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Tawe v. Reo

United States District Court, S.D. Texas, Corpus Christi Division

February 26, 2018

RICHARD N TAWE, Plaintiff,
v.
MARKESE K REO, et al., Defendants.

          ORDER

          Hilda Tagle, Senior United States District Judge.

         The Court is in receipt of Defendants' March 17, 2017, Motion for Summary Judgment. Dkt. No. 42. The Court grants the motion.

         I. Procedural History[1]

         Plaintiff is an inmate in the Texas Department of Criminal Justice, Criminal Institutions Division (“TDCJ”) and is currently incarcerated at the Ellis Unit in Huntsville, Texas. Plaintiff filed this civil rights action on March 7, 2016. The action was consolidated with two other civil rights cases Plaintiff filed the same day, Cause Nos. 2:16-cv-77 and 2:16-cv-83.

         Plaintiff complained in Cause No. 2:16-cv-76 that, on April 1, 2015, three gang members attacked him while he was housed in F Building, 2 Section in the McConnell Unit in Beeville, Texas. He alleged that the guards in the unit that day had pre-knowledge that there would be an attack and failed to protect him. He named as Defendants the following McConnell Unit officials: (1) Officer Anazor (“Anazor”), the roving officer on duty when he was injured; and (2) Officer Reo (“Reo”), the picket officer[2] on duty when he was injured; (3) Darren S. Mayer (“Mayer”), gang intelligence officer; (4) Sergeant Stugis (“Stugis”), gang intelligence officer; and (5) Captain Joshua B. Boyer (“Boyer”). Plaintiff additionally claimed that the failure of the guards to protect him that day was in retaliation for a previous incident occurring on March 13, 2014.

         Plaintiff complained in Cause No. 2:16-cv-77 that on September 20, 2015, a fight broke out in the 8 Building dining hall, on the B side at the McConnell Unit, and that Lieutenant Kimberly Kinkler's (“Kinkler”) failure to restrain the rowdy inmate resulted in injury to Plaintiff. He named as Defendants the following McConnell Unit officials: (1) Kinkler; (2) Jerome A. Wilson (“Wilson”); (3) Assistant Warden Kenneth Putman, Jr. (“Putman”); (4) Warden Matt Barber (“Barber”); and (5) Assistant Warden Corey Furr (“Furr”).

         Plaintiff complained in Cause No. 2:16-cv-83 that, sometime in March 2014, Lieutenant Crystal Lopez (“Lopez”) took Plaintiff to 11 Building, where he was strip searched. Plaintiff further claimed that Natasha Chisum (“N. Chisum”) violated his Eighth Amendment rights by deliberately turning off the heat and forcing him to spend the night without shoes, clothing, mattress, or a blanket. Plaintiff further alleged that Lopez was the ranking officer present who heard N. Chisum state she was going to turn off the heat. In addition to Lopez and N. Chisum, Plaintiff named as Defendants Sergio Perez (“Perez”), Jonathon Chisum (“J. Chisum”), Javier Muro (“Muro”), and Justin L. Villarreal (“Villarreal”).

         Plaintiff did not indicate whether he seeks to sue any of the Defendants named in the consolidated action in both their individual and official capacities. He seeks monetary relief in the consolidated action.

         On March 10 and May 12, 2016, the Magistrate Judge to whom this case was referred conducted Spears[3] hearings. On September 2, 2016, the Magistrate Judge issued a Memorandum and Recommendation (“M&R”) recommending that the Court dismiss some of Plaintiff's claims. Dkt. No. 21. Also on September 2, 2016, the Magistrate Judge ordered service on Anazor, Reo, N. Chisum, Lopez, and Kinkler (collectively, “Defendants”). Dkt. No. 22. On September 16, 2016, and September 19, 2016, Plaintiff filed objections to the September 2, 2016, M&R. Dkt. Nos. 25 & 28. Then, on October 17, 2016, Defendants filed their answer to Plaintiff's complaint. Dkt. No. 32.

         On March 17, 2017, Defendants filed a motion for summary judgment. Dkt. No. 42. On April 13, 2017, Plaintiff filed a response to Defendants' motion for summary judgment. Dkt. No. 45. On September 13, 2017, the Magistrate Judge issued an M&R recommending that the Court grant in part and deny in part Defendants' motion. Dkt. No. 50. On September 28, 2017, Anazor and Reo filed objections to the M&R. Dkt. No. 51. On November 13, 2017, Plaintiff filed a “Motion to Alter or Amend Summary Judgment.” Dkt. No. 55. On November 20, 2017, the Magistrate Judge denied Plaintiff's motion but construed the motion as an objection to the M&R.[4] Dkt. No. 54.

         The Court considers the September 2, 2016, and September 13, 2017, M&Rs, Dkt. Nos. 21 & 50, and their timely objections, Dkt Nos. 25, 28, & 51.

         II. September 2, 2016, M&R

         The September 2, 2016, M&R recommends that the Court: (1) retain Plaintiff's Eighth Amendment failure to protect claims against Anazor, Reo, and Kinkler; (2) retain Plaintiff's Eighth Amendment conditions of confinement claim against Lopez and N. Chisum; (3) dismiss with prejudice Plaintiff's claims against Perez, Muro, Villareal, J. Chisum, Mayer, Sturgis, and Wilson for failure to state a claim; and (4) dismiss without prejudice Plaintiff's claims against Boyer, Putnam, Barber, and Furr as withdrawn. Dkt. No. 21.

         On September 16, 2016, and September 19, 2016, Plaintiff filed objections to the September 2, 2016, M&R. Dkt. Nos. 25 & 28. The Court reviews objected-to portions of a Magistrate Judge's proposed findings and recommendations de novo. 28 U.S.C. § 636(b)(1). Plaintiff's objections are frivolous, conclusory, general, or contain no arguments that the M&R has not already considered. See id.; see also Battle v. United States Parole Comm'n, 834 F.2d 419 (5th Cir. 1987) (determining that a district court need not consider frivolous, conclusive, or general objections). After independently reviewing the record and considering the applicable law, the Court ADOPTS the proposed M&R in its entirety. Dkt. No. 50. Thus, the Court OVERRULES Plaintiff's objections. Dkt. Nos. 25 & 28.

         III. September 13, 2017, M&R

         In her September 13, 2017, M&R, the Magistrate Judge recommended that the Court grant in part and deny in part Defendants' motion for summary judgment. Dkt. No. 50. Specifically, the M&R recommended that the Court (1) dismiss with prejudice as barred by the Eleventh Amendment Plaintiff's claims for money damages against Defendants in their official capacities; (2) dismiss with prejudice for failure to exhaust administrative remedies: (a) Plaintiff's conditions of confinement claims against Lopez and N. Chisum in their individual capacities and (b) Plaintiff's failure to protect claim against Kinkler in her individual capacity; and (3) deny Defendants' motion with respect to Plaintiff's failure to protect claims against Anazor and Reo in their individual capacities. Id.

         The Court adopts the M&R as to its first and second recommendations and declines to adopt the M&R as to its third recommendation. The Court considers each recommendation in turn.

         A. Summary Judgment Standard

         The M&R outlines the applicable summary judgment standard:

Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must examine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. In making this determination, the Court must consider the record as a whole by reviewing all pleadings, depositions, affidavits and admissions on file, and drawing all justifiable inferences in favor of the party opposing the motion. Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). The Court may not weigh the evidence, or evaluate the credibility of witnesses. Id. Furthermore, “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e); see also Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to consider affidavits that relied on hearsay statements); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per curiam) (stating that courts cannot consider hearsay evidence in affidavits and depositions). Unauthenticated and unverified documents do not constitute proper summary judgment evidence. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam).
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates an absence of evidence supporting the nonmoving party's case, then the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To sustain this burden, the nonmoving party cannot rest on the mere allegations of the pleadings. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248. “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” Caboni, 278 F.3d at 451. “If reasonable minds could differ as to the import of the evidence . . . a verdict should not be direct.” Anderson, 477 U.S. at 250-51.
The usual summary judgment burden of proof is altered in the case of a qualified immunity defense. See Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). When a government official has pled the defense of qualified immunity, the burden is on the plaintiff to establish that the officials conduct violated clearly established law. Id. Plaintiff cannot rest on his pleadings; instead he must show a genuine issue of material fact concerning the reasonableness of the officials conduct. Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001).

Dkt. No. 50 at 13-14.

         B. Official ...


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