United States District Court, N.D. Texas, Fort Worth Division
RONNIE ROBERT MOLINA (Reg. No. 35504-177) Plaintiff,
WISE COUNTY, TEXAS, et al. Defendants.
ORDER RESOLVING MOTION FOR RULING AND SECOND OPINION
AND ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. §
R. MEANS UNITED STATES DISTRICT JUDGE.
civil suit, pro-se inmate/plaintiff Ronnie Robert Molina
asserted claims against several Wise County jail officials,
arising from their alleged failure to protect him from a
sexual assault by a fellow inmate, even though he had
informed them of incidents with, and threats from, the fellow
inmate on several instances prior to the assault. (Compl.
(doc. 3) at 4-5.) In an opinion and order of partial
dismissal entered on February 21, 2019, the Court dismissed
all of Plaintiff's claims against any defendant under the
Federal Tort Claims Act, the Texas Tort Claims Act, and the
Prison Rape Elimination Act (including all claims against
Sheriff Akin and John Waggoner Polheums Jr.), and all of
Plaintiff's remaining claims against Wise County, Texas.
(Op. and Order (doc. 17 at 1-14.) The Court allowed service
of Molina's claims against Sergeant Thomas, Officer
Larson, Officer Roberts, Detective Mayo, and unnamed officer
“B”. (Id. at 14.) Four of those
defendants have appeared by the filing of a First Amended
Answer: James Mayo, Joseph Thomas, Lance Larson, and Jennifer
Roberts. (Answer (doc. 34).)
MOTION FOR RULING AND FOR LEAVE TO AMEND PROCESS
pending is Molina's motion for ruling and motion for
leave to amend process, along with a completed summons for a
second and different “Officer Roberts.” (Docs.
32, 33.) By the motion, Molina points to portions of the
complaint and more definite statement (“MDS”)
that show that he actually identified two separate persons as
defendants named Officer Roberts, and he asks the Court to
authorize the issuance of summons and allow service upon the
second Roberts defendant. (Mot. (doc. 33) at 1-2.)
review of the complaint and MDS, it appears that Molina has
listed claims against two separate persons named Officer
Roberts. The first Roberts is frequently referred to as a
female in Molina's more definite statement. (MDS (doc.
16) at 6.) This Roberts appears to be Jennifer Roberts, who
has answered the constitutional claims arising from the
events that took place prior to the May 22 alleged assault.
(First Am. Answer (doc. 34).) Further review confirms,
however, that Molina referred to a second Roberts in his
complaint, Molina wrote: “On Sunday, May 22, 2016, I
made a Prison Rape Elimination Act of 2003 declaration to a
second C.O. Roberts.” (Compl. (doc. 3) at 4.) In the
MDS he also wrote: “[w]hen I told C.O. Roberts [on May
22, 2016] the truth that Rodriguez had been sexually
harassing me, and that I had already told C.O. Larson, C.O.
Roberts and Sgt. Thomas, Roberts did not begin a P.R.E.A.
investigation that would include a medical exam.” (MDS
(doc. 16) at 9-10.) As Molina points out in his motion for
ruling, he also wrote in the margins of the MDS the words:
“I would like to include C.O. Roberts as a defendant.
There are two C.O. Roberts [sic].” (MDS (doc. 16) at
left margin.) Upon review, the Court acknowledges that it
failed to address Molina's claims against this second
Officer Roberts in the prior opinion and order.
REVIEW UNDER 28 U.S.C. § 1915(e)(2)(B)
turning to review of Molina's claim against the second
Roberts defendant, the Court observes that the only assertion
against this defendant Roberts is a failure to initiate a
Prison Rape Elimination Act (“PREA”)
investigation. As addressed in the prior opinion and order,
although the PREA was drafted to “address the problem
of rape in prison, authorize grant money, and create a
commission to study the issue[, ] it does not give prisoners
any specific rights.” Johnson v. Rupert, No.
6:11-cv-446, 2014 WL 6969202 at *5 (E.D. Tex. Dec. 9, 2014)
(citing Chinnici v. Edwards, No.1:07-cv-229, 2008 WL
3851294 at *3 (D. Vt. Aug. 13, 2008). Rather, “courts
have held that nothing in the [PREA] suggests that Congress
intended to create a private right of action for inmates to
sue prison officials for noncompliance with the
[PREA].” Id. (citing De'Lonta v.
Clarke, No.7:11-cv-483, 2012 WL 4458648 (W.D. Va. Sep.
11, 2012) (collecting cases)). The Fifth Circuit has
expressly found that the PREA does not create a private right
of action. See Krieg v. Steele, 599 Fed.Appx. 231, 232-33
(5th Cir. 2015). Following this circuit precedent, another
district court explained that “[e]ven if the
[officers'] conduct did violate that statute, which is an
issue the undersigned need not and does not reach,
Plaintiff's claim would not be actionable because the
PREA simply does not establish a private cause of
action.” Harold v. Goff, No.16-13041, 2016 WL
8137642, at *4 (E.D. La. Dec. 1, 2016) (citing
Krieg, 599 Fed.Appx. at 232) (other citations
omitted)), rep and rec. adopted, 2017 WL 413082
(E.D. La. Jan. 30, 2017)).
the PREA does not create or provide a private cause of
action, Molina's claims for relief against the second
Officer Roberts under the provisions of the PREA must be
dismissed under authority of 28 U.S.C. § 1915(e)(2)(B)
for failure to state a claim upon which relief may be
Molina's Motion for Ruling and Motion for Leave to Amend
Process (doc. 33) is DENIED.
all of Molina's claims against the second Correctional
Officer Roberts are DISMISSED WITH PREJUDICE
under authority of 28 U.S.C. § 1915(e)(2)(B)(ii).
the Summons in a Civil Action issued by the clerk of Court on
April 18, 2019 (doc. 32), for service upon the second Officer
Roberts is QUASHED and of no force and
effect. All claims against the second ...