Opinion
CIVIL ACTION NO. SA-02-CA-582-EP
July 15, 2003
REPORT AND RECOMMENDATION
TO: United States District Judge
Pursuant to the informal referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(1)(B) and rule l(d) and (f) of the Local Rules for the Assignment of Duties to United States Magistrates, effective January 1, 1994, in the Western District of Texas, the following report is submitted for your review and consideration.
I. JURISDICTION
Plaintiffs complaint alleges jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 1983.
II. PROCEDURAL HISTORY
This case began on June 19, 2002, when pro se plaintiff filed his complaint alleging violations of 42 U.S.C. § 1983 against Officer Herman Lee Jones, Lieutenant Pablo Guerra, Major Tommy Johnson, Officer Domingo Rios, and Officer Howard De La Garza and summons issued. On August 1, 2002, the Attorney General for the State of Texas filed an amicus curiae motion on behalf of defendants seeking to dismiss plaintiffs complaint for improper service, or, in the alternative, to quash service. Plaintiff responded on August 16, 2002, seeking permission to re-serve the defendants with the summons and complaint. On August 20, 2002, the District Court entered an Order denying the motion to dismiss, granting the motion to quash, and granting plaintiff permission to re-serve the defendants with the summons and complaint. On August 28, 2002, plaintiff filed a motion seeking and Order requiring the United States Marshal's Service to serve plaintiffs summons and complaint, or, alternatively, for substitute service, and for an extension of time for effecting service. On August 29, 2002, the undersigned entered an order denying plaintiffs motion in all respects. On September 10, 2002, the Attorney General filed a secondamicus curiae motion to dismiss or alternative motion to quash for improper service. The District Court entered an Order on October 3, 2002, denying the motion in its entirety.
Docket no. 1. Defendants will be referred to collectively as defendants or Officers, as appropriate. The record reflects that Officers Rios, De La Garza and are no longer employees of TDCJ-ID, but since plaintiffs Eighth Amendment claim relates to their conduct as correctional officers, this report refers to the three defendants as Officers.
Docket no. 2.
Docket no. 4.
Docket no. 5.
Docket no. 6.
Docket no. 8.
Docket no. 9.
Docket no. 12.
On November 27, 2002, Officers Jones and Guerra filed their answer to plaintiffs complaint, denying plaintiffs claims and asserting their entitlement to official and qualified immunity. On December 2, 2002, the Court entered a scheduling Order which, among other things, established a discovery deadline of April 30, 2003 and a dispositive motion deadline of May 14, 2003.
Docket no. 14.
Docket no. 15. On May 13, 2003, the Court entered an Order granting defendants1 motion for an extension of time to file a dispositive motion until June 16, 2003. Docket no. 28.
On February 24, 2002, the Attorney General filed an advisory and sealed document containing the last known addresses of Officers Johnson, Rios, and De La Garza. On February 25, 2003, the undersigned directed the Clerk of Court to mail a copy of the complaint, among other things, to Officers Johnson, Rios, and De La Garza at their last known addresses as provided by the Attorney General. Officer Johnson filed his answer on March 24, 2003. Although the record reflects acknowledgments of receipt by certified mail for Officers Rios and De La Garza, the receipts were not signed by these individuals and no answers have been filed on their behalf.
Docket nos. 18 and 19.
Docket no. 20.
Docket no. 24.
See docket entries for February 28, 2003 and March 3, 2003 as well as return receipt requested cards filed in the official Clerk's Office file.
On June 4, 2003, Officers Jones, Guerra, and Johnson filed a combined motion for summary judgment. Plaintiff filed a response on June 30, 2003, and Officers Jones, Guerra, and Johnson filed a rely on July 11, 2003.
Docket no. 30.
Docket no. 33. Plaintiff filed a notice concerning the filing of his response on June 30, 2003. Docket no. 32.
Docket no. 34.
III. FACTUAL BACKGROUND. ALLEGATIONS, and ARGUMENTS
The undisputed facts of this case, as derived from plaintiffs complaint, defendants' motion for summary judgment, and the evidence attached to each, reflect that: on June 22, 2000, plaintiff Robert Fairbanks was an inmate of the Texas Department of Criminal Justice-Institutional Division ("TDCJ-ID") and housed at the Dominguez State Jail ("Dominguez"). On June 22, 2000, numerous inmates were involved in a riot in a recreation yard at Dominguez. Plaintiff was injured during June 22, 2002 riot and subsequently was disciplined for his involvement. Officers Jones, Guerra, and Johnson were employed at Dominguez at the time of the riot.Plaintiffs complaint alleges that defendants knew the June 22, 2000 riot was imminent and failed to discharge their duty to "adequately protect plaintiff by "failing to prevent J2 building offenders from being turned out" into an "extremely hazard[ous] situation." Plaintiffs complaint further alleges that this failure "proximately caused [him] undue, serious, irreparable physical, psychological and emotional injury." Plaintiffs complaint alleges the officers' conduct was "unreasonable and lacked good faith" and constituted "deliberate indifference toward my personal safety" in violation of the Eighth Amendment to the United States Constitution. Plaintiff has attached to his complaint an undated step one grievance, apparently completed more that fifteen days after June 22, 2000; an unprocessed, undated step two grievance that was returned to plaintiff on November 21, 2001, along with a communication of improper submission: processed step one and step two grievances appealing plaintiffs discipline case; and medical records.
Id. at 4.
Id.
Id.
Defendants have moved for summary judgment and argue that plaintiff has not exhausted administrative remedies with regard to his Eighth Amendment failure protect claim. Defendants also argue that, to the extent plaintiff is attempting to improperly challenge disciplinary actions taken against him for his involvement in the June 22, 2000 riot, he has failed to state a cognizable claim under § 1983. Defendants further argue they are immune from any § 1983 claims alleged against them in their official capacities, and they assert the defense of qualified immunity.
Docket no. 30 at 4-7.
Id. at 8-9.
Id. at 10.
Plaintiff argues that any failure to exhaust administrative remedies should be disregarded because "[a] substantial effort was made by plaintiff to exhaust administrative remedies, however, the administrative process is so irregular thereby prohibiting plaintiff from complying." Plaintiff also argues that he "attempted to exhaust his administrative remedies, but the administration refused to process it," Plaintiff agrees that "a disciplinary case" cannot be challenged through § 1983, denies that his "discipline case" is at issue, and argues that he has asserted only a claim for an Eighth Amendment violation caused by defendants' deliberate indifference to plaintiffs health and safety. Plaintiff also argues that defendants are not entitled to immunity in their official capacities or to qualified immunity on his failure to protect claim.
Docket no. 33 at 3.
Id. at 4.
Id. at 6. The Court agrees that plaintiffs complaint alleges only that defendants failed to protect him on June 22, 2000, in violation of the Eighth Amendment. Nevertheless, plaintiff has attached to the complaint step 1 and step 2 grievances aimed at appealing the "disciplinary case" against him resulting from the events of June 22, 2000. Docket no. 1, attachments. The step 2 grievance indicates that plaintiff is seeking a "fair hearing or to be overturned," reinstatement of "trustee class 3" status, and correction of his record. Id. To the extent the addition of these grievances could be construed to challenge the disciplinary actions taken against plaintiff for the events of June 22, 2000, as acknowledged by plaintiff, the challenge is not cognizable under § 1983 and should be dismissed. Edwards v. Balisok. 520 U.S. 641, 648, 117 S.Ct. 1584, 1589 (1997) (allegations implying invalidity of decision to deprive prisoner of good time merits not cognizable under § 1983); Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994) (to recover damages under § 1983 for unconstitutional imprisonment, plaintiff must "prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus"); Preiser v. Rodriguez. 411 U.S. 475, 487, 93 S.Ct. 1827, 1835 (1974) (sole remedy in seeking to have good time merits restored is writ of habeas corpus).
Id. at 10-11.
Defendants have replied to plaintiffs argument of an irregular grievance process by pointing out that plaintiff appears to understand the grievance procedures because he has used the procedures to challenge the discipline he received as a result of the June 22, 2000 riot.
Docket no. 34 at 2.
IV. ISSUES
1. Whether Officers Jones, Guerra, and Johnson's motion for summary judgment should be granted because plaintiff has failed to exhaust his administrative remedies. 2. Whether the claims against Officers Rios and De La Garza should be dismissed for failure to prosecute.
V. STANDARDS
A. Summary JudgmentThe standard to be applied in deciding a motion for summary judgment is set forth in Federal Rule of Civil Procedure 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986).
Anderson. 477 U.S. at 248,106 S.Ct. 2505; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson. 477 U.S. at 248, 106 S.Ct. 2505; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson. 477 U.S. at 249, 106 S.Ct. 2505.
The movant on a summary judgment motion bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. The burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment. All evidence and inferences drawn from that evidence must be viewed in the light favorable to the party resisting the motion for summary judgment. Thus, summary judgment motions permit the Court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.
Anderson. 477 U.S. at 257, 106 S.Ct. 2505.
Hibernia Nat'l Bank v. Garner. 997 F.2d 94, 97 (5th Cir. 1993).
See Fields v. City of South Houston. Tex., 922 F.2d 1183. 1187 (5th Cir. 1991).
The movant may satisfy the burden to show the "absence of a genuine issue of material fact by pointing out that the record contains no support for the non-moving party's claim." If non-movant cannot provide some evidence to support its claim, summary judgment is appropriate. B. Exhaustion
Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 263 (5th Cir.), cert. denied. U.S., 123 S. Ct.. 111 (2002).
Stahl. 283 F.3d at 263.
Generally, plaintiffs bringing claims under § 1983 are not required to exhaust administrative remedies before filing suit. Although prisoner claims of constitutional violations during incarceration once fell within this general rule, in 1980, Congress created a "limited exhaustion requirement" for state prisoner litigants. But, the "[e]xhaustion under the 1980 prescription in large part was discretionary; it could be ordered only if the State's grievance system met specific federal standards, and even then, only if in the particular case, the court believed the requirement 'appropriate and in the interests of justice.'" The United States Supreme Court found the 1980 provision was inapplicable when a prisoner sought monetary relief that was not available through a grievance procedure.
Porter v. Nussle. 534 U.S. 516, 522-23, 122 S.Ct. 983, 987 (2002).
See McCarthy v. Madigan. 503 U.S. 140, 150, 112 S.Ct. 1081, 1089 (1992).
Porter. 534 U.S. at 522-23, 122 S.Ct. at 987.
Id. at 523, 122 S.Ct. at 987-88 (citation omitted).
McCarthy, 503 U.S. at 150-51, 112 S.Ct. at 1089.
In 1995, Congress, as part of the PLRA, amended the exhaustion requirement to provide as follows:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
In two recent, unanimous decisions, the United States Supreme Court has held that the exhaustion requirement, as amended, is mandatory for all "action[s] . . . brought with respect to prison conditions," whether under § 1983 or "any other Federal law." Specifically, the Court unanimously held:
Porter, 534 U.S. at 524, 122 S.Ct. at 988 (citingBooth v. Churner. 532 U.S. 731, 121 S.Ct. 1819(2001)).
[W]e hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.
Porter, 534 U.S. at 531-32,122 S.Ct. at 992; see Clifford v. Gibbs, 298 F.3d 325, 330-32 (5th Cir.) (prisoner's failure to protect claim dismissed for failure to exhaust administrative remedies and that under Booth and Porter there are no exceptions to PLRA's exhaustion requirement), cert. denied 530 U.S. 1275 (2000).
Further, the Supreme Court held that [e]ven when the prisoner seeks relief not available in grievance proceeding, notably money damages, exhaustion is a prerequisite to suit." C. The Nature of § 1983
Porter, 534 U.S. at 524, 122 S.Ct. at 988 (citingBooth, 532 U.S. at 741, 121 S.Ct. at 1819); see Wright v. Hollingsworth. 260 F.3d 357, 358 (5th Cir. 2001).
Title 42, United States Code, section 1983 does not create any substantive rights, but instead provides a remedy for violations of federal statutory and constitutional rights. In order to state a cause of action under § 1983, the plaintiffs claim for relief must allege facts establishing that: (1) plaintiff has been deprived of a right secured by the Constitution or laws of the United States; and (2) defendant acted under color of state law. The Fifth Circuit has held that, "section 1983 imposes liability for violations of rights secured by the Constitution, not violations of duties of care arising out of tort law." Neither violations of duties of care arising out of ordinary ton law nor injuries resulting from a prison official's negligent conduct are actionable under § 1983.
See LaFleur v. Texas Dept. of Health. 126 F.3d 758, 759 (5th Cir. 1997); Jackson v. City of Atlanta. Tex., 73 F.3d 60, 63 (5th Cir.), cert. denied. 519 U.S. 818 (1996).
Sec Randolph v. Cervantes. 130 F.3d 727, 730 (5th Cir. 19971 cert. denied. 525 U.S. 822 (1998); Fyfe v. Curlee. 902 F.2d 401, 403 (5th Cir. 1990); Wong v. Stripling. 881 F.2d 200, 202 (5th Cir. 1989).
Lynch v. Cannatella. 810 F.2d 1363, 1375 (5th Cir. 1987).
Daniels v. Williams. 474 U.S. 327, 336,106 S.Ct. 662, 667 (1986); Davidson v. Cannon. 474 U.S. 344, 347, 106 S.Ct. 668, 670 (1986).
To state a § 1983 claim, plaintiff must prove a defendant was personally involved in the actions of which he complains, or is responsible for the policy or custom giving rise to the constitutional deprivation. Because, at all times relevant to his claims in this lawsuit, plaintiff was a convicted prisoner, the Eighth Amendment provides the primary source of protection for a prisoner. A prison official may be liable under the Eighth Amendment for deliberate indifference to prison health and safety conditions only if he knows an inmate faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it,
See McConney v. City of Houston. 863 F.2d 1180, 1184 (5th Cir. 1989); Reimer v. Smith. 663 F.2d 1316, 1323 (5th Cir. 1981); Howell v. Tanner. 650 F.2d 610, 615 (5th Cir. 1981).
See Farmer v. Brennan. 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994); Woods v. Edwards. 51 F.3d 577, 581 (5th Cir. 1995).
Farmer, 511 U.S. at 847, 114 S.Ct. at 1984.
VI. ARGUMENT AND ANALYSIS
A. ExhaustionAs noted, plaintiff has sued defendants alleging they failed to protect him from harm resulting from a prison riot on June 22, 2000. Authenticated prison grievance records do not show that plaintiff filed a grievance regarding the June 22, 2000 riot. The affidavit of Susan L. Schumacher, TDCJ Assistant Administrator of Offender Grievance at Hunstville, reflects that she has provided plaintiffs grievance records "for the time period of June 1, 1999 through December 2000." The only grievances included are those "appealing" the disciplinary actions taken against plaintiff for his involvement in the June 22, 2000 riot. Although plaintiff contends that he "attempted" to exhaust his administrative remedies for the June 22, 2000 incident, the copies of the two grievance forms attached to his response are undated, reflect plaintiff was requesting a "waiver of the fifteen (15) day filing limitation;" and contain no indication that either form was received and/or processed by the prison grievance authorities. Plaintiffs evidence of exhaustion is, at best, evidence that plaintiff attempted to file untimely step one and step two grievances concerning his Eighth Amendment claim concerning the June 22, 2000 riot and that the grievances were unprocessed. To the extent plaintiff has argued that he was unable to exhaust administrative remedies because of the "irregular" grievance process, the argument is without merit. As defendants note, plaintiff filed a step one grievance on July 6, 2000, approximately two weeks after the riot, "appealing" the disciplinary action taken against him as a result of the riot. When the step one grievance was denied, plaintiff filed a step two grievance. Plaintiffs action reflects that, at or near the time of the riot, he understood and was able to use the grievance process.
Docket no. 30, exhibit D.
Id.
Id.
Docket no. 33, exhibit F.
Id.
Docket no. 30, exhibit D.
Id.
Plaintiffs claim against defendants in this lawsuit is a complaint about a "particular episode" of "prison life" and, under § 1997e(a), plaintiff was required to exhaust administrative remedies before filing the instant lawsuit alleging failure to protect. That plaintiff seeks monetary damages for his alleged injuries does not excuse him from the exhaustion requirement of § 1997e(a).
Porter. 534 U.S. at 531-32, 122 S.Ct. at 992.
Id. at 534, 122 S.Ct. at 988.
Therefore, defendant's motion for summary judgment should begranted, and plaintiffs claims of failure to protect on or about June 22, 2000, should be dismissed for non-exhaustion of administrative remedies. Because exhaustion is quasi-jurisdictional, it appears to be appropriate for the District Court to dismiss plaintiffs complaint due to plaintiffs failure to exhaust and not reach defendants arguments regarding official capacity immunity and qualified immunity.
See Booth, 532 U.S. at 735,121 S.Ct. at 1822 (dismissal without prejudice for failure to exhaust affirmed). See also Clifford, 298 F.3d at 332 (Texas statute of limitations may be equitably tolled during the pendency of action and any additional state administrative proceedings).
B. Failure To Prosecute
Rule 41(b) of the Federal Rules of Civil Procedure provides, in relevant part, as follows:
For failure of the plaintiff to prosecute or comply with these rules or any order of court, a defendant may move for dismissal of an action or any claim against the defendant.
Although the rule does not expressly provide for dismissal on the Court's own motion, such authority emanates from the Court's inherent power to manage and administer its own affairs to ensure the orderly and expeditious disposition of cases.
Berry v. CIGNA/RSI-CIGNA. 975 F.2d 1188, 1191 (5th Cir. 1992); Sturgeon v. Airborn Freight Corp., 778 F.2d 1154, 1159 (5th Cir. 1985).
On February 25, 2003, the Court ordered that Officers Rios and De La Garza be served with copies of the complaint and other documents at their last known addresses as reflected in the records of their former employer, TDCJ-ED. The docket in this case reflects that postal return receipt requested cards ("green cards") showing receipt of certified mail were signed in late February 2003 by persons other that Officers Rios and De La Garza. As of the date of this report, neither Officer Rios or De La Garza has answered plaintiffs complaint. More than 120 days have elapsed since service of the complaint was ordered on Officers Rios and De La Garza, and more than twenty days have passed since the signed green cards were returned indicating that service of process on the individuals named was not accomplished. Plaintiff has taken no action to show that service was or could be effected on Officers Rios and De La Garza, Nor has plaintiff moved the Court to enter a default judgment against Officers Rios and De La Garza for failing to answer. Moreover, the Court notes that plaintiffs claims against Officers Rios and De La Garza suffer the same defects as the complaints against the other officers; plaintiff has not exhausted his administrative remedies.
Docket no. 20. Officer Johnson was also ordered to be served in this fashion; as noted, Officer Johnson was served and has filed an answer and joined in the motion to dismiss.
See FED. R. Civ. P. 4(m).
Accordingly, plaintiffs claims against Officer Rios and Officer De La Garza should be dismissed without prejudice for failure to prosecute.
VII. RECOMMENDATION
Based on the foregoing analysis, defendants' motion for summary judgment should be GRANTED; plaintiffs Eighth Amendment failure to protect claim against Officers Jones, Guerra, and Johnson should be DISMISSED without prejudice for failure to exhaust administrative remedies; and to the extent plaintiffs complaint may be read as an attempt to challenge plaintiffs disciplinary case pertaining to the June 22, 2000 prison riot, such a claim should be DISMISSED without prejudice on the ground it is barred by Heck v. Humphrey. In addition, plaintiffs claims against Officers Rios and De La Garza should be DISMISSED without prejudice for failure to prosecute.
Docket no. 30.
VIII. INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT/APPEAL
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal [c]onclusions accepted by the District Court. ORDERED, SIGNED AND ENTERED this day of July, 2003.
See Thomas v. Am. 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985).
Acuna v. Brown Root Inc., 200 F.3d 335, 340 (5th Cir. 2000); Douglass v. United Services Auto. Ass'n., 79 F.3d 1415, 1428 (5th Cir. 1996).
ORDER
All matters referred to the undersigned having been addressed,IT IS ORDERED that this case is returned to the District Court.
IT IS SO ORDERED.
SIGNED and ENTERED