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Felan v. Fernandez

United States District Court, W.D. Texas, San Antonio Division

August 12, 2019




         On this date, the Court considered the status of this case. Plaintiff filed this action against Defendants Michael Fernandez, Gilberto Trevino, Jr., FNU Palojas, Juan Macias, and Sheriff Javier Salazar. Plaintiff alleges that on April 4 or 5, 2017, Deputy Fernandez punched him in the face when Felan objected to being ordered to “rack up” without a shower; Deputy Trevino failed to intervene or assist Felan; on April 28, 2017, Corporal Palojas sexually assaulted him by “grabbing [his] right butox [sic]” and Deputy Macias searched his cell to harass him, allowed his superior to sexually assault Plaintiff, and kicked a tray slot door shut, injuring Plaintiff's hand. Plaintiff also sued Bexar County Sheriff Salazar contending he is responsible for the acts of his subordinates The Magistrate Judge directed service as to all Defendants, but only Defendants Salazar and Macias were successfully served initially.

         Defendants Salazar and Macias filed motions to dismiss. Docket nos. 12 & 19. On April 4, 2018, this Court granted the motions to dismiss and dismissed the claims against these Defendants without prejudice. Docket no. 22. As to the claims against Macias, the Court dismissed for improper service, but also noted that Plaintiff's allegations failed to state a claim upon which relief could be granted. The Court noted that Plaintiff's allegation that Macias searched his cell to harass him was speculative and conclusory, and Plaintiff failed to allege how he was injured by it. With regard to the claim that Macias kicked a tray slot door shut, Plaintiff failed to allege facts that would support a claim that Macias “purposely or knowingly intended to injure Plaintiff by kicking the tray slot door shut” rather than acting with mere negligence. The Court further noted that Plaintiff failed to allege how his hand was injured and the extent of the injury. Last, although Plaintiff alleged that Macias allowed his supervisor Palojas to sexually assault Plaintiff, he failed to allege facts in support of this claim, such as facts alleging that Macias was on notice of the danger and was deliberately indifferent to it. Thus, the Court gave Plaintiff notice that his claims were insufficient to plausibly state a claim for relief, but gave Plaintiff leave to file an amended complaint to attempt to address the deficiencies identified by the Court. Docket no. 22.

         The Court also noted that attempts to serve the remaining three defendants had proved unsuccessful, and ordered that, after Plaintiff filed his amended complaint, the Clerk should request the Marshal to personally serve the defendants with a copy of the amended complaint. However, instead of filing an amended complaint, Plaintiff filed an interlocutory appeal with the Fifth Circuit. Docket no. 23. To ensure that the case continued to progress as to the other defendants, the Court ordered the Clerk of Court to request the U.S. Marshal to personally serve Defendants Fernandez, Trevino, and Palojas with a copy of Plaintiff's Original Complaint and a summons. Docket no. 25. On July 26, the Marshal returned the summons unexecuted because the certified mail had been returned. Docket no. 29. On August 13, the Fifth Circuit dismissed Plaintiff's appeal. Docket no. 30. On August 20, the Marshal again returned the summons on Palojas unexecuted, noting that Captain Guerra had stated that no one by the name of Palojas worked at the Bexar County Sheriff's Office. Docket no. 31.

         On August 20, 2018, Plaintiff filed an Amended Complaint. On September 10, the Marshal returned service on Trevino unexecuted. Docket no. 35. On September 19, the Marshal returned service on Michael Fernandez, noting that he had been successfully served on September 14, 2018. Docket no. 36. On September 21, the Magistrate Judge ordered counsel for Bexar County to provide service information for Corporal Trevino. Docket no. 37.

         On October 4, Defendant Michael Fernandez filed an answer and motion to dismiss. Docket nos. 40, 41. On October 8, counsel for Bexar County identified defendant Trevino and agreed to accept service on his behalf. Docket no. 42. The Magistrate Judge thereafter ordered service on Trevino via counsel, and Defendant Trevino was served on October 24, 2018. Docket nos. 43, 48. Defendant Trevino filed an answer on November 19, 2018. Docket no. 50. The Magistrate Judge then entered a scheduling order, with dispositive motions due by May 15, 2019. Docket no. 51.

         On March 14, 2019, this Court denied Defendant Fernandez's motion to dismiss the claims against him, noting that Plaintiff had adequately stated a claim. Docket no. 65. The Court also denied Plaintiff's motion for discovery, noting that Plaintiff should serve discovery on the Defendants rather than filing it with the Court, unless he was filing a motion to compel. Id. In response, Plaintiff filed “Plaintiff's Disposition and Plaintiff's First Set of Interrogatories to Defendants Michael Fernandez and Corporal Gilbert Trevino, Jr.” Docket no. 67. This included a statement of the facts concerning his claims against Fernandez and Trevino and also included interrogatories directed at these two Defendants. The filing is made under penalty of perjury pursuant to 28 U.S.C. § 1746.

         On May 15, 2019, Defendants Fernandez and Trevino moved for summary judgment. Docket no. 68. In support, each Defendant filed his own Affidavit and the Facility Incident Reports that they had submitted. The motion for summary judgment indicates that it was served on Plaintiff at the Stringfellow Unit in Rosharon, Texas. Plaintiff has not responded to the motion. On August 1, Plaintiff filed a Motion to Stay, noting that he will be released from custody on October 23, 2019, and asking for a stay of ninety days after his release to find an attorney. He also filed a letter indicating that Defendants did not respond to his interrogatories and instead filed a motion for summary judgment.


         A. Defendants Fernandez and Trevino's Motion for Summary Judgment

         The Court will deny the motion for summary judgment. Although Plaintiff has not responded to the motion, his verified “Disposition” alleges sufficient facts to create a material issue of fact on his excessive force claim. Defendants contend that, in response to Deputy Fernandez's instructions to “rack up, ” Plaintiff refused and “bladed himself toward Deputy Fernandez (i.e., he leaned in toward Deputy Fernandez), putting up his hands, clenching his fists, and stepping toward Deputy Fernandez in a threatening manner” while “less than a few feet away.” Docket no. 68 at 4. Defendants contend that, because of the perceived immediate threat, Fernandez delivered one quick strike with his hand to Plaintiff's face, and Plaintiff fell to the floor. Defendants further assert that Fernandez attempted to place Plaintiff in hand restraints, but Felan continued to resist, and as a result Fernandez “then delivered three to four knee strikes to the side of Felan's body in an effort to get him to comply.” Id. at 4-5.

         In contrast, Plaintiff asserts that Defendant Fernandez “struck Plaintiff in the face and head area several times while inmate did not resist the assault.” Plaintiff further asserts that he was not the aggressor, that Fernandez “took it upon himself to use violence as a force to subdue plaintiff for refusing to rack up back to plaintiff's cell, ” and that Plaintiff sustained injuries, including “a gash over right eyes, several facial and head bumps and bruises, and busted lips.” Docket no. 67.

         A Court must accept the Plaintiff's version of the facts at summary judgment, and currently no record evidence, such as a videotape of the incident, clearly contradicts Plaintiff's allegations. See Waddleston v. Rodriguez, 750 Fed.Appx. 248');">750 Fed.Appx. 248, 253-54 (5th Cir. 2018) (court must accept the plaintiff's version of the facts at summary judgment, unless record evidence such as a videotape clearly contradicts the plaintiff's allegations). Thus, material fact issues remain that preclude summary judgment on this claim.

         B. ...

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