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Hoffman v. Muro

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

July 31, 2019

FRED HOFFMAN, III, Plaintiff,
v.
JAVIER MURO, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION TO DENY ASSISTANT WARDEN COREY FURR'S MOTION TO DISMISS

          Jason B. Libby United States Magistrate Judge

         Plaintiff Fred Hoffman is an inmate appearing pro se and in forma pauperis. In this prisoner civil rights action filed pursuant to 42 U.S.C. § 1983, Plaintiff primarily claims that Defendants have engaged in a retaliatory campaign of harassment against him. Pending before the Court is a Motion to Dismiss filed by Assistant Warden Corey Furr. (D.E. 21). For the reasons stated herein, it is respectfully recommended that the Court DENY this motion.

         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. BACKGROUND

         Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). 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, naming the following officials as defendants: (1) Sergeant Javier Muro; (2) Lieutenant Christi L. Garcia; (3) Sergeant Cinthia Guzman; (4) Veronica Inmon, Classification Case Manager (CCM) II; (5) Corey Furr, Assistant Warden; (6) Lieutenant John C. Gonzales; (7) Officer Sonia Gutierrez; and (8) Major James Thompson. Despite the various conclusory labels that Plaintiff has attached to his claims, he primarily claims that Defendants have engaged in a retaliatory campaign of harassment against him. Plaintiff further alleges that Defendants violated his constitutional rights in many other aspects. Plaintiff seeks declaratory and injunctive relief in which he generally requests the cessation of all unconstitutional or unlawful conduct committed by Defendants against him.

         A Spears[1] hearing was held on October 30, 2018. On December 13, 2018, the undersigned issued a Memorandum and Recommendation (M&R), recommending that the Court: (1) retain Plaintiff's retaliation claim against Assistant Warden Furr in his official capacity for injunctive relief; and (2) dismiss Plaintiff's remaining claims against all Defendants for failure to state a claim and/or as frivolous. (D.E. 10). The undersigned ordered service of Plaintiff's complaint on Assistant Warden Furr. (D.E. 9). On January 29, 2019, Assistant Warden Furr filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (D.E. 21). Plaintiff subsequently filed his response to Assistant Warden Furr's motion. (D.E. 31).

         III. PLAINTIFF'S ALLEGATIONS

         The following representations relevant to Plaintiff's retaliation claim were made either in Plaintiff's original complaint (D.E. 1) or at the Spears hearing: Plaintiff is 42 years old. In May 2011, he entered into TDCJ custody and was initially housed at the Byrd Unit. Prior to his transfer into TDCJ custody, Plaintiff was housed in an Oklahoma federal prison pursuant to a conviction out of the Western District of Oklahoma. Plaintiff arrived at the McConnell Unit sometime later in May 2011.

         Prior to his incarceration, Plaintiff was diagnosed with various chronic seizure disorders, diabetes, and Post-Traumatic Stress Disorder (PTSD). He receives medications for each of these conditions. Plaintiff, in prison litigation terms, is known as a writ writer. He routinely files lawsuits or otherwise assists other inmates in preparing and submitting grievances, civil rights actions, or habeas corpus actions.

         For example, in June 2016, Sergeant Guzman caught a prisoner from Plaintiff's housing section masturbating. According to Plaintiff, Sergeant Guzman punished every prisoner in Plaintiff's housing section by only allowing them ice water on two occasions over a three-day period despite the extreme heat. Plaintiff drafted and submitted over thirty grievances against Sergeant Guzman on behalf of himself and other prisoners to complain about the limited access to cold water. The prisoners ultimately received full access to cold water, and Sergeant Guzman was reportedly removed from Plaintiff's housing section.

         Plaintiff alleges Sergeant Guzman told Plaintiff he had “rocked the boat” in helping other offenders file grievances and began to assist other named defendants in conducting a retaliatory campaign of harassment against Plaintiff. Plaintiff contends that Sergeant Guzman retaliated by initiating false disciplinary cases against Plaintiff and denying Plaintiff the ability to present evidence on his behalf at his disciplinary hearings.

         Sergeant Muro, who replaced Sergeant Guzman in Plaintiff's housing section, is alleged to have retaliated against Plaintiff for filing grievances against Sergeant Guzman by also limiting Plaintiff and other inmates in his housing section access to cold water twice over another three-day period of extreme heat. Sergeant Guzman told Plaintiff not to mess around with his girlfriend, who happened to be Sergeant Cinthia Guzman. Nevertheless, Plaintiff assisted other prisoners in grieving this issue. Plaintiff alleges Sergeant Muro threatened Plaintiff with a disciplinary case for every grievance filed against him. Plaintiff persisted and assisted twenty prisoners in filing their grievances.

         Plaintiff, who practices the Jewish faith, alleges Sergeant Muro retaliated by restraining Plaintiff's hands and forcibly moving Plaintiff to the barber shop where Sergeant Muro directed the prison barber to shave off Plaintiff's religious beard. Sergeant Muro reportedly told Plaintiff that he was “going to learn to shut [his] mouth.”

         Plaintiff further states that Sergeant Muro continued his retaliatory campaign of harassment as follows: (1) while Plaintiff was transported to the Beeville Hospital to be treated for a stroke, Sergeant Muro entered Plaintiff's cell and threw away copies of Plaintiff's exhibits and witness affidavits that incriminated Sergeant Muro and other defendants; (2) Sergeant Muro caused damage to Plaintiff's typewriter; (3) Sergeant Muro denied Plaintiff a medical lay-in which resulted in a nine-month delay in Plaintiff having his glasses fixed; (4) on November 29, 2016, Sergeant Muro denied Plaintiff two scheduled legal visits, resulting in a denial of access to courts. According to Plaintiff, the exhibits confiscated consisted of cases brought in the past by inmates against Sergeant Muro. Sergeant Muro's actions prevented Plaintiff from using these exhibits against Sergeant Muro in state court.

         With regard to Lt. Garcia, Plaintiff alleges that she participated in the retaliatory campaign of harassment against Plaintiff by: (1) refusing to investigate certain aspects of his ombudsman complaints against Sergeant Muro and other defendants; (2) bringing false disciplinary cases against Plaintiff; (3) improperly finding Plaintiff guilty in disciplinary cases where she had presided as the disciplinary hearing officer (DHO); and (4) denying Plaintiff a diabetic snack, a religious meal, and insulin.

         Plaintiff alleges that CCM Inmon and Major Thompson, in their positions on the Unit Classification Committee (UCC), participated in the retaliatory campaign of harassment against Plaintiff by denying him an upgrade in his custody classification status from G4 to G2, despite the recommendations of TDCJ and Huntsville staff for the upgrade. During the hearing on Plaintiff's classification status, Plaintiff alleges CCM Inmon and Major Thompson harassed Plaintiff about his religious beard being too long and his filing of grievances.

         Plaintiff claims that Assistant Warden Furr was placed on notice of the abusive and retaliatory behavior committed by other defendants through I-60 complaints, letters, his handling of numerous Step 1 grievances, and conversations with Plaintiff and his family. Plaintiff alleges Assistant Warden Furr participated in the retaliatory campaign of harassment against Plaintiff by: (1) taking no action to correct Defendants' behavior; (2) signing various Step 1 grievances without providing an answer; (3) failing to investigate the assault that ...


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