Opinion
CIVIL ACTION NO. 1:01-CV-090-BG
April 2, 2002
ORDER DISMISSING CASE WITH PREJUDICE
Plaintiff, Kieron Penigar ("Penigar"), procceding pro se and informa pauperis, has filed a claim pursuant to 42 U.S.C. § 1983. Penigar brings this case against T. Cantrell, Officer Greenway, and Warden Cook. Penigar claims that the Defendants are retaliating against him for filing grievances and have violated his constitutional rights by denying him access to the courts.
Penigar was ordered by the United States District Court to answer a questionnaire on August 8, 2001, and returned his answers to the court on August 20, 2001. The case was transferred to the undersigned United States Magistrate Judge on June 11, 2001. Penigar has consented to proceed before the United Magistrate Judge pursuant to 28 U.S.C. § 636(c). After reviewing Penigar's Complaint, his answers to the court's questionnaire, the authenticated records provided in this case, pertinent court records, and relevant case law, the court is of the opinion that the case should be dismissed with prejudice.
I. STATEMENT OF THE CASE
Penigar states that in February of 1999, while incarcerated at the French Robertson Unit, Officer Miramontez, who is not a defendant in this case, delivered legal materials to him by shoving said legal materials through the slot in his cell door, striking him in the groin and in the foot. Penigar filed a grievance against Officer Miramontez claiming that she was intoxicated when these events transpired. Penigar claims that subsequent to his filing a grievance against Officer Miramontez he began having problems receiving legal materials. Penigar alleges that Defendant Cantrell is retaliating against him for the filing of this grievance by deliberately interfering with his access to legal materials, that Defendant Greenway is participating in the retaliation "in support of" or "by direct order of" Defendant Cantrell, and that Defendant Cook is interfering with his right of access by denying his requests for relief through the grievance process and through subliminal threats intended to intimidate Penigar into silence. Penigar claims in his questionnaire that he failed to receive writing paper, carbon paper, writ envelopes, law books, citations, trust fund statements, a stapler, and legal assistance, all of which he claims are necessary for two separate pending actions in addition to the present cause. Penigar states in the questionnaire that this alleged denial of legal supplies caused him to file a brief to the Fifth Circuit Court of Appeals "about three days late." Penigar admitted that the pleading was accepted by the Court despite the alleged missed deadline.
Authenticated records reveal that this incident was investigated and Officer Miramontez was cleared of any wrongdoing.
Penigar wrote that he is also preparing a Writ of Certiorari to the U.S. Supreme Court and a Writ of Habeas Corpus to the Texas Court of Criminal Appeals (which he alternately refers to as the Fifth Circur Court of Appeals).
II. LEGAL STANDARD
Under 28 U.S.C. § 1915(e), the court is required to dismiss the complaint or any portion of the complaint if it is frivolous or malicious, fails to state a claim on which relief maybe granted, or seeks monetary damages from a defendant who is immune from such relief. A claim may be dismissed as frivolous if the claim lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). An evidentiary hearing may be used to assist the court in determining whether the case should be dismissed. Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985). Dismissals can be based on authenticated prison records. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995) (per curiam).
Section 1915(e) of Title 28, United States Code, accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless. See Denton v. Hernandez, 504 U.S. 25, 21-32 (1992); Neitzke, 490 U.S. at 327; Schulter v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
III. DISCUSSION
A. Retaliation
To prevail on a claim of retaliation, a prisoner must establish four elements: (1) that he was exercising 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. Clark v. Stalder, 121 F.3d 222, 231 (5th Cir. 1997), reh'g en banc granted, vacated, 133 F.3d 940 (1997), reh'g en banc granted, vacated in part and reinstated in part, 154 F.3d 186 (1998). Trial courts are required to carefully scrutinize civil rights actions based on claims of retaliation as those claims "must be regarded with skepticism." Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
In order to successfully state a claim of retaliation, Penigar must prove causation. To do so, he must establish that "but for the retaliatory motive the complained of incident . . . would not have occurred." Woods, 60 F.3d at 1166; Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996). Penigar was asked in the court's questionnaire to state how he knew that Defendants Cantrell and Greenway were denying him access to legal supplies in retaliation for filing grievances against Officer Miramontez. He responded that Defendant Cantrell had on several occasions denied him legal supplies and issued either the wrong or no law books to him. With regard to Defendant Greenway, Penigar claims that "seemingly in support of Cantrell, if not by direct order," Greenway caused him to have to submit court pleadings absent requisite documents. Penigar alleged no acts of retaliation on the part of Defendant Cook.
Mere conclusory allegations are insufficient to state a retaliation claim. Woods, 60 F.3d at 1166. The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Id.; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The relevant showing in such cases must be more than the prisoner's "personal belief that he is the victim of retaliation." Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). According to the authenticated records, Penigar did not submit a request for legal supplies (a citation from Interloan) until February 17, 2000, over a year after he filed the grievance against Officer Miramontez. The citation in the request was deemed defective and subsequently returned to Penigar with a notation reading "check cite and resubmit," preceded by a large question mark. Penigar resubmitted his request with the correct citation; however, the cites could not be accessed through interloan and were, thus, unavailable.
Penigar did not submit another request for legal supplies (a law book) until August 14, 2000, over a year and a half after he filed the grievance against Officer Miramontez and six months after he submitted the request for the citation discussed above. This request was also returned to Penigar, accompanied by a note from Defendant Cantrell reading in part: "To [i]nsure that you get the correct items you may want to refer to the holding list when requesting items." In an 1-60 submitted on an unknown date, Penigar wrote that "I'm looking for Texas Penal Codes . . . I'm not looking for the Codes Annotated." Penigar next submitted a grievance on February 7, 2001, stating that Defendant Cantrell was refusing him access to legal supplies, adding "plus, I need a stapler." The grievance was returned to Penigar with the notation, "Returned because: no documented attempt at informal resolution." Requests for supplies submitted by Penigar between August 2000 and February 2001 were returned to him with various explanations as to why they could not be granted. When asked whether he had received any legal supplies between August 2000 and February 2001, Penigar admitted that he received writ envelopes, legal reference books, paper, and carbon paper.
There is no record of a formal request for a stapler, although Penigar is claiming the "refusal" of Defendant Cantrell to furnish him with one as an attempt to impede his access to the courts.
For example, a request for a July 2000 Supreme Court case on freedom of speech was returned with the notation "You need to be more specific;" a question about the NAACP was returned because more clarification was needed (Penigar's handwriting was illegible).
Penigar has alleged in his complaint nothing more than some delay in processing his requests and receiving his supplies, and some requests being unfilled because of unavailability or inaccessibility. Penigar admitted to receiving most of what he asked for. His statement "It is my belief that this is a ploy by Cantrell to slow down my litigation process," is not enough to support a claim of retaliation. As noted above, mere conclusory allegations are insufficient to state a retaliation claim. Woods, 60 F.3d at 1166. The relevant showing in such cases must be more than the prisoner's "personal belief that he is the victim of retaliation." Johnson v. Rodriguez, 110 F.3d at 310. Here, Penigar has shown nothing more than a personal belief that he is being retaliated against by attempting to create a tenuous causal link between events that transpired over six months or more apart, and by blaming Defendants Cantrell and Greenway for his personal shortcomings when requesting legal supplies. For these reasons, Penigar's claim for retaliation against Defendants Cantrell and Greenway must fail.
B. Denial of Access to the Courts
To prevail on a claim of denial of access to the courts, a plaintiff must show actual harm or prejudice resulting from the lack of access. Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Mere delay in filing a lawsuit, without a showing of harm, does not prejudice a prisoner's case. Eason v. Thaler, 73 F.3d 1322, 1328-29. Here, Penigar fails to show actual harm or prejudice resulting from a lack of access. He stated in the questionnaire that his briefs to the Fifth Circuit Court of Appeals were filed "about three days late." However, Penigar brings forth no evidence to show that the briefs actually were filed late. In addition, he admitted that despite the fact that the briefs may have been filed late, they were nonetheless accepted by the Court. Without a showing of actual harm or prejudice, Penigar's claim against Defendants Cantrell, Greenway, and Cook for denial of access to the courts lacks merit and must, therefore, be dismissed.
IV. CONCLUSION
Based upon the foregoing reasoning, the court finds that Plaintiffs Complaint fails to state a claim upon which relief may be granted. It is therefore,
ORDERED that this civil rights complaint be DISMISSED with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 1915A(b)(1). This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915(g) and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). Dismissal of this action does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997) ( citing In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)).
It is further
ORDERED that all pending motions not previously considered by the court are DENIED as moot.
This is a consent case assigned to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) with authority to enter Judgment. Any appeal shall be to the Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C. § 636(c)(3).
A copy of this Order shall be mailed to all parties appearing pro se, to each attorney of record, to the Office of General Counsel, TDCJ-ID Litigation Support, P.O. Box 13084, Austin, Texas 78711, and to TDCJ Local Funds Division, P.O. Box 629, Huntsville, Texas 77342-0629 by first class mail.
Judgment shall be entered accordingly.
SO ORDERED.