Land v. Gage et al, No. 4:2015cv02607 - Document 57 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting 45 MOTION for Summary Judgment , denying 54 MOTION to Seal All Proceedings (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Land v. Gage et al Doc. 57 United States District Court Southern District of Texas ENTERED June 20, 2018 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DAVID LAND, § § § § § § Plaintiff, v. SHERIFF RAND HENDERSON, et al., Defendants. 1 David J. Bradley, Clerk CIVIL ACTION NO. H-15-2607 § § § MEMORANDUM OPINION AND ORDER The plaintiff, David Land, has filed a Prisoner's Civil Rights Complaint under 42 U.S.C. § 1983 ("Complaint") (Docket Entry No. 1) concerning the conditions of his confinement at the Montgomery County Jail, which is operated by the Montgomery County Sheriff's Office ("MCSO"). for Summary Pending before the court is Defendants' Motion Judgment filed by Montgomery County Henderson and Lieutenant Myrick ("Defendants' MSJ") No. 45). Land has filed a Motion of Response Answers ("Plaintiff's Response") Seeking That All Seal") exhibits, and the Rand (Docket Entry to Defendants' (Docket Entry No. 51) and a Motion Proceedings Be Sealed (Docket Entry No. 54). Sheriff ("Plaintiff's Motion to After considering the pleadings, the applicable law, the court will grant the 1 The Complaint listed former Montgomery County Sheriff Tommy Gage, who has since retired, as the lead defendant. The court has substituted current Montgomery County Sheriff Rand Henderson, who succeeded Gage, as the proper party pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Dockets.Justia.com Defendants' MSJ and will dismiss this case for the reasons explained below. I. Background In December of 2013 Land was in custody at the Montgomery County Jail, pending administrative against him criminal segregation (child charges. 2 because pornography) the and He nature his was of status housed the as in charges a former sheriff's deputy, who previously worked as a detention officer at the Harris County Jail, put him at risk of violence by other inmates. 3 While he was confined at the Montgomery County Jail in March of 2013, about a Land told his defense attorney that he had information fellow inmate housed near him in administrative segregation, Robert L. Wilson, who had made inculpatory admissions about murder December 13, charges 2013, that were pending Land entered a pornography charges against him. 5 against guilty plea to him. 4 the On child- Shortly before he entered that 2 Complaint, Docket Entry No. 1, p. 4. For purposes of identification, all page numbers refer to the pagination inserted at the top of the page by the court's electronic filing system, CM/ECF. Affidavit of Jeremiah Richards ("Richards Affidavit"), attachment 3 to Defendants' MSJ, Docket Entry No. 45-3, p. 3 ~ 15. 3 Plaintiff' s More Definite Statement, Docket Entry No. 25, p. 3; Complaint, Docket Entry No. 1, p. 4; Letter, attachment 2 to Complaint, Docket Entry No. 1-2, p. 1. 4 Plaintiff' s More Definite Statement, pp. 1-2. 5 -2- Docket Entry No. 25, plea, Land sent a letter to Lieutenant Myrick at the Montgomery County Jail stating that he had overheard inculpatory remarks made by Wilson and that he wanted to "testify" him. 6 According to Land, Dotson) December contacted 9, the 2013, another officer at the Jail District Attorney's regarding Land's offer Office to against (Sergeant by e-mail testify on against Wilson. 7 On December 16, 2013, Wilson returned to his cell following a visit with his criminal defense attorney who, coincidentally, also represented Land. 8 During this visit Wilson allegedly found out that Land had offered to testify against him, and Wilson began to threaten Land's life and the lives of his family. On January 7, Lieutenant Myrick, however, Jail. 11 2014, 9 Land allegedly sent another letter to complaining about Wilson's threats. 10 Myrick, failed to intervene or move Land to another area of the Land contends that he was subject to verbal abuse "night and day" and endured a "hostile environment" for a period of 106 6 Letter, Docket Entry No. 45-1, pp. 6-7; Plaintiff's More Definite Statement, Docket Entry No. 25, pp. 13-16. 7 Plaintiff' s More Definite Statement, Docket Entry No. 25, p. 3. 8 Complaint, Docket Entry No. 1, p. 4; Definite Statement, Docket Entry No. 25, p. 2. 9 Plaintiff's More Complaint, Docket Entry No. 1, p. 4. 10 Plaintiff' s More Definite Statement, p. 5. ncomplaint, Docket Entry No. 1, p. 4. -3- Docket Entry No. 25, and day" and endured a "hostile environment" for a period of 106 days until he was transferred to the Texas Department of Criminal Justice ("TDCJ") on March 31, 2014. 12 During this time, Land claims that Wilson threatened him on a daily basis, reminding Land that Wilson could easily find him because Land would have to register as a sex offender for the rest of his life. 13 Land believes that "Jail Administration" did not move him away from Wilson at the request of prosecutors and that Jail "staff" was "listening in" to overhear threats Wilson in court. 14 that could be used against Land complains that he was used as bait. 15 Land did not ultimately testify against Wilson, who reportedly entered a plea agreement in the case against him. 16 Because of Wilson's threats, Land suffered recurring nightmares and developed ulcers in his stomach due to the mental anguish he experienced. 17 Arguing that his constitutional rights were violated by housing him in a "hostile environment," Land seeks 12 Id.; Plaintiff's More No. 25, p. 2 and pp. 7-8 ~ 5. 13 Definite Statement, Plaintiff' s More Definite Statement, Docket Entry Docket Entry No. 25, p. 7. 14 Complaint, Docket Entry No. 1, p. 4; Definite Statement, Docket Entry No. 25, p. 6. 15 Plaintiff' s More Definite Statement, 16 Id. p. 6. -4- Plaintiff's Docket Entry No. More 25, damages from the defendants under 42 U.S.C. § 1983 and a formal apology for the psychological abuse that he endured. 18 The answer court to Henderson. 19 the authorized service of Complaint from process Lieutenant and requested an Myrick and Sheriff These defendants now move for summary judgment, noting that Land did not exhaust administrative remedies as required by the Prison Litigation Reform Act before filing suit. 20 ( "PLRA") , 42 U.S. C. § 1997e (a) , The defendants argue in the alternative that Land's claims fail as a matter of law because he does not show that Lieutenant Myrick violated a clearly established constitutional right and he does not otherwise overcome Myrick's entitlement to qualified immunity. 21 The defendants also argue that Land has not established the liability of Sheriff Henderson, who is sued in his capacity as a supervisory official. 22 II. Standard of Review Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Under this rule a reviewing court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is 18 Complaint, Docket Entry No. 1, pp. 3, 4. 0rder for Service of Process, Docket Entry No. 27; Supplemental Order for Service of Process, Docket Entry No. 34. 19 20 Defendants' MSJ, Docket Entry No. 45, pp. 7-9. 21 Id. at 9-18. 22 Id. at 18-23. -5- entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986). A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, An issue is Inc., 106 S. Ct. 2505, 2510 (1986). "'genuine'" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. In deciding a summary judgment motion the reviewing court must "construe all facts and inferences in the light most favorable to the nonmoving party." Dillon v. Rogers, Cir. quotation 2010) However, (internal the non-movant qualified immunity Hidalgo County, original) . is marks 596 F.3d 260, and "cannot rest on asserted. 246 F.3d 481, 490 citation [his] Bazan, (5th Cir. et 266 omitted) . pleadings" rel. 2001) (5th where Bazan v. (emphasis in Nor can the non-movant avoid summary judgment simply by presenting "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation." Jones v. 344, 348 (5th Cir. 2012) Lowndes County, Mississippi, 678 F.3d (quoting TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002)); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en bane) (a non-movant cannot demonstrate a genuine issue of material fact with conclusory allegations, scintilla of evidence) . unsubstantiated assertions, or only a If the movant demonstrates an "absence of evidentiary support in the record for the nonmovant's case," the -6- burden shifts to the nonmovant to "come forward with specific facts showing that there is a genuine issue for trial." Young County, Texas, 866 F.3d 274, 279 (5th Cir. Sanchez v. 2017) Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 2010)) i (citing (5th Cir. see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). The plaintiff proceeds pro se in this case. Courts construe pleadings filed by pro se litigants under a less stringent standard than those drafted by lawyers. 594, S. 596 Ct. ( 1972) 2197, (per curiam) 2200 (2007) liberally construed [.] '") 285, 292 (1976)). See Haines v. Kerner, see also Erickson v. i ("A document filed pro se (quoting Estelle v. Gamble, 92 S. Ct. Pardus, is 127 'to be 97 S. Ct. Nevertheless, "prose parties must still brief the issues and reasonably comply with [federal procedural rules]." Grant v. omitted) by the Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citations The Fifth Circuit has held that "[t]he notice afforded Rules of Civil Procedure and the local rules" is "sufficient" to advise a pro se party of his burden in opposing a summary judgment motion. Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992) (per curiam). III. A. Discussion Exhaustion of Administrative Remedies Because Land was incarcerated when he filed his Complaint, this action is governed by the PLRA, which requires prisoners to -7- exhaust court. that administrative See 42 U.S.C. 1997e(a) § § remedies 1997e(a). mandates before filing suit in federal The Supreme Court has emphasized exhaustion of all administrative procedures before an inmate can file any suit challenging prison conditions. See Booth v. Churner, 121 S. Ct. 1819, 1825 (2001); Porter v. Nussle, 122 S. Ct. 983, 988 (2002); Woodford v. Ngo, 126 S. Ct. 910, 2378, 918-19 2382-83 (2007) (2006); see also Jones v. Bock, 127 S. Ct. (confirming that "[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"). To exhaust Montgomery process. 23 administrative County Jail is remedies required to an inmate complete a at the three-step First, the inmate must file a grievance with the Inmate Grievance Board, which will issue a reply. 24 Second, if the inmate is unsatisfied with the Inmate Grievance Board's reply, appeal that decision to the Jail Administrator. 25 Third, he must if the inmate is not satisfied with the Jail Administrator's decision, he must appeal to the Sheriff, whose decision is final. 26 The record shows that Land was aware of the administrative remedy process, which is explained to all inmates 23 Defendants' MSJ, Docket Entry No. 45, p. 7 24 Id. a t 7 - 8 cr 4 • 11 25 Id. a t 8 cr 4 • 11 26Id. -8- ~ 4. in the Jail Handbook, 27 and that "Grievance forms are available to any inmate. " 28 There is no evidence classification or the that Land conditions administrative segregation. 29 filed of a his grievance about housing assignment his in Land concedes that he did not file a formal grievance concerning the issues that he presents in his Complaint, explaining that he did not do so because he was denied access to grievance forms. 30 The defendants' evidence shows, however, that Land filed several formal grievances regarding issues unrelated to the Complaint, requisite forms while reflecting that he had access to the confined in administrative segregation. 31 Land's conclusory allegation that he was denied access to grievance forms is not sufficient to refute this evidence or raise a genuine issue of material fact. See Kidd v. Livingston, 463 F. App'x 311, 3 13 , 2 0 12 WL 614 3 7 2 , at * 1 ( 5th Ci r . 2 0 12 ) . Land also appears to argue that the letter he sent to Lieutenant Myrick in January of 2014 complaining about Wilson's threatening behavior should be considered sufficient to exhaust the Id. ~~5-6; Acknowledgment of Receipt, Docket Entry No. 45-1, p. 8 (Land's acknowledgment that he received and read a copy of the Inmate Handbook) . 27 28 Richards Affidavit, attachment 3 to Defendants' MSJ, Docket Entry No. 45-3, p. 1 ~ 3. 29 Id. at 1-2 ~~ 3-4. 30 Plaintiff' s Response, Docket Entry No. 51, p. 2. Nor is there any evidence that Land filed any informal grievances. 31 Inmate Grievance Forms, Docket Entry No. 45-1, pp. 3-5. -9- grievance process. 32 As the defendants note, however, Lieutenant Myrick was not a Jail Administrator. 33 There is no evidence that Jail Administration would have been aware of information imparted to Lieutenant Myrick in the letter. 34 Land cites no authority and the court has not found any case in which the writing of a letter, outside the context of a formal grievance procedure, sufficient to properly exhaust administrative remedies. was held The Fifth Circuit has repeatedly taken a "strict" approach, demanding proper compliance with administrative grievance procedures for purposes of satisfying the exhaustion requirement. F.3d 571, 582 (5th Cir. 2017) (citing See Butts v. Martin, 877 Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003)); see also Wilson v. Epps, 776 F.3d 296, 299-300 (5th Cir. grievance 2015) procedures requirement) is (observing that not enough to substantial satisfy compliance the exhaustion (citing Dillon, 596 F.3d at 268). Based on this record Land has not shown that he exhausted administrative remedies regarding his claims or that the grievance process was unavailable to him, and he has not raised a material fact question on this issue. The Fifth Circuit has emphasized that "pre-filing exhaustion of prison grievance processes is mandatory" and that district courts lack discretion to excuse a prisoner's failure to exhaust his administrative remedies. Gonzalez v. Seal, 32 Plaintiff's Response, Docket Entry No. 51, p. 2. 33 Richards Affidavit, Docket Entry No. 45-3, p. 3 34Id. -10- ~ 12. 702 F.3d 785, that Land 788 failed (5th Cir. to 2012). exhaust Because the record reflects available administrative remedies before filing this action, the defendants are entitled to summary judgment on this issue. Although this issue is dispositive, the court will also address the defendants' alternative arguments. B. Claims Against Lieutenant Myrick The defendants state that all of the events that form the basis of Land's Complaint took place after he pled guilty and was convicted of 2013. 35 the criminal charges against him on December 13, The defendants argue that Land fails violation of Constitution, the Eighth Amendment Ct. 1861, the United States which governs claims concerning the conditions of confinement by convicted prisoners. 36 S. to to demonstrate a 1869-70 (1979) See Bell v. Wolfish, 99 (comparing standards under the Due Process Clause that apply to pretrial detainees with standards under the Eighth Amendment that apply to those convicted of a crime); Hare v. City of Corinth, Mississippi, 74 F.3d 633, 639 (5th Cir. 1996) (same). Arguing further that Land fails to establish that a constitutional violation occurred, Lieutenant Myrick moves for summary judgment on the grounds that he is entitled qualified immunity from Land's claims against him. 37 35 Defendants' MSJ, Docket Entry No. 45, p. 15 36 Id. at 15-18. 37Id. -11- ~ 24. to 1. Qualified Immunity "The officials conduct doctrine 'from does known."' qualified liability not constitutional of for violate rights of immunity civil damages clearly which a protects government insofar established as their statutory or reasonable person would have Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738 (1982)). (quoting A plaintiff seeking to overcome qualified immunity must satisfy a two-prong inquiry by showing: constitutional "(1) that the official violated a statutory or right, and (2) that the right was established' at the time of the challenged conduct." al-Kidd, 131 S. Ct. 2074, 2080 (2011) A right is "clearly 'clearly Ashcroft v. (citation omitted) . established" if its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." 10 7 s. Ct. 3 0 3 4 3 0 3 9 ( 19 8 7) . I To make this showing, a plaintiff must point to "controlling authority persuasive authority - Anderson v. Creighton, or a robust consensus of that defines the contours of the right in question with a high degree of particularity." 659 F.3d 359, 371-72 (5th Cir. quotation marks omitted) . on point, 2011) (citations internal "existing precedent must have placed the statutory or S. Ct. 305, 308 (2015) an and While there need not be a case directly constitutional question beyond debate." is Morgan v. Swanson, "exacting Mullenix v. Luna, (quoting al-Kidd, 131 S. Ct. at 2083). standard," City and -12- County of San 136 This Francisco, California v. Sheehan, 135 S. Ct. 1765, 1774 (2015), that "protects 'all but the plainly incompetent or those who knowingly violate the law.'" Mullenix, 136 S. Ct. at 308 (quoting Malley v. Briggs, 106 S. Ct. 1092, 1096 (1986)). As this standard reflects, qualified immunity alters "[a] good-faith assertion of the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available." King v. Handorf, 821 F.3d 650, 653-54 (5th Cir. 2016) (internal quotation marks and citations omitted). must rebut the defense by establishing that "The plaintiff the official's allegedly wrongful conduct violated clearly established law and that genuine issues of material fact reasonableness of the official's conduct." exist the at 654 (quoting Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008)). Id. regarding "To negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present 'absolute proof,' Id. but must offer more than 'mere allegations.'" (quoting Manis v. Lawson, 585 F.3d 839, 843 2. (5th Cir. 2009)). Conditions of Confinement Under the Eighth Amendment As a convicted felon, Land's claims concerning the conditions of his confinement are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment, i.e., the "unnecessary and wanton infliction of pain." S. Ct. 2321, 2323 (1991) Wilson v. Seiter, 111 (quoting Estelle v. Gamble, 97 S. Ct. 285, -13- 291 (1976)). The Eighth Amendment prohibits the use of excessive physical force by correctional officers and also imposes certain duties on prison officials, "who must provide humane conditions of confinement[.]" Specifically, Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994). "prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates[.]" Id. (internal quotation marks and citations omitted). The Supreme Court has recognized, however, that prison conditions may be "restrictive and even harsh" without violating the Eighth Amendment, Rhodes v. Chapman, 101 S. Ct. 2392, 2399 (1981), noting that "the Constitution does not mandate comfortable prisons [.]" Id. at 2400. To demonstrate a violation of the Eighth Amendment where conditions of confinement are concerned, a prisoner must demonstrate that his confinement resulted in a deprivation that was "objectively, sufficiently serious," such that it resulted in the denial necessities." of "the Farmer, minimal 114 S. civilized Ct. at 1977 S. Ct. at 2399); Herman v. Holiday, 2001) . of life's (quoting Rhodes, 238 F.3d 660, 664 101 (5th Cir. To make this showing a plaintiff must demonstrate that he was denied "some basic human need." 581 measure (5th Cir. 1995) (citations Woods v. Edwards, 51 F.3d 577, and internal quotation marks omitted) . See, Cir. 1999) (finding that conditions violated the Eighth Amendment ~' Palmer v. Johnson, 193 F.3d 346, 354 (5th where inmates were herded into a small outdoor space, deprived of -14- protection from excessive cold and wind, and provided no sanitary means of disposing of their waste) . If a sufficiently serious deprivation is shown, a plaintiff must then show indifference" that prison officials acted with "deliberate to the effect this deprivation would have on his health and safety. Farmer, 114 S. Ct. at 1977 (citations omitted). "Deliberate indifference is an extremely high standard to meet." Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Eighth "[A] prison official cannot be found liable under the Amendment confinement for unless denying the an official inmate knows humane of and conditions of disregards an excessive risk to inmate health or safety; the official 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, 114 S. Ct. at 1979. A prison official acts with the requisite deliberate indifference "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 1984. The condition of verbal threats of confinement at harm by another issue concerns persistent inmate while Land was in administrative segregation, which reportedly caused Land to suffer recurrent nightmares, stress. As noted mental anguish, above, it is well and stomach ulcers due to established that prison officials have a duty to protect inmates from physical assault by -15- other inmates. assaulted criminal See Farmer, 114 S. Ct. at 1977 ("Being violently in prison offenders is pay simply for not their (quoting Rhodes, 101 S. Ct. at 2399) 'part offenses of the against penalty that society.'") However, Land does not cite, and the court has not found, any case which holds that an inmate has a constitutional right to be protected from verbal threats from another inmate. 38 Assuming that the threats and the attendant level of mental anguish posed a sufficiently serious deprivation of a basic human need, Land does not allege facts showing that Lieutenant Myrick was aware of the adverse effects on his health, but that he failed to take reasonable measures indifference. to abate the problem with deliberate Although Land reportedly sent Lieutenant Myrick a letter in January of 2014 complaining about the threats, he does not allege facts showing that he alerted Myrick to any ill effects on his health. Moreover, at the time the threats were made Land and Wilson were housed in administrative segregation where they could not interact and there was no threat of physical harm. Land has not presented evidence showing that a reasonable officer in 38 The Fifth Circuit has repeatedly held that verbal threats against an inmate by a prison guard do not amount to a constitutional violation and are not actionable under 42 U.S.C. § 1983. See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Robertson v. Plano City of Texas, 70 F.3d 21, 24 (5th Cir. 1995) (citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983)); Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993); Spicer v. Collins, 9 F. Supp. 2d 673, 683 (E.D. Tex. 1998) (citations omitted) . -16- Lieutenant Myrick's position would have known that Land was unsafe or that the conditions of confinement posed a health. danger to Land's Under these circumstances Land does not demonstrate that Myrick violated his constitutional rights by failing to move him to another area of the Jail when he was first apprised of the threats. Even assuming that a constitutional violation occurred, Land's claim that he was subjected to persistent verbal abuse in violation of the Eighth Amendment is not based on a particular holding or a robust consensus of cases of persuasive authority that places the question beyond debate. See Morgan, al-Kidd, 131 S. Ct. at 2084). 659 F.3d at 371-72 (citing Therefore, Land has not demonstrated that the challenged conduct violated a constitutional right that could be considered clearly established for purposes of qualified immunity. See Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015). As a result, Land fails to overcome Lieutenant Myrick's entitlement to qualified immunity; and the defendants are entitled to summary judgment on this issue. C. Claims Against Sheriff Henderson Land sues Sheriff Henderson in his capacity as a supervisory official who is responsible for the care, custody, and control of inmates at the Montgomery County Jail alleging that he failed to properly train his employees to separate inmates who complain about persistent verbal threats. 39 39 A supervisory official cannot be held Plaintiff's More Definite Statement, p. 8. -17- Docket Entry No. 25, liable under § 1983 for the actions of subordinates "on any theory of vicarious liability." Cir. 1987) Thompkins v. Belt, 828 F.2d 298, 303 (5th (citations omitted). "A supervisory official may be held liable . . . only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury." Cir. 446 (5th (internal quotation marks and citation omitted) 2011) Porter v. A supervisor may also be supervise if: "(1) failure plaintiff's amounts to to failure to train or the supervisor either failed to supervise or train rights; 659 F.3d 440, liable based on a train the subordinate official; the Epps, or and deliberate (2) a causal link exists between supervise ( 3) the and failure indifference." the to Id. violation of the train or supervise (quoting Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009)). "' [D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a obvious consequence of his action." known or Board of County Commissioners of Bryan County, Oklahoma v. Brown, 117 S. Ct. 1382, 1391 (1997); City of Canton, Ohio v. Harris, 109 S. Ct. 1197, 1204-05 (1989) ("Only where a municipality's failure to train its employees in a relevant rights of respect its evidences inhabitants a 'deliberate can such a indifference' shortcoming be to the properly thought of as a city 'policy or custom' that is actionable under -18- § 1983."). To establish the requisite deliberate indifference in this context, a plaintiff must show that the supervisory official had "actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights," but that the official nevertheless chose to retain that program. (2011) Connick v. Thompson, 131 S. Ct. 1350, 1360 (citation and internal quotation marks omitted) . "A pattern of similar constitutional violations by untrained employees ordinarily necessary to demonstrate deliberate is indifference," because "[w]ithout notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights." Id. Land has not demonstrated that his constitutional rights were violated in this case. Even assuming that a violation occurred, he has not established a pattern of similar violations as the result of a failure to train officers at the Jail or that the Sheriff maintained a deficient training program with deliberate indifference to the likelihood that such violations would occur. Because Land has not raised a genuine issue of material fact on this issue, he fails to establish liability on the part of Sheriff Henderson or his predecessor, former Sheriff Tommy Gage, who was in charge of the Jail while Land was there. Accordingly, defendants are entitled to summary judgment on this issue. -19- the IV. Land's Motion to Seal Citing the threats made by Wilson and concerns for his safety, Land has filed a motion to seal these proceedings. 40 oppose the request, The defendants noting that court proceedings and judicial records are typically open and accessible to the public as a matter of common law. 41 "Courts have recognized that the public has a common law right to inspect and copy judicial records." 990 F.2d 845, Communications, 848 (5th Inc., Broadcasting Corp. v. Cir. 98 Clark, s. 1993) Ct. S. E. C. v. Van Waeyenberghe, (citing 1306, 654 F.2d 423, Nixon 1312 429 v. Warner (1978); (5th Cir 1981)). Access may be restricted at a district court's discretion "where court files might have become a vehicle for improper purposes." Id. "' [T] he district court's discretion to seal the record of judicial proceedings is to exercised charily,'" and "must balance the public's common law right favoring nondisclosure." Id. of access against the interests There is a "strong presumption that [court] proceedings should be subject to scrutiny by the public" by remaining unsealed. United States v. Holy Land Foundation for Relief and Development, 624 F.3d 685, 690 (5th Cir. 2010) (quoting United States v. Ladd, 218 F.3d 701, 704 (5th Cir. 2000)) 40 Plaintiff's Motion to Seal, Docket Entry No. 54, p. 1. 41 Defendants' Response to Plaintiff's Motion to Seal, Docket Entry No. 56, p. 1. -20- The Complaint in this case stems from threats that were made against Land while he was in custody at the Montgomery County Jail over four years ago. Land, who was recently released from state prison on parole, has not presented any evidence showing that he has been subjected to any additional threats, either by Wilson or others associated with him, since Land was transferred from the Montgomery County Jail to TDCJ in 2014. is a matter of public record Moreover, Land's address because he is subject registration requirement as a convicted sex offender. circumstances, sealing these proceedings does public's right of access. Therefore, to a Under these not outweigh the Plaintiff's Motion to Seal will be denied. V. Conclusion and Order Accordingly, the court ORDERS as follows: 1. Defendants' Motion for Summary Entry No. 45) is GRANTED. Judgment (Docket 2. Plaintiff David Land's Motion Seeking That All Proceedings Be Sealed (Docket Entry No. 54) is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this the 20th day of June, 2018. SIM LAKE UNITED STATES DISTRICT JUDGE -21-
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