Opinion
SA-21-CV-01124-XR
02-18-2022
ERIC NICHOLAS GONZALES, SID #636473, Plaintiff, v. COMAL COUNTY SHERIFF'S OFFICE; CORRECTIONAL OFFICER JOSHUA SWILLINGER, #3432, Comal County Sheriff's Office; COMAL COUNTY, [1]Defendants.
ORDER OF DISMISSAL
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
Before the Court is pro se Plaintiff Eric Nicholas Gonzales's (“Gonzales”) 42 U.S.C. § 1983 Amended Civil Rights Complaint. (ECF No. 6). The Court granted Gonzales's request to proceed in forma pauperis (“IFP”). (ECF No. 2, 4). Upon review, the Court orders Gonzales's Complaint DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted. (ECF No. 6); see 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
Background
According to Comal County court records, Gonzales was indicted May 12, 2021, for: (1) aggravated kidnapping; (2) aggravated sexual assault; (3) aggravated assault with a deadly weapon; (4) assault family violence (with a prior conviction); and (5) unlawful possession of a firearm by a felon. See public.co.comal.tx.us/Search.aspx?ID=100 (last visited Feb. 18, 2022). He was subsequently indicted on June 9, 2021, for possession of a controlled substance. Id. He is currently confined in the Comal County Jail. Id. A pretrial hearing on all the pending charges is scheduled for February 28, 2022. Id.
While confined, Gonzales filed this section 1983 action against Comal County, the Comal County Sheriff's Office (“CCSO”), and Correctional Officer Joshua Swillinger (“Swillinger”). (ECF No. 6). In his Amended Complaint, Gonzales alleges he was injured when Swillinger and another inmate became embroiled in a physical confrontation. (Id.). As relief, Gonzales seeks monetary damages for his alleged physical and mental pain and suffering. (Id.).
Applicable Law
Under section 1915A(b)(1) of Title 28 of the United States Code, this Court is required to screen any civil complaint in which a prisoner seeks relief against a government entity, officer, or employee and dismiss the complaint if the court determines it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B) (directing court to dismiss case filed IFP if it is determined that action is (i) frivolous or malicious, (ii) fails to state claim on which relief may be granted, or (iii) seeks monetary relief against defendant who is immune from such relief). Such a dismissal may occur at any time, before or after service of process and before or after a defendant files an answer. Shanklin v. Fernald, 539 F.Supp.2d 878, 882 (W.D. Tex. 2008) (citing Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986)).
An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges a violation of a legal interest which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (internal quotation and citation omitted). A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional scenarios' or the legal theory upon which a complaint relies is ‘indisputably meritless.'” Eason v. Thaler, 14 F.3d 8, n.5 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327-28).
In evaluating whether a complaint states a claim under sections 1915A(b)(1) and 1915(e)(2)(B), this Court applies the same standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011); see also Fed. R. Civ. P. 12(b)(6). To avoid dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007)); see Fed. R. Civ. P. 12(b)(6). These factual allegations need not be detailed but “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
When reviewing a pro se plaintiff's complaint, the court must construe the allegations liberally, holding the pro se to less stringent pleading standards than those applicable to lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see Haines v. Kerner, 404 U.S. 519, 520-21(1972). However, a plaintiff's pro se status does not offer him “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, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Analysis
A. No Custom or Policy - Comal County
To establish liability on the part of a county or municipality, a plaintiff must demonstrate a policy or custom that caused the alleged constitutional deprivation. Bd. of Cnty. Comm'rs Bryan Cnty., Okla., 520 U.S. 397, 403-04 (1997); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). The Court finds Gonzales has failed to allege the existence of a Comal County policy or custom that caused the alleged constitutional violations. (ECF No. 6). Accordingly, his claims against Comal County are subject to dismissal for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
B. Non-Jural Entity - CCSO
The capacity of an entity to sue or be sued is determined by the law of the state in which the district court sits. Paredes v. City of Odessa, 128 F.Supp.2d 1009, 1013 (W.D. Tex. 2000) (citing Fed.R.Civ.P. 17(b); Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991)). To be subject to suit in Texas, an entity must enjoy a separate legal existence. Id. In the absence of jural authority, the entity lacks the capacity to be sued. Id. Texas federal courts have consistently held entities without a separate jural existence are not subject to suit. See, e.g., Batyukova v. Doege, No. 5:19-CV-00391-JKP, 2019 WL 6699788, at *3 (W.D. Tex. Dec. 9, 2019) (holding BCSO not legal entity capable of being sued); Jacobs v. Port Neches Police Dep't, 915 F.Supp. 842, 844 (E.D. Tex. 1996) (holding county sheriff's department and county district attorney's office are not legal entities capable of being sued).
This Court has previously found the CCSO is not a proper jural entity subject to suit. See Reyes Jaramillo v. Comal Cnty., No. SA-10-CA-179-XR, 2011 WL 2421081, at *2 (W.D. Tex. Apr. 5, 2011) (citing Hernandez v. Bandera Cnty., No. SA-10-CV-949-XR, 2011 WL 345830 (W.D. Tex. Jan. 31, 2011)). In reaching this conclusion, the Court reasoned that under Chapter 85 of the Texas Local Government Code, the sheriff of a county is a county officer. Hernandez, 2011 WL 345830, at *1; see Tex. Loc. Gov't Code Ann. §§ 85.001, et seq. Thus, a county sheriff's office or department effectively operates under the control of the county and is not a separate jural entity. Hernandez, 2011 WL 345830, at *1.
Because the CCSO is a non-jural entity incapable of being sued, Gonzales has failed to state a claim upon which relief may be granted with regard to the CCSO. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
C. Allegations of Negligence Insufficient - All Defendants
The constitutional rights of a pretrial detainee are found in the due process guarantees of the Fourteenth Amendment. Estate of Henson v. Wichita Cnty., Tex., 795 F.3d 456, 462 (5th Cir. 2015) (citing Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (en banc). Constitutional challenges by pretrial detainees such as those alleged by Gonzales may be brought under two theories: as an attack on a “condition of confinement” or as an “episodic act or omission.” See Shepherd v. Dallas Cnty., 592 F.3d 445, 452 (5th Cir. 2009) (quoting Hare, 74 F.3d at 644-45). A condition of confinement challenge complains of “general conditions, practices, rules, or restrictions of pretrial confinement, e.g., number of bunks per cell, mail privileges, disciplinary segregation, etc., whereas episodic challenges are against a “jail official's episodic act or omission.” Tiede v. Salazar, 518 F.Supp.3d 955, 963-64 (W.D. Tex. 2021) (quoting Hare, 74 F.3d at 643). Episodic claims fault specific jail officials for alleged acts or omissions. Shepherd, 592 F.3d at 452. In episodic claims, an actor is “interposed between the detainee and the [official entity], such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom, or rule (or lack thereof) of the municipality that permitted or caused the act or omission.” Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997).
Here, Gonzales alleges he was injured during a discrete incident involving an altercation between Swillinger and another inmate. (ECF No. 6). The actual harm Gonzales complains of is the injury he suffered on August 16, 2021, when Swillinger and another inmate engaged in a physical confrontation. (Id.). He then seemingly points to the CCSO's negligence in failing to control Swillinger and other “staff members.” (Id.). Thus, the Court finds Gonzales's claims should be characterized as “episodic” as opposed to claims based on “conditions of confinement.”
A jail official violates a pretrial detainee's constitutional right to be secure in his basic human needs only when the official had “subjective knowledge of a substantial risk of serious harm” to the detainee and responded to that risk with deliberate indifference. Hare, 74 F.3d at 650. In other words, the state official must know of and disregard an excessive risk to inmate health or safety. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002). Because the focus of the claim is one individual's misconduct, the detainee is required to prove intent-specifically, that the jail official “acted or failed to act with deliberate indifference to the detainee's needs.” Shepherd, 592 F.3d at 452 (quoting Hare, 74 F.3d at 648). “[A] due process claim [can] never be based on a jail official's negligent failure to provide either medical care or protection from harm.” Cope v. Cogdill, 3 F.4th 198, 208 n. 8 (5th Cir. 2021) (quoting Hare, 74 F.3d at 642); see Dyer v. Houston, 964 F.3d 374, 381 (5th Cir. 2020) (distinguishing between negligence and deliberate indifference).
Gonzales has alleged nothing more than negligence. (ECF No. 6). A claim of negligence will not support his section 1983 action. Accordingly, the Court finds Gonzales has failed to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
Conclusion
Based on the foregoing analysis, the Court finds Gonzales has failed to state a viable section 1983 claim against Comal County because he failed to allege a County policy or custom that caused the alleged constitutional violations. His claims against the CCSO likewise lack viability because the CCSO is a non-jural entity that is not subject to a section 1983 action. Finally, as to his claims generally, Gonzales has alleged nothing more than a negligence action which is not viable under section 1983.
IT IS THEREFORE ORDERED that Gonzales's 42 U.S.C. § 1983 Amended Civil Rights Complaint is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b).
It is so ORDERED.