears from the complaint that each
of these defendants is in a position of authority and could, presumably, order that Weaver receive
another blanket, or that he receive a medical evaluation. Reading the allegations liberally,
Weaver alleges that he is suffering physical injury caused by an allergic reaction to the blanket,

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and that these defendants are each in a position to remedy the situation. He therefore pleads
sufficient facts to withstand a motion to dismiss this claim.
Defendants’ Eleventh Amendment argument is also misplaced.

As the defendants

acknowledge, under Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not
bar prospective injunctive relief against state officials. Weaver alleges a violation of his Eighth
Amendment rights and seeks prospective injunctive relief to remedy that violation. This claim
falls under Young and is not barred by the Eleventh Amendment.
D.

Qualified Immunity

Defendants Owusu and Gonzalez argue that they are entitled to qualified immunity.
“The doctrine of qualified immunity shields public officials . . . from damages actions unless
their conduct was unreasonable in light of clearly established law.” Elder v. Holloway, 510 U.S.
510, 512 (1994). The Fifth Circuit has held that, to overcome qualified immunity, “pre-existing
law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the
conclusion for every like-situated, reasonable government agent that what the defendant is doing
violates federal law in the circumstances.” Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997)
(internal quotation marks and citation omitted).
1.

Dr. Owusu

Weaver’s complaint regarding Dr. Owusu alleges only that he “failed to report inhumane
policy instituted by contaminated blanket use.” Complaint (Doc. # 1) at 3). Yet, Weaver never
alleges any facts showing that the blankets distributed to TDCJ inmates are contaminated, or that
they have caused widespread health problems. He therefore fails to identify any policy regarding
the blankets that even arguably violates the Eighth Amendment, and thus fails to identify
anything that Dr. Owusu should have reported. It necessarily follows that Weaver fails to

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identify any conduct by Dr. Owusu that was unreasonable in light of clearly established law. Dr.
Owusu is therefore qualifiedly immune and is entitled to dismissal of the claims against him.
2.

Defendant Gonzalez

Defendant Jose Gonzalez is identified in the complaint as the Senior Practice Manager of
the Terrell Unit medical practice. Weaver alleges that Gonzalez “[i]gnored repeated outcries by
[plaintiff] for relief from extreme pain and suffering.” Complaint (Doc. # 1) at 3.
Liberally construing the allegations and taking them to be true, Weaver alleges that he
suffered a severe reaction to the blanket which included open sores, that he notified defendant
Gonzalez, and that Gonzalez failed to take any action to address Weaver’s medical condition.
It has been clearly established for decades that prison authorities have an Eighth
Amendment duty to treat inmates’ serious medical needs. An Eighth Amendment violation may
occur where “denial of medical care may result in pain and suffering which no one suggests
would serve any penological purpose.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Therefore,
under the liberal reading due to the complaint on a motion to dismiss, Weaver alleges that
Gonzalez ignored Weaver’s complaints of a serious medical need. These actions or omissions
are unreasonable under clearly established law, and Gonzalez is not entitled to qualified
immunity based on the allegations in the complaint.
E.

Deliberate Indifference

All the defendants argue that Weaver fails to plead facts sufficient to show that they were
deliberately indifferent to his serious medical needs. The Eighth Amendment “establish[es] the
government's obligation to provide medical care for those whom it is punishing by
incarceration.” Gamble, 429 U.S. at 103. To rise to the level of a constitutional violation,
however, prison officials must exhibit deliberate indifference to the prisoner’s serious medical

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needs. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “Deliberate indifference” is more than
mere negligence, Gamble, 429 U.S. at 104-06, but “something less than acts or omissions for the
very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835.
Rather, deliberate indifference requires that the defendant be subjectively aware of a substantial
risk of serious harm to the inmate and recklessly disregard that risk. Id. at 829, 836.
Deliberate indifference is an extremely high standard to meet . . .
[T]he plaintiff must show that the officials “refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.”
Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001)(quoting Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
The defendants argue that Weaver fails to plead facts showing that they were subjectively
aware of a substantial risk of serious harm and recklessly disregarded that risk. As noted above,
that assertion is correct as to defendant Owusu. Similarly, Weaver fails to plead any facts
alleging that defendant Comstock was subjectively aware of Weaver’s alleged adverse reaction
to the blanket. Instead, Weaver merely pleads that Comstock “[f]ailed to provide adequate
procedural modifications to urgent care needs . . . .” This is inadequate to show the subjective
knowledge necessary to establish an Eighth Amendment violation.
Weaver does, however, allege that defendants Collier, Gonzalez, and Blake all had
personal knowledge of his medical needs. He alleges that, despite this knowledge, defendant
Collier “issued a denial of the [plaintiff]’s request . . .,” that defendant Gonzalez ignored
repeated requests for medical attention, and that defendant Blake ignored repeated requests for
medical treatment. Under the liberal reading required on a motion to dismiss, these allegations
are sufficient to state a claim for deliberate indifference to Weaver’s serious medical needs.

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F.

Due Process

Weaver alleges that the defendants’ alleged actions constitute an “absolute denial of due
process . . . .” Complaint (Doc. # 1) at 5. The due process clause protects against the loss of life,
liberty, or property without due process of law. U.S. CONST. amend. XIV. Weaver does not
allege the loss of life or property and fails to identify any liberty interest implicated by the
defendants’ alleged actions or omissions. While Weaver cites section 614.007 of the Texas
Health and Safety Code, that provision requires officials to develop a plan for the treatment of
inmates’ medical needs. Weaver does not allege that no such plan exists, but rather that the
defendants neglected to treat his particular medical needs. Because Weaver fails to identify any
deprivation of a liberty interest, he fails to state a due process claim.
G.

Statute of Limitations

Finally, the defendants argue that Weaver’s complaint is barred by the statute of
limitations.
Because there is no federal statute of limitations for civil rights
actions brought pursuant to 42 U.S.C. § 1983, a federal court
borrows the forum state's general personal injury limitations
period. Owens v. Okure, 488 U.S. 235, 249–50, 109 S.Ct. 573,
581–82, 102 L.Ed.2d 594 (1989); Jackson v. Johnson, 950 F.2d
263, 265 (5th Cir.1992). In Texas, the applicable limitations period
is two years.
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
Defendants argue that Weaver’s claims accrued in 2009, when Weaver was denied
renewal of his medical pass for a cotton blanket. Weaver argues that he alleges a continuing tort,
and that the limitations period would not begin to run until the last in the continuing run of acts
or omissions constituting the tort has occurred.

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While the limitations period is determined by reference to state
law, the standard governing the accrual of a cause of action under
section 1983 is determined by federal law. See, e.g., Watts v.
Graves, 720 F.2d 1416, 1423 (5th Cir.1983); Lavellee v. Listi, 611
F.2d 1129, 1131 (5th Cir.1980). The standard provides ‘that the
time for accrual is when the plaintiff knows or has reason to know
of the injury which is the basis of the action.’” Listi, 611 F.2d at
1131 (quoting Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975)).
Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989).
Weaver contends that he is being harmed by the new blankets issued in 2009 when his
medical pass was not renewed. Complaint (Doc. # 1) at 4. He also complains, however, that
defendants Gonzalez, and Blake have ignored repeated requests for medical attention, and that
defendant Collier ignored a request for assistance. “[W]hen a tort involves continuing injury, the
cause of action accrues and the limitations period begins to run, at the time the tortious conduct
ceases.” Donaldson v. O’Connor, 493 F.2d 507, 529 (5th Cir. 1974), vacated and remanded on
other grds., 423 U.S. 885 (1975).
While Weaver does not specify the dates on which Collier, Blake, and Gonzalez
allegedly ignored his requests for help, it is the defendants’ burden to prove that a claim is timebarred. See Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. 2000). In these
motions to dismiss, defendants Collier, Gonzalez, and Blake have not shown that their alleged
acts of disregarding plaintiff’s medical complaints last occurred more than two years before
Weaver filed his complaint. Therefore, they are not entitled to dismissal on limitations grounds.
III.

Conclusion

For the foregoing reasons, the defendants’ motions to dismiss (Docs. # 11 and 12) are
GRANTED IN PART AND DENIED IN PART. All of plaintiff’s claims against defendants
Comstock and Owusu are dismissed with prejudice. Plaintiff’s claims for money damages

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against defendants Collier, Gonzalez, and Blake in their official capacities and his due process
claim are dismissed with prejudice.
The motions to dismiss are denied as to plaintiff’s Eighth Amendment claims for
injunctive relief against defendants Collier, Gonzalez, and Blake, and as to plaintiff’s Eighth
Amendment claims for money damages against defendants Collier, Gonzalez, and Blake in their
individual capacities.
It is so ORDERED.
SIGNED on this 29th day of March, 2019.
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Kenneth M. Hoyt
United States District Judge

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