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Ponder v. Avalon Correctional Services

United States District Court, W.D. Texas, Austin Division

June 15, 2017

DAVID EARL PONDER
v.
AVALON CORRECTIONAL SERVICES, et al.,

          HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         Before the Court are Defendants' Motion for Summary Judgment (Dkt. No. 58); Defendants' Motion to Dismiss for Failure to State a Claim (Dkt. No. 59); Plaintiff's Response (Dkt. No. 61); Plaintiff's Supplement to Response-Basham (Dkt. No. 62); Plaintiff's Supplement to Response-Avalon and Smith (Dkt. No. 63); Plaintiff's Supplement to Response-Lovelace (Dkt. No. 64); Plaintiff's Supplement to Response-Serrano (Dkt. No. 65); Plaintiff's Supplement to Response-Parsons (Dkt. No. 66); Defendants' Replies (Dkt. Nos. 67 & 68); and Plaintiff's Motion to Deny Dismissal (Dkt. No. 69). The District Court these motions to the undersigned report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(A) & (B), Fed.R.Civ.P. 72, and Rule 1(d) of Appendix C of the Local Rules.

         I. BACKGROUND

         Plaintiff David Earl Ponder brings this suit against Avalon Correctional Services (Avalon), its founder Donald E. Smith, and employees Greg Basham, Loy Serrano, Jeannie Parsons, Max Goodale, and Ben Lovelace. In his complaint, he alleges that the defendants repeatedly deprived him of his rights under the Constitution. Ponder seeks monetary damages of at least $2.6 million, including at least $2 million for physical health damages, $75, 000 for mental health damages, $500, 000 for intentional infliction of emotional distress, and $25, 000 in punitive damages.

         A. Factual Background

         Ponder's claims arise from his stays at halfway houses owned and operated by Avalon. He was first a resident at Avalon's Fort Worth facility during a probationary period following his release from prison. On or about March 16, 2012, several of Avalon employees had reported to Ponder's parole officer that he had violated the terms of his parole. After a hearing, Ponder was arrested and spent thirty-one days in Tarrant County Jail. He returned after this time to the Avalon facility. Shortly after his return, he suffered massive internal bleeding and was hospitalized for a week. When he returned, Ponder filed a grievance for the loss of his property, which he alleges was discarded in violation of Avalon's policy while he was in the hospital. The grievance was successful, and his belongings were replaced.

         Some unspecified time after this successful grievance, unnamed Avalon personnel

began retaliating against the Plaintiff. At first by confiscating items during searches that were clearly approved items according to Avalon regulations, then later by charging the Plaintiff with petty bogus “violations” that caused him to be restricted from leaving the facility. This effectively prevented the Plaintiff from pursuing his SSDI benefits claim, obtaining alternate living arrangements, and because of fear and intimidation, from seeking further medical, and mental health services. [sic]

Dkt. No. 7 at 5. Ponder alleges that Defendants Greg Basham, Loy Serrano, and Jeannie Parsons “were aware of the retaliations against the Plaintiff, and did nothing to correct or discourage the personnel involved, but yet became a part of the constant harassment.” Id. The second retaliatory event occurred shortly thereafter. The complaint alleges that

[w]hen the Plaintiff filed additional formal grievances against lower level Avalon personnel these Defendants [Basham, Serrano, and Parsons] engaged in quashing the grievances, ordering the Plaintiff to stop filing grievances, conducted “kangaroo hearings” on the Plaintiff's appeals, and ignored eyewitnesses to the misbehavior of Avalon “client monitors” and other lower level supervisory personnel. [sic]

Id. at 5-6. While it is unclear, the complaint can be read to indicate that the retaliatory acts of Basham, Serrano, and Parsons were motivated, at least in part, by Ponder's initial, successful grievance.

         The third retaliatory event also encapsulates Ponder's claim that Defendants interfered with his mail. Sometime in mid- to late-May 2012, Ponder “discovered that his name was not being announced at mail call, and that his mail was being returned to sender after only twenty-four hours, ” despite the fact that “Avalon rules state that resident mail is kept 72 hours.” Id. at 6. Furthermore, Ponder's “outgoing mail was not being sent, ” forcing him to resort to “smuggl[ing] out mail via other residents when they left on their own day passes.” Id. When Ponder learned of Defendants' actions, he “confronted Jeannie Parsons with his concerns.” Id. Parsons “admitted that the Plaintiff's mail had indeed been interfered with, and in anger made the statement ‘that since I [Ponder] was complaining so much about my mail that they (herself and other Avalon employees) would just start sending back everyone's mail in twenty-four hours.'” [sic] Id.

         Upon eventual receipt of his mail, Ponder “learned that a deadline for answering and responding to requirements of The Social Security Department had lapsed, and his application was denied, causing [him] $14, 000 dollars lost back pay.” [sic] Id. Ponder also discovered that “an attorney he had attempted to commission had attempted to contact him;” this attorney “could also have won [Ponder the] benefits” he lost as a result of missing the filing deadline. Id. Though the complaint is unclear, it can be read to indicate that Ponder saw Parsons's interference with his mail as a retaliatory act done in response to his repeated use of Avalon's grievance procedures. Ponder further alleges that, “[d]ue [to] this sudden knowledge of monetary loss, and also the constant harassment, loss of opportunities to obtain alternate housing, and constant emotional distress, ” he “suffered a severe and debilitating nervous breakdown and panic attack episode, leading again to hospitalization.” Id. at 6-7.

         The fourth and final event occurred following Ponder's arrival at Avalon's Austin facility. There, Defendants Max Goodale and Ben Lovelace, for reasons unstated,

deprived [Ponder] of his freedom without just cause, and further caused monetary, and property losses in excess of $3000.00, and . . . contributed to [his] decline in mental and physical health. Both using the same tactics of bogus write-ups . . . and harassment, attempting to restrict the Plaintiff from SSI attorneys, and appointments to social services, and then on or about June 26th 2012 parole violated the Plaintiff without just cause. [sic]

Id. at 7-8. After a hearing, it was found that Ponder had not violated his parole, in part, Ponder claims, because neither Goodale nor Lovelace testified at the hearing.

         B. Procedural History

         This Court has had the opportunity to address Ponder's claims on two prior occasions: first, in accordance with the frivolousness review required for all applications to proceed in forma pauperis; and second, pursuant to the Defendants' first motion to dismiss. In the Report and Recommendation granting Ponder in forma pauperis status and reviewing for frivolousness, the Court found that Ponder had made five claims: (1) the defendants deprived him of liberty without due process by reporting to law enforcement that he had violated the terms of his parole; (2) the defendants caused him bodily harm when they delayed in calling 911 emergency services because they believed he was “faking;” (3) the defendants destroyed his personal property; (4) the defendants retaliated against him for filing a formal grievance; and (5) the defendants interfered with his ability to send and receive his mail. Dkt. No. 12 at 6. In the initial review, the Court found that the first three claims were frivolous and should be dismissed. Additionally, all claims based on events that arose prior to April 21, 2012, were dismissed subject to the two-year statute of limitations. The Court then ordered service on defendants for the last two claims.

         After being served, the Defendants moved to dismiss the remaining two claims. Dkt. No. 39. In the subsequent Report and Recommendation, the Court found that Ponder's claim for mail interference should be dismissed for failure to state a claim, but that the claim for retaliation should survive. Dkt. No. 41. This Report and Recommendation was not adopted, and Ponder was given an opportunity to amend his complaint. In Ponder's Second Amended Complaint, he added a claim for false imprisonment. As such, the remaining claims before this Court are: (1) false imprisonment; (2) retaliation; and (3) interference with his mail. Additionally, Ponder alleges that ...


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