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dismissing "conclusory" claim because plaintiff "alleged nothing more than his personal belief that" defendants retaliated and noting that he "failed to present direct evidence of retaliation or a chronology of events from which retaliation may be inferred"
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CIVIL ACTION NO. 5:02-CV-263-C
May 21, 2003
ORDER
Plaintiff, Vernon Leon Porter, filed a civil rights complaint alleging that he received a false disciplinary case while incarcerated in the Rudd Unit of the Texas Department of Criminal Justice, Institutional Division in retaliation for filing grievances. He has sued Christopher S. Eisenberg, Murphy D. McCafferty, and D. Hendon.
Under 28 U.S.C. § 1915 and § 1915A, the Court is required to dismiss the complaint or any portion of the complaint, if the complaint is frivolous or malicious or fails to state a claim on which relief may be granted. A claim may be dismissed as frivolous if the claim lacks an arguable basis in law or in fact. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733 (1992); Neitzke v. Williams, 490 U.S. 319, 327 (1989). See also, Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94 (5th Cir. 1994). "A complaint is legally frivolous if it is premised on an `undisputably meritless legal theory.'" Boyd v. Biggers, 31 F.3d 279, 281-82 (5th Cir. 1994), quoting Neitzke v. Williams, 490 U.S. at 327.
To bring a claim under § 1983 based on the filing of a false disciplinary charge, a prisoner must demonstrate that there has been a favorable termination of the disciplinary proceeding prior to bringing the claim. Woods v. Smith, 60 F.3d 1161, 1165, n. 16 (5th Cir. 1995) (citing Ordaz v. Martin, 5 F.3d 529 (5th Cir. 1993) (unpublished)). Further, a complainant may not collaterally attack the procedures used in his disciplinary hearing in a cause of action under § 1983 until he can demonstrate that the case has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus." Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995) ( quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)).
The Court takes judicial notice of the Order and Judgment entered on October 23, 2002, wherein Plaintiff's habeas petition challenging the same disciplinary case was denied. Plaintiff's disciplinary case has not been reversed, expunged, or invalidated; therefore, he cannot challenge the disciplinary proceedings in this civil rights complaint.
If a prisoner claims the disciplinary case is part of a retaliation claim, however, he is not required to demonstrate favorable termination of the disciplinary case before pursuing the retaliation claim under § 1983. Woods v. Smith, 60 F.3d at 1164-65.
"To state a valid claim for retaliation under section 1983, 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, 324-25 (5th Cir. 1999).
Plaintiff's personal belief that he was the victim of retaliation is not sufficient to support his claim of retaliation. Id. at 325. Further, mere conclusory allegations of retaliation are insufficient to support a claim of retaliation. Id. "To state a claim of retaliation an inmate must 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." Woods v. Smith, 60 F.3d at 1166.
Plaintiff is required to "produce direct evidence of motivation or, the more probable scenario, `allege a chronology of events from which retaliation may plausibly be inferred.'" Id.
Mere speculation of malicious intent is insufficient to support a claim of retaliation. Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995).
Plaintiff must "allege a violation of a constitutional right and demonstrate a retaliatory motive." Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996).
Trial courts are required to carefully scrutinize retaliation claims "[t]o assure that prisoners do not inappropriately insulate themselves from disciplinary actions by drawing the shield of retaliation around them." Woods v. Smith, 60 F.3d at 1166.
According to the Plaintiff, the disciplinary case was filed against him because he had filed grievances against various prison officers. Plaintiff alleges that he did not refuse to work. He does, however, admit that he complained about being "compelled" to work alone and about not being given a job change.
Plaintiff also complains about the representation that Defendant D. Hendon, his counsel substitute, provided at the disciplinary hearing. A prison inmate has no constitutional right to either retained or appointed counsel in disciplinary proceedings. Baxter v. Palmigiano, 425 U.S. 308, 315 (1976); Enriquez v. Mitchell, 533 F.2d 275 (5th Cir. 1976). If there is no constitutional right to counsel at a disciplinary hearing, then the prisoner cannot be deprived of effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982).
The Court takes judicial notice of another civil rights complaint filed by Plaintiff in Civil Action No. 5:02-CV-169-BG in which he also alleges, in part, that he received a false disciplinary case for refusing to work in retaliation for filing grievances.
Plaintiff has alleged nothing more than his personal belief that the disciplinary case was filed in retaliation and his claims are conclusory. Plaintiff has failed to present direct evidence of retaliation or a chronology of events from which retaliation may be inferred.
The Court finds that Plaintiff's complaint is frivolous and should be dismissed with prejudice.
SO ORDERED.
This dismissal shall count as a qualifying dismissal under the PLRA and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
The dismissal of this case does not release Plaintiff from the obligation to pay any filing fee previously imposed.
A copy of this Order shall be mailed 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.
JUDGMENT
For the reasons stated in the Court's Order of even date,It is ORDERED, ADJUDGED, AND DECREED that Plaintiff's civil rights complaint and all claims alleged therein are dismissed with prejudice as frivolous.