Opinion
2:01-CV-0104
October 21, 2003
REPORT AND RECOMMENDATION
Plaintiff DAVID LERONE KING, 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 leave to proceed in forma pauperis.
Plaintiff claims that, on April 8, 1999, after he filed a grievance protesting a new ingress-egress procedure implemented by defendant ELLINBURG, plaintiff's housing area was subjected to a shakedown. Plaintiff alleges defendant ELLINBURG authorized a total of three searches of plaintiff s property on April 8th and 9th of 1999, and that legal material was confiscated during the searches. Plaintiff alleges ELLINBURG made such authorization in retaliation against plaintiff for his assistance to others in exercising their right to petition for redress of grievances and says that about one hundred grievances had been submitted by his housing area challenging the new in-out procedure.
Plaintiff claims defendants HALES, REED, TRUESDELL, McCOY, MOORE, and WHATLEY conducted these searches. Plaintiff states he was removed from general population on April 9, 1999, and placed in transient status for three days while being investigated for several violations of TDCJ-ID rules and regulations. On April 12th, plaintiff was returned to general population and was reassigned from his job as SSI Clerk in the unit shoe factory to a job on the floor of the factory. Plaintiff alleges the reassignment was performed by defendants WILLIAMS and BEST at the instruction of defendant ELLINBURG and violated TDCJ-ID policy.
Further, plaintiff claims defendant McKINNEY stopped him on April 25, 1999, and, during a search of the items on plaintiff's person, gave him a disciplinary charge for failure to obey an order in retaliation for the grievances he had filed against defendant ELLINBURG.
Plaintiff alleges that, while searching plaintiff's possessions, defendant McKINNEY remarked, "You're the one that filed all of those grievances against the major. Well, let's see what I can write you're a___ up on since you want to file on us."
Plaintiff further complains defendant PINGEL did not perform appropriately as counsel substitute and defendant HENDRICK violated plaintiff's due process rights during his disciplinary hearing by not being impartial.
Plaintiff claims defendants RICH, RODEEN, COCKERHAM, FONDREN, GAUDIN, CLENDENNEN, MUNSELLE, and PERALTA failed to take any remedial action after learning of plaintiff's complaint through the grievance process.
Plaintiff requests declaratory judgment as well as injunctive and monetary relief.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must 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 Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff both in his complaint and in his response to the Court's Questionnaire to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
It is clear plaintiff does not allege the claimed retaliation stemmed from the single grievance he submitted but from the many grievances which he assisted other inmates in filing on their own behalf, all challenging the new in-out procedure. Accepting plaintiff's facts as alleged, the receipt by prison officials of an unusual number of grievances on an identical issue from a single housing area, especially if those grievances are similarly worded or appear to be "orchestrated" would legitimately lead prison officials to investigate possible abuse of the grievance system. Plaintiff has presented nothing but his speculation as to the reason for the initial search of his housing area; however, even if it is assumed that this initial search was triggered by the multitude of similar grievances challenging the in-out procedure, prison officials could certainly legitimately investigate the validity of the grievances they received. Plaintiff's allegations clearly demonstrate there was a viable basis for investigating this issue to determine whether the inmates purportedly signing the grievances had actually submitted them, or whether another inmate had forged their signatures to the grievances.
Plaintiff provides a list of some of the property confiscated by officials as a result of the challenged searches, including photo-copies of TDCJ-ID policies and directives; several "orchestrated" Step 1 grievance forms; about 42 pre-typed grievance forms which appeared to be photocopies; a pad of blank SO-2 short form IOC's for inter-office communications; West's legal dictionary; seven books belonging to other inmates; a book stamped with the name of the Yamhill County Law Library, two envelopes of legal materials belonging to other inmates; a document written to another inmate listing retainer fees ranging from $10.00 to $50.00 for beginning work on a petition for writ of habeas corpus for that inmate; and a large amount of office supplies, much of which was not available to inmates by issuance from TDCJ-ID and, therefore, which would have been contraband.
This is the term plaintiff utilizes at page 34 of his original complaint in describing these grievances.
See plaintiff's original complaint at pages 34, 35, and 36.
As a result of the items seized in the first search, prison officials had reason to make two additional searches of plaintiff s property, each more intensive than the last. Plaintiff's claim is that his aid to other inmates triggered a retaliatory search of his property; however, plaintiff's own allegations show officials found evidence of the suspected abuse of the grievance process in that they discovered about forty-one pre-typed grievance forms. Such abuse of the grievance system was further supported by the discovery that plaintiff had in his possession grievances bearing the signatures of other inmates. Moreover, the blank inter-office communication forms, photo-copies, and office supplies plaintiff possessed could indicate plaintiff had abused his job position as an SSI clerk in the shoe factory. Lastly, the legal material and books belonging to other inmates would tend to demonstrate plaintiff was doing more than merely "assisting" other inmates; and the discovery of what appears to have been a retainer agreement for beginning work on an inmate's habeas action is evidence that plaintiff was maintaining or attempting to establish an unauthorized, and illegal, business enterprise while in the prison, In all, plaintiff received three disciplinary charges: (1) establishing and/or operating an unauthorized business enterprise within TDCJ; (2) possession of contraband; and (3) unauthorized use of state property. Given the items plaintiff admits to having in his possession, these charges appear to have been well-supported. Plaintiff's misconduct is not insulated from appropriate investigation and disciplinary sanction because it was directly or indirectly related to grievance filing, assisting an inmate with legal work, or practicing law without a license. Inmates retain the right to adequate, effective and meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977); however, this right 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). The First Amendment does not guarantee plaintiff the right to conduct a jailhouse business in the practice of law.
The Court notes that the direct or indirect offer, request or receipt of a payment, benefit or reward in exchange for legal assistance constitutes a disciplinary violation.
Nowhere does plaintiff plead that he is is a licensed member in good standing of the Bar of this State or, indeed, of any State; and the Court assumes inmate KING is not a licensed attorney. An individual not licensed to practice law by a state may not engage in the unauthorized practice of law. Tex. Gov't Code Ann. § 81.102 (West, WESTLAW through 2003 Second Called Session). See, Weber v. Garza, 570 F.2d 511, (5th Cir. 1978) ("next friend" device utilized as artifice in unsuccessful attempt to engage in unauthorized practice of law.) See, e.g., Hackin v. Arizona, 427 P.2d 910 (Ariz.), dism'd per curiam for want of substantial federal question, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347 (1967).
Plaintiff challenges the job change he received from defendants BEST and WILLIAMS and contends prison regulations were violated in that it was done on defendant ELLINBURG's order. Plaintiff has no federally-protected due process rights in job reassignment because this change did not directly affect the length of plaintiff s confinement. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Further, given the disciplinary charges pending against plaintiff, the job reassignment appears reasonably related to the legitimate penological interest in preventing further possible disciplinary violations, In the absence of specific facts supporting his claim of retaliation, plaintiff's claims of retaliatory intent are based on his claim that the searches and confiscations of his property were wrongful; however, as shown earlier, they were abundantly supported by legitimate penological interests. Plaintiff has failed to allege a retaliation claim against either or both of defendants BEST and WILLIAMS on which relief can be granted and any due process claim in connection with the job change 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 claims defendant McKINNEY stopped him on April 25, 1999, and, during a search of the items on plaintiff's person, gave him a disciplinary charge for failure to obey an order in retaliation for the grievances he had filed against defendant ELLINBURG. The disciplinary charge resulted in a reprimand to plaintiff. 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). The adverse action alleged to have been taken in retaliation must have been more than inconsequential or de minimis. See, e.g., Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (remanding for determination of whether alleged retaliatory deprivation of a single missed meal and the failure to provide a kosher diet were de minimis).
Plaintiff alleges that, while searching plaintiff's possessions, defendant McKINNEY remarked, "You're the one that filed all of those grievances against the major. Well, let's see what I can write your a___ up on since you want to file on us."
Accepting as true the facts alleged by plaintiff, it is clear that if he suffered "retaliation," it was not for his exercise of his protected constitutional right to grieve issues he felt adversely affected him, but for his abuse of the grievance system by "orchestrating" a multitude of grievances from other inmates, committing several disciplinary violations as set forth above and potentially impeding the operation of the grievance system with the excessive submissions, In Johnson v. Rodriguez, the U.S. Court of Appeals for the Fifth Circuit taught that "neither 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 "orchestration" of grievances by other inmates appears, at most, to be unprotected "secondary litigation activity," if even that. Consequently, it will not support a claim of retaliation for the exercise of a constitutionally protected right. 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).
In the context of federal litigation, it is precisely this kind of activity which led to the passage of the Prison Litigation Reform Act of 1995.
Moreover, the Court notes the receipt of a reprimand is a mere verbal slap on the wrist and plaintiff has not alleged any adverse effect flowed from it. Consequently, the adverse act plaintiff alleges was, at most, de minimis. For these reasons, plaintiff has also failed to state a claim against defendant McKINNEY on which relief can be granted.
Plaintiff claims defendant PINGEL did not perform appropriately as counsel substitute; however, a counsel substitute representing an inmate in prison disciplinary proceedings does not act under color of state law for purposes of claims brought under Title 42, United States Code, section 1983. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). Consequently, plaintiff is unable to show one of the two essential elements necessary to state a civil rights claim. Adickes v. Kress, 398 U.S. 144, 149, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) (two elements are necessary for recovery in this type of suit: (1) the plaintiff must show the defendant deprived him of a right secured by the Constitution and laws of the United States; (2) the plaintiff must show the deprivation was committed under color of law, usually by a state official or a private individual in conspiracy with such an official). Consequently, plaintiff's claim against defendant PINGEL 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 "color of law" inquiry centers on whether a person who is affiliated with a state government or its political subdivision has used his position to deprive another of his constitutional rights. "[T]he nature of the act performed, not the clothing of the actor or even the status of [the party] . . ., determines whether the officer has acted under color of law." Colon v. Lomelo, 575 F. Supp. 664, 667 (S.D.Fla. 1983) (quoting Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D. Pa. 1968)). Action taken "under color of state law is not limited only to that action taken by state officials pursuant to state law. Monroe v. Pape, 365 U.S. 167, 185, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). It encompasses "[m]isuse of power, possessed by virtue of stat law and made possible only because the wrongdoer is clothed with the authority of state law. . . ." Id. at 184, 81 S.Ct. at 482.
Plaintiff claims defendant HENDRICK violated his due process rights during the disciplinary hearing by not being partial. In the wake of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), a prisoner has a liberty interest only in "freedom[s] from restraint . . . impos[ing] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," and these will normally consist of deprivations which clearly impinge on the duration of confinement. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2294, 132 L.Ed.2d 418 (1995)). Plaintiff has informed the Court that he suffered no loss of goodtime as a result of any of the disciplinary cases. Therefore, plaintiff has no federally-protected due process rights with respect to the hearings on the disciplinary charges he received. Plaintiff's claim against defendant HENDRICK 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 Sandin Court expressly recognized the unusual deprivations in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to a mental hospital), and Washington 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.
See plaintiff's March 27, 2002, responses to question nos. 2 and 5 of the Court's Questionnaire.
Lastly, plaintiff claims defendants RICH, RODEEN, COCKERHAM, FONDREN, GAUDIN, CLENDENNEN, MUNSELLE, and PERALTA failed to take any remedial action after learning of plaintiff s complaints through the grievance process. 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 claim against defendants RICH, RODEEN, COCKERHAM, FONDREN, GAUDIN, CLENDENNEN, MUNSELLE, and PERALTA 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 has asserted no claims against the UNKNOWN PERSONS and has failed to allege material facts to support his claims of retaliation, racism, and conspiracy. 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). Consequently, with respect to these claims, plaintiff has failed to state a claim on which relief can be granted.
CONCLUSION
Pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, sections 1997e(c)(1), 1997e(e), and 1997e(a), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Claims filed pursuant to Title 42, United States Code, section 1983, by plaintiff DAVID LERONE KING BE DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected — to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.