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Payne v. Almanza

United States District Court, N.D. Texas, Abilene Division

May 1, 2019

TOBY KRISTOPHER PAYNE, Prison ID # 1720023, Plaintiff,
v.
FNU ALMANZA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          E. SCOTT FROST, UNITED STATES MAGISTRATE JUDGE.

         Pursuant 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).

         On 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).[1] 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.

         I. BACKGROUND[2]

         Shortly 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 the door.

Id. at 8 (some grammatical errors corrected).

         Because 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. Id.

         While 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.

         Plaintiff 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.

         At some 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.

         The 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.

         Plaintiff 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. Id.

         On 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 warranted.

See id.

         That 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.

         In his 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.

         According 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.

         Given 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.

         II. SCREENING

         Plaintiff 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 ...


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