# Striz v. Collier

> District Court, S.D. Texas · August 29, 2019

URL: https://www.frixlaw.com/law-library/cases/10672640

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 29, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT August 29, 2019
FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
GALVESTON DIVISION

AARON STRIZ, §
TDCJ # 00838215 §
§
Plaintiff, §
§
VS. § CIVIL ACTION NO. 3:18-0202
§
BRIAN COLLIER, et al., §
§
Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff Aaron Striz, an inmate at the Texas Department of Criminal Justice–
Correctional Institutions Division (“TDCJ”), filed this civil rights action alleging that he
is confined in administrative segregation at the Darrington Unit in violation of the Due
Process Clause and other constitutional guarantees. The Court ordered service on three
Defendants at TDCJ’s Darrington Unit: Warden Butcher, Major Pharr, and Unit
Classification Manager Davis. Defendants filed a motion to dismiss (Dkt. 12), to which
Plaintiff responded (Dkt. 13). Simultaneously with his response, Plaintiff filed a
proposed supplemental pleading (Dkt. 13-1). In addition, Plaintiff has filed a motion for
leave to file an amended complaint (Dkt. 11), a motion for appointment of counsel (Dkt.
14), and a letter inquiring about whether discovery motions are permitted at this stage of
the case (Dkt. 15).
Plaintiff alleges that he has been confined in administrative segregation for more
than 17 years and that TDCJ has no valid penological reason to continue to confine him
there. He also alleges that, although he receives regular classification reviews, the
hearings are a perfunctory sham. He claims that he has fulfilled every requirement listed
by TDCJ for release from administrative segregation and has satisfied all requirements to

disassociate from gang membership, but that TDCJ continues to deny him release based
on gang affiliation information that TDCJ acknowledges is outdated. He also claims that
TDCJ imposes conditions for release, such as completion of the GRAD program, with
which TDCJ then makes it impossible for him to comply by denying him admission to
the program.

Plaintiff has filed multiple grievances regarding his classification every year since
2010, at three different TDCJ units, including after every periodic classification review of
his housing status. All of the grievances have been denied.
Plaintiff brings claims for violation of his constitutional rights under the Due
Process Clause, the Equal Protection Clause, and the Eighth Amendment (Dkt. 1). His

proposed amended pleadings seek to add claims under the Ex Post Facto Clause and the
First Amendment’s prohibition on retaliation (Dkt. 11-1). The proposed amended
pleadings also seek to add two new Defendants from the Darrington Unit: Assistant
Warden James Powers and Classification Chief Myra M. Montez. Plaintiff’s proposed
supplemental complaint (Dkt. 13-1) alleges that in February 2019, after he filed this suit,

Defendants changed their reason for his confinement in administrative segregation and
continue to deny him release to general population. Defendants have not opposed
Plaintiff’s requests to amend or supplement his pleadings.
Plaintiff seeks (1) a declaratory judgment that his rights have been violated; (2)
injunctive relief in the form of either (a) release from administrative segregation or (b) an
order directing TDCJ to allow him to participate in the GRAD program and thus earn his
release from administrative segregation; and (3) punitive damages in the amount of $125

for each day he was wrongfully confined in administrative segregation (Dkt. 1; see Dkt.
11-1).
I. Motion to Dismiss (Dkt. 12)
Defendants Butcher, Pharr, and Davis, the three defendants on whom the Court
ordered service, have filed a motion to dismiss (Dkt. 12) and Plaintiff has responded

(Dkt. 13). A motion to dismiss under Rule 12(b)(6) may be granted if the pleading
“fail[s] to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In
considering a Rule 12(b)(6) motion, courts generally must accept the factual allegations
contained in the complaint as true. Harrington v. State Farm Fire & Cas. Co., 563 F.3d
141, 147 (5th Cir. 2009). Federal pleading rules require “only ‘a short and plain

statement of the claim showing that the pleader is entitled to relief.’” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting FED. R. CIV. P. 8(a)(2)). The complaint
must, however, contain sufficient factual allegations, as opposed to legal conclusions, to
state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
677–78 (2009); see Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). The

pleadings also must claim that the plaintiff is entitled to relief under a valid legal theory.
See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005).
Defendants first urge that Plaintiff may not seek monetary damages against
Defendants in their official capacities. A claim against a state employee in his or her
official capacity is a claim against the State of Texas. See Mayfield v. Tex. Dep’t of
Crim. Justice, 529 F.3d 599, 604 (5th Cir. 2008). Because the Eleventh Amendment

protects the states’ sovereign immunity, federal courts lack jurisdiction over suits against
a state for money damages unless the state has waived its immunity or Congress has
clearly abrogated that immunity. NiGen Biotech, L.L.C., v. Paxton, 804 F.3d 389, 393–
94 (5th Cir. 2015); Moore v. La. Bd. Of Elem. And Secondary Educ., 743 F.3d 959, 963
(5th Cir. 2014). Texas has not waived its Eleventh Amendment immunity, and Congress

did not abrogate that immunity when enacting Section 1983. NiGen, 804 F.3d at 394.
Therefore, any claims for money damages against Defendants in their official capacities
are subject to dismissal for lack of jurisdiction under the Eleventh Amendment. Plaintiff
does not oppose this portion of Defendants’ motion, and clarifies in his response that he
is not seeking money damages against Defendants in their official capacities (Dkt. 13, at

1). Defendant’s motion to dismiss on this issue therefore will be granted under Rules
12(b)(1) and 12(b)(6).
In all other respects, Defendants’ motion to dismiss will be denied without
prejudice to Defendants’ arguments raised in the motion. Simply put, the motion to
dismiss does not comprehensively engage the facts alleged by Plaintiff, including his

allegation that he has been confined in administrative segregation for 17 years with
perfunctory hearings that offer no realistic possibility of release to general population.
Defendants cite authority that confinement in administrative segregation, absent atypical
or extraordinary circumstances, does not implicate a constitutional liberty interest (Dkt.
12, at 3-4 (citing, e.g., Sandin v. Conner, 515 U.S. 472 (1995)). However, as Plaintiff
argues in response, Defendants’ briefing does not address whether extraordinary
circumstances are present in this case, and does not analyze the applicability of other

potentially relevant authorities. See, e.g., Wilkinson v. Austin, 545 U.S. 209 (2005);
Wilkerson v. Goodwin, 774 F.3d 845 (5th Cir. 2014); Hernandez v. Velasquez, 522 F.3d
556 (5th Cir. 2008). As the Fifth Circuit recently has held, the duration of an inmate’s
confinement in segregation and the nature of the confinement are relevant under the
Sandin test and, in some cases, “effectively indefinite” detention in segregation may

constitute an “atypical and significant hardship” under Sandin. See Wilkerson, 774 F.3d
at 855. On the current record, the Court cannot assess the applicability of these
authorities to Striz’s claims.
Defendants’ motion also wholly fails to address Plaintiff’s claims under the Equal
Protection Clause or the Eighth Amendment.

For these reasons, Defendants’ request that the Court dismiss all of Plaintiff’s
claims against them with prejudice is not warranted on this record. See FED. R. CIV. P.
12(b)(6); Harrington, 563 F.3d at 147 (in reviewing a motion under Rule 12(b)(6), a
plaintiff’s claims must be viewed “in the light most favorable to the plaintiff and with
every doubt resolved on his behalf”) (internal citations and quotation marks omitted).

Defendants’ motion will be denied without prejudice except as specifically granted
above.
II. Motion to Amend (Dkt. 11) and Motion to Supplement (Dkt. 13)
Plaintiff has filed a motion for leave to amend his pleadings (Dkt. 11) and also
seeks to file supplemental pleadings (Dkt. 13-1). Defendants have not opposed either
request.1
A. Legal Standards

Rule 15(a) provides that a court “should freely give leave [to amend] when justice
so requires.” FED. R. CIV. P. 15(a)(2). A court must have a “substantial reason” to deny
a request for leave to amend. Stem v. Gomez, 813 F.3d 205, 215 (5th Cir. 2016). Leave
to amend is not automatic, and the decision to grant or deny leave to amend “is entrusted
to the sound discretion of the district court.” Pervasive Software Inc. v. Lexware GmbH

& Co., 688 F.3d 214, 232 (5th Cir. 2012) (internal citation and quotation marks omitted).
A district court “should consider factors such as undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party, and futility of amendment.” In re Am.
Int’l Refinery, Inc., 676 F.3d 455, 466-67 (5th Cir. 2012) (internal citation and quotation

marks omitted).
In addition, Rule 15(d) permits supplemental pleadings at the discretion of the
Court:
On motion and reasonable notice, the court may, on just terms, permit a
party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be
supplemented. The court may permit supplementation even though the
original pleading is defective in stating a claim or defense. The court may
order that the opposing party plead to the supplemental pleading within a
specified time.

1 Plaintiff’s proposed supplemental pleadings (Dkt. 13-1) were not docketed as a separate
motion, but were served on Defendants with Plaintiff’s response. Defendants did not file a reply.
FED. R. CIV. P. 15(d). Although Rule 15(a), which pertains to amended pleadings,
provides that leave to amend should be “freely given,” the text of Rule 15(d) contains no
such provision. See Burns v. Exxon Corp., 158 F.3d 336, 343 (5th Cir. 1998); Lewis v.

Knutson, 699 F.2d 230, 239 (5th Cir. 1983); Lowrey v. Beach, 708 F. App’x 194, 195
(5th Cir. 2018). Nevertheless, “the discretion exercised in deciding whether to grant
leave to amend is similar to that for leave to file a supplemental pleading.” Lewis, 699
F.2d at 239. In exercising its discretion, the district court should consider whether
permitting the pleading would cause undue delay in the proceedings or undue prejudice

to the nonmovant, the movant is acting in bad faith or with a dilatory motive, the movant
has previously failed to cure deficiencies by prior pleadings, or the proposed pleading is
futile in that it adds nothing of substance to the original allegations or is not germane to
the original cause of action. Id.
B. Additional Defendants

Plaintiff’s motion for leave to amend seeks to bring claims against two additional
defendants at the Darrington Unit: Classification Chief Myra M. Montez and Assistant
Warden James Powers. Regarding Montez, Plaintiff alleges that she was involved in his
classification review in August 2018, after Plaintiff’s original complaint had been filed.
Regarding Powers, he alleges that he investigated Striz’s grievances filed after the

August 2018 classification review. Striz seeks prospective, injunctive relief, and his
allegations against both Powers and Montez involve facts similar to, and related to, the
facts and claims already in this lawsuit. Therefore, the Court in its discretion will grant
leave to amend as to Montez and Powers. See Am. Int’l Refinery, 676 F.3d at 466-67.
C. Ex Post Facto Clause Claim
Plaintiff seeks leave to add a claim under the Ex Post Facto Clause. He alleges
that TDCJ officials at the Darrington Unit currently are confining him in administrative

segregation based on the pretext of an “SPD code policy” that was enacted after Striz was
assigned to administrative segregation based on gang membership (Dkt. 11-1, at 16-17).
Because this claim involves basically the same facts as those supporting his original
claims and will not cause delay or prejudice to Defendants, the Court in its discretion will
grant leave to amend in the interest of justice. See Am. Int’l Refinery, 676 F.3d at 466-67.

D. First Amendment Retaliation Claim
Finally, Plaintiff seeks to add a claim under the First Amendment’s prohibition
against retaliation. To sustain a retaliation claim under the First Amendment, an inmate
must establish (1) a specific constitutional right; (2) the defendant’s intent to retaliate
against him for exercising the right, (3) a retaliatory adverse act, and (4) causation.

Baughman v. Hickman, ___ F.3d ____, 2019 WL 3820065, at *7 (5th Cir. Aug. 15,
2019). The causation element requires the plaintiff to demonstrate that the adverse action
against him would not have occurred but for the official’s retaliatory motive. See Nieves
v. Bartlett, 139 S. Ct. 1715, 1722 (2019).
Plaintiff alleges that three officials at the Estelle Unit (Rigsby, Vincent, and

Schurr) violated his First Amendment rights in 2017 “by retaliating against him when he
refused to end his hunger strike, the purpose of which was to bring attention to his
situation and seek redress of his grievances” (Dkt. 11-1, at 17). See also Dkt. 1, at 9-10
(alleging that Rigsby, Vincent, and Schurr “became confrontational, provocative, and
then retaliatory when plaintiff refused to engage their hostile provocations and refused to
end his hunger strike” because they “acknowledged the problem [regarding
administrative segregation], but stated they weren’t going to do anything to solve it”).

Striz already was confined in administrative segregation at the time of the three
officers’ alleged conduct in 2017. His allegations fail to identify any retaliatory adverse
action taken by these officers. See Baughman, 2019 WL 3820065, at *7. Moreover, to
the extent he claims he was injured by these officials because he continued to be confined
in administrative segregation after their alleged retaliation, he fails to state a claim that

this continued confinement would not have occurred but for the officials’ allegedly
retaliatory adverse action. See Nieves, 139 S. Ct. at 1722.
Additionally, Plaintiff no longer is confined at the Estelle Unit, where Rigsby,
Vincent, and Schurr allegedly retaliated against him. Therefore, even if he had
adequately stated a claim for relief under the First Amendment, his claim for prospective

injunctive relief against these officials would be futile because they lack authority over
his current assignment to administrative segregation.2
Plaintiff’s motion to amend his complaint to bring a First Amendment retaliation
claim therefore will be denied as futile. See Am. Int’l Refinery, 676 F.3d at 466-67.
E. Changed Justification for Confinement

Plaintiff alleges that he received another classification review in February 2019,

2 The injunctive relief Striz seeks is an order for Defendants “to either immediately release
plaintiff from administrative segregation to the general population or immediately transfer
plaintiff to the GRAD Program where he may earn his way back into the general population by
completing said Program” (Dkt. 11-1, at 17).
after his complaint was filed, and that Defendants “abruptly and arbitrarily changed their
excuse for keeping [him] in ad seg,” now claiming that Plaintiff is an “escape risk” or
“assaultive” (Dkt. 13-1, at 1-2). Because this case is at its early stages, and because the

new facts alleged in the proposed supplement are relevant to Plaintiff’s original claims in
this lawsuit, the Court in its discretion will allow the supplemental pleading under Rule
15(d). See Lewis, 699 F.2d at 239.
III. Motion for Appointment of Counsel (Dkt. 14)
Striz moves for appointed counsel to assist him in litigating this case (Dkt. 14).

There is no automatic constitutional right to appointment of counsel in civil rights cases.
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982). A district court may appoint counsel to advance the proper
administration of justice in exceptional circumstances and where an indigent litigant has
colorable claims that will not receive a meaningful hearing without counsel. See 28

U.S.C. § 1915(e)(1); Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015); Ulmer,
691 F.2d at 213. When deciding whether to appoint counsel, the Court considers the type
and complexity of the case, whether the indigent litigant can adequately investigate and
present his case, and the level of skill required to present the evidence. Baranowski, 486
F.3d at 126.

Striz thus far has shown himself capable of self-representation and has filed
appropriate motions for relief. The Court finds that this is not an exceptional case
involving complex legal issues that would justify the appointment of counsel at this time.
As the case progresses, however, the Court will revisit the issue on its own motion as
necessary.
IV. CONCLUSION
For the reasons stated above the Court ORDERS as follows:
1. Defendants’ motion to dismiss (Dkt. 12) is GRANTED in part and
DENIED in part. Plaintiffs claims for money damages against Defendants
in their official capacities are DISMISSED with prejudice. In all other
respects, Defendants’ motion to dismiss is DENIED without prejudice to
the arguments raised in the motion.
2. Plaintiff's motion for leave to amend (Dkt. 11) is GRANTED in part and
DENIED in part. Plaintiff's request for leave to bring a First Amendment
retaliation claim is denied as futile. In all other respects, Plaintiff's motion
for leave to amend is granted.
4. Plaintiff may pursue relief based on the facts alleged in his proposed
supplemental pleadings (Dkt. 13-1).
5. Defendants Butcher, Pharr, Davis, Montez, and Powers are instructed to
answer the claims against them as outlined in the Amended Order to
Answer, which will be separately entered on the Court’s docket.
6. Plaintiff's motion for appointment of counsel (Dkt. 14) is DENIED at this
time.
7. Apart from the limited discovery outlined in paragraph 2 of the Amended
Order to Answer, no further discovery will be permitted except on further
order of the Court.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 29th day of August, 2019.

Alee-a¢ 2. Plans
George C. Hanks Jr.
United States District Judge

11/11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10672640. Public record. Not legal advice.