The opinion
March 25, 2020
IN THE UNITED STATES DISTRICT COURT
David J. Bradley, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KIRK WAYNE MCBRIDE, SR., §
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Plaintiff, §
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v. § Civil Action No. H-18-1437
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JONI WHITE, et al., §
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Defendants. §
MEMORANDUM OPINION AND ORDER
Plaintiff, a state inmate proceeding pro se and in forma pauperis, filed an amended
complaint in this section 1983 lawsuit. (Docket Entry No. 32.) Plaintiff complains that
Texas Department of Criminal Justice (“TDCJ”) employees Joni White, Holly Baird, Kelly
Pagoda, and Melissa Bennett violated his constitutional rights at the Wynne Unit in 2017.
Having screened the amended complaint pursuant to section 1915, the Court
DISMISSES this lawsuit without prejudice for the reasons shown below.
I. BACKGROUND AND CLAIMS
Plaintiff’s prison health summary for classification (“HSM-18”)1 exhibit shows that,
on January 30, 2012, he had prison work restrictions at the Beto Unit against walking over
200 yards, bending from the waist, repetitive squatting, prolonged standing, climbing, lifting
more than twenty pounds, and humidity extremes. (Docket Entry No. 22-1, p. 1.) He was
1An HSM-18 is a prison health summary form that documents an inmate’s housing and/or
work restrictions. Medical providers determine whether any work or housing restrictions are
necessary. Prison officials use the HSM-18 in making housing and job assignments.
not to be assigned to food service or medical jobs. Id. Although plaintiff alleges that the
HSM-18 also precluded exposure to direct sunlight, extreme temperatures, environmental
pollutants, chemicals, and irritants, these restrictions do not appear on his HSM-18 of
January 30, 2012.
Plaintiff states that he was released to parole in 2014, and was returned to confinement
in 2017 following revocation proceedings and the subsequent revocation of his parole. Prior
to the revocation, plaintiff was placed in the Joe Kegans Intermediate Sanctions Facility
(“ISF”) until June 2017. Plaintiff’s HSM-18 for the ISF, dated May 2, 2017, indicated that
he worked at the ISF as a janitor and had no work restrictions other than medical jobs.
(Docket Entry No. 22-1, p. 3.) Plaintiff’s parole was subsequently revoked in July 2017.2
Following his parole revocation, plaintiff was returned to TDCJ and placed in regular
prison housing. During his confinement at an undisclosed prison unit, plaintiff was provided
a medical lay-in pass effective September 27, 2017. According to plaintiff’s exhibit, the pass
expressly indicated his job status as “Transient Pend[ing] Diag[nostic] Processi[ng].”
(Docket Entry No. 22-1, p. 6.) Thus, by its own terms, the pass excused plaintiff from work
assignments pending completion of his diagnostic processing as a transient inmate.
In November 2017, plaintiff was transferred to the Wynne Unit, where he claims he
was assigned to work in “industry” in violation of the lay-in pass issued by his prior unit.
Plaintiff states that his complaints to defendants Bennett, Baird, and Pagoda were ignored,
2The background facts of plaintiff’s 2017 parole revocation proceedings appear in McBride
v. Davis, C.A. No. SA-18-0831-DAE (W.D. Tex. Oct. 4, 2019).
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and that working in violation of the lay-in pass aggravated his pre-existing medical condition.
He alleges that defendant White was in a position to remedy the situation, but she refused.
Plaintiff seeks a declaratory judgment, a permanent injunction banning his working
in prison, and monetary damages.
II. ANALYSIS
A. Section 1915
Because plaintiff is an inmate proceeding in forma pauperis, the Court is required by
federal law to scrutinize the claims and dismiss the complaint, in whole or in part, if it
determines that the complaint “is frivolous, malicious, or fails to state a claim upon which
relief may be granted,” or “seeks monetary relief from a defendant who is immune from such
relief.” 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B); see also 42 U.S.C. § 1997e(c) (providing that
the court “shall on its own motion or on the motion of a party dismiss an action” if it is
satisfied that the complaint is “frivolous, malicious, fails to state a claim upon which relief
can be granted, or seeks monetary relief from a defendant who is immune from such relief”).
Plaintiff proceeds pro se in this lawsuit. Complaints filed by pro se litigants are
entitled to a liberal construction and, however “inartfully” pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, even under this lenient standard, a pro se plaintiff must allege
more than “labels and conclusions,” and may not rely on a “formulaic recitation of the
elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus,
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threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, will not suffice. Id.
B. Deliberate Indifference
Given a liberal construction, plaintiff’s allegations in his amended complaint raise
claims against the defendants for deliberate indifference to his health and safety.
As an inmate, plaintiff had a clearly established Eighth Amendment right not to be
denied, by deliberate indifference, attention to his health and safety. See Gobert v. Caldwell,
463 F.3d 339, 345 (5th Cir. 2006). Prison officials violate the Eighth Amendment
prohibition against cruel and unusual punishment when they evince deliberate indifference
to a prisoner’s health and safety, resulting in unnecessary and wanton infliction of pain.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). Deliberate indifference raises a cause of action
under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 105-07 (1976); Jackson v. Cain,
864 F.2d 1235, 1244 (5th Cir. 1989).
It is well established that a prison official cannot be found liable under the Eighth
Amendment unless the official knows of and disregards an excessive risk to inmate health
and safety; that is, 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 draw the inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Easter v. Powell, 467 F.3d 459, 463
(5th Cir. 2006). The Eighth Amendment 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.
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2001). “Actions and decisions by officials that are merely inept, erroneous, ineffective or
negligent” do not amount to deliberate indifference. Doe v. Dallas Indep. Sch. Dist., 153
F.3d 211, 219 (5th Cir. 1998).
C. Medical Lay-In Pass
Plaintiff contends that the defendants were deliberately indifferent to his health and
safety by not honoring his medical lay-in pass. He states that he made the defendants aware
of the pass, but that they told him he would be given a disciplinary charge for refusing to
work if he did not turn out for his assigned job. Plaintiff claims in conclusory fashion
without supporting factual allegations that the work assignment “aggravated his pre-existing
medical condition.”
The terms of the lay-in pass, as set forth by plaintiff, show that the pass was not
intended to be permanent or even long term in nature. As noted, the pass identified
plaintiff’s job status on September 27, 2017, as “transient pending diagnostic processing.”
Even assuming the pass were valid and enforceable at the Wynne Unit, plaintiff pleads no
factual allegations supporting a claim that the defendants were deliberately indifferent to his
health and safety in insisting that he work. Specifically, he pleads no factual allegations
showing that the defendants knew of and disregarded an excessive risk to his health and
safety in requiring him to work. Plaintiff fails to factually support his claim that the
defendants were aware of facts from which the inference could be drawn that a substantial
risk of serious harm to plaintiff existed, and that they drew the inference. Contrary to
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plaintiff’s contentions, the defendants’ refusal to recognize the lay-in pass does not, standing
alone, give rise to deliberate indifference.
Plaintiff also claims that TDCJ practices forced medical personnel to alter medical
records in conformity with prison officials’ instructions. According to plaintiff, this resulted
in deletions and fabrications in his medical records to support removal of his 2012 work
restrictions. Plaintiff’s conclusory allegation that his records were altered is insufficient to
demonstrate a prison “practice.” Regardless, his claim of altered or falsified medical records
fails to raise a claim for relief under section 1983, as no violation of a constitutional right is
presented.
Plaintiff’s pleading raises no viable section 1983 claim for relief, and his claims
against the defendant are DISMISSED WITHOUT PREJUDICE.
D. State Law Claims
To the extent plaintiff raises state law claims against the defendants, the claims are
based in state law and do not raise cognizable federal claims for purposes of section 1983.
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental or
pendent jurisdiction over a state law claim when it has dismissed all claims over which it has
original jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); see
also Enochs v. Lampasas County, 641 F.3d 155, 161 (5th Cir. 2011). Because the Court is
dismissing all of plaintiff’s federal claims, it declines to exercise supplemental or pendent
jurisdiction over any state law claims he may have raised in this lawsuit.
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Plaintiff’s state law claims are DISMISSED WITHOUT PREJUDICE. See Wong
v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989).
III. CONCLUSION
This lawsuit is DISMISSED WITHOUT PREJUDICE for plaintiff’s failure to raise
a viable claim for relief under section 1983. Any and all pending motions are DENIED AS
MOOT.
Plaintiff was allowed to proceed in forma pauperis at the time he filed this lawsuit.
The Fifth Circuit Court of Appeals has subsequently determined that plaintiff is a “three
strikes” inmate who may no longer proceed in forma pauperis in district court or on appeal
pursuant to section 1915(g). See McBride v. Texas Board of Pardons and Paroles, No. 19-
50099 (5th Cir. 2019). Consequently, should plaintiff elect to pursue an appeal of the
dismissal in this case, he will not be granted leave by this Court to proceed in forma pauperis
on appeal.
SIGNED at Houston, Texas on the __2_5 day of March, 2020.
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KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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