Opinion
Civil Action No. 5:01-CV-106-BG
April 11, 2002
ORDER DISMISSING CASE WITH PREJUDICE
Plaintiff, Steve McNeal ("McNeal"), proceeding pro se and informa pauperis, has filed a claim pursuant to 42 U.S.C. § 1983. McNeal brings this case against Sergeant Nock, Sergeant Barnes, and Officer Duffy, all employees of the Lubbock County Sheriffs Department, and against Robert Vincent Martinez, his former court-appointed attorney. McNeal claims that the Defendants violated his constitutional rights by denying him access to the courts.
McNeal has consented to proceed before the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). An evidentiary hearing was held on November 14, 2001, via video teleconference pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). After reviewing McNeal's Complaint, the testimony given under oath, and the authenticated records provided in this case, the court is of the opinion that the case should be dismissed with prejudice.
I. STATEMENT OF THE CASE
A. McNeal's Complaint
McNeal alleges that while incarcerated at the Lubbock County Jail, Defendants Nock, Barnes and Duffy denied him access to the courts by refusing to allow him to visit the law library, and by refusing to supply him with legal reference books, rules, codes, articles and motions in order to research and prepare materials to defend himself against impending assault charges. He further alleges that Defendant Nock engaged in the unauthorized practice of law by informing him that the court would not accept a pro se motion from him as long as he was represented by counsel. McNcal also alleges that Defendant Martinez interfered with his access to the courts by refusing to file certain pro se motions prepared by McNeal.
B. Spears Hearing Testimony
McNeal testified that he was transferred from the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), in Huntsville, Texas to the Lubbock County Jail on July 13, 2000, to answer charges stemming from an assault allegedly committed by McNeal against a TDCJ-ID officer while McNeal was housed at the Montford Unit in Lubbock. McNeal stated that he was contacted by a TDCJ-TD staff attorney in Hunstsville concerning the assault charges. The Honorable Judge Brad Underwood of the 364th Judicial District in Lubbock County appointed Defendant Martinez on July 26, 2000, to defend McNeal on the assault charges. McNeal testified that he was under the belief that his true attorney was the TDCJ-TD staff attorney in Huntsville. McNeal testified that he visited with Defendant Martinez in the Lubbock County Jail in October 2000 and again on or about May 18, 2001, at which time Defendant Martinez brought McNeal a plea offer, which McNeal refused. McNeal stated that he was then visited by another attorney, Dwight McDonald, who was substituted as counsel for Defendant Martinez on May 21, 2001. McNeal testified that he tried to fire Mr. McDonald on May 21, 2001, but the judge would not allow McNeal to do so. McNeal stated that he visited with McDonald on three or four occasions between May 21 and June 19, 2001. McNeal accepted a plea offer and on June 19, 2001, entered a plea of guilty to the assault charges. McNeal was then transferred to the Allred Unit in July 2001
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 may be 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). Anevidentiaryhearingmay be used to assist the court in determining whether the case should be dismissed. Spears, 766 F.2d at 181-82. 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. Defendant Martinez
In his complaint against Defendant Martinez, McNeal alleges that motions he prepared pro se and forwarded to Defendant Martinez were not filed, and that this inaction by Defendant Martinez denied him access to the courts. To state a claim for relief in an action brought under § 1983 McNeal must establish that he was deprived of a right secured by the Constitution or the laws of the United States and that the alleged deprivation was committed under color of state law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). "The under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'" Id., (citing Blum v. Yaretslcy, 457 U.S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948))). "[T]he party charged with the deprivation must be a person who may fairly be said to be a state actor." Sullivan, 526 U.S. at 50, citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). See Flag Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978).
[T]he Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor "under color of state law" within the meaning of § 1983. In our system a defense lawyer characteristically opposes the designated representatives of the State . . . this is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed. . . . This is true even of cases in which a private attorney has been assigned to represent an indigent defendant. [A]n indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation.Polk County v. Dodson, 454 U.S. 312, 318-19 (1981) (citations omitted). Accordingly, Defendant Martinez was not acting "under the color of state law" and any § 1983 claims against him should be dismissed.
B. Defendants Nock, Duffy, and Barnes
McNeal alleges that Defendants Nock, Duffy, and Barnes denied him access to the courts in refusing to allow him to visit the law library and by failing to supply him with certain legal reference books, codes, articles and motions necessary to defend himself against pending assault charges. McNeal further alleges that Defendant Nock engaged in the unauthorized practice of law when she informed him that the court would not accept a pro se motion from him if he was represented by counsel.
Prisoners have a right of access to the courts. McDonald v. Steward, 132 F.3d 225, 230 (5th Cir. 1998). Toward that end, prisons may ensure a prisoner's access to the courts by providing adequate law libraries, assistance from legally trained personnel, or alternative means to ensure a reasonably adequate opportunity to present claimed constitutional violations. Lewis v. Casey, 518 U.S. 343, 351 (1996). "[T]he Constitution does not require that prisoners (literate or illiterate) be able to conduct generalized research, but only that they be able to present their grievances to the courts." Id. at 360. The United States Supreme Court has held that the Constitution does not guarantee inmates the wherewithal to file any and every type of legal claim, but requires only that they be provided with the tools to attack their sentences, directly or collaterally." Id. at 354-55. 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 (5th Cir. 1998).
"Meaningful access includes the right to examine legal materials in order to establish what legally cognizable claims might exist, or having the assistance of someone with comparative specialization." Knell v. Bensinger, 489 F.2d 1014, 1016 (7th Cir. 1973) (emphasis added). McNeal admitted in his Spears testimony that he was at all times represented by counsel while incarcerated in the Lubbock County Jail, and that he met several times with both Defendant Martinez and Attorney McDonald. Because he was represented by counsel for his criminal charge and was not proceeding pro se, McNeal has failed to show any actual injury. Schwartz v. Jones, No. 99-3269 SEC "J" (1), 2000 U.S. Dist. LEXIS 18801, at *9 (E.D. La. Dec. 19, 2000). See, e.g., Mann v. Smith, 796 F.2d 79. 83-4 (5Lh Cir. 1986) (finding that an inmate with counsel appointed to represent him on his criminal charges had sufficient access through that same attorney for a subsequent civil rights claim); Green v. Fcrrell, 801 F.2d 765, 772 (5th Cir. 1986) (holding that in the absence of some sort of direct legal assistance, inmates must be given access to a library); DeMallory v. Cullen, 855 F.2d 442, 447 (7th Cir. 1988) (citing Walters v. Thompson, 615 F. Supp. 330, 340 (N.D. III. 1985)) (stating that when inmates have no access to a law library, they must be provided with assistance by trained, skilled, and independent legal personnel); Canterino v. Wilson, 562 F. Supp. 106, 111 (W.D. Ky. 1983) (stating that meaningful access to the courts was met when the prison provided an institutional attorney, a free-world paralegal, or an inmate experienced with and competent in writ-writing); Lovell v. Brennan, 566 F. Supp. 672, 696-97 (D. Me. 1983) (holding that the constitutionally guaranteed right of meaningful access to the courts was satisfied where indigent inmates were provided with appointed counsel); Marange v. Fontenot, 879 F. Supp. 679, 685 (E.D. Tex. 1995) (holding that in the absence of some sort of direct legal assistance, inmates must be given access to a library). Accordingly, access to an attorney is sufficient to satisfy the requirements for access to the courts.
McNeal has not alleged that the Defendants denied him access to his attorneys or that they denied him the use of the mails to send his pro se petitions to Defendant Martinez. Cf. Ex Parte Hull, 312 U.S. 546 (1941) (finding denial of access where prison officials prevented a prisoner from filing papers and from communicating with the Court by confiscating the prisoner's petitions and various other documents and refusing to mail them). McNeal also admitted that he had been given access to definitions from Black's Law Dictionary, the Texas Code of Criminal Procedure, 25 U.S.C. § 1361, and copies of state and federal cases. Thus, there is no constitutional violation and McNeal's claim must fail.
McNeal further alleges that Defendant Nock was engaging in the unauthorized practice of law when she informed him that the court would not accept a pro se motion from him if he was represented by counsel. "The "practice of law' means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before ajudge in court, as well as a service rendered out of court, including the giving of advice orthe rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument." Tex. Gov't Code Ann. § 81.101 (1988). Here, Defendant Nock did not prepare any document on behalf of McNeal, and she did not render advice to him that required the use of legal skill or knowledge. Rather, Defendant Nock gave McNeal this information in a reply to a grievance filed by McNeal for the purpose of explaining to him why his access to certain materials was not granted. Defendant Nock was, in effect, expounding on the Lubbock County Jail's policy regarding the limitations on access to the law library and legal materials by inmates who are represented by counsel. A prisoner's denial of access to a law library does not necessarily translate into a denial of access to the courts. Blaylock v. Painter, 901 F. Supp. 233, 235 (W.D. Tex. 1995). Furthermore, McNeal admitted in his Spears testimony he was aware that Rule Nine of the Lubbock County Jail Rules and Regulations prohibits an inmate represented by counsel from being given access to the law library, and McNeal does not complain of that policy here. Defendant Nock, in her reply to McNeal's grievance, was simply reminding McNeal ofjail policy, which does not constitute the giving of legal advice. For this reason, McNeal's claim against Defendant Nock for the unauthorized practice of law must also fail.
McNeal was denied access to the law library only with regard to the pending assault charges. McNeal was not represented by counsel for the purposes of filing this civil rights claim, and authenticated records reveal that he was allowed access to the library in order to pursue this action. McNeal does not allege any denial of access to the library with regard to this civil rights complaint.
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 ofrecord, to John Grace, Assistant Criminal District Attorney, Lubbock County Courthouse, P.O. Box 10536, Lubbock, Texas, 79408, and to Robert Vincent Martin ez, Attorney at Law, 2321 50th Street, Lubbock, Texas, 79439-40645 by first class mail.
Judgment shall be entered accordingly.
SO ORDERED.