Opinion
No. 3:01-CV-2117-G
March 18, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
B. Parties : Plaintiff is an inmate of the Dallas County Jail (DCJ). Defendants are Sheriff Jim Bowles and Detention Officer Cole. ( See Compl. at 3.)
C. Statement of the Case : Plaintiff claims that Officer Cole has harassed and retaliated against him for utilizing the prison grievance process. ( See Compl. at 4.) Specifically, he contends that Officer Cole has denied him access to court by denying and/or limiting law library sessions, reading and confiscating legal material, and withholding books and writing supplies from him. ( See Separate Mem. attached to Compl.) Plaintiff alleges he has been harmed by the alleged denial of library sessions by "not being able to research his case, file motions, and to present mitigating evidence to support his innocence" and being "forced to enter into a plea agreement because enough time or the amount of time allowed to pretrial detainees was denied." (Answer to Question 1 of Magistrate Judge's Questionnaire (MJQ).) Counsel represented him on the matters involved in the alleged denial of library sessions. (Answer to Question 2 of MJQ.) Plaintiff further alleges he has been harmed by the alleged confiscation of legal material because such confiscation infringes upon his right to assist other inmates with their legal matters. (Answer to Question 6 of MJQ.) Finally, plaintiff also claims that "[i]n mates who are housed in the North Tower of the Dallas County Jail [are] not afforded the same rights and privileges that are being afforded to other inmates housed in the Dallas County Jail other facilities." ( See Separate Mem.) He sues Sheriff Bowles because the Sheriff "is ultimately responsible" for the actions of the employees under his command and because he has a duty to protect inmates housed in DCJ. (Compl. at 3-4; Separate Mem. at 3.)
Plaintiff's answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
By this lawsuit, plaintiff seeks an order that requires the law library at DCJ to post the requirement of access to courts and an order to stop Officer Coles' harassment, retaliation, and denial of rights and privileges. (Compl. at 4.) Plaintiff also seeks monetary damages. ( Id.) In addition, he requests "that the federal Marshall conduct an investigation for possible criminal charges." (Aff. of Facts attached to MJQ.) No process has been issued in this case.
II. PRELIMINARY SCREENING
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiff's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Because he is proceeding in forma pauperis, plaintiff's complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. See id.
A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28. A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Morvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000). The standard for determining whether a complaint states a claim upon which relief may be granted is the same whether under § 1915(e)(2)(B), § 1915A(b), or Fed.R.Civ.P. 12(b)(6) or (c). See Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312-13 n. 8 (5th Cir. 2002) (noting that the standards under Rules 12(b)(6) and 12(c) are the same); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir.) (recognizing the standards are the same under 28 U.S.C. § 1915 (e)(2)(B) and Rule 12(b)(6)), cert. denied, 123 S.Ct. 660 (2002); Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999) (same); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (recognizing that the standards are the same under §§ 1915(e)(2)(B) (ii) and 1915A; Rule 12(b)(6); and 42 U.S.C. § 1997e(c)).
III. SECTION 1983 RELIEF
Plaintiff seeks relief under 42 U.S.C. § 1983 against a sheriff and a corrections officer for alleged retaliation, denial of access to the courts, and deprivation of equal protection under the law. Section 1983 provides a federal cause of action and affords redress for the "deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a claim under § 1983, plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999).
A. Access-to-court Claims
Plaintiff alleges that Officer Cole has denied him access to courts in three specific ways: (1) denying and/or limiting his law library sessions; (2) confiscating legal materials; and (3) withholding books and writing materials. (Separate Mem.) It is well established that inmates have a constitutionally recognized right to access the courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977). However, such right is limited and simply requires "prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828. The right does not guarantee any "particular methodology but rather the conferral of a capability — the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis v. Casey, 518 U.S. 343, 356 (1996).
The alleged disparate and unequal treatment in access to courts between the housing units of the Dallas County Jail fall within this alleged denial.
To succeed on a claimed denial of access to courts, plaintiff must show that he lost an actionable claim or was prevented from presenting such a claim because of the alleged denial. See id.; Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996) (holding that, to state a sufficient claim of denial of access to the courts, plaintiff must demonstrate that his position as a litigant was prejudiced as a direct result of the denial of access). The "injury requirement is not satisfied by just any type of frustrated legal claim." Lewis, 518 U.S. at 353. Rather, plaintiff must demonstrate that the lack of access has prevented him from filing or caused him to lose a pending case that attacks either his conviction or seeks "to vindicate `basic constitutional rights'" in a civil rights action under 42 U.S.C. § 1983. Id. at 353-54 (quoting Wolff v. McDonnell, 418 U.S. 539, 579 (1974)). "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355. As the right of access to the courts is not a "freestanding right," it is necessary that plaintiff demonstrate actual injury resulting from the alleged denial of access. Id. at 351. Without a showing of an actual injury, plaintiffs lack standing to pursue claimed denials of access to courts. Id. at 349. Because he has made no showing of an actual personal injury, plaintiff has no standing to proceed with his access-to-courts claims.
1. Denial of Library Time
Plaintiff alleges that he was denied time in the prison library, and that this affected his ability to litigate his divorce proceeding, a state court emergency complaint for injunctive relief based on harassment, a suit contesting his alleged illegal eviction from his apartment, and a suit for damages against the arresting officer for theft of personal property. (Answer to Question 3 of MJQ.) Because none of these actions seek to attack his conviction or to vindicate basic constitutional rights, they cannot form the basis of his claim herein. See Lewis, 518 U.S. at 353-55.
Further, as to matters affecting his conviction, plaintiff was not actually injured by the alleged denial because he was represented by counsel. See Walters v. Edgar, 973 F. Supp. 793, 799 (N.D.Ill. 1997) (holding that "[t] he fact that counsel represented [plaintiff on the relevant matters] . . . satisfies the requirements of Bounds"). Complaints that the library system could be better equipped or that plaintiff should be permitted additional time in the law library to ensure his lawyer is doing a good job are not cognizable under current law.
2. Confiscation of Legal Material
With respect to his claim regarding confiscation of legal material, plaintiff has also shown no actual injury. He must show "that his position as a litigant was prejudiced" as a direct result of the denial of access. Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996) (emphasis added). To meet the standing requirement plaintiff "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). Plaintiff "must establish that he has a `personal stake' in the alleged dispute, and that the alleged injury suffered is particularized as to him." Id. at 819.
Plaintiff has shown no personal prejudice from the alleged confiscation of legal materials. His claim merely relates to his ability "to assist another inmate" in pursuing that inmate's legal rights. ( See Answer to Question 6 of MJQ.) Such harm does not bestow standing upon plaintiff to pursue the claimed denial of access to courts. See Johnson v. Rodriguez, 110 F.3d 299, 311 (5th Cir. 1997) (holding that "the right to access to the courts does not accrue to those [inmates] who assist in the preparation of that lawsuit").
3. Withholding Books and Writing Supplies
Finally, plaintiff alleges that Officer Cole withheld books and writing supplies from him. Plaintiff identifies the same harm for this claim as for the claimed denial of time in the prison library and confiscation of legal material. Plaintiff has shown no personal harm for this claim for the same reasons as for his other two denial of access claims.
Because plaintiff has no standing to pursue his access-to-court claims, the Court cannot grant relief on such claims. Therefore, such claims are properly dismissed under 28 U.S.C. § 1915 (e)(2)(B) and § 1915A(b).
B. retaliation Claim
Plaintiff further alleges that Officer Cole "retaliated against" him "because of his good faith use of the grievance system." (Compl. at 4.) Plaintiff's retaliation claim appears to be supported by the same allegations as his access-to-court claims, i.e. that Officer Cole limited his law library sessions, confiscated legal materials, and withheld books and writing materials. ( See id.; Separate Mem.)
It is well established that prison officials may not retaliate against an inmate because that inmate exercised rights under prison grievance procedures. See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999) (per curiam) (addressing such a retaliation claim); Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995) (addressing such claim in conjunction with retaliation due to pursuing litigation in federal court); Tijerina v. Plentl, 984 F.2d 148, 149 (5th Cir. 1993) (considering a retaliation claim based upon the "exercise of prison grievance procedures" that had proceeded to trial).
Other circuits have also so held. See Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002) (noting that filing grievances may "be protected by the speech or petition clauses of the First Amendment" or the right to access the courts); Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (holding that "filing a grievance is protected activity" sufficient to support a retaliation claim); Farver v. Schwartz, 255 F.3d 473, 475 (8th Cir. 2001) (holding that retaliation for filing a grievance is actionable under § 1983).
The Fifth Circuit has long recognized that "[t]o state a claim of retaliation, an inmate must allege the violation of a specific constitutional right and be prepared to establish that but for the retaliatory motive the complained of incident . . . would not have occurred." Tighe v. Wall, 100 F.3d 41, 43 (5th Cir. 1996); see also Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (same). The Fifth Circuit subsequently restated this standard as follows:
To state a valid claim for retaliation under section 1983, a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation.Greninger, 188 F.3d at 324-25 (citing McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998)); see also, Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). "The inmate must allege more than his personal belief that he is the victim of retaliation. Mere conclusionary allegations of retaliation will not be enough to withstand a proper motion for dismissal of the claim." Greninger, 188 F.3d at 325 (citations omitted). To avoid dismissal of the claim, "[t]he inmate must produce direct evidence of motivation or, the more probable scenario, `allege a chronology of events from which retaliation may plausibly be inferred.'" Id. (quoting Woods, 60 F.3d at 1166).
In this case, plaintiff claims that he filed grievances against Officer Cole, and that Officer Cole retaliated against him by limiting his access to court. Specifically, plaintiff claims that his library access has been limited to one hour per week and at times denied completely. (Answer to Question 1 of MJQ.) He also claims that Officer Cole has confiscated legal materials from him and withheld books and writing materials. (See Separate Mem.; Answer to Question 5 of MJQ.) The Court has already found that plaintiff's access claims do not rise to the level of a constitutional violation because his position as a litigant was not prejudiced, his lawsuits did not seek to attack his conviction or to vindicate basic constitutional rights, or he was represented by counsel. However, the fact that plaintiff has not stated a viable access-to-court claim does not mean that he has not alleged a retaliatory adverse act sufficient to continue with his claim of retaliation.
In Woods, the Fifth Circuit held that "[a]n action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate." 60 F.3d at 1165. Under Woods, it appears that plaintiff need not allege an adverse act that is of itself unconstitutional or illegitimate absent a retaliatory motive. When adverse actions are motivated by retaliation for pursuing rights under the prison grievance process, it does not matter that such actions are not actionable of themselves under a theory of denial of access to courts. See id.
But see Greninger, 188 F.3d at 325 (granting motion for judgment on the pleadings on plaintiff's claim that defendants retaliated against him for filing grievances by denying him access to court "because [plaintiff] has alleged no facts sufficient to demonstrate that the [defendants] have engaged in conduct that will result in a violation of his right to access to the court"). The four-part test for retaliation stated in Greninger does not include an express requirement of a violation of a constitutional right, however. Though the previous test did require a violation of a constitutional right, it is unclear where such a requirement would fit within the current four-part test. Further, such a requirement appears inconsistent with the holding of Woods that even a legitimate action may be rendered actionable by retaliatory motive. The Court need not resolve this conflict at this preliminary screening stage where plaintiff has alleged the four current elements of his retaliation claim.
Accordingly, for screening purposes, plaintiff has sufficiently alleged the elements of a claim for retaliation, i.e., a constitutional right to pursue his grievances through the prison grievance process, Officer Cole's intent to retaliate against him for the exercise of that right, retaliatory adverse actions, and causation. The Court cannot at this juncture find that it is clear that plaintiff will be unable to prove any set of facts that would entitle him to relief. "The issue is not whether he will ultimately prevail but whether he is entitled to offer evidence to support his claim." See Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 313 (5th Cir. 2002) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)). His retaliation claim thus survives summary dismissal.
C. Equal Protection Claim
Plaintiff claims that he has been denied equal protection under the laws because inmates "housed in the North Tower of the Dallas County Jail" are treated differently with respect to access to courts than inmates housed in other locations in the Dallas County Jail. To maintain an equal protection claim, plaintiff "must allege and prove that he received treatment different from that received by similarly situated individuals and that the unequal treatment stemmed from a discriminatory intent." Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001).
Plaintiff makes no allegation that the alleged unequal treatment stems from a discriminatory intent. It is not inherently discriminatory to treat separate housing units differently, unless inmates are placed in a particular housing unit due to their membership in some constitutionally protected class, such as race. "Plaintiffs who assert claims under 42 U.S.C. § 1983 and other civil rights statutes . . . must plead the operative facts upon which their claim is based. Mere conclusory allegations are insufficient." Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987). Because plaintiff fails to allege discriminatory intent, the Court should dismiss the equal protection claim as conclusory.
D. Supervisory Liability
Plaintiff sues Sheriff Bowles because he "is ultimately responsible" for the actions of the employees under his command. In order to prevail against a supervisor such as Sheriff Bowles under 42 U.S.C. § 1983, the plaintiff must show that (1) the supervisor's conduct directly caused a constitutional violation, or (2) the supervisor was "deliberately indifferent" to a violation of a constitutional right. Breaux v. City of Garland, 205 F.3d 150, 161 (5th Cir. 2000). The acts of a subordinate "trigger no individual § 1983 liability." Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314 (5th Cir. 1999). There must be some showing of personal involvement by a particular individual defendant to prevail against such individual. Id.; Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
In this instance, plaintiff does not allege personal involvement by Sheriff Bowles. Plaintiff makes no allegations that the Sheriff directly caused the alleged constitutional violations, or that he was deliberately indifferent to a violation of plaintiff's constitutional rights. Plaintiff identifies no specific incident or causative link between his claims and conduct on the part of Sheriff Bowles. He makes no allegations of any policy that impinged his constitutional or federally protected rights. Because plaintiff bases his claims against the Sheriff solely upon acts of subordinates, these claims should be dismissed.
E. Requested Relief
In his original complaint plaintiff seeks injunctive and monetary relief. ( See Compl. at 4.) With his answers to the MJQ, he also requests "that the federal Marshall conduct an investigation for possible criminal charges." ( See Aff. of Facts attached to MJQ.) Although monetary and injunctive relief may be obtained through a successful action under 42 U.S.C. § 1983, the requested criminal investigation is unavailable through such action. The federal Marshall is not a party to this litigation. The Court cannot order a non-party to conduct an investigation. This claim for relief is therefore frivolous.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiff's complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b), except for the retaliation claim asserted against Officer Cole. That claim should proceed and process should issue to Officer Cole.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).