Ward v. Texas Department of Criminal Justice et al

Filing 5

MEMORANDUM AND OPINION AND ORDER - The 1 Prisoner's Civil Rights filed by Marshall Todd Ward is DISMISSED with prejudice for failure to state a claim. The dismissal will count as a STRIKE for purposes of 28 U.S.C. §1915(g)...*** Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)

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Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 1 of 6 United States District Court Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MARSHALL TODD WARD, Inmate #380322, Plaintiff, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al. , Defendants. § § § § § § § § § § § ENTERED September 07, 2021 Nathan Ochsner, Clerk CIVIL ACTION NO. H-21-2649 MEMORANDUM OPINION AND ORDER The plaintiff, Marshall Todd Ward (Inmate #380322, former TDCJ #2205270, former BOP #24978-180), is a former state inmate who is presently in custody at the Collin County Detention Facility in McKinney, Texas. under 42 U.S.C. He has filed a Prisoner's Civil Rights Complaint § 1983 ("Complaint") (Docket Entry No. 1) against the Texas Department of Criminal Justice ( "TDCJ") and Governor Greg Abbott, seeking injunctive relief from prison overcrowding. Because the plaintiff proceeds in forma pauperis, the court is required to scrutinize the Complaint and dismiss the case if it determines that the action is "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." U.S.C. § 1915(e)(2)(B). 28 After considering all of the pleadings, the court concludes that this case must be dismissed for the reasons explained below. Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 2 of 6 I. Background Ward is a former TDCJ inmate who served time at the Byrd Unit in Huntsville and at the Jester III Unit, Richmond. 1 which is located in Ward contends that both facilities fail to provide adequate "living space" or square footage per inmate. 2 that overcrowded conditions in these TDCJ facil "landmark class action suit" involving the He claims ies violate a North Carolina Department of Corrections.3 Invoking 42 U.S.C. § 1983, Ward sues TDCJ and Governor Abbott, demanding that "all old prisons" conditions in all TDCJ facilit cell.4 be closed and that housing s be limited to only one inmate per Ward's Complaint will be dismissed because he fails to state a claim upon which relief may be granted. II. Discussion Ward may not file suit in federal court against TDCJ, which is a state agency protected by Eleventh Amendment immunity. See Complaint, Docket Entry No. 1, p. 4. Court records confirm that Ward has filed more than thirty civil actions while incarcerated, including a recent lawsuit involving the conditions of confinement at the Jester III Unit that was dismissed on June 30, 2020, after Ward's co-plaintiffs complained that he added Ward them as parties to the lawsuit without their permission. v. Trump, Civil Action No. H-20 1940 (S.D. Tex.) (Docket Entry Nos. 14, 17). 1 2 Complaint, Docket Entry No. 1, p. 4. -2- Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 3 of 6 Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th 878 F.2d 860, 861 (5th Cir. 1989) (per curiam) ("[TDCJ's] entitlement to immunity under the [E]leventh [A]mendment is clearly established in this circuit."). Unless expressly waived, the Eleventh Amendment bars an action in federal court by a citizen of a state against his or her own state, including a state agency. See Will v. Michigan Dep't of State Police, 109 S. Ct. 2304, 2309 (1989). Texas has not waived its Eleventh Amendment immunity and Congress did not abrogate that immunity when it enacted 42 U.S.C. § 1983. See NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 2015) (citing Quern v. Jordan, (5th (1979)). 99 S. Ct. 1139, 1145 Therefore, Ward fails to state a claim against TDCJ. There is a narrow exception to Eleventh Amendment immunity that applies to claims for prospective unctive relief against a state official who is alleged to have violated federal law. See McKinley v. Abbott, 643 F.3d 403, 405-06 (5th Cir. 2011) (citing Ex parte Young, 28 S. Ct. 441 (1908)). To fit within this exception, a plaintiff must demonstrate that the official has some connection with the enforcement of a policy or act in question. See Okpalobi v. Foster, (en bane) . 244 F.3d 405, 414-15 (5th Cir. 2001) Ward does not identify any action taken by Governor Abbott or policy in which he has any enforcement role.• Even assuming that Governor Abbott had the requisite connection with the -3- Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 4 of 6 enforcement of prison housing policies, Ward fails to show that he is ent led to relief because he does not demonstrate an ongoing constitutional violation. Ward alleges that the lack of adequate living space for inmates at the Byrd Unit and the Jester III Unit is inconsistent with precedent on prison overcrowding from a class action lawsuit against the North Carol Corrections. 5 Department Although Ward does not provide a citation for that case, he appears to reference litigation in the United States District Court for the Eastern District of North Carolina, which resulted in a consent decree that was described by the Fourth Circuit in Small v. Hunt, Texas prison system is 98 F.3d 789, 792-94 (4th Cir. 1996). not bound by a consent decree involving conditions of confinement in another state. Supreme Court has upheld the practice of housing two prisoners in one cell, known as "double it did not violate the Eighth Amendment. 101 ling," concluding that Rhodes v. Chapman, s. Ct. 2392, 2400-02 (1981).. Living space requirements and the practice of double celling in the Texas prison system were litigated in a class action lawsuit that commenced in 1972, which resulted in a detailed remedial decree that was entered before Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Rhodes was decided. i Although the Fifth Circuit affirmed parts of the Tex i 1980). 5 Complaint, Docket Entry No. 1, p. 4. -4- Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 5 of 6 decree entered by the distric;:t: court, it vacated_provisions that established dormitory space practice of double celling. requirements and . prohibited the See Ruiz v. Estelle, 679 F.2d 1115, 1148-49, 1164 (5th Cir. 198i), �odified on other grounds, Ruiz v. Estelle, 688 F.2d 266 (5th Cir. 1982) The remaining portion of the remedial decree was terminated in a Final Judgment entered on June 17, 2002. See Ruiz v. Estelle, No. H-78-0987 (S.D. Tex.) (Docket Entry No. 9015). The Fifth Circuit has explained that "[l]ack of space alone does not constitute cruel and unusual punishment, save perhaps in the most aggravated circumstances." 858 (5th Cir. 1982). Ruiz v. Estelle, 666 F.2d 854, Ward does not assert any facts showing that the conditions attending his confinement at the Byrd Unit or the Jester III Unit amounted to cruel and unusual punishment or that a constitutional violation occurred while he was incarcerated at either facility. As a result, Ward's allegations of overcrowding and lack of living space are insufficient to state a viable claim. See, e.g., Johnson v. Texas Board of Criminal Justice, 281 F. App'x 319,. 320-21, 2008 WL 2337324, at *2 (5th Cir. June 5, 2008) (per curiam). More importantly, the pleadings reflect that Ward is no longer incarcerated in TDCJ. Ward's release from TDCJ custody renders moot any claim for injunctive or declaratory relief concerning the conditions of his confinement. See Gillespie v. Crawford, 858 F.2d -5- Case 4:21-cv-02649 Document 5 Filed on 09/07/21 in TXSD Page 6 of 6 1101, 1103 (5th Cir. 1988) (per curiam); see Smith v. City of Tupelo, Mississippi, 281 F. App'x 279, 282 (5th Cir. 2008) (per curiam) ( "A claim for declaratory and injunctive relief based on conditions of confinement is rendered moot upon the prisoner's release or transfer from the facility."). Because Ward has failed to state a claim upon which relief may be granted, this action will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). III. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Prisoner's Civil Rights Complaint filed by Marshall Todd Ward (Docket Entry No. 1) is DISMISSED with prejudice for lure to state a claim. 2. The dismissal will count as a STRIKE for purposes of 28 u.s.c. § 1915(g). The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. The Clerk will also send a copy of this Memorandum Opinion and Order to the Manager of Three Strikes List at Three_Strikes@txs.uscourts.gov. SIGNED at Houston, Texas, on this 7th day of September, 2021. SENIOR UNITED STATES DISTRICT JUDGE -6-

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