UNITED STATES DISTRICT COURT January 23, 2023 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION
ABELARDO G. GONZALEZ, § § Plaintiff, § § VS. § CIVIL ACTION NO. 2:21-CV-00295 § CANDACE R MOORE, et al., § § Defendants. §
ORDER ADOPTING MEMORANDUM & RECOMMENDATION
Plaintiff Abelardo G. Gonzalez is a state prisoner incarcerated at the Texas Department of Criminal Justice-Criminal Institutions Division (TDCJ) Powledge Unit in Palestine, Texas. D.E. 26, n. 4. Proceeding pro se, Plaintiff filed this prisoner civil rights action regarding incidents that occurred while incarcerated at the TDCJ McConnell Unit. D.E. 1. On August 16, 2022, United States Magistrate Judge Jason Libby issued a Memorandum and Recommendation (M&R, D.E. 26), recommending that Plaintiff’s action be dismissed. Plaintiff timely filed his objections (D.E. 27, 29), each of which is addressed below. I. Legal and Factual Accuracy First, Plaintiff misstates the applicable legal standard by citing only Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). D.E. 29, p. 1. Jones predates the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). While it is true that Jones permits dismissal only when the 1 / 7 plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint, Twombly and Iqbal further require that the factual pleadings be substantive and not conclusory. See Iqbal, 556 U.S.
at 678. The Magistrate Judge applied the correct standards. To the extent that Plaintiff suggests otherwise, his objection is OVERRULED. Second, Plaintiff argues that the M&R misconstrues the nature of the cat’s residence in the prison library by stating that the cat frequented the library. D.E. 27, p. 2. He appears to suggest that a more permanent residency of the cat materially improves his claim.
Plaintiff’s objection does not demonstrate what impact this distinction makes in the legal analysis of the Magistrate Judge and is therefore inadequate. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (to be considered, the objection must point out with particularity the error in the magistrate judge’s analysis). The Court finds that whether the cat was a continuous resident or frequent visitor at the facility is a distinction without a
difference in this matter. Accordingly, Plaintiff’s second objection is OVERRULED. II. Negligence
Third, Plaintiff argues that his gross negligence claims for personal injury are not barred by the Texas Tort Claims Act (TTCA) because the TDCJ Defendants, Candace Moore and Megan Thompson, were not acting within the scope of their employment at the time of the incident. D.E. 27, p. 2; D.E. 29, p. 3. In support of this argument, Plaintiff presents no new facts or legal support. He appears to be arguing that personal injury claims
2 / 7 are, by their nature, not employment-related. Alternatively, he could be arguing that allowing a cat on the premises was outside the scope of employment. The TTCA is the correct statute for negligence claims for personal injury and
defines “scope of employment” as “the performance for a governmental unit of the duties of an employee's office or employment and includes being in and about the performance of a task lawfully assigned to an employee by competent authority.” See Tex. Civ. Prac. & Rem. Code § 101.001(5). Plaintiff’s allegations state that Defendants’ actions occurred at their place of work, the TDCJ McConnell Unit law library. D.E. 24, p. 23. Defendants
have the responsibility to oversee the activities on the premises; this satisfies that these employees were acting within the scope of their employment. See Hundall v. Univ. of Tex. at El Paso, No. EP-13-CV-00365-DCG, 2014 WL 12496895, at *12 (W.D. Tex. Feb. 21, 2014) (finding that plaintiff’s claims under the TTCA for negligence, gross negligence, and assault against governmental employees should be dismissed because the employees
were agents of the government and the alleged actions occurred while the defendants were at work). Plaintiff’s third objection is OVERRULED. Fourth, Plaintiff re-urges that because inmate Adrian Chavez took responsibility for the cat being in the library after the attack, Chavez had a duty to the Plaintiff sufficient to support his negligence claim. D.E. 29, p. 3. Plaintiff does not assert any facts or legal
authority by which a prison inmate may lawfully own and keep a pet, such as a cat, in the facility.
3 / 7 According to Plaintiff’s complaint, Chavez stated that he had made an agreement with Defendants Moore and Thompson to take responsibility for the cat after the alleged attack, with the implication that Chavez sought to curry favor with his supervisors as an
assistant in the library. D.E. 1, p. 10. However, Plaintiff’s description of the facts also state that Defendants Moore and Thompson had permission to house the cat, the cat was staying in Defendant Moore’s office, and Defendant Thompson planned to take the cat home once it was done nursing. Id. at 7. These facts indicate that Chavez was not the owner of the cat or responsible for its actions. Plaintiff’s fourth objection is OVERRULED.
III. Immunity
Fifth, Plaintiff objects to the M&R’s finding that the Eleventh Amendment bars his claims for monetary damages against the TDCJ Defendants in their official capacities, contending that he asserted no such claims. D.E. 27, p. 3. The Magistrate Judge has a duty to construe pro se complaints liberally. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). In his complaint, Plaintiff states that he is suing the TDCJ Defendants in their individual and official capacities and requests monetary relief. D.E. 1, pp. 3, 24. The Magistrate Judge did not err in his analysis. The Court OVERRULES Plaintiff’s fifth objection. IV. Retaliation
Sixth, Plaintiff objects to the M&R’s finding that the alleged instances of retaliation were de minimis. D.E. 27, p. 4. He claims that he was labeled a snitch in retaliation for filing grievances, and that this conduct is sufficient to support his claims. Id. This argument
4 / 7 was raised in his complaint, but not discussed by the Magistrate Judge. D.E. 1, pp. 9-10; See D.E. 26. The Court will now address this argument. Some acts, even though they may be motivated by retaliatory intent, are so de
minimis that they would not deter the ordinary person from further exercise of his rights and therefore cannot form the basis of a § 1983 claim. Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Being labeled a snitch and subjected to threats and physical harm as a result of exercising one’s constitutional rights may deter an inmate from the future exercise of those rights, satisfying the de minimis test. Gonzalez v. Trevino, No. 5:20-CV-
52, 2021 WL 7184963, at *4 (S.D. Tex. Nov. 12, 2021), report and recommendation adopted in part sub nom. Gonzalez v. Webb Cnty., No. 5:20-CV-52, 2022 WL 190709 (S.D. Tex. Jan. 21, 2022). Here, Plaintiff claims that Defendants Moore and Thompson told inmates, including Chavez, that Plaintiff is a snitch. D.E. 1, pp. 9-10.
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UNITED STATES DISTRICT COURT January 23, 2023 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION
ABELARDO G. GONZALEZ, § § Plaintiff, § § VS. § CIVIL ACTION NO. 2:21-CV-00295 § CANDACE R MOORE, et al., § § Defendants. §
ORDER ADOPTING MEMORANDUM & RECOMMENDATION
Plaintiff Abelardo G. Gonzalez is a state prisoner incarcerated at the Texas Department of Criminal Justice-Criminal Institutions Division (TDCJ) Powledge Unit in Palestine, Texas. D.E. 26, n. 4. Proceeding pro se, Plaintiff filed this prisoner civil rights action regarding incidents that occurred while incarcerated at the TDCJ McConnell Unit. D.E. 1. On August 16, 2022, United States Magistrate Judge Jason Libby issued a Memorandum and Recommendation (M&R, D.E. 26), recommending that Plaintiff’s action be dismissed. Plaintiff timely filed his objections (D.E. 27, 29), each of which is addressed below. I. Legal and Factual Accuracy First, Plaintiff misstates the applicable legal standard by citing only Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). D.E. 29, p. 1. Jones predates the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). While it is true that Jones permits dismissal only when the 1 / 7 plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint, Twombly and Iqbal further require that the factual pleadings be substantive and not conclusory. See Iqbal, 556 U.S.
at 678. The Magistrate Judge applied the correct standards. To the extent that Plaintiff suggests otherwise, his objection is OVERRULED. Second, Plaintiff argues that the M&R misconstrues the nature of the cat’s residence in the prison library by stating that the cat frequented the library. D.E. 27, p. 2. He appears to suggest that a more permanent residency of the cat materially improves his claim.
Plaintiff’s objection does not demonstrate what impact this distinction makes in the legal analysis of the Magistrate Judge and is therefore inadequate. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (to be considered, the objection must point out with particularity the error in the magistrate judge’s analysis). The Court finds that whether the cat was a continuous resident or frequent visitor at the facility is a distinction without a
difference in this matter. Accordingly, Plaintiff’s second objection is OVERRULED. II. Negligence
Third, Plaintiff argues that his gross negligence claims for personal injury are not barred by the Texas Tort Claims Act (TTCA) because the TDCJ Defendants, Candace Moore and Megan Thompson, were not acting within the scope of their employment at the time of the incident. D.E. 27, p. 2; D.E. 29, p. 3. In support of this argument, Plaintiff presents no new facts or legal support. He appears to be arguing that personal injury claims
2 / 7 are, by their nature, not employment-related. Alternatively, he could be arguing that allowing a cat on the premises was outside the scope of employment. The TTCA is the correct statute for negligence claims for personal injury and
defines “scope of employment” as “the performance for a governmental unit of the duties of an employee's office or employment and includes being in and about the performance of a task lawfully assigned to an employee by competent authority.” See Tex. Civ. Prac. & Rem. Code § 101.001(5). Plaintiff’s allegations state that Defendants’ actions occurred at their place of work, the TDCJ McConnell Unit law library. D.E. 24, p. 23. Defendants
have the responsibility to oversee the activities on the premises; this satisfies that these employees were acting within the scope of their employment. See Hundall v. Univ. of Tex. at El Paso, No. EP-13-CV-00365-DCG, 2014 WL 12496895, at *12 (W.D. Tex. Feb. 21, 2014) (finding that plaintiff’s claims under the TTCA for negligence, gross negligence, and assault against governmental employees should be dismissed because the employees
were agents of the government and the alleged actions occurred while the defendants were at work). Plaintiff’s third objection is OVERRULED. Fourth, Plaintiff re-urges that because inmate Adrian Chavez took responsibility for the cat being in the library after the attack, Chavez had a duty to the Plaintiff sufficient to support his negligence claim. D.E. 29, p. 3. Plaintiff does not assert any facts or legal
authority by which a prison inmate may lawfully own and keep a pet, such as a cat, in the facility.
3 / 7 According to Plaintiff’s complaint, Chavez stated that he had made an agreement with Defendants Moore and Thompson to take responsibility for the cat after the alleged attack, with the implication that Chavez sought to curry favor with his supervisors as an
assistant in the library. D.E. 1, p. 10. However, Plaintiff’s description of the facts also state that Defendants Moore and Thompson had permission to house the cat, the cat was staying in Defendant Moore’s office, and Defendant Thompson planned to take the cat home once it was done nursing. Id. at 7. These facts indicate that Chavez was not the owner of the cat or responsible for its actions. Plaintiff’s fourth objection is OVERRULED.
III. Immunity
Fifth, Plaintiff objects to the M&R’s finding that the Eleventh Amendment bars his claims for monetary damages against the TDCJ Defendants in their official capacities, contending that he asserted no such claims. D.E. 27, p. 3. The Magistrate Judge has a duty to construe pro se complaints liberally. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). In his complaint, Plaintiff states that he is suing the TDCJ Defendants in their individual and official capacities and requests monetary relief. D.E. 1, pp. 3, 24. The Magistrate Judge did not err in his analysis. The Court OVERRULES Plaintiff’s fifth objection. IV. Retaliation
Sixth, Plaintiff objects to the M&R’s finding that the alleged instances of retaliation were de minimis. D.E. 27, p. 4. He claims that he was labeled a snitch in retaliation for filing grievances, and that this conduct is sufficient to support his claims. Id. This argument
4 / 7 was raised in his complaint, but not discussed by the Magistrate Judge. D.E. 1, pp. 9-10; See D.E. 26. The Court will now address this argument. Some acts, even though they may be motivated by retaliatory intent, are so de
minimis that they would not deter the ordinary person from further exercise of his rights and therefore cannot form the basis of a § 1983 claim. Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Being labeled a snitch and subjected to threats and physical harm as a result of exercising one’s constitutional rights may deter an inmate from the future exercise of those rights, satisfying the de minimis test. Gonzalez v. Trevino, No. 5:20-CV-
52, 2021 WL 7184963, at *4 (S.D. Tex. Nov. 12, 2021), report and recommendation adopted in part sub nom. Gonzalez v. Webb Cnty., No. 5:20-CV-52, 2022 WL 190709 (S.D. Tex. Jan. 21, 2022). Here, Plaintiff claims that Defendants Moore and Thompson told inmates, including Chavez, that Plaintiff is a snitch. D.E. 1, pp. 9-10. However, Plaintiff states no allegations of threats or physical harm that he suffered because of this
label. This is insufficient to satisfy the de minimis test and Plaintiff’s sixth objection is therefore OVERRULED. Seventh, Plaintiff contends that the Magistrate Judge erred in finding that his transfer was not retaliatory. D.E. 27, p. 4. Plaintiff cites Fifth Circuit precedent to support that a transfer to a more dangerous prison satisfies the de minimis test. Id. However, the
M&R’s reasoning regarding Plaintiff’s transfer did not rely on the de minimis test; rather, the M&R reasoned that Plaintiff could not show retaliatory purpose or causation because he stated conclusory allegations and was only temporarily transferred to the new unit,
5 / 7 consistent with the use of that unit for intermediate transfers. D.E. 26, p. 16. Plaintiff’s objection does not address the legal finding of the Magistrate Judge and is therefore OVERRULED.
V. Deliberate Indifference
Eighth, Plaintiff re-urges that the cat’s dangerousness was known to Defendants and emphasizes the seriousness of his injury. D.E. 29, p. 2. In that regard, he states that the cat was a stray and was unvaccinated. He does not allege any facts to support his claim that the cat was known to scratch, bite, or otherwise present a danger to inmates. He also re-asserts that Defendants told the prison medical staff not to treat him. Id. Yet by his own description of the facts surrounding the event, he did get medical care for the scratch. D.E. 24, p. 25. Nothing in the pleading indicates what authority Defendants Moore or Thompson would have over his medical care or what, specifically, he was deprived of at their insistence.
Plaintiff has not cited any new facts or legal support for his argument and the Magistrate Judge’s analysis was correct. Plaintiff’s eighth objection is therefore OVERRULED. Having reviewed the findings of fact, conclusions of law, and recommendations set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Plaintiff’s
objections, and all other relevant documents in the record, and having made a de novo disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation
6 / 7 to which objections were specifically directed, the Court OVERRULES Plaintiff's objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge. Accordingly, (1) Plaintiffs § 1983 claims for money damages against Moore, Thompson, and John and Jane Doe in their official capacities are DISMISSED without prejudice as barred by the Eleventh Amendment; (2) Plaintiff's § 1983 claims against Moore, Thompson, and John and Jane Doe are DISMISSED with prejudice as frivolous and/or for failure to state a claim for relief pursuant to §§ 1915(e)(2)(B) and 1915A(b)(1); (3) Plaintiffs negligence claims against all Defendants are DISMISSED with prejudice as frivolous and/or for failure to state a claim for relief pursuant to §§ 1915(e)(2)(B) and 1915A(b)(1); and, (4) Plaintiff's request for injunctive relief is DISMISSED with prejudice because Plaintiff has failed to state any viable cause of action on which injunctive relief can be granted. This action is DISMISSED in its entirety. ORDERED on January 23, 2023.
UNITED STATES DISTRICT JUDGE
' Though the M&R states that all claims should be dismissed with prejudice, the dismissal of these claims based on lack of jurisdiction should be without prejudice. See Crenshaw-Logal v. City of Abilene, Tex., 436 F. App’x 306, 310 (Sth Cir. 2011); Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (Sth Cir. 1996). 7/7