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Gonzalez v. Sarabia

United States District Court, S.D. Texas, Galveston Division

February 9, 2017

ABELARDO G. GONZALEZ, TDCJ #01622682, Plaintiff,
v.
ANNA D. SARABIA, et ah, Defendants.

          MEMORANDUM OPINION AND ORDER

          GEORGE C. HACKS, JR., UNITED STATES DISTRICT JUDGE

         Plaintiff Abelardo G. Gonzalez (TDCJ #01622682), an inmate in the custody of the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ"), has filed a pro se civil rights complaint under 42 U.S.C. § 1983 and is proceeding in forma pauperis (Dkt. 1 and Dkt. 8). He asserts that the defendants, officials at TDCJ's Carole Young Medical Facility ("Young Facility"), denied him access to the courts and transferred him out of the facility prematurely in retaliation for his attempts to assert his legal rights. He has filed several amended complaints and memoranda (Dkt. 2, Dkt. 19, Dkt. 22, and Dkt. 23) and a more definite statement of his allegations (Dkt. 29). Additionally, Gonzalez has pursued related proceedings, which are discussed in more detail below, in the Laredo Division, the Corpus Christi Division, and the United States Court of Appeals for the Fifth Circuit. See Southern District of Texas Case Numbers 5:12-CV-193 and 2:15-CV-46 and Fifth Circuit Docket Numbers 14-40460 and 15-41336.

         The Court has considered Gonzalez's factual allegations, taken judicial notice of the related proceedings, [1] and analyzed the applicable law. The Court will dismiss Gonzalez's claims pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim on which relief may be granted.

         I. BACKGROUND

         Gonzalez was convicted by a Webb County jury on three counts of aggravated robbery and three counts of engaging in organized criminal activity for his role in three armed robberies that took place in Laredo in late 2007 and early 2008. The particulars of the crimes are outlined in the unpublished opinion of the Fourth Court of Appeals of Texas affirming Gonzalez's convictions. See Gonzalez v. State, Nos. 04-10-00123-CR, 04-10-00124-CR, 04-10-00125-CR, 2011 WL 3849393 (Tex. App.-San Antonio Aug. 31, 2011, pet. ref d). After the jury found him guilty, Gonzalez was sentenced to six concurrent 30-year prison terms and began serving his time in TDCJ's McConnell Unit.

         A. Gonzalez files his federal habeas petition.

         While housed in the McConnell Unit, Gonzalez filed a petition for federal habeas relief under 28 U.S.C. § 2254 in the Laredo Division. See Southern District of Texas Case Number 5:12-CV-193. Judge Saldana referred the case to Judge Garcia. While the habeas action was pending, Gonzalez began suffering from a medical condition that his pleadings do not identify[2] but which was obviously very serious. Gonzalez was hospitalized at the University of Texas Medical Branch in Galveston ("UTMB") in November of 2013 (Dkt. 29 at p. 2). In February of 2014, he was transferred to the Young Facility, where he remained in medical isolation until September of 2014 (Dkt. 29 at p. 2). According to a motion he filed with the Fifth Circuit, Gonzalez, in addition to being kept in isolation, was subject to "contact precautions" while he was at the Young Facility, apparently because he had contracted a highly contagious vancomycin-resistant bacterial infection. See Fifth Circuit Docket Number 14-40460, Motion for Rehearing. These "modified contact precautions, " which went beyond the standard medical isolation precautions, were akin to a quarantine. Gonzalez had a private room; medical personnel who entered were required to wear gloves and gowns, and they were required to remove the gloves and gowns before leaving. Immediately after leaving Gonzalez's room, personnel were required to wash their hands with antimicrobial soap or apply an alcohol hand rub. The contact precautions also mandated the immediate cleaning of all patient-care equipment that left Gonzalez's room and imposed strict limits on Gonzalez's movement-he was to be taken out of his room for "essential purposes only."

         While Gonzalez was hospitalized, Judge Garcia entered an extensive 30-page Report and Recommendation recommending that Gonzalez's federal habeas petition be denied and dismissed with prejudice. Gonzalez filed two sets of objections to Judge Garcia's report; though one set of objections was untimely, Judge Saldana specifically considered both sets in her opinion accepting Judge Garcia's recommendation. See Southern District of Texas Case Number 5:12-CV-193 at Docket Entry 47. Notably, Gonzalez blamed "[his] health" for his inability to file the second set of objections on time and did not accuse anyone of denying him access to legal resources. See Southern District of Texas Case Number 5:12-CV-193 at Docket Entries 45 and 46. Judge Saldana entered a final judgment dismissing Gonzalez's habeas petition with prejudice on March 18, 2014. See Southern District of Texas Case Number 5.12-CV-193 at Docket Entry 48.

         B. Gonzalez files a notice of appeal regarding the denial of his habeas petition.

         Gonzalez filed a notice of appeal. In that notice, he stated that he was placing the notice in the Young Facility mailing system "on Friday April the 18th 2014 A.D." See Southern District of Texas Case Number 5:12-CV-193 at Docket Entry 50 (emphasis removed). Judge Saldana certified that Gonzalez's appeal was not taken in good faith and denied him permission to proceed in forma pauperis on appeal. See Southern District of Texas Case Number 5:12-CV-193 at Docket Entry 53. The Fifth Circuit then dismissed the appeal for lack of jurisdiction because Gonzalez had filed his notice one day too late:

[T]he final day for filing a timely notice of appeal was April 17, 2014. [Gonzalez's] pro se notice of appeal is dated April 18, 2014 and stamped as filed on April 28, 2014. Because the notice of appeal is dated April 18, 2014, it could not have been deposited in the prisons [sic] mail system within the prescribed time. The time limitation for filing a notice of appeal in a civil case is jurisdictional. The lack of a timely notice mandates dismissal of the appeal.
See Southern District of Texas Case Number 5:12-CV-193 at Docket Entry 55 (citations omitted).

         Gonzalez filed a motion with the Fifth Circuit asking the panel to reconsider its dismissal. See Fifth Circuit Docket Number 14-40460, Motion for Rehearing. In the motion, Gonzalez claimed for the first time that he was "DENIED access to any law material" while housed at the Young Facility. Gonzalez explained that he was subject to "contact pecautions [sic] imposed on him due to Vancomyci [sic] Resistance Enterrococcus [sic] Syndrome." He further claimed that he had, in fact, filed his notice of appeal on April 17, not April 18-"Petitioner MISQUOTED the date on the motion to appeal of being the 4-18-14 when it was actually the 17th of April. . . . The date in the motion of the 18th was just a typo." Gonzalez included an affidavit in which a fellow inmate swore that he placed Gonzalez's notice of appeal in the prison mailing system on Gonzalez's behalf on April 17, 2014. The Fifth Circuit panel denied Gonzalez's motion. See Fifth Circuit Docket Number 14-40460, Order dated August 21, 2014.

         C. Gonzalez files this lawsuit and continues to file ...


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