Ray v. Livingston, TDCJ

Filing 35

ORDER ADOPTING 30 INITIAL REPORT AND RECOMMENDATIONS and Granting 15 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by FNU Harrison and 19 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Bra d Livingston ORDERING that plaintiffs claims against these defendants are Dismissed without Prejudice. Dismissal of these claims and parties have no effect upon the remaining claims and parties in this case. D. Merchant, FNU Harrison (Captain Jacob Harrison) and Brad Livingston are now terminated.. Signed by Judge Robert W. Schroeder, III on 6/7/2016. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JERREMY RAY

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v.

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BRAD LIVINGSTON, ET AL.

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CIVIL ACTION NO. 5:15cv141

MEMORANDUM ADOPTING INITIAL REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DISMISSING DEFENDANTS HARRISON, LIVINGSTON, AND MERCHANT
The Plaintiff Jerremy Ray, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights in the Texas Department of
Criminal Justice, Correctional Institutions Division. This Court referred the case to the United States
Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption
of Local Rules for the Assignment of Duties to United States Magistrate Judges. This Order
concerns the Magistrate Judge’s Initial Report discussing Plaintiff’s claims against Warden Dawn
Merchant as well as the motions to dismiss filed by the Defendants Captain Jacob Harrison and
TDCJ Director Brad Livingston.
I. Background
Plaintiff’s amended complaint asserts he was improperly excluded from five disciplinary
hearings, resulting in the loss of good time and classification status. These disciplinary cases also
went on his record, which affected his parole review.
Plaintiff stated Warden Merchant was the overseeing official on the unit but showed
deliberate indifference by not taking control of the situation and taking action to provide justice. She
violated his due process rights by agreeing to his placement in administrative segregation which
stopped his educational classes and agreed with the finding of guilt by the disciplinary captain.
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According to Plaintiff, Brad Livingston is the executive director of TDCJ but refused to take
corrective action after these problems were brought to his attention. Plaintiff asserts Livingston is
responsible for the actions and wrongdoing of his officers. Plaintiff explains he is suing Livingston
solely in his official capacity. The only allegation originally made by Plaintiff against Captain
Harrison reads “civil rights - retaliation.” In later pleadings, Plaintiff states Harrison charged him
with the disciplinary offense of making a false statement during an official investigation. He was
convicted on this charge and received punishments of 15 days of cell and recreation restriction, 45
days of commissary restrictions, reduction in classification status from Line Class II to Line Class
III, and the loss of 15 days of good time credits. Plaintiff did not allege and his documentary
evidence did not show he was excluded from the hearing in this case.
II. The Magistrate Judge’s Report and the Parties’ Objections
After review of the pleadings, including the motions to dismiss filed by Harrison and
Livingston as well as Plaintiff’s responses to these motions, the Magistrate Judge issued a Report
recommending the claims against Harrison, Livingston, and Merchant be dismissed.
In his objections, Plaintiff argues Warden Merchant is personally involved because by
signing off on his grievances, she was made aware of all of the situations, but showed deliberate
indifference through her failure to act. This objection lacks merit because Plaintiff does not have
a constitutionally protected liberty interest in having grievances resolved to his satisfaction, meaning
there is no violation of due process when prison officials fail to do so. Geiger v. Jowers, 404 F.3d
371, 373-74 (5th Cir. 2005).
Plaintiff next states he made several repeated attempts to contact Livingston, but Livingston
refused to respond or take any action to correct the unconstitutional actions being taken. Plaintiff
states Livingston is supposed to take action in his official capacity when a situation cannot be
handled at the unit level or through the grievance procedure. Livingston’s failure to take the action
Plaintiff believed appropriate is not a constitutional violation. Id. Plaintiff’s objection in this regard
is without merit.
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Plaintiff maintains Harrison contradicted himself and lied in the disciplinary hearing. As the
Magistrate Judge concluded, Plaintiff had an adequate state procedural remedy to challenge the
allegedly false disciplinary case. Collins v. King, 743 F.2d 248, 253-54 (5th Cir. 1984). Even if the
disciplinary hearing officer erred by believing Harrison rather than Plaintiff, this does not amount
to a constitutional violation. See McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983). Plaintiff’s
objections are without merit.
Defendants also object to the Report, asserting the recommendation of dismissal should be
with prejudice rather than without prejudice. As a general rule, a motion to dismiss under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim tests only the formal sufficiency of the statements of
claims for relief and is not a procedure for resolving contests about the facts or merits of the case.
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In light of this
principle, and given Plaintiff’s pro se status, the Court has determined dismissal without prejudice
is appropriate. It is accordingly
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ORDERED the parties’ objections are OVERRULED and the Report of the Magistrate
Judge (docket no. 30) is ADOPTED as the opinion of the District Court. It is further
ORDERED the motions to dismiss filed by the Defendants Captain Jacob Harrison (docket
no. 15) and Brad Livingston (docket no. 19) are GRANTED and the Plaintiff’s claims against these
Defendants are DISMISSED without prejudice. It is further
ORDERED the Plaintiff’s claims against Warden Dawn Merchant are DISMISSED without
prejudice. The dismissal of these claims and parties shall have no effect upon the remaining claims
and parties in the case.
SIGNED this 7th day of June, 2016.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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