Simpson v. Cruz et al
REPORT AND RECOMMENDATIONS re 4 Complaint filed by Stephen O'Neil Simpson, 48 Amended Complaint, filed by Stephen O'Neil Simpson. Signed by Judge Nancy Stein Nowak. (Served by certified mail or electronic transmittal)(tm)
Simpson v. Cruz et al
UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION S T E P H E N O'NEIL SIMPSON, P la in tif f , v. O f f ic e r ADAM CRUZ, O f f ic e r JAMES FLORES, O f f ic e r ANTHONY CORPUS, O f f ic e r SHELLEY GRAYSON, S e r g e a n t MICHAEL HUSER, L ie u te n a n t SANDRA HARTOON, L ie u te n a n t BRIAN PETERSON, M a jo r DARREN WALLACE, L ie u te n a n t ALBERTO DIAZ, S e r g e a n t LIONEL PORRAS, S e r g e a n t VERNET DAVIS, L ie u te n a n t ROBERT BLUHM, S e r g e a n t STEVEN HAVARD, A s s is ta n t Warden GARY HUNTER, W a r d e n PAUL MORALES, L .V .N . PEGGY GOHLKE, O f f ic e r TIFFANY SMITH, O f f ic e r FRANCINE AGUERO, O f f ic e r JOSE AGUERO, O f f ic e r PAUL MARTINEZ, O .I .G . DAVID GUAJARDO, O .I .G . SHELIA THOMAS, O .I .G . JONNY SANTANA, D ir e c to r RICK THALER, D efe n d a n ts . § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § §
C I V I L ACTION NO. S A -0 9 -C V -0 1 2 5 OG (NN)
R E P O R T AND RECOMMENDATION TO: H o n . Orlando Garcia U n ite d States District Judge
T h is report and recommendation recommends dismissing certain claims under Rule
12(b)(6) of the Federal Rules of Civil Procedure.1 Although there is no pending motion to d is m is s , the "district court may dismiss an action on its own motion under Rule 12(b)(6) `as long a s the procedure employed is fair.'"2 In addition, analyzing the merits of a plaintiff's claim in a re p o rt and recommendation and giving the plaintiff an opportunity to object to the re c o m m e n d a tio n is a fair process for dismissing claims. There is no question that the process u s e d here is fair because I issued a show cause order and directed the plaintiff to show cause why c e rta in claims should not be dismissed.3 The plaintiff responded to the show-cause order, c o n c e d e d that claims against certain defendants should be dismissed, and set forth reasons why c la im s against other defendants should not be dismissed.4 N a tu r e of the case. Plaintiff Stephen O'Neil Simpson is a Texas inmate, committed to th e custody of the Institutional Division of the Texas Department of Criminal Justice (TDCJ). Simpson sued 24 TDCJ employees and former employees under 42 U.S.C. § 1983 for alleged v io la tio n s of his constitutional rights. Simpson alleged that, as a result of conflict between h im s e lf and defendant Tiffany Smith, defendant Adam Cruz physically assaulted him, while
"To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead `enough facts to state a c la im to relief that is plausible on its face.' `Factual allegations must be enough to raise a right to re lie f above the speculative level, on the assumption that all the allegations in the complaint are true (e v e n if doubtful in fact).'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (q u o tin g Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). See Carroll v. Fort James Corp., 470 F .3 d 1171, 1177 (5th Cir. 2006) (explaining that the "district court may dismiss a complaint on its o w n for failure to state a claim" so long as a fair procedure is employed).
See docket entry # 76. Docket entry # 78.
defendants James Flores, Anthony Corpus, and Shelley Grayson stood by and watched.5 Simpson c o m p la in e d that the latter-named defendants did not stop the assault, failed to report the assault to s u p e rv is o ry officials, and did nothing to provide him with medical attention. Simpson alleged th a t he notified various TDCJ employees--also defendants--about the assault, but that no one in v e s tiga te d the incident or took appropriate action. Simpson alleged that other defendant TDCJ e m p lo ye e s retaliated against him because he complained about the assault. As relief, Simpson s e e k s a transfer to a TDCJ unit closer to his home, the criminal prosecution of those responsible fo r his assault, and $350,000.00 for pain and suffering, mental anguish and punitive damages.6 C la im s against defendant Cruz. Simpson alleged that Cruz violated his civil rights by u s in g excessive force. Cruz has never been served with process. "Before a federal court may e x e rc is e personal jurisdiction over a defendant, the procedural requirement of service of s u m m o n s must be satisfied."7 Without service of process, the court does not obtain personal ju ris d ic tio n over a defendant.8 The court cannot render a judgment against a defendant unless he h a s been served, has waived service, or entered an appearance. B e c a u s e Simpson proceeded in forma pauperis, I directed the U.S. Marshal to serve Cruz w ith a summons and a copy of Simpson's complaint. After learning Cruz is no longer a TDCJ
Docket entry # 48, pp. 8-9. Id. at p. 6. Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Id.
employee,9 I directed the U.S. Marshal to serve Cruz at his last-known address.10 The U.S. M a rs h a l first attempted service by certified mail. The first summons was returned by the U.S. P o s ta l Service on November 11, 2009, unexecuted.11 I then directed the U.S. Marshal to p e rs o n a lly serve Cruz.12 The U.S. Marshal attempted to serve Cruz the second time by certified m a il. The U.S. Postal Service returned the second summons on February 22, 2010, unexecuted.13 T h e U.S. Marshall then attempted to personally serve Cruz on three dates: March 17, 2010; M a rc h 22, 2010; and April 1, 2010.14 The summons reflecting three unsuccessful attempts was re tu rn e d to the court on May 11, 2010. T h e court lacks personal jurisdiction over Cruz because Cruz has not been served. Because the court lacks personal jurisdiction, Simpson cannot proceed with his claims against C ru z . In his response to my show-cause order, Simpson asked the court to serve Cruz and retain h is claims against Cruz.15 Service is the plaintiff's responsibility,16 but the court has made re a s o n a b le efforts on Simpson's behalf to serve Cruz. Unless Simpson can provide an address w h e re Cruz can be served, the claims against Cruz should be dismissed for lack of personal
Docket entry #s 24 & 31. Docket entry # 33. Docket entry # 45. Docket entry # 62. Docket entry # 67. Docket entry # 75. Docket entry # 78, p. 2.
Fed. R. Civ. P. 4(c) ("The plaintiff is responsible for having the summons and complaint served w ith in the time allowed by Rule 4(m) . . . ."
jurisdiction. S im p s o n 's excessive-use-of-force claim. Simpson alleged an excessive use of force by C ru z , Flores, Corpus, Grayson, and Smith.17 The Eighth Amendment to the U.S. Constitution p ro te c ts those convicted of a criminal offense against malicious and sadistic uses of official force. To prevail in an excessive-use-of-force claim, the inmate must prove that the prison guard used " e x c e s s iv e physical force in violation of the Cruel and Unusual Punishments Clause" and that the fo rc e was applied "maliciously and sadistically to cause harm" rather than as a good-faith effort to maintain or restore order.18 The claim against Smith fails to state a claim upon which relief may be granted because S im p s o n alleged no use of force by Smith 19 and he did not allege that Smith was present during th e alleged assault. In his response to my show-cause order, Simpson insisted that his claim a ga in s t Smith should be retained because Smith set into motion the events that lead to the alleged a s s a u lt.20 According to Simpson, Cruz would not have assaulted him had Simpson not had p ro b le m s with Smith. Simpson alleged that the alleged assault occurred after he complained that S m ith entered his cell, read his personal mail complaining about Smith, and destroyed his p e rs o n a l property. Simpson stated that on the day of the alleged assault he refused to enter his c e ll until prison authorities photographed the damage Smith did to his property.21 Simpson
Docket entry # 64. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Docket entry # 78, p. 4 (conceding that Smith did not physically participate in the assault). Docket entry # 78, p. 3-5. Docket entry # 4, p. 6; docket entry # 8, p. 2; docket entry # 78, p. 3.
alleged that Cruz assaulted him when Simpson refused to enter his cell. V ie w in g Simpson's allegations as true, the impetus for the assault was Simpson's refusal to enter the cell. Simpson refused to enter the cell because of Smith's actions, but Cruz used the fo rc e complained of because Simpson refused to enter the cell. While the law provides in some c irc u m s ta n c e s for liability based on indirect participation in the violation of a person's c o n s titu tio n a l right,22 this is not one of those circumstances. Simpson alleged that he refused to e n te r his cell because Smith destroyed his property and explained how that refusal lead to the use o f force, but he did not establish a causal connection between Smith's action and Cruz's action s u c h that Smith knew or should reasonably have known that Cruz would use force to make S im p s o n re-enter his cell. The excessive-use-of-force claim against Smith should be dismissed fo r failing to state a claim. Simpson's failure-to-protect claim. In a second constitutional claim, Simpson alleged th a t certain defendant TDCJ employees violated the Eighth Amendment by failing to protect him. "[A] prison official may be held liable under the Eighth Amendment for denying humane c o n d itio n s of confinement only if he knows that inmates face a substantial risk of serious harm a n d disregards that risk by failing to take reasonable measures to abate it." 23 In a typical failureto -p ro te c t claim, a prison inmate alleges that even though prison officials knew he faced a s u b s ta n tia l risk of injury from other inmates, prison guards failed to protect him from that risk. A p ris o n official may be liable for failing to protect an inmate from other inmates if he knew of an
See Conner v. Reinhard, 847 F.2d 384, 397 (7th Cir. 1988) ("Any official who `causes' a citizen to be deprived of her constitutional rights can also be held liable. The requisite causal connection is s a tis fie d if the defendant set in motion a series of events that the defendant knew or should re a s o n a b ly have known would cause others to deprive the plaintiff of her constitutional rights.").
Farmer v. Brennan, 511 U.S. 825, 847 (1994).
excessive risk to inmate health or safety and disregarded that risk.24 A prison official knows of a n excessive risk only if he was subjectively aware of the risk.25 Although Simpson complained a b o u t the failure to protect him from a prison guard rather than from an inmate, the analysis is the s a m e :26 A prison official may be liable for failing to protect an inmate from another prison guard if he knew of an excessive risk to inmate health or safety posed by the other prison guard and d is re ga rd e d that risk. T h e basis of Simpson's failure-to-protect claim varies according to defendant. As to F lo re s , Corpus, and Grayson, Simpson alleged that those defendants failed to protect him from th e alleged attack by Cruz. This allegation is sufficient to state a failure-to-protect claim because, if Simpson's allegations are true, Simpson faced a substantial risk of injury from Cruz's assault w h ic h Simpson alleges these defendants witnessed. Simpson can proceed with his claim against F lo re s , Corpus, and Grayson under the theory of bystander liability. 27
Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003). Id.
See Williams v. Davis, No. 3:09-CV-0296-B, 2009 WL 928318, at * 3 (N.D. Tex. Apr. 6, 2009) (" T h e same reasoning applies when a prison guard fails to take reasonable measures to protect an in m a te from another guard's use of excessive force."). See Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995) ("[A police] officer who is present at the s c e n e and does not take reasonable measures to protect a suspect from another officer's use of e x c e s s iv e force may be liable under section 1983 [for the excessive use of force by another officer u n d e r the theory of bystander liability".); Hicks v. Page, No. H-08-2486, 2010 WL 793684,at *7 (S.D. Tex. Mar. 4, 2010) ("A prison guard has a duty to intervene and attempt to end an assault on a n inmate [by another prison guard]. . . . An officer may be liable under section 1983, under a theory o f bystander liability, if he (1) knows that a fellow officer is violating an individual's constitutional righ ts , (2) has a reasonable opportunity to prevent harm, and (3) chooses not to act."); Williams v. D a v is , No. 3:09-CV-0296-B, 2009 WL 928318, at * 3 (N.D. Tex. Apr. 6, 2009) (explaining that a p ris o n guard may be liable if he failed to take reasonable measures to protect an inmate from the a n o th e r prison guard's use of excessive force); Terrell v. Castleberry, No. H-06-2025, 2008 WL 6 8 7 5 1 9 , at * 5 (S.D. Tex. Mar. 12, 2008) ("A prison guard has a duty to intervene and attempt to end
Simpson's claim against the remaining defendants28 fails to state a claim because Simpson d id not allege a substantial risk of future harm from a prison guard--instead, he complained a b o u t harm from a past assault. Rather than complaining he faced a risk of being assaulted, S im p s o n complained that defendant prison employees retaliated against him because he c o m p la in e d he was assaulted. Specifically, he complained that: (1) those he complained to either d id not believe him or refused to discipline Cruz; (2) he was moved from cell-to-cell every three to seven days; (3) his addresses were confiscated; (4) on one occasion, he was moved to a cell w ith an inoperable sink, requiring him to eat with the smell of backed-up sewage; (5) on another o c c a s io n , his hands were handcuffed too tightly; and (6) on another occasion, he was placed in a c e ll without cold water and with a spider-webbed, busted window.29 These allegations do not rise to the level of a substantial risk of harm because they do not indicate Simpson faced a risk of s e rio u s injury to his future health.30 The conditions Simpson complains about may have been u n c o m fo rta b le , but the Constitution "does not mandate comfortable prisons." 31 In his response to the show-cause order, Simpson conceded that the claims against
a n assault on an inmate. . . . . The rationale underlying the bystander liability theory is that a b ys ta n d in g officer, by choosing not to intervene, functionally participates in the unconstitutional act o f his fellow officer."). As additional defendants for his failure-to-protect claim, Simpson named: Paul Morales, Gary H u n t e r , Darren Wallace, David Guajardo, Shelia Thomas, Jonny Santana, Richard Thaler, Steven H a rv a rd , Robert Bluhm, Vernet Davis, Lionel Porras, Alberto Diaz, Brian Petersen, Sandra Hartoon, a n d Michael Huser. Docket entry # 64.
Docket entry # 48.
See Farmer, 511 U.S. at 843 ("The question under the Eighth Amendment is whether prison o ffic ia ls , acting with deliberate indifference, exposed a prisoner to a sufficiently substantial `risk of s e rio u s damage to his future health'. . . .") (internal citation omitted).
Farmer, 511 U.S. at 832 (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
defendants Harvard, Bluhm, Davis, Petersen, Hartoon, and Huser should be dismissed.32 S im p s o n argued that the claims against defendants Morales, Hunter, Wallace, Diaz, and Porras s h o u ld be retained because these defendants failed to protect him from Smith's harassment and re ta lia tio n despite his repeated complaints about Smith.33 This argument misses the point of a fa ilu re -to -p ro te c t claim. To prevail on his failure-to-protect claim, Simpson must show that the d e fe n d a n t prison officials knew that Smith posed an excessive risk to Simpson's health or safety a n d disregarded that risk. Viewing Simpson's allegations as true, the defendant prison officials k n e w that Smith harassed and retaliated against Simpson for his continued complaints about S m ith , but they did not know Smith posed an excessive risk to Simpson's health or safety. Nothing about Simpson's allegations suggests the defendants knew he faced a risk of serious in ju ry to his future health. For this reason, Simpson's failure-to-protect claim against Morales, H u n te r, Wallace, Diaz, and Porras fails to state a claim upon which relief may be granted. A lth o u gh I directed Simpson to show cause why his failure-to-protect claim should not be d is m is s e d as to Guajardo, Thomas, Santana and Thaler, Simpson did not address his claim as to th o s e defendants in his response. To the extent that Simpson still seeks to hold those defendants lia b le for failing to protect him, the claim fails for the same reason the claim fails as to Morales, H u n te r, Wallace, Diaz, and Porras. Simpson's failure-to-protect claim as to defendants Morales, H u n te r, Wallace, Guajardo, Thomas, Santana, Thaler, Harvard, Bluhm, Davis, Porras, Diaz, P e te rs e n , Hartoon, and Huser should be dismissed for failing to state a claim. S im p s o n 's conditions-of-confinement claim. In Simpson's third constitutional claim,
Docket entry # 78, p. 6. Id. at pp. 6-7
Simpson alleged that certain defendants34 violated the Eighth Amendment's prohibition against c ru e l and unusual punishment through deliberate indifference to his health and safety. "The E igh th Amendment . . . prohibits the infliction of `cruel and unusual punishments' on those c o n v ic te d of crimes."35 "A prison official's `deliberate indifference' to a substantial risk of s e rio u s harm to an inmate violates the Eighth Amendment."36 "Because routine discomfort is `p a rt of the penalty that criminal offenders pay for their offenses against society,' `only those d e p riv a tio n s denying `the minimal civilized measure of life's necessities' are sufficiently grave to fo rm the basis of an Eighth Amendment violation.'" 37 S im p s o n did not allege that he was denied the minimal civilized measure of life's n e c e s s itie s . Instead, he complained about being moved from cell-to-cell, twice being housed in c e lls with inoperable plumbing, and once being handcuffed too tightly. Even if true, the alleged c irc u m s ta n c e s did not deny Simpson the minimal civilized measure of life's necessities.38 For th is reason, Simpson failed to state a claim for violation of the Eighth Amendment's prohibition a ga in s t cruel and unusual punishment.
As defendants for his conditions-of-confinement claim, Simpson named: Paul Morales, Gary H u n t e r, Darren Wallace, Peggy Gohlke, David Guajardo, Shelia Thomas, Jonny Santana, Richard T h a le r, Steven Harvard, Robert Bluhm, Vernet Davis, Lionel Porras, Alberto Diaz, Brian Petersen, S a n d ra Hartoon, Michael Huser, Shelley Grayson, James Flores, and Anthony Corpus.
Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). Farmer, 511 U.S. at 829. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal citations omitted).
See Newman v. St. of Ala., 559 F.2d 283, 291 (5th Cir. 1977)("If the State furnishes its prisoners w ith reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety, so as to avoid the imposition of cruel and unusual punishment, that ends its obligations under Amendment E igh t." ).
In his response to the show cause order, Simpson conceded that the conditions of c o n fin e m e n t claim against Harvard, Bluhm, Davis, Porras, Diaz, Petersen, Hartoon, Huser, G ra ys o n , Flores and Corpus should be dismissed.39 Simpson argued that the claim as to Morales, H u n te r, Wallace, Guajardo, Thomas, Santana, Gohlke, and Thaler should be retained because he w a s denied medical treatment after the alleged assault and because he was subsequently moved to c e lls with maintenance problems.40 This argument misses the point of a conditions-ofc o n fin e m e n t claim. To prove his claim, Simpson must prove that the defendant prison officials w e re deliberately indifferent to a substantial risk of serious harm. The conditions Simpson c o m p la in e d about do not rise to the level of a substantial risk of serious harm. In addition, Simpson did not complain about a serious medical need. "A serious medical c o n d itio n is one that has been diagnosed by a physician as mandating treatment or one that is so o b v io u s that even a lay person would perceive the need for a doctor's attention."41 Simpson c o m p la in e d about "cuts, bruises and abrasions from [his] head down to his knees." 42 These in ju rie s may have caused pain, but they do not rise to the level of a serious medical condition. Simpson did not allege conditions posing a substantial risk of harm. For this reasons, Simpson's
Docket entry # 78, p. 7. Docket entry # 78, pp. 6- 8.
Watson v. Quarterman, No. H-06-3260, 2008 WL 552447, at * 12 (S.D. Tex. Feb. 27, 2008); R o d r ig u e z v. Neuse, No. H-05-0877, 2005 WL 2810715, at * 5 (S.D. Tex. Oct. 27, 2005). Docket entry # 78, p. 2. See docket entry # 4, p. 6 (complaining about blood, cuts and a b ra s io n s ), p. 7 (complaining about pain, swelling, cuts and abrasions), p. 8 (complaining about pain fr o m swelling and cuts); docket entry # 8, p. 2 (complaining about extreme pain in his wrists and a rm s from handcuffs), p. 3 (complaining about his hands being bluish-purple from the handcuffs and a bleeding forearm), p. 4 (complaining about redness, swelling, cuts, abrasions and pain), p. 6 (a s s e rtin g that he experienced numbness in his hands for three weeks after the assault).
claims against to Morales, Hunter, Wallace, Guajardo, Thomas, Santana, Gohlke, and Thaler fail to state a claim upon which relief may be granted. Simpson's conditions-of-confinement claim s h o u ld be dismissed for failing to state a claim. C la im s against Francine Aguero, Jose Aguero, and Paul Martinez. Simpson did not a lle ge that defendants Francine Aguero, Jose Aguero, and Paul Martinez violated a constitutional righ t. In his response to the show-cause order, Simpson asked for dismissal of claims against th o s e defendants.43 Accordingly, claims against those defendants should be dismissed. R e c o m m e n d a tio n s . For the reasons discussed in this order, I recommend dismissing the fo llo w in g claims: a . Claims against Cruz because the court lacks personal jurisdiction over Cruz; b . The excessive-use-of-force claim against Smith; c . The failure-to-protect claim against defendants Morales, Hunter, Wallace, Guajardo, T h o m a s , Santana, Thaler, Harvard, Bluhm, Davis, Porras, Diaz, Petersen, Hartoon, and Huser; d . The conditions-of-confinement claim; and e . Claims against Francine Aguero, Jose Aguero, and Paul Martinez. If the district judge accepts these recommendations, the following claims will remain: S im p s o n 's excessive-use-of-force and failure-to-protect claims against Flores, Corpus, and G r a ys o n . I n s tr u c tio n s for Service and Notice of Right to Object/Appeal. The United States D is tric t Clerk shall serve a copy of this report and recommendation on all parties by either (1) e le c tro n ic transmittal to all parties represented by attorneys registered as a "filing user" with the
Docket entry # 78, p. 8.
clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt re q u e s te d . Written objections to this report and recommendation must be filed within 14 days a fte r being served with a copy of same, unless this time period is modified by the district court.44 S u c h party shall file the objections with the clerk of the court, and serve the objections on all o th e r parties and the magistrate judge. A party filing objections must specifically identify those fin d in gs , conclusions or recommendations to which objections are being made and the basis for s u c h objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and re c o m m e n d a tio n s contained in this report shall bar the party from a de novo determination by the d is tric t court.45 Additionally, failure to file timely written objections to the proposed findings, c o n c lu s io n s and recommendations contained in this memorandum and recommendation shall bar th e aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjectedto proposed factual findings and legal conclusions accepted by the district court.46 S I G N E D on July 8, 2010.
_____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE
28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).
Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuņa v. Brown & Root, 200 F.3d 335, 340 (5th C ir. 2000).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
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