Opinion
2:01-CV-0202
April 19, 2004
REPORT AND RECOMMENDATION
Plaintiff GILBERT RAUL URBANO, acting pro se, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and was granted permission to proceed in forma pauperis.
Defendants filed their Motion to Dismiss for Failure to State a Claim on March 24, 2004. Plaintiff filed his Response on April 12, 2004.
Plaintiff alleges he was assigned to the newly opened Clements High Security Unit on July 15, 2000 and was attacked by another inmate on July 29, 2000. Plaintiff asserts an Eighth Amendment failure to protect claim against the defendants.
Plaintiff requests an award of compensatory and punitive damages in unspecified amounts.
DEFENDANTS' RULE 12(b)(6) MOTION TO DISMISS
Defendants argue plaintiff has advanced no allegation that defendants PRICE, VAQUERA, and ESTEP personally participated in, witnessed, or had knowledge of the "behavior" underlying plaintiff's complaint. They contend plaintiff has not stated particular facts specifying the personal involvement of each defendant and cannot rely on a theory of vicarious liability. As to defendants WAUSON and MILLER, defendants argue plaintiff has not overcome the assertion of qualified immunity because they did not act unreasonably when they fled the immediate area of the attack for their own safety. Defendants also contend they are immune from plaintiff's claims for monetary relief against them in their official capacities by virtue of Eleventh Amendment immunity.
The Court notes defendants' motion to dismiss does not contain a page "4" and the tracking of the last sentence from the bottom of page 3 to the top of page 5 leads the Court to infer this is not an error in page numbering.
Plaintiff argues the High Security Unit was not fully staffed and the officers were not fully trained on the day he was taken to the recreation area, which he also argues was inadequately supervised. Plaintiff contends defendant PRICE knew the High Security Unit was not ready to commence normal operations and had failed to adequately supervise and train the staff, leading to plaintiff's attack. Plaintiff contends defendant VAQUERA, as Security Threat Group Sergeant, had both plaintiff's file and that of his attacker showing their respective status, and allowed active gang members such as plaintiff's attacker, to be housed in proximity with former gang members like plaintiff, leading to plaintiff's attack. Plaintiff states defendant ESTEP was assigned to supervise and maintain security in the recreation yard on a catwalk above the yard, but was not present or did nothing to stop inmate Burrell from cutting out of his recreation cage, entering plaintiff's cage, and attacking plaintiff in the entryway with a razor. Further, plaintiff alleges the provision by PRICE of only one officer to maintain security on a recreation yard of twenty single-inmate recreation cages for the High Security Unit was inadequate.
Plaintiff also alleges defendants WAUSON and MILLER escorted inmate Burrell from a cell next to plaintiff's to a recreation cage. They then returned, placed plaintiff in restraints, and escorted plaintiff to his recreation cage, only to find inmate Burrell in plaintiff's cage, about five yards from the door. Plaintiff argues defendants had time to close the door but, instead, ran, leaving the door open for Burrell's entry and leaving plaintiff in restraints to endure attack until Burrell's razor broke. Plaintiff contends defendants did not even take any verbal action to halt Burrell's attack. Consequently, plaintiff was cut by inmate Burrell until the razor broke. Plaintiff needed over three hundred stitches.
STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a claim on the basis of a dispositive issue of law. If the complaint lacks a required element which is a prerequisite to obtaining relief, dismissal is proper. Clark v. Amoco Prods. Co., 794 F.2d 967, 970 (5th Cir. 1986). On consideration of a 12(b)(6) motion, the Court must liberally construe the complaint in the plaintiff's favor and must assume the truth of all well-plead facts. Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002); Doe v. Hillsboro Independent School Dist., 81 F.3d 1395, 1401 (5th Cir. 1996) (all well-plead facts are accepted as true and are viewed in the light most favorable to the plaintiff). A complaint should not be dismissed for failure to state a claim unless it clearly appears that the complainant can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The belief that a plaintiff is unlikely to prevail is not sufficient to support dismissal. Scheuer v. Rhodes, 416 U.S. 232, 2326 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
THE LAW AND ANALYSIS
Prisoners have a right to protection from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A prison official violates the Eighth Amendment if he acts with deliberate indifference to a substantial risk of serious harm to the health or safety of a prisoner. Id. at 834. Upon due consideration, the Court finds plaintiff has alleged a violation of a clearly established constitutional right. He has also alleged facts that, if true, could defeat the defendants' entitlement to qualified immunity.
While PRICE may have established reasonable and prudent policies and may not have approved the commencement of recreation for inmates from the High Security Unit until the necessary facilities and equipment were provided and the guards had been adequately trained, plaintiff's allegations that PRICE failed in these respects, if shown to be true, might convince a jury of deliberate indifference to a substantial risk of serious injury. The same can be said of defendant VAQUERA and his performance of his duties as gang intelligence officer. Further, when plaintiff's allegations concerning defendant GARCIA, who has not yet answered, are factored into the equation, always assuming the truth of these allegations and plaintiff's ability to prove them, it appears defendants GARCIA's and ESTEP's failure to notice, report, or remedy the torn fencing between the cages, as well as ESTEP's failure to man the catwalk or take any other action might also convince a jury of deliberate indifference with respect to these defendants.
Plaintiff's claims against defendants WAUSON and MILLER are similarly dependant on proof of his precise factual contentions; however, a jury might be convinced, under some facts, that the defendants' failure to simply close the door evinced deliberate indifference to plaintiff's safety, not simply a desire to preserve their own.
Thus, the Court finds the issue of the reasonableness of the defendants' actions, is a mixed question of law and fact which cannot be determined adversely to plaintiff at this stage.
As to plaintiff's claims for monetary relief against the defendants in their official capacities, the Eleventh Amendment bars suit against a state or a state official unless the State has waived its immunity, Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); and grants the States an immunity from retroactive monetary relief, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). A suit against an official in his or her official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). Consequently, any claim for monetary relief against defendants in their official capacities is barred by the Eleventh Amendment.
An exception to this general principle was created in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in which the Supreme Court held that a suit for prospective injunctive relief, challenging the constitutionality of a state official's action in enforcing state law, is not one against the State. Id., at 159-160, 28 S.Ct., at 453-54. See, also, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (the Eleventh Amendment grants the States an immunity from retroactive monetary relief, but state officers are not immune from prospective injunctive relief).
CONCLUSION
Liberally construing the pro se plaintiff's complaint, accepting all well-plead facts as true, and viewing them in the light most favorable to the nonmovant, the Magistrate Judge FINDS defendants have shown they are immune from plaintiff's claims for monetary relief asserted against them in their official capacities. As to plaintiff's claims against defendants in their individual capacities, the Magistrate Judge FINDS defendants have failed to demonstrate the complainant can prove no set of facts in support of his claim which would entitle him to relief.
It is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that defendants' motion to dismiss be GRANTED, IN PART, AND DENIED, IN PART.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an 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 Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)( en banc).
IT IS SO RECOMMENDED.