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Tobias v. Brown

United States District Court, S.D. Texas, Houston Division

November 6, 2019

ARCHIE TOBIAS, Plaintiff,
v.
JENNIFER BROWN, et al., Defendants.

          MEMORANDUM ON DISMISSAL

          VANESSA D. GILMORE UNITED STATES DISTRICT JUDGE

         Archie Tobias, an inmate of the Texas Department of Criminal Justice - Correctional Institutions Division, sued in June 2017, alleging civil rights violations resulting from a denial of adequate medical care; denial of access to the courts; and denial of due process. Tobias, proceeding pro se and in forma pauperis, sues Jennifer Brown; S. Schumacher; Major R. Pena; S. Mitchell; A. Mukolu; K. Beck; and John Doe Simmon.

         The threshold issue is whether Tobias's claims should be dismissed as frivolous.

         I. Tobias's Allegations

         On May 11, 2015, Tobias was transported from Bexar County Holding Center to the South Texas Intermediate Sanction Facility ("ISF"). Tobias informed ISF personnel of his various health conditions which required daily medications. Tcbias states that he suffers from congestive heart failure, complications relating to by-pass heart surgery, high blood pressure, Type II diabetes, and back injuries. Tobias complains that he arrived at the ISF on May 11, 2015, but he did not receive any medications for three days.

         On May 13, 2015, Tobias informed Lieutenant Lovinggood that he had not received any medications. Lieutenant Lovinggood escorted Tobias to the infirmary where Tobias received some medications.

         On May 16, 2015, Tobias requested to be placed on a special diet because he is diabetic. Tobias explains that members of the prison gang, Aryan Brotherhood, were responsible for distributing the food trays. The diet trays were stored on separate food carts. Tobias explains that he was placed on a special diet, but his food was tainted with spit and paint particles. He asked to be removed from the diet because prison officials were tampering with his food tray. Tobias asserts that despite being taken off of the special diet, Tobias was inexplicably placed on the diabetic diet list.

         Tobias states that on May 17, 2015, he was denied access to the courts because K. Beck denied him paper, pens, and postage. (Docket Entry No. 10, Plaintiffs More Definite Statement, p. 20). Tobias states that he had to wait until May 25, 2015, when his living area was again allowed to make purchases from the commissary. He alsc complains that he was denied access to the law library, so he was unable to pursue his appeal of his conviction, research a landlord-tenant issue, and challenge a parole revocation hearing. He further asserts that he was not allowed to purchase basic hygiene items. Though Tobias requested to be taken off the diabetic diet, he was placed on the diabetic diet on May 27, 2015.

         Tobias states that he was removed from the special diet list on June 8, 2015, and placed back on the list on June 9, 2015. When Tobias showed the tray that was tainted with paint chips, Tobias states he was labeled as a snitch. Tobias states that on June 9, 2015, he accused a white inmate of tampering with his food. Tobias asserts that the white inmate assaulted him. Following the assault, Tobias was transported to Ben Taub Hospital where he received treatment for his broken nose and skull fractures and prescribed pain medications. Upon his return to ISF, John Doe Simmon failed to issue the medications prescribed by Ben Taub Hospital. Tobias further complains that Nurse Simmon refused to issue a change of clothing, refused to clean off the dried blood, and forced Tobias to wear a bloody hospital gown. Tobias complains that S. Schumacher denied Tobias prescribed pain medications. Tobias asserts that he tried to inform Warden Brown of the problems he was having regarding medications.

         Tobias claims that on June 10, 2015, Major R. Pena told Tobias that he had instructed an inmate to assault Tobias. Tobias alleges that Majo Pena subjected Tobias to racial slurs by saying, "I'm a white boy, and you got beat down by a white boy." (Docket Entry No. 10, Plaintiffs More Definite Statement, p. 2). Tobias asserts that the defendants conspired to have Tobias assaulted.

         On June 11, 2015, Tobias was scheduled for a follow-up appointment for oral surgery at Ben Taub Hospital. Tobias states that he was released on parole and told to report to the San Antonio parole office, or he would be charged with a parole violation. Tobias states that he was forced to choose between seeking treatment at Ben Taub Hospital or receiving a parole violation.

         Tobias complains that A. Mukulu, the grievance coordinator, denied Tobias access to the grievance system. Tobias complains that he was unable to obtain a Step One Grievance form.

         Tobias seeks compensatory damages of $800, 000.00 and punitive damages of $200, 000.00.

         II. Standard of Review

         28 U.S.C. § 1915 instructs that a court "sha 1" dismiss an in forma pauperis complaint at any time, if it determines that the complaint is frivolous or it fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (2018). Further, the Court may sua sponte dismiss on these grounds, even without serving the defendants. See Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991) ("Dismissal [under § 1915] is 'often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.'") (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). The standard under § 1915(e)(2)(B) for dismissing a frivolous complaint applies to both prisoner and non-prisoner complaints. See Newsome v. EEOC, 301 F.3d 227, 231-33 (5th Cir. 2002) (per curiam) (affirming dismissal based on § 1915(e)(2)(B) in a non-prisoner case).

         "[A] complaint... is frivolous where it lacks an arguable basis either in law or in fact." Neitzke, 490 U.S. at 325. "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist." Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (quoting Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)). A claim is factually frivolous if the facts are "clearly baseless, a category encompassing allegations that are 'fanciful,' 'fantastic,' and 'delusional.'" Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)).

         To determine whether a complaint fails to state a claim upon which relief may be granted, courts engage in the same analysis as when ruling on a motion for dismissal under Federal Rule of Civil Procedure 12(b)(6). See Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility wiien the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). To meet this pleading standard, the complaint must state more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

         Tobias proceeds pro se in this case. Courts construe pleadings filed by pro se litigants under a less stringent standard of review. Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). Under this standard, "[a] document filed pro se is 'to be liberally construed,' Estelle [v. Gamble, 429 U.S. 97, 106 (1976)], and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         When analyzing a pro se plaintiffs complaint, the Court may consider reliable evidence such as the plaintiffs allegations, responses to a questionnaire, and authenticated records. See Wilson v. Barrientos, 926 F.2d 480, 483-84 (5th Cir. 1991); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (noting responses given to a questionnaire are incorporated into the plaintiff s pleadings); Banuelos v. McFarland, 1 F.3d 232');">41 F.3d 232, 234 (5th Cir. 1995) (holding that courts may dismiss prisoners' in forma pauperis claims as frivolous based or "medical or other prison records if they are adequately identified and authenticated").

         In evaluating the sufficiency of a complaint, courts accept well-pleaded factual allegations as true, but do not credit conclusory allegations or assertions that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016). And while courts hold pro se plaintiffs to a more lenient standard than lawyers when analyzing complaints, such plaintiffs must nevertheless plead factual allegations that raise the right to relief above a speculative level. Id. (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).

         III. The ...


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