Sowell v. Wells

Full title: KENNETH RAY SOWELL, PRO SE, also known as KENNETH SOWELL, TDCJ-CID …

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Sep 29, 2008

2:08-CV-0073 (N.D. Tex. Sep. 29, 2008)

Opinion

2:08-CV-0073.

September 29, 2008

REPORT AND RECOMMENDATION

CLINTON AVERITTE, Magistrate Judge

Plaintiff KENNETH RAY SOWELL, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional 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 claims his First Amendment rights were violated when his legal mail was opened outside his presence. Plaintiff requests an award of nominal damages.

JUDICIAL REVIEW

When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous¹, 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)².

1 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).

2 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 claim presents grounds for dismissal or should proceed to answer by defendants.

THE LAW AND ANALYSIS

Specifically, plaintiff alleges a letter which he had mailed to an attorney was open when it was returned to him undelivered. Plaintiff says that on January 4, 2008, defendant GILLIAM delivered brought the letter to plaintiff along with an inter-office communication, an IOC, informing plaintiff that his incoming correspondence has been placed in general correspondence and opened in error. The IOC was signed by defendant WELLS. Plaintiff says defendant GILLIAM said he didn't know who had opened the mail and that it had simply been lying there opened.

Plaintiff has attached to his Complaint as exhibits both a copy of the IOC and the returned letter in question. Plaintiff states he is suing defendants WELLS and GILLIAM for opening and reading his legal mail outside his presence.

Interference with a prisoner's legal mail by a prison official may violate the prisoner's constitutional right of access to the courts; it may also violate the prisoner's First Amendment right to free speech, that is, freedom from unjustified governmental interference with communication. Brewer v. Wilkinson, 3 F.3d 816, 820 (5^th Cir. 1993).

An inmate alleging denial of access to the courts must demonstrate an actual injury stemming from the defendants' unconstitutional conduct. Lewis v. Casey, 518 U.S. 343, 351-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998) (without proving actual injury, the prisoner/plaintiff cannot prevail on an access-to-courts claim); Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999). If a litigant's position is not prejudiced by the claimed violation, his claim of denial of access to the courts is not valid. Henthorn v. Swinson, 955 F.2d 351, 354 (5th Cir.), cert. denied, 504 U.S. 988, 112 S.Ct. 2974, 119 L.Ed.2d 593 (1992). Plaintiff has made no allegation that he suffered any actual injury stemming from the challenged conduct. Therefore, plaintiff has utterly failed to state an access to courts claim.

As to any claim of unjustified government interference with communication, a prisoner's constitutional rights are not violated by the opening and inspection of his incoming legal mail even where such does violate a prison regulation imposing such a requirement. Brewer v. Wilkinson, 3 F.3d 816, 825 (5^th Cir. 1993). Plaintiff's mail addressed to an attorney had left the prison mail system and a had entered the United States Postal Service system. Upon its return to the prison mail system, that piece of mail became incoming mail. Therefore, any opening and inspection of the mail outside of plaintiff's presence did not violate plaintiff's right to be free from unwarranted governmental interference with communication. Any claim on this ground, lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

Finally, despite his speculative allegation that the named defendants opened and read his legal mail outside his presence, plaintiff has not alleged any fact to support this claim. The facts plaintiff presents only show that defendant WELLS signed the IOC notifying plaintiff of the unauthorized opening of his mail and that defendant GILLIAM delivered the mail and the IOC back to plaintiff. Further, even if plaintiff alleged facts showing one or both of these defendants actually opened and read the mail, such an allegation would support, at best, merely a claim of negligence. Section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986) (inmate slipped on pillow left on stairs). Therefore, plaintiff has failed to state a claim on which relief can be granted.

CONCLUSION

For the reasons set forth above and pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(a), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint by plaintiff KENNETH RAY SOWELL filed pursuant to Title 42, United States Code, section 1983 be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is eleven (11) days from the date of filing as indicated by the "entered" date directly above the signature line. Service is complete upon mailing, Fed.R.Civ.P. 5(b)(2)(B), or transmission by electronic means, Fed.R.Civ.P. 5(b)(2)(D). When service is made by mail or electronic means, three (3) days are added after the prescribed period. Fed.R.Civ.P. 6(e). Therefore, any objections must be filed on or before the fourteenth (14^th ) day after this recommendation is filed as indicated by the "entered" date. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas.

Any such objections shall be made in a written pleading entitled "Objections to the Report and Recommendation." Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).