Opinion
5-23-CV-00007-OLG-RBF
05-03-2023
JOHN LINTHICUM, Plaintiff, v. BEXAR COUNTY DETENTION, UNIVERSITY HEALTH CARE DETENTION SERVICES, Defendants.
To the Honorable United States District Judge Orlando Garcia:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation concerns Plaintiff John Linthicum's Application to Proceed in District Court Without Prepaying Fees or Costs and proposed civil complaint. See Dkt. No. 1. The Application was automatically referred for disposition, pursuant to 28 U.S.C. § 636(b) and the October 8, 2019, Standing Order regarding Court Docket Management of Cases Involving Applications to Proceed in Forma Pauperis for the San Antonio Division of the Western District of Texas. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, this case should be DISMISSED for failure to prosecute or comply with court orders, and for failure to state a non-frivolous claim. See Fed.R.Civ.P. 41(b); 28 U.S.C. § 1915(e).
Factual and Procedural Background
According to his pro se pleadings, Linthicum was previously incarcerated and detained at the Bexar County Adult Detention Center (“BCADC”). On October 18, 2019, Linthicum was allegedly assaulted by a guard at the BCADC during morning mealtime, resulting in an ankle injury and broken teeth. Linthicum sought medical attention while in jail from a doctor, identified only as Dr. Howard, who looked at x-rays of Linthicum's ankle. Linthicum alleges that he should have been, but was not, provided with follow-up care and moved to a lower tier of detention or an observation tank due to his injuries. It is unclear what relationship Dr. Howard has with named defendant University Health Care Detention Services (“UHCDS”). Linthicum filed several inmate grievances regarding the same events of October 18, 2019, and he alleges that he still suffers pain and discomfort from those injuries.
The Court attempts to draw the factual background from the various documents in the record, including Linthicum's proposed complaint and two subsequent advisories. See Dkt. Nos. 1, 4, 5. But as previously noted in the Court's Order to Show Cause, Dkt. No. 6, Linthicum's disjointed filings do not clearly allege any relevant facts or state any claims. The Court's recitation of the factual allegations results from its best efforts to glean relevant information from these filings, notwithstanding Linthicum's failure to clarify his pleadings as previously ordered.
Linthicum first attempted to file suit on these facts against Sheriff Javier Salazar in 2022, alleging § 1983 claims, albeit in a filing styled as a federal habeas petition. See Linthicum v. Salazar (Linthicum I), 5:22-cv-00193-FB (filed Mar. 1, 2022, closed May 25, 2022). Linthicum was ordered to amend his complaint to address various deficiencies, and when he failed to respond, the complaint was dismissed with prejudice for failure to state a claim and without prejudice, in the alternative, for failure to prosecute or comply with court orders. In the dismissal order, the court provided some background, based on Bexar County records, noting that Linthicum had been indicted for theft on October 20, 2021, entered a plea of nolo contendre, and was released on April 27, 2022. See Linthicum I, Dkt. No. 6 at 1. The full extent of Linthicum's dates of incarceration is not apparent from the record.
Linthicum filed the instant IFP application on January 3, 2023. He indicates on his civil cover sheet an intent to assert via § 1983 certain civil-rights violations against BCADC and UHCDS in conjunction with his ankle injury and involving a failure to provide medical care. Linthicum does not name, or assert any claims against, any of the officers who allegedly caused his ankle injury. Linthicum's subsequent filings appear to reframe his suit as one for personal injury on a theory of negligence or medical malpractice. See Dkt. Nos. 4, 5.
On February 23, 2023, the Court ordered Linthicum to amend his complaint or show cause why this case should not be dismissed as frivolous. See Dkt. No. 6. The Court noted that the proposed complaint did not comply with federal pleading standards and that the 2019 claims were likely barred for several additional reasons. To date, Linthicum has filed no response.
Section 1915(e) Analysis
The Court previously set forth the law governing the process of screening IFP complaints pursuant to 28 U.S.C. § 1915(e). See Dkt. No. 6 at 3-4. An action is “frivolous” where there is no arguable legal or factual basis for the claims. Neitzke v. Williams, 490 U.S. 319, 325 (1989). And an IFP action is “malicious” where “it is virtually identical to and based on the same series of events as a claim previously brought by the plaintiff.” Shakouri v. Davis, 923 F.3d 407, 410 (5th Cir. 2019); see McGee v. Acevedo, 849 Fed. App'x 133, 134 (5th Cir. 2021) (affirming dismissal as malicious where claims were “essentially identical to an earlier action that was dismissed with prejudice”). Courts may also raise sua sponte and dismiss IFP actions for “affirmative defenses that are apparent from the record.” Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
A. Dismissal Is Proper for Failure to Prosecute or Comply with Court Orders.
Linthicum's failure to timely respond to the Court's Order to Show Cause is grounds for dismissal. Courts have authority to dismiss any action for failure to prosecute or comply with court orders. See Fed.R.Civ.P. 41(b) (dismissal by motion); Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (discussing the “inherent authority to dismiss an action sua sponte” for failure to prosecute or comply with court orders); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (same). The Court previously ordered Linthicum to show cause or amend his complaint in response to several concerns, explicitly warning him that failure to respond may result in dismissal. See Dkt. No. 6 at 6-7. Despite those instructions, Linthicum has filed no response. The Court afforded Linthicum ample time, even waiting a month beyond the original deadline of March 24, 2023. The Court observes that Linthicum's failure to timely respond to the show cause order in his prior litigation likewise resulted in dismissal. See Linthicum I, Dkt. No. 6. Although dismissal is generally an extreme sanction for failure to prosecute or comply with court orders, that sanction is warranted here, given the circumstances presented.
B. Linthicum's Repeat Claims Do Not Satisfy Federal Pleading Requirements.
This is not the first time Linthicum has asserted § 1983 claims against prison officials in connection with the alleged 2019 incident. Linthicum previously sued Bexar County Sheriff Javier Salazar for injuries incurred on October 19, 2019, where Linthicum was allegedly “restrainted, [sic] beaten, and physically taken advantage of,” resulting in “a torn accillies [sic] heel, broken teeth, mental abuse and time loss with injury and fear.” Linthicum I, Dkt. No. 1 at 1. The District Court dismissed those claims for failure to satisfy federal pleading standards for § 1983 claims. See Linthicum I, Dkt. No. 6. Linthicum now appears to be pursuing identical claims against new defendants. See Dkt. No. 4. But because the District Court's prior dismissal was without prejudice, Linthicum is not barred by res judicata or other jurisprudential limits.
Nonetheless, the Court observes that Linthicum's claims, once again, are likely subject to dismissal for the same reasons. Any civil complaint filed in federal court must at least contain “a short and plain statement of the claim.” Fed.R.Civ.P. 8(a). This requires complaints to “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)). While these factual allegations need not be highly detailed, the plaintiff must establish more than a “speculative” claim to relief, and the plaintiff cannot rely on conclusory assertions of liability. See Twombly, 550 U.S. at 555-56.
As the Court previously pointed out, “Linthicum fails to satisfy the most basic pleading standards.” Dkt. No. 6 at 6. Linthicum's proposed complaint is a jumble of old grievance forms and scribbled notes. And like his previous case, Linthicum's claims are vague and conclusory, and he fails to allege any facts in support. It is particularly unclear whether or how UHCDS could be liable under § 1983. Linthicum does not state what UHCDS allegedly did or when, much less how it was under any duty to supply follow-up medical treatment after Linthicum's release from jail, assuming that is what he now complains about. The Court ordered Linthicum to amend his complaint to adequately allege facts relevant to his claims, as it is not evident whether his claims involve state actors or trigger any immunity doctrines. Linthicum failed to do so. Dismissal is therefore appropriate for failure to satisfy basic pleading standards.
C. Linthicum's Claims Likely Fail for the Additional Reasons Noted in the Court's Order to Show Cause.
Linthicum's claims against BCADC are likely barred for failure to name an entity that can sue or be sued. Courts in the Western District of Texas have previously concluded that BCADC “is not a separate jural entity subject to suit.” Coalwell v. Bexar Cnty. Adult Det. Ctr., No. CV SA-16-CA-506-DAE, 2016 WL 4033272, at *2 (W.D. Tex. July 27, 2016); accord Castilla v. Cnty. of Bexar, No. SA-10-CA-724-XR, 2010 WL 3608383, at *2 (W.D. Tex. Sept. 10, 2010). Because Linthicum failed to amend his complaint to name a proper defendant, those claims are barred.
Even assuming Linthicum did amend his complaint to name a proper defendant, such as Bexar County, any claims would likely be time-barred by Texas's statute of limitations. Lawsuits brought under § 1983 borrow their limitations period from the statute governing personal injury actions in the forum state. See Redburn v. City of Victoria, 898 F.3d 486, 496 (5th Cir. 2018). In Texas, the applicable limitations period is two years. Id. (citing Tex. Civ. Prac. & Rem. Code § 16.003(a)). That period may be equitably tolled during the administrative grievance process. See Anderson v. Livingston, 394 Fed. App'x 132, 133 (5th Cir. 2010) (per curiam); Gartrell v. Gaylor, 981 F.2d 254, 257-58 (5th Cir. 1993). But courts generally will not consider equitable tolling arguments that are not timely raised. See Anderson, 394 Fed. App'x at 133.
From what the Court can discern, every event Linthicum complains of took place in October of 2019. See Dkt. Nos. 1, 4, 5. Although Linthicum attaches and references numerous prison grievances, see Dkt. No. 1-1, he never states when his initial grievance was filed, when it was ultimately denied, or whether he fully complied with the grievance process. And because Linthicum never responded to the Court's Order to Show Cause, equitable tolling has not been timely raised. Thus, regardless of whether he states a viable claim for something that happened in 2019, because Linthicum did not file his IFP Application until January 3, 2023, and because he did not include adequate factual allegations for the Court to determine the availability of equitable tolling, his § 1983 claims are likely time-barred.
Finally, even treating all factual allegations as true, Linthicum cannot state a § 1983 claim for negligent conduct. “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner,” and failure to provide necessary medical care must be asserted as an Eighth Amendment violation, which requires “deliberate indifference.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Daniels v. Williams, 474 U.S. 327, 332 (1986) (holding that the Fourteenth Amendment provides no remedy for injuries caused by negligent conduct); Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987) (same). At most, Linthicum asserts a claim for negligence and medical malpractice. See Dkt. No. 1-1 at 10-12 (alleging that “Dr. Howard forgot to move me to lower teir [sic] or med. pod” after injury, and again after falling down the stairs “forgote [sic] to move me checkk [sic] reports”); Dkt. No. 4 (alleging personal injury due to Defendants' “negligence regarding their responsibility to provide followup care” and “neglect” for not moving Linthicum to a lower tier of residence); Dkt. No. 5 at 1 (alleging injury due to Dr. Howard “not fully taking care of” Linthicum's injuries). Linthicum's allegations, even construed liberally and accepted as true, do not amount to deliberate indifference. Claims for negligent personal injury or negligent deprivation of medical care are not cognizable under § 1983 and must be dismissed. The Court expresses no opinion on whether Linthicum may yet assert state negligence claims in state court, which are not mentioned in his proposed complaint.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that this case be DISMISSED with prejudice as frivolous under 28 U.S.C. § 1915(e). Alternatively, this case should be DISMISSED without prejudice for failure to prosecute or comply with court orders.
Having considered and acted upon all matters for which this case was referred, it is ORDERED that this case is RETURNED to the District Court for all purposes.
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 all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. 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, conclusory, or general objections. 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. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.