Kellison v. Wheat
| Decision Date | 23 March 2023 |
| Docket Number | Civil Action 6:21-CV-00312-JCB |
| Parties | CORY DONN KELLISON, Plaintiff, v. WILLIAM J. WHEAT, RALEIGH W. BREEDEN, KIRT D. STIEFER, GENA P. HARRIS, URSULA A. WALDROP, BRIAN COLLIER, EXECUTIVE DIRECTOR, TDCJ; AND THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, AS AMICUS CURIAE, Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Cory Donn Kellison, an inmate confined at the Michael Unit within the Texas Department of Criminal Justice (“TDCJ”), proceeding pro se and in forma pauperis, filed this civil rights action alleging that Defendants used excessive force, denied him access to the court, and retaliated against him arising out of an incident on September 24, 2020. (Doc. No. 20, at 4, 6-7.) The case was referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case. For the reasons stated herein, the court RECOMMENDS that Plaintiff's civil rights action be DISMISSED with prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1).
On August 11, 2021, Plaintiff Cory Donn Kellison filed his original complaint against Defendants William J. Wheat Raleigh W. Breeden, Kirt D. Stiefer, Gena P. Harris, and Ursula A. Waldrop alleging that Defendants used excessive force, denied him access to the court, tampered with his mail, and retaliated against him. (Doc. No. 1.) On December 1, 2021, the court ordered Plaintiff to file an amended complaint to clarify the basis of his retaliation claim against Defendants. (Doc. No. 12.) On January 27, 2022 Plaintiff filed his amended complaint, which is the live complaint in this action. (Doc. No. 20.)
In his amended complaint, Plaintiff states that TDCJ employees physically assaulted him, failed to document the assault attempted to cover up the assault, intentionally housed him with COVID-19 patients, selectively processed his grievances tampered with privileged mail, and falsified state documents in retaliation for using the grievance process. Id. at 3. He alleges that on September 24, 2020, he was physically assaulted by several TDCJ employees in the Coffield Unit, which resulted in a bone protruding from his wrist. Id. at 4. Plaintiff further alleges that he attempted to file a grievance for the September 24, 2020 use of force incident on October 5, 2020, but it was never processed. Id. He contends that TDCJ refused to process several of his grievances, denying him access to the court. Id. Plaintiff states that he was arrested on November 2, 2020, placed with Covid-19 positive inmates, and denied medical treatment in retaliation for filing a grievance concerning the September 24, 2020 use of force incident. Id. at 6. He alleges that TDCJ informed him that he was placed in restrictive housing due to an incident on September 2, 2020 that never happened. Id. Plaintiff contends that he attempted to seek redress but his attempts have been thwarted because the TDCJ mailroom employees have repeatedly tampered with his legal mail. Id. He also claims he has been denied access to his medical records to prove his excessive force claim and denied employee rosters to identify who was involved in the September 24, 2020 use of force incident. Id. at 6-7. Plaintiff seeks protection from TDCJ, $5,000,000 in damages, the names of the TDCJ employees who assaulted him, and a separation of powers within TDCJ but not controlled by TDCJ to protect inmate rights. Id. at 4.
On April 21, 2022, the court ordered officials at TDCJ and University of Texas Medical Branch (“UTMB”) to direct and undertake a review of Plaintiff's claims concerning the September 24, 2020 use of force incident, and ordered that a written report be submitted to the court, including Plaintiff's medical records, grievance records, and classification records, as well as any other records, incident reports, or investigations concerning claims in this action. (Doc. No. 24.)
On July 19, 2022, the Office of the Attorney General filed a written report (“Martinez Report”) summarizing Plaintiff's medical records and attaching his medical records in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (cited Parker v. Carpenter, 978 F.2d 190, 191 & n.2 (5th Cir. 1992)). (Doc. No. 34.) The Office of the Attorney General also included an affidavit of Lisa Lopez, Senior Manager of Health Information Management at UTMB, establishing the records submitted with the written report as business records of TDCJ. (Doc. No. 34-2, at 2.) On August 4, 2022, Plaintiff filed a response to the Martinez Report. (Doc. No. 36.)
The court has conducted an independent review of Plaintiff's medical records contained in the Martinez Report. Based on that review, the court finds that the Martinez Report accurately summarizes the contents of Plaintiff's medical records, treatment, and grievances.
Under 28 U.S.C. § 1915A, a court shall review, before docketing if feasible or in any event as soon as practicable after docketing, any complaint in a civil action where a prisoner seeks redress from a governmental entity or officer, or employee of a governmental entity. During its review, the court must identify cognizable claims or dismiss the complaint or any portion thereof if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1).
A complaint fails to state a claim upon which relief may be granted when it does not allege sufficient facts which, taken as true, state a claim that is plausible on its face and thus does not raise a right to relief above the speculative level. See Montoya v, FedEx Ground Packaging Sys. Inc., 614 F.3d 145, 148 (5th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded factual content allows the court to draw reasonable inferences that the defendant is liable for the misconduct alleged. See Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not akin to a probability standard; rather, the plausibility standard requires more than the mere possibility that the defendant has acted unlawfully. Twombly, 550 U.S. at 556 (emphasis added).
Although all well-pleaded facts are taken as true, the district court need not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v. Coffin, 496 Fed.Appx. 414, 416 (5th Cir. 2012) (unpublished) (citing Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Crucially, while the federal pleading rules do not require “detailed factual allegations,” the rule “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” will not suffice, nor does a complaint which provides only naked assertions that are devoid of further factual enhancement. Id.
Furthermore, the Fifth Circuit has repeatedly upheld the District Court's use of a Martinez Report to develop the known facts of a case until it is satisfied that either the claims have merit or they do not:
Due to potential abuses by prisoners proceeding in forma pauperis, this circuit has given district courts broad discretion in making the determination of whether an in forma pauperis complaint is frivolous. As we have noted before, it is not always easy to determine whether a claim is frivolous simply by examining a complaint written by a prisoner unfamiliar with the rules of our courts. Prisoner complaints, more often than not, are difficult to decipher. However, this court has insisted that when it is not apparent from the face of the complaint whether the prisoner's contentions are frivolous or not, the district court should make an effort to develop the known facts until satisfied that either the claims have merit or they do not. We have suggested that this may be done in a number of ways.
Parker, 978 F.2d at 191 (citing Cay v. Estelle, 789 F.2d 318, 325 (5th Cir. 1986)) (internal citations omitted). The Fifth Circuit has explained that ordering prison officials to investigate the facts surrounding an inmate's complaint enables the district court to determine frivolity. See Parker, 978 F.2d at 193 n.2 () (quoting Cay, 789 F.2d at 323.) The Fifth Circuit, in Cay, explained that “expansion of the record protects the unskilled litigant and enables the court to make an informed decision regarding the merits of an action by reference to the reality of the situation rather than by speculating as to the nature of the claim.” Cay, 789 F.2d at 324 (quoting Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983)).
In his amended complaint, Plaintiff alleges that on September 24 2020, TDCJ employees used excessive force by physically beating and assaulting him, resulting in a bone protruding from his wrist. (Doc. No. 20, at 4.)
The Fifth Circuit has stated that “whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was...
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