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Rivers v. Schiwart

United States District Court, N.D. Texas, Wichita Falls Division

March 14, 2019

ERSKIN RIVERS, TDCJ No. 01369061, Plaintiff,
v.
KEVIN SCHIWART, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court are Defendant Kevin Schiwart's Motion to Dismiss (ECF No. 10) filed October 10, 2018 and Plaintiff Erskin Rivers' Response (ECF No. 12) filed October 29, 2018. On August 6, 2018, this case was referred to the undersigned for pretrial management pursuant to Special Order No. 3-251. (See ECF No. 1). After considering the pleadings and applicable law, the undersigned RECOMMENDS that Chief United States District Judge Barbara M. G. Lynn GRANT in part and DENY in part Defendant's Motion to Dismiss (ECF No.10).

         BACKGROUND

         Plaintiff Erskin Rivers (“Rivers”), an inmate confined in the James V. Allred Unit of the Texas Department of Criminal Justice (“TDCJ”) in Iowa Park, Texas, brings this action pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. The TDCJ employed Defendant Captain Kevin Schiwart (“Schiwart”) at all times relevant to this suit. (ECF No. 3). Rivers alleges that Schiwart authorized the use of excessive force against him and other inmates. (Id.).

         According to Rivers' complaint, a fight broke out between inmates (the “fighting inmates”) in the “chow hall.” (Id. at 4). To control the fight, correctional officers gassed and removed the fighting inmates from the chow hall. (Id. at 4). After the fighting inmates fled or were removed, officers fired a riot gun at Rivers and the other inmates who remained in the chow hall (collectively, the “remaining inmates”), even though they were “waiting for [the officers] to finish taking care of their business with the . . . inmates that were fighting.” (Id.). According to Rivers, the inmates were ordered to get on the ground, but even after they complied with the order, and without provocation, the officers fired a canister of gas into the chow hall. (Id. at 5). For no apparent reason, the officers also fired the riot gun and another cannister of gas toward the remaining inmates. (Id.). Rivers alleges that the officers who gassed and fired the riot gun at them acted on Schiwart's direct orders. (Id.). Rivers asks the Court to award him $100, 000 in compensatory damages and $100, 000 in punitive damages because Schiwart acted with “evil intent” and reckless indifference to his rights. (Id. at 4, 6).

         To clarify Rivers' claims and injuries allegedly sustained during the incident, the Court sent Rivers a questionnaire seeking additional information. (ECF No. 7). In his response, Rivers claims that because of the incident, he sustained bruises on his “arm and leg, ” has vertigo when he tilts his head, and has “nightmares like crazy.” (Id. at 4). Despite these injuries, Rivers did not seek medical attention. (Id. at 5).

         Schiwart filed the Motion to Dismiss (ECF No. 10) based on Federal Rule of Civil Procedure 12(b)(1), Rule 12(b)(6), and qualified immunity. Rivers responded. The Motion is now ripe for disposition.

         LEGAL STANDARD

         I. Federal Rule of Civil Procedure 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) permits a party to move for dismissal of a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). If a court lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). In determining whether subject matter jurisdiction exists, a court “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” CleanCOALition v. TXU Power, 536 F.3d 469, 473 (5th Cir. 2008) (quoting Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).

         “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). “The district court may dismiss for lack of subject matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Lowe v. ViewPoint Bank, 972 F.Supp.2d 947, 953 (N.D. Tex. 2013) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). When considering a Rule 12(b)(1) motion, the court may consider evidence beyond the pleadings. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994). A dismissal under Rule 12(b)(1) is without prejudice because it “is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Ramming, 281 F.3d at 161.

         II. Federal Rule of Civil Procedure 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. The Rules require that each claim contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering a Rule 12(b)(6) motion, courts “take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff . . . and ask whether the pleadings contain ‘enough facts to state a claim to relief that is plausible on its face.'” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (citing Twombly, 550 U.S. at 547). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

         There exists a “well-established policy that the plaintiff be given every opportunity to state a claim.” Ramming, 281 F.3d at 161 (citing Hitt, 561 F.2d at 608). It is federal policy to decide cases on the merits rather than technicalities, and thus when possible the Fifth Circuit has recommended that suits be dismissed without prejudice on Rule 12 motions. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002); Hines v. Wainwright, 539 F.2d 433, 434 (5th Cir. 1976) (vacating and remanding a Rule 12(c) dismissal with instructions to the district court to dismiss without, instead of with, prejudice). As a result, courts generally allow plaintiffs at least one opportunity to amend following a Rule 12 dismissal on the pleadings. Great Plains Tr. Co., 313 F.3d at 329; see In re Online ...


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