Hernandez v. Abbott

1

JASON J. HERNANDEZ v. GREG ABBOTT, et al.,

Civil Action No. 9:20-CV-196

United States District Court, E.D. Texas, Lufkin Division

July 28, 2023

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KEITH F. GIBLIN UNITED STATES MAGISTRATE JUDGE

Plaintiff Jason J. Hernandez, an inmate confined at the Polunsky Unit with the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed the above-referenced civil rights action pursuant 42 U.S.C § 1983 against defendants Brian Collier, Executive Director of the Texas Department of Criminal Justice, Robert Grant, former Polunsky Unit Program Supervisor V of the Security Threat Group Management Office, Tod Harris, former Warden Polunsky Unit, Eva Shiver, current Polunsky Unit Program Supervisor V of the Security Threat Group Management Office, and Michael Butcher, former Warden Polunsky Unit.

The above-styled action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law and recommendations for the disposition of the case.

Relevant Background

As outlined in the 2015 TDCJ Security Threat Group Plan (Exhibit E), defendants offer the following relevant background:

During the 1990s, the Texas Department of Criminal Justice (“TDCJ”) experienced the largest offender population growth in its history. The total offender population grew from 50,720 in fiscal year 1991to 128,468 in fiscal year 1995 to 150,367 in fiscal year 2015. With the population growth, the TDCJ also began to see an increase in gang activities, formally known as Security Threat Group (STG) related activities.

To meet the timely demands of monitoring and validating STG members and their activities, in October 1996, the TDCJ established the Security Threat Group Management Office (STGMO). Under the direction of the deputy director of Management Operations, the STGMO manages an information network to share data between TDCJ Correctional Institutions Division (CID) units and various state and federal law enforcement agencies. The STGMO also provides training to unit and regional STG staff to ensure consistency among all TDCJ CID units in the management of these offenders.

The STGMO reviews each group and its members to determine who shall be recognized by the TDCJ CID as being an STG, disruptive group, or clique. An offender's affiliation with a “free-world” group or another prison system does not automatically make the offender a threat within the TDCJ. Each group and offender is reviewed and evaluated on a case-by-case basis.

The Gang Renouncement and Disassociation (GRAD) and the Administrative Segregation Diversion Program (ASDP) provide methods for offenders to renounce their membership in an STG and return to general population.

Defendants' Motion for Summary Judgment, pgs. 7-8 (docket entry no. 14) (citations omitted).

The Complaint

Plaintiff alleges his Fourteenth and Eighth Amendment constitutional rights have been violated while confined in administrative segregation as a result of gang validation. According to plaintiff, he was placed in administrative segregation in November of 2010 due to his gang validation when he entered TDCJ. Plaintiff states he was transferred to the Polunsky Unit in March of 2011 and his placement in administrative segregation has continued through this day. Plaintiff's chief complaints are two-fold.

First, plaintiff alleges that through TDCJ policy, he is being forced to either “debrief” or endure the “crushing and inhumane” conditions of administrative segregation which allegedly constitutes torture. Plaintiff states TDCJ requires debriefing despite acknowledging that “an individual who divulges secret information about his gang might be a target of violence by fellow gang members.” According to plaintiff, upon completion of “GRAD” prisoners must first agree to sign a waiver stating TDCJ is not liable for any potential injury to the prisoner before he is released to the general population. As such, plaintiff alleges the defendants implement and enforce a policy which is deliberately indifferent to his health and safety.

Plaintiff next contends he is being denied due process through the gang validation process. Plaintiff concedes that once a prisoner is validated as a gang affiliate and sent to administrative segregation for an indefinite term, he is entitled to periodic review of his validation and paperwork in his file. Plaintiff states, however, that unless a prisoner is willing to debrief, “the annual hearing (for STG only) by ASC, allows absolutely no possibility for release” from administrative segregation. Plaintiff specifically complains that “[n]o examination of continued gang activity or association occurs at the annual hearing by the ASC, nor is there any assessment of whether the prisoner's behavior requires continued SHU placement.” Plaintiff states that despite his demonstrated ability to follow prison rules by avoiding significant prison misconduct and not being disciplined for violating a major prison rule in at least seven years, he is still being denied review and placement into the general population. Plaintiff contends that the defendants' policy of retaining inmates in administrative segregation when there is no reliable evidence to support the allegation that he presents a threat of gang-related violence or misconduct is “unmoored from any legitimate penological or security need.” As long as plaintiff is housed in administrative segregation, he contends he will never be eligible for parole. Plaintiff asserts he has no meaningful notice of what he must do to earn release apart from debriefing and the length of time between reviews is too long to comport with constitutional due process standards.

With respect to his injuries, plaintiff states TDCJ's “uniquely harsh regimen of prolonged administrative segregation at Polunsky and within TDCJ's SHUs, is inhumane and debilitating.” He goes on to say he:

[L]anguishes, alone, in a cramped, concrete cell, with a small window that's only 3 inches vertically by 4 feet horizontally and which sits across the top back wall of the cell 3 inches to the ceiling, for 22 and one-half to 24 hours a day. He is denied telephone calls, contact visits, and vocational, recreational, educational, and religious programming - denied group prayer, and group meals. Defendants persistently denied plaintiff Hernandez the normal human contact necessary for a person's mental and physical well-being. These tormenting and prolonged conditions of confinement have produced harmful and predictable psychological deterioration to plaintiff.

Amended Complaint, pg. 11. Plaintiff states his physical health has further deteriorated and he has been diagnosed with hypertension and Hepatitis C and suffers from swelling in his legs. Supplemental Complaint (docket entry no. 48).

Plaintiff seeks injunctive relief and a declaratory judgment that the length and conditions of his confinement in administrative segregation violate the Eighth and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983. Plaintiff also seeks compensatory and punitive damages.

The Court previously granted in part and denied in part the Defendants' Motion to Dismiss (docket entry no. 1). The Defendants filed their Answer on September 29, 2020 (docket entry no. 9) and a Docket Control Order was entered (docket entry no. 11). Defendants filed their Motion for Summary Judgment on November 16, 2020 (docket entry no. 14). Plaintiff filed his Response in Opposition on January 11, 2021 (docket entry no. 27).

This Report and Recommendation considers Defendants Motion for Summary Judgment (docket entry no. 14), Plaintiff's Response in Opposition (docket entry no. 27), Defendants Reply (docket entry no. 29) and Plaintiff's Response (docket entry no. 31).

Defendants' Motion for Summary Judgment

Defendants argue the following: (1) plaintiff is not entitled to compensatory damages under the Prison Litigation Reform Act (PLRA) as he does not have a physical injury that is more than de minimis, (2) plaintiff's allegations do not rise to the level of a constitutional violation, (3) plaintiff is not entitled to injunctive relief, and (4) defendants are entitled to qualified immunity. See generally, Defendants' Motion for Summary Judgment (docket entry no. 14).

Defendants rely on the following summary judgment evidence:

Exhibit A: American Correctional Association's Accreditation Report for the Polunsky Unit

Exhibit B: Offender Orientation Handbook

Exhibit C: TDCJ Classification Plan

Exhibit D: Hernandez's relevant Unit Classification Committee and State

Classification Committee records

Exhibit E: TDCJ Security Threat Group Plan, including GRAD and

ASDP procedures

Exhibit F: Portions of Hernandez's STG file and Classification Review

Screenshots

Exhibit G: TDCJ Restrictive Housing Plan

Exhibit H: Hernandez's relevant Grievance Records

Id.

Plaintiff's Response In Opposition

As to his Eighth Amendment claim, plaintiff argues he has suffered both physical and psychological harm directly connected to his long-term confinement in administrative segregation and that due to this long-term unconstitutional confinement he faces a substantial risk of serious harm; a serious harm to which the defendants were and are deliberately indifferent. Response, pgs. 5-6 (docket entry no. 27-2). Plaintiff states he has alleged both physical and psychological injuries that are more than de minimis and are directly connected to his approximately ten plus years in continuous administrative segregation. In addition, plaintiff argues that GRAD and the Administrative...