Opinion
CASE NO. 1:00-CV-290-BG
March 31, 2003
Defendants Prewit, Bounds, and Wills, and Defendants Cook, Peck, Eason, Oliver, Thomas, Doan, Coffman, McElvaney, Bond, Nafrawi, Calhoun, Duke, and Strong move that summary judgment be entered in their favor in this case. Plaintiff Scott Romaine Ritter opposes their motions.
After reviewing the motions, briefs, affidavits, arguments, and pleadings on file, this court finds that this action must be dismissed as to Defendants Bounds, Wills, Peck, Oliver, Thomas, Doan, Coffman, Nafrawi, Calhoun, Duke, and Strong and that the Defendants Cook, Eason, McElvaney, and Bond's motions for summary judgment should be and the same are hereby granted.
Statement of the Case
Ritter filed his civil rights complaints on June 21 and December 28, 2000. In the first complaint, he named as defendants numerous officials of the French Robertson Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) including: Senior Warden McElvaney; Assistant Wardens Bond, Eason, and Cook; Doctors Steven Peck, Adel Nafrawi, and Jack Calhoun; Wayne Scott and Gary Johnson; and Bob Prewit By order entered on October 2, 2000, the court dismissed Ritter's claim of deliberate indifference to serious medical needs, dismissed all claims against Peck, Nafrawi, and Calhoun, and ordered Defendants McElvaney, Cook, Scott, Johnson, and Prewit to answer Ritter's claim of failure to protect. On December 19, 2000, the court ordered Defendants Bond and Eason to answer Ritter's claim of failure to protect.In his second complaint, Ritter named as defendants: Senior Warden Duke; Assistant Wardens Cook and Eason; Majors Oliver and Thomas; Emily Doan; Ms. Coffman; Kelly B. Strong; Doctors Steven Peck, Adel Nafrawi, and Jack Calhoun; Bob Prewit; Wayne Scott and Gary Johnson; Ms. Bounds; and Ms. Wills. By order entered on April 9, 2001, the court ordered Defendants Cook, Eason, Oliver, Thomas, Doan, Coffman, Peck, Nafrawi, Calhoun, Prewit, Scott, Johnson, Bounds, Wills, and Duke to answer Ritter's claim of failure to protect. His claim as to injunctive and declaratory relief was dismissed. On June 5, 2001, the court ordered Defendant Strong to answer Ritter's complaints of failure to protect.
Defendant Coffman was dismissed from this lawsuit on February 5, 2003.
Defendants Cook, Eason, Oliver, Thomas, Doan, Coffman, Nafrawi, Calhoun, Scott, Johnson, and Duke answered on May 16, 2001, and consented to jurisdiction by a United States magistrate judge on June 18, 2001. Defendant Peck answered on May 25, 2001, and consented on June 18, 2001. Defendants Bounds and Wills answered on July 6, 2001, and consented on July 23, 2001. Defendant Prewit answered on September 10, 2001, and consented on September 20, 2001. Defendants Bounds, Wills, and Prewit filed an amended answer on March 27, 2002.
Defendant Strong answered on July 9, 2001, and consented to jurisdiction by a United States magistrate judge on October 18, 2001.
Ritter was housed at the French Robertson Unit for a period of almost five years, March 11, 1998, through February 27, 2003. He claims that he has a condition called "neurogenic bladder and bowel dysfunction," rendering him totally incontinent, He also has been diagnosed with Hepatitis C. He requires medical supplies of adult diapers, disposable liner inserts, waterproof pants, and a waterproof mattress cover. He states that he must wash feces off of his body up to four times a day and that because he must clean himself off in the shower, he has been threatened by other inmates. He claims that he has repeatedly requested single-cell housing, medical transfer, medical unassigned classification or infirmary shower, but all his requests have been denied.
Ritter further alleges that he was removed from single-cell status on April 28, 1999, and that on October 24f 2000, while returning to his cell he was attacked by another inmate, which was the second time he had been attacked by another inmate due to his medical condition. After the incident on October 24, 2000, he was placed in transient status, and on October 27, 2000, the Unit Classification Committee conducted a hearing but his requests for protection or transfer were denied, and on December 7, 2000, he was placed back in general population,
Parties' Contentions
Defendants Prewit, Bounds, and Wills argue that there is no evidence they failed to protect the Plaintiff, no evidence that they had a duty to protect the Plaintiff from the alleged physical assault by another inmate, and that, in any event, any injury was de minimis and therefore no cause of action for failure to protect is stated; thus, they are entitled to dismissal from this action. They have also alleged that the Plaintiff failed to exhaust administrative remedies.
Ritter counters that the Defendants were prison officials with authority to make decisions and that Wills knew that he had been threatened by another offender before he was assaulted Ritter argues that Defendants Prewit, Bounds, and Wills had constructive knowledge of the danger to him and that numerous staff members have the authority to order single-cell housing. He also argues that he has been subjected to inadequate medical care on the grounds that there is no record of treatment for his infantilism, he has been denied access to a physician, and the access to an infirmary shower is a wanton infliction of pain due to the impact upon him.
Defendants Cook, Peck, Eason, Oliver, Thomas, Doan, Coffman, McElvaney, Bond, Nafrawi, Calhoun, Duke, and Strong argue that to any extent Ritter is suing them in their official capacities for monetary damages, they are entitled to sovereign immunity and that as to Ritter's complaint that they violated the Americans with Disabilities Act (ADA), Eleventh Amendment immunity bars his claims for damages under the ADA and his condition does not qualify as a disability under the ADA. Defendants Cook, Eason, Duke, Thomas, McElvaney, and Strong argue that they had no personal involvement with the classification decisions regarding Ritter's claims of life endangerment or with his medical care and that they cannot be held vicariously liable for any of their subordinates' actions. Defendants further submit that they cannot be held liable for deliberate indifference to Ritter's safety because they were not aware of any risk to his safety, they responded reasonably to threats to Ritter's safety, and they cannot be held liable for deliberate indifference to Ritter's health.
Ritter raises numerous assertions regarding his treatment while at the French Robertson Unit. He states that there are records of numerous incidents of violence at the unit and the risk to him was obvious. He disputes many of what the Defendants contend are undisputed facts. He asserts that he is suing the Defendants in their official capacities for injunctive relief which is not barred by sovereign immunity. He also contends that under the ADA his fecal incontinence and Hepatitis C do meet the definition of a physical impairment that substantially limits one or more major life activities. Ritter contends that the Defendants were personally involved in the harm that he has suffered and that the evidence that he asked each of the Defendants for protection (through single-cell status) is extensive. He claims that Defendants Doan, Coffman, and Strong were involved in the appeals process of resolving medical disputes, and that Defendants Cook, Eason, Bond, McElvaney, Duke, Oliver, and Thomas were all aware that he was disabled and aware of the danger he faced due to his incontinence. Ritter asserts that his low body weight and his disability make him an obvious victim unable to protect himself. Ritter itemizes a number of criticisms of the life endangerment investigative process and contends that Defendants Oliver, Doan, Coffman, and Bond did not respond reasonably to his claims of life endangerment Ritter raises a number of complaints about his medical treatment.
Discussion
Section 1997e(a) of Title 42, United States Code, provides, "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" A prisoner must exhaust his administrative remedies regardless of the remedy sought. Booth v. Churner, 532 U.S. 731, 736 (2001) ("Congress has mandated exhaustion clearly enough, regardless of the relief offered through the administrative procedures.").
In Ritter's second complaint, filed on December 28, 2000, in answer to the question, "Have you exhausted both steps of the grievance procedure in this institution?", Ritter checked "No" and noted "Emergency Suit." No copies of any grievances are attached, because Ritter did not file any. Therefore, in compliance with Booth, this action must be dismissed as against all Defendants named in the second complaint and not named in or ordered to answer the first complaint These Defendants are: Bounds, Wills, Peck, Oliver, Thomas, Doan, Coffman, Nafrawi, Calhoun, Duke, and Strong. The complaint against them is dismissed. The Defendants remaining in this action are Cook, Eason, McElvaney, Bond, and Prewit
Failure to protect
Prison officials have a constitutional duty, under the Eighth Amendment, to protect inmates from violence at the hands of other prisoners or guards. See Farmer v. Brennan, 511 U.S. 825, 833 (1994); Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995). To prove a violation under § 1983, plaintiff must show that "he is incarcerated under conditions posing a substantial risk of serious harm and that the prison officials were deliberately indifferent to his need for protection." Needs v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Prison officials must act or fail to act with deliberate indifference to a substantial risk of harm to Plaintiff. Deliberate indifference requires that the prison official:
know [ ] of and disregard an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exits, and he must also draw the inference . . . [A]n official's failure to alleviate a significant risk that he should have perceived but did not . . . cannot be condemned as the infliction of punishment.Farmer, 511 U.S. at 837; see Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998). The appropriate mens rea for deliberate indifference is "subjective recklessness as used in the criminal law." Farmer, 511 U.S. at 839-40,
The prison official must act or fail to act despite his knowledge of a substantial risk of harm to Plaintiff See Farmer, 511 U.S. at 842. Plaintiff need not show the prison official believed that harm actually would befall him. Id. "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842; see Neals, 59 F.3d at 533.The Court discussed the type of evidence that might sustain a circumstantial finding of actual knowledge:
if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was `longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,' and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus "must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.Farmer, 511 U.S. at 842-43.
A determination of the existence of a substantial risk of serious harm must "mak[e] sure to be responsive to `contemporary standards of decency.'" See Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995) (finding extortion in prison and minor physical assaults with imminent threat of major assaults constitute a "substantial risk of serious harm"). The prison official must not only protect against present dangers to inmate safety, but also against "'sufficiently imminent dangers' that are likely to cause harm." Id. A prison official may be liable if evidence shows he refused to verify underlying facts of an obvious risk that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist. See Farmer, 511 U.S. at 842. In addition, a prison official maybe liable if he was aware of a substantial risk to inmate safety, but he did not know the Plaintiff was especially likely to be assaulted by the specific inmate who eventually did assault Plaintiff. Id. However, a prison official cannot be liable if he was unaware of facts showing a substantial risk to inmate safety, was aware of facts showing a risk but failed to infer the substantiality of the risk, or was aware of a substantial risk and responded reasonably to it, even if harm was not averted. Id. at 844.
Defendant Prewit argues that the injuries, if any to Ritter were de minimis (one time he had an abrasion to his knee and the other, a small cut above his eye) and therefore this action should be dismissed. In addition, Prewit argues that he is not an official who could have ordered a change in housing for Ritter. The authenticated records and summary judgment evidence establish that Defendant Prewit is entitled to dismissal on these bases.
Defendants Cook, Eason, and McElvaney state that they had no personal involvement with the classification decisions regarding Ritter's claims of life endangerment or with his medical care and that each of Ritter's life endangerment investigations were reviewed by the Unit Classification Committee. They also argue that although some of them supervised individuals who sat on these committees, they did not make the decisions at the crux of Ritter's complaint; therefore, they cannot be held liable under § 1983 and are entitled to summary judgment After reviewing the authenticated records, this court finds that Defendants Cook, Eason, and McElvaney are entitled to summary judgment on these bases.
Defendant Bond served on one of the Unit Classification Committees which reviewed the investigations of Ritter's life endangerment claims. Bond attests that on December 28, 1999, Ritter claimed his life was in danger but did not provide any concrete evidence to support his allegations and that the committee determined that there was insufficient evidence to support his claims and therefore denied his request for transfer. She attests that she did not believe that he was in danger at that time, that she did not disregard his safety, and that she was not involved in any other UCC meetings regarding Ritter. She attests that she performed her duties as Assistant Warden to the best of her abilities and with the good faith belief that her actions were in accordance with the Constitution and laws of the United States, Ritter contends that he has always provided names of offenders who have threatened him and lists several pages of the appendix; however, these pages refer to incidents/investigations after the one reviewed by the committee on which Bond served. After reviewing the summary judgment evidence, the court finds that Defendant Bond is entitled to summary judgment She was one member of the classification committee and based her decision of the record presented to her which was prior to the instances where Ritter provided names of offenders who had threatened him. She also is entitled to qualified immunity.
Ritter cites to Appendix A, pages 97 (dated April 12, 2000), 125 (February 29, 2000), 131 (February 16, 2000), 133 (February 18, 2000), and 165 (July 6, 2000).
For the foregoing reasons, Ritter's claims against Defendants Bounds, Wills, Peck, Oliver, Thomas, Doan, Coffman, Nafrawi, Calhoun, Duke, and Strong are dismissed for failure to exhaust administrative remedies; alternatively, summary judgment is granted as to these Defendants for the reasons stated in their motions and briefs. Further, for the reasons stated in this order and for the reasons presented in the Defendants' motions and briefs, summary judgment is granted in favor of Defendants Cook, Eason, McElvaney, and Bond. This action and all claims therein are dismissed This action is dismissed in part with prejudice as frivolous pursuant to 42 U.S.C. § 1997(e)(c)(1)-(2) (West 1999), 28 U.S.C. § 1915(e)(2)(B)(i), 1915A(b)(1) (West 1999). Any pending motions are denied as moot.
Judgment will be entered accordingly.
The District Clerk will send a copy hereof to any party appearing pro se and to each attorney of record by first class mail.
JUDGMENT
Of equal date herewith an Order Dismissing Claims Against Defendants Bounds, Wills, Peck, Oliver, Thomas, Doan, Coffman, Nafrawi, Calhoun, Duke, and Strong and Granting Summary Judgment as to Defendants Cook, Eason, McElvaney, and Bond having been entered,it is ORDERED and ADJUDGED
that Plaintiff's claims against Defendants Bounds, Wills, Peck, Oliver, Thomas, Doan, Coffman, Nafrawi, Calhoun, Duke, and Strong are dismissed for failure to exhaust administrative remedies;
it is further ORDERED and ADJUDGED
that Plaintiff's complaint and all claims alleged therein as to Defendants Cook, Eason, McElvaney, and Bond are dismissed with prejudice as frivolous.
Plaintiff's claims against Defendants Wayne Scott and Gary Johnson are pending before the United States Court of Appeals for the Fifth Circuit. In accordance with Rule 54(b) of the Federal Rules of Civil Procedure, the court finds that there is no just reason for delay and directs entry of final judgment as to the claims against Defendants Bounds, Wills, Peck, Oliver, Thomas, Doan, Coffman, Nafrawi, Calhoun, Duke, Strong, Cook, Eason, McElvaney, and Bond.