Opinion
No. 5:00-CV-410 C
December 20, 2002
ORDER
Plaintiff David Alan Pugh, acting pro se, filed a civil rights complaints pursuant to 42 U.S.C. § 1983 on December 4, 2000, and was allowed to proceed in forma pauperis. In the complaint, Plaintiff alleged that employees of the Texas Department of Criminal Justice, Institutional Division, Price Daniel Unit filed a false disciplinary charge against him, denied him due process at the subsequent disciplinary hearing, violated his constitutional right to free speech, conspired against him, and retaliated against him. He requested a declaratory judgment, injunctive relief; compensatory damages, punitive damages, and costs.
The complaint was referred to the United States Magistrate Judge for judicial screening pursuant to 28 U.S.C. § 1915. Following a Spears evidentiary hearing on March 8, 2001, the Magistrate Judge filed a Report of Spears Hearing and transferred the complaint back to this Court's docket. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) (holding that an evidentiary hearing may be used to develop the factual basis of a prisoner complaint).
On August 26, 2002, Plaintiff filed a Motion for Leave to File an Amended Complaint and a copy of his proposed amended complaint. Plaintiff does not seek to add claims to his complaint; rather, he requests permission to seek additional relief and to sue the defendants in their official capacities as well as their individual capacities. The Defendants have not been served. Hence, the Court finds that Plaintiff's request to file an Amended Complaint should be granted. Fed.R.Civ.P. 15(a). The Court shall consider Plaintiff's complaint as set forth in the Amended Complaint and his testimony from the Spears evidentiary hearing.
When a party seeks to proceed in forma pauperis, the Court shall dismiss the complaint at any time if the court determines that the complaint is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See 28 U.S.C. § 1915A (providing that a court shall review a prisoner complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, "such as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quotation omitted). A claim has no arguable basis in fact if "after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). A questionnaire or evidentiary hearing may be used to assist the court in determining whether cases should be dismissed under 28 U.S.C. § 1915. See Watson v. Ault, 525 F.2d 886, 892 (1976) (holding that a questionnaire may be used to develop the factual basis of a prisoner complaint); Spears v. McCotter, supra.
Plaintiff has named the following defendants: Helen Sheppard, Parole Officer I at the TDCJ Price Daniel Unit; Christi Woodard, Parole Officer II at the TDCJ Price Daniel Unit; Phillip Doughty, Assistant Regional Parole Supervisor; M. Cribbs, Sergeant at the TDCJ Price Daniel Unit; Cynthia Callaway, Counsel Substitute II at the TDCJ Price Daniel Unit; Randy Lewis, Captain at the TDCJ Price Daniel Unit; Wilhelmenia Howard, Senior Warden at the TDCJ Price Daniel Unit; Manual Peralta, Assistant TDCJ Grievance Administrator; and Wayne Scott, Executive Director for the TDCJ-ID. He states that he is suing each defendant in both his official and individual capacities.
"The Eleventh Amendment bars claims against a state brought pursuant to 42 U.S.C. § 1983" unless the state has expressly consented to the suit. Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). A court may find that the state has consented to be sued or waived its Eleventh Amendment immunity "only where stated `by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Sherwinski v. Peterson, 98 F.3d 849, 852 (5th Cir. 1996) (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). Thus, "[a]s an instrumentality of the state [of Texas], the TDCJ is immune from a suit for money damages under the Eleventh Amendment." Talib v. Gilley, 138 F.3d at 213.
"The Eleventh Amendment also bars a suit against a state official `when the state is the real, substantial party in interest.'" Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d at 1054 (quoting Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984) (internal citations omitted)). Because "[s]uits against state officials in their official capacity are considered to be suits against the individual's office," they "are generally barred as suits against the state itself . . ." Wallace v. Texas Tech University, 80 F.3d 1042, 1047 n. 3 (5th Cir. 1996).
The Supreme Court, however, has carved out a limited exception to Eleventh Amendment immunity in Ex Parte Young, 209 U.S. 123 (1908). Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d at 1054. "To meet the Ex Parte Young exception, a plaintiff's suit alleging a violation of federal law must be brought against individual persons in their official capacities as agents of the state, and the relief sought must be declaratory or injunctive in nature and prospective in effect." Id. See Wallace v. Texas Tech University, 80 F.3d at 1047 n. 3 (holding that claims for prospective injunctive relief brought against state officials in their official capacities are not suits against the state). "Jurisdiction over a plaintiff's claims for future relief is appropriate only if a reasonable likelihood exists that the plaintiff will again be subjected to the allegedly unconstitutional actions." Wallace v. Texas Tech University, 80 F.3d at 1047 n. 3.
Because each of the named defendants is an employee of the Texas Department of Criminal Justice, the Court finds that Plaintiff's claims for monetary damages against the named defendants in their official capacities are barred by the Eleventh Amendment. As for Plaintiff's claims for declaratory and injunctive relief against the defendants in their official capacities, the Court also finds that Plaintiff has failed to demonstrate that there is a reasonable likelihood he will again be subjected to their allegedly unconstitutional actions because he is no longer assigned to the TDCJ Price Daniel Unit. On June 12, 2002, Plaintiff notified the Court that he has been transferred to the TDCJ Ramsey I Unit at 1100 FM 655, Rosharon, Texas.
Plaintiff had previously notified the Court on May 16, 2001, that he had been transferred from the Price Daniel Unit to the TDCJ Stevenson Unit at 1525 FM 766, Cuero, Texas.
Plaintiff's claims against the named defendants in their individual capacities are not barred by the Eleventh Amendment.
1. Disciplinary Proceedings
Plaintiff first complains that Defendants Sheppard, Woodard, Doughty, and Cribbs filed a false disciplinary case against him on July 30, 1999, at the TDCJ Price Daniel Unit in retaliation for his exercising his right to speak freely. He also complains that Defendant Lewis denied him due process at the disciplinary hearing on August 2, 1999, and Defendant Callaway's performance as counsel substitute at the hearing was constitutionally deficient.
To bring a claim based on the filing of a false disciplinary charge under § 1983, 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)). Furthermore, the prisoner may not collaterally attack the procedures used in his prison disciplinary hearing under § 1983 until he demonstrates 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)).
Plaintiff advised the Court in his amended complaint that both of his administrative grievances challenging the prison disciplinary proceeding had been denied and that Defendant Scott had also refused to reconsider the disciplinary proceeding. Plaintiff further conceded at the Spears hearing that his disciplinary case had not been overturned or called into question by a federal court's issuance of a writ of habeas corpus. Accordingly, Plaintiff's complaint regarding the false disciplinary case and the denial of due process at the disciplinary hearing should be dismissed with prejudice until he can demonstrate that the disciplinary proceeding has been declared invalid.
2. Retaliation
Plaintiff complains that Defendants Sheppard, Woodard, Doughty, and Cribbs filed the disciplinary case in retaliation for his commenting on Defendant Woodard's performance as a parole officer. When a prisoner claims that he was assigned a false disciplinary case in retaliation for the exercise of a constitutional right, he does not have to show that the disciplinary case has been overturned or called into question to state a claim for retaliation under § 1983. Woods v. Smith, 60 F.3d at 1165. "An action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate." Id.
To state a claim for retaliation under § 1983, a prisoner must demonstrate (1) the invocation of a constitutional right; (2) a defendant's intent to retaliate against the prisoner for his exercise of that right; (3) a retaliatory adverse act; and (4) causation; i.e., but for the retaliatory motive, the complained of incident would not have occurred. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). The prisoner must "produce direct evidence of motivation or, the more probable scenario, `allege a chronology of events from which retaliation may plausibly be inferred.'" Woods v. Smith, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)). Thus, a prisoner must demonstrate more than his "mere personal belief" that he was the victim of retaliation. Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). "To assure that prisoners do not inappropriately insulate themselves from disciplinary actions by drawing the shield of retaliation around them, trial courts must carefully scrutinize these claims." Woods v. Smith, 60 F.3d at 1166.
The Court has carefully examined Plaintiff's pleadings and the grievances he filed regarding the disciplinary proceeding but finds that he has failed to allege any facts to support his claim of a retaliatory motive. See Whittington v. Lynaugh, 842 F.2d 818, 819 (5th Cir. 1988) ("It is a virtual truism that any prisoner who is the subject of an administrative decision that he does not like feels that he is being discriminated against for one reason or another, such as the past filing of a grievance . . ." Moreover, Plaintiff never mentioned retaliation in his administrative grievances and therefore has failed to properly exhaust this complaint. See 42 U.S.C.A. § 1997e (Supp. 2000) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001) (holding that § 1997e mandates exhaustion of prison administrative remedies "irrespective of the forms of relief sought and offered through [the] administrative avenues").
Finally, the Court notes that Plaintiff has failed to demonstrate that either he had a constitutional right to make the statements he was disciplined for, see Part 3, infra, or, but for the Defendants' retaliatory motive, he would not have been given the disciplinary case.
3. First Amendment Claim
Plaintiff next complains that his First Amendment right to freely express himself has been unconstitutionally abridged by the prison authorities' reading his letters to a parole officer and prosecuting him for a violation of prison rules pursuant to statements in the letters. Specifically, in case no. 990361801 Plaintiff was charged with threatening
to inflict harm on Christi Woodard, Daniel Parole Officer II, in that said offender sent threatening magazine clippings indicating in highlighted areas bodily harm done to security personnel by paroled offenders along with a letter stating that "I am enclosing clippings of articles so that I can point out the very fact that parole interviewer should realize the importance of conducting a fair and proper interview."
The charging officer, Defendant Cribbs, stated in the offense report that Plaintiff wrote a letter to the Unit Parole Counselor Mrs. Fairy Eicke, but when the letter was delivered on July 29, 1999, Mrs. Eicke was out of town so Defendant Sheppard opened the letter to see if it contained time sensitive material. The letter stated that Plaintiff did not feel that Defendant Woodard had conducted his parole interviews properly and "most of the individuals which she interviews for parole will one day be released back into society. Who know? One of these individuals might even become her neighbor." The letter contained clippings describing an offender who assaulted and murdered a state employee after he had been released to parole. Plaintiff argues that he had a constitutional right to freely express himself and bring about "non-violent change concerning the improper and unfair parole reviews which existed, and still do exist at the Price Daniel Unit."
"The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125 (1977). "In the First Amendment context, . . . some rights are simply inconsistent with the status of a prisoner or `with the legitimate penological objectives of the corrections system.'" Shaw v. Murphy, 532 U.S. 223, 229 (2001). Thus, a prison inmate does not have an unlimited right to speak when and where he might so desire or to speak about any topic. The Supreme Court has "adopted a unitary, deferential standard for reviewing prisoners' constitutional claims: `[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'" Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
To determine whether the regulation is valid, a court should consider:
(1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it;
(2) whether there are alternative means of exercising the rights that remain open to the inmates;
(3) the impact that accommodation of the asserted constitutional rights will have on other inmates, guards, and prison resources; and
(4) the presence or absence of ready alternatives that fully accommodate the prisoner's rights at de minimis cost to valid penological interests.Chriceol v. Phillips, 169 F.3d 313, 316 (5th Cir. 1999) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 350-52 (1987)). "Because a prison administrator's decisions and actions in the prison context are entitled to great deference from the courts, the burden of proving reasonableness is a light burden." Elliott v. Lynn, 38 F.3d 188, 191 (5th Cir. 1994).
"The `normal activity' to which a prison is committed — the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence — necessarily requires that considerable attention be devoted to the maintenance of security." Pell v. Procunier, 417 U.S. 817, 826-27 (1974). Thus, security of both inmates and prison employees is a valid penological goal. Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995). "Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Whitley v. Albers, 475 U.S. 312, 321-2 (1986). It is unquestionable that threats of physical harm, even implied threats of physical harm, by inmates against TDCJ personnel or other inmates would be disruptive to institutional security.
Moreover, TDCJ inmates are clearly instructed in the Offender Orientation Handbook (1997) that "[a]ll general correspondence shall be subject to the right of inspections . . . ." The inmates are also advised that an outgoing or incoming letter may be disapproved for mailing or receipt if the "letter contains threats of physical harm against any person or place or threats of criminal activity," or if it "contains information which, if communicated, would create a clear and present danger of violence or physical harm to a human being."
Plaintiff does not argue or show that he was prohibited or punished from expressing his dissatisfaction with his parole interviews or criticizing the parole officer and his techniques. The record clearly shows that he was punished for threatening the parole officer with bodily harm if the officer did not improve his interviewing techniques. Plaintiff has failed to demonstrate that the prohibition against threatening bodily harm was an unreasonable restriction on his constitutional right to free speech. Furthermore, because he cannot show that he had a constitutional right to threaten or imply a threat of bodily harm to the parole officer, Plaintiff cannot show that the disciplinary case was imposed in retaliation for the exercise of a constitutional right. See Johnson v. Rodriguez, 110 F.3d at 313 n. 19 ("Unless the complained-of action[, that is, the disciplinary case,] would not have taken place `but for' the retaliatory animus, then [a] retaliation claim has not been made out.").
4. Conspiracy
Plaintiff next alleges that "all the defendants conspired collectively, willfully, knowingly, wantonly, arbitrarily, and capriciously in order to retaliate against [him] solely because [he] attempted to bring about non-violent change concerning the improper and unfair parole reviews which existed . . ."
To establish a conspiracy claim cognizable under § 1983, a prisoner must demonstrate (1) an agreement between persons acting under color of law to commit an illegal act, and (2) an actual deprivation of the prisoner's constitutional rights in furtherance of the conspiracy. Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). Conclusory allegations of conspiracy will not support a claim under § 1983. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). Plaintiff has failed to support his allegations of conspiracy with any facts demonstrating an agreement between the defendants to retaliate against him for exercising his constitutional rights. See Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1992) (holding that a civil rights claim of conspiracy must include allegations of specific operative facts).
To the extent that Plaintiff also complains that his grievances were unconstitutionally denied because of a conspiracy, the Court also finds that his claims are wholly conclusory and without merit.
For the reasons stated above, the Court finds that:
(1) Plaintiff's Motion to Amend (Dkt. # 16) should be granted and the Amended Complaint filed.
(2) Plaintiff's claims against Defendants Sheppard, Woodard, Doughty, Cribbs, Callaway, Lewis, Howard, Peralta, and Scott in their official capacities should be dismissed with prejudice.
(3) Plaintiff's complaint about the disciplinary case filed on July 30, 1999, at the TDCJ Price Daniel Unit lacks an arguable basis in the law and should be dismissed as frivolous with prejudice to its being asserted again until the Heck conditions are met. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) ("[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, [footnote omitted] a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.").
(4) Plaintiff's complaints about the First Amendment, retaliation, and conspiracy should be dismissed with prejudice as frivolous and for failure to state a claim upon which relief can be granted.
Judgment shall be entered accordingly.
All motions not previously ruled on are hereby denied.
This dismissal shall count as a qualifying dismissal under the Prison Litigation Reform Act and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
The dismissal of Plaintiff's complaint does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed.
Plaintiff is advised that if he appeals this Order, he shall be required to pay the appeal fee of $105.00 pursuant to the Prison Litigation Reform Act, and he must submit an application to proceed in forma pauperis and a certified copy of his 6-month Certificate of Inmate Trust Account along with his notice of appeal.
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.