United States District Court, N.D. Texas, Amarillo Division
DONALD KEITH DENNIS, PRO SE, TDCJ-CID No. 1093314, Plaintiff,
BARRY L. MARTIN, Head Warden, JAMES BEACH, Asst. Warden, GREGORY DAVID, Asst. Warden, Sgt. NFN GRAY, Sgt. NFN LONG, Lt. NFN BROOM, Lt. NFN PACHEO, Sgt. NFN RAMIREZ, CO. NFN DEWRIGHT, CO. YOLANDA FLANNORY, and UNIDENTIFIED TDCJ STAFF AND COMPANY, Defendants.
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART DEFENDANTS MOTION TO DISMISS FOR FAILURE TO STATE A
CLINTON E. AVERITTE UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion to Dismiss for Failure to
State a Claim filed July 22, 2016. Defendants BROOM and LONG
filed a joint motion for dismissal [D.E. 31] and a joint
supplement to that motion on August 16, 2016 [D.E. 36]. On
December 5, 2016, plaintiff filed a response to
defendants' motion for dismissal and also requested leave
to amend his complaint on August 15, 2016 [D.E. 35]. The
Court has reviewed all arguments of the parties and the
information contained in the Amended Complaint as well as
documents attached to the original complaint, specifically
the numerous grievances filed by the plaintiff concerning
OF THE CASE
Complaint, plaintiff alleges he was denied attention by named
defendants on three occasions which placed his life in
danger. Plaintiff had been placed in the high security
building and was housed with an inmate "Keele." On
May 2, 2015, in the first of the three incidents of
deliberate indifference alleged by plaintiff, plaintiff
states he was depressed and asked Correctional Officer
(hereinafter "CO") DEWRIGHT for help. Plaintiff
requested DEWRIGHT call the "Crisses [sic] Unit"
and CO DEWRIGHT replied "if [plaintiff] need[ed] help
[he] was to cut [him]self then he [would] call for
help." Plaintiff says that, at 2:30 p.m., he cut himself
to get help.
August 2, 2015, during the second incident of deliberate
indifference, plaintiff fell in his cell and cut his chin. He
alleges defendants, as part of a conspiracy against him,
denied him medical care. Although he did eventually receive
medical attention for the fall, plaintiff claims it was not
in a timely manner.
on an unspecified date in 2015, plaintiff states his cellmate
(Keele) tried to kill himself and plaintiff and cut plaintiff
three times with a sharp object. Plaintiff says they both
pushed the emergency call button before inmate Keele cut him,
but the button was not working and no one responded.
Plaintiff says if the ranking officer had moved inmate Keele
to the Crisis Unit this would not have happened.
last incident, when plaintiff suffered injury when his fellow
inmate had an alleged breakdown and cut the plaintiff, is the
chief focus of his complaint. Plaintiff alleges that prior to
this incident, Keele spoke to both defendants BROOM and LONG
and stated "he did not feel safe" in the cell and
requested to be removed. Plaintiff alleges Keele stated
"he wanted to hurt himself or 'someone'
else." Plaintiff was Keele's only cellmate and
plaintiff claims BROOM told Keele that "no blood or
bruises" on either plaintiff or Keele indicated
"they must be getting along." Plaintiff further
claims BROOM stated to Keele "if he [Keele] wanted to
get out, he know [sic] how." Plaintiff claims defendant
DEWRIGHT provided plaintiff with the razor for the purpose of
letting plaintiff cut himself during the May 2, 2016
also alleges the "ranking officer" allowed the CO
in charge of monitoring his cellblock, the CO "Rover,
" to purposefully disconnect the emergency
call button so assaults can take place in cells without
responses by TDCJ personnel. Plaintiff claims on page 8 of
his amended complaint that defendants acted in concert
regarding the emergency call button and were made aware it
was not working prior to the assault on plaintiff by Keele.
In his Step 2 grievance numbered 2015188383 attached to his
original complaint, plaintiff alleges the safety conditions
on the high security unit are deficient and these
deficiencies are known to all defendants. In his Step 2
grievance numbered 2015170766, plaintiff alleges CO
"Rover" does not answer when called and further
alleges defendants LONG and BROOM, among others, have told
plaintiff all he has to do is "holler, " because
the emergency call button has not worked since they started
working there, although it was apparently fixed shortly
thereafter. Plaintiff states he cannot be heard by TDCJ
personnel from inside the steel and glass of his cell.
Plaintiff states inmate Keele is stationed at the front of
the cell and he is at the back of the cell. Plaintiff states
he has twice needed the emergency call button and been unable
to summon help by using the button.
also alleges in his Step 2 grievance numbered 2015142657,
apparently filed prior to the assault incident, that the
warden and the COs create an unsafe atmosphere in the high
security unit by using excessive force, unlawfully
confiscating property, failing to properly investigate
grievances, retaliatory behavior, and cover ups of bad
behavior on the part of TDCJ officials. In his complaint,
plaintiff asserts the cell, without access to the emergency
call button or supervised by the CO Rover, is a "death
trap, " which is well known by all named defendants.
response to the Questionnaire sent by the Court, plaintiff
states on March 1, 2015, he sent a letter to TDCJ personnel
and filed a grievance regarding the emergency call button. A
purported copy of the letter is attached to plaintiffs motion
for investigation. Plaintiff specifically asserts both Keele
and he pressed the emergency call button prior to the assault
when plaintiff was attacked by Keele. Plaintiff also makes
several claims about the mental health of Keele and himself.
He requested to go to the Crisis Unit and was forced to cut
himself before he would be taken there on one occasion prior
to the assault.
document dated July 23, 2015, and attached to plaintiffs
motion for investigation filed May 19, 2016, TDCJ did conduct
an offender protection investigation based on plaintiffs
allegations of potential harm at the hands of his previous
cellmate. Plaintiff was moved to a new cell, the one he had
to share with Keele. The July 23, 2015 letter indicates TDCJ
staff was also aware plaintiff once again made claims that
his safety was being threatened by his new cellmate (Keele).
At any rate, this document appears to refute claims made by
defendants LONG and BROOM in the motion to dismiss that
plaintiff never requested an offender protection
investigation or that one was never conducted. At the very
least, the letter supports plaintiffs claims he made TDCJ
officials aware of possible discord between plaintiff and
inmate Keele and he made them aware of the defective
emergency call button and lack of staff supervision.
AND REQUESTS FOR RELIEF
DONALD KEITH DENNIS, acting pro se and while a prisoner
incarcerated in the Texas Department of Criminal Justice,
Correctional Institutions Division, has filed suit pursuant
to Title 42, United States Code, section 1983 complaining
against defendants LONG, BROOM and DEWRIGHT and was granted
permission to proceed in forma pauperis. Plaintiff
additionally filed suit against defendants BEACH, MARTIN,
DAVID, GRAY, PACHEO, and RAMIREZ, but these claims were
dismissed June 21, 2016, without prejudice for failure to
state a claim and with prejudice as frivolous. Plaintiff has
filed several requests to amend his suit, but has failed in
the past to attach an amended complaint. Plaintiff now has a
pending motion to amend his complaint with a properly
attached amended complaint. In deciding the defendants'
motion to dismiss the Court will consider all claims in
plaintiffs properly amended complaint. Plaintiffs pending
claims involve deliberate indifference to his medical needs
by DE WRIGHT and deliberate indifference to his personal
safety by DEWRIGHT, LONG, and BROOM.
requests he be provided with safety and protection and
compensation for the "failure to do sure which I was cut
up." By his Attachment C-4 to his Complaint, plaintiff
also requests a transfer off the Clements Unit, that his
claims be investigated and staff be increased and trained,
that the camera be reviewed, and "[t]o have a
[illegible] on the Pod ...