Kennemer v. Denton Cnty.
| Decision Date | 24 August 2022 |
| Docket Number | Civil Action 4:20-CV-00080-RAS-CAN |
| Parties | JOHN DAVID KENNEMER, #2197180, Plaintiff, v. DENTON COUNTY, ET AL., Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant LaSalle Southwest Corrections' Motion to Dismiss [Dkt. 56].[1] After reviewing the Motion to Dismiss, Plaintiff's response Defendant's reply, and all other relevant filings, the Court recommends the Motion to Dismiss be GRANTED and Plaintiff's claims against LaSalle Southwest Corrections James Robinson, and John Doe #3 be DISMISSED WITH PREJUDICE as set forth herein.
On February 3, 2020, pro se Plaintiff John David Kennemer (“Plaintiff”) initiated the instant suit arising out of his transfer into the custody of the Texas Department of Criminal Justice (“TDCJ”) on May 31, 2018, specifically, his transport from the Parker County Jail to the Denton County Jail on that date, to await TCDJ transport. The instant cause is at least the second federal case Plaintiff has filed alleging claims arising out of this transfer.[2]
At the time of filing this suit, Plaintiff was an inmate of the Texas Department of Criminal Justice; it is believed Plaintiff is no longer incarcerated.[3] On February 24, 2020, the Court granted Plaintiff's motion to proceed in forma pauperis [Dkt. 7]. On March 8, 2021, the Court ordered Plaintiff to prepare process for service by the United States Marshal [Dkt. 24]. On May 6, 2021, summons was returned as executed as to Defendant Denton County (“Denton County”) [Dkt. 27]. On May 26, 2021, Plaintiff filed his First Amended Complaint - the live pleading - adding as parties Defendants LaSalle Southwest Corrections, correctly named Southwestern Correctional, LLC (“SWC”) James Robinson (“Robinson”), and John Does #1-4 specifically identifying Defendant #7 as “John Doe #3, LaSalle Correction Transport Officer” (“LaSalle John Doe”) (together, the “LaSalle Defendants” or “Defendants”) [Dkt. 35 at 5-6].[4] Summons were issued for SWC and Robinson [Dkts. 46; 47]. Summons was returned as executed for SWC [Dkt. 54]. Summons was returned unexecuted for Robinson [Dkt. 55]. No summons was issued for the LaSalle John Doe.
The live pleading asserts claims against the LaSalle Defendants for denial of medical care in violation of the Eighth Amendment under 42 U.S.C. § 1983, as well as violations of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) [Dkt. 35 at 9-13]. Plaintiff alleges he was injured on May 31, 2018, during transfer into TDCJ custody, when he was transported by the LaSalle Defendants from the Parker County Jail to the Denton County Jail to await transport to a TDCJ facility [Dkt. 35 at 17-19]. The Denton County Jail serves as the central hub for the Texas Department of Criminal Justice-Institutional Division to take custody of out-of-county prisoners [See Dkt. 38 at 2]. Plaintiff seeks a declaratory judgment and damages [Dkt. 35 at 7].
Plaintiff pleads he originally broke his right heel on March 10, 2018, injuring his right ankle joint [Dkt. 35 at 8]. On March 27, 2018, a specialist in Mineral Wells, Texas, “diagnosed the plaintiff's disability, and provided that diagnosis to [SWC]” [Dkt. 35 at 8]. Relevant to the allegations against the LaSalle Defendants, Plaintiff claims the treatment plan of the treating specialist was not followed by the LaSalle Defendants [Dkt. 35 at 8]. More specifically, he pleads that on May 31, 2018, he “was transported [from Parker County] in the van operated by [SWC]” to Denton County Jail, which was “not made to transport a prisoner with a disability” or in a wheelchair [Dkt. 35 at 8]. Plaintiff suffered severe pain while trying to enter and exit the van, which he avers he was ordered to do by Robinson and LaSalle John Doe [Dkt. 35 at 8-9]. Upon arrival at the Denton County Jail, Plaintiff asked Robinson and LaSalle John Doe for a wheelchair or crutches but was told that Denton County did not have any and that he had to walk on his injured ankle [Dkt. 35 at 9]. Robinson allegedly spoke to a Denton County John Doe but “no words were said” about Plaintiff's injury [Dkt. 35 at 9]. Plaintiff alleges he ultimately “re-fractured his foot” while at Denton County Jail and continues to experience extreme pain daily because of his injury [Dkt. 35 at 9, 15].
Related to his ADA and Section 504 claims, Plaintiff pleads that SWC had a record of his impairment at least as of March 27, 2018, more than sixty days prior to his transport by the LaSalle Defendants on May 31, 2018 [Dkt. 35 at 11]. Plaintiff claims that, despite this knowledge, no alterations were made to the transport van and that his disability “should have been noted on his transfer file” but was not [Dkt. 35 at 11]. He alleges he was denied the accommodation of a transport van that could transport a disabled person, denied the activity of riding in a van without pain like other inmates, and denied the “program, service, or activity of Medical Services that other inmates were not excluded from” [Dkt. 35 at 12-13]. Plaintiff claims Robinson had knowledge of his disability and denied him the specific accommodation of a wheelchair or crutches [Dkt. 35 at 12]. Related to SWC, Plaintiff pleads it had a “policy/practice” of denying Plaintiff accommodations while “walking/rolling into the Denton County Jail,” and of denying him a properly equipped van with an access ramp and rails so he could engage in the activity of “entering the transport van under his own power like the other inmates” [Dkt. 35 at 12-13]. He asserts the “activity of being transported injury free” was denied to him [Dkt. 35 at 13].
Plaintiff sues Robinson and LaSalle John Doe in their official and individual capacities [Dkt. 35 at 16-20]. In support of this liability, Plaintiff pleads that Robinson has “20 years” experience working as a jailer, “hours of training,” and that he knew Plaintiff was injured yet denied him medical care, which he should have known was needed as a result of his training and experience [Dkt. 35 at 16-17]. Plaintiff argues LaSalle John Doe has been a sergeant transport officer for SWC since April 2013 and had the authority to order him a wheelchair or crutches for transport [Dkt. 35 at 19]. Robinson and LaSalle John Doe allegedly both knew Plaintiff needed a wheelchair and that Plaintiff was prescribed use of crutches, which gave them “written notice of [his] disability” as well as from observation at the Parker County Jail [Dkt. 35 at 17-21]. Robinson acted maliciously by allegedly forcing Plaintiff to walk in extreme pain while laughing along with LaSalle John Doe during transport [Dkt. 35 at 17].
Related to the injury alleged, Plaintiff claims the denial of these accommodations and/or medical care caused his injury sustained in the parking lot of the Denton County Jail [Dkt. 35 at 20]. Plaintiff urges the denial of accommodations was not an “isolated incident” because multiple defendants separately denied him use of a wheelchair, which “occurred at different times in the day, and in different locations in the Denton County Jail” [Dkt. 35 at 22]. Robinson and LaSalle John Doe “knew of and disregarded an excessive risk” to Plaintiff's health and safety, and that an “inference could be drawn” of a substantial risk [Dkt. 35 at 22].
Plaintiff's Parker County Suit - Northern District of Texas[5]
Plaintiff has filed over a half-dozen lawsuits during his incarceration, each of which has previously been dismissed. See Kennemer v. UTMB Med., No. 6:21-CV-266, 2021 WL 5834429, (E.D. Tex. Sept. 23, 2021), report and recommendation adopted, No. 6:21-CV-266-JDK-KNM, 2021 WL 5826683 (E.D. Tex. Dec. 8, 2021) (); Kennemer v. Parker Cnty., No. 4:20-CV-056-P, 2021 WL 1192249, at *10 (N.D. Tex. Mar. 30, 2021), aff'd, No. 21-10467, 2022 WL 2610239 (5th Cir. July 8, 2022); Kennemer v. Pittman et al., No. 3:20-cv-00123 (S.D. Tex. Feb. 5, 2021), aff'd, No. 21-40120 (5th Cir. June 24, 2022); Kennemer v. Alford et al., No. 3:20-cv-00078 (S.D. Tex. dismissed Nov. 16, 2021); Kennemer v. Davis et al., No. 3:20-cv-00260 (S.D. Tex. dismissed Nov. 16, 2021); Kennemer v. Danzy et al., No. 3:20-cv-00030 (S.D. Tex. dismissed Nov. 16, 2021); Kennemer v. Collier et al., No. 3:19-cv-00335 (S.D. Tex. dismissed Apr. 28, 2022), appeal dismissed, No. 21-40508 (5th Cir. July 28, 2021).
Most relevant of these prior actions is Plaintiff's Northern District case: Kennemer v. Parker Cnty., No. 4:20-CV-056-P (N.D. Tex. filed Jan. 20, 2020) (the “Parker County Suit”). On January 20, 2020, Plaintiff filed suit in the Northern District of Texas bringing ADA and § 1983 claims regarding the same May 31, 2018 incident as alleged here, against the same or similar defendants as those named here. There, Plaintiff sued eighteen defendants, including Parker County, SWC, Jay Eason (Director of Operations for LaSalle Southwest Corrections), “John Doe Robinson, Transport Officer for LaSalle,” and “John Doe #8[,] Transport Officer for LaSalle”. Id., ECF No. 1. The court granted Plaintiff in forma pauperis status and withheld service of process pending judicial screening pursuant to 28 U.S.C. S 1915(e)(2). Id., ECF No. 6.
On March 30, 2021, the court screened the complaint pursuant to the PLRA, dismissing Plaintiff's § 1983 claims against SWC, John Doe Robinson, and John Doe #8 Transport Officer for LaSalle, which included the allegations regarding the May 31, 2018 transport incident, as well as any claim...
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