United States District Court, S.D. Texas, Houston Division
GERALD E. GILBERT, Plaintiff,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al, Defendants.
MEMORANDUM AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE
Gerald E. Gilbert (#01236206), currently incarcerated at the
Polunsky Unit of the Texas Department of Criminal Justice
(“TDCJ”), has filed a complaint under 42 U.S.C.
§1983. See Docket Entry No. 1
(“Complaint”). Plaintiff alleges that over the
course of the last several years, various officials at the
TDCJ violated his civil rights or failed to train others who
violated his civil rights in treating him or assigning him
jobs in the aftermath of an automobile accident in the
parking lot of the Ramsey Unit in 2006. Plaintiff also
alleges that officials at TDCJ took his property illegally in
2013 and did not allow him to exchange his mattress in
February of 2014. Plaintiff has also filed for leave to
proceed in forma pauperis. (Docket Entry Nos. 4, 7).
After considering the pleadings, the court concludes that
this case must be dismissed for the reasons explained below.
2006, Plaintiff alleges that he was involved in an automobile
accident in the parking lot of the Ramsey I Unit.
See Docket Entry No. 1 at 7. Plaintiff claims that
he injured his lower lumbar spine and aggravated an existing
injury of his cervical vertebrae. Id. Plaintiff
claims that his injuries were not fully diagnosed by Dr.
Julia Ward, who evaluated him at the time of the accident and
allegedly prescribed him naproxen and meloxicam without any
follow-up to determine the extent or severity of the damage.
Id. Plaintiff claims that he remained on those drugs
for six years, until 2012, when Dr. Twana Smith gave him a
routine physical and discovered that he had an irregular
heartbeat, allegedly caused by the drugs he had been taking
for his back. Id. Plaintiff alleges that Dr. Smith
ordered x-rays on February 13, 2012. Id. He further
alleges that Dr. Smith failed to update his medical
restrictions on or around November 10, 2012, after she had
ordered and reviewed his radiology report and had discovered
the severity of his condition. Id. at 8.
April 13, 2013, Captain Bobby Purvis allegedly made him sit
on a concrete floor to wipe walls in the hallway, which
Plaintiff claims caused him nerve system damage. Id.
at 7. He also complains that Warden Mossbarger made all of
the inmates on his wing sit on a concrete floor for 9-10
hours after the hall incident. Id. Plaintiff also
complains that on May 9, 2013, Physician Assistant Erin
Freeman refused to update his restrictions to show
“sedentary work only, ” which allowed further
orders for him to sit on concrete floors. Id. at 9.
also claims that on August 12, 2013, Justin B. Waterson,
Property Manager at Ramsey I, illegally and inappropriately
seized and confiscated his personal property of two coaxial
cables, and that on February 6, 2014, Carla Joseph, Laundry
Manager II, illegally failed to allow Plaintiff to exchange
his lumpy mattress which aggravated his condition.
Id. at 8. He further claims that on May 10, 2013,
Senior Practice Manager Paul Strunk failed to authorize or
obtain approval for Plaintiff to obtain an orthopedic
mattress and stationary neck brace to help alleviate the pain
caused by his condition. Id. On May 12, 2014,
Plaintiff alleges that Sergeant Jovita Glanville would not
let him sit down after he informed her that he could not
stand for more than 45 minutes in line, and that she ordered
him to stand up or be locked up. Id. at 9.
generally alleges that from 2004 to the present, TDCJ and
Brad Livingston failed to train the Wardens, Officers,
guards, employees, and contractors (University of Texas
Medical Branch [“U.T.M.B.”] and Texas Tech) on
inmates' constitutional rights by allowing the abuses
such as the ones to which Plaintiff claims he has been
subjected. Id. at 8. He also generally alleges that
from 2006 to the present, Executive Director Glenda Adams and
Vice President Steven Smock, both of UTMB Correctional
Managed Health Care, failed to train their subordinates in
constitutional law and the civil rights of prisoners.
Id. at 8, 9.
Prison Litigation Reform Act
Complaint is subject to screening under the Prison Litigation
Reform Act (PLRA), which requires a district court to
scrutinize claims in a civil action brought in forma
pauperis by a prisoner and dismiss the complaint, in
whole or in part, if it “is frivolous, malicious, or
fails to state a claim upon which relief may be
granted;” or “seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b). A reviewing court may dismiss a complaint
for these reasons “at any time” “on its own
motion or on the motion of a party” where the plaintiff
proceeds in forma pauperis. 42 U.S.C. §
1997e(c); 28 U.S.C. §1915(e)(2)(B) (mandating dismissal
where the complaint is “frivolous or malicious, ”
“fails to state a claim upon which relief may be
granted, ” or “seeks monetary relief from a
defendant who is immune from such relief”).
filed by pro se litigants must be construed under a
less stringent standard of review. See Haines v.
Kerner, 404 U.S. 519 (1972). Under this standard, a
court liberally construes a document filed pro se.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
“Nevertheless, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. at 678.
rights claims brought under 42 U.S.C. § 1983 are
governed by the two-year statute of limitations provided by
Texas law. See Piotrowski v. City of Houston, 237
F.3d 567, 576 (5th Cir. 2001); Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(a); see also Wallace v.
Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual
date of a § 1983 cause of action is a question of
federal law that is not resolved by reference to state
law.”). This means that the plaintiff had two years
from the time that his claims accrued to file a civil rights
complaint concerning his allegations. See Gonzalez v.
Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998) (noting that
a cause of action accrues, so that the two-year statute of
limitations begins to run, when the plaintiff knows or has
reason to know of the injury which is the basis of the
claims all involve incidents or injuries which accrued more
than two years before he purportedly filed this case on
October 27, 2016. He knew or had reason to know of the
injuries which form the basis for his complaint in 2006, when
the accident occurred; and in 2012, when the heart
irregularity was discovered; or at the time when the alleged
events occurred at the prison in 2012, 2013, and early 2014.
Plaintiff does not allege any basis for tolling the statute
of limitations and the record Plaintiff attaches to his
complaint does not disclose any. Claims brought that are
plainly barred by the applicable statute of limitations are
subject to dismissal as legally frivolous. See Gartell v.
Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). Because
Plaintiff clearly waited more than two years from the time
his claims accrued to file suit, his complaint is untimely
and will be dismissed as legally frivolous. See id.