Sanchez v. Jenkins

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT Maton 22, 2022

SOUTHERN DISTRICT OF TEXAS Nathan □□□□□□ ene

HOUSTON DIVISION

ISIDRO CARMONA SANCHEZ, §

TDCJ #02018197, §

Plaintiff,

VS. CIVIL ACTION NO. H-20-03888

R JENKINS, et al.,

Defendants.

MEMORANDUM AND ORDER

Plaintiff Isidro Carmona Sanchez (TDCJ #02018197) is a state prisoner in custody

of the Texas Department of Criminal Justice (““TDCJ’”). Sanchez filed this civil rights

action under 42 U.S.C. § 1983, principally alleging that Defendant Assistant Warden R.

Jenkins at the Ellis Unit used excessive force against him when he was restrained. At the

Court’s request, Sanchez filed a More Definite Statement to clarify his claims. Doc. No.

10. Pending are Jenkins’s motion for judgment on the pleadings (Doc. No. 43) and motions

to substitute counsel (Doc. Nos. 46 & 48). The Court has carefully considered the

pleadings, motions, responses, and the applicable law, and concludes as follows.

I. BACKGROUND

Sanchez alleges that on July 13, 2020, during a Unit Classification Committee

(UCC) hearing in the UCC office at the Ellis Unit, he was injured in an altercation with

Defendant Robert Jenkins, the Assistant Warden and presiding officer at the UCC hearing.

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Doc. No. | at 4. Sanchez claims that he was handcuffed with his hands behind his back

and was sitting in a chair behind Captain Johnson, a UCC officer. Doc. No. 10 at 1.

Sanchez states that he was staring at Captain Johnson while Jenkins was writing something

down. Jd. Sanchez asked Jenkins what he was there for, and Jenkins told him he was re-

classifying him as G-5 for the assault case on Mrs. Kimball, who claimed that Sanchez had

assaulted her by touching her in the groin when he was at the Byrd Unit. Jd. at 1-2. Sanchez

asked Jenkins why he was denied a hearing for that case, and Jenkins answered, “I don’t

know, grieve it.” Jd. at 2. Sanchez then said, “you don’t know why I was denied [a]

hearing?” and “you’re going to G-5 me just like that?” Jd.

According to Sanchez, Jenkins jumped out of his chair, walked behind Captain

Johnson, and started striking Sanchez in the face with closed fists. Jd. Then officers came

into the room and put Sanchez on the ground in shackles. Other officers had Sanchez

pinned down with their knees on his back. Sanchez told them they were hurting him and

they picked him up and took him to the infirmary. Jd. Sanchez alleges that Warden Kelly

Strong was standing behind the officer filming Sanchez, and Sanchez addressed her,

saying, “you know what is going on, you were Warden at the Wynne Unit in 2016-2017

where I was also being harassed by TDCI staff.” Jd. Strong allegedly walked back into

her office. Sanchez was escorted back to his cell with only an ice pack, and no x-rays were

taken. He alleges that he suffered a black eye, swollen left side of his face, bruises, bumps

on his head, and neck pain. Jd. at 3.

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Sanchez was charged with assault on Jenkins in disciplinary case number

20200234194 for kicking him in the groin area in connection with the altercation on July

13, 2020. Jd. at 4-5. Sanchez told his counsel substitute, M. Daigle, that he needed the

names of the two escort officers as witnesses. Daigle said that Sanchez had to provide her

with the names of these potential witnesses, but Sanchez states that he was new to the unit

and did not know their names. The only witness he could name was Captain Johnson. Jd.

at 5.

Sanchez wrote questions for the witnesses that would be at the hearing. Before the

hearing, however, he was moved to another cell and was told he would not have a cellmate.

Id. When he arrived at the cell, the guards informed him that he would have a cellmate,

and Sanchez objected and immediately requested a OPI (Offender Protection Investigation)

form because he felt his life was in danger. Jd. at 5, 13-14. Defendant Lieutenant Aleman

came in, asked him why he was refusing housing, and took his property, which included

his notes for the hearing. Jd. The next day he was escorted to the hearing without his legal

work. Sanchez asked Captain Livas, the Disciplinary Hearing Officer, to help him get his

legal work because his questions for the hearing were among the things taken away. Jd. at

14. Livas told him to just ask the questions he remembered. Sanchez asked Livas for the

names of the two escort officers but Livas stated that he could not get those. Livas told

Sanchez to just answer “yes” or “no” and threatened to end the hearing if Sanchez did not

comply with instructions. Jd. Sanchez alleges that Livas told him that he would have beat

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him too if Sanchez had kicked him in the groin. Jd. Sanchez contends that this comment

shows that Livas had convicted him before hearing the witness testimony. Jd. at 15.

At the disciplinary hearing, Sanchez asked Jenkins how Sanchez could have kicked

him since Jenkins was behind the table, and Jenkins testified that Sanchez began to be

aggressive with the two escorts after he had ordered Sanchez out of the office. Jd. Jenkins

also stated that he got up to help the officers and Sanchez kicked him, and that was the

reason he punched Sanchez in the face. Jd. Sanchez asked for the names of the two escort

officers, but Jenkins stated that he did not remember their names. Jd Jenkins said that

Sanchez was in the office because Mrs. Kimball alleged that Sanchez had touched her in

the groin. Jd. Sanchez asked Jenkins if that was the reason Jenkins punched Sanchez, and

Jenkins said no. Jd. The call ended because Sanchez could not remember any of his other

questions.

After hearing testimony from Jenkins, Livas called Johnson, who gave the same

testimony as Jenkins did about the incident. Jd. Sanchez asked her for the names of the

two escort officers, but Johnson stated she did not know who they were. Jd. Sanchez

alleges that the lack of identification of the other officers is a violation of TDCJ rules

regarding uses of force. Jd. at 16. Sanchez alleges that Livas went with the testimony of

the two officers and found him guilty of the offense even though they violated TDCJ policy

regarding the other witnesses. Jd. Sanchez alleges that he appealed his disciplinary

conviction, and the case was overturned, but he did not receive a new hearing and his

punishment of restrictive housing remained in place. Id.

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Sanchez claims that Captain Johnson lied at his disciplinary hearing and that she

took Jenkins’s side regarding what happened on July 13, 2020. Jd. at 9-10. Sanchez alleges

that Warden Kelly Strong knew what was going on and that he was being harassed by the

staff. Id. at 11. He alleges that, as the highest-ranking officer on the unit, the investigation

goes to her and she sends the recommendation to Huntsville. Strong allegedly

recommended that Sanchez be placed in restrictive housing and tagged as an X threat to

the physical safety of others. Jd. at 12. He states that he remains in restrictive housing

even though his case regarding the assault on Jenkins has allegedly been overturned. Id.!

He alleges that Strong is responsible for the actions of her assistant, Jenkins, and that she

protected a criminal. Jd. Sanchez seeks an unspecified amount of compensatory and

punitive damages and “for the court to file charges.” Doc. No. | at 4.

Il. MOTION FOR JUDGMENT ON THE PLEADINGS

A. Legal Standard

Federal Rule of Civil Procedure 12(c) permits motions for judgment on the

pleadings. Rule 12(c) motion for judgment on the pleadings may be filed after the answer

and is treated as a motion to dismiss for “failure to state a claim on which relief may be

granted.” Jones v. Greninger, 188 F.3d 322, 324 (Sth Cir. 1999) (per curiam); FED. R.

P. 12(c). In considering a motion to dismiss for failure to state a claim, the district

court construes the allegations in the complaint favorably to the pleader and accepts as true

all well-pled facts in the complaint. La Porte Construction Co. v. Bayshore Nat’! Bank of

1 He does not allege that his disciplinary case regarding assaulting Mrs. Kimball has been

ee however, or that any of the consequences of that conviction have been abated.

La Porte, Tex., 805 F.2d 1254, 1255 (Sth Cir. 1986). To survive dismissal, a complaint

must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Pleadings that are no more than legal conclusions “are not entitled to the

assumption of truth.” Jd. at 680. While a complaint “does not need detailed factual

allegations . . . [the] allegations must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true (even

if doubtful in fact).” Twombly, 550 U.S. at 555 (citations and internal footnote omitted).

B. Discussion

Jenkins moves for judgment on the pleadings for the claims against him in his

official capacity. The Eleventh Amendment provides that “{t]he Judicial power of the

United States shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. CONST. amend XI. Federal court jurisdiction is

limited by the Eleventh Amendment and the principle of sovereign immunity that it

embodies. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-55 (1996); see also

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984) (explaining that

the Eleventh Amendment acts as a jurisdictional bar to suit against a state in federal court).

_ Unless expressly waived, the Eleventh Amendment bars an action in federal court by, inter

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alia, 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 (Sth Cir. 2002).

As a state agency, TDCJ is immune from a suit for money damages under the

Eleventh Amendment unless it is waived or abrogated by Congress. See Talib v. Gilley,

138 F.3d 211, 213 (Sth Cir. 1998). The Eleventh Amendment also bars a recovery of

money damages under 42 U.S.C. § 1983 from state employees in their official capacity.

See Oliver v. Scott, 276 F.3d 736, 742 (Sth Cir: 2001); Aguilar v. Texas Dep’t of Criminal

Justice, 160 F.3d 1052, 1054 (Sth Cir. 1998). Therefore, Sanchez’s official capacity claims

for monetary damages against Jenkins, and all other named TDCI officials in their official

capacities, are subject to dismissal.

An exception to Eleventh Amendment immunity exists for suits brought against

individuals in their official capacity, as agents of the state or a state entity, where the relief

sought is injunctive in nature and prospective in effect. See Aguilar, 160 F.3d at 1054

(citing Ex parte Young, 209 U.S. 123 (1908)). Sanchez primarily seeks monetary damages

in this case, but he also asks that the court file criminal charges. However, a plaintiff cammot

pursue criminal charges against a defendant in a section 1983 lawsuit. See Linda RS. v.

Richard D., 410 U.S. 614, 619 (1973) (holding that “a private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of another”); see also Oliver v.

Collins, 914 F.2d 56, 60 (Sth Cir. 1990) (holding that a section 1983 plaintiff “does not

have a constitutional right to have someone criminally prosecuted”). Sanchez does not

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seek other injunctive relief. See Doc. No. 1 at 4. Therefore, his official capacity claims

against all defendants are dismissed as barred by sovereign immunity.

II. Individual Capacity Claims and the Prison Litigation Reform Act

Because Sanchez is an inmate who proceeds in forma pauperis, the Court is required

by the Prison Litigation Reform Act (the “PLRA”) to scrutinize the complaint and dismiss

the case, in whole or in part, if it determines that the action is frivolous, malicious, fails to

state a claim upon which relief may be granted, or seeks monetary relief from a defendant

who is immune from such relief. See 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B).

Regarding the individual capacity claims against Johnson, Strong, Livas, and Aleman, he

does not state a claim for which relief may be granted, as explained below.

1. Disciplinary Hearing Claims

Sanchez complains that Johnson, as a witness, lied in his disciplinary hearing

regarding what happened in the UCC office on July 13, 2020, and sided with Jenkins. He

also alleges that Aleman, a prison guard, confiscated his property, including legal notes for

his disciplinary hearing, when Sanchez refused housing. He also asserts that Livas, the

hearing officer, did not permit him to call the two escort guards as witnesses because Livas

required Sanchez to name them, which Sanchez could not do, and that the Defendants

violated TDCJ policy by failing to identify those officers. Broadly construing these claims,

Sanchez alleges that these individuals violated his Due Process rights in connection with

his disciplinary hearing.

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In the disciplinary hearing context, a prisoner’s rights, if any, are governed by the

Due Process Clause of the Fourteenth Amendment to the United States Constitution. See

Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Even so, prisoners charged with

institutional rules violations are entitled to rights under the Due Process Clause only when

the disciplinary action may result in a sanction that will infringe upon a constitutionally

protected liberty interest. See Sandin v. Conner, 515 U.S. 472 (1995). In particular, only

those sanctions that “inevitably affect the duration of [a prisoner’s] sentence” may qualify

for constitutional protection under the Due Process Clause. Jd. at 487. For example, Texas

inmates who are eligible for mandatory supervision have a constitutional expectancy of

early release under the Texas mandatory supervision scheme and a protected liberty interest

in the good-time credits that they have earned. Malchi v. Thaler, 211 F.3d 953, 956 (Sth

Cir. 2000)(addressing the mandatory supervision scheme in place prior to September 1,

1996); see also Teague v. Quarterman, 482 F.3d 769 (Sth Cir. 2007) (addressing the

mandatory supervision scheme in place before and after September 1, 1996). Thus, □□ □

prisoner is eligible for mandatory supervision, prison officials may not forfeit good-time

credit during a prison disciplinary hearing without providing the requisite level of due

process.

The pleadings and public records indicate that Sanchez is in custody pursuant to

convictions for murder and aggravated assault, with a deadly weapons finding.” Therefore,

he is not eligible for mandatory supervision and cannot show that any loss of good time

* See Doc. No. 10 at 8; Texas Department of Criminal Justice Inmate Search, last visited Mar.

15, 2022.

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credits, if applicable, would implicate a liberty interest. See Tex. Gov’t Code §

508.149(a)(2), (7). Sanchez alleges that he is in restrictive custody because Warden Strong

classified him as an X threat to the physical safety of others even though his disciplinary

case regarding Jenkins was overturned. However, he does not allege that his disciplinary

case regarding assaulting Mrs. Kimball at the Boyd Unit and another case at the Boyd Unit

for threatening staff have been overturned or dispute his convictions for murder and

aggravated assault with a deadly weapon finding. Sanctions that are “merely changes in

the conditions of [an inmate’s] confinement” do not implicate due process concerns.

Madison v. Parker, 104 F.3d 765, 768 (Sth Cir. 1997). The restrictions alleged by Sanchez

do not pose an atypical or significant hardship beyond the ordinary incidents of prison life.

See id. Further, reductions in a prisoner’s class status and the potential impact on good-

time credit earning ability are not protected by the Due Process Clause. See Malchi, 211

F.3d at 958; Luken v. Scott, 71 F.3d 192, 193 (Sth Cir. 1995). Finally, to the extent that

Sanchez claims that the Defendants failed to follow TDCI policies does not implicate a

constitutional right. See Myers v. Kelvenhagen, 97 F.3d 91, 94 (Sth Cir. 1996). Therefore,

his claims against Johnson, Aleman, Livas, and Strong in connection with his disciplinary

proceeding must be dismissed for failure to state a claim for which relief may be granted.

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2. Confiscation of Legal Materials

Sanchez alleges that Aleman confiscated his legal materials before his disciplinary

hearing. To the extent that Sanchez’s allegations could be broadly construed as an access-

to-courts claim,* he does not state a claim for which relief may be granted.

Prisoners have a constitutionally protected right of access to the courts. See Lewis

v. Casey, 518 U.S. 343, 350 (1996) (citing Bounds v. Smith, 430 U.S. 817, 821, 828 (1977)).

However, a prisoner’s right of access to courts is limited and “encompasses only a

reasonably adequate opportunity to file nonfrivolous legal claims challenging their

convictions or conditions of confinement.” See Jones v. Greninger, 188 F.3d 322, 325 (Sth

Cir. 1999) (citing Johnson v. Rodriguez, 110 F.3d 299, 310 (Sth Cir.), cert. denied, 522

U.S. 995 (1997)). Hence, an inmate alleging denial of the right of access to courts must

demonstrate a relevant, actual injury stemming from the defendant’s unconstitutional

conduct. Brewster v. Dretke, 587 F.3d 764, 769 (Sth Cir. 2009) (citing Lewis, 518 U.S. at

351); Walker v. Navarro County Jail, 4 F.3d 410, 413 (Sth Cir. 1993). In particular, an

inmate must “demonstrate that a nonfrivolous legal claim has been frustrated or was being

3 Any claim against Aleman alleging an intentional and unauthorized deprivation of property is

barred by the Parratt-Hudson doctrine. Error! Main Document Only.See Hudson v. Palmer,

468 US. 517, 534 (1984); Parratt vy. Taylor, 451 U.S. 527, 541 (1981), overruled in part on other

grounds, Daniels v. Williams, 474 U.S. 327 (1986). Because Error! Main Document Only.Texas

provides an adequate post-deprivation remedy for inmates whose property has been taken or

destroyed in an unauthorized manner, Sanchez’s complaint regarding the unauthorized loss or

deprivation of his property has no basis in federal law. See Myers v. Klevenhagen, 97 F.3d 91, 95

(5th Cir.1996); Aguilar v. Chastain, 923 S.W.2d 740, 743-44 (Tex. Crim. App.1996); see also

TEX. GOV’T CODE §§ 501.007, 501.008; Murphy v. Collins, 26 F.3d 541, 543-44 (Sth Cir. 1994).

Therefore, to the extent that Sanchez claims a deprivation of property under the Due Process

Clause, that claim is dismissed.

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impeded.” Lewis, 518 U.S. at 353 & n. 3. Thus, the right of access to courts is “ancillary

to the underlying claim, without which a plaintiff cannot have suffered injury by being shut

out of court.” See Christopher v. Harbury, 536 U.S. 403, 415 (2002).

As explained above, Sanchez does not have a non-frivolous claim regarding his

disciplinary hearing based on the Due Process Clause. Further, he discloses that the

disciplinary charge was overturned. Therefore, he cannot establish that he suffered an

injury in connection with the confiscation of his legal materials, see id., and his access-to-

courts claim must be dismissed.

3. Supervisory Claims against Warden Strong

Sanchez alleges that Warden Strong is responsible for the actions of Jenkins.

Supervisory officials like Warden Strong are not liable under § 1983 for the actions of

subordinates “on any theory of vicarious liability.” Thompkins v. Belt, 828 F.2d 298, 303

(Sth Cir. 1987) (citations omitted). “Rather, a plaintiff must show either the supervisor

personally was involved in the constitutional violation or that there is a ‘sufficient causal

connection’ between the supervisor's conduct and the constitutional violation.” Evett v.

Deep East Tex. Narcotics Trafficking Task Force, 330 F.3d 681, 689 (Sth Cir. 2003)

(quoting Thompkins, 828 F.2d at 304); see also Southard v. Texas Bd. of Crim. Justice, 114

F.3d 539, 550 (5th Cir. 1997) (“[T]he misconduct of the subordinate must be affirmatively

linked to the action or inaction of the supervisor.”). Thus, “[a] supervisory official may be

held liable . . . only if (1) he affirmatively participates in the acts that cause the

constitutional deprivation, or (2) he implements unconstitutional policies that causally

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result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011)

(internal quotation marks and citation omitted).

Although Sanchez sued Strong because she is the “highest ranking officer” and was

allegedly “responsible for the actions of Jenkins,” he does not allege facts to show that

Strong had any personal involvement in the altercation or that she was subjectively aware

of a serious risk of harm to him and disregarded that risk. See Farmer v. Brennan, 511

U.S. 825, 846 (1994). In addition, he does not plead facts to show that Strong implemented

an unconstitutional policy that causally resulted in a constitutional injury. Porter, 659 F.3d

at 446. Accordingly, he fails to state facts to show that Strong violated his constitutional

rights.

4, Excessive Force Claims against Jenkins

Jenkins filed an advisory stating that fact issues preclude summary judgment on

Sanchez’s claim against him for excessive force. Therefore, Sanchez’s claims against

Jenkins for excessive force remain for adjudication.

IV. Conclusion and Order

Based on the foregoing, the Court ORDERS as follows:

1. Defendant Robert Jenkins’s motion for judgment on the pleadings for the claims

against him in his official capacity (Doc. No. 43) is GRANTED, and the official

capacity claims against Jenkins and all of the other Defendants are DISMISSED

as barred by the Eleventh Amendment immunity.

2. Sanchez’s claims against Captain Johnson, Lieutenant Aleman, Captain Livas,

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and Warden Kelly Strong are DISMISSED with prejudice for failure to state a

claim for which relief may be granted pursuant to 28 U.S.C. §§ 1915(e), ISSA.

Sanchez’s excessive force claim against Assistant Warden Robert Jenkins

in his individual capacity is the sole claim remaining for adjudication.

3. Based on Jenkins’s advisory that fact issues exist and that this case is not

amenable to summary judgment regarding the excessive force claim, the stay of

discovery as to Jenkins is LIFTED, and the protective order is CANCELLED,

and Defendant Jenkins shall respond to Sanchez’s discovery requests and

comply with disclosure requirements within thirty days of the date of this

Order regarding the sole remaining excessive force claim.

4. Defendant’s motion to substitute (Doc. No. 48) is GRANTED, and Penny

Maley is SUBSTITUTED as the counsel of record for Jenkins. Defendant’s

prior motion to substitute (Doc. No. 46) is DISMISSED as MOOT.

5. Within thirty (30) days of the date of this Order, the parties shall submit a

proposed Joint Scheduling Order with proposed relevant dates regarding setting

this case for trial.

The Clerk will enter this Order and send a copy ‘game parties.

SIGNED at Houston, Texas, this day of March 2022.

ANDREW S. HANEN

UNITED STATES DISTRICT JUDGE

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