United States District Court, N.D. Texas, Abilene Division
MEMORANDUM OPINION AND ORDER
SCOTT FROST, UNITED STATES MAGISTRATE JUDGE.
to 42 U.S.C. § 1983, Plaintiff sues four named and other
unknown prison officials or employees of the French M.
Robertson Unit of the Texas Department of Criminal Justice
for holding or placing him in Close Direct Observation
("CDO") under deplorable conditions in violation of
the Americans with Disability Act ("ADA"); the
Rehabilitation Act ("RA"); and the Eighth Amendment
of the United States Constitution. See Compl. (doc.
2) at 5-6. The Court has granted Plaintiff permission to
proceed with this case in forma pauper is. See PLRA
Filing Fee Order (doc. 5). On November 1, 2018, the District
Judge referred the case to the undersigned. See
Order (doc. 6). Plaintiff thereafter consented to have a
United States Magistrate Judge conduct any and all further
proceedings in this case, including entry of a final
judgment, in accordance with 28 U.S.C. § 636(c).
See Consent to Proceed Before a United States
Magistrate Judge (doc. 10).
April 8, 2019, the Court sent Plaintiff a Magistrate
Judge's Questionnaire ("MJQ") to flesh out the
factual and legal bases for his claims. See MJQ
(doc. 16). Plaintiff timely responded to the MJQ.
See Answers to MJQ (doc. 17). After considering
Plaintiffs complaint, his answers to the MJQ, other relevant
filings, and the applicable law, the Court issues this
Memorandum Opinion and Order finding that Plaintiff has
stated no claim that survives summary dismissal and thus
dismisses this action in its entirety.
after 6:00 p.m. on July 14, 2018, Plaintiff was placed in CDO
after he informed an officer that he was suicidal and would
ingest forty-plus pills that he "had saved up" if
the officer did not handcuff him. Answers 1 and 2(a). He
alleges that, after confiscation of his medication, he was
escorted to CDO where he complied with an order to strip
naked and was placed into Cell # 12 in Building 12, F Wing.
Compl. at 7-11. The moment he entered the cell he recognized
the deplorable conditions, including dried urine and feces
and cold air blowing through an air vent into the cell.
Id. at 8-9. With respect to the deplorable
conditions of Cell # 12, he alleges specifically:
Upon entering the cell, I immediately noticed the foul smell
of urine and feces. I also noticed that the cell floor was
covered with fine particles of debris of unknown origin. The
sink/toilet looked filthy all over. The toilet rim looked and
smelled like dried urine. The sink had two spots the size of
lima beans of dried feces. The inside of the cell door, which
was two tall narrow windows comprised of diamond shaped steel
that allows air to pass thru, had been retrofitted with
plexiglass on the outside to cover the windows. This is to
prevent anything being thrown on an officer. Various areas of
the window had caked up food and dried feces caught between
the diamond shaped steel and the plexiglass on the inside of
Id. at 8 (some grammatical errors corrected).
the facility lacked sufficient blankets for all inmates
housed in CDO, Plaintiff went without a suicide blanket from
July 14, 2018, through just after 6:00 p.m. on July 17, 2018,
although he asked about getting a blanket and felt like he
was freezing. Id. at 9. When Plaintiff asked Major
Almanza about a blanket, the Major simply indicated that
there were too many inmates needing to be housed in CDO.
housed in CDO, Plaintiff had to choose between sleeping on a
bunk that had residue from mace or a filthy floor.
Id. at 10. In addition, during his confinement
there, a neighboring inmate caused his cell to flood, which
also caused water to come into Cell #12 "eventually
rising to about 1/4 inches deep" and requiring Plaintiff
to walk in it. Id. at 10. When prison officials
turned off the water in the neighboring cell, they also
turned off Plaintiff s water thus causing him to be
"served at least one meal" without water.
Id. An officer - identified as Verimantes - told
Plaintiff to use his spit when he asked for water during that
meal. Id.; Answers 3 and 11. He had lunch without
water and has "trouble remembering if [he] also ate the
dinner meal without water." Answer 2(d). However, the
water was only off for about two or three hours. Answer 2(c).
Unidentified officers were allegedly deliberately indifferent
to the water because they used mops and buckets to clean up
the water outside the cell but refused to remove Plaintiff to
clean his cell. Answer 3.
also complains about bright lights being on twenty-four hours
a day and that he was not allowed to shower or brush his
teeth while housed in CDO. Compl. at 11. Unidentified
"picket officers" were deliberately indifferent to
the lighting because they were responsible for the lights
staying on. Answer 3.
point while Plaintiff was in the CDO, he "was moved to
cell # 8 a few cells down," which "was also in a
similar deplorable condition to cell #12 right down to the
mace residue on the bunk." Compl. at 11. Although
Plaintiff does not recall specifically how long he was housed
in CDO, see Answer 2(b), a prison grievance attached
to his complaint shows that he was transferred to the
Montford Unit on July 19, 2018, see Step 1 Offender
Grievance Form. In addition, Plaintiff has provided
supplemental exhibits showing that he was transferred the
evening of July 19, 2018, and returned to the Robertson Unit
on July 30, 2018. See Doc. 19.
only physical injury sustained by Plaintiff from any of the
alleged conditions of confinement was temporary,
"burning sensations" from the mace residue when he
rubbed his eyes soon after being placed in CDO. See
Answers 5-9. However, Plaintiff stresses that he seeks
punitive and nominal damages. See Answers 6-9. He
also recently moved to amend his complaint to clarify that he
only seeks nominal damages to be set by a jury and punitive
damages of $2, 000 per day for each day he was housed in the
CDO. See Pl.'s Mot. Leave Amend Compl. (doc.
18). The Court has granted that motion contemporaneously with
this Memorandum Opinion and Order.
commenced this civil action in October 2018. See
Compl. He attached his Step 1 and 2 grievance forms to this
complaint. He submitted the Step 1 grievance on August 1,
2018, and the allegations of this case essentially reiterate
the allegations set forth in that grievance. See
Step 1 Offender Grievance Form. Within that grievance,
Plaintiff also explained that he sought to informally resolve
his grievance by talking to Major Almanza and unspecified CDO
officers between July 14 and 19, 2018. See Id. He
stated that, in response to his informal attempts to resolve
the issues, the CDO officers "were indifferent" and
Major Almanza simply stated: "There's too many of
y'all." Id. Plaintiff also stated that his
"grievable time period began on [July 19, 2018, ]"
which is the day he was transferred to the Montford Unit.
August 23, 2018, Assistant Warden Cano informed Plaintiff
that his grievance had been investigated and reviewed.
See Id. He further stated:
No evidence of staff misconduct was found to substantiate
your allegations. An investigation has been completed by unit
administration. Investigation indicates the CDO cells are
cleaned after each offender is moved out, lights are left on
to ensure offenders are not harming themselves, there is
airflow in this housing, and blankets are only provided when
doctor's orders are received. No. further action
same date, Plaintiff submitted his Step 2 grievance, wherein
he stated that he was dissatisfied with the Step 1 response,
because the response "is an outright lie and
cover-up" and he stated that, after a response to his
Step 2, he would file a federal law suit and identified five
federal lawsuits to "verify his resolve."
See Step 2 Offender Grievance Form. On September 27,
2018, he was notified in response to the Step 2 grievance:
"Your grievance has been investigated. This issue was
appropriately addressed at the Step 1 level. No. evidence was
found to support your allegations of the cell being dirty.
Proper procedures were followed. No. further action
required." See id.
complaint, Plaintiff lists the following defendants: (1)
Major Almanza, (2) Unknown CDO Correctional Officers, (3)
Unknown Supervising Shift Sergeants, (4) Unknown Supervising
Shift Lieutenants, (5) Unknown Supervising Shift Captains,
(6) Assistant Warden Cano, (7) Assistant Warden Monte A.
Griffin, and (8) Senior Warden Steven A. Sperry. Compl. at
5-6. Plaintiff asserts claims under the ADA, RA, and the
Eighth Amendment under the same set of facts. See
Compl. at 3; Answers 2 and 3. Based on his recent amendment,
he only seeks nominal and punitive damages in this action.
See Pl.'s Mot. Leave Amend Compl.
to Plaintiff, Major Almanza had direct knowledge of all
factual allegations set forth by Plaintiff and had a
conversation with Plaintiff. Answer 10. The only Correctional
Officer that Plaintiff can identify is Verimantes. Answer 11.
Other than Verimantes, Plaintiff alleges no acts or omissions
of any unidentified Correctional Officer, Shift Sergeant,
Supervising Shift Lieutenant, or Supervising Shift Captain.
See Answers 11-14. He sues Assistant Warden Cano
because he "is assigned overall responsibility of the
safety and security of 12 Bldg." and he "signed the
Step 1 grievance attached to the complaint." Answer 15.
He sues Assistant Warden Monte A. Griffin and Warden Steven
A. Sperry based on an assumption that all three wardens
communicate with each other and they thus had knowledge of
the conditions in CDO cells. Answers 16-17. When asked about
identifying a specific policy or custom to support his suit
against defendants in their official capacities, Plaintiff
merely states that he "would only be able to provide
additional facts via sworn affidavit or testimony by
offenders and/or staff." Answer 18.
these facts and background information, the Court now
conducts the preliminary screening of this action as
contemplated by 28 U.S.C. §§ 1915(e)(2) and 1915A.
proceeds with this case in forma pauperis.
Therefore, this action is subject to sua sponte
dismissal under 28 U.S.C. § 1915(e)(2)(B). In addition
because he is a prisoner seeking redress from governmental
entity or an officer or employee of such an entity, his
complaint is subject to preliminary screening pursuant to 28
U.S.C. § 1915A regardless of whether he proceeds in
forma pauperis. See Martin v. Scott,156 F.3d 578,
579-80 (5th Cir. 1998) (per curiam). Both statutes provide
for sua sponte dismissal of the complaint, or any
portion thereof, if the Court finds it is frivolous or
malicious, if it fails to state a ...