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Martinez v. Nueces County Sheriff's Office/Jail

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

January 13, 2020

FRED G. MARTINEZ, Plaintiff,



         The 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.

         The 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.

         After 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.

         I. Background

         Fred G. 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.

         Among 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.

         Martinez 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 further recommended:

“ (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.

         Officers 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.

         Martinez 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. 46.

         In 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.

         III. Legal Standard

         Under 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.

         a. Statute of Limitations

         The 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).

         i. Time Period

         The 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.

         ii. Accrual

         Courts 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).

         Martinez 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.

         b. Filing Date

         A 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 380.

         c. Tolling

         When 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).

         Additionally, 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).

         As 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).

         The two 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.

         When it 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.

         Accordingly, the Court DECLINES to dismiss the claims for being frivolous on statute of limitations grounds.

         IV. Additional Objections

         Martinez's 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 ...

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