United States District Court, S.D. Texas, Galveston Division
ABELARDO G. GONZALEZ, TDCJ #01622682, Plaintiff,
ANNA D. SARABIA, et ah, Defendants.
MEMORANDUM OPINION AND ORDER
C. HACKS, JR., UNITED STATES DISTRICT JUDGE
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.
Court has considered Gonzalez's factual allegations,
taken judicial notice of the related proceedings,
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.
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particulars of the crimes are outlined in the unpublished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.
Gonzalez files his federal habeas petition.
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 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."
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.
Gonzalez files a notice of appeal regarding the denial of his
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).
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.
Gonzalez files this lawsuit and continues to file