Opinion
CIVIL NO. SA-03-CA-33-WRF
June 12, 2003
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
To: Honorable W. Royal Furgeson, Jr. 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)of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas effective January 1, 1994, the following report is submitted for your review and consideration.
I. JURISDICTION
Plaintiff alleges federal question jurisdiction. 28 U.S.C. § 1331.
II. PROCEDURAL HISTORY
Plaintiffs complaint was filed on February 27, 2003, following the Court's Order provisionally granting plaintiff leave to proceed in forma pauperis. Plaintiff, currently housed at the Connolly Unit, was transferred to the Connolly Unit from the Telford Unit on or about December 11, 2002. Plaintiffs complaints address actions/inactions that occurred at both Units. In brief, plaintiff is suing the following individuals for the following reasons:
Docket no. 5.
Warden Hudson of the Telford Unit for not taking action when plaintiff sent him letters on September 6, 2002 and October 5, 2002 which told him plaintiff believed his life was in danger and his lack of action allegedly resulted in plaintiffs injuries from assaults that occurred on October 10, 2002 (plaintiff allegedly was assaulted and robbed of a fan, a radio with headphones, a nightlight and a pair of boots); and for additionally not taking action when, on October 15, 2002, plaintiff notified him of the October 10 alleged assault, Warden Hudson's failure to act resulted in plaintiff being assaulted and "severely beaten" by "a known prison threat group" on November 21, 2002;
Director Cockrell for her deliberate indifference to the life endangerment policy which is unconstitutional because of the criteria used to decide whether plaintiffs life was in danger and which placed plaintiff in an unreasonably dangerous situation;
John Doe 1, 2, 4 and 5 for showing deliberate indifference to known threats which resulted in plaintiff suffering injuries; namely, John Doe 1 told plaintiff to contact Warden Hudson when plaintiff told him, at some time prior to September 6, 2002, that he feared for his life; John Doe 2 returned plaintiff to his cell after plaintiff had been assaulted on November 21, 2002 even though plaintiff told him he was afraid to return to his cell; and John Doe 4 and John Doe 5 took no action on November 20, 2002 when plaintiff told them he had been assaulted and robbed (on October 10, 2002);
John Doe 3 for showing deliberate indifference to plaintiffs medical needs and emergency medical claims, namely, John Doe 3 declined to treat plaintiff immediately after the November 21, 2002 assault, but asked that plaintiff submit a sick call request; and
Warden Marton of the Connally Unit for violating plaintiffs constitutional rights in dealing with plaintiffs safety concerns, specifically, in telling plaintiff, following his December 11, 2002 transfer from the Telford Unit to the Connolly Unit, that plaintiff had not been threatened at the Connally Unit and therefore would be placed in the general population as opposed to protective status.
Docket no. 5 at 3 (as numbered on the form complaint) and a; A — l through A — 4.
Plaintiff alleged that he filed a step — one grievance on October 22, 2002, but he had received no answer to the grievance at the time of the filing of the complaint. Plaintiff further alleges he should have received a response by approximately December 6, 2002. On page two of the form complaint, plaintiff checked "yes" that he had "exhausted both steps of the grievance procedure" in his current institution, the Connolly Unit, but no other grievances are mentioned in the complaint, nor is any other grievance attached to the complaint ether than plaintiffs copy of the October 22, 2002 grievance. As relief, plaintiff seeks damages in "an amount determined by a jury," court costs, filing fee, attorney's fees, expenses, a declaration that the Texas Department of Criminal Justice — Institutional Division ("TDCJ — ID") life endangerment policy is unconstitutional, an "order requiring defendant to comply with known federal and state laws and statutes regarding safety measures for vulnerable offenders . . . [a]nd any other relief this Court feels is fair and just."
Id. at A-3.
Id. The step one grievance form indicates that plaintiff requested, as relief, "to be removed from the dangerous situation and be placed somewhere safe for someone in my situation" Docket no. 5, attached grievance form. Plaintiff alleges he was transferred to the Connolly Unit on December 11, 2002. Id. at A-4.
Id. at 3 (as numbered on the form complaint).
Id. at A-5.
On March 13, 2003, the Court entered an Order directing service on the Texas Attorney General's Office for defendants and answer. On May 20, 2003, the Texas Attorney General's Office filed three amicus curiae motions: a motion to dismiss plaintiff s claims for money damages against defendants Cockrell and Marton; a motion to dismiss all of plaintiffs claims for failure to exhaust administrative remedies; and a motion for additional information on John Doe Nos. 1-5.
Docket no. 8.
Docket no. 11.
Docket no. 12.
Docket no. 13.
In brief, in the motion to dismiss any claims seeking money damages from defendants Cockrell and Marton in their official capacities, defendants Cockrell and Marton argue that such claims are barred by the Eleventh Amendment. In the motion to dismiss for failure to exhaust, defendants argue plaintiffs § 1983 claims should be dismissed because plaintiff failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Defendants note that the TDCJ — ED has a two — step grievance procedure available to inmates. Defendants argue that plaintiff did not file either a step one or a step two grievance form for any of the events underlying the complaint, but plaintiff indicated in his original complaint, in a statement made under oath, that he had exhausted all administrative remedies. Defendant indicates the grievance form which plaintiff attached to his complaint concerning the events surrounding the October 10, 2002 alleged assault was not processed by TDCJ — ID; likely because it had been presented in violation of TDCJ — LD rules, specifically the rule that limits an inmate to one (non — emergency) grievance every seven days. Defendants have attached to their motion plaintiffs offender grievance records for the period of March 2002 to April 2003 in support of its request that plaintiffs claims in this suit be dismissed for lack of exhaustion.
Docket no. 12, attached affidavit of Ms. Schumacher at 1.
On May 21, 2003, the Court entered an Order calling upon plaintiff to respond to the motions on or before June 11, 2003. On May 29, 2003, plaintiff filed a response to the two motions to dismiss. In sum, plaintiff (a) objects to the Attorney General's Office filing amicus motions; (b) argues he "never sought monetary damages from defendants Cockrell and Marton," but, rather, Marton failed to follow TDCJ — ID's "life endangerment policy," Cockrell did not insure that TDCJ — ID followed its life endangerment policy, and he seeks an order stating that the life endangerment policy is unconstitutional and an award of appropriate injunctive relief against Cockrell and Marton either to require them to follow the life endangerment policy and/or to find the policy unconstitutional and/or to order such equitable relief to insure the reasonable safety of plaintiff; and (c) argues he should not be required to exhaust because "he is currently in imminent dager and that the TDCJ — ID staff are aware of that danger" and "plaintiff fears to seek help from TDCJ — ID security personnel for fear that he will receive no assistance, which will then make matters worse because the plaintiff will be returned to general population and will be known as a snitch." On June 6, 2003, plaintiff filed a response to the notion for additional information on the John Doe defendants, stating, in brief, that plaintiff needed discovery before he could provide additional information on the identities of the John Doe defendants.
Docket no. 14.
Docket no. 15.
Id. at 1-2.
Id. at 2-4.
Id. at 4-5.
Docket no. 16.
III. ISSUES PRESENTED
Whether plaintiff has exhausted administrative remedies.Whether plaintiff has stated a claim for money damages against defendants Cockrell and Marton in their official capacities.
IV. STANDARDS
A. Rule I2(b)(6) Motion to Dismiss For Failure to State A ClaimPursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must state a claim upon which relief can be granted or the complaint may be dismissed with prejudice as a matter of law. A motion to dismiss under Rule 12(b)(6) "is viewed with disfavor and is rarely granted." When considering a motion to dismiss for failure to state a claim, all factual allegations in the complaint must be taken as true and construed favorably to the plaintiff. The United States Supreme Court has elaborated:
Kaiser Aluminum Chem. Sales, Inc. v. Avondale. 677 F.2d 1045, 1050 (5th Cir.), cert. denied. 459 U.S. 1105, 103 S.Ct. 729 (1982) (quoted in Capital Parks, Inc. v. Southeastern Advertising Sales Sys., Inc., 864 F. Supp. 14, 15(W.D.Tex. 1993), affirmed, 30 F.3d 627 (5th Cir. 1994)).
Fernandcz — Montez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). See Capital Parks, Inc., 30 F.3d at 629 ("A courts decision to dismiss for failure to state a claim may be upheld `only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.'Baton Rouge Bldg. Constr. Trades Council AFL — CIO v. Jacobs Constructors. Inc., 804 F.2d 879, 881 (5th Cir. 1986).") See also O'Ouir n v. Manuel. 773 F.2d 605. 608 (5th Cir. 1985).
Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be proved consistent with the allegations," a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one.
Neitzke v. Williams. 490 U.S. 319. 327. 109 S.Ct. 1827. 2232 (1989) (quoting Hishon v. King Spalding. 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984)).
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. This is a rigorous standard, but subsumed within it is the requirement that a plaintiff state its case with enough clarity to enable the court and the opposing party to determine whether a claim is alleged.
Conley v. Gibson. 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957).
Jefferson v. Lead Indus. Ass'n. Inc.,106 F.3d 1245, 1250 (5th Cir. 1997); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); Femandez — Montes. 987 F.2d at 284.
Elliott v. Foufas. 867 F.2d 877, 880 (5th Cir. 1989).
B. Exhaustion
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: he 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).
Id.: see McCarthy v. Madigan. 503 U.S. 140, 112 S.Ct. 1081 (1992).
Porter. 534 U.S. at 522-23, 122 S.Ct. at 987.
Id. (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.
42 U.S.C. § 1997e(a) (emphasis added).
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 (citing Booth 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.
Id. 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, 120 S.Ct. 2743 (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 Section 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 U.S.C. § 1983 does not create any substantive rights, but instead provides a remedy for violations of federal statutory and constitutional rights. Ir order to state a cause of action under § 1983, the plaintiffs claim for relief must allege facts establishing: (1) that plaintiff has been deprived of a right secured by the Constitution or laws of the United States; and (2) that the defendant acted under color of state law.
See LaFleur v. Texas Department of Health. 126 F.3d 758, 759 (5th Cir. 1997); Jackson v. City of Atlanta. Tex., 73 F.3d 60, 63 (5th Cir. 1996).
See Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir. 1997); Fyfe v. Curlee. 902 F.2d 401, 403 (5th Cir. 1990);Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989).
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 failure to protect claim. To prevail on an Eighth Amendment failure to protect claim, a plaintiff must establish that he was incarcerated under conditions that posed a substantial risk of serious harm to his safety and that defendant was deliberately indifferent to his need for protection. To act with deliberate indifference, "the 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."
See Farmer v. Brennan. 511 U.S. 825, 831-32, 114 S.Ct. 1970. 1977, 1979 (1994) (Eighth Amendment prohibits the infliction of cruel and unusual punishment upon convicted prisoners).
Id. at 837, 114S. Ct. at 1979.
V. ARGUMENTS AND CONCLUSIONS OF LAW
A. Exhaustion of RemediesPlaintiff complains, in sum, he was assaulted and robbed by unnamed persons on October 10, 2002; he complained to Warden Hudson on September 6 and October 5, 2002, but Warden Hudson took no action and failed to protect plaintiff; he complained again to Warden Hudson on October 15 about the October 10 assault and plaintiffs continued fear, but Warden Hudson took no action; sometime before September 6, plaintiff complained to John Doe 1 that his life was in danger, but John Doe 1 took no action except to tell plaintiff to contact Warden Hudson; on October 22, 2001, plaintiff filed a step one grievance complaining about his three complaints to Warden Hudson and his failure to protect and the October 10 assault; en November 20, 2002, plaintiff complained to John Doe 4 and 5 who work in the Psych, department, about the October 10 assault, but they took no action; on November 21, 2002, plaintiff was assaulted by two inmates, but John Doe 3, who worked in medical, declined to treat plaintiff at that time and John Doe 2 returned plaintiff to his cell even though plaintiff told John Doe 2 he was afraid to go back to his cell due to ongoing threats; on December 17, 2002, Warden Manon met with plaintiff and told plaintiff he was going to be placed in general population at the Connolly Unit, as plaintiff did not meet the criteria for protected status, even though plaintiff continues to fear for his life. These claims are in the nature of failure to protect claims and failure to afford medical treatment, as well as a challenge to the constitutionality of the life endangerment policy.
Plaintiff alleges that he filed only one step one grievance on or about October 22, 2002. On the other hand, defendants contend that: plaintiff's October 22, 2002 grievance regarding the October 10, 2002 alleged assault and related alleged failure to protect allegations was not "properly submitted" to TDCJ — ID, and was never processed by TDCJ — ID; plaintiff never filed a step one or step two grievance form relating to the alleged assault and robbery on November 20, 2002 or November 21, 2002. Defendants have filed a set of plaintiffs grievance records for the relevant period (the set of grievance records totals 56 pages) both to show that there no grievances were filed with respect to the incidents in question and to show that plaintiff filed other grievances on other matters, demonstrating he understands the grievance process.
Plaintiff's claims against defendants in this lawsuit are complaints about a "particular episode" of "prison life" as well as "prison conditions" and rules, and the "general circumstances" of prison life; pursuant to § 1997e(a), plaintiff was required to exhaust administrative remedies before filing the instant lawsuit. That plaintiff in part seeks monetary damages for his alleged injuries does not excuse him from the exhaustion requirement of § 1997e(a). The law on exhaustion of administrative remedies does not allow a prison inmate to file a lawsuit in federal court without fully exhausting administrative remedies. Accordingly, plaintiff is required to proceed to step two and exhaust remedies available through the administrative grievance process before filing suit in this court.
Porter, 534 U.S. at 531-32, 122 S.Ct. at 992.
Id. at 531-32, 122 S.Ct. at 988.
Plaintiffs argues that he should not be required to exhaust his administrative remedies because he is in "imminent danger" and "TDCJ — ID staff are aware of that danger," but, apparently, are not taking action to protect plaintiff. Plaintiff further argues that he "fears to seek help from TDCJ — ID security personnel for fear that he will receive no assistance, which will then make matters worse because the plaintiff will be returned to the general population and will be known as a snitch, (see enclosed affidavit)." But, there appears to be no exception to the exhaustion requirement based on an inmate's fears for his own safety or concern that he will obtain no relief in the administrative process. The policy underlying the exhaustion requirement is that the prison authorities should be given the first opportunity to address complaints about prison conditions or occurrences. Plaintiff has not explained why he apparently has no concerns about filing a lawsuit against the defendants, writing to Warden Hudson, speaking with Warden Marton and five John Doe defendants about his concerns, but he is too afraid to actually use the prison mechanisms available to grieve, that is disagree, with the decision to place him in general population instead of protective status, and to grieve, that is, seek redress for the past actions of failure to protect or failure to afford adequate medical care. Plaintiffs actions appear to be related to his assessment that his grievances will not be successful, not to concern about discussion his concerns for his safety with prison authorities.
Docket no. 15 at 4.
Id. at 4-5.
As noted, plaintiff attached to his complaint a grievance form dated October 22, 2002. Plaintiff indicated he filed it, should have received a response on or about December 6, 2002, but did not. Plaintiff has not explained why his concerns for his safety did not stop him from filing a grievance in October 2002, but he is no longer willing to file grievances about concern for his safety, though, it appears, it he has continued to file grievances about less imminent matters. See docket no. 12, attached grievance records. If, as Ms Schumacher indicates in her affidavit as custodian of the grievance records, the October 22, 2002 grievance may have been returned to plaintiff as having been filed in violation of the grievance procedures, plaintiff has not explained why he did not re — file that grievance in compliance with the procedures.
Therefore, plaintiffs complaint should be dismissed without prejudice for failure to exhaust.
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. Claims for Monetary Damages Against Defendants Cockrell and Marton in Their Official Capacities
Defendants Cockrell and Marton also move to dismiss any claim brought against them in their official capacities seeking money damages on the ground that such a claim is barred by the Eleventh Amendment. Plaintiff does not oppose such a dismissal and states that he seeks only injunctive relief from these two defendants, not money damages.
Therefore, any claims for money damages brought against defendants Cockrell and Marton in their official capacities should be dismissed without prejudice.
VI. RECOMMENDATION
It is recommended that the Texas Attorney General's amicus curiae motion to dismiss plaintiffs complaint for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a) should be GRANTED and each plaintiffs claims should be dismissed without prejudice due to plaintiffs failure to exhaust administrative remedies. It is also recommended that the Texas Attorney General's amicus curiae motion to dismiss plaintiffs claims for money damages against defendants Janie Cockrell and Jeffrey Marton in their official capacities should be GRANTED and such claims should be dismissed without prejudice on the additional ground (that is, in addition to failure to exhaust) that they are barred by the Eleventh Amendment. In light of this recommended disposition, the Texas Attorney General's amicus curiae motion for additional information regarding John Doe Nos. 1 through 5 may be DENIED as moot.
Docket no. 12.
Docket no. 11.
Docket no. 13.
VII. 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 conclusions accepted by the District Court. ORDERED, SIGNED AND ENTERED
See Thomas v. Arn. 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.