Flores v. Smith et al

Filing 23

MEMORANDUM OPINION AND ORDER OF DISMISSAL. This civil rights complaint is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915A(b)(1). Signed by Magistrate Judge Judith K. Guthrie on 5/30/12. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

CHARLES DON FLORES, #999299

§

VS.

§

DEE SMITH, ET AL.

§

CIVIL ACTION NO. 9:11cv205

MEMORANDUM OPINION AND
ORDER OF DISMISSAL
Plaintiff Charles Don Flores, a prisoner confined at the Polunsky Unit of the Texas prison
system, proceeding pro se and in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C.
§ 1983. The complaint was transferred to the undersigned with the consent of the parties pursuant to
28 U.S.C. § 636(c).
Facts of the Case
The original complaint was filed on December 19, 2011. On May 17, 2012, an evidentiary
hearing was conducted, in accordance with Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to
consider Plaintiff’s claims. The hearing was conducted “to dig beneath the conclusional allegations;
to reduce the level of abstraction upon which the claims rest; to ascertain exactly what scenario the
prisoner claims occurred, as well as the legal basis for the claim.” Id. at 180. A Spears hearing is “in
the nature of a motion for more definite statement.” Id. at 180-181. Plaintiff testified as to the factual
basis of his claims. Regional Grievance Supervisor Laurie Parker, Captain Patrick Dickens and Law
Librarian Richard McKee attended the hearing and testified under oath about prison policies and
information contained in Plaintiff’s prison records.

1

Plaintiff is a death row inmate. His complaint involves the confiscation and destruction of
some of his property, which he characterized as legal property. He noted that inmates are required to
store their property in a property box that is one foot by one foot by two feet. Excess property is
subject to confiscation. Exceptions are made for legal property, and inmates may obtain a legal storage
box from the law library. The incident which is the subject of the lawsuit occurred on August 26,
2010. Plaintiff’s property that did not fit into his property box was confiscated. After administrative
review procedures were completed, the property was destroyed in May 2011.
Plaintiff testified that he had accumulated a number of law books, which helped him with legal
matters. Prison officials confiscated the books even though they were legal in nature. Captain Dickens
testified that law books are considered personal property, as opposed to legal property. Plaintiff
testified that Board Policy 03.81 specifies that legal property may include law books. He just wanted
prison officials to abide by the policy. Law Librarian McKee testified that law books belonging to an
inmate that are available in the law library are considered to be personal property, as opposed to legal
property.
Considerable amount of time was spent on the issue of harm. Plaintiff testified that he has been
on death row for thirteen years and had accumulated a lot of material that potentially could be used in
challenging his conviction. He characterized his attorneys in his state court proceedings as
incompetent. He presently has a petition for a writ of habeas corpus pending in federal court. He
stated that he received a federal attorney in 2008, which he characterized as a good attorney. He noted
that he feels that he may have a good cause of action based on ineffective assistance of habeas counsel
in light of the Supreme Court’s recent decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). He
believes that property confiscated in August 2010 could have provided help to his attorney.

2

The Court notes that Plaintiff’s habeas petition is Flores v. Quarterman, No 3:07-CV-0413-M,
which is pending in the Northern District of Texas.1 Bruce Anton of Sorrels, Udashen and Anton was
appointed to represent Plaintiff on January 23, 2007. On March 3, 2011, United States Magistrate
Judge Jeff Kaplan issued a Report and Recommendation to deny the petition for a writ of habeas
corpus. Anton filed objections on behalf of Plaintiff. The Report and Recommendation, along with
the objections, are pending before United States District Judge Barbara M. G. Lynn. On March 27,
2012, Judge Lynn issued an order directing the parties to file supplemental briefs addressing Martinez
v. Ryan. The supplemental briefs are due on or before June 1, 2012.
Discussion and Analysis
Plaintiff presented several claims in the lawsuit. The first concerns the confiscation of his
property. A state actor's negligent or intentional deprivation of a prisoner’s property does not result
in a due process violation if there exists an adequate state post-deprivation remedy. Hudson v. Palmer,
468 U.S. 517, 533 (1984) (unauthorized intentional conduct); Parratt v. Taylor, 451 U.S. 527, 535-55
(1981) (negligent conduct); Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir. 1988); Marshall v.
Norwood, 741 F.2d 761, 764 (5th Cir. 1984). Hudson specifically applied to an inmate’s claim about
the confiscation and destruction of legal property. 468 U.S. at 535. Because Texas has adequate postdeprivation remedies, a prisoner does not have a basis for a § 1983 claim for the confiscation of his
property. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994).

The Court notes, however, that the Parratt/Hudson doctrine does not bar all property claims
filed by inmates. In 1990, the Supreme Court summarized the Parratt/Hudson doctrine as follows:
“a deprivation of a constitutionally protected property interest caused by a state employee’s random,

1

The records in the case are available on Public Access to Court Electronic Records (“PACER”).

3

unauthorized conduct does not give rise to a § 1983 procedural due process claim, unless the State
fails to provide an adequate post-deprivation remedy.” Zinermon v. Burch, 494 U.S. 113, 115
(1990). The confiscation of a prisoner’s property under authority of a prison administrative directive
is not a random, unauthorized act for purposes of the Parratt/Hudson doctrine, thus the existence
of an adequate state post-deprivation remedy does not preclude a § 1983 claim for violation of due
process. Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004). On remand, the district court noted
that property was seized in accordance with TDCJ Administrative Directive 3.72. Allen v. Thomas,
No. H-02-3132, 2005 WL 2076033 at *1 (S.D. Tex. Aug. 26, 2005). The court went own to hold
that due process was satisfied in that the plaintiff was afforded ample notice and sufficient
opportunity to object to the confiscation of his property. Id. at *9. In the present case, Plaintiff was
likewise afforded ample notice and sufficient opportunity to object to the confiscation of his property.
His grievances were ultimately unsuccessful, but he was accorded his right to due process.
The Court would add that the exception to the Parratt/Hudson doctrine does not apply to the
extent that Plaintiff argued that the confiscation of his legal property violated Board Policy 03.81. An
unauthorized confiscation of his property would remove us from the situation described in Zinermon.
Also, the Fifth Circuit recently stressed the basic principle that a prison official’s failure to follow
prison policies, procedures or regulations does not constitute a violation of due process. Brewster v.
Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (citations omitted). The Court added that “constitutional
due process is satisfied because the Texas tort of conversion provides [the plaintiff] with an adequate
post-deprivation remedy.” Id. Overall, the Plaintiff’s due process claim about the confiscation of his
property fails to state a claim upon which relief may be granted and is frivolous in that it lacks any
basis in law and fact, thus the claim should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1).

4

Plaintiff’s primary claim concerns allegations of denial of access to court. Prisoners are
entitled to “a reasonably adequate opportunity to present claimed violations of fundamental rights to
the courts.” Bounds v. Smith, 430 U.S. 817, 825 (1977). Prison officials may not abridge or impair
an inmate’s right of access to court. See Ex parte Hull, 312 U.S. 546, 549 (1941); Johnson v. Avery,
393 U.S. 483, 486 (1969). “While the precise contours of a prisoner’s right of access to court remain
obscure, the Supreme Court has not extended this right to encompass more than the ability of an
inmate to prepare and transmit a necessary legal document to a court.” Brewer v. Wilkinson, 3 F.3d
816, 821 (5th Cir. 1993).
To prevail on a claim that his right of access to court has been violated, a plaintiff must
demonstrate prejudice or harm by showing that his ability to pursue a “nonfrivolous,” “arguable” legal
claim was hindered by the defendant’s actions. Christopher v. Harbury, 536 U.S. 403, 415 (2002);
Lewis v. Casey, 518 U.S. 343, 351 (1996). In Lewis v. Casey, the Supreme Court stated that an inmate
must show more than the inability to file a claim in order to succeed on an access to court claim;
instead, he must show that he would have been able to bring a nonfrivolous claim with arguable legal
merit -- he must show an actual injury. 518 U.S. at 351-53.
Several factors are relevant to the resolution of this case. First of all, Plaintiff has an attorney.
His attorney was appointed to represent him in January 2007, long before the confiscation of his
property in August 2010. He has been able to present his claims in federal court through his attorney.
It must be further noted that there is no right to hybrid representation. Pippin v. Dretke, 434 F.3d 782,
792 (5th Cir. 2005) (citing Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981)). Plaintiff
does not have a right to have pro se pleadings addressed or ruled on when he is represented by counsel.
Dean v. Smith County, Texas, 90 Fed. Appx. 75, 76 (5th Cir. 2004). Plaintiff must rely on the abilities

5

of his attorney, and he admitted that his current attorney has been doing a good job. He has not been
thwarted in his attempts to file legal documents in court.
Another factor for consideration is that Plaintiff has not shown harm. Although Plaintiff’s
petition is still pending in federal court, Magistrate Judge Kaplan was of the opinion that there was no
basis for federal habeas corpus relief.
Plaintiff’s focus on harm hinges on the possibility of relief based on Martinez v. Ryan. The
Supreme Court’s decision provided for the possibility of habeas corpus relief based on ineffective
assistance of habeas counsel in states where ineffective assistance of counsel claims must be raised
only in collateral proceedings:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
132 S.Ct. at 1320. However, a recent decision by the Fifth Circuit casts doubt on whether Martinez
v. Ryan will provide any assistance to Texas death row inmates:
Although we need not, and do not, address the impact of Martinez on the Texas habeas
landscape, we note that Texas does not require a defendant to raise an ineffective assistance
of trial counsel claim in state habeas proceedings, see Lopez v. Texas, 343 S.W.3d 137, 143
(Tex. Crim. App. 2011), and that ineffective assistance of counsel claims (particularly those,
like Adams’s claim, involving trial counsel’s failure to object to jury instructions) are often
brought on direct appeal, with mixed success.
Adams v. Thaler, ____ F.3d ____, 2012 WL 1415094 at *3 n.4 (5th Cir. April 25, 2012). Even though
the footnote was dictum, it provides some basis for a conclusion that Martinez v. Ryan will not help
Plaintiff or any Texas inmates.
In Lewis v. Casey, the Supreme Court held that a civil rights plaintiff bringing a denial of
access to court claim must show that he would have been able to bring a nonfrivolous claim with

6

arguable legal merit -- he must show an actual injury. 518 U.S. at 351-53. His factual allegations must
raise “above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Pickett v.
Nunn, 367 Fed. Appx. 536, 537 (2010); Breshears v. Brown, 150 Fed. Appx. 323, 325 (5th Cir. 2005).
In the present case, Plaintiff has not shown harm. His allegations regarding harm do not raise above
speculation, and the Court does not have any basis for concluding that he has been harmed. His denial
of access to court 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. The claim should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
Plaintiff also complained about a disciplinary case he received after his property was
confiscated. His classification was lowered and he was moved to F-Pod before the disciplinary
hearing. When he finally had a disciplinary hearing, he was found guilty and his punishment consisted
of 30 days commissary restrictions, 15 days cell restrictions and 90 days of reduction in classification
to level D-II.
The Supreme Court has historically held that the due process clause is applicable to disciplinary
proceedings where a prisoner is threatened with a loss of good time or the imposition of solitary
confinement. Wolff v. McDonnell, 418 U.S. 539 (1974). The Court held that inmates must be afforded
written notice of the claimed violation at least twenty-hours before a disciplinary hearing, a written
statement of the fact finders as to the evidence relied on and reasons, and the right to call witnesses and
present documentary evidence where such would not be unduly hazardous to institutional safety or
correctional goals.
The Supreme Court subsequently placed severe limitations on challenges to disciplinary cases
in Sandin v. Conner, 515 U.S. 472 (1995). The Court concluded that the federal judiciary had gone
too far in extending due process rights as first articulated in Wolff v. McDonnell. The Court retreated

7

from its earlier conclusion that due process rights must be accorded to inmates before placing them in
solitary confinement. Id. at 485. The Court referred to its discussion in Wolff regarding solitary
confinement as “dicta.” Id. The Supreme Court went on to hold that “Conner's discipline in
segregated confinement did not present the type of atypical, significant deprivation in which a state
might conceivably create a liberty interest.” Id. at 486. The Court concluded that Conner did not have
a “protected liberty interest that would entitle him to the procedural protections set forth in Wolff. The
regime to which he was subjected as a result of the misconduct hearing was within the range of
confinement to be normally expected for one serving an indeterminate term of 30 years to life.” Id.
at 487. Absent atypical punishment, a prisoner does not have a basis for a federal lawsuit concerning
a disciplinary action.
The Fifth Circuit has applied Sandin to a number of situations. Punishment consisting of
placement in administrative segregation or the loss of the opportunity to earn good time is not enough
to trigger the protection of the Constitution. Luken v. Scott, 71 F.3d 192 (5th Cir. 1995). The loss of
the opportunity to earn good time will not trigger the protection of the Constitution even when an
inmate is eligible for mandatory supervision. Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000). The
imposition of commissary and cell restrictions likewise will not trigger the protection of the
Constitution. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). The loss of good time will not
support relief to the extent that it adversely affects parole eligibility. Sandin, 515 U.S. at 487.
However, the loss of good time will trigger the protection of the Constitution if, and only if, a prisoner
is eligible for release on mandatory supervision. Madison v. Parker, 104 F.3d at 769.
In the present case, Plaintiff’s punishment consisted of nothing more than a reduction in
classification, housing in F-Pod, commissary restrictions and cell restrictions. The punishment he

8

received did not involve a protected liberty interest. His complaint about the disciplinary case fails to
state a claim upon which relief may be granted and is frivolous in that it lacks any basis in law and fact.
The claim should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
Plaintiff also complained that his grievances were denied. Congress requires inmates to
exhaust their “administrative remedies as are available . . .” 42 U.S.C. § 1997e(a). A prison system
is not required to establish grievance procedures, and inmates do not have a basis for a lawsuit because
their grievances were unsuccessful:
[Plaintiff] does not have a federally protected liberty interest in having these grievances
resolved to his satisfaction. As he relies on a legally nonexistent interest, any alleged due
process violation arising from the alleged failure to investigate his grievances is indisputably
meritless.
Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Plaintiff’s complaint about the failure of prison
officials to grant him relief in grievance procedures fails to state a claim upon which relief may be
granted and is frivolous in that it lacks any basis in law and fact. The claim should be dismissed
pursuant to 28 U.S.C. § 1915A(b)(1).
Finally, Plaintiff’s request for relief included the immediate return of his legal materials. He
thought his legal materials were still being stored at the time he filed the lawsuit. He learned after he
filed the lawsuit that his legal materials had been destroyed. Indeed, it was established during the
Spears hearing that his legal materials were destroyed in May 2011, which was months before he filed
the lawsuit in December 2011. If not raised by the parties, the Court is obligated to raise the issue of
mootness sua sponte. Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987). “[A] case is moot
when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the

9

outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969); Rocky v. King, 900 F.2d 864, 867 (5th
Cir. 1990). The request for the return of the legal materials is moot since they were destroyed.
It is noted that this opinion was originally issued as the Second Report and Recommendation
(docket entry #20). Since the issuance of the Second Report and Recommendation, the parties
consented pursuant to 28 U.S.C. § 636(c). No objections have been received to the Second Report and
Recommendation, thus it is reissued without changes as the present Order o Dismissal. It is therefore
ORDERED that the civil rights complaint is DISMISSED with prejudice pursuant to 28
U.S.C. § 1915A(b)(1).

So ORDERED and SIGNED this 30 day of May, 2012.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

10