Opinion

McBride v. Davis-Director TDCJ-CID

Court
District Court, S.D. Texas
Filed
Mar 25, 2020
Cited by
0 cases
Authority
More cited than 31.9%

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., §

§

Plaintiff, §

§

v. § Civil Action No. H-18-1437

§

JONI WHITE, et al., §

§

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).

2

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,

3

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.

4

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

5

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.

6

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.

________________________________________

KEITH P. ELLISON

UNITED STATES DISTRICT JUDGE

7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.