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Short v. Kalen

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

April 23, 2019

LAWRENCE WOODSON SHORT, Plaintiff,
v.
JIM KALEN, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN CLAIMS AND TO RETAIN CASE

          Jason B. Libby United States Magistrate Judge.

         Plaintiff Lawrence Woodson Short is a Texas inmate appearing pro se and in forma pauperis. He filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's case is subject to screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28 U.S.C. §§1915(e)(2), 1915A. For purposes of screening, Plaintiff has stated claims of excessive force against Officer Martinez and Officer Benavides in their individual capacities. Accordingly, it is respectfully recommended that these claims against Officer Martinez and Officer Benavides be RETAINED. The undersigned will order service on these defendants.

         The undersigned further recommends that Plaintiff's claims against all Defendants in their official capacities be DISMISSED. Lastly, the undersigned recommends that Plaintiff's claims against the remaining defendants be DISMISSED with prejudice for failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the reasons set forth below.

         I. JURISDICTION

         The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case has been referred to the undersigned magistrate judge for case management and making recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

         II. PROCEDURAL BACKGROUND AND PLAINTIFF'S ALLEGATIONS

         Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID) and is currently housed at the Hughes Unit in Gatesville, Texas. Plaintiff's claims in this lawsuit occurred in connection with his previous confinement at the Nueces County Jail.

         On February 25, 2019, Plaintiff filed his original complaint against the following Nueces County officials: (1) Jim Kalen, Nueces County Sheriff; (2) Mike McKenzie, Nueces County Chief Jailer; (3) Officer Martinez; (4) Officer Benavides; and (5) Sergeant Martinez. Plaintiff primarily alleges that he was subjected to the excessive use of force by officers at the Nueces County Jail. Plaintiff seeks monetary relief.

         A Spears[1] hearing was conducted on March 29, 2019. The following representations were made either at the Spears hearing or in Plaintiff's original complaint (D.E. 1): Plaintiff is 43 years old. He is 5'11” and weighs 206 pounds. Plaintiff was taken into custody at the Nueces County Jail on December 26, 2017 on the charge of evading arrest with a motor vehicle. He was subsequently convicted of this charge and sentenced on March 12, 2018 to five years in prison.

         On or about June 3, 2018, Plaintiff was seen at the jail's medical department with regard to cardiac issues. Plaintiff alleges that after he returned to his cell, Officer Martinez acted aggressively toward Plaintiff without provocation by grabbing Plaintiff's arm. Plaintiff questioned Officer Martinez about this aggressive action. According to Plaintiff, Officer Martinez responded by body slamming Plaintiff to the floor and placing both his knees in Plaintiff's back. Plaintiff further alleges Officer Benavides arrived at the scene and also placed his knees in Plaintiff's back. The use of force by these officers caused Plaintiff to suffer two broken ribs.

         Sergeant Martinez[2] witnessed the incident, stopped the use of force, and brought Plaintiff immediately to the medical department. The nurse on duty took Plaintiff's blood pressure and reported it was low. However, the nurse informed Plaintiff that the medical department was too busy to further examine or treat Plaintiff. Sergeant Martinez placed Plaintiff in a holding cell, where Plaintiff communicated to him that he was in pain. Plaintiff alleges Sergeant Martinez could not do anything for Plaintiff because Sergeant Martinez was not assigned to the medical department.

         Plaintiff was transferred into TDCJ custody the day after the incident, on June 4, 2018. Plaintiff spent about a month at the Garza West Unit in Beeville, Texas. On June 20, 2018, while housed at the Garza West Unit, Plaintiff's rib injuries were examined. Plaintiff has attached a medical report to his complaint, dated June 20, 2018, showing fractures in two ribs. (D.E. 1, p. 6). Plaintiff testified he was not involved in other altercations and did not suffer any other injury between June 3, 2018 and June 20, 2018. Thus, Plaintiff alleges Officers Martinez and Benavides caused Plaintiff to suffer two broken ribs when they assaulted him on June 3, 2018. Even though Plaintiff waited a couple of weeks to be seen at the Garza West Unit, he clarified that he does not seek to sue any TDCJ official with respect to his medical care.[3]

         Plaintiff sues Sheriff Kalen and Chief Jailer McKenzie as having supervisory responsibility over Officers Martinez and Benavides. Plaintiff believes these defendants are responsible for the conduct of their subordinate officers.

         III. ...


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