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Foster v. Travis County

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

April 5, 2018





         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, Local Rules for the Assignment of Duties to United States Magistrate Judges.

         Before the Court are Plaintiff's complaint and more definite statement. Plaintiff, proceeding pro se, has been granted leave to proceed in forma pauperis.


         At the 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.

         Plaintiff 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.

         Plaintiff 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 confinement.


         A. Standard Under 28 U.S.C. § 1915(e)

         An in 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).

         When 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).

         B. Section 1983

         Section 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 ...

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