Hernandez v. Kloesel

UNITED STATES DISTRICT COURT September 30, 2021

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

VICTORIA DIVISION

CANDELARIO HERNANDEZ §

§

Plaintiff, §

§

v. § Civil Action No. 6:20-cv-00034

§

AARON KLOESEL, COREY FURR, §

GENE MILLER, JOHN CIRONE, §

MANUEL PERALTA, and §

ESMEREJILDO MORENO, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Texas inmate Candelario Hernandez claims that the Defendant Aaron Kloesel, an

officer in the Texas prison system, beat him so badly that it left him comatose and

bleeding. Hernandez is suing Kloesel for violating his rights under the Eighth and

Fourteenth Amendments to the United States Constitution. He is also suing Kloesel’s

superiors (Corey Furr, Gene Miller, John Cirone, Manuel Peralta, and Esmerejildo

Moreno) for negligently supervising Kloesel. In addition, Hernandez alleges that Furr

and Moreno conspired to conceal Kloesel’s disciplinary record.

The Defendants filed Motions to Dismiss, asserting foremost that Hernandez

failed to exhaust his administrative remedies under the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e. Hernandez counters that he was not required to exhaust his

administrative remedies because he was in a coma and, as a result, unable to file a timely

grievance. For the following reasons, the Court GRANTS the Motions as set forth herein

and STAYS this case for a period of sixty days to allow Hernandez to exhaust his

administrative remedies.

I. BACKGROUND AND PROCEDURAL HISTORY

Hernandez alleges the following relevant facts, which the Court assumes are true

for purposes of this Motion. Kloesel has worked as an officer in the Texas prison system

since at least 2010. (Dkt. No. 1 at ¶ 10). In August and September 2016, while working

in the Connally Unit of the Texas Department of Criminal Justice (“TDCJ”), Kloesel

committed violations of prison policies involving his handling of inmates, which resulted

in his being placed on disciplinary probation.1 (Id. at ¶¶ 10–17). Kloesel was transferred

to the Stevenson Unit where he committed another violation involving an inmate in

August 2019, and he was placed on disciplinary probation for a second time. (Id. at ¶¶ 10,

18–24).2

On November 4, 2019, while incarcerated in the Stevenson Unit, Hernandez

sought medical attention for an arm injury. (Id. at ¶ 25). When he approached the

medical unit, Kloesel, who was standing at the door, told him to return to his cell. (Id.).

Hernandez explained to Kloesel that he needed medical treatment and had arrived at the

appropriate time to receive care. (Id.). Despite this explanation, Kloesel insisted that

Hernandez return to his cell. (Id.). Hernandez refused to leave the medical unit; instead,

1 Defendant Peralta was the warden in the Connally Unit when Kloesel committed those

violations. (Id. at ¶ 43). Defendants Cirone and Mille confronted Kloesel about the violations

prior to him being transferred to the Stevenson Unit. (Id. at ¶¶ 12–17).

2 Defendant Moreno, who was a captain in the Stevenson Unit, investigated this incident,

and Defendant Furr was the Stevenson Unit’s warden at the time it occurred. (Id. at ¶ 23).

he placed his foot at the bottom of the door to prevent it from closing and tried to

persuade Kloesel to allow him to get treatment. (Id.). In response, Kloesel threw

Hernandez to the ground, knocking him unconscious. (Id.). Medical personnel later

determined that Hernandez was comatose. (Id. at ¶ 28). He had sustained life-

threatening injuries to his head and had to be airlifted to Brook Army Medical Center in

San Antonio for treatment. (Id. at ¶¶ 29, 32).

At present, Hernandez is incarcerated in the Carol Young Medical Facility of the

TDCJ. (Id. at ¶ 3). He is no longer in a coma, but he suffers from permanent cognitive

disability, permanent memory and vision impairment, paralysis on the left side of his

body, and is unable to walk. He is so incapacitated that he wears diapers. (Id. at ¶¶ 32–

33).

Hernandez did not file a grievance in accordance with TDCJ procedures for the

harm he sustained on November 4, 2019. (Id. at ¶ 50). Hernandez alleges he was

incapable of filing a grievance because of his injuries. (Id.). Hernandez did, however, file

the present action against the Defendants on May 28, 2020.

In his three-count Complaint, Hernandez claims he is entitled to damages under

42 U.S.C. § 1983 for the Defendants’ violations of his rights secured by the Eighth and

Fourteenth Amendments. (Id. at ¶¶ 36–39). First, Hernandez asserts that Kloesel used

excessive force when he threw him to the ground. (Id. at ¶¶ 36–39). Second, Hernandez

asserts that Furr, Moreno, Peralta, Miller, and Cirone were deliberately indifferent to his

safety by failing to adequately supervise Kloesel. (Id. at ¶¶ 40–48). Last, Hernandez

asserts that Furr and Moreno conspired to conceal Kloesel’s disciplinary record. (Id. at

¶ 49). This alleged conspiracy resulted in Kloesel remaining employed with the TDCJ,

which provided him with the opportunity harm Hernandez. (Id.)

Furr, Moreno, Peralta, Miller, and Cirone filed a Motion to Dismiss under Rule

12(b)(6) of the Federal Rules of Civil Procedure and subsequently supplemented that

Motion. (Dkt. No. 13); (Dkt. No. 22). Kloesel filed a separate 12(b)(6) Motion to Dismiss.

(Dkt. No. 18). In their Motions, the Defendants argue that Hernandez’s Complaint must

be dismissed because he failed to exhaust his administrative remedies under the PLRA.

(Dkt. No. 18, 22). Hernandez filed a Response to both Motions. (Dkt. No. 24). Hernandez

admits that he failed to file a grievance against any of the Defendants under TDCJ

procedures to redress the harm he sustained on November 4, 2019. (Id. at ¶ 50).

Hernandez states that he “was assaulted into a coma, preventing him from any ability to

file a grievance[.]” (Id.).

II. DISCUSSION

A. MOTION TO DISMISS COMPLAINT FOR HERNANDEZ’S FAILURE TO EXHAUST

HIS ADMINISTRATIVE REMEDIES

1. Applicable Law

The Defendants move to dismiss Hernandez’s Complaint under Rule 12(b)(6) for

Hernandez’s failure to exhaust administrative remedies. Rule 12(b)(6) permits a

defendant to move to dismiss for “failure to state a claim upon which relief may be

granted.” Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Although

“the pleading standard Rule 8 announces does not require detailed factual allegations,”

it demands more than labels and conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,

127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (internal quotations omitted)).

In reviewing a 12(b)(6) motion to dismiss, a court must accept the plaintiff’s factual

allegations as true and view them in the light most favorable to the plaintiff. Mitchell v.

McBryde, 944 F.2d 229, 230 (5th Cir. 1991). “The court does not look beyond the face of

the pleadings in determining whether the plaintiff has stated a claim under Rule

12(b)(6).” Rivera v. Harris County, No. 4:19-CV-4920, 2020 WL 3871457, at *3 (S.D. Tex.

July 9, 2020) (citing Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999)). Review is limited

to the complaint’s allegations and to the documents attached to a defendant’s motion to

dismiss to the extent those documents are referred to in the complaint and are central to

the claims. See Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).

A district court can dismiss an inmate’s complaint for failure to state a claim if that

inmate failed to exhaust his administrative remedies in accordance with the PLRA. Jones

v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007). Moreover, “if the

complaint itself makes clear that the prisoner failed to exhaust,” then the court can

dismiss it. See Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007); see also Torns v. Mississippi

Dep’t of Corr., 301 F. App’x 386, 388 (5th Cir. 2008) (per curiam) (stating that a court may

sua sponte dismiss an inmate’s complaint for failure to state a claim when the complaint

“alleges facts that clearly foreclose exhaustion”). However, “failure to exhaust is an

affirmative defense under the PLRA, and . . . inmates are not required to specially plead

or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216, 127 S.Ct. at 921.

To comply with the PLRA’s exhaustion requirement, an inmate must “exhaust

such administrative remedies as are available before bringing suit to challenge prison

conditions.” Ross v. Blake, 578 U.S. 632, ___, 136 S.Ct. 1850, 1854–55, 195 L.Ed.2d 117 (2016)

(internal quotation marks omitted). However, a “prisoner need not exhaust remedies if

they are not ‘available.’” Id. at ___, 136 S.Ct. at 1855.

Specifically, the PLRA provides: “No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner confined

in any jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). In interpreting this statutory provision,

the Supreme Court has observed:

[The] mandatory language [in Section 1997e(a)] means a court

may not excuse a failure to exhaust, even to take such

circumstances into account. . . . No doubt, judge-made

exhaustion doctrines, even if flatly stated at first, remain

amenable to judge-made exceptions. . . . But a statutory

exhaustion provision stands on a different footing. There,

Congress sets the rules—and courts have a role in creating

exceptions only if Congress wants them to. For that reason,

mandatory exhaustion statutes like the PLRA establish

mandatory exhaustion regimes, foreclosing judicial

discretion.

Ross, 578 U.S. at ___, 136 S.Ct. at 1856–57.

Yet, the absence of a “special circumstances exception” does not end a court’s

inquiry as to whether a plaintiff has satisfactorily exhausted his administrative remedies

“because the PLRA contains its own, textual exception to mandatory exhaustion.” Id. at

___, 136 S.Ct. at 1858. Indeed, the PLRA’s “exhaustion requirement hinges on the

‘availab[ility]’ of administrative remedies: An inmate, that is, must exhaust available

remedies, but need not exhaust unavailable ones.” Id. Moreover, “the ordinary meaning

of the word “available” is ‘capable of use for the accomplishment of a purpose,’ and that

which ‘is accessible or may be obtained. . . .’ Accordingly, an inmate is required to

exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain

‘some relief for the action complained of.’” Id. at ___, 136 S.Ct. at 1858–59 (citations

omitted).

In Ross, the Supreme Court described “three kinds of circumstances in which an

administrative remedy, although officially on the books, is not capable of use to obtain

relief.” Id. at ___, 136 S.Ct. at 1859. First, “an administrative procedure is unavailable

when (despite what regulations or guidance materials may promise) it operates as a

simple dead end—with officers unable or consistently unwilling to provide any relief to

aggrieved inmates.” Id. (citing Booth v. Churner, 532 U.S. 731, 736, 738, 121 S.Ct. 1819,

1822, 1824, 149 L.Ed.2d 958 (2001)). Second, an administrative procedure is unavailable

when it is “so opaque that it becomes, practically speaking, incapable of use.” Id. at ___,

136 S.Ct. at 1859–60. Third, an administrative procedure is unavailable “when prison

administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Id. at ___, 136 S.Ct. at 1860.

Administrative remedies are available to Texas prisoners through the Texas prison

system’s formal grievance process, which the Fifth Circuit has described as a “detailed,

complex and carefully thought-out program to facilitate the filing of grievances and

assure their prompt, dispassionate investigation.” Wright v. Hollingsworth, 260 F.3d 357,

358 (5th Cir. 2001). This process encompasses two steps:

The Step 1 grievance, which must be filed within fifteen days

of the complained-of incident, is handled within the

prisoner’s facility. After an adverse decision at Step 1, the

prisoner has ten days to file a Step 2 grievance, which is

handled at the state level. . . . [A] prisoner must pursue a

grievance through both steps for it to be considered

exhausted.

Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004); see also Young v. Davis, No. 4:18-CV-

00005, 2019 WL 5071742, at *2 (S.D. Tex. Apr. 18, 2019).

The Fifth Circuit has adopted a “strict approach” of determining whether an

inmate has exhausted the procedures in the Texas prison system’s grievance process.

Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010). Under this approach, “mere substantial

compliance with administrative remedy procedures does not satisfy exhaustion . . . .” Id.

(internal quotation omitted). The Fifth Circuit has recognized, however, that

“administrative remedies are deemed unavailable when (1) an inmate’s untimely filing

of a grievance is because of a physical injury and (2) the grievance system rejects the

inmate’s subsequent attempt to exhaust his remedies based on the untimely filing of the

grievance.” Days v. Johnson, 322 F.3d 863, 868 (5th Cir. 2003) (per curiam), overruled by

implication on other grounds by Jones, 549 U.S. at 214–16, 127 S.Ct. at 920–21.3

3 The Fifth Circuit “emphasize[d] that [its] holding [in Days was] limited to the narrow

facts of [that] case.” Days, 322 F.3d at 868. However, the Fifth Circuit and this Court have applied

the holding in Days multiple times. See, e.g., Parker v. Adjetey, 89 F. App’x 886, 887–88 (5th Cir.

2004) (per curiam); Johnson v. Thaler, No. 6:10-CV-025, 2012 WL 1202138, at *5–6 (S.D. Tex. Apr. 9,

2012), aff’d, 507 F. App’x 370 (5th Cir. 2013) (per curiam); Washington v. Tex. Dep’t of Crim. Just.,

No. 2:05-CV-00011, 2006 WL 3245741, at *4–5 (S.D. Tex. Nov. 5, 2006). Moreover, the facts of this

case, in which Hernandez claims he was unable to file a grievance due to a physical injury, are

similar to those in Days. See Days, 322 F.3d at 864–68.

2. Analysis

Turning to this case, Hernandez had until November 19, 2019, to file his Step 1

grievance for the incident involving Kloesel that occurred on November 4, 2019.4 See

Johnson, 385 F.3d at 515 (stating that an inmate has fifteen days from the date on which

an incident occurred to file a Step 1 grievance); see also Young, 2019 WL 5071742, at *2

(same). Hernandez concedes that he never filed a grievance because he “was assaulted

into a coma, preventing him from any ability to file . . . .” (Dkt. No. 1 at ¶ 50).

In his Response, Hernandez contends that he is not required to exhaust his

administrative remedies because he was in a coma, and this prevented him from filing a

grievance prior to the November 19, 2019 deadline. In essence, Hernandez asserts that

the grievance process was unavailable to him because he was physically unable to file a

timely grievance. This assertion, however, contradicts Fifth Circuit precedent.

When an inmate alleges that he was unable to file a grievance due to an injury, a

court must undertake the following inquiry to determine whether administrative

remedies were unavailable to the inmate. First, the court must determine whether the

injury prevented the plaintiff from filing a timely grievance. See Ferrington v. La. Dep’t. of

Corr., 315 F.3d 529, 532 (5th Cir. 2002) (holding that the plaintiff’s alleged blindness did

not prevent him from filing a timely grievance). If so, the court must then determine

whether the inmate filed an untimely grievance when he was capable of submitting one.

See Washington v. Tex. Dep't of Crim. Just., No. 2:05-CV-11, 2006 WL 3245741, at *4–5 (S.D.

4 Hernandez admits in his Response that he had until November 19, 2019, to file a Step 1

grievance for the incident with Kloesel that occurred on November 4, 2019. (Dkt. No. 24 at 10).

Tex. Nov. 5, 2006). Finally, if the inmate filed an untimely grievance, the court must

assess whether “the grievance system reject[ed] the inmate’s subsequent attempt to

exhaust his remedies based on the untimely filing of the grievance.” Days, 322 F.3d at

868. If any one of these conditions is not satisfied, a court can dismiss the inmate’s

complaint. See Washington, 2006 WL 3245741, at *4–5 (dismissing without prejudice the

inmate’s complaint for failing to file an untimely grievance when the inmate’s physical

condition permitted him to file one).

Washington v. Tex. Dep't of Crim. Just., is instructive. In Washington, three inmates

attacked the plaintiff at a Texas prison facility, which resulted in his hospitalization. Id.

at *1. The plaintiff sued prison officials for failing to adequately supervise the area in

which the attack occurred. Id. Prior to bringing his lawsuit, “[i]t [was] undisputed that

[the plaintiff] did not file either a Step 1 or Step 2 administrative grievance with the

TDCJ.” Id. at *2. The “Plaintiff argue[d], however, that he was physically unable to

exhaust and that his failure should therefore be excused.” Id. The court, citing the Fifth

Circuit’s decision in Days, held that the plaintiff had failed to exhaust his administrative

remedies because, even though his physical injury prevented him from filing a timely

grievance, he never filed a grievance prior to initiating his suit, and “there [was] nothing

to suggest that his medical condition continued to prevent him from filing his grievance.”

Id. at *5 (emphasis added).

Here, Hernandez did not file a grievance prior to initiating this lawsuit against the

Defendants because he was comatose for some period after his encounter with Kloesel.

(Dkt. No. 1 at ¶ 50). Assuming Hernandez was comatose and was thus unable to file a

timely grievance, there are no allegations in the Complaint suggesting he could not have

filed a grievance sometime after November 19, 2019, when he was no longer comatose.5

Moreover, Hernandez filed this lawsuit on May 28, 2020. Of course, if Hernandez

could file a lawsuit on May 28, 2020, he could have filed an untimely grievance against

the Defendants on that date. See Ferrington, 315 F.3d at 532 (holding that the plaintiff’s

alleged blindness did not prevent him from filing a grievance, in part, because it “clearly

did not prevent him from filing a § 1983 action”); Brown v. HG Faculty, No. 3:15-CV-0178,

2018 WL 2388575, at *3–4 (S.D. Tex. May 25, 2018) (holding that an inmate who claimed

she could not file a timely grievance because she was “mostly sedated” had not exhausted

her administrative remedies because she filed a grievance on an unrelated matter during

the time period she claimed she was incapacitated). Yet, Hernandez never filed a

grievance. (Dkt. No. 1 at ¶ 50). Therefore, accepting the facts alleged in the Complaint

as true and construing them in the light most favorable to Hernandez, the Court

concludes that Hernandez failed to exhaust his administrative remedies under the

PLRA.6

5 The facts of Parker, 89 F. App’x at 887–88, are similar to those of this case. In Parker, the

inmate asserted that he was excused from the PLRA’s exhaustion requirement because the fifteen-

day deadline to file a Step 1 grievance had expired while he was comatose and hospitalized. Id.

at 887. The Fifth Circuit, citing its decision in Days, concluded that the inmate had not exhausted

his administrative remedies because he did not attempt to file an untimely grievance after being

discharged from the hospital. See id. 887–88.

6 Furr, Moreno, Peralta, Miller, and Cirone raise three alternative grounds for dismissal in

their Motion to Dismiss. (Dkt. No. 13). First, they assert that Hernandez’s claims against the

Defendants responsible for supervising Kloesel while he worked in the Connally Unit are barred

by the two-year statute of limitations. (Id. at 2). Second, they argue that Hernandez failed to set

forth sufficient facts to support his supervisory liability and conspiracy claims. (Id. at 3–9). Third,

they contend that they are entitled to qualified immunity. (Id. at 7–8). Because the issue of

(continue)

Ill. CONCLUSION

For the foregoing reasons, the Court GRANTS the Defendants’ Motions to

Dismiss, (Dkt. No. 13) (Dkt. No. 18), as set forth herein. The Court STAYS this case for a

period of sixty days from the date of this Order so that Hernandez may exhaust his

administrative remedies. The Court directs the Parties to file a joint notice, at the

conclusion of those sixty days, indicating whether administrative remedies have been

exhausted.

It is SO ORDERED.

Signed on September 29, 2021.

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

exhaustion is dispositive, the Court does not need to address these alternative grounds for

dismissal until Hernandez exhausts his administrative remedies. See Brown, 2018 WL 2388575, at

*4 (determining that it is unnecessary to address other grounds raised supporting dismissal,

including qualified immunity, if the plaintiff failed to exhaust her administrative remedies); Amir-

Sharif v. Gonzalez, No. 3:06-CV-2269, 2007 WL 9757560, at *1 (N.D. Tex. Apr. 30, 2007).

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