United States District Court, S.D. Texas, Corpus Christi Division
FRED G. MARTINEZ, Plaintiff,
NUECES COUNTY SHERIFF'S OFFICE/JAIL, et al, Defendants.
MEMORANDUM AND ORDER
TAGLE SENIOR UNITED STATES DISTRICT JUDGE
Court is in receipt of the Magistrate Judge's November
18, 2018 Memorandum and Recommendation (“M&R
1”) Dkt. No. 32, subjecting Plaintiff's claim to
screening. The Court is also in receipt of Plaintiff's
objections to M&R 1, Dkt. Nos. 37, 46, 47, and
Defendants' objections to M&R 1 Dkt. Nos. 37, 48.
Court is in receipt of the Magistrate Judge's September
19, 2019 Memorandum and Recommendation (“M&R
2”), Dkt No. 74. The Court is in receipt of
Plaintiff's Objections to M&R 2, Dkt No. 80.
independently reviewing the filings, the record, and
applicable law, the Court ADOPTS IN PART and
DECLINES TO ADOPT IN PART M&R 1, Dkt No.
32. The Court DECLINES TO ADOPT M&R 2,
Dkt. No. 74.
Martinez (“Martinez”) is imprisoned in the state
of Texas and he filed this civil rights action under 42
U.S.C. § 1983. Martinez is pro se and is
proceeding in forma pauperis. Dkt. Nos. 8, 29.
Martinez's claims arise from his confinement at the
Nueces County Jail during two periods: from March 23 to April
11, 2016 (“Period 1”) and from May 23 to May 26,
2016 (“Period 2”). Dkt. No. 28-1.
the details of his complaint, Martinez alleges that for the
weeks he was at the Nueces County Jail he was forced to sleep
without bedding in an inadequate holding cell and that he was
fed inadequate food, poor-quality bologna sandwiches.
Id. at 4-5. He alleges he was denied basic sanitary
supplies and he was denied access to the courts. Id.
Martinez also alleges he suffered a serious medical issue
that was diagnosed when he left Nueces County Jail and
required reconstructive surgery of his nasal air passage that
was performed on April 4, 2018. Id. at 5.
also attached two letters to his complaint from the Texas
Commission of Jail Standards (“TCJS”). Dkt. No.
28-3 at 2-4. The letters seemingly respond to a grievance
procedure from Martinez. Id. The first letter, dated
January 24, 2017 and written by Inspector Jackie Semmler,
informed him “that an area of concern did exist”
at Nueces County Jail and that “Nueces County officials
took immediate action to resolve the issues and a change to
procedures was enacted.” Id. at 2. The second
letter, dated February 9, 2017 and written by Assistant
Director Shannon J. Herklotz, informed Martinez that no
violation of jail standards had occurred. Id. at
3-4. It further stated that “This is your final appeal.
We will be taking no further action
and have closed this case.” Id. at 3-4
[emphasis in original] II. M&R 1 After
noting relevant facts, the Magistrate Judge recommended under
an Eighth Amendment analysis that: “Plaintiff's
deliberate indifference claims regarding Plaintiff's
bedding situation be retained against two defendants in their
individual capacity.” Dkt. 32 at 2. The Magistrate
“ (1) Plaintiff's claims for money damages against
certain defendants in their official capacities be dismissed
as barred by the Eleventh Amendment; (2) Plaintiff's
claims for declaratory and injunctive relief against
Defendants be dismissed as rendered moot by Plaintiff's
transfer to a TDCJ facility; and (3) Plaintiff's
remaining claims against all Defendants be dismissed as
frivolous and/or for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).”
Dkt. No. 32 at 2.
Perales and Zapata (“Defendants”) object to the
M&R's retention of the deliberate indifference claims
against them. Dkt. Nos. 37, 48. They argue that
Martinez's complaint was time barred by Texas'
two-year statute of limitations. Dkt. No. 37 at 2.
responds that: (1) the complaint states facts that are
plausible on their face, (2) the dismissal of TCJS as a party
was improper because it is not immune from suit, (3)
officials otherwise immune are not shielded when they violate
federal law, (3a) he can pursue claims against state
officials in their individual capacity, (4) the Sheriff Jim
Kaelin (“Kaelin”) should not be dismissed from
the case because he was aware of wrongdoing and was “an
active wrongdoer, ” (5) a due process violation
occurred implicating a liberty interest because of the
jail's violation of its 48-hour policy, (6) the poor
sanitary conditions were not short term and caused him harm,
(7) eating only bologna sandwiches for weeks was by itself
insufficient nutritional value under the law amounting to
excessive punishment and it caused him harm, (8) his improper
confinement led to a shortened period to hire the right
attorney causing him prejudice, (9) dismissing unknown
officers is improper because other officers could be
responsible (10) Nueces County officials' continuous
“faulty” conduct should be corrected. Dkt. No.
addition, Martinez argues that the cause of action accrued
later than defendants claim it accrued, making the statute of
limitations defense inapplicable. Dkt. 47 at 3. Martinez
further responds the continuing tort doctrine or other
equitable tolling doctrine under Texas law applies to his
claim and that the grievance investigation process also
served to toll the statute of limitations. Id.
the Prison Litigation Reform Act (“PLRA”), Pub.
L. No. 104-134, 110 Stat. 1321 (1996), any prisoner action
brought under federal law must be dismissed if the complaint
is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a
defendant immune from such relief. See 28 U.S.C.
§§ 1915(e)(2), 1915A. The Court reviews objected-to
portions of a Magistrate Judge's proposed findings and
recommendations de novo. 28 U.S.C. § 636(b)(1). If the
objections are frivolous, conclusive or general in nature the
court need not conduct a de novo review. Battle v. United
States Parole Comm'n, 834 F.2d 419 (5th Cir.
1987). When proceeding in forma pauperis, a
plaintiff's allegations must be weighted in the
plaintiff's favor when a court conducts a frivolousness
review. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
The § 1915 frivolousness determination does not serve as
factfinding for disputed facts and a claim should be
dismissed as factually frivolous when irrational or wholly
incredible. Id. at 33.
Statute of Limitations
Magistrate Judge did not make a recommendation regarding the
statute of limitations objection raised by the officers in
M&R 1. When it is clear that an action is barred by the
statute of limitations those claims are properly dismissed as
frivolous or malicious. Gartell v. Gaylor, 981 F.2d
254, 256 (5th Cir. 1993).
limitations period for a § 1983 suit is determined by
the general statute of limitations governing personal injury
in the forum statute. Price v. City of San Antonio,
431 F.3d 890, 892 (5th Cir. 2005). The applicable statute
provides that the claims must be brought no later than two
years after the cause of action accrues. Id.; Tex.
Civ. Prac. & Rem. Code Ann. § 16.003.
determine the accrual date of a § 1983 action under
federal law. Walker v. Epps, 550 F.3d 407, 414 (5th
Cir. 2008). An action accrues under federal law when the
plaintiff can file suit and obtain relief. Id. Put
another way, “a cause of action accrues when the
plaintiff knows or has reason to know of the injury which is
the basis of the action.” Gartrell, 981 F.2d
at 257. A continual violation can occur when a plaintiff
continues to sustain harm and that claim accrues when the
harm ceases. Lavellee v. Listi, 611 F.2d 1129, 1132
(5th Cir. 1980); Interamericas Investments, Ltd. v. Bd.
of Governors of the Fed. Reserve Sys., 111 F.3d 376, 382
(5th Cir. 1997).
argues that there was one period of continuous acts which
concluded on May 26, 2016. Dkt. No. 47 at 2. However,
Martinez's complaint alleges two periods of harm. The
transfer on April 11, 2016 from the Nueces County Jail
holding cell ended the first claimed period of harm.
See Dkt. No. 28-1 at 9. Martinez alleges he again
sustained harm when he was incarcerated in Nueces County Jail
from May 23 until May 26, 2016. Id. Therefore, there
appear to be two alleged continual violations that accrued on
April 11, 2016 and May 26, 2016 respectively, because each
alleged claim accrued when the period of harm ended. See
Lavellee, 611 F.2d at 1132.
pro se litigant's complaint is deemed filed on
the day he places it in the prison mail system. Cooper v.
Brookshire, 70 F.3d 377, 380 (5th Cir. 1995).
Martinez' initial complaint was signed May 5, 2018. Dkt.
No. 1 at 4. There are also handwritten dates on the original
complaint as late as May 16, 2018. Dkt. No. 1 at 20. The
postage stamp bears the date May 30, 2018. Id. at
26. In M&R 1, the date the complaint was deposited with
prison officials is unclear therefore the date the action is
commenced is also unclear. See Cooper, 70 F.3d at
applying a state's statute of limitations, the federal
court should also apply relevant state tolling provisions.
Gartrell v. Gaylor, 981 F.2d at 257 (declining to
apply tolling in a pre-mandatory exhaustion prison case).
This includes equitable tolling, which is sparingly used by
Texas and federal courts and typically depends on whether a
plaintiff diligently pursued their rights. Myers v.
Nash, 464 Fed.Appx. 348, 349 (5th Cir. 2012).
Incarceration is not a legal disability for tolling in Texas.
See Tex. Civ. Prac. & Rem. Code Ann. §
16.001 (West); White v. Cole, 880 S.W.2d 292, 295
(Tex. App. 1994).
the PLRA requires that no action shall be brought with
respect to prison conditions under § 1983 by an
incarcerated person “until such administrative remedies
as are available are exhausted.” 42 U.S.C.A. §
1997e. The exhaustion requirement applies to any case seeking
remedy for any prison circumstances or occurrences regardless
of whether they involve particular episodes or general
circumstances of incarceration. Porter v. Nussle,
534 U.S. 516, 532 (2002). The exhaustion requirement applies
irrespective of what kind of remedy is sought. Booth v.
Churner, 532 U.S. 731, 740 (2001). When a prison
conditions suit is brought by an incarcerated person, the
statute of limitations is tolled during the time that the
claimant is exhausting their available administrative
remedies. Harris v. Hegmann, 198 F.3d 153, 158 (5th
Cir. 1999) (“[T]his court held that the Texas statute
of limitations was tolled while the plaintiff exhausted his
available state administrative remedies”) (citing
Rodriguez v. Holmes, 963 F.2d 799 (5th Cir. 1992));
see Wisniewski v. Fisher, 857 F.3d 152, 158 (3d Cir.
2017) (holding the district court erred in dismissing §
1983 claims without considering if the plaintiff properly
exhausted administrative remedies and the extent the
limitations period should be tolled).
noted above, the first accrual date of a claims is April 11,
2016, making the statute of limitations expire for that claim
after April 11, 2018, unless some form of tolling applies.
See Walker, 550 F.3d at 414.
Martinez argues that tolling principles apply to all of his
claims. Dkt. No. 47 at 1. Defendants correctly contend that
principles of equitable tolling such as the discovery
doctrine or fraudulent concealment would not apply to this
case because the harm was not undiscoverable nor was it
concealed. See Valdez v. Hollenbeck, 465 S.W.3d 217,
229 (Tex. 2015).
documents Martinez submitted with his complaint indicate he
took up his claims via an administrative grievance procedure
at the prison. Dkt. No. 28-3 at 3. Those documents indicate
he exhausted those procedures on February 9, 2017 when he
received notice of his “final appeal” and that
his case was closed. Id. There is no evidence in the
record of M&R 1 of the date Martinez began this grievance
process. See Id. The Court concludes the statute of
limitations period should be tolled for the presently unknown
time Martinez's administrative remedies were exhausted in
the prison. See Harris, 198 F.3d at 158.
is clear that an action is barred by the statute of
limitations those claims are properly dismissed as frivolous.
Gartell, 981 F.2d at 256. Here, the record is not
clear that Martinez's claims are barred by the statute of
limitations for either of the alleged claims that accrued on
April 11 and May 26, 2016. The Court notes the extensive
objections from the defendants on statute of limitations
grounds, including the argument that the second accrual
period would be insufficient to sustain an Eighth Amendment
claim. See Dkt. Nos. 37, 48. Without more, the Court
concludes the facts alleged are not “clearly
baseless” on statute of limitations grounds. See
Gartrell, 981 F.2d at 259.
the Court DECLINES to dismiss the claims for
being frivolous on statute of limitations grounds.
objections to M&R 1 can be grouped into several
categories (a) plausible claims, (b) immunity, remedies,
proper defendants, (c) violation of the 48hour cell policy,
(d) access to the courts, (e) cell conditions. The ...