Greely v. Bell et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 5 Report and Recommendations. Signed by Judge Sam Sparks. (dm)

F!LED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2OII

MAY

CLE
WESTEF

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TEXAS

ANGELA GREELY,

Plaintiff,
Case No. A-14-CA-138-SS

-vs-

OLIVER J. BELL; BRAD LIVINGSTON;

ALLEN

HIGHTOWER;

LANNETTE

LINTHICUM; and RICK THALER,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically pro se Plaintiff Angela Greely' s Complaint [#1-1], and the Report and Recommendation

of the United States Magistrate Judge [#5], to which Greely has not objected. Having reviewed the
documents, the governing law, and the file as a whole, the Court now enters the following opinion
and orders DISMISSING Greely's claims.
All matters in this case were referred to United States Magistrate Judge Andrew W. Austin
for report and recommendation pursuant to 28 U.S.C.

§

636(b) and Rule 1(c) of Appendix C of the

Local Court Rules of the United States District Court for the Western District of Texas, Local Rules
for the Assignment ofDuties to United States Magistrate Judges. Greely is entitled to de novo review

of the portions of the Magistrate Judge's report to which he filed specific objections. 28 U.S.C.
§ 636(b)(1).

All other review is for plain error. Douglass v.

United Servs. Auto. Ass 'n,

79 F.3d 1415,

1428-29(5th Cir. 1996) (en banc). Nevertheless, this Court has reviewed the entire file de novo, and
agrees with the Magistrate Judge's recommendation.

1/

Background
When Greely filed this lawsuit on February 13, 2014, she had been released from the Texas
Department of Criminal Justice

-

Correctional Institutions Division. Her Complaint is basically

unintelligible, but Greely appears to be complaining about medical care she received while
incarcerated, alleging various individuals showed "deliberate indifference" to her (unclear) medical
needs by taking unspecified actions. Greely seeks $10,500,000.00 ("tax free") in damages.

Analysis
Greely is proceeding in forma pauperis. Accordingly, the Magistrate Judge screened her

complaint to determine if it is "frivolous or malicious," or "fails to state a claim on which relief may
be granted." 28 U.S.C.
be dismissed under

§

§

1915(e)(2)(B)(i)(ii). The Court may determine Greely's complaint must

1915(e) at any time, before or after service of process and before or after the

Defendants' answers. Green

v.

McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). The Court must

construe Greely's pro se complaint liberally. Haines

v.

Kerner, 404 U.S. 519, 520 (1972). Greely's

pro se status, however, does not create an "impenetrable shield, for one acting pro se has no license

to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded

court dockets." Farguson

v.

MBank Houston, NA., 808 F.2d 358, 359 (5th Cir. 1986).

Greely represents she is suing the various individual defendantsTDCJ' stop brassin their

individual capacities.1 As the Magistrate Judge's report explained in greater detail, the Defendants'
liability in their individual capacities "is limited by the doctrine of qualified immunity." Waitman
v.

Payne, 535 F.3d 342, 346 (5th Cir. 2008). To overcome the Defendants' qualified immunity

As the Magistrate Judge explained, any suit against these defendants in their official capacities for money
damages is barred by the Eleventh Amendment. Green v. State Bar of Tex., 27 F.3d 1083, 1087 (5th Cir. 1994).
1

-2-

defense, Greely must establish the Defendants acted with deliberate indifference to her known

medical needs. Farmer v. Brennan, 511 U.S. 825, 837(1994). Greely' s Complaint is wholly devoid

of any facts suggesting any Defendant's conduct in this case rose to the "extremely high standard"
of deliberate indifference. Domino

v. Tex.

Dep 't of Criminal Justice, 239 F.3d 752, 756 (5th Cir.

2001);seealsoJohnsonv. Treen, 759F.2d 1236, 1238 (SthCir. 1985) (affirming grant of summary
judgment to defendants where plaintiff "submitted no evidence that prison personnel have ever
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").2

Conclusion
The Court perceives no error, plain or otherwise, in the Magistrate Judge's report and

recommendation Greely' s claims be dismissed without prejudice for want of jurisdiction and as
frivolous.
Greely is hereby WARNED that filing or pursuing any further frivolous lawsuits may result
in: (a) the imposition

of court costs pursuant to § 1915(f); (b) the imposition of significant monetary

sanctions pursuant to Federal Rule of Civil Procedure 11; (c) the imposition of an order barring
Greely from filing any lawsuits in this Court without first obtaining permission from a District Judge

of this Court, or a Circuit Judge of the Fifth Circuit; or (d) the entry of an order imposing some
combination of these sanctions.

2

Greely has also failed to plead any facts suggestiig the Defendants, TDCJ's leadership, may be held liable
under any supervisory liability theory.See Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).

Accordingly,
IT IS ORDERED that the Report and Recommendation of the United States

Magistrate Judge [#5] is ACCEPTED;
IT IS FURTHER ORDERED that Plaintiff Angela Greely's Motion to Appoint

Counsel [#2] is DISMISSED;
IT IS FINALLY ORDERED that Plaintiff Angela Greely's claims against the

Defendants in their official capacities are DISMISSED WITHOUT PREJUDICE for want

of jurisdiction, and her claims against the Defendants in their individual capacities are
DISMISSED WITH PREJUDICE as frivolous pursuant to 28 U.S.C.
SIGNED this the

§

1915(e)(2)(B)(i).

Sday of April 2014.

UNITED STATES DISTRICT JUDGE

138

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ord kkt.frm