Bogus v. Davis et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 47 Report and Recommendations. The Court hereby OVERRULES 51 Plaintiff's objections. Signed by District Judge Jeremy D. Kernodle on 6/4/2021. (efarris, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BRETT DAVID BOGUS,
LORIE DAVIS, et al.,
Case No. 6:19-cv-278-JDK-KNM
ORDER ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Brett David Bogus, a Texas Department of Criminal Justice inmate
proceeding pro se, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983. The
case was referred to United States Magistrate Judge K. Nicole Mitchell for findings
of fact, conclusions of law, and recommendations for disposition.
Plaintiff’s amended complaint raised several claims, including that various
Defendants denied him access to legal materials and the courts, retaliated against
him for filing grievances, inflicted physical and emotional distress, failed to properly
investigate his grievances, wrongly denied his grievances, cyberstalked him, forged a
mail receipt on his behalf, and conspired against him.
Docket No. 32.
March 9, 2021, Judge Mitchell issued a Report recommending that the Court dismiss
all of Plaintiff’s pending claims except his claim that Defendant Andrew Ginsel
removed Plaintiff’s medically unassigned status in retaliation for grievances Plaintiff
had filed. Docket No. 47 at 20. Plaintiff objected to this Report. Docket No. 51.
Where a party timely objects to the Report and Recommendation, the Court
reviews the objected-to findings and conclusions of the Magistrate Judge de novo. 28
U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire
record and makes an independent assessment under the law. Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other
grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from
ten to fourteen days).
Plaintiff raises several points in his objections.
First, Plaintiff argues that he has shown a genuine dispute as to a material
fact and must merely provide notice that a cause of action probably or potentially
exists to state a claim. Docket No. 51 at 1–2. But the case law Plaintiff cites in
support of this argument concerns causes of action for legal negligence under
Mississippi law. The Magistrate Judge correctly set out the standards for stating a
claim under Federal Rule of Civil Procedure 8 and Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Accordingly, this objection is without merit.
Second, Plaintiff argues that he did not receive approximately fifteen percent
of the legal materials he requested, which prejudiced him on his direct appeal and
petition for discretionary review in state courts. Docket No. 51 at 3. But Plaintiff
does not elaborate on this conclusory claim of actual injury. A review of court records
shows that in Plaintiff’s direct appeal, counsel filed an Anders brief and Plaintiff filed
a pro se brief. The appellate court concluded that the appeal was “wholly frivolous
and without merit.”
Bogus v. State, No. 14-15-832-CR, 2017 WL 1366674 (Tex.
App.—Houston [14th Dist.] Apr. 13, 2017, pet. ref’d). His petition for discretionary
review argued that the Anders brief was erroneous and that constitutional, plain,
reversible, and structural errors existed in the record. The Court of Criminal Appeals
refused his petition for discretionary review on March 7, 2017. Bogus v. State, No.
PD-0657-17 (Tex. Crim. App. Mar. 7, 2017). Based on this record, Plaintiff offers
nothing to show an injury in fact resulting from the purported denial of legal
materials. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis v. Casey, 518
U.S. 343, 351 (1996). Accordingly, this objection is without merit.
Third, Plaintiff’s objections reiterate the allegations of his complaint.
Specifically, Plaintiff asserts that the law library created “new rules” specifically to
impede his access and that Officer Ricky Minton wrote him a false disciplinary case.
Docket No. 51 at 3–4. He also complains that Minton swore at him in the dorm
because Plaintiff continued to complain about him. Id. at 5. Plaintiff argues that
TDCJ has failed to adequately investigate his complaints. Id. However, Plaintiff
does not controvert the Magistrate Judge’s determination that he did not show
constitutionally cognizable harm and that he has no liberty interest in having
complaints investigated to his satisfaction. Although he argues that he has a liberty
interest in due process and equal protection and the failure to investigate his
grievances are an “act of omission” that is “actionable to the same extent as an act of
commission,” this contention lacks any basis in law. Geiger v. Jowers, 404 F.3d 371,
373–74 (5th Cir. 2005); see also Cole v. Abbott, 91 F.App’x 936 (5th Cir. 2004) (no
state-created liberty interest in grievance procedure).
objection on this point is without merit.
Fourth, Plaintiff complains that TDCJ’s law library policies—which allow
three items of legal research material three times per week—constitutes a denial of
access to court. Docket No. 51 at 7. As the Magistrate Judge observed, however,
Plaintiff has failed to show any harm resulting from this alleged denial. See Lockamy
v. Dunbar, 399 F. App’x 953 (5th Cir. 2010), citing Christopher, 536 U.S. at 415. His
conclusory allegation that the claimed denial of access to court “prevent[ed] success
on direct appeal” is insufficient to show actual harm. Accordingly, this objection is
Fifth, Plaintiff states that he filed grievances referring to Defendants SpearsHollis, Mitchell, Karnes, and Yancy’s failure to protect him from “intentional
conduct.” Docket No. 51 at 9–10. He argues that the substantial risk was clear and
that whether Defendants had sufficient knowledge and notice is a question of fact.
The Magistrate Judge discussed Plaintiff’s deliberate indifference claims and ordered
Defendant Ginsel to answer this claim.
Beyond that, the fact that Plaintiff’s
grievances did not receive the response he believed appropriate does not show a
Geiger, 404 F.3d at 374.
Accordingly, this objection is
Sixth, Plaintiff complains of being denied medical treatment by Defendant
Michael Sizemore. Docket No. 51 at 10–12. He complains that the only medications
Sizemore will provide Plaintiff are Effexor and Cymbalta, both of which are anti-
depressants. Plaintiff also raises an argument concerning “involuntary force” in the
distribution of psychotropic medications for the first time in his objections. Id. at 12.
But Plaintiff provides no additional details.
Further, as a practice manager,
Defendant Sizemore is not a medical provider and plays no role in the provision of
medical care or the prescribing of medications. See, e.g., Tijerina v. Stanley, No. 5:16cv-102, 2019 WL 1396964 (E.D. Tex. Mar. 28, 2019); Hunt v. Pierson, No. 6:15-cv-559,
2016 WL 1357913, at *4 (E.D. Tex. Jan. 14, 2016) (citing Criollo v. Milton, 414 F.
App’x 719, 721 (5th Cir. 2011)) (affirming denial of claim against a practice manager
because there was no showing she was involved in the plaintiff’s medical care).
Plaintiff also asserts that Sizemore denied his grievance concerning medical care.
But as the Magistrate Judge correctly determined, Plaintiff has no constitutional
right to have his grievance answered to his satisfaction. Geiger, 404 F.3d at 374.
Accordingly, this objection is without merit.
Seventh, Plaintiff argues that his grievances are evidence and should be
treated as “procedural steps leading to litigation.” Docket No. 51 at 12–13. He
contends that his claims should be permitted to advance into discovery,
interrogatories, subpoenas, and appointment of counsel and an investigator. But
allegations that are conclusory or otherwise fail to state a claim upon which relief
may be granted do not “unlock the doors of discovery;” rather, the plaintiff must allege
specific facts setting out a plausible claim for relief and may not use the discovery
process to obtain these facts after filing suit. See Iqbal, 556 U.S. at 678-79; see also
Doe v. Robertson, 751 F.3d 383, 393 (5th Cir. 2014). The Magistrate Judge correctly
determined that Plaintiff adequately alleged a plausible claim for deliberate
indifference against Defendant Ginsel, and this claim will proceed. Plaintiff has not
shown that the Magistrate Judge’s recommendations concerning his other claims
should be set aside. Accordingly, this objection is without merit.
Having conducted a de novo review of the record in this case, the
Magistrate Judge’s Report, and Plaintiff’s objections, the Court has determined
that the Report of the Magistrate Judge is correct and that Plaintiff’s
objections are without merit. Accordingly, the Court hereby OVERRULES
Plaintiff’s objections (Docket No. 51) and ADOPTS the Report of the Magistrate
Judge (Docket No. 47) as the opinion of the District Court.
It is therefore ORDERED that all of the Plaintiff’s claims except for his claim
that Defendant Ginsel removed his medically unassigned status in retaliation for
grievances he had filed and required Plaintiff to work in the kitchen, resulting in
injury to Plaintiff, be dismissed without prejudice as frivolous and for failure to state
a claim upon which relief may be granted. All Defendants other than Andrew Ginsel
are DISMISSED as parties to this case.
So ORDERED and SIGNED this 4th day of June, 2021.
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE
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