Opinion
NO. 7-02-CV-147-BD
March 29, 2004
MEMORANDUM ORDER
Defendants Richard Wathen, James D. Mooneyham, Mark Canedo, and Frank Stengel have filed a motion for partial summary judgment with respect to certain claims asserted by plaintiff in his First Amended Complaint. For the reasons stated herein, the motion is granted in part and denied in part.
The facts of this case are set forth in detail in Lueck v. Wathen, 262 F. Supp.2d 690 (N.D. Tex. 2003). Succinctly stated, Plaintiff Earnest Lueck, a prisoner at the James V. Allred Unit of the TDC J-ID, alleges that defendants violated his right of access to the courts when they confiscated and failed to return certain documents he needed to complete a state writ of habeas corpus. The court previously determined that plaintiff's access claim against Mooneyham, Canedo, and Michael D. Seigler survived summary judgment. Id. at 700-01. Thereafter, plaintiff amended his complaint to assert claims for violations of his right to substantive and procedural due process, conspiracy and retaliation under the federal constitution, a due course of law claim under the Texas constitution, and a conversion claim under Texas common law. Defendants now move for summary judgment with respect to the due process and retaliation claims, the conspiracy claim against Wathen, and the claim for injunctive relief. In response to the motion, plaintiff withdrew his federal procedural due process and retaliation claims. However, he vigorously opposes the dismissal of his other claims.
Plaintiff also dismissed his claims against Michael D. Seigler and joined Frank Stengel as a defendant. (See Agr. Slip., 9/29/03; Plf. First Am. Compl. at 2, ¶ 5).
The court initially observes that there is no private right of action for damages under the due course of law clause of Article I, § 19 of the Texas constitution. See Jackson v. Houston Independent School Dist., 994 S.W.2d 396, 400-01 (Tex.App.-Houston [14th Dist] 2002, no pet.). Nor has plaintiff adduced sufficient evidence of a civil rights conspiracy implicating Richard Wathen, the head warden of the Allred Unit. Although plaintiff tacitly acknowledges that Wathen was not personally involved in the confiscation of his legal materials, he argues that the warden "effectively ratified" the actions of the other defendants by reviewing the results of their investigation and by signing his Step I grievance. (Plf. Resp. Br. at 11). The court determines as a matter of law that this evidence is too attenuated to show any agreement to commit an illegal act. See, e.g. Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir. 2004) (allegation that defendant "encouraged and/or allowed" constitutional deprivation insufficient to establish agreement to conspiracy); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.), cert. denied, 115 S.Ct. 189 (1994).
The court previously determined that Wathen was not personally involved in any act giving rise to a constitutional violation. See Lueck, 262 F. Supp.2d at 696.
The court reaches a different conclusion with respect to plaintiff's substantive due process claim under 42 U.S.C. § 1983. The Supreme Court has recognized that the right of access to the courts "is founded on the due process clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights." Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974). Contrary to defendants' argument, this is a viable constitutional claim. Moreover, plaintiff sufficiently exhausted his administrative remedies by raising the operative facts of his due process and conspiracy claims in a Step I and Step II grievance. These grievances, which allege that "Warden Mooneyham instructed gang intelligence to confiscate my legal documents," provided fair notice to prison authorities of the facts made the basis of plaintiff's claims. See, e.g. Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002) (absent an established prison rule or regulation prescribing the contents of a grievance, the prisoner "need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.").
TDCJ-ID policy suggests that this "fair notice" standard applies to prisoner grievances. The Offender Orientation Handbook provides, in pertinent part:
You should write your grievance briefly and clearly. Attach additional pages to your grievance form, only if necessary. You should be very specific about you[r] grievance or problem. Provide an explanation or evidence if it will help us understand your conclusions. Facts can be verified. A statement such as "cruel and unusual punishment" is a legal conclusion and is not helpful to your grievance.
(Def. App., Exh. D-10 at 50, ¶ 2). See also Thompson v. Eason, 258 F. Supp.2d 508, 522-23 (N.D. Tex. 2003) (examining exhaustion requirement in light of TDCJ-ID grievance procedures).
Finally, the court declines to determine at the summary judgment stage whether plaintiff may be entitled to injunctive relief against defendants in their official capacities. Plaintiff may seek an injunction only if he prevails on his constitutional claims. Until such claims are adjudicated, the court need not decide whether injunctive relief is proper. Defendants may reurge their arguments in an appropriate post-trial motion if the jury returns a verdict in favor of plaintiff.
CONCLUSION
Defendants' motion for partial summary judgment is granted in part and denied in part. The motion is granted with respect to plaintiff's procedural due process and retaliation claims under 42 U.S.C. § 1983, due course of law claim under Article I, § 19 of the Texas constitution, and all claims against Richard Wathen. In all other respects, the motion is denied.
SO ORDERED.