Swallow v. Gonzalez, No. 4:2020cv02232 - Document 22 (S.D. Tex. 2021)
Court Description: MEMORANDUM OPINION AND ORDER - The 1 Complaint for Violation of Civil Rights under 42 U.S.C. § 1983 filed by Elijah Burke Swallow is DISMISSED with prejudice. The dismissal will count as a strike for purposes of 28 U.S.C. § 1915(g). Swallow's 21 MOTION for an Order Compelling Disclosure or Discovery is DENIED. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Swallow v. Gonzalez Doc. 22 United States District Court Southern District of Texas ENTERED November 29, 2021 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ELIJAH BURKE SWALLOW, TDCJ #2100152, Plaintiff, v. SHERIFF ED GONZALEZ, et al., Defendants. § § § § § § § § § § Nathan Ochsner, Clerk CIVIL ACTION NO. H-20-2232 MEMORANDUM OPINION AND ORDER State inmate Elijah Burke Swallow ( TDCJ #2100152, former Harris County SPN #02756621) has filed a Prisoner's Civil Rights Complaint under 42 U.S.C. § 1983 ("Complaint") (Docket Entry No. 1), alleging that he was assaulted by another inmate while he was confined at the Harris County Jail in October of 2018. Sheriff Ed Gonzalez and a "John Doe" detention officer. court's request, Swallow has supplemented the Plaintiff's More Definite Statement Entry No. 12). He sues At the Complaint with ("Plaintiff's MOS") (Docket To further supplement the pleadings, the Harris County Attorney's Office has provided a report with administrative records under Martinez ·v. Aaron, 570 F.2d 317 (10th Cir. 1987) ("Martinez Report") (Docket Entry No. 19). Because Swallow is an inmate who proceeds in forma pauperis, the court is required to scrutinize the claims and dismiss the Dockets.Justia.com Complaint, in whole or in part, if it determines that the Complaint "is frivolous, malicious, or fails to state a claim upon which ef may be granted" or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A{b); see also 28 U.S.C. § 1915{e) (2) (B). After considering all of the pleadings and the applicable law, the court concludes that this case must be dismissed for the reasons explained below. I. Background Swallow is currently incarcerated in the Texas Department of Criminal Justice ("TDCJ") as the result of a conviction for aggravated robbery with a deadly weapon that was entered against him on October 25, 2019, in Harris County Case No. 144978901010. 1 The incident that forms the basis of Swallow's Complaint occurred on October 19, 2018, while Swallow was confined in the Harris County Jail as a pretrial detainee. 2 The incident, which See Texas Department of Criminal Justice - Offender Details, available at httgs: //offender.tdcj .texas.gov (last visited Nov. 26, 2021). Records from TDCJ reflect that Swallow has several other previous convictions for robbery {two convictions from Orange County and Jefferson County in 2014), assault on a public servant (Navarro County in 2008), harassment (three convictions from Navarro County in 2008), and failure to comply with sex offender registration requirements (two convictions from Jefferson County in 2010). id. 1 Complaint, Docket Entry No. 1, p. 4. Swallow states that he is unable to provide the exact date for the " fe Changing Event" that forms the basis for his Complaint. See Plaintiff's MOS, Docket Entry No. 12, p. 5. Records provided by the Harris County Attorney's Office reflect that the incident occurred on October 19, 2018. See Martinez Report, Exhibit A, Significant Event Bulletin, Case #2018-10-19-12184, Docket Entry No. 19-1, p. 10. 2 -2- Swallow claims that described brie he was assaulted by another inmate, is below. Swallow noticed that another inmate in his cellblock was "looking" at him while Swallow was out of his cell, helping to clean the dormitory. 3 Swallow told the inmate, who Swallow does not name, to "stay away" from him because he was "not interest[ed] him." 4 A week later, Swallow claims that the inmate entered cell after Swallow had returned from the shower. 5 s The other inmate then began to masturbate while fondling Swallow' s anus. 6 inmate, who left before doing anything else, threatened to The 1 Swallow if he reported the assault or if "anyone found out." 7 On the same morning that the assault occurred, Swallow reported the incident to a detention officer who is identified as "Defendant John Doe." 8 The officer told Swallow to return to his cell and lock the door while he completed a report about assault. 9 Swallow contends that the officer "neglected his duty" to immediately report the incident in compliance with a Harris County 3 Complaint, Docket Entry No. 1, p. 7. 4 Id. 6 Id. at 7-8. 7 Id. at 8. 8 Id. 9 Id. -3- Sheriff's Office policy that was designed to implement the Prison Rape Elimination Act ("PREA") and that this failure to act exposed Swallow to risk of further assault by the inmate who fondled him.10 With assistance from other inmates, Swallow then submitted an "I60" to alert officers of the abuse. 11 Swallow was removed from the dorm during the next shift "by protocol of (PREA) regulation."12 Swallow was transferred from the Harris County Jail to TDCJ after he was convicted in 2019.13 In a Complaint that is dated June 22, 2020, Swallow now sues Harris County Sheriff Ed Gonzalez for failing to protect him abuse[d] October of 2018 "from being sexual[ly] by another offender."14 Swallow also sues the officer as Defendant John Doe for identi ling to comply with Harris County policy by promptly reporting the incident immediately after Swallow disclosed the assault. 15 Invoking 42 U.S.C. § 1983, Swallow seeks compensatory and punitive damages from both defendants. 16 10 Id. at 8 9. i2Id. Plaintiff' s MDS, Question 1. 13 1 4 Docket Entry No. 12, Complaint, Docket Entry No. 1, p. 3. at 4. -4- p. 2, response to II. Standard of Review Federal district courts are required by the Prison Litigation any Reform Act ("PLRA") to screen prisoner complaints to identi cognizable claims or dismiss the case if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. See Crawford-El v. Britton, 118 S. Ct. 1584, 1596 (1998) (summarizing provisions found the PLRA, including the requirement that district courts screen prisoners' complaints and summarily dismiss frivolous, malicious, or meritless actions);.§.§..§. also Coleman v. Tollefson, 135 S. Ct. 1759, 1761-62 (2015) (discussing the screening provision found in the federal in forma pauperis statute, 28 U.S.C. § 1915(e) (2), and reforms enacted by the PLRA that were "'designed to filter out the bad claims [filed by prisoners] and facilitate consideration of the good'") (quoting Jones v. Bock, 127 S. Ct. 910, 914 (2007)) (alteration in original). A complaint is frivolous if either in law or in fact.'" "' lacks an arguable bas Denton v. Hernandez, 112 S. Ct. 1728, 1733 (1992) (quoting Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989)). "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint al the violation of a legal interest which clearly does not exist." Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (citations and internal quotation marks omitted). "A complaint lacks an arguable basis in fact if, after providing the -5- plaintiff the opportunity to present additional facts necessary, the facts alleged are clearly baseless." when Talib v. , 138 F.3d 211, 213 (5th Cir. 1998) (citation omitted). To avoid dismissal for failure to state a claim, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level[.]" B lantic C Twombly, 127 S. Ct. 1955, 1965 (2007) (citation omitted). V If the complaint has not set forth "enough facts to state a claim to relief that is plausible on its face," it must be dismissed. at 1974. Id. In making this determination a reviewing court must "accept all well-pled facts as true, construing all reasonable inferences in the complaint in the light most favorable to the plaintiff." Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020). But it need not accept as true any "conclusory allegations, unwarranted factual inferences, or legal conclusions." Id. {internal quotation marks and citations omitted); see also White v. U.S. Corrections, LLC, 996 F.3d 302, 307 (5th Cir. 2021) (same). In other words, "[t]hreadbare recitals of the elements of a cause of action, suffice." supported by mere conclusory statements, do not Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing , 127 S. Ct. at 1965). The plaintiff represents himself in this case. required to give a pro se litigant's contentions Courts are a liberal construction. See Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) -6- (per curiam) (citation omitted); see also Haines v. Kerner, 92 S. Ct. 594, 595-96 (1972) (per curiam) (noting that allegations in a pro .§.Q complaint, however inartfully pleaded, are held to less stringent standards than formal pleadings drafted by lawyers) . Even under this lenient standard, pro se li gants are still required to "properly plead sufficient facts that, when liberally construed, Simbaki, state a plausible claim to relief [.]" Ltd., 767 F.3d 475, 484 r. (5th E.E.O.C. v. 2014) (citations omitted). III. A. Discussion Supervisory Liabi.lity Swallow sues Sheriff Gonzalez his capacity as a supervisory official in charge of the Harris County Sheriff's Office, which operates the Harris County Jail. 17 A public official cannot be held vicariously liable under 42 U.S.C. § 1983 for the conduct of those under his See supervision. Alderson Concordia v. Parish Correctional Facility, 848 F.3d 415, 419 (5th Cir. 2017) (citing Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992)). Supervisory deliberate officials are indifference policies that causally accountable and res for in for their implementing injury. Id. own acts of unconstitutional To establish supervisory liability under § 1983 a plaintiff must allege either 17 Complaint, Docket Entry No. 1, p. 3; Plaintiff's MDS, Docket Entry No. 12, pp. 13-14, response to Question 9. -7- that the official personally participated in acts that caused a constitutional deprivation or implemented unconstitutional policies causally re to s inj s. See Alderson, 848 F.3d at 421 (citing Mouille, 977 F.2d at 929). Swallow was persona pleadings. not allege facts showing that involved in the incident riff Gonzalez his referenced Likewise, as discussed further below, Swallow does not allege facts establishing that a constitutional violation occurred or that he is entitled to recover damages due to the existence of a constitutionally deficient policy attributable to Sheriff Gonzalez. See Thompkins v. Belt, 828 F.2d 298, 303-04 (5th 1987). against Sheriff Gonzalez must be Accordingly, the Compla dismissed for failure to state a claim. B. Fai1ure to Protect from Harm Swallow contends that Sheriff Gonzalez is liable for failing to protect him from sexual abuse by another inmate.18 Pret 1 detainees have a constitutional right under the Due Process Clause to protection from harm during r confinement. See Brumfield v. Hollins, 551 F.3d 322, 327 (5th Cir. 2008) (citing Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en bane)). The duty to protect pretrial detainees from harm under the Due Process Clause is the same as the one afforded to convicted prisoners under the 18 Comp , Docket Entry No. 1, p. 3. 8- Hare, 74 F.3d at 650 ("[T]he State owes the Eighth Amendment. same duty under the Due Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including . confinement."). . protection from harm, during their To state a claim in this context a plaintiff is required to establish that the defendant "'acted or failed to act with deliberate indifference to [his] needs.'" Shepherd v. Dallas County, 591 F.3d 445, 452 (5th Cir. 2009) (quoting Alderson, 848 F.3d at 41 648); see 74 F.3d at 0 (explaining that in an action based on "episodic acts or omissions," a pretrial detainee fference by the defendants") must show "subjective deliberate (citation omitted). The deliberate indifference standard is an "extremely high" one to meet. Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Mere negligent failure to protect an from attack does not justify liability under 42 U.S.C. § 1983. See Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 19 ). An official acts with deliberate indifference "only if he knows that the inmates face a substantial risk of serious harm and disregards that abate " sk by ling to take reasonable measures to Farmer v. Brennan, 114 S. Ct. 1970, 1984 (1994). Swallow, who has described the assault with detail, does not allege facts showing that Sheriff Gonzalez or any other official at the Jail knew that he faced a substantial risk of serious harm from 9- the inmate who assaulted him on the day in question. 19 Swallow acknowledges that the inmate made no threats and that he did not report any concerns before the assault occurred.20 Swallow does not otherwise allege that Sheriff Gonzalez or any other official was subjectively aware of but disregarded a serious risk to his safety before the assault occurred. Under these circumstances Swallow does not demonstrate that Sheriff Gonzalez or other officials at the Jail failed to protect him from harm with the requisite deliberate indifference. See Le gate v. Livingston, 822 F.3d 207, 209-10 (5th Cir. 2016); Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014); Pierce v. Collier, 843 F. App'x 619, 620 April 9, 2021) (per curiam). Therefore, (5th Cir. Swallow has failed to state a claim on which relief may be granted against Sheriff Gonzalez. C. Fai1ure to Comp1y with Po1icy Swallow contends that the John Doe Defendant referenced in his Complaint is liable for failing to comply with a policy in place at the Harris County Jail, which requires detention officers to report instances of sexual assault or abuse. 21 The Fifth Circuit has made Complaint, Docket Entry No. 1, pp. 7-8; Plaintiff's MOS, Docket Entry No. 12, pp. 6-7, response to Question 4(d). 19 Plaintiff's MOS, Docket Entry No. 12, pp. 9-10, response to Questions 5 and 6. 20 21 Complaint, Docket Entry No. 1, pp. 8-9. -10- it clear, however, that an of cer's mere failure to follow prison policy or regulations does not establish a constitutional violation for purposes of liability under 42 U.S.C. § 1983. See Williams v. Banks, 956 F.3d 808, 812 & n. 11 (5th Cir. 2020) ("Our case law clear . . . that a prison official's failure to follow the prison's own policies, procedures[,] or regulations does not constitute a violation of [the Eighth or Fourteenth Amendment], if constitutional minima are nevertheless met."). Although Swallow appears to fault the John Doe Defendant for delay, he acknowledges that the assault was reported the same day that it occurred and that he was removed from the dorm by the next shift.22 He was then treated according to the PREA protocol at the Jail. 23 Records provided by the Harris County Attorney's Of confirm that an investigation commenced on October 19, 2018, when officers were informed that Swallow had reported a sexual assault by another inmate.24 According to those records, Swallow reported that he was sexually assaulted by an inmate identified as Bobby Joe "Fergunsn [sic]," also known as Bobby Joe Ferguson ("Ferguson") (SPN 22 Id. at 9. d. 24 Martinez Report, Exhibit A, Significant Event Bulletin, Case #2018-10-19-12184, Docket Entry No. 19-1, p. 10; Detention Command - Inmate Offense Report 2018 58986 701, Docket Entry No. 19-1, p. 11. -11- #00302152) . 25 Swallow was treated the Jail medical clinic that same day, where he denied any "penetration or physical trauma," but alleged that he was sexually assaulted that morning when another inmate (Ferguson) molested him. 26 Swallow, who had a history of mental illness, was transferred to a local emergency room for a phys and mental evaluation. 27 The available records show that the assault was reported by officers at the Jail and that Swallow was relocated after being examined by medical providers the same day the assault occurred. 28 Swallow acknowledges that he was removed from the dormitory where his assailant was confined on the same day. 29 Swallow does not allege facts showing that he suffered any further harm from his attacker. Under these circumstances, Swallow does not demonstrate that Defendant John Doe acted or violated the Constitution. John Doe Defendant will be led to act in a manner that Therefore, Swallow's claim against the smissed. Because Swallow has been zsid. 26 Martinez Report, Exhibit C, Harris County Sheriff's Office Health Services, Triage Notes, Docket Entry No. 19-3, pp. 96, 97. at 99. Id. at 96-97, 99; Martinez Report, Exhibit A, evance Resolution Form, Inmate Grievance Board, Grievance #209828, Docket No. 19-1, p. 1; Significant Event Bulletin, Case #2018-10-1912184, Docket Entry No. 19-1, p. 10; Detention Command - Inmate Offense Report 2018-58986 701, Docket Entry No. 19-1, pp. 11 14. 28 29 Complaint, Docket Entry No. 1, p. 9. -12- afforded an opportunity to supplement his pleadings and has not established a valid claim, this action will be dismissed with prejudice.30 III. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Complaint for Violation of Civil Rights under 42 U.S. C. § 1983 ed by Elijah Burke Swallow (Docket Entry No. 1) is DISMISSED with prejudice. 2. The dismissal will count as a strike for purposes of 28 U.S.C. § 1915(g). 3. Swallow's Motion for an Order Compelling Disclosure or Discovery (Docket Entry No. 21) is DENIED. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. The Clerk will also provide a copy to the Three Strikes List at Three_Strikes@txs.uscourts.gov. SIGNED at Houston, Texas, on this the 29th day of November, 2021. SENIOR UNITED STATES DISTRICT JUDGE Swallow has filed a Motion for an Order Compelling Disclosure or Discovery (Docket Entry No. 21). The Motion does not include a certificate of service showing that Swallow provided a copy to the Harris County Attorney's Office. Therefore, Swallow's Motion for an Order Compelling Disclosure or Discovery {Docket Entry No. 21) will be denied. 30 -13-
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