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Horttor v. Livingston

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

May 29, 2019

JOHNNY HORTTOR, (TDCJ No. 02042196) Plaintiff,
v.
BRAD LIVINGSTON, et al., Defendants.

          OPINION AND ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. §§ 1915A(B) AND UNDER 28 U.S.C. SS 1915(E)(2)(B) [1]

          E. SCOTT FROST, UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court for review of pro se plaintiff Johnny Horttor's case under the screening provisions of 28 U.S.C. §§ 1915A and 1915(e)(2)(B). Both of these provisions 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 claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. Based upon review of the live pleading and applicable law, the Court finds that some defendants and claims must be dismissed under these provisions, and that Horttor will be allowed to obtain service of process on the remaining claims against some defendants.

         I. BACKGROUND[2]

         Horttor, an inmate at the Texas Department of Criminal Justice's ("TDCJ") Neal Unit, initially filed a civil-rights complaint asserting claims arising from the medical treatment provided to him for Hepatitis C while he was housed at the TDCJ Byrd Unit. (Compl. doc. 1.) After Horttor filed several different partial amended and supplemental pleadings, the Court directed him to file all of his claims into one final amended complaint. (Order, doc. 19.) Although Horttor then submitted a form civil-rights complaint with attachment pages as a "Final Amended Complaint," as he subsequently again filed several partial supplements/amendments to that final amended complaint (docs. 22, 23, and 52), the Court again directed Horttor to file a second amended complaint to include all of his facts, claims, and causes of action into one pleading. (Order, doc. 57.) Horttor has now filed a form civil-rights complaint seeking relief for violation of his rights under the Eighth Amendment and other forms of relief as a second amended complaint with attachments pages, collectively now referred to as "SAC." (Docs. 58 and 58-1.)

         The SAC consists of a completed form civil rights complaint, portions of handwritten documents re-submitted by Horttor, and copies of medical record and grievance exhibits. SAC (docs. 58, 58-1.) Within the SAC, the Court discerns that Horttor makes claims against the following fourteen defendants: Brad Livingston and Bryan Collier, Executive Directors of TDCJ; Dr. Talley and Dr. David Callender, University of Texas Medical Branch; Dr. Benjamin Leeah, Texas Tech University Health Sciences; Dr. D'Cunha; Neal Unit officials-David Base, Suzanne Tenorio, and Kelly Swanson; Montford Unit provider Patricia Aristimuno; In Yang Wilson, Physician's Assistant, Ware Unit[3]; L. Gonzales, Warden, Ware Unit; Todd Mitchell, President, Texas Tech University Health Science Center; and the TDCJ Health Services Division 2 Director. SAC (docs. 58, 58-1.)

         In this pleading, Horttor alleges that a TDCJ policy exists that "when offenders qualify for treatment they are placed on a waiting list for [the] cost of $85, 000.00 to be treated for the 'Hep C virus Harvoni treatment." SAC (doc. 58-1, at 10.) Horttor seeks injunctive relief in the form of an order providing him with Hepatitis C treatment consisting of the medications Harvoni/Solvadi, a more vigorous treatment provided by new doctors, along with providing him a liver transplant. SAC (doc. 58, at 4 § VI.) He also seeks monetary damages for the pain and suffering he has sustained due to the alleged delay in treatment for Hepatitis C, and he purports to seek relief on behalf of the "thousands of other offenders who have Hep C whose [sic] being subjected to the waiting list." Id.

         II. PRELIMINARY SCREENING[4]

         Plaintiff is an inmate who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § l9l5A(b) 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 claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.

         A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A claim that falls under the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994), "is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question." Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996). A complaint fails to state a claim upon which relief may be granted when it fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To avoid dismissal for failure to state a claim, plaintiffs must allege facts sufficient to "raise the right to relief above the speculative level." Twombly, 550 U.S. at 555. Mere "labels and conclusions" nor "a formulaic recitation of the elements of a cause of action" suffice to state a claim upon which relief may be granted. Id.

         III. ANALYSIS

         A. Dismissal of Claims Asserted on Behalf of other Inmates.

         As noted above, Horttor refers in his pleading to claims on behalf of "thousands" of other inmates suffering from Hepatitis C who may also not being given what Horttor believes is the appropriate medical treatment. Such pleading comes after the Court already denied Horttor's motions to certify a class action and to reconsider the Court's denial of class certification. (Docs. 13, 56.) Horttor is the only party plaintiff to this case, and he is proceeding pro se. Horttor does not claim that he is a licensed attorney, and thus he is not eligible to represent another pro se party in federal court. Although 28 U.S.C. § 1654 authorizes a litigant to proceed in federal court as his or her own counsel, individuals who do not hold a law license may not represent other parties even on a next-friend basis. See Martin v. City of Alexandria, 198 Fed.Appx. 344, 346 (5th Cir. 2006) (citing Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) ("[B]ecause pro se means to appear for one's self, aperson may not appear on another person's behalf in the other's cause") (emphasis in original)); see also Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978) ("[I]ndividuals not licensed to practice law by the state many not use the 'next friend' device as an artifice for the unauthorized practice of law.") Thus, Horttor is not authorized to assert claims on behalf of other unknown and unidentified plaintiffs. Any claim by Horttor for relief on behalf of thousands of other persons must be dismissed.

         B. Dismissal of Some Claims Against Executive Defendants

         Plaintiff identifies Brad Livingston and Bryan Collier as the Executive Directors of TDCJ, and also lists as a defendant the Health Service Division 2 Director. SAC (doc. 58, at 1, 3.) A claim of liability for violation of rights under 42 U.S.C. § 1983, [5] regardless of the particular constitutional theory, must be based upon personal responsibility. See Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986); Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir. 1980); Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Horttor writes that "Livingston was Director when the original suit was filed, Bryan Collier is present Exec. Director. Both are in charge and responsible for policies, operations and anything else in TDCJ." SAC (doc. 58, at 3.) Later in the pleading, Horttor writes "Brad Livingston, Bryan Collier, both Executive Directors of TDCJ should be held accountable because they oversee all the policies in the TDCJ." SAC (doc. 58, at 7.)

         Review of these particular allegations against Livingston and Collier reveal that they do not contain factual allegations of personal involvement or knowledge by Livingston or Collier in any of the underlying incidents included in Horttor's claims against other medical officials. Thus, it appears Horttor has named these two individuals on these claims only because of their roles as executives over the Texas criminal justice system. The Fifth Circuit has stated that lawsuits against supervisory personnel based on their positions of authority are claims of liability under the doctrine of respondeat superior, which does not generally apply in § 1983 cases. See Alton v. Texas A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999) ("Only the direct acts of omissions of government officials, not the acts of subordinates, will give rise to individual liability under § 1983") (citation omitted); Thompkins v. Belt,828 F.2d 298, 303 (5th Cir. 1987) ("Under section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability")(citations omitted); see also Williams v. Luna,909 F.2d 121, 123 (5th Cir. 1990). Thus, to ...


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