United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO DENY ASSISTANT
WARDEN COREY FURR'S MOTION TO DISMISS
B. Libby United States Magistrate Judge
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.
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.
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.
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.
Spears 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).
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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 ...