Collins v. Herrera et al, No. 4:2018cv02940 - Document 29 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 16 Motion to Dismiss, striking 20 - 25 Proposed Amended and Supplemental Complaints, denying 26 MOTION for Discovery, denying 27 MOTION for Discovery, denying 28 MOTION suspension of copy rule (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Collins v. Herrera et al Doc. 29 United States District Court Southern District of Texas ENTERED May 20, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DOUGLAS COLLINS, TDCJ #298978, § § § § § § § § § § Plaintiff, v. WARDEN ROBERT HERRERA, Defendant. David J. Bradley, Clerk CIVIL ACTION NO. H-18-2940 MEMORANDUM OPINION AND ORDER The plaintiff, Douglas Collins, 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 in the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ"). He has also provided a Response to the Court['s] Order for More Definite Statement ("Plaintiff's MDS") 9). (Docket Entry No. Now pending is Defendant [Robert] Herrera's Motion to Dismiss under Fed. R. Civ. P. 12 (b) (1) and 12 (b) (6) (Docket Entry No. General's Office. 16), which was by the State Attorney Collins has filed a Response to the Attorney General's Motion for Dismissal Entry No. 18). filed ("Defendant's Motion") ("Plaintiff's Response") (Docket He has also filed several amended or supplemental complaints (Docket Entry Nos. 20, 21, 23, 24, 25), two motions for discovery (Docket Entry Nos. Rule" (Docket Entry No. 28). 26, 27), and a "Motion to Suspend After reviewing all of the pleadings, and the applicable law, the Defendant's Motion will be granted and this case will be dismissed for the reasons explained below. Dockets.Justia.com I. Background Since 2015, Collins has been incarcerated at the Pack Unit in Navasota, Texas, where Warden Herrera is employed TDCJ. 1 by Collins alleges that environmental testing conducted in connection with a different lawsuit in the Southern District of Texas, Cole v. Collier, No. 4:14-cv-1698, disclosed elevated levels of arsenic in the water supply at the Pack Unit. 2 On June 21, 2016, the district court in Cole found that arsenic levels at the facility posed "a low, but measurable, preliminary increased injunction, risk of ordering cancer," then-Executive and entered a Director Brad Livingston and officials at the Pack Unit to provide water that conformed to the Environmental Protection Agency ("EPA") maximum contaminant level requirements for arsenic. 3 1 Comp1aint, Docket Entry No. 1, pp. 1, 3; Plaintiff's MDS, Docket Entry No. 9, p. 1. Collins was also briefly assigned to the Pack Unit in 2012, until his release from prison on some unspecified date in 2013. Plaintiff's MDS, Docket Entry No. 9, p. 1. For purposes of identification, all pagination refers to the page number imprinted by the court's electronic filing system, CM/ECF. 2 Plaintiff' s MDS, Docket Entry No. 9, pp. 1-2 (referencing Civil Action No. 4:14-cv-1698, which is the Cole v. Collier class action involving exposure of inmates with certain medical conditions to excessive heat in the summer). 3 See Order for Preliminary Injunction in Cole v. Collier, Civil No. 4:14-cv-1698 (Docket Entry No. 477), p. 10, ~ 29 & p. 15. At the time the injunction was entered, former Executive Director Brad Livingston was the lead defendant. After Livingston retired, current TDCJ Executive Director Bryan Collier was substituted as the lead defendant in the Cole case. -2- Although an upgraded water filtration system was installed to remedy the problem in 2017, Collins contends that conditions remain unsafe because no effort was made to replace the pipes or flush out the "build up of arsenic" in the pipes. 4 Collins contends that continued exposure to high levels of arsenic has caused sores all over his body, which health care providers have been unable to explain or diagnose. 5 Because arsenic is a carcinogen, also fears that someday he may suffer from cancer. 6 Collins Collins blames Warden Herrera, who is the only defendant remaining in this case, 7 for failing to replace all of the pipes at the Pack Unit. 8 seeks $150, 000.00 in compensatory damages for his Collins exposure to unsafe conditions. 9 Warden Herrera moves to dismiss Collins's claim for monetary damages against him in his official capacity, arguing that he is entitled to immunity as a state employee. 10 that Collins monetary fails damages to under assert the facts Prison showing Herrera also argues he Litigation is entitled to Reform 4 Plaintiff's MDS, Docket Entry No. 9, pp. 1-2. 5 Id. at 2. 6 Id. 7 Act (the See Order and Request for Answer, Docket Entry No. 11, pp. 14 (requesting an answer from Warden Herrera and dismissing all of the other defendants). 8 Complaint, Docket Entry No. 1, p. 3. 10 Defendant's Motion, Docket Entry No. 16, p. 2. -3- "PLRA"), 42 U.S.C. § 1997e(e), and that he is entitled to qualified immunity from the claims against him in his individual or personal capacity. 11 II. Standard of Review The 12 (b) ( 1) defendant has filed a motion under Fed. R. Ci v. P. to dismiss the plaintiff's claim for monetary damages against him in his official capacity for lack of subject matter jurisdiction. matter "A case is properly dismissed for lack of subject jurisdiction when the court lacks constitutional power to adjudicate the case." Inc., 402 F.3d 489, 494 (5th Cir. 2005) the statutory or Krim v. ocOrder.com, (citations omitted). The defendant also moves to dismiss under Fed. R. Civ. P. 12 (b) ( 6), arguing that the plaintiff fails to otherwise state facts that would support a claim for monetary damages as a matter of law. Motions to dismiss under Rule 12(b) (6) are appropriate only where the plaintiff's complaint fails to state a claim upon which relief can be granted. Federal pleading rules require only "a short and plain statement of the claim" showing that the pleader is entitled to relief. FED. R. Crv. P. 8 (a) • As the Supreme Court has emphasized, Rule 8 does not require "heightened fact pleading of specifics," Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1975 (2007), or "detailed factual allegations." 11 Id. at 3-8. -4- Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). However, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Twombly, 12 7 S. Ct. at 1965). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (alteration in original) . "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" (quoting Twombly, 127 S. Ct. at 1965). to dismiss, the court accepts as Iqbal, 129 S. Ct. at 1949 "When considering a motion true the well-pled factual allegations in the complaint, and construes them in the light most favorable to the plaintiff." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citation omitted). are not bound to true elements of a accept cause as of action, However, courts "[t] hreadbare recitals supported mere by of the conclusory statements," or legal conclusions couched as factual assertions. Iqbal, 129 S. Ct. at 1949; see Hale v. King, 642 F.3d 492, 499 (5th Cir. 2 011) (" [ P] laintiffs must allege facts that support the elements of a cause of action in order to make out a valid claim") (citation omitted). 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. See Haines v. -5- Kerner, 92 S. Ct. 594, 596 (1972) (per curiam); see also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) construed[.]"') ( 197 6) ) . ("A document filed pro se is 'to be liberally (quoting Estelle v. Gamble, 97 S. Ct. 285, 292 Nevertheless, "pro se parties must still brief the issues and reasonably comply with [federal procedural rules]." Cuellar, 59 F.3d 523, 524 Grant v. (5th Cir. 1995) (citations omitted). III. Discussion A. Eleventh Amendment Official Immunity Warden Herrera contends that he is entitled to immunity under the Eleventh Amendment from Collins's claim against him in his official capacity as a state employee. 12 Unless expressly waived, the Eleventh Amendment bars an action in federal court by a citizen of a state against his or her own state, including a state agency. See Martinez v. Texas Dep't of Criminal Justice, 300 F.3d 567, 574 (5th Cir. 2002). As a state agency, TDCJ is immune from a suit for money damages under the Eleventh Amendment. 138 F.3d 211, 213 (5th Cir. 1998). See Talib v. Gilley, The Eleventh Amendment also bars a recovery of money damages under 42 U.S.C. employees in their official capacity. § 1983 from state See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2001); Aguilar v. Texas Dep't of Criminal Justice, (5th Cir. 12 160 F.3d 1052, 1054 1998). The court will Defendant's Motion, Docket Entry No. 16, p. 2. -6- therefore grant the Defendant's Motion to dismiss Collins's request for monetary damages against him in his official capacity. 13 B. Physical Injury Requirement Warden Herrera also moves to dismiss Collins's claim for monetary damages because he has not alleged facts showing that he suffered a physical injury as conditions of his confinement. 14 a result of the complained of The Prison Litigation Reform Act ("PLRA"), which governs this case, precludes a federal civil action by a prisoner for "mental or emotional injury" without a showing of physical injury. 42 U.S.C. § 1997e(e). The Fifth Circuit has held that this restriction "applies to all federal civil actions" filed by prisoners, "making compensatory damages for mental or emotional injuries non-recoverable, absent physical injury." Geiger v. Jowers, 404 F. 3d 371, 375 (5th Cir. 2005). To the extent that Collins fears that he may contract cancer in the future as the result of his exposure to arsenic, the Fifth 13 There is a narrow exception to Eleventh Amendment immunity where claims for injunctive relief are concerned. See Aguilar, 160 F. 3d at 1054 (citing Ex parte Young, 28 S. Ct. 441 (1980)). Although Collins appears to request injunctive relief in his proposed Amended Complaint, Docket Entry No. 20, p. 4, he does not demonstrate that this exception applies because he does not state sufficient facts showing that a constitutional violation has occurred or is ongoing for reasons detailed further below. See NiGen Biotech, LLC v. Paxton, 804 F.3d 389, 394-95 (5th Cir. 2015) (explaining that declaratory or injunctive relief under Ex parte Young requires a plaintiff to demonstrate an ongoing violation of federal law or unconstitutional conduct). 14 Defendant's Motion, Docket Entry No. 16, pp. 3-5. -7- Circuit has concluded that psychological distress based on speculation that medical care may be necessary in the future due to exposure to a hazardous substance is not sufficient to satisfy the physical injury requirement found in the PLRA and will not support a prisoner's claim for compensatory damages. Holiday, 238 F. 3d 660, 666 (5th Cir. 2001) contracting a future illnessu as the See Herman v. (stating that "fear of result of exposure to asbestos, without an accompanying physical injury, was insufficient to allow a claim of compensatory damages under§ 1997e(e)); see Hawkins v. Trents Flying Svc., 1899587, at *1 (5th Cir. 2002) for monetary damages 45 F. (per curiam) filed in App'x 325, 2002 WL (dismissing a complaint connection with the aerial application of pesticides near the plaintiff's prison unit). The only other injury that Collins identifies in his pleadings are the sores on his skin, which he claims are the result of his exposure to a build up of arsenic in the pipes at the Pack Unit. 15 Collins admits, diagnosis that however, arsenic is that the he has cause not of received any medical his sores. 16 Although Collins has provided a more definite statement of his claims and numerous 15 amended or supplemental pleadings, none of these Plaintiff's MDS, Docket Entry No. 9, p. 2. 16 Plaintiff' s MDS, Docket Entry No. 9, pp. 2-3; Plaintiff's Response, Docket Entry No. 18, pp. 1-2 (noting that he has been seen by medical providers with the University of Texas Medical Branch, who have been unable to diagnose his skin condition). -8- submissions contain facts establishing that his skin condition is the result of exposure to arsenic or any failure on the part of prison officials to replace the pipes at the Pack Unit following the installation of an upgraded water filtration system in 2017. For example, in a grievance submitted as an exhibit to one of his supplemental complaints Collins blames his skin condition on high levels of calcium in the water supply. 17 Likewise, in support of an amended complaint Collins provides an unsworn affidavit from another prisoner at the Pack Unit, who states that he has been tested for "scabies" and treated with antibiotics for itchy sores similar to the ones described by Collins, but he makes no mention of a diagnosis that attributes his condition to arsenic. supplemental complaint provided by Collins 18 reflects Another that he continues to receive medical care for a rash from the Dermatology Clinic at the University of Texas Medical Branch ("UTMB") Hospital in Galveston, but there has been no diagnosis linking his skin condition to lingering amounts of arsenic in the pipes at the Pack Unit facility. 17 19 In Cole the court found that the levels of arsenic Step 1 Grievance #2019056853, Docket Entry No. 21-1 p.1. 18 Affidavi t of Charles Lee Williams Entry No. 20, at 7. 19 (TDCJ #7 57877), Docket Supplemental Complaint, Docket Entry No. 25, p. 4. Collins was told by a physician's assistant that his skin condition could have come from being bitten by "a bug." Id. Collins presents evidence showing that on April 4, 2019, he was prescribed the corticosteroid "Triamcinolone Acetonide Cream" to be applied twice (continued ... ) -9- in the Pack Unit's water supply were "low enough that scientists would not expect them to cause any non-cancerous health effects." 20 The district court noted, moreover, that there was "no evidence in the record that the water at the Pack Unit poses a health risk if used for showering. " 21 After considering all of his submissions, the court concludes that Collins Complaint, has not alleged sufficient his more definite statement, facts, either in his or any of his proposed amended or supplemental pleadings, showing that he has suffered a physical injury as the result of any failure on the part of Pack Unit officials to replace the water pipes. Therefore, Collins's claim for compensatory damages is precluded by§ 1997e(e). C. Qualified Immunity Warden Herrera also moves to dismiss the claim for monetary damages against him in his individual or personal capacity. 22 He argues that he is entitled to qualified immunity from suit because Collins has not alleged facts establishing that he acted with the 19 continued) daily for 30 days to treat his skin. Id. at 7. This refutes any suggestion by Collins that he has been denied medical care for his condition. ( ••• 20 See Order for Preliminary Injunction in Cole v. Collier, Civil No. 4:14-cv-1698 (Docket Entry No. 477), p. 10, ~ 28. ~ 21 Id. at 22 Defendant's Motion, Docket Entry No. 16, pp. 5-8. 31. -10- requisite deliberate indifference to demonstrate a violation of the Eighth Amendment. 23 Public officials acting within the scope of their authority generally are shielded from civil liability by the doctrine of qualified immunity. 2738 ( 1982) . See Harlow v. Fitzgerald, 102 S. Ct. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Briggs, 106 S. overcome Ct. qualified 1092, 1096 (1986). immunity must show: conduct." 'clearly established' Ashcroft v. al-Kidd, at the 131 S. Malley v. A plaintiff seeking to " ( 1) violated a statutory or constitutional right, right was 2727, that the official and (2) that the time of the Ct. 2074, challenged 2080 (2011) (citation omitted). Collins has not demonstrated that Warden Herrera violated his constitutional rights. of his confinement Collins's claims concerning the conditions are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment, i.e., the "unnecessary and wanton infliction of pain." Wilson v. Seiter, 111 S. Ct. 2321, 2323 (1991) 291 (1976)). (quoting Estelle v. Gamble, 97 S. Ct. 285, 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[.]" Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994). 23Id. -11- Specifically, "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 of "the minimal civilized necessities." Farmer, 114 S. Ct. at 1977 Ct. 2399). Cir. 1999) See, ~' measure of life's (quoting Rhodes, 101 S. Palmer v. Johnson, 193 F.3d 346, 354 (5th (finding that conditions violated the Eighth Amendment where inmates were herded into a small outdoor space, deprived of 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 that prison officials acted with "deliberate indifference" 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." -12- Domino v. Texas Oep'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. Collins has not established that he has been exposed to a sufficiently serious condition that poses a substantial risk of harm or that Warden Herrera knew of, but consciously disregarded such a condition. Collins's unsupported assertion that water at the Pack Unit remains tainted by arsenic following installation of the upgraded filtration system is not sufficient to support a claim under the Eighth Amendment. 166, 2019 WL 1421152, *8 prisoner's Eighth See Walker v. Collier, Civil No. 6:17- (E.D. Tex. March 28, 2019) Amendment claim based on no (rejecting a more than his personal belief that water at the prison was contaminated) . Likewise, as outlined above, Collins has not articulated facts showing that he has suffered a physical injury as the result of -13- Warden Herrera's alleged failure to replace the water pipes at the Pack Unit. A prisoner cannot state an Eighth Amendment claim if he does not demonstrate that he suffered some injury as a result of the alleged violation. (5th Cir. 1997). See Siglar v. Hightower, 112 F.3d 191, 193 Because Collins has failed to state a claim upon which relief may be granted, he has not overcome Warden Herrera's entitlement to qualified immunity. Accordingly, Defendant's Motion will be granted and this case will be dismissed. D. Plaintiff's Motions After Warden Herrera submitted his motion to dismiss Collins filed two motions for discovery seeking copies of evidence from the Cole case and records of medical tests that were conducted on him at a "free-world Hospital" on March 26, 2019, and at the Pack Unit on April 5, Rule," which 2019. 24 seeks He also filed a separate "Motion to Suspend copies of unspecified letters that Collins reportedly filed with the district court in the Cole lawsuit. 25 Collins does not demonstrate, however, would the show or how any of what the requested items requested information would substantiate his claims. 24 Motion for Discovery, Docket Entry No. 26, p. 2; Motion for Discovery, Docket Entry No. 27, p. 3. 25 Motion to Suspend Rule, Docket Entry No. 28, pp. 1-2. -14- Collins has also submitted an "Amended Complaint" against Warden Herrera, 26 and he has filed four other pleadings, each one labeled as a "Supplemental Complaint. " 27 Collins did not seek leave of court before filing these proposed pleadings. Order Granting Motion to Proceed In Forma In the court's Pauperis, the court specifically informed Collins that "[n]o amendments or supplements to the complaint will be filed without prior approval" and that any unauthorized amendment or supplement would be stricken and not considered. 28 None of Collins's motions or proposed amended and supplemental complaints contain a certificate of service showing that he has provided a copy to Warden Herrera's counsel of record in compliance with Fed. R. Civ. P. 5(a). The court specifically advised Collins that he was required to include a certificate of service for every pleading, motion, or other document submitted to the court, showing that he had provided a copy of his submissions to the defendant's counsel. 29 Although a prose litigant's filings are entitled to a liberal construction, pro se parties are still required to "abide by the 26 Amended Complaint, Docket Entry No. 20, pp. 1-12. 27 See Docket Entry Nos. 20, 21, 23, 24, 25. 28 0rder Granting Motion to Proceed In Forma Pauperis, Entry No. 4, pp. 2-3, ~ 6. 29 0rder to Answer, Docket Entry No. 11, pp. 3-4, -15- ~ 7. Docket rules that govern the federal courts." Frazier v. Wells Fargo Bank, N.A., 541 F. App'x 419, 421 (5th Cir. 2013) and internal quotation marks omitted) . (per curiam) The (citation Fifth Circuit has emphasized that "[2.1.J;:Q se litigants must properly plead sufficient facts that, when liberally construed, state a plausible claim to relief, serve defendants, obey discovery orders, present summary judgment evidence, file a notice of appeal, and brief arguments on appeal." 2014) E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, (footnotes omitted) . 484 (5th Cir. Because Collins has disregarded the court's clear instructions and the rules of procedure, his motions and his amended or supplemental pleadings will be stricken from the record. 30 Alternatively, his motions for discovery and his implicit requests for leave to amend or supplement will be denied. IV. Conclusion Based on the foregoing, the court ORDERS as follows: 1. Defendant Robert Herrera's Motion to Dismiss (Docket Entry No. 16) is GRANTED, and this civil action will be dismissed with prejudice. 30 In an abundance of caution, the court has considered all of the proposed amended and supplemental complaints submitted by Collins in this case (Docket Entry Nos. 20, 21, 23, 24, 25). Even if Collins had properly requested leave to amend or supplement, the court would have denied the request as futile because none of the proposed submissions correct the deficiencies described in Defendant's Motion. See Marucci Sports, LLC v. National Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014); see also Stipling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (holding that leave to amend may be denied as futile if the proposed amendment would fail to state a claim upon which relief could be granted) . -16- 2. All of the plaintiff's motions (Docket Entry Nos. 26, 27, 28) and his proposed amended and supplemental complaints (Docket Entry Nos. 20, 21, 23, 24, 25) are STRICKEN from the record for failure to comply with court orders and the rules of procedure. 3. Alternatively, all of the plaintiff's motions (Docket Entry Nos. 26, 27, 28) and his implicit requests for leave to file amended or supplemental complaints (Docket Entry Nos. 20, 21, 23, 24, 25) are DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 20th day of May, 2019. SIM LAKE UNITED STATES DISTRICT JUDGE -17-
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