United States District Court, S.D. Texas, Brownsville Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
ROLANDO OLVERA UNITED STATES DISTRICT JUDGE.
case arises from Carlos Avalos' (hereafter
"Plaintiff) claims for compensatory and punitive damages
arising from alleged violations of his right to equal
protection under the law and the freedom from cruel and
unusual punishment under 42 U.S.C. § 1983. Docket No. 1
at 1. Currently before the Court is Defendants'
"Cameron County Detention Center, Sheriff Omar Lucio,
Warden DC1 and Unnamed Medical Staff and Unknown John Doe
Staffs' Rule 12(b)(1) and 12(b)(6) Motion to Dismiss
Plaintiffs Complaint and First Amended Complaint with
Authority in Support" (hereafter Defendants'
"Motion"). Docket No. 18. After a de novo review of
the record, the Magistrate Judge's Report and
Recommendation (hereafter "R&R") (Docket No.
34) is ADOPTED. Accordingly, Defendants'
"Motion" (Docket No. 18) is
January 29, 2016, a "Complaint" (United States
of America v. Carlos Avalos, No. 1:16-cr-00102-1, CR
Docket No. I) was filed against Plaintiff. The same day,
Plaintiff was remanded to the custody of the U.S. Marshals
Service. CR Docket Minute Entry for January 29, 2016.
February 24, 2016, Plaintiff pleaded guilty to being an alien
unlawfully found in the United States after deportation,
having been previously convicted of an aggravated felony. CR
Docket No. 33. Plaintiffs factual allegations are
uncontested. See Docket No. 18. While in custody at
the Cameron County Detention Center, Plaintiff injured his
wrist after slipping and falling on June 3, 2016. On June 4,
2016, Plaintiff was informed by a medical specialist his left
wrist was fractured; however, Plaintiff did not receive a
hand brace or similar device to secure his wrist. On June 6,
2016, Plaintiff filed an inmate grievance. Plaintiff claims
he was taken to court on two occasions, June 6, 2016, and
June 14, 2016, in handcuffs, which caused him pain and
suffering. Plaintiff was given a soft wrist brace with the
metal support removed in accordance with the Detention
Center's security policies.
14, 2016, the Court sentenced Plaintiff to 80 months
imprisonment, with a three-year term of supervised release.
CR Docket No. 33. On June 20, 2016, Plaintiff was seen
immediately by staff at the Federal Detention Center in
Houston, Texas, and a cast for his fractured wrist was
August 22, 2016, Plaintiff filed a "Civil Rights
Complaint 42 U.S.C. Section 1983" (Docket No. 1) against
Defendants Sheriff Omar Lucio, Cameron Detention Center,
"Warden of DC1, " "Unknown John Does, "
"Medical staff and their "Bonded Insurance
Providers" (hereafter "Defendants"). Docket
No. 1 at 1. Plaintiffs Complaint alleges violations of his
right to equal protection and the freedom from cruel and
unusual punishment under 42 U.S.C. § 1983. Id.
Plaintiff filed an "Amended Complaint, " (Docket
No. 13) on October 11, 2016, wherein he added additional
defendants "Unknown Physicians contracted by Cameron
County Detention Center DC1, " "Unknown Medical
staff contracted by Cameron County Detention Center, DC1,
" "Unknown Medical Contract providers, " and
"All private medical staff. . . ." Docket No. 13 at
1-2. Plaintiff also alleged additional violations of his
rights under 42 U.S.C. §§ 1981, 1982, 1985 and
1986. Docket No. 13 at 1; Docket No. 24 at 5.
December 2, 2016, Defendants filed their Motion. Docket No.
18. On March 10, 2017, Plaintiff filed a "Plaintiff
Motion for Summary Judgment and in Addition it is his Reply
and Response to Defendant's Rule 12(B)(6) Motion to
Dismiss Plaintiffs Complaint." (Docket No. 24). On March
30, 2017, Defendants filed "Defendants Cameron County
Detention Center, Sheriff Omar Lucio, Warden DC1 and Unnamed
Medical Staff and Unknown John Doe Staffs' Response and
Opposition to Plaintiffs Motion for Summary Judgment and
Reply to Plaintiffs Response to Rule 12(b)(1) and 12(b)(6)
Motion to Dismiss" (Docket No. 25).
April 10, 2017, Plaintiff filed a second "Plaintiffs
Motion for Summary Judgment. Pursuant to Fed. Civ. Proc Rule
56(A)(B)(C) or in the alternative, his Motion for Default
Judgment pursuant to Fed. Rule Civ. Proc. 55" (Docket
No. 26). On April 21, 2017, Plaintiff filed "Plaintiffs
Second Request for Summary Judgment and in Addition, His
Reply to Defendant's Response to Plaintiffs Summary
Judgment filed 3-30-2017 by Defendants" (Docket No. 27).
On May 11, 2017, Defendants filed a "Response and
Opposition to Plaintiffs Second Request for Summary
Judgment" (Docket No. 28). On June 1, 2017, Plaintiff
filed a "third request" for summary judgment.
Docket No. 29. Defendants filed a response on June 22, 2017.
Docket No. 30.
25, 2017, the Magistrate Judge submitted his "Report and
Recommendation, " (Docket No. 34) recommending the Court
grant Defendants' Motion and dismiss Plaintiffs claims.
On August 22, 2017, Plaintiff filed "Plaintiffs Reply In
Opposition to Magistrate Report and Recommendation in this
matter" (Docket No. 41).
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994). A party may challenge a district court's
subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). The party asserting jurisdiction bears
the burden to prove the district court has jurisdiction.
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001). In considering a Rule 12(b)(1) motion to dismiss,
courts must "accept all factual allegations in the
plaintiffs complaint as true." Den Norske Stats
Oljeselkap As v. HeereMac Vof 241 F.3d 420, 424 (5th
motion to dismiss "challenges a complaint's legal
sufficiency." Rader v. Cowart, 543 Fed.Appx.
358, 361 (5th Cir. 2013). In considering a Rule 12(b)(6)
motion to dismiss, a court must similarly accept all factual
allegations in the complaint as true. Kaiser Aluminum
& Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677
F.2d 1045, 1050 (5th Cir. 1982). A claim will survive a Rule
12(b)(6) motion to dismiss when it contains a "short and
plain statement of the claim showing that the pleader is
entitled to relief that does not offer "labels and
conclusions" or "a formulaic recitation of the
elements of a cause of action" Ashcroft v.
Iqbal,556 U.S. 662, 677-78, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (citations omitted). A complaint must
contain "sufficient factual matter" that when,
accepted as true, allows a court to draw a "reasonable
inference" that the defendant ...