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Dennis v. Martin

United States District Court, N.D. Texas, Amarillo Division

March 8, 2017

DONALD KEITH DENNIS, PRO SE, TDCJ-CID No. 1093314, Plaintiff,
v.
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 CLAIM

          CLINTON E. AVERITTE UNITED STATES MAGISTRATE JUDGE

         Before 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 this case.

         OVERVIEW OF THE CASE

         By his 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[1] 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.

         On 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.

         Lastly, 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.

         This 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 incident.

         Plaintiff also alleges the "ranking officer" allowed the CO in charge of monitoring his cellblock, the CO "Rover, "[2] 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.

         Plaintiff 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.

         In his 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.

         In a 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.

         CLAIMS AND REQUESTS FOR RELIEF

         Plaintiff 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.

         Plaintiff 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 ...


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