Opinion
SA-05-CA-0616-RF.
June 21, 2006
ORDER ADOPTING THE MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge John W. Primomo ("Magistrate") filed in the above-captioned case on August 2, 2005 (Docket No. 6). The case is a civil rights action filed by Jerry Wanzer, a prisoner of the Texas Department of Criminal Justice — Correctional Institutions Division ("TDCJ-CID"), pursuant to 42 U.S.C § 1983. Plaintiff's complaint alleges various constitutional violations by numerous state officials. The Magistrate properly screened Plaintiff's complaint to determine whether it was frivolous, malicious, failed to state a claim, or sought monetary damages from defendants immune to such relief. After considering the motions, pleadings, evidence, and applicable law, the Magistrate concluded that the lawsuit should be dismissed as frivolous.
Docket No. 6.
The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. After due consideration, the Court finds that Plaintiff's complaint is frivolous. Furthermore, the Court ADOPTS IN ITS ENTIRETY the Magistrate's Memorandum and Recommendation, DISMISSES Plaintiffs complaint WITH PREJUDICE, and ORDERS that the prisoner henceforth shall be barred from proceeding in forma pauperis in a civil action or an appeal of a judgment rendered in a civil action filed in Federal Court.
"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. 1915(g).
BACKGROUND
Jerry Wanzer ("Plaintiff") filed suit against various state medical officials on May 6, 2002. Plaintiff claims that he was injured due to various medical officials' deliberate indifference to identifying and treating his serious medical needs. Specifically, Plaintiff claims that the defendants failed to take any real steps in locating the source of his weakness, dizziness, headaches, breathing problems, neck pain, and weight loss. Plaintiff also claims that medical officials failed to adequately address his dental needs by neither pulling his tooth nor providing pain medication until the tooth could be pulled. Subsequently, Plaintiff added nine defendants to the lawsuit, claiming that they retaliated against Plaintiff after commencing this suit. Also, Plaintiff claims that all of the officials mentioned in this lawsuit conspired to injure or retaliate against him.In addition to this lawsuit, Plaintiff has filed three past complaints in Federal Court, two of which were filed with this Court. In Wanzer v. Chu, et al, cause no. SA-02-CA-246-XR, Wanzer sued various TDCJ-CID personnel and UTMB physicians alleging deliberate indifference to his serious medical needs in violation of the Eight Amendment. The case was dismissed with prejudice on Dec. 16, 2004 after the Court granted Defendant's motion for summary judgment.
The officials named in the complaint include Dr. Mercado; V. Felkins, P.A.; Tonia Black; Rochelle McKinney, R.N.; Oscar Mendoza; Robert Parker; and Steve Green.
In Wanzer v. Pena, et al, cause no. SA-03-CA-487-RF, Wanzer sued several TDCJ-CID officials alleging that he was improperly disciplined after refusing to sign a form consenting to a blood test used to create a DNA database. This Court dismissed Wanzer's claims for damages against the defendants in their individual capacities based on qualified immunity. However, a trial was conducted on the individual claim for injunctive relief. Evidence at trial established that the authorization form Wanzer was to sign was not a consent form, but only a means to identify the blood sample. This Court ruled that Wanzer's due process rights had not been violated, he was not entitled to injunctive relief, and dismissed the claim with prejudice. The judgment is currently on appeal.
Last, in Wanzer v. Longoria, cause no. SA-05-CA-0082-RF, Wanzer alleged that several TDCJ-CID officials retaliated against him for filing Wanzer v. Pena, et al, cause no. SA-03-CA-487-RF, in April of 2004. Wanzer further alleged that TDCJ-CID personnel conspired to deprive him of his constitutional rights by withholding property and legal material, which impaired his right to access the courts. After reviewing the complaint, this Court adopted the recommendation of the magistrate judge and dismissed the complaint without prejudice.
The officials named in the complaint include Officer Longoria; Sgt. Thompson; Officer Michael Ragusin; Captain Adleman; Captain Carr; Officer Ricky Boerm; Virginia Waddle; Lt. Schmidt; and Lt. Gonzalez.
STANDARD OF REVIEW
The Court reviews de novo a Magistrate's Memorandum and Recommendation if a party files specific objections within ten days of service. The Court need not consider objections that are frivolous, conclusive, or general in nature. In the instant case, Plaintiff timely filed continuances and specific objections to the Magistrate's report. Therefore, the Court reviews Plaintiff's complaint a de novo.
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1989).
Plaintiff proceeds in forma pauperis pursuant to 28 U.S.C. § 1915. Under 28 U.S.C. § 1915(e)(2), the Court may dismiss an in forma pauperis proceeding that is frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from such relief. An action may be dismissed as frivolous if the complaint lacks an arguable basis in law or fact, or relies upon an indisputably meritless legal theory. An action also may be dismissed for failure to state a claim if the complainant cannot prove a set of facts that would entitle them to relief.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001).
Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002) (citing Jones v. Greninger, 188 F.3d 322, 234 (5th Cir. 1999).
The complaint of the pro se prisoner must be construed liberally in their favor. When considering the sufficiency of pleadings in a § 1983 action, the court must consider the pleadings in its entirety. In the past, it has been the policy of the Fifth Circuit to give the greatest latitude to pro se prisoner complaints in § 1983 actions. However, once adequate opportunity is given to develop one's best case, a pro se complaint must contain specific facts supporting its conclusions.
Id.
Id.
Id. (citing Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); Green v. McKaskle, 788 F.2d 1116 (5th Cir. 1986)).
DISCUSSION
I. Deliberate IndifferenceUnder the Eighth Amendment, deliberate indifference to a prisoner's medical needs constitutes unnecessary and wanton infliction of pain, which is a cognizable cause of action under § 1983. This standard is applicable both to prison guards and medical officials who intentionally interfere with a prisoner's treatment once it is prescribed. However, accidents alone are insufficient to constitute wanton infliction, even if the accident causes anguish. Also, inadvertent failure to provide medical care does not rise to the level of wanton infliction. Thus, failure of a medical official to diagnose or treat a medical condition, even if done negligently, does not constitute unnecessary and wanton infliction of pain. In order to rise to this level, a prisoner must allege "acts or omissions sufficiently harmful to evidence deliberate indifference of medical needs."
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Id.
Id.
Id.
Id.
A. Dr. John Scott
Plaintiff alleges that the prison dentist, Dr. John Scott, "maliciously allowed Plaintiff to suffer" by failing to pull his tooth. Plaintiff claims that on May 19, 2003 Dr. Scott determined that his tooth needed extraction, but failed to pull his tooth until March 16, 2004, which caused the Plaintiff to suffer severe and continuous pain. Plaintiff asserts that the failure to pull his tooth for nearly a year constitutes deliberate indifference to his serious medical needs. While Plaintiff includes a claim that his "rotting teeth" have been "hurting" with "nothing done to pull them," Plaintiff fails to prove whether Dr. Scott had discovered the teeth needed extraction and whether Dr. Scott had agreed to schedule the extraction in May of 2003. The TDCJ-CID response indicates that Plaintiff sent a request to be seen by Dr. Scott on October 13, 2003 and was ultimately seen on December 30, 2003. In addition, Plaintiff's tooth was removed on March 16, 2004. The TDCJ-CID response to Plaintiff's grievance states:
Docket No. 5 at 4A.
Id.; Docket No. 6 at 7.
Id.; Docket No. 6 at 4.
See Step 1 Grievance Form # 2003229507.
Step 1 Grievance Form # 2004116214.
A review of your dental record reveals your tooth needs to be removed but since the examination on 12/30/03 revealed no swelling and you stated you only had occasional pain. You were placed on a routine [extraction] schedule. (90-120 days). If you have more pain now, submit a sick call request.
Beyond the accusations of failing to provide adequate medical treatment in Plaintiff's grievance, complaint, and objections to the magistrates report, Plaintiff offers no evidence to that Dr. Scott was wantonly indifferent to his serious medical needs. Therefore, the Court dismisses the claim against Dr. Scott.
B. Dr. Maximilian Herrera
Plaintiff alleges that Dr. Herrera was deliberately indifferent to Plaintiff's medical needs by failing to properly diagnose and treat Plaintiff's medical conditions. The Court's examination of Plaintiff's complaint reveals a significant medical history. The following is a list of some of the highlights:
Docket No. 12 at 4-6. Plaintiff claims that lumps under his kidneys, loss of weight, and headaches are symptoms of a larger biological disorder.
See Step 1 Offender Grievance Forms.
1. Thyroid scan in 1998 revealed no masses or tumors, but Plaintiff did have an enlarged thyroid. Because Plaintiff's thyroid blood levels were elevated, he was diagnosed with hyperthyroidism. Subsequent treatment at the Fort Worth Endocrine Clinic on 11/19/98 revealed that Plaintiff refused the prescribed medication and any treatment for his thyroid. Subsequent testing revealed normal thyroid levels.
2. Testing for thyroid disease revealed a normal exam and no symptoms of the disease. Testing for graves disease was negative.
3. Referral to Galveston Hospital Endocrinology Section on June 1999 and subsequent results in September of 1999 revealed normal thyroid hormone levels and a normal overall exam.
4. Galveston Hospital Endocrinology Section reported no evidence of thyroid problems on 12/7/99. Periodic thyroid testing at the Connally medical unit continued through 2003.
5. Thyroid scan performed on 11/30/01 at the Galveston Endocrine Clinic showed a normal sized thyroid with no mass or evidence of hyperthyroidism or tumors.
6. Diabetic testing from 11/28/02 to 2/27/03.
7. Three cans of Ensure given for weight loss prevention.
8. Visit with the unit physician on 6/19/03 and provisions for a 15 day pass for one can of Isocal on 6/23/03.
9. Plaintiff refusal to stay for his 5 hour glucose tolerance test on 6/27/03. Lab work done for a thyroid panel on 8/7/03. A subsequent glucose tolerance test on 8/15/03.
10. Plaintiff was on a hypercaloric diet and referred to a Gastroenterology Specialty Clinic.
11. Dentist appointment 12/30/03. Subsequent tooth extraction 3/16/04.
12. Missed medical appointment on 1/30/04.
13. Renewal of hypercaloric diet for six months on 5/25/04 and provided with a 4 week supply of Isocal.
14. Plaintiff received Isocol from 1/27/05 to 3/18/05.
Affidavit of Dan Kelley, M.D., at 3.
Id. at 2-4.
Id. at 2.
Id. at 3.
Id. at 4.
Grievance Form # 2003083711.
Step 1 Grievance Form # 2003113991. The Court notes that Plaintiff alleges he did not receive the Ensure on this date.
Step 1 Grievance Form # 2003196513.
Step 2 Grievance Form # 2003224055; see also Step 1 Grievance Form # 2003224055.
Step 2 Grievance Form # 2003229507; see also Step 1 Grievance Form # 2003229507.
Step 1 Grievance Form # 2003229507.
Step 1 Grievance Form # 2004105311.
Step 2 Grievance Form # 20041147982.
Step 2 Grievance Form # 2005091766.
The Supreme Court has made clear that failure of a medical official to diagnose or treat a medical condition, even if done negligently, does not constitute unnecessary and wanton infliction of pain. According to the record, Dr. Herrera has not failed to diagnose or treat any of Plaintiffs inflictions, because there is no evidence of any diagnosed ailment. Furthermore, substantial evidence of Plaintiff's continuing treatment for weight loss is evident. Because the Court finds no evidence to substantiate Plaintiff's allegations that Dr. Herrera was wantonly indifferent to Plaintiff's serious medical needs, the Court dismisses the complaint against Dr. Herrera.
Estelle, 429 U.S. at 106.
See id.
See also id. (holding that the overwhelming evidence of treatment by medical staff over a three month period precluded a cognizable claim under § 1983).
C. Angelina Pena
Plaintiff claims that Angelina Pena was deliberately indifferent to his serious medical needs in July and August of 2003, due to her refusal to administer proper medical instructions. Specifically, Plaintiff's grievance alleges that nurse Pena drew blood on August 7, 2003 to check his thyroid levels, but she refused to draw blood to check his glucose levels. However, the TDCJ-CID response indicates that Plaintiff refused to have blood drawn to check his glucose level on June 27, 2003, and Plaintiff's glucose levels were later checked on August 15, 2003. In the allegations against nurse Pena, Plaintiff wholly fails to prove that there was a doctor's order to check his glucose level on August 7, 2003. In addition, there is substantial evidence that medical personnel checked Plaintiff's glucose levels regularly and no injury resulted to him. Therefore, the Court dismisses the claim against nurse Pena.
Docket No. 5 at 4B.
Step 1 Grievance Form # 2003224055.
Id.
D. Dr. Romeo Rojas and Dan Kelley
Plaintiff alleges that Dr. Rojas was deliberately indifferent to his serious medical needs because Dr. Rojas stopped providing Plaintiff with medical treatment. However, the Court notes that Plaintiff fails to state what disease Dr. Rojas failed to treat. Again, the Supreme Court has made clear that failure of a medical official to diagnose or treat a medical condition, even if done negligently, does not constitute unnecessary and wanton infliction of pain. Therefore, the Court fails to find a claim for which relief may be granted, and the claim against Dr. Rojas is dismissed.
Docket No. 5 at 4B.
Estelle, 429 U.S. at 106.
See Docket No. 6 at 8.
Plaintiff also alleges that UTMB Medical Director Dan Kelly was deliberately indifferent to his serious medical needs. The Court finds no evidence to substantiate Plaintiff's claim, and dismisses for the same reasons discussed above.
Docket No. 5 at 4P.
II. Retaliation
Claims of retaliation require that inmates "allege the violation of a specific constitutional right and be prepared to establish that but for the retaliatory motive the complained of incident" would not have occurred. The Court must regard the claim of retaliation with skepticism and disallow all conclusory claims of retaliation. The Plaintiff must produce direct evidence of retaliatory motive or a chronology of events that infers a retaliatory motive.
Wood v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Id.
Id.
A. Dr. Scott
Plaintiff claims that Dr. Scott retaliated against him, because Plaintiff filed various lawsuits against the medical unit. The Magistrate reported the following, "Wanzer fails to allege sufficient facts to indicate that Dr. Scott's actions were, in any way, attributable to retaliation. It is not enough that he may have known of the prior § 1983 lawsuit. Wanzer has alleged only a personal belief that retaliation motivated Dr. Scotts' actions." In examining all of the evidence related to Plaintiff's claim against Dr. Scott, the Court discovered no evidence other than conclusory allegations by Plaintiff. Therefore, the Court holds that the claims against Dr. Scott should be dismissed.
Docket No. 5 at 4.
Docket No. 6 at 6.
B. Nurse Pfeil
Plaintiff claims that defendant Shirley Pfeil instructed a security officer, Rebecca Rodriguez, to file false disciplinary charges against him on March 28, 2003. Plaintiff's grievance dated May 11, 2003 does not allege that nurse Pfeil instructed the security officer to file a false disciplinary report against Plaintiff. Rather, it alleges nurse Pfeil deprived him of his medical nutritional drink. However, records indicate that Plaintiff did receive a disciplinary report on March 28, 2003 for being at the infirmary without approval. Subsequently, Plaintiff received a dismissal from the March 28th incident and no punishment was assessed.
Docket No. 5 at 4A.
Exhibits, Step 1 Grievance Form # 2003135507. In addition, the grievance response, which was signed by Warden Morales on May 21, 2003, indicated that nurse Pfeil's actions were appropriate, because Plaintiff did not have an order for Ensure.
See Exhibits, Step 1 Grievance Form # 2003135507.
The Court's review of the evidence indicates that Plaintiff was not listed among the inmates permitted to visit the infirmary on the day he received the disciplinary report, even though another prison unit gave Plaintiff permission to visit the infirmary. While Plaintiff alleges a retaliatory motive by nurse Pfeil, he fails to prove causation and injury caused by nurse Pfeil's actions. In addition, § 1983 claims are subject to the applicable statute of limitations as prescribed by the forum state, which is two years in Texas. The Magistrate found that Plaintiff failed to timely file his claim, because he filed more than two years after the incident occurred. This court agrees with the Magistrate's finding and holds that Plaintiff's cause of action arose on March 28, 2003. Therefore, Plaintiff's claim is also barred by the statute of limitations.
See Exhibits, Step 1 Grievance Form # 2003135507. This also explains why the Plaintiff received a disciplinary report at the infirmary, which was later dismissed upon appeal.
Docket No. 6 at 5 (citing Ownes v. Okurei, 488 U.S. 235, 249-50 (1989), Tex.Civ.Prac. Rem. Code § 16.003(a)).
Docket No. 6 at 5. The incident with nurse Pfeil occurred on March 28, 2003 while the Plaintiff filed this original petition on August 2, 2005.
See id.
C. Dr. Rojas
Plaintiff claims that Dr. Rojas retaliated against Plaintiff because he filed complaints against the medical unit. The Magistrates report found Plaintiff's claim of retaliation to be meritless and without basis. In his objections to the Magistrate's report, Plaintiff completely fails to address the issue of retaliation. Furthermore, the grievance report Plaintiff cites as a basis for Dr. Rojas's retaliation is completely void of any claim or proof that Dr. Rojas acted with retaliatory motive. Therefore, Plaintiff's allegations against Dr. Rojas are meritless and should be dismissed.
Docket No. 5 at 4B.
Docket No. 6 at 8.
Docket No. 12 at 8-10.
Step 1 Grievance Form # 2003229507.
D. Sgt. Robert E. Bluhm
Plaintiff alleges that Sgt. Blum retaliated against Plaintiff for past grievances filed against the medical and food units, when he removed Plaintiff from the food isle in August of 2003. The TDCJ-CID response indicates that Plaintiff was removed from the line for failure to follow instructions, no disciplinary report was filed against Plaintiff, and Plaintiff refused a sack lunch in his cell. The Court finds Plaintiff's claims to be conclusory and fails to allege an injury. Therefore, Plaintiff's claim must be dismissed.
Docket No. 5 at 4D; Step 1 Grievance Form # 2004032405.
Step 2 Grievance Form # 2004032405.
See Wood, 60 F.3d at 1166.
E. Reynaldo Gaytan, Jr.
Plaintiff alleges that food service officer, Mr. Gaytan, retaliated against him for past grievances filed against the food staff by denying Plaintiff his medically prescribed food snack. The TDCJ-CID response indicates that Plaintiff did not correctly receive his dietary portion from Gaytan, but steps were taken to ensure Plaintiff would receive the portion in the future. In addition, Plaintiff did receive his food snack from another service inmate just moments after the incident with Gaytan. While it seems evident that Mr. Gaytan did not give Plaintiff his dietary snack, Plaintiff fails to prove that he was deprived of any constitutional right, because he received his meal from another food service member.
Docket No. 5 at 4D.
Step 2 Grievance Form # 2004044531.
Step 1 Grievance Form # 2004032405.
See Wood, 60 F.3d at 1166. The TDCJ-CID response also indicates that steps were taken to ensure Plaintiff would receive double portions of food.
F. Diana Stansberry
Plaintiff claims that Diana Stansberry denied him proper medical care in retaliation for his prior lawsuit against medical personnel. Plaintiff's grievance indicates that his appointment was terminated after he left the medical waiting room to attend an appointment in the law library. The Magistrate's report noted that Plaintiff failed to state an injury. In Plaintiff's objections, he claimed he suffered continuing weight loss as a result of being deprived Isocol. However, the Court finds ample evidence in the record to indicate that Plaintiff was receiving treatment for weight loss, and his weight stabilized between 150 and 146 pounds. Plaintiff fails to prove that Ms. Stansberry's cancellation of his appointment was retaliatory and caused harm. Therefore, the claims against Stansberry are dismissed
Docket No. 5 at 4E.
Step 1 Grievance Form # 2004105311.
Docket No. 6 at 11.
Docket No. 12 at 22.
G. Officer Barbara Trevino and Warden Jeffrey Marton
Plaintiff claims that Officer Trevino and Warden Martin retaliated against Plaintiff for his prior lawsuit in Wanzer v. Pena by denying him a promotion. In Plaintiff's suit against Pena, the Court ruled that Plaintiff's due process rights had not been violated, and he was not entitled to injunctive relief precluding discipline for failing to sign the form. Therefore, failure to promote Plaintiff for not signing the form was not a constitutional violation, because the Defendants had authority to discipline Plaintiff. Therefore, Plaintiff fails to state a claim for relief, and his claim must be dismissed.
H. Warden Jeffrey Marton and Assistant Warden Kenneth Bright
Plaintiff claims that the warden and assistant warden retaliated against him by denying every grievance filed by Plaintiff. The warden and assistant warden's denial of Plaintiff's grievances is insufficient to establish direct evidence of retaliatory motive or a chronology of events that infers a retaliatory motive. Therefore, because Plaintiff cannot prove a constitutional violation, the Court dismisses the complaint against these defendants.
Docket No. 5 at 4L.
See Wood, 60 F.3d at 1166.
I. Dr. Jane Doe One and Kauser Suleman
Plaintiff alleges that Dr. Jane Doe One and Nurse Suleman retaliated against Plaintiff and acted with deliberate indifference toward his medical needs. According to the Plaintiff, these defendants had treated him before, knew of his medical needs, and acted as if they did not know Plaintiff. The Court notes that it was later determined that Plaintiff was sent to the wrong department. The Court cannot determine a cognizable claim for retaliation, conspiracy, or deliberate indifference from these allegations. Therefore, the Court dismisses these claims.
Docket No. 5 at 4L.
Id.
Id.
See id.; Docket No. 12 at 23.
J. Nurse Claude Liggins
Plaintiff claims that Nurse Liggins retaliated against, and acted with deliberate indifference towards, Plaintiff by refusing to provide his medical nutritional drink. The TDCJ-CID response indicates that Plaintiff was denied his drink because he was late to his appointment. Plaintiff fails to demonstrate either retaliation or deliberate indifference by nurse Liggins. Therefore, Plaintiff's complaint against nurse Liggins is dismissed.
Docket No. 5 at 4N.
Step 1 Grievance Form # 2005016298.
III. Conspiracy to Retaliate
Before the Court can examine a prisoner's conspiracy claim under § 1983, it must determine whether qualified immunity applied to the state claims. In order to overcome qualified immunity, a prisoner must prove that the officials "(1) violated a constitutional right that (2) was clearly established at the time of the violation (3) through conduct that was objectively unreasonable."
Mowbray v. Cameron County, Tex., 274 F.3d 269, 279 (5th Cir. 2001).
Id.
A. Tonya Black
Plaintiff claims that food service manager Tonya Black conspired to retaliate against Plaintiff after he questioned why Black was giving extra food portions to inmates. Plaintiff also claims that Black placed his life in danger by encouraging other inmates to turn against him. The TDCJ-CID response indicates that an investigation was completed and no evidence of Plaintiff's accusations was discovered. Ultimately, no threats were made and Plaintiff suffered no injuries due to this incident. The Court fails to find either a retaliatory motive or a constitutional claim. Thus, Plaintiff's claims against Tonya Black must be dismissed.
Docket No. 5 at 4N; Step 1 Grievance Form # 2005024875.
Id.
Step 2 Grievance Form # 2005024875. The Court notes that the inmates who confronted Plaintiff denied hearing any exchange between Plaintiff and Black. Id.
Docket No. 6 at 13.
B. Pauline Dancy
Plaintiff alleges that Pauline Dancy conspired to retaliate against him for Plaintiff's past grievances and lawsuits against co-workers. Plaintiff claims that Dancy's verbal statements about his criminal case, which were made in front of other inmates, were intended to place his life at risk. The TDCJ-CID response indicates that there was no evidence to substantiate Plaintiff's claims, because Officer Dancy had no knowledge of Plaintiff's case. Ultimately, no threats were made and Plaintiff suffered no injuries due to this incident. The Court fails to find either a retaliatory motive or a constitutional claim. Thus, Plaintiff's claims against Pauline Dancy must be dismissed.
Docket No. 5 at 40; Step 1 Grievance # 2005037191.
Step 1 Grievance Form # 2005037191.
Id.
Docket No. 6 at 13.
C. Robert L. Schmidt and Ricky Boerm
Plaintiff alleges that Robert Schmidt conspired with other officials and subordinates, including Ricky Boerm, to retaliate against Plaintiff by denying law library access, misapplying funds to his mail that caused it to be returned, writing false disciplinary cases, discussing Plaintiff's case with other prisoners, and not supplying plaintiff's indigent supplies. The Courts examination of Plaintiff's evidence fails to establish proof that either Schmidt or Boerm retaliated against Plaintiff or conspired to injure Plaintiff. Rather, Plaintiff's allegations are entirely conclusory and fail to raise a constitutional claim. Therefore, Plaintiff's claims against Schmidt and Boerm must be dismissed.
Docket No. 5 at 4P; Step 1 Grievance Form # 2005117138; Step 1 Grievance Form # 2005136937.
See id.
C. Robert Solis, Capt. Philip Sifuentes, Randy Price, James Huwe, Capt. Vincent Francis, and Jesus R. Garza
Plaintiff alleges that a number of officers conspired to write false disciplinary reports in retaliation against Plaintiff for bringing suit against fellow officers. He also claims that Sifuentes retaliated against him by not allowing Plaintiff to eat. However, the TDCJ-CID response indicates that no procedural errors were made, and Plaintiff was given an opportunity to receive the meal in the dining hall, but refused it. The Court examination of Plaintiff's complaint and objections reveals only conclusory claims of retaliation by the defendants. Therefore, the claims against Price, Huwe, Francis, and Garza are dismissed for the same reasons discussed above.
Docket No. 5 at 4E-4G. Plaintiff does not allege an injury other than retaliation, but the Plaintiff's specific injury in this instance was the loss of good-time credits due to the disciplinary reports.
Id.
Step 1 Grievance Form # 2004122353; Step 1 Grievance Form # 2004125387.
D. Assistant Attorney General Anthony Brocato and UTMB Medical Director Dan Kelly
Plaintiff alleges that Assistant Attorney General Anthony Brocato and UTMB Medical Director Dan Kelly conspired with other medical officials at TDCJ-CID and UTMB to deny him medical care. Plaintiff alleges that Brocato caused his medical treatments to be terminated after a June 30, 2004 deposition. Plaintiff bases these allegations on the following circumstances: the medical staff at John Sealy hospital who had performed earlier tests on Plaintiff asked "why he was there?", and the fact that he has not revisited John Sealy Hospital for follow-up tests. As the Magistrate correctly points out, the conspiracy claim is "factually baseless." Thus, Plaintiff's claims against both men must be dismissed.
Docket No. 5 at 4O; Step 1 Grievance Form # 2005048363; Step 1 Grievance Form # 2005136937.
Docket No. 5 at 4O.
Id.
Docket No. 6 at 14.
E. John Bryan and Jane Doe Two
Plaintiff claims that John Bryan and Jane Doe Two conspired to cover-up the actions of Ricky Boerm, who tried to get other prisoners to retaliate against Plaintiff. Plaintiff offers no proof other than a conclusory claim of conspiracy. In addition, Plaintiff does not show proof of any injury. Therefore, the Court dismisses the claim against John Bryan and Jane Doe Two, because Plaintiff has failed to state a constitutional claim.
Docket No. 4Q.
See Docket No. 6 at 14 (noting that Plaintiff provides no facts to support the claim such as dates or times when the alleged conversations occur and does not provide the names of specific inmates who were participants in the acts of retaliation).
See Docket No. 5 at 4Q; Docket No. 6 at 14-15.
F. General Conspiracy Theory
Plaintiff makes loose claims of conspiracy involving all of the officials involved in this lawsuit. However, the Court finds no merit to Plaintiff's conspiracy claims, especially considering that the Court cannot find evidence of any constitutional violations. Therefore, the Court finds that there is no general conspiracy to retaliate against Plaintiff among the defendants.
IV. Mail Tampering
Mail tampering involves the violation of a prisoner's right to access the courts thereby denying the prisoner's right to free speech. A prisoner does not have a constitutional claim if his mail is opened and inspected outside of his presence, even if the inspection is in violation of prison regulations, as long as it is opened and inspected for a "`legitimate penological objective.'" However, incoming mail is distinguished from outgoing mail in Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (noting that the concerns for outgoing mail are significantly less than the concerns for incoming mail). Furthermore, the Fifth Circuit has recognized for more than three decades that a prisoner has a right to be completely free from arbitrary censorship of his outgoing mail. Constitutional claims alleging violation's of a prisoner's right to access the courts must allege that the litigant was prejudiced by mail tampering.
Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993).
Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993).
Id. at 825.
Id. at 826.
Id. at 825.
A. Senaida Ambriz
Plaintiff alleges a number of violations of mail fraud and tampering by Senaida Ambriz, which are related to Wanzer v. Pena. Plaintiff claims that Ambriz delayed the mailing and delivery of important court materials, which ultimately prejudiced Plaintiff. However, the Court in Wanzer v. Longoria ruled that Plaintiff was not injured by the withholding of materials in Pena. Therefore, the Court dismisses Plaintiff's claim.
Docket No. 5 at 4I-4J.
Id.
B. Delma A. Contreras, M.H. Guerra, and Lana Atkinson
Plaintiff claims that mailroom officials Delma A. Contreras, M.H. Guerra, and Lana Atkinson conspired to violate Plaintiff's constitutional rights by opening his legal mail outside of his presence as well as delaying, censoring, and destroying legal documents. For the reasons mentioned above, the Court dismisses Plaintiff's complaint against these defendants.
Docket No. 5 at 4D, 4I-4L.
CONCLUSION
The Court concludes that the Plaintiff's suit is frivolous and should be dismissed with prejudice. The Court also believes a sanction is warranted, as this is the third case dismissed with prejudice in Federal court, and the Court believes Plaintiff will continue to file frivolous lawsuits. Therefore, the Court orders that Plaintiff be precluded from filing as a pauper in future lawsuits brought in Federal court. Accordingly, the Court ORDERS that the Magistrate Judge's Report and Recommendation be ADOPTED IN ITS ENTIRETY, and it is further ORDERED that Plaintiff's requests for relief be dismissed with PREJUDICE.
Summary judgment was granted in Wanzer v. Chu; Wanzer v. Pena was ultimately dismissed with prejudice after the Court determined that Wanzer's due process rights were not violated; Wanzer v. Longoria was dismissed upon the same pleading deficiencies evident in this case; and Wanzer v. White, et. al, 92-CA-0027, which was a § 1983 lawsuit alleging mail tampering was dismissed as frivolous by the United States District Court for the Eastern District of Texas on May 22, 1992.