United States District Court, E.D. Texas, Tyler Division
ROLAND E. LEYBA, #1603446
OLIVER J. BELL, ET AL.
ORDER OF DISMISSAL
Clark, United States District Judge
Roland E. Leyba, proceeding pro se and in forma
pauperis, filed the above-styled and numbered civil
rights lawsuit against TDCJ employees: Oliver J. Bell
(chairman, TDCJ), John R. Rupert (senior warden), Robert
Eason (Regional II Director), John R. Wisener (Assistant
Warden), FNU White (Lieutenant), FNU Satterwhite (Special
Unit Investigator), and FNU Bullard (OIG Officer Personal
Hallway Investigator). The basis of the lawsuit was that the
defendants failed to protect Mr. Leyba. The complaint was
referred to United States Magistrate Judge John D. Love, who
issued a Report and Recommendation concluding that the
lawsuit should be dismissed with prejudice. Mr. Leyba has
of Review and Reviewability
magistrate judge's report has been objected to, the
district court reviews the recommendation de novo
pursuant to Federal Rule of Civil Procedure 72. See
also 28 U.S.C § 636(b) (1) (“A judge of the
court shall make a de novo determination of those
portions of the report or specified proposed findings and
recommendations to which objection is made.”). During a
de novo review, a court examines the entire record
and makes an independent assessment of the law. When no
objections are filed, plaintiff is barred from de
novo review by the district judge of those findings,
conclusions, and recommendations and, except upon grounds of
plain error, from appellate review of the unobjected-to
factual findings and legal conclusions accepted and adopted
by the district court. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th
Cir.1996) (en banc ).
and Analysis of Mr. Leyba's Objections
Report concluded that the lawsuit should be dismissed with
prejudice because Mr. Leyba failed to allege facts showing
that either before or after the incident, the defendants knew
of and disregarded an excessive risk to his safety. The
Report further found that the “failure to protect
claim” fails to state a claim upon which relief may be
granted, is frivolous in that it lacks any basis in law and
fact, and should be dismissed pursuant to 28 U.S.C. §
1915A(b)(1). The Report concluded that the claim, as well as
the entire lawsuit, should be dismissed pursuant to 28 U.S.C.
Leyba repeats his argument from his complaint that prison
officials knew of the “excessive risk to plaintiff and
did nothing to abate or deter the matter”. See
Objections at 1. Mr. Leyba also requests that he be allowed
to amend his complaint “to better accomodate (sic) this
Court's ability to arrive at a favorable verdict and
vindicate plaintiff of his deprivated (sic) rights,
privileges and immunities”. See Objections at
contrast to Mr. Leyba's argument, the record reveals that
Defendants undertook two independent investigations: (1) the
Office of the Inspector General initiated its own
investigation on October 30, 2012; and (2) TDCJ held an OPI
initiated on November 7, 2012, which included a follow-up
Security Threat Group (“STG”) investigation as
well. See Docket Entry #16, Exhibit C - D. Prison
officials were responsive to Mr. Leyba's complaints.
Thus, Defendants were not deliberately indifferent to Mr.
Leyba's safety, rather, the findings of both
investigations showed that Mr. Leyba's claims are not
supported by the evidence.
October 20, 2012, Mr. Leyba wrote a letter to Defendant
Oliver J. Bell at the Texas Board of Criminal Justice,
stating that Mr. Leyba had been involved in an
“operation” attempting to identify members of a
tobacco ring at the Coffield Unit, and that the officer he
was purportedly assisting had given him a disciplinary case.
See Docket Entry # 16, Exhibit C at 21-23. Mr. Leyba
also claimed that he felt his life was in danger and that he
was receiving major disciplinary cases for refusing housing
due to the situation. See Docket Entry # 16, Exhibit
C at 20.
Bell's office received the correspondence on October 29,
2012, and immediately sent a correspondence to the Office of
the Inspector General directing them to conduct a
life-endangerment study. Id. On November 7, 2012,
Mr. Leyba initiated an OPI with Lieutenant White, seeking the
protection of TDCJ and transfer to protective custody or a
mental health facility. See Docket Entry # 16,
Exhibit C at 12. Mr. Leyba was interviewed by Lieutenant
Black on the same day, and Mr. Leyba stated that he was being
threatened by four inmates because they believed Mr. Leyba
had “snitched” on them. Id. at 15.
During this OPI, Mr. Leyba alleges that the threats began in
April, and that on November 1, 2012, while he was in the
dayroom on H-Wing, the four named inmates yelled threatening
remarks at him from the recreation yard. Id. at 15.
The OPI investigator concluded that Mr. Leyba's claim was
unsubstantiated. Id. at 16.
November 9, 2012, Mr. Leyba was interviewed by Security
Threat Group (“STG”) Officer C. Reyes, concerning
the purported threats. Id. at 19. During this
interview, Mr. Leyba altered his story slightly, this time
claiming that the four inmates threatened him during the
first week of October while he was in the recreation yard; he
claims they yelled threats from the H-wing which faces the
recreation yard. Id. at 19.
Leyba again changed his story, this time claiming that the
threats began in October of 2012 from the previous claim that
the threats began in April. Id. Mr. Leyba claimed
the four inmates that he named wrote the “kites”
threatening him, and when asked why Mr. Leyba believed those
four inmates wrote the “kites” he said they were
the only ones who would write the threatening letters to him.
Id. Officer Reyes then interviewed the four inmates
that Mr. Leyba believed were threatening him, and all four
inmates stated that they believed an offender from their own
building, named Wickware, turned them in to TDCJ personnel.
Id. None of the four inmates Mr. Leyba believed
threatened him were classified security threats, nor were
they gang-affiliated, nor were they housed on H-Wing within
the six-months prior to November 9, 2012, STG investigation.
Id. The STG investigation found no merit to Mr.
Leyba's claims. Id.
November 11, 2012, Investigator Daniel Wolfe reviewed
TDCJ's OPI and the STG report, and then interviewed Mr.
Leyba. See Docket Entry # 16, Exhibit C at 7. Mr.
Leyba claimed that he began working with Officer Brown in
April of 2012, and that he had received a disciplinary on
August 8, 2012, for possession of tobacco. Id. Mr.
Leyba claimed that he was working with another inmate for
Officer Brown, but could not name the other offender when
asked. Id. Mr. Leyba claimed that Officer Brown
allowed him to possess tobacco, in order to convince the
other inmates that he was involved in the tobacco ring, and
that during the course of the “operation” he had
provided many names to TDCJ personnel, and as a result, those
inmates received disciplinary cases and were sent to
segregation because of him. Id. Mr. Leyba claimed
that the inmates eventually figured out that he had been
“snitching” and then began sending Mr. Leyba
threatening typewritten messages in “kites”.
Wolfe then interviewed Officer Brown. Id. Officer
Brown denied that he permitted Mr. Leyba to possess tobacco
or that he used Mr. Leyba as a “snitch”; Officer
Brown submitted a written statement attesting to the same.
Id. at 9. Based the various interviews and
investigations into threats of violence that Mr. Leyba
purportedly received, it was clear to officials that Mr.
Leyba's claims lacked credibility. In his OPI on November
7, 2012, Mr. Leyba claims that the threats began ...