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Garner v. Metz

United States District Court, Fifth Circuit

December 17, 2013

WILLI FREE I GARNER, Plaintiff,
v.
KELLY METZ, et al, Defendants.

ORDER DISMISSING CERTAIN CLAIMS AND RETAINING CASE

JASON B. LIBBY, Magistrate Judge.

This civil rights action was filed by a Texas state prisoner pursuant to 42 U.S.C. § 1983.

Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), any prisoner action brought under federal law must be dismissed if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. See 42 U.S.C. § 1997e(c); 28 U.S.C. §§ 1915(e)(2), 1915A. Plaintiff's action is subject to screening regardless whether he prepays the entire filing fee or proceeds as a pauper. Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998) (per curiam); Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998) (per curiam), cert. denied, 527 U.S. 1041 (1999). Plaintiff's pro se complaint must be read indulgently, Haines v. Kerner, 404 U.S. 519, 520 (1972), and his allegations must be accepted as true, unless they are clearly irrational or wholly incredible, Denton v. Hernandez, 504 U.S. 25, 33 (1992).

Applying these standards, plaintiff's excessive force claim against Lieutenant Kelly Metz is retained, and service shall be ordered on this defendant in his individual capacity. Plaintiff's remaining claims against the remaining defendants are dismissed with prejudice for failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).

I. Jurisdiction.

The Court has federal question jurisdiction over this civil rights action pursuant to 28 U.S.C. § 1331. Upon consent of the plaintiff[1], this case was referred to the undersigned United States magistrate judge to conduct all further proceedings, including entry of final judgment. (D.E. 14). See 28 U.S.C. § 636(c).

II. Background facts and plaintiff's allegations.

Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal Institutions Division ("TDCJ-CID"), and he is currently confined at the McConnell Unit in Beeville, Texas. He filed his original complaint on August 19, 2013, and named the following three individuals as defendants: (1) Lieutenant Kelly Metz (no longer at the McConnell Unit); (2) Major Adam Gonzales (now an assistant warden at the Robertson Unit in Abilene); and (3) Lanelle White-Roell (a licensed vocational nurse who formerly worked at the McConnell Unit infirmary). (D.E. 1 at 3). Plaintiff claims that on June 29, 2012, Lieutenant Kelly used excessive force against him, and that Major Gonzales effectively encouraged the unauthorized use of force and/or failed to protect plaintiff, in violation of plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. Id. He claims that Nurse White-Roell failed to provide appropriate medical treatment following the use of force, in deliberate indifference to his serious medical needs. Id.

On November 21, 2013, a Spears [2] hearing was conducted. The following allegations were made in plaintiff's original complaint (D.E. 1), or at the hearing:

Sometime in 1998, plaintiff was involved in an altercation in which he was seriously injured, necessitating inter alia, cervical surgery in which certain vertebrae were fused. (D.E. 1, p. 7). He is partially disabled, experiences chronic pain, and is restricted to perform sedentary work only. Id. Because of his neck restriction and pain, plaintiff was provided a medical pass allowing him to wear a front-zipper shirt as opposed to the regular pull-over prison shirt. Id., p. 6.

On June 29, 2012, plaintiff went to pick-up his legal mail, passing through several gates and checkpoints, as well as walking past Lieutenant Kelly and Lieutenant Todd who were stationed in front of 3-Building dining facility, without incident. (D.E. 1, p. 4). Once at the mail room, plaintiff began talking to other inmates in line; however, he suddenly noticed Major Gonzales "rush out" of the administrative building and head toward the mail room. Id., p. 7. Major Gonzales angrily approached plaintiff and ordered him to tuck his shirt into his pants, stating that, just because plaintiff had won his quarter-inch beard lawsuit, he was still required to follow all other prison rules.[3] Id. Plaintiff responded that he was wearing the front-zipper shirt for medical reasons. Id. Major Gonzales walked away "filled with rage...". Id.

Thereafter, plaintiff observed Major Gonzales talking with Lieutenant Metz and pointing at plaintiff. (D.E. 1, p. 7). Plaintiff gathered his legal mail and began walking back to his housing area in 7-Building. Id., p. 8. As plaintiff entered the Gate 1 area, Lieutenant Metz ordered plaintiff to tuck in his shirt. Id. Plaintiff briefly tried to explain his medical condition and that his neurologist had recommended that the shirt be worn un-tucked. Id. Lieutenant Metz looked over at Major Gonzales who was standing nearby, and then asked plaintiff if he had a medical pass to wear the front-zipper shirt untucked. Id. Plaintiff explained that, although he had numerous medical passes to accommodate his disability, including the front-zipper shirt, a cervical collar, and a double cuff/front hand-cuff pass, he did not have a specific pass to wear the front-zipper shirt un-tucked, but that it had never been a problem until today. Id., pp. 8-9. Lieutenant Metz stated that he had spoken to Dr. Whitt and that plaintiff's injuries were a "hoax, " and he asked plaintiff if he was refusing to obey a direct order to tuck in his shirt. Id., p. 9. Plaintiff responded that Lieutenant Metz had a history of "childish anger issues" and of assaulting inmates, and refused to tuck in his shirt. Id.

Major Gonzales then told Lieutenant Metz to write plaintiff a disciplinary case for refusing to follow an order and to escort him to pre-hearing detention (APHD@). (D.E. 1, p. 10). Initially, Lieutenant Metz began to handcuff plaintiff with one set of handcuffs, but Lieutenant Todd intervened and added his handcuffs to make double-cuffs in compliance with plaintiff=s medical restrictions. Id. However, as Lieutenant Metz was placing the double-cuffs on plaintiff, he used his body weight to Aslam plaintiff into the steel fence pole, @ and he twice quickly banged plaintiff=s forehead against the pole while telling plaintiff not to resist. Id., p. 10-11. Thereafter, Lieutenant Metz ordered Lieutenant Todd to escort plaintiff to medical. Id., p. 11.

At the infirmary, plaintiff complained of a knot on his head and a throbbing headache. (D.E. 11). Plaintiff was examined by Nurse White-Roell who took his blood pressure and temperature. Id. Nurse White-Roell examined the knot on plaintiff's head but sarcastically told him that it was only a small bump and ...


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