Opinion
P-96-CA-059
March 28, 2001
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before this Court is the Motion to Dismiss brought by Defendant Wilhelmenia Howard, filed April 3, 2000, in the above-style case. This Court sua sponte converted this Motion to Dismiss into a Motion for Summary Judgment by Ordered entered November 3, 2000. After careful consideration, it is the opinion of the Court that Defendant's Motion should be GRANTED.
FACTS AND PROCEDURAL HISTORY
Plaintiff Michael Lathum is an inmate of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He filed his original complaint on July 24, 1996 alleging several violations of his civil rights by several state employees and agents. Specifically, Plaintiff asserts retaliatory actions by several employees and agents of the TDCJ. He is proceeding pro se and informa pauperis.
Motion was made by Plaintiff to join Defendant Howard on October 19, 1998. This Court granted Plaintiffs Motion for Joinder by Order dated February 4, 1999. The claims asserted against Defendant Howard are contained in Plaintiff's Motion for Joinder, filed October 19, 1998.
At the time of the events alleged by Plaintiff, Defendant Howard was the Senior Warden of the Nathaniel J. Neal Unit of the Texas Department of Criminal Justice, Institutional Division. She is also married to Internal Affairs Division ("IAD") Officer Captain Howard. Plaintiff alleges that Defendant Howard conspired with her husband Captain Howard and possibly other TDCJ and IAD officials to violate Plaintiff's civil rights, in violation of 42 U.S.C. § 1985.
Plaintiff alleges that on or about October 1, 1998, Defendant Howard made an implied threat to Plaintiff in order to coerce him into stop giving legal assistance to other inmates with their litigation and grievance filings. This threat was supposedly made in the presence of three other officials. Two days later, Plaintiff filed a grievance against Warden Howard for making this threat. According to Plaintiff, he had his word processor confiscated by TDCJ officials on October 6, 1998 during a unit wide search for contraband items. Plaintiff acknowledges that TDCJ guidelines allow for the confiscation of an inmate's typewriters for the purpose of verifying ownership of the typewriter and that the typewriter has not been altered to make or conceal a weapon. However, Plaintiff emphasizes that his typewriter was confiscated for such an inspection and returned to him on October 2, 1998, just few days prior to this confiscation.
Plaintiff also discusses several prior instances of what he considers retaliatory actions by other TDCJ and IAD officers including a cell search which led to the discovery of allegedly planted contraband items. Though these instances provide a context to Plaintiffs situation in the TDCJ, they are not directly relevant to the claims asserted against Defendant Howard. In addition, according to Plaintiff, Defendant Howard's actions were not merely in retaliation to his aiding inmates but also for the purposes and the effect of hindering the official investigation into an alleged murder-for-hire scheme against Plaintiff. The details of the official investigations are detailed in several other Orders by this Court and do not need repeating here.
Plaintiff asserts a claim against Defendant Howard under 42 U.S.C. § 1985. In addition, reading Plaintiff's pleadings liberally, the Court finds a potential claim under 42 U.S.C. § 1983 under the theory of retaliation and will address that claim as well.
Defendant Howard filed a Motion to Dismiss under 28 U.S.C. § 1915(e)(2)(B)(ii). By Court Order entered November 3, 2000, Defendant's Motion to Dismiss was converted into a Motion for Summary Judgment under FED. R. Civ. P. 56.
STANDARD OF REVIEW
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (holding that the motion must demonstrate that there is no genuine issue of material fact as to any element of the claim); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986) (holding that a material fact is one that might affect the outcome of the case under the governing law). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the record, however, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial. Id. at 597 (1986). Even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that "a better course would be to proceed to full trial." Anderson, 477 U.S. at 255-56. In a case brought by a pro se inmate, the court is especially careful to "guard against premature truncation of legitimate lawsuits merely because of unskilled presentations." Husley v. State of Texas, 929 F.2d 168 170-71 (5th Cir. 1991) (citation omitted).
DISCUSSION
The allegations against Defendant Howard are contained in Plaintiffs Motion for Joinder filed October 19, 1998. The Court has thoroughly reviewed Plaintiffs Motion and has liberally construed Plaintiff's claims asserted against Defendant Howard. Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1988) ("[W]e must always guard against premature truncation of legitimate lawsuits [by pro se prisoners) merely because of unskilled presentations."). After careful consideration, the Court is of the opinion that even if it takes Plaintiffs pleadings as true, Plaintiff fails to state a viable § 1985 or § 1983 claim against Defendant Howard.
A. 42 U.S.C. § 1985
Plaintiff asserts that Defendant Howard and other IAD and TDCJ officials conspired to impede the official investigation into an alleged murder for hire scheme against Plaintiff, in violation of 42 U.S.C. § 1985(2). According to Plaintiff, the objects of this conspiracy was to stop him from continuing to give his legal assistance to other inmates and to deter him from continuing to pursue an official investigation of an alleged murder for hire scheme. Section 1985(2) creates a federal cause of action where:
The details of this official TDCJ investigation into the alleged murder for hire scheme against Plaintiff is detailed in the Court's Orders dealing with the Motions to Dismiss brought by Defendants Richard Romano and Leon W. Guinn.
two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the law.
The emphasized language of the statute indicates that a viable claim under § 1985 must allege that the defendants were motivated by racial or other class-based animus. Ryland v. Shapiro, 708 F.2d 967, 973 n. 7 (5th Cir. 1983) ("An allegation that the defendants are motivated by some class based discrimination is essential to the maintenance of a suit under . . . section 1985(2)."). Here, even if the Court accepts arguendo Plaintiffs allegation that Defendant Howard did conspire with another person to impede an official investigation, Plaintiff fails to show that he is a member of a cognizable sub-class of inmates and that the Defendants' actions were motivated by Plaintiff's membership in that sub-class. Accordingly, the Court cannot reasonably infer racial or class-based motivation from the factual allegations. Nor does Plaintiff present any evidence showing the possibility of such a motive on the part of Defendant Howard.
Furthermore, in order to sustain a conspiracy claim under a civil rights statute such as § 1985, the plaintiff must plead the operative facts upon which a conspiracy can be reasonably inferred. Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987). However, "[b]ald allegations that a conspiracy existed are insufficient." Id. at 1370. The pleadings must be sufficient to reasonably infer that the defendants a greed to commit the violation of the plaintiff's civil rights. Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982).
Here, Plaintiff fails to allege any facts or to present any summary judgment evidence from which the Court could reasonably infer that Defendant Howard and another person agreed to impede any official TDCJ investigation or to otherwise violate any other of Plaintiff's civil rights. Plaintiff's mere conclusory allegation that a conspiracy existed is insufficient to withstand a motion to dismiss or a motion for summary judgment. Id. at 1024.
Therefore, it is the opinion of the Court that Defendant is entitled to judgment as a matter of law under Rule 56(c) on Plaintiff's § 1985 claim.
B. 42 U.S.C. § 1983
In order to maintain a valid claim for retaliation under § 1983, a prisoner must establish: (1) a specific constitutional right; (2) that the defendant's intended to retaliate against the prisoner for exercising this right; (3) that the defendant actually took retaliatory action against Plaintiff; and (4) causation. Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). A statement of the inmate's personal belief that he is the victim of retaliation is not sufficient to sustain a claim. Id. at 325 (recognizing that conclusory allegations and statements of a personal belief of retaliations is insufficient to withstand a motion to dismiss). However, alleging a chronology of events from which retaliation can be plausibly inferred is sufficient. id. Further, the retaliatory state action must be in response to the prisoner's exercise of a recognized constitutional right. Id. ("[I]f the inmate is unable to point to a specific constitutional right that has been violated, the claim will fail.").
Plaintiff's retaliatory claim must be dismissed because it fails to identify a constitutionally protected activity targeted by the retaliatory action. Though not unlimited, prisoner's generally enjoy a constitutional right of access to the courts. However, this right does not embrace the notion that a prisoner has a constitutional right to aid other inmates in their grievance filings and litigation. 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"). Accordingly, even if the Court accepts arguendo that Defendant Howard ordered the confiscation of Plaintiff's typewriter and that this action was in retaliation to Plaintiff's assisting other inmates in their grievance filings and litigation, Plaintiff still fails to state a cognizable retaliation claim under § 1983 because the activity — assisting other inmates in their litigation — is not a constitutionally protected activity. Id. ("[A] parole panel's consideration of such unprotected activity in denying a prisoner parole does not infringe that prisoner's constitutional right of access to the courts."). The Court does not doubt that Plaintiff feels wronged by the alleged actions taken by various TDCJ officials. However, not every wrong suffered by Plaintiff rises to the level of a violation of a constitutional right so that relief under either § 1985 or § 1983 is warranted.
Therefore, Defendant Howard is entitled to judgment as a matter of law under Rule 56(c) on Plaintiff's § 1983 claim based on a theory of retaliation.
CONCLUSION
It is therefore ORDERED that Defendant Wilhelmenia Howard's Motion to Dismiss, now considered as a Motion for Summary Judgment, is GRANTED.
Under 28 U.S.C. § 1915(e)(2)(B)(ii), for actions where the plaintiff proceeds in forma pauperis, the district court shall dismiss a case if the court determines that the action "fails to state a claim on which relief may be granted." This language tracks the language of FED. R. CIV. P. 12(b)(6). Accordingly, the standard of review applicable under Rule 12(b)(6) informs the Court in examining the merits of Defendant's motion to dismiss under § 1915(e)(2)(B)(ii). Cf. Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (deciding to employ the same de novo standard to review to a § 1915(e)(b)(ii) dismissal as used for a Rule 12(b)(6) dismissal given the obvious parallels in the language of both provisions).
In a FED. R. Civ. P. 12(b)(6) motion to dismiss an action for failure to state a claim, the well-pleaded facts alleged in the complaint are taken as true and viewed in the light most favorable to the plaintiff. Campbell v. City of San Antonio, 43 F.3d 973 975 (5th Cir. 1995). A Rule 12(b)(6) motion tests the formal sufficiency of the plaintiff's complaint. Therefore, Rule 12(b)(6) must be read in conjunction with the pleading requirements set forth in Rule 8(a), which calls for a "short and plain statement of the claim showing that the pleader is entitled to relief." 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1356 (2d ed. 1990). The inquiry for the court is not whether a plaintiff will ultimately prevail but whether a plaintiff is even entitled to offer evidence to support his claims based on the pleadings contained in the complaint. Dismissal will not be ordered unless it appears beyond doubt that the plaintiff would not be entitled to recover under any set of facts that he could prove in support of his claim." Crowe v. Henry, 43 F.3d 198, 203 (5th Cir. 1995) (citation omitted). Though the stringent standard attendant to a Rule 12(b)(6) is not impossible to meet, motions to dismiss for failure to state a claim are disfavored, and should be granted only in limited circumstances. Mahone v. Addicks Util. Dist. of Harris County, 836 F.2d 921, 926-27 (5th Cir. 1988).