Summary
holding that a prisoner's threat to file a "clearly frivolous grievance" was insufficient to support a retaliation claim
Summary of this case from Buchanan v. HarrisOpinion
2:03-CV-0048
November 5, 2003
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff TRENTON M. BROWN, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit on the forms promulgated for use in pro se prisoner civil rights cases complaining against the above referenced defendants and has paid the filing fee. Consequently, plaintiff is not proceeding in forma pauperis.
By his May 7, 2003, Amended Complaint, plaintiff complains he had a verbal confrontation with defendant SASSER on November 3, 2002, during which he threatened to write a grievance if she turned off the television because of prisoner complaints. Plaintiff says that, while he was at visitation, defendants CRAVEN and SASSER searched his cell, ostensibly to find smoking and gambling paraphernalia but actually to "impede and deter plaintiff from the use of the grievance procedure." Plaintiff complains they removed his lock and took $250.00 in commissary food items. Plaintiff says he filed a step 1 grievance on November 4th, and his mother contacted the warden to complain. Plaintiff later exhausted administrative remedies on this claim.
Plaintiff further complains that, on November 27, 2002, his cell was searched again, this time by defendants SASSER and KING, the property officer. Plaintiff states all of his commissary food items and some of his special purchase commissary items were taken, but that his food was later returned. Nevertheless, plaintiff says, his hot-pot, Rhino Boots, and multi-outlet were confiscated by defendant KING with the explanation that plaintiff had never purchased these items. Plaintiff disputes this justification for the confiscation. Plaintiff claims that he filed a step 1 grievance about the search on December 2, 2002, and received a job change on December 4, 2002. Plaintiffs pleading is not clear concerning whether he exhausted administrative remedies concerning the November 27th search and confiscation. Nevertheless, the Court will include it in the following analysis pursuant to Title 42, United States Code, section 1997e(c)(2).
Further, plaintiff alleges, his December 4, 2002, request to the unit law library for copies of his property registration forms for his special purchase commissary items purchased prior to 1999 produced the response, "property papers for these are not found in your file." Plaintiff states he filed a step 1 grievance against defendants SASSER and KING for harassment, retaliation, and falsification of records on December 10, 2002, alleging that his inmate file had been altered to delete evidence of special commissary purchases from 1994-1998 and that actions were taken in retaliation for his use of the grievance procedure.
On December 12, 2002, plaintiff received a possession of contraband case based on the property earlier confiscated by defendant KING, and plaintiff filed a December 16th step 1 grievance against KING for harassment, threats, retaliation, and false disciplinary action.
On December 19, 2002, plaintiff received a hearing on the contraband possession and was found guilty. His punishment was thirty days' commissary and recreation restriction and a reduction in time earning class from S-4 to line-1. Plaintiff exhausted administrative remedies with respect to this disciplinary case and, on December 30, 2002, plaintiff filed a step 1 grievance against defendant KING based on a December 23, 2002 incident.
Based on the above incidents, plaintiff claims defendants SASSER and CRAVEN conspired to retaliate against plaintiff for his use of the grievance procedure by depriving him of his property in the November 3rd cell search.
Plaintiff claims defendants KING, SASSER, WALKER, and TWILA PRICE conspired to retaliate against plaintiff for his use of the grievance procedure by altering plaintiffs records, searching his cell, taking his property, and changing his job. Plaintiff also claims defendant WALKER failed to correct the misdeed of the others when informed of them.
Plaintiff claims defendant JOSEPH PRICE failed to correct the violations of plaintiffs civil rights committed by the other defendants an failed to properly train or supervise defendants SASSER, KING, and CRAVEN.
Plaintiff requests monetary relief in the form of $500.00 compensatory damages and $4,000.00 punitive damages from each defendant. Plaintiff also requests that his disciplinary case be removed from his record.
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 fi-ivolous, 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. 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 US. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskZe, 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 prisoiier suits on the complaint alone or the complaint together with the Watson questionnaire.").
The District Judge has reviewed plaintiffs 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.
THE LAW AND ANALYSIS
Conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990); or to support claims of malice, Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995); or retaliation, Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Plaintiff has utterly failed to allege any material fact to support either or both of his conspiracy claims and has failed to allege any facts to support his claims of retaliation. Further, although the Court may infer from defendant TWILA PRICE'S position as records clerk that plaintiff feels she altered his records, plaintiff has failed to allege this claim against defendant TWILA PRICE and has utterly failed to allege any fact to support it. Consequently, plaintiffs allegations of conspiracy and retaliation, as well as his claim against defendant TWILA PRICE, fail to state a claim on which relief can be granted.
Plaintiff claims the November 3, 2002, search of his cell was in retaliation for his having threatened to write a grievance against SASSER if she turned off the television because of the prisoners' complaints. To state a valid claim for retaliation, 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. Jones v. Greninger, 188 F.3d 322, 324-35 (5th Cir. 1999). In Johnson v. Rodriguez, the Fifth Circuit taught the right of access to the courts is not unlimited, but encompasses only a prisoner's reasonably adequate opportunity to file nonfrivolous legal claims challenging his conviction(s) or his conditions of confinement, Johnson v. Rodriguez, 110 F.3d 299, 310-311 (5th Cir. 1997) (citing Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606 (1996). Consequently, although "prisoners may have a protected liberty interest in grievance procedures," Gartrell v. Gaylor, 981 F.2d 254, 259 (5th Cir. 1993); Jackson v. Cairz, 864 F.2d 1235, 1248-49 (5th Cir. 1989), by analogy, that protection does not extend to the filing of frivolous grievances. "[N]either any frivolous filings nor secondary litigation activity, i.e., legal research and writing that does not involve preparation of lawsuits challenging a writ writer's own conviction(s) or the conditions of his or her confinement, may comprise the basis of a retaliation claim." Johnson v. Rodriguez, 110 F.3d 299, 311 (5th Cir. 1997). Plaintiff's threat to file a clearly frivolous grievance against defendant SASSER does not appear to rise to the level even of unprotected "secondary litigation activity." Consequently, it will not support a claim of retaliation for the exercise of a constitutionally protected right. Plaintiff's retaliation claim 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).
Plaintiff also makes vague allegations of retaliation because he is a writ-writer; however, he alleges no fact to indicate whether the defendants, or any of them, knew of his writ-writing and no material fact to support specific retaliatory intent.
Further, to the extent plaintiff claims SASSER and CRAVEN took his property without giving him confiscation papers and "did not use any type of TDCJ procedures," a state actork failure to follow state procedural regulations does not constitute a violation of due process if "constitutional minima" are met. Muvplzy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Section 1983 will not support a cause of action if a person's property is taken by random and unauthorized conduct of a state actor and the state provides an adequate post-deprivation remedy. Cathey v. Guenther, 47 F.3d 162 (5th Cir. 1995). A prisoner's due process rights are not violated by the confiscation of property without regard to prison policy requiring notice and the opportunity to be heard, where the tort of conversion provides adequate post-deprivation remedies under Texas law. Murphy v. Collins, 26 F.3d at 543. Consequently, plaintiff's remedy for this alleged wrongful taking of his property lies in a state court action for conversion. For this reason, plaintiff's claim 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).
See plaintiffs Step II grievance no. 2003049415 attached to his original complaint.
Proceeding to the alleged cell search by defendants SASSER and KING, the property officer, on November 27, 2002, plaintiff again asserts an unsupported and wholly conclusory claim of retaliatory intent. The fact that plaintiffs property was searched and not that of his cellmate does not indicate the search was in retaliation for the exercise of a constitutionally protected right. Plaintiff also challenges the confiscation of his hot-pot, Rhino Boots, and multi-outlet and seeks to support this claim with an allegation that his records were altered by the defendants; however, he has utterly failed to allege any fact to show the existence of the claimed conspiracy or that any of the defendants actually altered his records. Accepting as true plaintiffs allegation that he, in fact, did purchase these confiscated items through the commissary, plaintiff has alleged no fact to indicate the missing entries in his record were the result of wrongful acts by any of the defendants. Consequently, plaintiff has failed to state a claim of conspiracy, retaliation, or wrongful confiscation with respect to the November 27, 2002, cell-search, confiscation, and resulting disciplinary case.
Plaintiff also seeks expunction of the disciplinary case he received based on the confiscation of his hot-pot, Rhino Boots, and multi-outlet; however, in light of the fact that his punishment did not include any loss of good time, plaintiff has no federally protected due process rights in connection with that hearing. Saizdirz v. Connev, 515 U.S. 472, 115 S.Ct. 2293, 2294, 132 L.Ed.2d 418 (1995)). Consequently, plaintiff's claim in this respect 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).
The Sundin Court expressly recognizcd thc unusual dcprivations in Vitek v.Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to a mental hospital), and Wusliuigton v Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (forcible administration of psychotropic drugs), also involved a liberty interest.
As to plaintiff's complaint that he received a job reassignment, plaintiff has alleged no fact to show that this reassignment was retaliatory and has no constitutionally protected right to any particular prison work assignment. Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), pet'n for cert. filed Jan 16, 1996 (NO. 95-8268), (citing Meachum v. Funo, 427 U.S. 215, 229 n. 8, 96 S.Ct. 2532, 2540 n. 8, 49 L.Ed.2d 451 (1976); Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995)).
Plaintiff's remaining claims against defendants WALKER and JOSEPH PRICE are based on their failure to adequately investigate and satisfactorily resolve plaintiff's complaints to them through the grievance process and by letters and on an alleged failure by PRICE to adequately train and supervise the defendants. Inasmuch as the failure to investigate and resolve plaintiff's complaints resulted in no effect on the duration of his confinement, the plaintiff cannot show the existence of a state-created liberty interest in the investigation and resolution of his complaints. See, Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). Lastly, plaintiff has pointed to no specific defect in the training given to defendants SASSER, KING, and CRAVEN or their supervision by defendant JOSEPH PRTCE. "A supervisory official may be held liable under section 1983 for the wrongful acts of a subordinate `when [the supervisory official] breaches a duty imposed by state or local law, and this breach causes plaintiff's constitutional injury.'" Smith v. Bveizoettsy, 158 F.3d 908 (5th Cir. 1998) (quoting Smith v. Adams, 537 F.2d 829, 831 (5th Cir. 1976). To hold a supervisory official liable, the plaintiff must demonstrate: (1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiffs rights; and (3) the failure to train or supervise amounts to deliberate indifference. Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986). For an official to act with deliberate indifference, he "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994); Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Plaintiff has failed to identify any failure to adequately train or supervise defendants SASSER, KING, and CRAVEN and has failed to allege facts showing the alleged failure amounted to deliberate indifference. Consequently, plaintiff's claims in this respect lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).
CONCLUSION
Pursuant to Title 42, United States Code, section 1997e(c)(1), and for the reasons set forth above, the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff TRENTON M. BROWN are DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED. IT IS SO ORDERED. ENTERED THIS DAY OF NOVEMBER 2003.