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Collins v. Herrera

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

May 20, 2019

DOUGLAS COLLINS, TDCJ #298978, Plaintiff,
v.
WARDEN ROBERT HERRERA, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         The plaintiff, Douglas Collins, has filed a Prisoner's Civil Rights Complaint under 42 U.S.C. § 1983 ("Complaint")(Docket Entry No. 1), concerning the conditions of his confinement in the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ"). He has also provided a Response to the Court['s] Order for More Definite Statement ("Plaintiff's MDS") (Docket Entry No. 9). Now pending is Defendant [Robert] Herrera's Motion to Dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) ("Defendant's Motion") (Docket Entry No. 16), which was filed by the State Attorney General's Office. Collins has filed a Response to the Attorney General's Motion for Dismissal ("Plaintiff's Response") (Docket Entry No. 18). He has also filed several amended or supplemental complaints (Docket Entry Nos. 20, 21, 23, 24, 25), two motions for discovery (Docket Entry Nos. 26, 27), and a "Motion to Suspend Rule" (Docket Entry No. 28). After reviewing all of the pleadings, and the applicable law, the Defendant's Motion will be granted and this case will be dismissed for the reasons explained below.

         I. Background

         Since 2015, Collins has been incarcerated at the Pack Unit in Navasota, Texas, where Warden Herrera is employed by TDCJ.[1]Collins alleges that environmental testing conducted in connection with a different lawsuit in the Southern District of Texas, Cole v. Collier, No. 4:14-cv-1698, disclosed elevated levels of arsenic in the water supply at the Pack Unit.[2] On June 21, 2016, the district court in Cole found that arsenic levels at the facility posed "a low, but measurable, increased risk of cancer," and entered a preliminary injunction, ordering then-Executive Director Brad Livingston and officials at the Pack Unit to provide water that conformed to the Environmental Protection Agency ("EPA") maximum contaminant level requirements for arsenic.[3]

         Although an upgraded water filtration system was installed to remedy the problem in 2017, Collins contends that conditions remain unsafe because no effort was made to replace the pipes or flush out the "build up of arsenic" in the pipes.[4] Collins contends that continued exposure to high levels of arsenic has caused sores all over his body, which health care providers have been unable to explain or diagnose.[5] Because arsenic is a carcinogen, Collins also fears that someday he may suffer from cancer.[6] Collins blames Warden Herrera, who is the only defendant remaining in this case, [7]for failing to replace all of the pipes at the Pack Unit.[8] Collins seeks $150, 000.00 in compensatory damages for his exposure to unsafe conditions.[9]

         Warden Herrera moves to dismiss Collins's claim for monetary damages against him in his official capacity, arguing that he is entitled to immunity as a state employee.[10] Herrera also argues that Collins fails to assert facts showing he is entitled to monetary damages under the Prison Litigation Reform Act (the "PLRA"), 42 U.S.C. § l997e(e), and that he is entitled to qualified immunity from the claims against him in his individual or personal capacity.[11]

         II. Standard of Review

         The defendant has filed a motion under Fed.R.Civ.P. 12(b) (1) to dismiss the plaintiff's claim for monetary damages against him in his official capacity for lack of subject matter jurisdiction. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citations omitted).

         The defendant also moves to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that the plaintiff fails to otherwise state facts that would support a claim for monetary damages as a matter of law. Motions to dismiss under Rule 12(b)(6) are appropriate only where the plaintiff s complaint fails to state a claim upon which relief can be granted. Federal pleading rules require only "a short and plain statement of the claim" showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a). As the Supreme Court has emphasized, Rule 8 does not require "heightened fact pleading of specifics," Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1975 (2007), or "detailed factual allegations." Ashcroft v. Icrbal, 129 S.Ct. 1937, 1949 (2009). However, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do." .Id. (quoting Twomblv, 127 S.Ct. at 1965). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (alteration in original).

         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iabal, 129 S.Ct. at 1949 (quoting Twombly, 127 S.Ct. at 1965). "When considering a motion to dismiss, the court accepts as true the well-pled factual allegations in the complaint, and construes them in the light most favorable to the plaintiff." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citation omitted). However, courts are not bound to accept as true" [t ] hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," or legal conclusions couched as factual assertions. Iabal, 129 S.Ct. at 1949; see Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011) ("[P]laintiffs must allege facts that support the elements of a cause of action in order to make out a valid claim") (citation omitted).

         The plaintiff proceeds pro se in this case. Courts construe pleadings filed by pro se litigants under a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 92 S.Ct. 594, 596 (1972) (per curiam); see also Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) ("A document filed pro se is 'to be liberally construed[.]'") (quoting Estelle v. Gamble, 97 S.Ct. 285, 292 (1976)). Nevertheless, "pro se parties must still brief the issues and reasonably comply with [federal procedural rules]." Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995)(citations omitted).

         III. Discussion

         A. Eleventh Amendment Official Immunity

         Warden Herrera contends that he is entitled to immunity under the Eleventh Amendment from Collins's claim against him in his official capacity as a state employee.[12] Unless expressly waived, the Eleventh Amendment bars an action in federal court by a citizen of a state against his or her own state, including a state agency. See Martinez v. Texas Dep't of Criminal Justice, 300 F.3d 567, 574 (5th Cir. 2002) . As a state agency, TDCJ is immune from a suit for money damages under the Eleventh Amendment. See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). The Eleventh Amendment also bars a recovery of money damages under 42 U.S.C. § 1983 from state employees in their official capacity. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2001); Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). The court will therefore grant the Defendant's Motion to dismiss Collins's request for monetary damages against him in his official capacity.[13]

         B. Physical Injury Requirement:

         Warden Herrera also moves to dismiss Collins's claim for monetary damages because he has not alleged facts showing that he suffered a physical injury as a result of the complained of conditions of his confinement.[14] The Prison Litigation Reform Act ("PLRA"), which governs this case, precludes a federal civil action by a prisoner for "mental or emotional injury" without a showing of physical injury. 42 U.S.C. § l997e(e). The Fifth Circuit has held that this restriction "applies to all federal civil actions" filed by prisoners, "making compensatory damages for mental or emotional injuries non-recoverable, absent physical injury." Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005).

         To the extent that Collins fears that he may contract cancer in the future as the result of his exposure to arsenic, the Fifth Circuit has concluded that psychological distress based on speculation that medical care may be necessary in the future due to exposure to a hazardous substance is not sufficient to satisfy the physical injury requirement found in the PLRA and will not support a prisoner's claim for compensatory damages. See Herman v. Holiday, 238 F.3d 660, 666 (5th Cir. 2001) (stating that "fear of contracting a future illness" as the result of exposure to asbestos, without an accompanying physical injury, was insufficient to allow a claim of compensatory damages under § 1997e(e)); see also Hawkins v. Trents Flying Syc, 45 Fed.Appx. 325, 2002 WL 1899587, at *1 (5th Cir. 2002) (per curiam) (dismissing a complaint for monetary damages filed in connection with the aerial application of pesticides near the plaintiff's prison unit).

         The only other injury that Collins identifies in his pleadings are the sores on his skin, which he claims are the result of his exposure to a build up of arsenic in the pipes at the Pack Unit.[15]Collins admits, however, that he has not received any medical diagnosis that arsenic is the cause of his sores.[16] Although Collins has provided a more definite statement of his claims and numerous amended or supplemental pleadings, none of these submissions contain facts establishing that his skin condition is the result of exposure to arsenic or any failure on the part of prison officials to replace the pipes at the Pack Unit following the installation of an upgraded water filtration system in 2017. For example, in a grievance submitted as an exhibit to one of his supplemental complaints Collins blames his skin condition on high levels of calcium in the water supply.[17] Likewise, in support of an amended complaint Collins provides an unsworn affidavit from another prisoner at the Pack Unit, who states that he has been tested for "scabies" and treated with antibiotics for itchy sores similar to the ones described by Collins, but he makes no mention of a diagnosis that attributes his condition to arsenic.[18] Another supplemental complaint provided by Collins reflects that he continues to receive medical care for a rash from the Dermatology Clinic at the University of Texas Medical Branch ("UTMB") Hospital in Galveston, but there has been no diagnosis linking his skin condition to lingering amounts of arsenic in the pipes at the Pack Unit facility.[19] In Cole the court found that the levels of arsenic in the Pack Unit's water supply were "low enough that scientists would not expect them to cause any non-cancerous health effects."[20]The district court noted, moreover, that there was "no evidence in the record that the water at the Pack Unit poses a health risk if used for showering."[21]

         After considering all of his submissions, the court concludes that Collins has not alleged sufficient facts, either in his Complaint, his more definite statement, or any of his proposed amended or supplemental pleadings, showing that he has suffered a physical injury as the result of any failure on the part of Pack Unit officials to replace the water pipes. Therefore, Collins's claim for compensatory damages is precluded by § l997e(e).

         C. Qualified Immunity

         Warden Herrera also moves to dismiss the claim for monetary damages against him in his individual or personal capacity.[22] He argues that he is entitled to qualified immunity from suit because Collins has not alleged facts establishing that he acted with the requisite ...


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