Thompson v. Eason, CIV. A. L01-CV-068.

• Decision Date: 28 March 2003
• Docket Number: No. CIV. A. L01-CV-068.,CIV. A. L01-CV-068.
• Citation: 258 F.Supp.2d 508
• Parties: Phillip THOMPSON, TDCJ ID # 834413, Plaintiff, v. Robert EASON, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

258 F.Supp.2d 508

Phillip THOMPSON, TDCJ ID # 834413, Plaintiff, v. Robert EASON, et al., Defendants.

No. CIV. A. L01-CV-068.

United States District Court, N.D. Texas, Abilene Division.

March 28, 2003.

COPYRIGHT MATERIAL OMITTED

Phillip Thompson, Cuero, TX, Pro se.

Cari Gaye Bernstein, Attorney General of Texas, Austin, TX, for Defendants.

ORDER

CUMMINGS, District Judge.

Plaintiff, Phillip Thompson, acting pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging employees of the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") French Robertson ("Robertson") Unit retaliated against him, failed to protect him from assaults and threats by prison gang members, and interfered with his constitutional right to practice his religion. Thompson seeks injunctive relief, declaratory relief, and monetary damages.

BACKGROUND

On April 18, 2001, Thompson and Carl Davis, acting jointly, filed a civil rights complaint in the United States District Court for the Northern District of Texas, Abilene Division, which was assigned Civil Action No. 1:01-CV-062-C. By Order dated April 27, 2001, this Court determined that the two plaintiffs were not incarcerated in the same TDCJ-ID unit and ordered that their claims be severed "because of concerns of the possibility of transfer, release, security, and the need for each individual plaintiff to represent himself." Thompson's claims were assigned Civil Action No. 1:01-CV-068-C and he was ordered to file an Amended Complaint providing the "specific facts regarding the alleged constitutional violations and ... information regarding his attempt to resolve the problems through the administrative grievance procedures."

Thompson was granted permission to proceed in forma pauperis by Order dated May 17, 2001.

Thompson filed his Amended Complaint on July 2, 2001, and named the following defendants: Gary Johnson, "agent" for the TDCJ-ID; Robert Eason, Assistant Warden of the Robertson Unit; Cary Cook, Assistant Warden of the Robertson Unit; Ronald Gloyd, IAD Investigator at the Robertson Unit; Joe D. Trumbo, Sergeant at the Robertson Unit; Gregory H. Oliver, Major at the Robertson Unit; Mark T. Lipiecki, CO-IV at the Robertson Unit; James Pruett, garment factory employee at the Robertson Unit; Bucky Sherly, garment factory employee at the Robertson Unit; and NFN Kocher, Building Sergeant at the Robertson Unit.¹ On July 5 2001, Thompson's complaint was referred to the United States Magistrate Judge for screening pursuant to 28 U.S.C. §§ 1915 and 1915A.

The United States Magistrate Judge conducted an evidentiary hearing and judicial screening by televideo conferencing on September 18, 2001. See Spears v. McCotter, 766 F.2d 179 (5th Cir.1985) (authorizing an evidentiary hearing for a prisoner plaintiff proceeding pro se to expound upon his written complaint). Thompson did not consent to have the Magistrate Judge hear his complaint; therefore, the case was transferred back to the docket of this Court by Order dated September 20, 2001.

By Order dated October 16, 2001, Defendants TDCJ-ID, Eason, Cook, Gloyd, Trumbo, Oliver, Lipiecki, Pruett, Sherly, and Kocher were ordered to file an answer or responsive pleading. Defendants Eason, Cook, Gloyd, Trumbo, Oliver, Lipiecki, Pruett, Sherly, and Kocher filed an Answer and partial motion to dismiss on February 4, 2002, and Defendant TDCJ-ID filed a Motion to Dismiss on March 15, 2002. Defendants Eason, Cook, Gloyd, Trumbo, Oliver, Lipiecki, Pruett, Sherly, and Kocher unequivocally denied the allegations of retaliation and failure to protect and asserted claims to the defense of qualified immunity. Defendant TDCJ-ID asserted the defense of sovereign immunity.

By Order dated August 30, 2002, Defendant TDCJ-ID was dismissed as a party to the complaint and the caption of the complaint was changed to PHILLIP THOMPSON v. ROBERT EASON, CARY J. COOK, RONALD GLOYD, JOE D. TRUMBO, GREGORY H. OLIVER, MARK T. LIPIECKI, OFFICER PRUETT, BUCKY SHERLY, AND NFN KOCHER. The partial motion to dismiss by Defendants Eason, Cook, Gloyd, Trumbo, Oliver, Lipiecki, Pruett, Sherly, and Kocher was denied because Thompson had requested prospective injunctive and declaratory relief. See Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.1998) (holding that when a suit alleges a violation of federal law against an individual in his official capacity as an agent of the state and seeks declaratory and injunctive relief, the individual is not entitled to sovereign immunity under the Eleventh Amendment).

A scheduling order was subsequently entered and Thompson's complaint was set for trial on April 7, 2003.

On December 16, 2002, Thompson and the Defendants filed an Agreed Stipulation of Partial Dismissal with Prejudice asking that Thompson's request for injunctive relief regarding his religious claims be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii).

On January 22, 2003, Defendants Eason, Cook, Gloyd, Trumbo, Oliver, Lipiecki, Pruett, Sherly, and Kocher filed a Motion for Summary Judgment with Brief in Support² and an Appendix ("App.") which contained authenticated copies of Thompson's prison records and parts of Thompson's oral deposition. Thompson has not filed a response.

PLAINTIFF'S COMPLAINT³

Thompson alleges that he was transferred to the TDCJ-ID Robertson Unit on January 4, 2000, and within three weeks of his arrival, he was assaulted by a member of a prison gang.⁴ As a result of this assault, Thompson was moved from Building 3 to Building 4 and his work assignment was changed from the laundry to the garment factory. After he spent about three or four months in Building 4, Thompson was moved to the "Dorms," but he continued to work in the garment factory.

On August 19, 2000, Thompson witnessed TDCJ-ID officers search the cell of inmate Carl Davis and seize his typewriter. Davis advised Thompson that the officers had subsequently filed a false disciplinary case against him, and Thompson agreed to testify for Davis when he filed his civil rights complaint in federal court. Thompson alleges that after he agreed to testify for inmate Davis, the Defendants failed to protect him from assaults and threats by prison gangs and that some of the Defendants acted in retaliation for his agreeing to testify for inmate Davis because they did not like inmate Davis.

Thompson's first life-endangerment complaint at the Robertson Unit was investigated by Defendant Trumbo, but he alleges that after the initial investigation, Trumbo did nothing to protect Thompson from future threats and assaults by other prison inmates. Thompson also contends that Defendant Gloyd investigated another life-endangerment complaint he filed, but he argues that Defendant Gloyd did nothing to insure his safety other than send some "gang investigators" to interview Thompson and investigate the complaint.

Thompson alleges that on December 7, 2000, he was assaulted in his cell in Building 19 by three gang members—Larry Lucky, Wallace, and Dice. These gang members allegedly punched him with their fists and kicked him in his face, ribs, and body. Although Thompson reported the assault to Defendant Kocher, Kocher simply gave him a towel for his bloody nose and refused to take him to the infirmary. Thompson concedes that he suffered only superficial cuts and bleeding, he did not file a sick call request, and his injuries healed without medical treatment. Thompson also argues that Defendant Kocher did not report the assault or take any steps to protect him from future assaults and threats by gang members.

Thompson next complains that when he reported to work in the prison garment factory on December 11 or 12, 2000, he told Defendants Pruett, Sherly, and Lipiecki about the assault and asked for protection. He alleges that he continued to ask for protection until December 14, 2000, and even though Defendants Pruett and Sherly observed gang members threaten him in the garment factory during this time period, they refused to take any action to insure Thompson's safety.

Thompson contends that he specifically advised Defendant Pruett on December 14, 2000, that he could not go to the bathroom in the garment factory because he had been told that the gang members would be waiting there for him. Thompson alleges that he observed Defendant Pruett talk to inmate Burgess, one of the inmates that had previously assaulted him on December 7, and that Burgess later told Thompson that Defendant Pruett had told the inmates that Thompson was a "snitch." Thompson also alleges that Defendant Pruett was aware of the threats and intimidation because his desk was just in front of Thompson's work station and he could see the gang members coming by and threatening Thompson.

Thompson contends that Defendants Pruett and Sherly failed to take any steps to insure his safety in retaliation for the assistance he gave to Carl Davis. Although neither Pruett nor Sherly was named as a defendant in Davis's suit, the officers did not like Davis because he filed so many complaints and lawsuits. Thompson also vaguely argues that Defendants Trumbo, Gloyd, and Kocher deliberately ignored his requests for protection in retaliation for the support he provided Carl Davis.

Thompson alleges that he was called before the Robertson Unit Classification Committee ("UCC") on December 20, 2000. Defendant Oliver presided over this meeting and ordered Thompson transferred to Building 3, Pod C, Cell 58. Thompson argues that he refused to move because several of the gang members that had assaulted and threatened him lived in Building 3. Thompson alleges that Defendant Oliver refused to listen to his explanation and charged him with a disciplinary infraction (#20010110458) for refusing to accept the cell assignment.

Thompson was again called before the Robertson UCC on January 17, 2001, and this time he requested a transfer to another unit. After the meeting,...