Nickerson v. Texas Department Criminal Justice Institution Devision Estelle Unit et al, No. 4:2012cv02721 - Document 10 (S.D. Tex. 2012)
Court Description: ORDER DENYING 9 MOTION for Reconsideration of 4 Order of Dismissal, DENYING AS MOOT 5 MOTION/APPLICATION to Proceed In Forma Pauperis, and 7 MOTION for Preliminary Injunction (Signed by Judge Ewing Werlein, Jr) Parties notified.(chorace)
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Nickerson v. Texas Department Criminal Justice Institution Devision Estelle Unit et al Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CEDRIC NICKERSON, TDCJ-CID NO. 681323, Plaintiff, v. CORRECTIONAL MANAGED CARE PROVIDERS, et al., Defendants. § § § § § § § CIVIL ACTION NO. H-12-2721 ORDER Plaintiff, a state inmate proceeding pro se, rights complaint pursuant to 42 U.S.C. § filed a civil 1983, raising claims of excessive force, cruel and unusual punishment, infliction of mental and emotional injury, retaliation, denial of medical care, and due process. (Docket Entry No.1). battery, He also raised state tort claims of assault and (Id. ) . The crux of plaintiff's claims center on the removal of restrictions removal of plaintiff's from a his "single attempts restrictions in 2012. conversion, health cell, to malpractice, summary row have sheet, 1" and which restriction medical negligence. include the 2011, and restore the in personnel (Id.). The Court dismissed the complaint because plaintiff is subject to the three-strikes bar of 28 U.S.C. did not state 1915(g)'s bar. facts to show that (Docket Entry No.4). § he 1915(g) and his complaint met the exception to § Plaintiff has filed a Motion for Reconsideration, which the Court construes as a motion falling within the provisions of Rules 59(e) and 60(b) of the Federal Rules -------------- ~- Dockets.Justia.com ----------------- of Civil Procedure. into correctness ~'calls A Rule 59(e) motion to alter or amend question the of HydroChem Inc., 367 F.3d 473, 478 a Templet judgment.'" (5th Cir. 2004) (quoting In Re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). motion is ~not theories, or arguments could have been offered or before the entry of judgment." Instead, 'serve [s] a narrow purpose of manifest errors of law or fact evidence.'" Id. legal raised Id. at 479 (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). the Such a the proper vehicle for rehashing evidence, that v. allowing party ~Rule to 59(e) correct or to present newly discovered (quoting Waltman v. Int' 1 Paper Co., 875 F. 2d 468, 473 (5th Cir. 1989)). ~Relief under Rule 59(e) is also appropriate when there has been an intervening change in the controlling law." Schiller v. Physicians Resource Grp., 342 F.3d 563, 567 2003) . Al tering, amending, or recons idering a judgment extraordinary remedy that courts should use sparingly. 367 F.3d at 479 (5th Cir. is an Templet, (citing Clancy v. Employers Health Ins. Co., 101 F.Supp.2d 463, 465 (E.D.La. June 26, 2000)). A district court may relieve a party from final judgment under Rule 60(b) on the basis of (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b); (3) fraud, 2 misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; judgment has been satisfied, released, (5) the or discharged; or (6) any other reason justifying relief from the operation of the judgment." FE D. R. CI V. P. 60 (b) . In the pending Motion for Reconsideration, plaintiff contends that dismissal under the three strikes bar is inappropriate because the Court did not cite the case name and style of each case that was dismissed under No.9) . Action Instead, 28 prior 1915 (e) (2) (B) . (Docket which cases enumerated that had been more Entry Crites, 1915 (e) (2) (B). § the Court cited to Nickerson v. No.2:11cv0097, plaintiff's U.S.C. Civil than dismissed three under of § Some of those cases cited by the Crites Court, which were dismissed as frivolous, malicious, or for failure to state a claim, include United States v. Webb, No.96040570 (5th Cir. 1997), Nickerson v. Klevenhagen, Civil Action No.4:95-cv-4089 (S.D. Tex. Mar. 13, 2000), and Nickerson v. Justices of the Texas Supreme Court, Civil Action No.2:03-cv-0411 (S.D. Tex. Dec. 2, 2003). Plaintiff cannot show that he is not subject to the three strikes bar of 28 U.S.C. 1915(g) in light of the aforementioned cases that were cited by Crites. Accordingly, plaintiff fails to show § his entitlement to relief under Rules 59(e) or 60(b). Next, plaintiff contends that the Court failed to consider the allegations in his complaint and 3 request for a temporary restraining order and preliminary injunction and the supporting evidence in making its determination that he was not in imminent danger of serious complaint. and the physical injury (Docket Entry No.9). instant motion that at the time he filed the Plaintiff claims in his pleadings he suffers from a phobia/anxiety condition triggered by being confined in a cell with another inmate and from neuropathy and peripheral vascular disease ("PVD") that causes a loss of feeling and strength in his without warning. (Docket Entries No.1, No.9). limbs, sometimes Plaintiff claims that after he complained about the removal of his single cell restriction in 2011, Polunsky Unit officials removed his other housing and work restrictions, which resulted in housing conditions that have endangered his life. (Id.) . He further claims that defendants have denied him accommodations for his disabilities, physically forced him to share a cell with another inmate, denied his other medical needs. A prisoner § 1916 (g) may invoke those (3rd Cir. the imminent danger . See Abdul-Akbar v. McKelvie, 2001) dangers which impending (Id. ) . exception to only to seek relief from a danger imminent when the complaint is filed. 312-13 and (stating that are [and] about 239 F.3d 307, '" [i]mminent' to occur at dangers are any moment or are [s] omeone whose danger has passed cannot reasonably be described as someone who 'is' in danger, nor can that 4 ----- -_. __ ._- -----_.- _-_._----- - - - - .. past danger reasonably be described as 'imminent'''). are not sufficient. Cir. 2003). Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th The injury must be "imminent or occurring at the time the complaint is filed." (10th Cir. Past dangers 2008) Fuller v. Wilcox, 288 Fed. Appx. 509, 511 (quoting Ciarpaglini, 352 F.3d at 330). To satisfy the "imminent danger" exception, a complainant must offer "specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury." Id. at 511 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). Reliance on past injuries or harm, or offering vague or conclusory allegations, is insufficient. Id.; see White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998) . The cases in which courts find imminent danger of serious physical inj ury primarily involve a prisoner's complaint that essential medications are completely withheld or the prisoner is placed with inmates who have targeted him as an enemy. v. Johnson, 387 F.3d 1344 (11th Cir. 2004) of serious physical injury based on See Brown (finding imminent danger allegation that prison officials had withdrawn treatment for HIV and hepatitis, leading to severe complications and rapid deterioration); Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998) (finding based on allegation that officials repeatedly placed prisoner near inmates on his enemy list 5 ----- -_.._-- who had hurt the prisoner and prisoner alleged he had suffered harm twice as result). Plaintiff signed his original complaint on August 27, 2012, and indicated that he mailed it on August 28, 2012. No.1, page 17). (Docket Entry He complained in such pleading that Estelle Unit officials assigned him a single cell located on row 3 on July 3, 2012. (Id., page 10). On July 5, 2012, the day he was scheduled to return to his assigned unit, i.e., the Polunsky Unit, plaintiff fell down a flight row 2 to row 1. status. (Id. ) of stairs as he descended the stairs from Plaintiff was cuffed because of his close custody Plaintiff indicated that medical personnel deter- mined that the fall was caused by the abrupt loss of leg strength associated with his neuropathy/PVD condition. (Id., page 11). "fall-risk" band was placed on plaintiff's arm. After a brief hospitalization, Estelle Unit on July 9, 2012. Estelle High Security Unit, (Id. ) A (Id.). plaintiff returned to the He was transferred to the where he encountered problems with housing and guards; he transferred back to the Polunsky Unit on July 12, 2012. (Id., page 12). On July 26, 2012, plaintiff returned to the Estelle Unit for physical therapy, where Unit medical personnel obtained a single cell, him. (Id.). Estelle row 1 housing for When plaintiff experienced problems on the Estelle High Security Unit with respect to a housing change, 6 he filed a life-endangerment form and classification committee, (Id., pages 13-14). subsequently appeared before the which promoted him to medium custody. He was transferred to the Estelle Unit. While in transit to the Estelle Unit, plaintiff's property was stolen. (Id., pages 14-15). weakness After being seen in the infirmary for leg and vomiting in early August 2012, medical contacted the countroom staff to have plaintiff's changed to a single cell, personnel restrictions 1 row housing assignment. (Id., page 15) . From August 3 to August 9, 2012, plaintiff was housed on 1 row within the Estelle Unit's administrative housing, where inmates in PHD, transit, solitary, SPCR are housed. (Id.). Plaintiff was informed on August 9th that he was being moved to row 3. Estelle Unit officials noted plaintiff's housing restrictions, but informed him they could not accommodate his row 1 housing restriction because there was no single-cell 1 row housing available on D-l wing. (Id., page 16). A single cell was available on 3 row, which plaintiff was forced to accept. (Id.). that the assignment was temporary. Prison officials indicated At the time plaintiff filed the present complaint, he was still housed on 3 row. indicated that he has sent in numerous (Id.). requests to Plaintiff have his housing/work restrictions re-instated and for medical treatment. (Id. ) . He complained that he has 7 not been escorted to the infirmary; that he is rarely allowed to shower because of his inability to rear-cuff and that he faces serious risk of falling when he goes to row 1 or 2 to shower. Plaintiff sought (Id. ) . inj uncti ve relief ordering TDCJ officials "to immediately re-assign plaintiff to a single cell, lower row housing, if available, within the general population of Estelle Unit." (Id.). He also sought injunctive relief ordering officials to provide a fan, to restore missing property, to schedule an appointment with specialists for his medical needs, and to restore his restrictions. (Id., page 17) . Plaintiff's complaint challenges the past conduct of prison officials from 2011 through late August 2012. has attempted to establish a authori ties with respect pattern of Although plaintiff misconduct by prison to appropriate accommodations medical needs, his pleadings ~how for his that as"0f the day he filed the complaint and weeks before, prison officials had provided him with the only single-cell available on that part of the Estelle Unit. While plaintiff's fear of falling is justified, he fails to show that his housing assignment on row 3 constitutes imminent danger of physical harm. As plaintiff notes, the loss of feeling in his legs sometimes occurs without warning. Therefore, plaintiff and prison officials alike may only speculate when such an event will occur. Such speculation does not show that plaintiff faced a 8 real emergency at the time he filed the complaint with respect to his given cell assignment. Plaintiff, therefore, fails to show his entitlement to relief under Rules 59(e) or 60(b). Accordingly, plaintiff's "Motion for Reconsideration" (Docket Entry No.9) is DENIED. Plaintiff's motion for an emergency injunctive relief, filed days after the Court dismissed his complaint (Docket Entries No.7, No.8), and his application to proceed in forma pauperis (Docket Entry No.5), are DENIED, AS MOOT. The Clerk will provide a copy of )~~:~ to the parties. Signed at Houston, Texas, on ~(I ~ 1}Z/, 2012. ~~r JUDGE 9
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