Opinion
2:04-CV-0249.
July 8, 2005
REPORT AND RECOMMENDATION
Plaintiff RAYMOND LLOYD COLLINS, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis
Plaintiff states his First and Fourteenth Amendment rights have been violated by a refusal to send a piece of mail containing a request to reopen a parole revocation hearing by certified mail, return to receipt requested and by an apparent delay in subsequently mailing such. Plaintiff also alleges a conspiracy by the defendants to retaliate against him for complaints he made in connection with the certified mail issue.
Plaintiff seeks an injunction to prevent future violations of his constitutional rights as alleged herein and an award of "all type damages of which the facts, circumstances, and substantive law require to assure that justice be accorded relative to liability imposed."
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
SPECIFIC FACTUAL ALLEGATIONS
Plaintiff's alleges defendant STONE denied him certified postage on February 17, 2004 for a Motion to Reopen Revocation Hearing which he wanted to send to the Board of Pardons and Paroles. Plaintiff says STONE's supervisor, defendant GLENN, agreed with STONE's decision and denied him the requested certified mail. Plaintiff says this decision was made despite his showing STONE and GLENN that the Board of Pardons and Paroles' required such a pleading to be sent by certified mail, return receipt requested. Plaintiff's grievance on this issue was denied at step 1 by defendant GRAY and at step 2 by defendant BARROW. Plaintiff claims defendants' erroneous interpretation of the prison policies in question, A.D. 7.90 and A.M. 03.81.034, resulted in a denial of his right of access to courts and free speech, as well as violations of substantive and procedural due process.
Plaintiff further claims he gave three letters to an officer for mailing by first class mail on February 26, 2004, one of which, the earlier-mentioned Motion to Reopen Revocation Hearing, was logged as mailed out on March 2, 2004 and the other two were logged as mailed out the following day. On March 29, 2004, plaintiff, not having heard from the Board of Pardons and Paroles, sent a letter asking if his Motion to Reopen had been received. Plaintiff says he was informed the March 29, 2004 letter was accidently opened by mailroom officials. Plaintiff then alleges these mailroom officials then mailed the Motion to Reopen which had been logged as mailed on March 2, 2004.
Plaintiff also sent the Board of Pardons and Paroles a motion for extension of time to file motion to reopen the revocation hearing. Plaintiff claims defendants JOWERS, TURNER, MARTINEZ, and JOHN or JANE DOE deliberately lied and withheld his mail to the parole board in a conspiracy to retaliate against him for his initial request for certified mail, his complaint about its denial, and the subsequent grievances he submitted.
THE LAW AND ANALYSIS
As set forth below, plaintiff failed to exhaust administrative remedies concerning any claims except his claim against defendants STONE and GLENN for refusing to send his February 2004 parole board motion to reopen/reinstate by certified mail, return receipt requested. Further, after consideration of plaintiff's request for injunctive relief and the evidence received at the hearing on such request, to allow plaintiff to amend this suit to add a defendant against whom the request could be granted would be futile and plaintiff's request for injunctive relief is now moot. Lastly, plaintiff's claims are frivolous and fail to state a claim on which relief can be granted.Exhaustion of Administrative Remedies
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
In response to Question no. III of the complaint form inquiring whether plaintiff has exhausted both steps of the grievance procedure, plaintiff marked the box indicating, "yes." Nevertheless, review of the grievances submitted with plaintiff's complaint reveals exhaustion only with respect to his claim concerning the application of certified mail rules to his mail.
In his step 2 grievance, but not in his step 1, plaintiff also complains of the loss or late mailing of his motion; however, inmates may take to step 2 only those matters alleged in the step 1 grievance. Therefore, his additional complaint was not addressed in the step 2 grievance response. In examining the sufficiency of a grievance to determine whether administrative remedies have been exhausted, the prison system's own rules regarding grievances provide both inmates and the courts with specific guidance. "Since prisoners are generally required to follow the procedures adopted by the state prison system, the specificity requirement should be interpreted in light of the grievance rules of the particular prison system, here the TDCJ." Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004) ( referencing, Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) ("[G]rievances must contain the sort of information that the administrative system requires."). By his attempt to skip step 1 of the grievance system concerning his mailroom claims, plaintiff did not allow for investigation of these problems at the unit level and, therefore, they could not be and were not addressed at step 2. Consequently, plaintiff's step 2 grievance was not adequate to exhaust administrative remedies with respect to any claims other than the denial of certified mail for his Motion to Reopen.
Lastly, plaintiff made no mention of his claims of conspiracy and retaliation in either the step 1 or step 2 grievance and has not grieved any complaints against either grievance officer.
By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Consequently, with the exception of his claims concerning denial of certified mail, plaintiff's claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Denial of Certified Mail
An evidentiary hearing was conducted June 9, 2005 on plaintiff's claims for injunctive relief and defendants' June 8, 2005 Response in Opposition to Plaintiff's Motion for Injunctive Relief.
At the hearing, defendants presented Defendants' Exhibits D-1 through D-7, all of which were admitted into evidence. Defendants conceded plaintiff had been denied certified mail, return receipt requested postage for his Motion to Reopen and stated that, in future, such mail to the Board of Pardons and Paroles would be sent by certified mail, return receipt requested.
Defendants further presented the sworn testimony of defendant GLENN that, as supervisor, he did not have the authority to issue or deny plaintiff's request for certified postage but had to send the request to the "Access-to-Court" division. Defendant GLENN testified he had plaintiff fill out the necessary request for certified mail postage and forwarded it to the Access-to-Courts division which contacted the Board of Pardons and Paroles. He further testified that, when he didn't receive a response, he inquired again and was informed plaintiff's request was denied. Defendant GLENN testified he didn't know whether the Access-to-Courts' decision was based on a response received from the Board of Pardons and Paroles but that he informed plaintiff of the decision.
Defendants pointed to defendants Exhibits D-6 and D-7. Exhibit D-6 was the mail log of plaintiff's incoming and outgoing legal, special and media mail for the relevant time period and showed outgoing mail from plaintiff to the Board of Pardons and Paroles was processed on March 2, 2004. Exhibit D-7 was records of the faxes from defendant STONE in the law library reiterating the inquiry to Access-to-Courts whether plaintiff's mail qualified for certified mail, return receipt requested status.
Defendants further pointed to defendants Exhibit D-1, the Affidavit of William W. Seigman, Director, Review and Release Processing Section of the Texas Department of Criminal Justice — Parole Division.
A partial copy of the Affidavit was attached as an exhibit to defendants' June 8, 2005, Opposition to Plaintiff's Motion for Injunctive Relief and the complete original of the same Affidavit with all attachments was introduced as Defendants' Exhibit "D1" during the June 9, 2005 evidentiary hearing.
By his sworn Affidavit, Mr. Seigman averred plaintiff's February 26, 2004 Motion to Reopen Revocation Hearing or Reinstate Supervision was sent by first class mail and was postmarked March 2, 2004. He stated the motion was delivered to the TDCJ Parole Division mailroom on March 5, 2004 but was not received by the Board of Pardons and Paroles Hearings Section until July 6, 2004, at which time it was placed in plaintiff's parole file. He testified that the record showed no contemporaneous consideration of the motion by the Board. Mister Seigman further stated there was no apparent reason the motion was not considered but that it did not relate to any failure to send the document by certified mail, return receipt requested. Upon discovering that the motion had not been considered, it was forwarded to the Board's Motion to Reopen Panel on June 1, 2005 and given full consideration by Commissioners Chuck Speier and Paddy Burwell who then denied the motion. Plaintiff was so notified by a letter dated June 1, 2005.
Mister Seigman also averred that plaintiff had submitted an April 15, 2004 Motion to Reopen Revocation Hearing or Reinstate Supervision which had been mailed by first class mail. Despite its title, the body of the document contained a request for extension of time to submit a motion for rehearing/reinstatement. Mister Seigman stated the letter was not rejected for failure to send it by certified mail, return receipt requested, but that it was treated as a motion for rehearing/reinstatement and given consideration by the Board's Motion to Reopen Hearing panel on May 10, 2004, composed of Parole Commissioners Alvin Shaw and Paddy Burwell, who voted to deny the motion for rehearing/reinstatement. Attached to Mr. Seigman's Affidavit was a copy of the Board of Pardons and Paroles Minutes reflecting the consideration of and decision to deny plaintiff's motion to reopen on June 1, 2005, as well as copies of the Board of Pardons and Paroles letters dated May 18, 2004 and June 1, 2005 informing him of the denial of his motions to reopen/reinstate, and copies of plaintiff's February 26, 2004 and April 15, 2004 motions with their envelopes reflecting the dates they were postmarked at the Clements Unit, the dates they were received at the parole division mailroom, and the dates they were received in the hearings section of the parole division
Thus, defendants argued, although plaintiff's motion to the parole board had not been sent by certified mail, return receipt requested, plaintiff had not suffered any denial of access to courts or any violation of his freedom of speech.
Plaintiff objected to the admission of the June 1, 2005 letter from the Board of Pardons and Paroles into evidence, saying he had not yet received a copy of it. Plaintiff also argued that his motion for rehearing may have been denied without consideration of the "errors" asserted therein.
Nevertheless, plaintiff presented no evidence to rebut that presented by defendants.
The unrebutted evidence offered by the defendants at the evidentiary hearing provides an administrative record of the proceedings of the Parole Board. The Court notes that, although plaintiff's April 14, 2004 motion for extension, which was entitled and treated as a motion for rehearing/reinstatement, did not contain the arguments set forth in his February 26, 2004 motion, those arguments were considered by the parole board at a later date, when the February 26, 2004 motion was denied on June 1, 2005.
More importantly, the failure by the parole board to consider plaintiff's February 26, 2004 motion, and the arguments it contained, in a timely manner was not connected to any denial of certified mail status or mishandling of mail by Clements Unit personnel. Instead, any delay was the result of an oversight in the parole division mailroom where, upon its March 5, 2004 arrival, the motion was not acted upon until its July 6, 2004 arrival in the hearings section (see, Bates-stamped pages 27-29 of Exhibit D-1).
Consequently, it is clear plaintiff was not harmed by the failure to send his letter by certified mail, return receipt requested. Further, defendants have represented that in future such mail by inmates to the Board of Pardons and Paroles will receive certified mail, return receipt postage. For these reasons, it is clear plaintiff's request for injunctive relief is moot.
The Court recognizes plaintiff has not named an appropriate defendant against whom injunctive relief could be granted; however, in light of the above, it is clear plaintiff has alleged his best case and any amendment would not benefit him in light of the administrative record of the facts surrounding his claims. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). Consequently, with respect to his plea for injunctive relief against the named defendants, plaintiff has failed to state a claim on which relief can be granted.
As to plaintiff's claims against defendants STONE and GLENN, for which he has exhausted administrative remedies, plaintiff has not challenged their claims to qualified immunity, which were supported by evidence at the hearing that they had to refer plaintiff's request to the "Access-to-Courts" division. Furthermore, plaintiff has not challenged evidence showing he suffered no harm as a result of the denial of certified mail for his motions.
Given defendants' showing that they could not issue the certified mail plaintiff requested unless the request was first approved, and that such approval was denied, it is clear plaintiff has failed to allege facts sufficient to defeat defendants' entitlement to qualified immunity and his claims against them lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
Pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff RAYMOND LLOYD COLLINS be DISMISSED WITH PREJUDICE AS FRIVOLOUS, FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED, and WITH PREJUDICE FOR PURPOSES OF PROCEEDING IN AN IN FORMA PAUPERIS PROCEEDING PURSUANT TO TITLE 28, UNITED STATES CODE, SECTION 1915(b). Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); 42 U.S.C. § 1997e(a).
Despite the findings of frivolousness and failure to state a claim set forth above, it is the further RECOMMENDATION of the Magistrate Judge to the United States District Judge that the dismissal of the instant cause not be counted as a "strike" against plaintiff due to his inability to access the facts contained in the administrative record produced at the June 9, 2005 hearing and which the Court has considered.
Consideration of the administrative record produced at the hearing is proper as in a Spears hearing. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). To the extent any issue is presented as to the consideration of the administrative record introduced into evidence as defendants' exhibits 1-7, which record plaintiff has not challenged or rebutted, such record, at the least, is entitled to consideration as a Martinez report. See, Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see, also, Parker v. Carpenter, 978 F.2d 190, 192, n. 2 (5th Cir. 1993); Graves v. Hampton, 1 F.3d 315, 319 n. 20 (5th Cir. 1993) (noting with approval the Martinez procedure of ordering prison officials to investigate the facts surrounding a civil rights suit by inmates to construct an administrative record which will enable the trial court to pierce the veil of the complaint's factual allegations and make a determination concerning frivolousness).
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to any attorney of record by certified mail, return receipt requested.
IT IS SO RECOMMENDED.