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Ferestad v. T.C.C.C. Officer Staff/Medical Staff

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

December 8, 2017





         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas. Plaintiff is pro se and was granted leave to proceed in forma pauperis. Before the Court are Plaintiff's Complaint (Docket Entry “DE” 1), and more definite statement (DE 9).


         Travis A. Ferestad brings this section 1983 complaint based on events occurring during his pretrial detention at the Travis County Correctional Complex (“TCCC”). Named as defendants are “TCCC Officer Staff/Medical Staff, ” M. Segura-Lopez, J. Calvert, Sgt. Campbell, Sgt. FNU [First Name Unknown] Town, TCCC Officer Redfearn, Captain FNU Gottner, and “Unknown” Medical Staff, which he identifies in his more definite statement as Medical Director Kathryn Geiger. Ferestad asserts he was attacked in the recreation yard of the Travis County Correctional Complex on June 10, 2017. He contends Defendants did not provide a safe and secure environment in the recreation yard because the security cameras were not working, which resulted in the attack; Defendants denied him emergency medical treatment after the attack; and Defendants denied him the opportunity to file criminal charges against his attackers. Ferestad was disciplined for his pxarticipation in the fight, and he further alleges his appeal of the disciplinary proceeding was improperly denied. He seeks monetary compensation for pain and suffering, and “all medical expenses.”

         Ferestad was ordered to file a more definite statement. (DE 5). In his more definite statement, Ferestad avers Defendant Redfearn falsely stated during the disciplinary proceeding that he participated in the fight. (DE 9). He alleges Defendant Segura-Lopez, Defendant Calvert, and Defendant Campbell found him guilty of participating in the fight, although there was no video evidence to corroborate Defendant Redfearn's allegation. Ferestad asserts Defendant Town improperly denied the appeal of his disciplinary proceedings despite his claim that he “never threw a punch.” Ferestad alleges Defendant Gottner violated his right to a timely resolution of his grievance of his disciplinary proceeding. Ferestad further alleges that, as a result of the failure to adequately treat his injuries resulting from the fight, and the two-week delay in providing him with x-rays, he has experienced mental anguish, stress, blurred vision, severe headaches, and permanent disfigurement. With regard to the identities of the “medical staff” against whom Ferestad asserts claims for failure to provide adequate and timely medical care, he names Kathryn Geiger, the “Director, ” as the only medical care provider whose identity he is able to ascertain.


         A. Review under 28 U.S.C. § 1915A

         Ferestad's claims must be screened pursuant to 28 U.S.C. § 1915A. Under § 1915A, if a complaint 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, the Court must dismiss the complaint, or any portion of the complaint. Martin v. Scott, 156 F.3d 578 (5th Cir. 1998). When reviewing the complaint under § 1915A, a court must construe the allegations liberally. Haines v. Kerner, 404 U.S. 519 (1972). However, a plaintiff's pro se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).

         B. Failure to protect

         Pretrial detainees are protected from harm by virtue of the Due Process clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Prison officials have a duty to protect inmates from harm or violence by other inmates and to take reasonable measures to protect their safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). However, prison officials are not expected to prevent all inmate-on-inmate violence. Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003). To prove a violation of constitutional rights in connection with a single episode, such as is presented here, a detainee must establish that prison officials acted with deliberate indifference. Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997); Hare, 74 F.3d at 649. Deliberate indifference is more than mere negligence. Farmer, 511 U.S. at 835. To establish deliberate indifference, a detainee must prove objectively that he was exposed to a substantial risk of serious harm. Id. at 834. Additionally, he must show that the defendant acted or failed to act with deliberate indifference to that risk. Id. The deliberate indifference standard is a subjective inquiry; the plaintiff must establish that the defendant was actually aware of the risk, yet consciously disregarded it. Id. at 837, 839. A detainee can make a prima facie case of deliberate indifference by showing “that a substantial risk of [serious harm] was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the [official] sued had been exposed to information concerning the risk and thus must have known about it.” Id. at 842. Further, knowledge may be inferred if the risk was obvious. Id. at 838-42; Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).

         Ferestad does not allege that any individual defendant knew that the surveillance cameras on the recreation yard were not functioning prior to the alleged attack, nor does he allege that the lack of a functioning camera had led to an increase in fighting in the yard. He also does not assert that, prior to the attack on June 10, 2017, any other detainee was attacked in the yard such that the individual defendants knew or should have known that the inoperable cameras were failing to provide an element of safety to detainees. Accordingly, Ferestad has failed to state a claim of deliberate indifference against any named defendant.

         C. Medical care

         Like a convicted person, a pretrial detainee must be provided basic medical treatment by those who are responsible for his custody. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010), citing Hare, 74 F.3d at 650. As noted above, to succeed in a § 1983 action based on “episodic acts or omissions” a pretrial detainee must show subjective deliberate indifference. Farmer, 511 U.S. at 837; see also, Alderson v. Concordia Parish Corr. Facility, 848 F.3d 415, 420 (5th Cir. 2017); Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001). “Actions and decisions by officials that ...

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