Akins v. Liberty Cnty.

Decision Date09 January 2014
Docket NumberCIVIL ACTION NO. 1:10-CV-328
CourtU.S. District Court — Eastern District of Texas

Pending before the court are Defendants Liberty County, Texas ("Liberty County") and Liberty County Judge Phil Fitzgerald's ("Judge Fitzgerald") (collectively, the "Liberty County Defendants") Motion for Summary Judgment (#78) and Defendants Community Education Centers ("CEC") and Warden Timothy New's ("Warden New" or "New") Motion for Summary Judgment (#81).1 Defendants seek the dismissal of Plaintiff Frederick Ray Akins's ("Akins") claims pursuant to Federal Rule of Civil Procedure 56. Also pending is CEC and Warden New's Motion for Judgment on the Pleadings (#79), wherein CEC and New seek dismissal of Akins's claims under Federal Rule of Civil Procedure 12(c). Having considered the pending motions, thesubmissions of the parties, the pleadings, and the applicable law, the court is of the opinion that Defendants' motions should be granted.

I. Background
A. Procedural History

On June 8, 2010, Akins filed the instant lawsuit, asserting numerous causes of action against Defendants2 arising from his detention in the Liberty County Correctional Facility ("the jail") from June 8, 2009, to June 12, 2009. Akins seeks to recover pursuant to 42 U.S.C. §§ 1981, 1983, and 1985 for violations of his constitutional "rights," "rights and privileges," denials of "due process and equal protection," and a denial of his "statutory rights." In addition, Akins asserts several state law tort theories, including premises liability, negligence, misuse of information and negligence in the handling of medical information, defamation, libel per se, defamation per se, intentional infliction of emotional distress, and vicarious or respondeat superior liability.

The Liberty County Defendants moved for summary judgment on March 27, 2012. The next day, March 28, 2012, CEC and Warden New moved for summary judgment and judgment on the pleadings. Pursuant to Local Rule CV-7(e), Akins's responses were due on April 13, 2012, and April 15, 2012, respectively. Akins, however, did not respond.

Instead, on May 15, 2012, Akins filed a suggestion of bankruptcy. As a result, the case was administratively closed on May 21, 2012. Approximately one year later, on May 22, 2013,the bankruptcy trustee filed an Abandonment of Litigation, specifically listing this lawsuit. In addition, Akins was discharged from bankruptcy on June 10, 2013. Defendants, therefore, sought to reopen the case for rulings on the instant motions. Akins failed to respond to the motion to reopen. As a consequence, Defendants' motion was granted, and the case was reopened on October 1, 2013.

To date, Akins has not responded to Defendants' motions or requested leave to do so. As a result, the court accepts as undisputed the facts set forth by Defendants in their motions for summary judgment. See Jegart v. Roman Catholic Church of Diocese of Houma Thibodaux, 384 F. App'x 398, 400 (5th Cir. 2010) ("When a party does not file an opposition to a motion for summary judgment, the district court is permitted to consider the facts listed in support of the motion as undisputed."); Eversley v. MBank Dallas, 843 F.2d 172, 175 (5th Cir. 1988); Ass'n of Taxicab Operators, USA v. Yellow Checker Cab Co., 910 F. Supp. 2d 971, 975 (N.D. Tex. 2012); Lynch v. Jet Ctr. of Dallas, LLC, No. 3:05-CV-2229-L, 2007 WL 211101, at *3 (N.D. Tex. Jan. 26, 2007); Local Rule CV-56(c).

B. Undisputed Facts as Asserted by Defendants3

1. Akins was in Portland, Oregon, when he was advised that Liberty County Sheriff Henry Patterson ("Sheriff Patterson" or "Patterson") had a warrant for his arrest. Akins was charged with tampering with a government document with the intent to harm and was subsequently re-indicted in October 2010 for organized crime and theft.

2. In 2009, Akins dropped out of Thomas Jefferson School of Law in San Diego, California, because of the indictments against him. Akins was previously employed as the owner of ICL Investigations, a firm that performed commercial litigation and personal injury investigations. Because of the criminal charges brought against Akins in Liberty County,he is precluded from and no longer maintains a private investigator's license in Texas or Missouri.

3. After learning of his arrest warrant, Akins contacted Sheriff Patterson and traveled to Texas. On June 8, 2009, around 8:00 a.m., Akins's son drove him to the Sheriff's Office where he was greeted by, met, and spoke with Sheriff Patterson. Akins remained in Patterson's office for 20 to 30 minutes, waiting for Chief Jim Cooper ("Chief Cooper" or "Cooper") to arrive. Once Cooper arrived, he escorted Akins to booking, where he booked Akins into the jail.

4. Akins stated that Patterson had a good attitude, was cordial, and after Cooper took Akins to booking, Akins had no further interaction with Patterson.

5. After being booked in, Chief Cooper placed Akins in a holding cell with four other individuals. Akins remained in the cell until his arraignment. Akins had no problems with the four individuals while in the holding cell.

6. That same day, Chief Cooper took Akins to the 75th Judicial District Court of Liberty County, Texas, to be arraigned and to have his bond set. After waiting in court for approximately 20 minutes, Judge Rusty Hight ("Judge Hight") saw Akins and set his bond at $100,000.00.

7. Akins contends that misinformation about his state of residence resulted in an elevated bond—$100,000.00. He admitted, however, that he contested the issue during the hearing and later conceded that it was the district attorney who persuaded or contributed to the judge setting the bond at $100,000.00. CEC and New were not involved with Akins's arraignment hearing. Akins has no personal knowledge of whether CEC or Warden New had any involvement in setting his bond.

8. Akins believes that Liberty County Judge Fitzgerald was influential in setting his bond, but he admitted that he has no such direct evidence, was not sure if Judge Fitzgerald ever communicated with Judge Hight about his bond, and admitted that his belief is based on something he heard from a couple of political operatives whose names he does not remember.

9. Akins had no direct dealings with Judge Fitzgerald during the events at issue in this case. He merely heard that Fitzgerald had something to do with his situation but was unable to identify anyone or any document that would indicate Fitzgerald's involvement. Further, Akins provided no direct evidence that Judge Fitzgerald was involved in any way with his incarceration during the five days Akins was in jail.

10. Akins stated that Judge Hight directed that Akins's CPAP (continuous positive airway pressure) machine be made available.4

11. After the arraignment, around 5:00 p.m. on June 8, 2009, Chief Cooper brought Akins back to the jail and permitted him to make some phone calls to his son to arrange for his bond, medications, and CPAP machine. Cooper then turned Akins over to general jail personnel. Later that evening, jail personnel moved Akins from a holding cell to general population for the remainder of the day. After he was turned over to the general jail personnel, Akins had no interaction with Cooper.

12. At all relevant times, Liberty County had a contract with an entity believed by Liberty County to be a subsidiary of CEC. Under the contract, the contractor was responsible for the maintenance, operation, and management of the jail. The contractor was also responsible to train its employees, provide sanitation/hygiene, and supply recreation, access to courts, health care services, food, commissary, telephone system, religious services, facility supplies, grievance procedures, security and control, and sufficiently trained personnel to provide 24-hour care and supervision to inmates.

13. Akins stated that Chief Cooper, like Sheriff Patterson, was cordial to him. He admitted that neither Patterson, Cooper, nor anyone associated with CEC or Liberty County, mistreated him up until this point in time and throughout the remainder of the day. Akins further admitted that his complaints did not involve any mistreatment by Sheriff Patterson or Cooper. After he was brought back from his arraignment by Cooper, Akins had no dealings with Cooper or any other Sheriff's Office personnel. Akins later dismissed Sheriff Patterson as a defendant in this case because he felt Patterson "wasn't culpable."

14. Sometime between his incarceration in the holding cell and being placed in the jail's general population, Akins saw a nurse he described as a "very nice lady."

15. When he was booked in, Akins recalled saying "Hello" to someone he later learned was Warden New, but he had no other conversations with New in June 2009, and he did not send any request for services or grievances to New in June 2009.

16. Akins makes various allegations of mistreatment while in the jail beginning on June 9, 2009, including being temporarily placed in a cell in the "old jail" one afternoon where he was subjected to a 20 to 30-minute exposure to backed-up sewage, alleged delays in receiving his CPAP machine, water, and medicine, and being placed in a solitary confinement cell (which had an electrical outlet for his CPAP machine).

17. Akins testified that he did not have his CPAP machine or medications and started getting ill sometime after being booked into the jail.

18. Akins was moved from the holding cell to general population where he spent the night of June 8, 2009. Akins was taken to the old jail, a separate building, on the afternoon of June 9, 2009, by a female officer named Chapman. At the old jail, Akins...

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