Nunn v. Burger et al
Filing
21
ORDER OF DISMISSAL. Plaintiffs federal claims are DISMISSED WITH PREJUDICE for failure to state a claim. Plaintiffs negligence and related state law claims are DISMISSED WITHOUT PREJUDICE. All pending motions are DENIED AS MOOT. Case terminated on 3/22/2012.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
R ONNIE C HARLES N UNN,
Plaintiff,
v.
R. D EWAYNE B URGER, et al.,
Defendants.
§
§
§
§
§
§
§
§
§
C IVIL A CTION H-08-3718
ORDER OF DISMISSAL
Ronnie Charles Nunn, TDCJ-CID #874604, a state inmate proceeding pro se and in
forma pauperis, filed this section 1983 complaint against five employees of the Austin
County Jail. He alleges that his constitutional and state law rights were violated when he fell
while exiting a jail transportation van, and that a prison officer failed to follow an emergency
medical technician’s treatment instructions. The threshold question is whether plaintiff’s
claims should be allowed to proceed under 28 U.S.C. § 1915A.
Finding that no federal rights have been implicated, the Court DISMISSES this
lawsuit for failure to state a claim under section 1983, as follows.
Background and Claims
Plaintiff claims that on April 22, 2008, while exiting the Austin County Jail’s Ford
transportation van as a pretrial detainee, his leg restraints became caught on the van’s wire
mesh bottom step, causing him to fall and injure his back and neck. Plaintiff claims that the
bottom step was not an authorized accessory manufactured by the Ford Motor Company, but
rather was designed, constructed, and installed by other individuals or entities. He argues
that the defendants were negligent in installing the “homemade contraption” and in failing
to warn him of the dangerous “illusory” bottom step. Plaintiff further claims that the
defendants were deliberately indifferent to his safety because shortly after his accident, the
jail installed a larger bottom step on the van and stopped requiring leg restraints while
prisoners disembarked from the van.
He additionally claims that the defendants maintained a policy or practice of hiring
unqualified personnel and not training them, and allowing the jail’s transportation van to be
negligently operated and modified. He also complains that the defendants failed to supervise
the transportation employees, failed to purchase a properly-equipped transportation vehicle,
and failed to ensure that the van was not equipped with defective and inadequate equipment.
Plaintiff further asserts that, following the incident, defendant Green failed to comply
with an emergency medical technician’s instructions that he be examined by a physician and
be given Ibuprofen and pain medication. Plaintiff states that he remained in pain until he was
seen by a physician two days later, and that he did not receive pain medication until after it
was ordered by the physician.
Plaintiff sues the five municipal employee defendants – R. DeWayne Burger, Richard
Holloman, Captain Green, Sergeant Drake, and David Ewall – in their official and individual
capacities, and seeks compensatory damages for his physical and mental injuries.1
1
To the extent plaintiff attempts to raise a supplemental claim regarding a jail officer’s
interference with his constitutional right to pursue a jail grievance, state inmates enjoy no such
2
Standard of Review
Because plaintiff was a state prisoner at the time he filed this lawsuit, his complaint
is governed by the Prison Litigation Reform Act (“PLRA”). Under the PLRA, the district
court is to screen a prisoner’s complaint and scrutinize the claims. It must dismiss the
complaint, in whole or in part, if it determines that the complaint is frivolous, malicious, or
fails to state a claim upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b). An action is frivolous
if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). A complaint lacks an arguable basis in
law if it is based on an indisputably meritless legal theory, such as if the complaint alleges
violation of a legal interest which clearly does not exist. Harris v. Hegmann, 198 F.3d 153,
156 (5th Cir. 1999). A complaint lacks an arguable basis in fact if the facts alleged are
clearly baseless. Talib, 138 F.3d at 213. Although a pro se litigant’s pleadings are to be
construed liberally, Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), pro se litigants are
not exempt from compliance with the relevant rules of procedure and substantive law. Birl
v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981).
The same standards for review of a motion to dismiss under Rule 12(b)(6) apply to
a court’s sua sponte dismissal under section 1915A. Hart v. Hairston, 343 F.3d 762, 763–64
(5th Cir. 2003). In reviewing plaintiff’s pleadings, this Court takes the factual allegations
constitutional right. See Geiger v. Jowers, 404 F.3d 371, 373–74 (5th Cir. 2005). Regardless,
the Court is dismissing this lawsuit for reasons other than failure to exhaust.
3
in his pleadings as true, and draws all reasonable inferences, and resolves ambiguities, in the
plaintiff’s favor. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
However, conclusory or legal conclusions asserted as factual allegations will not suffice to
prevent a dismissal. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009); see also
Fernandez–Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993). Nor will bare
recitals of the elements of a cause of action, supported by mere conclusory statements, suffice
to prevent dismissal for failure to state a claim. Bell Atlantic Corp. v. Twombly, 550, U.S.
544, 555 (2007).
Under Iqbal–Twombly’s two-pronged approach, the Court must determine whether
the pleadings contain “sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Iqbal, 129 S. Ct. at 1949; Twombly, 550 U.S. at 555. The first step
for the Court is to determine those pleadings that are more than just “mere conclusions” and
thus are entitled to the presumption of truth. Iqbal, 129 S. Ct. at 1949–50. Then, assuming
the veracity of these facts, the Court must determine whether the factual content “allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged”
and “plausibly give[s] rise to an entitlement to relief.” Id.; see also Rhodes v. Prince, 360
F. App’x 555, 557 (5th Cir. 2010). If the pleadings fail to meet the requirements of Iqbal and
Twombly, no viable claim is stated and the lawsuit is subject to dismissal.
In the instant case, plaintiff must make a plausible showing that the defendants knew
of and disregarded an excessive risk that he would be injured by the bottom step while
4
exiting the van restrained. See Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002).
He must also make a plausible showing that defendant Green knew of and disregarded an
excessive risk to plaintiff regarding his serious medical needs in not following the emergency
medical technician’s instructions.
Analysis
A.
Eleventh Amendment Immunity
As a preliminary matter, none of plaintiff’s claims for monetary damages against the
defendants in their official capacities may stand, as these claims are barred by Eleventh
Amendment immunity. The defendants are officials or employees of the Austin County Jail
and, thus, of Austin County. A suit against a government official or employee in his official
capacity is actually a suit against the governmental entity that employs him. See Kentucky
v. Graham, 473 U.S. 158, 166 (1985); see also Oliver v. Scott, 276 F.3d 736, 742 (5th Cir.
2002).
To establish liability under section1983 in an official capacity action, a plaintiff must
show that an official government policy or custom was the moving force behind the alleged
civil rights deprivation. See, e.g., James v. Harris County, 577 F.3d 612, 617–18 (5th Cir.
2009). Plaintiff sets forth no factual allegations in his complaint sufficiently showing that
an official government policy or custom was the moving force behind his asserted civil rights
deprivations, and his claims against the defendants in their official capacities are
DISMISSED.
5
B.
Section 1983 Claims Based in Negligence
Plaintiff asserts numerous negligence and other state law tort-based claims against the
defendants, such as failure to purchase and maintain a safe jail transportation vehicle,
installing a defective and/or non-standardized bottom step, allowing county equipment to be
operated, maintained, and modified in a negligent manner, failing to warn plaintiff of the
“illusory” bottom step, and negligent hiring, training, and supervision regarding vehicle
maintenance. (Docket Entry No. 1, p. 4.) These assertions, even if they were not conclusory,
do not state claims for relief under section 1983.
The United States Supreme Court has made clear that negligent conduct on the part
of government officials is not actionable under section 1983. In Daniels v. Williams, 474
U.S. 327, 328 (1986), a prisoner sued prison officials under section 1983, alleging that he
was injured when he slipped on a pillow negligently left on a staircase by a prison employee.
The Supreme Court held that negligent conduct on the part of government officials does not
give rise to a constitutional violation. Id. at 332–33. “Section 1983 imposes liability for
violations of rights protected by the Constitution, not for violations of duties of care arising
out of tort law.” Baker v. McCollan, 443 U.S. 137, 146 (1979); see also Victoria W. v.
Larpenter, 369 F.3d 475, 482 (5th Cir. 2004).
Accordingly, plaintiff’s federal claims asserting negligence and related tort law claims
fail to state a claim for purposes of section 1983 and are DISMISSED.
6
C.
Individual Capacity Claims for Deliberate Indifference to Safety
Plaintiff’s deliberate indifference claims against the defendants in their individual
capacities, however, are not barred by the Eleventh Amendment.
Deliberate indifference is an extremely high standard to meet. Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006). To hold liable an individual state or municipal defendant,
a plaintiff must establish that the individual acted with subjective deliberate indifference in
order to demonstrate a violation of his constitutional rights. Id. The defendant acts with
subjective indifference if he knows that an inmate or detainee faces a substantial risk of
serious bodily harm and disregards that risk by failing to take reasonable measures to abate
it. Id. To act with deliberate indifference, a government employee or officer must know of
and disregard an excessive risk to inmate health or safety; the officer must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also
Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). But an officer’s failure to alleviate
a significant risk that he should have perceived but did not, does not rise to the level of
deliberate indifference. Farmer, 511 U.S. at 837–38. Therefore, the Supreme Court has
cautioned that “courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person would have
known, or that the defendant should have known[.] ” Id. at 843 n. 6.
7
Here, plaintiff’s pleadings show that his claims and injuries arose from a single
episode – his falling from the bottom step of the van on April 22, 2008. His factual
allegations do not establish that any defendant acted, or failed to act, with subjective
deliberate indifference to plaintiff’s safety in exiting the van. Plaintiff asserts that the
defendants “knew” the step was dangerous because they replaced it shortly after the accident
and no longer required inmates to exit the van with leg restraints. This assertion may
arguably show that jail officers became aware of the safety risk once plaintiff fell, but it does
not, however, act to show that the defendants had subjective knowledge of any risk to
plaintiff’s safety prior to the incident of April 22, 2008. Accepting as true his assertions that
he fell when his leg restraints became caught on the van’s lower step and that the step was
not made by the Ford Motor Company, plaintiff fails to set forth factual allegations sufficient
to state a plausible claim that the defendants were deliberately indifferent to his safety on
April 22, 2008.
Plaintiff’s allegations against the defendants for deliberate indifference to his safety
fail to state a plausible claim under section 1983 and the claim is DISMISSED.
D.
Individual Capacity Claims for Deliberate Indifference to Medical Needs
Plaintiff alleges that, following his fall from the van, an emergency medical (“EMS”)
technician told defendant Green to have him examined by a physician and to give him
Ibuprofen or other pain medication. Plaintiff states that Green failed to follow these
instructions in that he was not examined by a physician until two days later and not given any
8
medication until after the medications were ordered by the physician. (Docket Entry No. 1,
p. 12.) Plaintiff states that Green was “deliberately indifferent toward Plaintiff Nunn by his
failure to adhere to the instructed instructions of the EMS personnel” to “get me pain
medication(s) and get me to a doctor[.]” Id., p. 8.
Construed liberally, plaintiff claims that defendant Green was deliberately indifferent
to plaintiff’s serious medical needs by not following the EMS technician’s instructions.
Deliberate indifference to a prisoner’s serious medical needs in violation of the federal
constitution is actionable under section 1983. Victoria W., 369 F.3d at 483; see also Estelle
v Gamble, 429 U.S. 97, 104, 106 (1976). The Supreme Court has adopted “subjective
recklessness as used in the criminal law” as the appropriate test for deliberate indifference.
Farmer, 511 U.S. at 839. Thus, a prison official acts with deliberate indifference only if he
knows that an inmate faces a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it. Id. at 847. For an officer to act with
deliberate indifference, the officer must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference. Id. at 837. Acts of negligence or neglect are insufficient to give rise to a section
1983 cause of action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Plaintiff’s claim against Green for deliberate indifference is premised on his allegation
that Green did not adhere to the EMS technician’s instructions. However, plaintiff’s own
pleadings show that he did receive medications and an examination by a physician. (Docket
9
Entry No. 1, pp. 8, 12.)
Accordingly, plaintiff’s claim against Green for deliberate
indifference based on his failure to follow the EMS technician’s instructions is negated by
plaintiff’s factual allegations.
Construed liberally, plaintiff’s allegation also raises a claim against Green for
deliberate indifference to serious medical needs premised on the fact that plaintiff was not
subsequently seen by a physician or provided medications until two days after the incident.
Under this claim, the alleged deliberate indifference arises not from Green’s failure to adhere
to the EMS technician’s instructions, but from the two-day delay plaintiff experienced in
receiving medications and a doctor’s visit. In asserting this claim against Green in his
individual capacity, plaintiff must allege facts establishing Green’s personal involvement,
as personal involvement by a defendant is an essential element of a section 1983 claim.
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). Plaintiffs suing governmental
officials in their individual capacities must allege specific conduct giving rise to a
constitutional violation. Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). Accordingly,
plaintiff must presents facts showing that Green was personally involved in his not receiving
medications or a doctor’s visit until two days after the incident. Without factual allegations
of Green’s personal involvement, neither deliberate indifference nor any other constitutional
violation by Green can be sufficiently stated.
Here, plaintiff states that, on April 22 and April 23, he “pushed the emergency button
in cell #2 on B-side of jail, requesting to see the doctor,” and that he was “being threaten (sic)
10
by other control picket officers on these days that if I don’t stop pushing that emergency
button for medical treatment that I would be put in solitary[.]” (Docket Entry No. 1, p. 12,
emphasis added.) Plaintiff does not allege that it was Green who ignored his requests for
medical attention or threatened him with solitary confinement for repeatedly pushing the
emergency button.
Further, plaintiff does not allege that it was Green’s job duty or
responsibility to obtain plaintiff’s medications and physician visit or that Green was
authorized to administer, or order the administration of, medication to plaintiff without a
physician’s order.
Absent these or similar allegations, plaintiff fails to present facts
establishing that Green was personally involved in the two-day delay, and he fails to state a
plausible claim against Green under section 1983.
Nor does plaintiff assert a viable claim against Green as a supervisory official. In this
regard, in order for there to be liability on the part of a supervisory official, it is necessary
for a plaintiff to allege either direct personal involvement by the official in the constitutional
violation alleged, or some causal connection between the supervisory official and the
violation. Lozano v. Smith, 718 F.2d 756 (5th Cir. 1983). Plaintiff asserts neither of these
essential allegations. Even had plaintiff alleged that Green was responsible for the actions
of his subordinate officers or co-employees, his bare allegation would be insufficient to state
a plausible claim against Green under section 1983. See Monell v. Department of Social
Services, 436 U.S. 658 (1978).
11
In conclusion, plaintiff fails to provide facts sufficient to raise a plausible claim that
defendant Green was deliberately indifferent to his serious medical needs, and the claim is
DISMISSED.
E.
Claims for Improper Hiring, Training, and Supervision
Plaintiff asserts that the defendants had a policy and practice of not hiring qualified
people and not properly training employees, and that this lack of training and oversight
caused or contributed to his injury.
To the extent plaintiff claims that the defendants maintained a policy or practice of
hiring unqualified jail personnel and not training personnel, his assertions are conclusory and
unsupported by factual allegations. The instant, single-episode incident does not support a
claim for a constitutional violation grounded in “policy or practice,” nor does plaintiff assert
with supporting facts any specific policy or practice. See Worsham v. City of Pasadena, 881
F.2d 1336, 1339–40 (5th Cir. 1989).
Plaintiff fails to provide facts sufficient to state a plausible claim for improper hiring,
training, and supervision, and his claim is DISMISSED for failure to state a claim under
section 1983.
F.
Municipal Liability
Plaintiff does not name Austin County as a defendant. He nevertheless argues in his
pleadings that “the county is also liable for the conduct of each defendant as employee [sic]
12
acting within the course and scope of their employee [sic]” pursuant to the Texas Civil
Practices and Remedies Code.
Plaintiff’s assertions fail to raise a claim against the county, as municipal liability
under section 1983 may not be predicated on respondeat superior. See Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001). Rather, to establish municipal liability under
section 1983, a plaintiff must allege and show that a municipal employee violated plaintiff’s
clearly established constitutional rights with subjective deliberate indifference, and that this
violation resulted from a municipal policy or custom adopted and maintained with objective
deliberate indifference. Olabisiomotosho v. City of Houston, 185 F.3d 521, 528–29 (5th Cir.
1999).
To demonstrate subjective deliberate indifference under the first prong, a plaintiff
must show that the municipal employee knew of and disregarded an excessive risk to
plaintiff’s health or safety. Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001). Under
the second prong, the plaintiff must identify a policymaker and show that an official policy
was the “moving force” behind the municipal employee’s allegedly unconstitutional act.
Piotrowski, 237 F.3d at 578. The Fifth Circuit recognizes an official policy or custom as (1)
a written policy or procedure that is officially adopted or promulgated by the policymaking
authorities of a governmental agency, or (2) a persistent, widespread practice of
governmental agency officials or employees which, although not officially promulgated or
adopted, is so common and well settled as to constitute a policy or custom that fairly
13
represents the agency’s policy. Id. at 579.
Deliberate indifference on the part of a
policymaker cannot generally be shown from a single episode or violation of an inmate’s
constitutional rights. Thompson v. Upshur County, 245 F.3d 447, 463 (5th Cir. 2001).
Moreover, the failure to follow policy or procedural guidelines, standing alone, does not
implicate municipal liability. Evans v. City of Marlin, 986 F.2d 104, 108 n. 6 (5th Cir. 1993).
If a plaintiff is unable to show that a municipal employee acted with subjective
deliberate indifference, the municipality cannot be held liable for an episodic act or omission.
City of L.A. v. Heller, 475 U.S. 796, 799 (1986); Olabisiomotosho, 185 F.3d at 529. Even
if an officer acted with subjective deliberate indifference, a plaintiff must still show that the
employee’s act resulted from a municipal policy adopted or maintained with objective
deliberate indifference to the inmate’s rights. Scott v. Moore, 114 F.3d 51, 54 (5th Cir.
1997); see also Evans, 986 F.2d at 108 (holding that police officer’s failure to implement
procedures for the safe incarceration of inmates that resulted in a prisoner’s suicide did not
create municipal liability).
Plaintiff in the instant case fails to identify a policymaker or a specific policy that was
the moving force behind the defendants’ alleged violations of his constitutional rights, and
he fails to state factual allegations sufficient to raise a plausible claim for municipal liability.
Regardless, plaintiff has not alleged a plausible constitutional claim under section 1983
against the defendants and, accordingly, establishes no basis for municipal liability.
14
State Law Claims
Plaintiff asserts state law claims under this Court’s supplemental jurisdiction. 28
U.S.C. § 1367. Under 28 U.S.C. § 1367(c)(3), a federal court may decline to exercise
supplemental jurisdiction over state law claims where the district court has dismissed all
claims over which it has original jurisdiction.
Because plaintiff’s federal claims are
dismissed, this Court declines to exercise jurisdiction over whatever state law claims plaintiff
might have raised. This ruling does not preclude plaintiff from pursuing such claims in an
appropriate state court forum as may be authorized under applicable state law.
Conclusion
Pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2), plaintiff’s federal claims are
DISMISSED WITH PREJUDICE for failure to state a claim. Plaintiff’s negligence and
related state law claims are DISMISSED WITHOUT PREJUDICE. All pending motions are
DENIED AS MOOT.
The Clerk will provide a copy of this order to the parties
Signed at Houston, Texas on March 22, 2012.
Gray H. Miller
United States District Judge
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?