Opinion
No. 2:04-CV-0230.
April 11, 2005
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff HOWARD GUS GREEN, 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 asserts claims for violations of his First Amendment right of Access to the Courts and his Fifth and Fourteenth Amendment Due Process rights. Plaintiff alleges he mailed an original petition for writ of habeas corpus from the Ramsey 2 Unit to the United States Supreme Court on December 15, 2003, was transferred to the Clements Unit on December 18th and mailed his notice of address change to the Clerk of the Court on December 22nd. Plaintiff further states his petition was denied January 13, 2004, but he didn't receive the denial until January 27th because it was sent to the Ramsey 2 Unit from where it was forwarded to him. Plaintiff says he deposited into the prison mail system a petition for rehearing but that it was denied as untimely on March 17th. Plaintiff complains this Order, as well, was sent to the Ramsey 2 Unit and then forwarded to him with delivery on March 31st.
Plaintiff alleges he then filed a motion for leave to file out-of-time petition for rehearing, depositing it in the prison mail system on April 2, 2004. He says the Supreme Court denied it on May 17th, mailing the denial to the Ramsey 2 Unit. With the forwarding delay, it was June 10th when plaintiff finally received it.
Under the section entitled, "DENIAL OF DUE PROCESS," plaintiff pleads he has exhausted the grievance procedure and is dissatisfied with the responses to his grievances. Plaintiff states "[t]he timely [sic] intentionally [sic] delays of the court's orders denied right of access to court. This condtitutional [sic] violation shows actual prejudice which have [sic] occur, because [sic] the action of the court Clerk, the postal service or prison authorities causes [sic] court doors to be actually shut on the plaintiff." Plaintiff argues that forwarding mail by truck mail is an unreasonable policy which caused plaintiff to miss his deadlines and violates his First Amendment right of Access to the Courts, as well as his Fifth Amendment and Fourteenth Amendment rights to Due Process.
Plaintiff requests declaratory and injunctive relief. He also requests monetary relief, both compensatory and punitive, as well as attorneys fees and expenses.
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 frivolous, 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).
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).
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 District 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
A cause of action may be stated under Title 42, United States Code, section 1983 where prison officials intentionally withhold mail destined for the courts, where there is the additional allegation that the intentional delay of legal mail damaged the prisoner's legal position. Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986). Nevertheless, conduct which is merely negligent does not meet the standard for liability under section 1983. Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986). Further, 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 alleged no fact to show that the delay in the receipt of his mail from the Supreme Court was the result of any intentional act or omission by the defendants. In fact, plaintiff, himself, appears to recognize the alleged failure in processing his address change to the Supreme Court caused the complained-of delays.
Plaintiff received the January 13, 2004 denial of his December 15, 2003 petition on January 27, 2004, leaving him ample time before expiration of the twenty-five day deadline he says governed the filing of his motion for rehearing. Nevertheless, plaintiff says he deposited the motion "on or before February 9, 2004," after expiration of the deadline. Plaintiff presents no fact indicating his failure to timely file this motion was the fault of the defendant prison officials.
Further, plaintiff does not state he submitted another address change notice to the Clerk of the Supreme Court to ensure that any future mail would be sent to the correct address, and the denial of his motion for rehearing was sent to the Ramsey 2 Unit and then forwarded to him. This forwarding delay was not the result of any act or inaction by prison officials but stemmed from plaintiff's failure to submit another change of address notice to the Clerk of Court and from inadequacy of the first notice or a failure to properly process it. Plaintiff actually acknowledges this when he blames the Clerk of the Supreme Court for the delay in his receipt of the denial of his next motion, for leave to file out of time petition for rehearing. Plaintiff says the denial issued May 17, 2004 and was delivered to him on June 10, 2004, having been forwarded again after delivery to the Ramsey 2 Unit. Plaintiff complains "[t]here's no excuse for the Clerk's error and negligence other than harassment for delay, by mailing `the courts orders' to Ramsey 2 unit. . . . [sic et passim]." Plaintiff has not named the Clerk as a defendant in this cause and has alleged no fact which shows any failure to process his address change resulted from anything other than an inadequate notice of address change or negligence in its processing.
Plaintiff cites Gramenga v. Johnson, 846 F.2d 675 (11th Cir. 1988) and argues that the forwarding of his mail by truck was unconstitutional; however, Gramenga involved the practice of holding inmate mail until a "sizeable bundle" accumulated and only weekly delivery of legal mail. No such holding or weekly delivery is alleged in this case, and there is no indication that mail, if correctly addressed, would have suffered any delay. Thus, despite his allegation of harm, plaintiff has failed to allege facts sufficient to state a claim of denial or obstruction of his access to the courts.
To the extent plaintiff bases a Due Process challenge on his dissatisfaction with the responses to his grievances, the narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Plaintiff's claims in this respect lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
Pursuant to Title 28 U.S.C. sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1),
IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff HOWARD GUS GREEN is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.