Anderson v. Cerliano et al

Filing 21

MEMORANDUM AND OPINION, and ORDER OF DISMISSAL re 1 Complaint filed by DeWayne Anderson. ORDERED that the civil rights complaint is DISMISSED with prejudice. All motions not previously ruled on are DENIED. Signed by Magistrate Judge Judith K. Guthrie on 4/12/2010. (gsg)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS T Y LE R DIVISION

D E W A Y N E ANDERSON, #1567655 VS. M A X E Y CERLIANO, ET AL.

§ § § C IV IL ACTION NO. 6:09cv569

M E M O R A N D U M OPINION AND O R D E R OF DISMISSAL P lain tiff DeWayne Anderson, a Texas prison inmate previously confined in the Gregg County Jail, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit p u rsu an t to 42 U.S.C. § 1983. The complaint was transferred to the undersigned with the consent of th e parties pursuant to 28 U.S.C. § 636(c). T h e original complaint was filed on December 24, 2009. On March 30, 2010, the Court co n d u cte d an evidentiary hearing, in accordance with Spears v. McCotter, 766 F.2d 179 (5th Cir. 1 9 8 5 ) , to consider the Plaintiff's claims. The Defendants were in attendance at the hearing. The P lain tiff and Defendant Lt. William Ray Jennings, Jr., testified during the hearing. The Defendants also submitted documentary evidence consisting of the Gregg County Jail records regarding the P lain tiff while he was incarcerated there in 2008. T h e Plaintiff was arrested for possession of marijuana and confined in the Gregg County Jail o n January 25, 2008. On March 26, 2008, he pled out for time served. He was not, however, released o n that day. He observed Defendant Jennings and an unidentified warrant officer talking in the co u rtro o m . Apparently a parole revocation warrant, also known as a Blue Warrant, showed up on the co m p u ter on NCIC, which is the abbreviation for the National Crime Information Center. He was thus

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kept in jail. Defendant Sgt. Weatherall investigated the matter. It was discovered that the Parole B o ard had discharged him on August 20, 2007. The Blue Warrant was lifted, and the Plaintiff was released . He complained that he was unnecessarily kept in jail one extra day. W h en asked why he was suing the Defendants for being kept in jail one extra day, the Plaintiff n o ted that he started filing grievances upon his arrival at the jail. One of his grievances included a sarcastic comment about Defendant Jennings. He believes that Jennings and the unidentified warrant o fficer conspired against him in retaliation for the grievances by keeping him in jail. O n August 1, 2008, the Plaintiff was arrested pursuant to the Blue Warrant. He testified that th is was the same warrant that had been previously lifted because he had discharged his parole. He w as kept in the Gregg County Jail until September 5, 2008. He added that the arrest was suspicious b ecau se he had been stopped by an officer in May and was informed that there were no outstanding w arran ts on him. He suspected that Lt. Jennings and the warrant officer had the Blue Warrant placed b ack on NCIC. Sgt. Weatherall investigated the matter again. The Plaintiff testified that Sgt. W eath erall obtained assistance from his wife, who was a higher ranking parole officer. She sent O fficer Perkins to see him. Officer Perkins told him that he "must have made someone mad because h e ain't my officer, [and] he couldn't find my file in the parole office." It was again discovered that th e Blue Warrant had been lifted, and he was released. The Plaintiff alleged that Lt. Jennings made all of this happen in retaliation to the grievances he filed. The Plaintiff testified that he sued Sheriff Cerliano because he wrote to him about the problems an d did not receive an answer. He admitted that Defendant Weatherall helped him, but he sued W eath erall because he knew that the Blue Warrant had been lifted but he was kept in jail until S ep tem b er 5, 2008.

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When questioned by the Defendants, the Plaintiff admitted that he was arrested by the Lo n gv iew Police Department on August 1, 2008. He was told at that time that there was a warrant lo d ged against him by the State of Texas. None of the Defendants were involved in this matter. He ad m itted that county officials do not have any control over the Parole Board issuing a Blue Warrant, b u t he added that they could have placed a warrant in the computer. The Plaintiff asserted that Jen n in gs persuaded the unidentified warrant officer to place the Blue Warrant in the computer. He ad m itted that Jennings never told him that he placed warrants in the computer. His belief that Jennings w as responsible was based on common sense. He agreed that his belief was based on supposition, as o p p o sed to direct evidence. He also admitted that when he contacted his parole officer in May of 2008, h e was told that his parole was not yet over. He did not, however, go in to see his parole officer. W h en questioned again by the Court, the Plaintiff testified that Lt. Phillips contacted him on S ep tem b er 1, 2008. Lt. Phillips investigated the matter, and the Plaintiff was released a few days later. The Defendants submitted the Plaintiff's jail records to the Court. The Plaintiff indicated that th e Court could review the records. Defendant Jennings was the sole person called to testify by the D efen d an ts. Jennings testified that the Gregg County Jail consists of three facilities. He is the North F acility Administrator. On August 1, 2008, the Longview Police Department called him to confirm th at there was a Blue Warrant. Jennings testified that the warrant was on the computer. He did not p u ll up the actual warrant. He added that he had no other involvement with the Plaintiff. The Plaintiff w as confined at the North Facility. Lt. Phillips is the administrator of that facility. Jennings testified th at he does not know what happened to the Blue Warrant. He cannot get into a NCIC computer. He n o ted that the Sheriff's Department can place a county warrant in the computer on NCIC but not a state w a rra n t.

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When questioned by the Court, Jennings testified that his involvement with the grievance p ro cess is limited to appeals. He had no knowledge of the Plaintiff filing grievances in February of 2 0 0 8 . He had no knowledge of any parole revocation hearings. Facilities are made available to the P aro le Board upon request for parole revocation proceedings. County personnel have no say as to w h eth er a parole should be revoked. He testified that he does not recall escorting the Plaintiff to court in March of 2008. He does not recall talking to a warrant officer. He does not have the authority to p lace a warrant on someone. He finally testified that the local warrant officer does not have the au th o rity to place a Blue Warrant in NCIC. T h e Court has reviewed the jail records. The records included an arrest report, dated January 2 5 , 2008, which showed that the Plaintiff was arrested for three drug related offenses. A copy of the B lu e Warrant was included in the jail records. It revealed that the warrant was issued on March 30, 2 0 0 7 . A grievance, dated February 17, 2008, accused Jennings of placing bogus warrants on him. The resp o n se was signed by jailers other than Jennings. The Court did not find any grievances with a resp o n se actually signed by one of the Defendants. The records included a Refusal of Prosecution fo rm signed by Assistant District Attorney Joe C. Hall, dated March 26, 2008, because the Plaintiff h ad pled guilty in 2008-0534 and was sentenced to 180 days jail time. On the same day, the Board of P ard o n s and Paroles confirmed that a warrant was outstanding. The records also confirmed that he w as released on March 27, 2008. T h e Booking Sheet from August 1, 2008, confirmed that the Plaintiff was arrested by the Lo n gv iew Police Department pursuant to a Blue Warrant. A copy of a teletype message from S. Jen k in s, Director of the Parole Division, dated August 1, 2008, confirmed that a Blue Warrant was issu ed on March 30, 2007. Both the Longview Police Department and the Gregg County Sheriff's D ep artm en t were instructed to detain the Plaintiff and that a warrant would follow.

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In discussing the Plaintiff's various claims, the Court initially notes that federal courts are co u rts with limited jurisdiction having subject matter jurisdiction only over those matters specifically d esign ated by the Constitution or Congress. Johnson v. United States, 460 F.3d 616, 621 n.6 (5th Cir. 2 0 0 6 ). The Supreme Court has held that many acts that might constitute a violation of state tort law d o not amount to federal violations. Baker v. McCollan, 443 U.S. 137, 146 (1979). See also Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988). In this Circuit, before a plaintiff may maintain a civil righ ts lawsuit, he must show an abuse of governmental power that rises to a constitutional level. Love v. King, 784 F.2d 708, 712 (5th Cir. 1986); Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980), cert. denied, 451 U.S. 1019 (1981). The first claim by the Plaintiff that should be considered concerns allegations of being im p ro p erly confined in the jail. He complained that he was kept in jail an extra day in March of 2008 an d then again in jail from August 1, 2008 to September 5, 2008. The Fifth Circuit examined the state o f the law on false imprisonment in Sanchez v. Swyden, 139 F.3d 464 (5th Cir. 1998). The Fifth C ircu it made the following observations: In Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), the Supreme C o u rt held that the detention of an individual for three days on the basis of a facially valid arrest warrant did not amount to a deprivation of liberty without due process of law - despite th e individual's protestations of innocence. Id. at 143-45, 99 S.Ct. at 2693-95; see also D o uthit v. Jones, 619 F.2d 527, 532 (5th Cir. 1980). The Court reasoned that officials charged w ith maintaining custody of the accused named in a warrant are not required by the C o n stitu tio n to perform an error-free investigation of a claim of innocence. Id. at 145-46, 99 S .C t. at 2695. "The Constitution does not guarantee that only the guilty will be arrested," for " [i]f it did," reasoned the Court, "§ 1983 would provide a cause of action for every defendant acq u itted - indeed, for every suspect released." Id. at 145, 99 S.Ct. at 2695. The Court co n clu d ed that the three-day detention did not amount to a violation of the plaintiff's co n stitu tio n al right to due process. Id. 1 3 9 F.3d at 468. The Fifth Circuit held that jail officials were not liable when they held a defendant p u rsu an t to a valid arrest warrant even though the defendant consistently asserted his innocence. Id. at 469. A defendant alleging false imprisonment must establish that an official's actions went beyond

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mere negligence before an illegal detention takes on constitutional dimensions sufficient to state a claim . Id. T h e Fifth Circuit's most recent pronouncement on this issue was in Birdwell v. Livingston, 327 F ed . Appx. 457 (5th Cir. 2009), which originated in this Court. Birdwell was stopped on a minor traffic offense and arrested pursuant to a warrant issued by the TDCJ-Parole Division. The warrant w as based on a conviction that had been previously vacated. This Court concluded that there was p ro b ab le cause for the arrest based on the warrant and that Birdwell did not have a basis for a cause o f action even though the information known to the TDCJ-Parole Division ultimately proved to be in co rrect. In affirming the decision, the Fifth Circuit held that county officials cannot be held liable fo r holding someone pursuant to a facially valid state warrant and for being allegedly negligent in failin g to discover earlier his state conviction had been vacated. Id. at 459. Birdwell failed to satisfy th e higher standard requiring him to show that county officials held him even though they knew that th e detention was erroneous. Id. at 459-60. The Fifth Circuit added that his attempt to hold su p erv iso ry officials liable through vicarious liability was unavailing. Id. at 460 (citing Rios v. City o f Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006)). In the present case, the Plaintiff was held one extra day in March of 2008 and from August 1, 2 0 0 8 through September 5, 2008 because of a facially valid Blue Warrant. On both occasions, the P aro le Board confirmed that they wanted him. The facts as alleged and developed do not show that an y of the Defendants held him in custody despite having knowledge that he should not be in custody. The false imprisonment claim fails to state a claim upon which relief may be granted and is frivolous in that it lacks any basis in law and fact. It should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). T h e Plaintiff also alleged that an unidentified warrant officer placed the Blue Warrant on him. His claim was based on speculation. In order to state a civil rights claim cognizable under 42 U.S.C.

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§ 1983, a plaintiff must allege facts to support his broad allegations. See Vinson v. Heckmann, 940 F .2 d 114, 115 (5th Cir. 1991); Wesson v. Oglesby, 910 F.2d 278, 280 (5th Cir. 1990). Conclusory allegatio n s are insufficient. R.A.M. Al-Raid v. Ingle, 69 F.3d 28, 32 (5th Cir. 1995). The claim fails to state a claim upon which relief may be granted and is frivolous in that it lacks any basis in law and fact. It should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). The Plaintiff also claimed that he was the victim of constant harassment. Verbal harassment, w ith o u t more, does not amount to a constitutional violation. Bender v. Brumley, 1 F.3d 271, 274 n.4 (5 th Cir. 1993). In Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002), the Fifth Circuit held that v erb al abuse and requiring an inmate to beg for food did not provide a basis for an actionable claim u n d er § 1983. The Fifth Circuit made the following statement about officials threatening or harassing a plaintiff: [I]n the Eighth Amendment context, our circuit has recognized as a general rule that "mere th reatenin g language and gestures of a custodial officer[r] do not, even if true, amount to co n stitu tio n al violations". McFadden, 713 F.2d at 146 (quoting Coyle v. Hughs, 436 F. Supp. 5 9 1 , 593 (W.D. Okla. 1977); accord Johnson v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir.) (the u se of words, no matter how violent, does not comprise a § 1983 violation), cert. denied, 414 U .S . 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Collins v. Cundy, 603 F.2d 825, 827 (10th C ir. 1979) (verbal harassment consisting of sheriff's threat to "hang" prisoner does not state co n stitu tio n al deprivation under § 1983). R o b ertso n v. Plano City of Texas, 70 F.3d 21, 24 (5th Cir. 1995). The harassment claim fails to state a claim upon which relief may be granted and is frivolous in that it lacks any basis in law and fact. It sh o u ld be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). The Plaintiff also alleged that he was the victim of discrimination. The Equal Protection C lau se commands that no State shall "deny to any person within its jurisdiction the equal protection o f the laws," which is essentially a direction that all persons similarly situated should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Plyler v. Doe, 457 U.S. 202, reh. d en ied , 458 U.S. 1131 (1982). To succeed in an equal protection claim, a plaintiff must allege facts

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showing purposeful discrimination resulting in a discriminatory effect among persons similarly situ ated . McCleskey v. Kemp, 481 U.S. 279 (1987); Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th C ir. 1992). "Discriminatory purpose in an equal protection context implies that the decisionmaker selected a particular course of action at least in part because of, and not simply in spite of, the adverse im p act it would have on an identifiable group." Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995) (citin g United States v. Galloway, 951 F.2d 64, 65 (5th Cir. 1992)). A plaintiff must allege specific acts supporting a claim of discrimination, as opposed to his personal belief that discrimination played a part in the situation. Id. T h e Plaintiff has not alleged any facts showing that he was the victim of discrimination. He h as not alleged any facts showing that one or more Defendants took a particular course of action again st him because he was a member of an identifiable group. The discrimination claim is

co n clu so ry. It fails to state a claim upon which relief may be granted and is frivolous in that it lacks an y basis in law and fact. It should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). The Plaintiff's final claim is retaliation. To state a valid claim for retaliation under section 1 9 8 3 , a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate again st the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation. McDonald v. Stewart, 132 F.3d 225, 231 (5th Cir. 1998); Jones v. Greninger, 188 F.3d 322, 324-25 (5 th Cir. 1999). Officials may not retaliate against an inmate for using the grievance system. Jackson v. Cain, 864 F.2d 1235, 1249 (5th Cir. 1989). A plaintiff must allege facts showing that the defendant p o ssessed a retaliatory motive. See Whittington v. Lynaugh, 842 F.2d 818, 820 (5th Cir. 1988); Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1193 (5th Cir. 1985). He must allege more th an his personal belief that he was the victim of retaliation. Johnson v. Rodriguez, 110 F.3d 299, 310 ( 5 th Cir.), cert. denied, 522 U.S. 995 (1997); Jones v. Greninger, 188 F.3d at 324-25. Mere

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conclusory allegations of retaliation are not enough. Moody v. Baker, 857 F.2d 256, 258 (5th Cir. 1 9 8 8 ). Moreover, he must show that "but for" a retaliatory motive, the defendants would not have en gaged in the action. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied, 516 U.S. 1 0 8 4 (1996). A plaintiff must produce direct evidence of motivation or allege a chronology of events fro m which retaliation may plausibly be inferred. Id. Finally, the retaliatory adverse act must be more th an a de minimis act. Morris v. Powell, 449 F.3d 682 (5th Cir. 2006), cert. denied, 549 U.S. 1038 (2 0 0 6 ). In the present case, the Plaintiff alleged that he was improperly held in custody because Jen n in gs retaliated against him for filing grievances. The claim is speculative and conclusory. He was u n ab le to show that Jennings or any of the Defendants knew about his grievances. He cannot show th at any of the Defendants were personally responsible for keeping him in custody. Moreover, in light o f the facially valid Blue Warrant, the Plaintiff cannot show that "but for" a retaliatory motive, the D efen d an ts would not have held him. The retaliation claim fails to state a claim upon which relief may b e granted and is frivolous in that it lacks any basis in law and fact. It should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). It is therefore O R D E R E D that the civil rights complaint is DISMISSED with prejudice pursuant to 28 U .S .C . § 1915A(b)(1). All motions not previously ruled on are DENIED.

So ORDERED and SIGNED this 12 day of April, 2010.

____________________________ JUDITH K. GUTHRIE UNITED STATES MAGISTRATE JUDGE

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