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Patrick v. Hirbst

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

May 20, 2019

JOHN T. PATRICK, Plaintiff,
v.
JENNIFER HIRBST, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN CLAIMS AND TO RETAIN CASE

          Jason B. Libby, United States Magistrate Judge.

         Plaintiff John T. Patrick 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: (1) a retaliation claim against Officer Francisco Olvera in his individual capacity; (2) a retaliation claim against Warden Philip Sifuentes in his official capacity for injunctive relief only; and (3) equal protection claims against Captains Jennifer Herbst[1] and Ray Guevara in their individual capacities. Accordingly, it is respectfully recommended that these claims be RETAINED. The undersigned will order service on these defendants.

         The undersigned further recommends that Plaintiff's claims for money damages against all Defendants in their official capacities be DISMISSED as barred by the Eleventh Amendment. Lastly, the undersigned recommends that Plaintiff's claims against the remaining defendants be DISMISSED 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). Plaintiff was convicted in Harris County for aggravated robbery and was sentenced on July 27, 2016 to thirty years in prison. Plaintiff's claims in this lawsuit occurred in connection with his current assignment to the McConnell Unit in Beeville, Texas.

         On October 4, 2018, Plaintiff filed his original complaint against the following McConnell Unit officials: (1) Captain Jennifer Herbst; (2) Captain Ray Guevara; (3) Sergeant Andrew H. Nino; (4) Sergeant Michelle D. Esparza; and (5) Officer Francisco Olvera. Plaintiff claims that Defendants have harassed him through acts of retaliation, violated his due process rights, and discriminated against him on the basis of race. In addition to monetary relief, Plaintiff seeks injunctive relief in the form of: (1) preventing any further retaliatory acts; and (2) restoring Plaintiff's line class and good-time credits.

         Plaintiff's Original Complaint was not completed on a Prisoner Civil Rights Complaint Form. Thus, on February 27, 2019, the undersigned directed Plaintiff to complete the form complaint and return it to the Court on or before March 15, 2019. (D.E. 8). On March 11, 2019, Plaintiff filed his completed form complaint, which was docketed as his Supplemental Complaint. (D.E. 14).

         A Spears[2] hearing was conducted on March 29, 2019. The following representations were made either at the Spears hearing or in Plaintiff's original and Supplemental Complaints (D.E. 1, 14): Plaintiff, an African American male, arrived at the McConnell Unit on March 28, 2018. Plaintiff identifies two series of events which, he believes, constitute a campaign of retaliatory harassment against him as well as violations of his due process rights.

         A. First Series of Events

         In April 2018, Plaintiff discussed with Sgt. Nino, who was an officer at that time, that he had a lay-in for a dental appointment that morning. However, Sgt. Nino left Plaintiff's section and did not return in time to perform a proper ingress/egress and allow Plaintiff to leave at the appropriate time to make his dental appointment. After exchanging words, Plaintiff told Sgt. Nino that he may file a grievance complaint against him. Plaintiff alleges Sgt. Nino responded by threatening Plaintiff and searching his cell. Sgt. Nino found no contraband when he searched Plaintiff's cell. Plaintiff subsequently filed a grievance against Sgt. Nino, complaining that Sgt. Nino did not perform the ingress/egress for Plaintiff and subsequently retaliated against Plaintiff by searching his cell. Plaintiff's grievance was rejected.

         Plaintiff alleges Sgt. Nino could not retaliate because Nino was working in a different section of the unit from Plaintiff. Due to his disciplinary conviction on November 5, 2018, which is discussed below, Plaintiff lost his job and was reassigned to work as a shower janitor by Sgt. Nino who had become a sergeant by that time. According to Plaintiff, Sgt. Nino began to harass Plaintiff, causing Plaintiff to avoid performing his janitor duties at the buildings to which Sgt. Nino was assigned.

         In early January of 2019, Capt. Herbst took over for another supervisor in Plaintiff's building. According to Plaintiff, the previous captain, an African American male, was not biased against inmates and would listen to their complaints against prison officials. On January 4, 2019, Sgt. Nino ordered Officer Rodriguez to approach Plaintiff in the hallway while he was around several other inmates. Officer Rodriguez asked to see Plaintiff's ID card but not that of the other inmates. Plaintiff followed Officer Rodriguez back to another building where Sgt. Nino was working. Sgt. Nino asked Plaintiff what he was doing in his building. Sgt. Nino acted belligerently when Plaintiff asked him why Officer Rodriguez took his ID card. Plaintiff told Sgt. Nino that he would bring this issue to the warden's attention. Sgt. Nino directed Officer Rodriguez to bring a disciplinary case against Plaintiff for being out of place and not going directly to his job assignment. Sgt. Nino reportedly tried to coerce another officer to write a disciplinary case against Plaintiff, but that officer refused to do so.

         On January 17 and 18, 2019, Plaintiff appeared in a disciplinary hearing and was represented by counsel substitute. Captain Guevara was the disciplinary hearing officer (DHO). Plaintiff maintains Capt. Guevara denied Plaintiff a fair and impartial hearing and did allow Plaintiff to call witnesses and ask certain questions. After finding Plaintiff guilty of being out of place, Capt. Guevara imposed the following severe punishments: (1) a reduction in line class from S4 to L1; (2) thirty days loss of good time credits; and (3) various forty-five-day restrictions. Plaintiff's administrative appeals were denied, and his disciplinary punishment otherwise has not been overturned.

         B. Second Series of Events

         Plaintiff alleges that on November 3, 2018, when Plaintiff was going to work, Officer Olvera told Plaintiff that he found Plaintiff to be sexually attractive. Plaintiff verbally complained to Sgt. Esparza that Officer Olvera had sexually harassed him. Sgt. Esparza, however, did not take any action to assist Plaintiff with his sexual harassment allegation.

         On November 4, 2018, Plaintiff left his cup in the dining facility, and the cup was picked up by someone else. Officer Bolivar authorized Plaintiff to go to a different building to retrieve his cup. Officer Olvera saw Plaintiff and told him he was out of place. Plaintiff told Officer Olvera that Officer Bolivar had given him permission to pick up the cup. Officer Olvera asked for Plaintiff's ID and proceeded to file a disciplinary case against Plaintiff for being out of place and lying to ...


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