United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKELUNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
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, Local Rules for the Assignment of Duties to United
States Magistrate Judges.
the Court are Plaintiff's complaint and more definite
statement. Plaintiff, proceeding pro se, has been granted
leave to proceed in forma pauperis.
OF THE CASE
time he filed his complaint pursuant to 42 U.S.C. §
1983, Plaintiff was confined in the Clements Unit of the
Texas Department of Criminal Justice - Correctional
Institutions Division. Plaintiff alleges he was returning to
the Travis County Correctional Complex from court on December
21, 2016, and the bus broke down. A second bus allegedly
backed up into the disabled bus. Plaintiff claims he was
seated in the back passenger-side seat handcuffed to two men
weighing over 200 pounds. The other men were seated in the
back driver's-side seat. Plaintiff contends the collision
caused a twisting of his arm, shoulder, neck and back and
aggravated a pre-existing injury. Plaintiff alleges he
sustained whiplash and had severe pain in his back and a knot
in his head. Plaintiff further asserts he was denied medical
treatment for almost two weeks.
sues Travis County, Texas. He seeks monetary relief for the
pain, discomfort and trouble that made his incarceration all
the more difficult and dangerous. After consideration of his
complaint, the Court ordered Plaintiff to file a more
definite statement. Specifically, Plaintiff was ordered to
identify each and every policy, practice or custom that
caused any deprivation of Plaintiff's constitutional
rights. Plaintiff responded he believed handcuffing three
people together was a violation of jail policy.
was also ordered to specify the date he requested medical
treatment and the date he received such treatment. Plaintiff
responded he has been unable to obtain this information.
However, in response to another question he responded he was
seen by Dr. Bob ten days after the accident. When asked to
describe in detail the medical treatment he received and who
provided such treatment Plaintiff simply replied Dr. Bob had
seen him “roughly 10 days later.” From a review
of Plaintiff's more definite statement it appears
Plaintiff was offered a neck brace, but Plaintiff declined.
He explained he would have been kept in solitary confinement
if he had a neck brace, and he was already experiencing too
much emotional stress to be left alone. Plaintiff complains
the delay in his treatment caused him great pain and forced
him to get in and out of his top bunk. Plaintiff explains he
only wanted a bottom bunk and help without solitary
Standard Under 28 U.S.C. § 1915(e)
forma pauperis proceeding may be dismissed sua sponte under
28 U.S.C. § 1915(e) if the court determines the
complaint is frivolous, malicious, fails to state a claim
upon which relief may be granted or seeks monetary relief
against a defendant who is immune from suit. A dismissal for
frivolousness or maliciousness may occur at any time, before
or after service of process and before or after the
defendant's answer. Green v. McKaskle, 788 F.2d
1116, 1119 (5th Cir. 1986).
reviewing a plaintiff's complaint, the court must
construe plaintiff's allegations as liberally as
possible. Haines v. Kerner, 404 U.S. 519 (1972).
However, the petitioner'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).
1983 “provides a federal cause of action for the
deprivation, under color of law, of a citizen's
‘rights, privileges, or immunities secured by the
Constitution and laws' of the United States.”
Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To
state a claim, a plaintiff must allege facts that show (1) he
has been deprived of a right secured by the Constitution and
the laws of the United States and (2) the deprivation
occurred under color of ...