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Soliz v. Sanchez

United States District Court, S.D. Texas, Galveston Division

April 26, 2019

ELI SOLIZ, TDCJ #02047366, Plaintiff,
v.
CESAR SANCHEZ, et al, Defendants.

          MEMORANDUM AND ORDER

          GEORGE C. HANKS JR., UNITED STATES DISTRICT JUDGE

         State inmate Eli Soliz, proceeding pro se, has filed a civil rights complaint under 42 U.S.C. § 1983. Soliz has paid the filing fee. Plaintiff alleges that Defendant Bryan Millard, a correctional officer, threatened him with a knife on May 25, 2017. He also alleges that Defendants Cesar Sanchez, Linda Hone, and Melanie Whitlow failed to properly handle Plaintiff's complaints regarding Millard's conduct. In addition to his complaint (Dkt. 1), Soliz has provided a more definite statement (Dkt. 7) in compliance with the Court's instructions.

         Because Soliz is incarcerated and seeks redress from state officials or employees, the Prisoner Litigation Reform Act (“PLRA”) requires the Court to review the pleadings and dismiss the case, in whole or in part, if it determines that the action is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b). After reviewing all of the pleadings and the applicable law, the Court concludes that Soliz's claims must be DISMISSED for the reasons that follow.

         I. BACKGROUND

         On May 25, 2017, Soliz was incarcerated at the Ramsey I Unit in Rosharon, Texas. He alleges that Defendant Millard, a correctional officer, committed “aggravated assault with a deadly weapon” against him when he pulled a “personal unissued” knife and threatened Soliz with it (Dkt. 1, at 6).

         The facts as alleged by Plaintiff are as follows: On May 25, 2017, Soliz was working in the office of Heidi Millard, Defendant Millard's wife, who also was employed at the Ramsey I Unit. Defendant Millard entered the office, demanded his wife's cell phone, and looked through it (id.; Dkt. 7, at 1-2). Soliz chuckled and, when Defendant Millard asked, “you think something's funny?, ” Soliz answered, “yeah you are” (id.; see Dkt. 1, at 6 (Soliz told Millard that he was “a joke”)). Millard then pulled a knife out of his right pocket and threatened to cut Soliz with it (id.; Dkt. 7, at 2). Millard was eight to ten feet away from Soliz when he first pulled the knife but came within two to three feet of him with the knife drawn (id.). After about one minute, when Millard's supervisor entered the office, Millard acted as though he had been cleaning his fingernails with the knife and put it away (id. at 3). Soliz reported the incident to correctional officials who then searched Millard, found the weapon on him, and escorted him off the unit (Dkt. 1, at 6). Shortly after the incident, Millard was fired (id. at 7).[1]

         Soliz states that he was in fear for his life during the incident because Millard had pulled his knife on a previous occasion and had accused Soliz of having an affair with Heidi Millard (id. at 6; Dkt. 7, at 3). Soliz believed Millard to be unstable and “capable of anything” (id.). He states that, as an inmate, he was unable to defend himself and that Millard could have killed him and then “fabricated an alibi to justify his actions” (id.).

         Soliz had “no visible scars, cuts, or bruises” but, as a result of the incident, suffered a “tremendous amount of stress and anxiety, ” rapid heartbeat, confusion, nervous breakdowns, and tightness in his chest (id. at 4). In November 2018, approximately 18 months after the incident, he requested medical attention and was referred for psychiatric counseling (id. at 4-5). He also received medical care in December 2018 for hypertension, rapid heartbeat, chest tightness, and other symptoms (id. at 5-6).

         On May 26, 2017, the day after the incident, Soliz gave a recorded statement to Officer Cesar Sanchez with the Office of the Inspector General (“OIG”), who is named as a defendant in this action. Soliz alleges that several months later, Sanchez told Plaintiff that no criminal charges had been filed against Millard because “[t]here was not enough evidence to submit to the [District Attorney's] office” (Dkt. 1, at 7). Rather, Sanchez told him that TDCJ had handled the matter administratively, stating, “He got fired . . . What else do you want?” (id.). Plaintiff protested to Sanchez, arguing that a crime had occurred:

I told Mr. Sanchez, “You have a victim, a weapon, a motive, and even an alibi. He even admitted he believed an affair was going on all you are lacking is a confession.” All the elements of a crime were present. He smiled and said, “Look, you have to understand that you are in prison and the law applies differently.”

         (id.). Soliz claims that Sanchez's refusal to pursue criminal charges was “a violation of [his] 14th Amendment rights” (id.).

         Soliz did not file an administrative grievance against Millard (Dkt. 7, at 6).[2]However, he filed three grievances regarding Sanchez's decision not to bring criminal charges against Millard. First, Soliz submitted a grievance on August 10, 2017 requesting reconsideration of the OIG decision not to bring criminal charges against Millard (Dkt. 1-1, at 28-30). The grievance was returned to Soliz with notification that the issue presented was “not grievable” (id. at 29). Melanie Whitlow, whom Soliz names as a defendant in this action, added a handwritten note stating, “OIG decisions are not grievable in this office” (id. at 30). Soliz then filed a step two grievance, on which prison officials apparently took no action (id. at 32-33). Second, in October 2017, Soliz filed a new step one grievance complaining that his earlier step two grievance had not been answered (id. at 39-41). This grievance was returned to Soliz with a notification that the grievable time had expired (id. at 40). Linda Hone, whom Soliz also names as a defendant in this action, signed the notification and wrote, apparently in error, that Soliz had not filed a step two grievance (id. at 41). Soliz filed another step two grievance, which reflects no response from officials (id. at 43-44). Third, in November 2017, Soliz filed a new step one grievance complaining that the step two grievance he filed in October had not been answered (id. at 46-48). This grievance was returned with a notification from Hone that the grievance was “inappropriate” and that grievances should not be used as I-60 requests (id. at 47). Hone explained, “You may not file a Step 2 on a screened grievance. Next time submit an I-60 to this office, do not use the I-127 form as an I-60” (id. at 48).

         Soliz followed Hone's instructions and filed an I-60 request. In response, Hone supplied him with copies of the grievances he had filed (Dkt. 1, at 8). Plaintiff claims that Hone's possession of the grievances proves that Hone “had [the grievances] but did not respond to them, ” and therefore was “interfering with the due process of law” (id.). Based on these facts, ...


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