Opinion
2:01-CV-0029
April 5, 2002
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff SCOTT E. PALMER, acting pro se, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against ten defendants concerning an incident which occurred during his incarceration in the Texas Department of Criminal Justice Institutional Division, and has been granted permission to proceed in forma pauperis. Plaintiff was not a prisoner at the time his lawsuit was filed.
On March 20, 2002, a Report and Recommendation was filed by the United States Magistrate Judge analyzing plaintiffs claims under Title 28, United States Code, section 1915(e)(2), and recommending dismissal with prejudice as frivolous and for failure to state a claim on which relief can be granted.
Plaintiff filed his Objections on April 2, 2002.
By his Objections, plaintiff argues the mere scanning or reading of his legal material was unlawful. "Prison officials should be accorded the widest possible deference in the application of policies and practices designed to maintain security and preserve internal order." McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990). While such scanning may be a violation of TDCJ-ID rules or regulations, in the wake of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), plaintiff has no "created liberty interest of the regulations of Texas Department of Criminal Justice-Institutional Division." The failure of an officer to follow agency procedural regulations or even the relevant state law is not, without more, a constitutional violation, because the relevant constitutional minima may nevertheless have been satisfied. 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, 443 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). As analyzed in the March 20, 2002, Report and Recommendation, the relevant constitutional minima were not violated by the alleged scanning or reading of plaintiffs legal material.
Further, plaintiff argues defendants SCOTT, JOHNSON, GUINN, GILBERT, MUNSELLE, SANDERS, RODEEN, and PEREZ authorized the taking of his legal property without giving him a confiscation slip by "either actions and/or inactions." Plaintiff has alleged no fact which shows that any of these defendant authorized that act, and the mere failure to respond to plaintiffs grievance or letters of complaint does not constitute such authorization because it does not demonstrate any or all of these defendants had actual knowledge of the contents of plaintiffs grievances and letters or the truth thereof. Moreover, plaintiffs citation to Texas caselaw for the proposition that section 1983 will support a claim of unauthorized destruction of property is inappropriate as such opinions are neither controlling nor persuasive authority.
With respect to defendants PEREZ and the two JOHN DOE defendants, plaintiff has alleged, in footnote 2 at page 5 of his original complaint, that he never met PEREZ or either JOHN DOE defendant before the December 21, 1998, cell search. Plaintiff has alleged no fact to show that any of these three defendants had ever heard of his earlier grievances, his letters of complaint, or his litigation. Consequently, there is no basis alleged to support a claim of retaliation by any of these defendants.
Finally, in relevant part, plaintiff argues the Report and Recommendation omits some facts he has alleged to support his claim of retaliation. The Court notes that, other than alleging an officer told him the cell search was ordered by defendants SANDERS and RODEEN, plaintiff makes absolutely no factual allegation tying any of the remaining defendants to the search or indicating one or more of them had knowledge of such search. Moreover, plaintiff makes no allegation of material fact to support any implicit claim of conspiracy by these defendants. Thus, plaintiff has failed to allege a claim of retaliation by the remaining defendants on which relief can be granted.
As to SANDERS and RODEEN, the only factual allegations contained in the paragraphs from his original complaint plaintiff references regarding his objection of omitted facts are: (1) he submitted two grievances, presumably a step 1 and a step 2 grievance, concerning an earlier theft of his property by other inmates; and (2) he and his wife sent various letters, or copies of letters, to officials, some of whom are among the defendants, complaining of the property theft incident, of his law library schedule, and of the loss or misrouting of two letters to plaintiff from his wife.
There is no indication any copy of this letter was ever forwarded to either SANDERS or RODEEN.
The step 2 grievance in question is found in Court records as an attachment to plaintiff's original complaint in cause no. 2:00-CV-0353 and review of that step 2 grievance shows plaintiff does not name or complain of defendants SANDERS, RODEEN, or any other of the present defendants in connection with the theft.
Instead, after complaining of the grievance system, plaintiff states:
2. At any rate the decision rendered by the unti administration in the attached Step 1 contain [sic] several erroneous conclusions, to wit:
a) This grievance does not meet the criteria for an emergency grievance [sic], and will be processed according to regular time limits. Again, with all due respect this statement is ludcrious [sic]. The facts are: Approximately 5303.95 worth of property of the grievant's was stolen. Exacerbating the problem is that two (2) days previously $257.95 worth of property was stolen from the grievant with nothing done. Again, there was a clear breach of security when the officer in the control picket opened this grievant's cell door for two (2) unknown black offenders with or without any proof of their identities. The remainder of these events is provided in an affidavit from an individual [sic] familar [sic] with the facts. of course, he desires to remain anonymous due to this administration and their propensity to retaliate and convey confidential [sic] information to other offenders. Again, evidence will reveal that the theft problem has been an inveterate pattern.
b) You present no evidence to support that staff was negligent in the theft of your property. That's correct the staff was not negligent, they demonstrate [sic] a "deliberate indifference" to this grievant and others similarly situated.
c) This agency will not be responsible for property stolen by other offenders. The grievant tends to disagree as do rulings of the United States Supreme court
d) This office will take no further action in this matter at this time. Obstruction of justice may surely attach to such a blase attitude.
3. The grievant re-asserts each and every one of the ten (10) items enumerated for Action Requested in his Step 1.
Thus, there is no plausible basis for a claim that this grievance would incite a retaliatory response from any of the defendants.
Of the letters of complaint which plaintiff references, only three were mailed, but not directed, to defendant SANDERS, and two were mailed, but not directed to defendant RODEEN. Plaintiffs exhibits to his complaint in this cause show the following:
1. A January 31, 1999 letter to Allan Polunsky, who is not a defendant herein, indicating carbon copies were sent to others including defendants SANDERS and RODEEN, concerning practices which the Kitchen Captain, a nondefendant, had not remedied to plaintiffs satisfaction.
2. A December 5, 1998, letter to Allan Polunsky from plaintiffs wife complaining that two letters to plaintiff had apparently been misrouted. The letter indicates a copy was sent to several others including SANDERS, but not to RODEEN.
3. An August 29, 1998, letter to Allan Polunsky, with copies to several others including SANDERS and RODEEN, complaining of the August 26, 1998, theft of plaintiff's property by other inmates.
Although the August 29, 1998, letter contains an accusation of global mismanagement of the entire prison system, nothing in the letter identifies or directs attention to any of the defendants, especially SANDERS or RODEEN. Further, review of the responses plaintiff has provided as exhibits to his original complaint in this cause show his wife's complaint concerning lost mail received an investigation and a professional response. The exhibits also show the other letters received appropriate responses as well. The mere fact that plaintiff was dissatisfied with the responses he received does not evince retaliatory intent by any of the defendants.
To the extent plaintiff considers the inaction or unsatisfactory response of such officials to be retaliatory, it is noted that, concerning his law library schedule and correspondence complaint, plaintiff made no attempt to utilize the grievance system, which he and his wife were informed was the appropriate avenue for him to gain relief. Nothing about plaintiffs step 2 grievance or his letters of complaint appears likely to incite retaliation from any of the defendants. Further, the mere fact that plaintiff was dissatisfied with the investigation or resolution of his complaints will not sustain a claim under section 1983. 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 or other complaints 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, 443 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979).
Plaintiffs objections clearly demonstrate plaintiff has alleged his best case, and there is, therefore, no need for a further factual statement from plaintiff. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). Accepting the truth of plaintiffs factual allegations, it is clear that the chronology presented does not support a plausible inference of retaliation, accord, Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), and that plaintiffs claim in this respect is entirely speculative.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation, as well as the objections filed by the plaintiff.
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court, as supplemented herein.
This Court, therefore, does OVERRULE plaintiffs objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge, as supplemented herein.
IT IS THEREFORE ORDERED that, pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff SCOTT E. PALMER IS DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any motions still pending are hereby DENIED.
The Clerk will mail a copy of this Order to the plaintiff and to any attorney of record by first class mail. The Clerk will also mail a copy of this Order to TDCJ-Office of the General Counsel, P.0. Box 13084, Capitol Station, Austin, Texas 78711, and to Claire Laric at the United States District Court for the Northern District of Texas, Dallas Division.