United States District Court, S.D. Texas, Corpus Christi Division
JOHN T. PATRICK, Plaintiff,
JENNIFER HIRBST, et al, Defendants.
MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN
CLAIMS AND TO RETAIN CASE
B. Libby, United States Magistrate Judge.
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 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.
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
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.
PROCEDURAL BACKGROUND AND PLAINTIFF'S
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
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.
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.
Spears 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.
First Series of Events
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.
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.
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.
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.
Second Series of Events
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.
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 ...