Vogel v. TDCJ-Holiday Unit et al
Filing
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MEMORANDUM OPINION. This civil rights action should be dismissed pursuant to 28 U.S.C. § 1915(e) as frivolous and for failure to state a claim upon which relief may be granted. A final judgment will be entered in accordance with this Memorandum Opinion. Signed by District Judge Ron Clark on 3/22/20. (ljw, )
**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
GEORGE VOGEL
§
VS.
§
LORIE DAVIS, ET AL.
§
CIVIL ACTION NO. 9:16-CV-198
MEMORANDUM OPINION
Plaintiff George Vogel, a prisoner previously confined at the Polunsky Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Lorie Davis, Law Library
Supervisor McKee, Security Captain Stringer, Warden Muniz, Assistant Regional Director Matt
Gross, Kitchen Captain Brown, Captain Smith, Lieutenant Smith, Lieutenant Newberry, Sergeant
Logan, Sergeant Burleson, Captain Miller, Officer Martin, Officer Collins, Officer Gibbs, Officer
Dykstra, Officer Brown, Officer S. Michael, Dr. Keraby, and unidentified defendants.1
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Plaintiff identified a number of other defendants in his first amended complaint, but he did not explain
how those defendants were personally involved in violating his constitutional rights. Because the factual allegations in
his first amended complaint were too vague for the defendants to reasonably respond, plaintiff was given the opportunity
to develop the facts of his complaint by filing an amended pleading in response to questions in a questionnaire. See
Watson v. Ault, 525 F.2d 886 (5th Cir. 1976). Plaintiff was ordered to explain how each named defendant was personally
involved in depriving plaintiff of his constitutional rights. Plaintiff has not alleged any facts, in any of his pleadings,
regarding defendants Warden Simmons, Captain Stern, Officer Rice, Officer Sullivan, Officer S. Gilbert, Senthil
Koneswaran, and Mitchael Flowers. Therefore, the claims against those defendants must be dismissed for failure to state
a claim. See Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986) (holding that the plaintiff must enunciate a set of
facts that illustrate the defendant’s participation in the alleged wrong to successfully plead a cause of action in a civil
rights case).
Factual Background
Plaintiff alleges he filed, or attempted to file, many grievances during the time he was
confined at the Polunsky Unit. Plaintiff alleges defendants McKee, Muniz, Gross, Martin, Burleson,
Smith, and Miller failed to properly process, investigate, or respond to his grievances. Plaintiff also
contends the defendants did not handle the grievances in accordance with prison policies.
Plaintiff alleges multiple defendants interfered with his right to access the courts on “various
dates between March 2014 and Spring 2015,” including one missed law library session on October
3, 2014. Plaintiff alleges he missed several law library sessions because other inmates took the
folder that inmates used to sign up for law library sessions. Plaintiff alleges defendants Muniz,
Gross, Smith, Miller, Stringer, Martin, Collins, Michael, Brown, Newberry, Trimble, and
unidentified defendants failed to ensure that the law library folder was in the proper location and
accessible to plaintiff. Plaintiff contends that, on some occasions, he had to choose between
attending law library sessions or other prison activities, such as religious services, medical
appointments, educational classes, and meals. Plaintiff alleges defendant McKee failed to respond
to plaintiff’s complaints that correctional officers caused him to miss some law library sessions,
failed to provide plaintiff with legal materials when the unit was on lockdown, and denied plaintiff’s
requests for additional time in the law library. Plaintiff contends the law library lacked resources.
Finally, plaintiff contends that he is not permitted to use the restroom while he is in the law library.
On March 17, and 18, 2016, plaintiff alleges defendant Dykstra, Gibbs, and Logan housed
him in a cell with a water leak and periodic electrical outages. Plaintiff alleges that he used a
medical device while he slept, and, due to the conditions in his cell, he was unable to sleep for one
night.
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On March 30, 2016, plaintiff alleges he was housed with an inmate who was ill. Plaintiff
alleges he was exposed to the inmate’s bodily fluids, and he was forced to clean the cell.
On some occasions, plaintiff alleges the kitchen staff failed to prove him with clean trays,
cups, and utensils. Plaintiff contends he was sick on several occasions, and he believes his illnesses
were caused by unsanitary kitchen practices. Plaintiff alleges he complained, but defendants Smith,
Stringer, and a warden failed to rectify the situation.
Plaintiff alleges he injured, and possibly fractured, his toe in July 2016. On October 2, 2016,
plaintiff alleges he was in pain, and the security staff denied him access to an over-the-counter pain
reliever for his injured toe.
Plaintiff alleges his mail has been mishandled. Plaintiff contends that prison employees are
not following prison policies concerning the processing of mail. Plaintiff alleges his legal mail has
been opened, other inmates have delivered his legal mail to him, and his mail has been delivered to
other inmates. Plaintiff also contends his outgoing mail has been lost or delayed.
Plaintiff alleges he filled out forms to add family members and friends to his visitors list in
2014 and 2015. Plaintiff alleges he placed the forms in the prison mail, but his visitors list was not
updated in accordance with prison policy.
Plaintiff alleges he did not receive medical treatment from February 2016, until January 2017.
Plaintiff alleges he was unable to see a physician, and his medications expired and were not refilled.
Plaintiff also alleges that he requested eyeglasses in 2014, but he did not receive them until 2017.
Plaintiff alleges that he was denied due process multiple times between 2014 and 2017, when
his property was confiscated and destroyed by correctional officers who did not follow the proper
procedures for taking such actions.
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Finally, plaintiff contends that unidentified correctional officers disturb his sleep by
slamming doors, yelling, and waking him up to give him lay-in slips for his next day’s activities.
Standard of Review
An in forma pauperis proceeding may be dismissed pursuant to 28 U.S.C. § 1915(e) if it:
(1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or (3) seeks
monetary relief from a defendant who is immune from such relief.
A complaint, containing as it does both factual allegations and legal conclusions, is frivolous
where it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). A complaint lacks an arguable basis
in law if it is based on an indisputably meritless legal theory. See Siglar v. Hightower, 112 F.3d 191,
193 (5th Cir. 1997). A complaint lacks an arguable basis in fact if, after providing the plaintiff the
opportunity to present additional facts when necessary, the facts alleged are clearly baseless. Denton
v. Hernandez, 504 U.S. 25, 32 (1992).
A complaint does not need detailed factual allegations, but the plaintiff must allege sufficient
facts to show more than a speculative right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). Dismissal for failure to state a claim is appropriate if the complaint does not include
enough facts to state a claim that is plausible on its face. Id. at 570. Conclusory allegations and a
formulaic recitation of the elements of a cause of action will not suffice to prevent dismissal for
failure to state a claim. Id. at 555.
Analysis
Title 42 U.S.C. § 1983 creates a cause of action against any person who, acting under color
of state law, causes a person to be deprived of a federally-protected constitutional right. Gomez
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v.Toledo, 446 U.S. 635, 640 (1980); Phillips v. Monroe County, 311 F.3d 369, 373 (5th Cir. 2002).
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage,
of any state . . . subjects, or causes to be subjected, any citizen of the United States
or any other person within the jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the Constitution and laws shall be liable to the
party injured . . . .
42 U.S.C. § 1983.
In order to state a cause of action under § 1983, a plaintiff must allege two elements. “First,
the Plaintiff must allege that some person has deprived him of a federal right. Second, he must
allege that the person who has deprived him of that right acted under color of state or territorial law.”
Gomez v. Toledo, 446 U.S. 635, 640 (1980).
Inadequate Grievance Review
Plaintiff complains that he filed grievances that were not processed, investigated, or resolved
properly. However, an inmate does not have a protected liberty interest in having his complaints
resolved to his satisfaction. Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Therefore, the
complaints concerning the manner in which his grievances were handled or resolved are frivolous
and fail to state a claim.
Access to Courts
Plaintiff alleges he had issues access to the law library and legal materials. Plaintiff also
contends that prison officials opened his legal mail, and they allowed other inmates to deliver and
view the mail.
Prisoners have a right to access to the courts protected by the First Amendment right to
petition for redress of grievances, and the Fourteenth Amendment guarantees of procedural and
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substantive due process. Bounds v. Smith, 430 U.S. 817, 828 (1977); Jackson v. Procunier, 789 F.2d
307, 310 (5th Cir. 1986). This right can be satisfied through appointed counsel, access to a law
library, or access to legally trained paraprofessionals. Bounds, 430 U.S. at 830-31. However,
Bounds “does not guarantee inmates the wherewithal to transform themselves into litigating engines
capable of filing everything from shareholder derivative actions to slip-and-fall claims.” Lewis v.
Casey, 518 U.S. 343, 355 (1996). Rather, the right of access to the courts requires that inmates be
allowed a reasonably adequate opportunity to file non-frivolous cases challenging their convictions
and the conditions of their confinement. Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999).
“Impairment of any other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.” Lewis, 518 U.S. at 355. In order to
recover for a denial of access to the courts, an inmate must show that “an actionable claim [involving
a challenge to a sentence or conditions of confinement] which he desired to bring has been lost or
rejected, or that the presentation of such a claim is currently being prevented . . . .” Id. at 356; see
also Woodard v. Andrus, 419 F.3d 348, 354 (5th Cir. 2005) (affirming dismissal of access to courts
claim because plaintiff did not show that the defendant’s actions delayed her ability, or deprived her
of her right, to avail herself of the legal process).
Plaintiff alleges he was working on a variety of legal matters, but he has not demonstrated
that the loss of his legal materials prevented him from pursuing a non-frivolous claim concerning
his criminal prosecution or the conditions of confinement. Therefore, he has failed to state a claim
that he was denied access to the courts.
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Conditions of Confinement
Plaintiff contends he was subjected to cruel and unusual conditions of confinement when:
(1) he was housed in a cell that did not allow his medical device to operate, (2) he was exposed to
bodily fluids when his cell mate was sick, (3) there were dirty trays, cups, and utensils in the kitchen,
(4) correctional officers made loud noises and disturbed plaintiff’s sleep, and (5) he was not
permitted to go to the restroom when he was in the law library.
“The treatment a prisoner receives in prison and the conditions under which he is confined
are subject to scrutiny under the Eighth Amendment.” Gates v. Cook, 376 F.3d 323, 332 (5th Cir.
2004). The Eighth Amendment’s prohibition against cruel and unusual punishment requires that the
conditions of confinement are humane and that inmates receive adequate food, shelter, clothing and
medical care. Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001).
With respect to claims concerning prison conditions, the court must consider whether society
considers the risk of harm to be so grave that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk. Hudson v. McMillian, 503 U.S. 1, 8 (1992). The deprivation must
be so serious as to “deprive prisoners of the minimal civilized measures of life’s necessities,” as
when it denies the prisoner some basic human need. Wilson v. Seiter, 501 U.S. 294, 304 (1991);
Gates, 376 F.3d at 332-33. In addition to demonstrating that the alleged deprivation is sufficiently
serious, the plaintiff must show that the defendant possessed a sufficiently culpable state of mind.
Herman, 238 F.3d at 664. A prison official cannot be found liable under the Eighth Amendment
unless the official knows of, and disregards, an excessive risk to an inmate’s health or safety.
Farmer v. Brennan, 511 U.S. 825, 840-41 (1994).
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Plaintiff’s allegations do not allege the deprivation of a life necessity. Further, he has failed
to show that the defendants acted with deliberate indifference to his health or safety. Isolated events
do not amount to unconstitutional conditions of confinement. Cardena v. El Paso County, 946 F.3d
717, 728 (5th Cir. 2020). Thus, plaintiff’s claims that the conditions of his confinement violated his
constitutional rights should be dismissed as frivolous and for failure to state a claim.
Deliberate Indifference to Serious Medical Needs
Plaintiff alleges he was denied adequate medical treatment on October 2, 2016, when he was
not provided with over-the-counter pain medication. Plaintiff also alleges he was denied prescription
medication, eyeglasses, and dental care.
Although the Eighth Amendment does not explicitly mandate a certain level of medical care
for prisoners, the cruel and unusual punishment clause has been interpreted to impose a duty on
prison officials to provide inmates with adequate food, clothing, shelter, and medical care. Farmer,
511 U.S. at 832; Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999). A prison official’s deliberate
indifference to the serious medical needs of a prisoner constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment, whether the indifference is manifested by
prison doctors or by prison guards. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); Domino v. Texas
Dep’t of Criminal Justice, 239 F.3d 752, 754 (5th Cir. 2001). Medical records of sick calls,
examinations, diagnoses, and medications may rebut an inmate’s allegations of deliberate
indifference. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995). Mere negligence, neglect,
or medical malpractice does not rise to the level of a constitutional violation. Domino, 239 F.3d at
756 (“It is indisputable that an incorrect diagnosis by prison medical personnel does not suffice to
state a claim for deliberate indifference.”); Hall v. Thomas, 190 F.3d 693, 697 (5th Cir. 1999)
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(“[A]llegations of malpractice or negligence will never state a claim under the Eighth
Amendment.”); Stewart, 174 F.3d at 534. Nor does an inmate’s disagreement with his medical
treatment amount to an Eighth Amendment violation. Stewart, 174 F.3d at 537; Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). “Rather, the plaintiff must show that the officials
‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any
similar conduct that would clearly evince a wanton disregard for any serious medical needs.’”
Domino, 239 F.3d at 756 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) ).
Plaintiff’s claim that he was unable to obtain over-the-counter pain medication for one day,
several months after he injured his toe, does not rise to the level of egregious intentional conduct
required to satisfy the deliberate indifference standard. See Gobert v. Caldwell, 463 F.3d 339, 351
(5th Cir. 2006). Plaintiff’s claims that he was denied eyeglasses, prescription medication, and dental
treatment for extended periods of time are serious and troubling. However, despite being given the
opportunity to develop the facts of those claims, plaintiff failed to allege facts as to which defendants
took specific actions that violated his constitutional rights. Plaintiff’s conclusory allegations that his
rights were violated is insufficient to demonstrate prison officials were deliberately indifferent to his
serious medical needs.
Interference With Mail
Plaintiff contends that his First Amendment rights were violated when his outgoing mail was
lost or delayed. A prison official’s interference with a prisoner’s mail may violate the prisoner’s
First Amendment right to free speech. Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993).
Although the precise contours of a prisoner’s right to free speech are unclear, prisoners do retain
those rights which are not inconsistent with their status as prisoners or with legitimate penological
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objectives. Id. at 821 (citing Hudson v. Palmer, 468 U.S. 517, 523 (1984)). Prison practices that
impinge upon a prisoner’s rights with respect to mail must be reasonably related to a legitimate
penological interest. Morgan v. Quarterman, 570 F.3d 663, 666 (5th Cir. 2009).
In this case, plaintiff does not allege that his outgoing mail was intercepted by prison officials
due to a prison policy. Rather, he alleges there were isolated instances of outgoing mail that was lost
or delayed by unknown people over a lengthy period of time. Conclusory statements that mail was
sent from the prison but not received by the addressees are insufficient to demonstrate a violation
of the First Amendment. Damm v. Cooper, 288 F. App’x 130, 2008 WL 2705651, at *2 (5th Cir.
2008).
Deprivation of Property
Plaintiff contends his property was improperly confiscated and destroyed by correctional
officers. A claim of deprivation of property by persons acting under color of state law may be
cognizable in § 1983 litigation under the Due Process Clause of the Fourteenth Amendment.
However, where the deprivation was random and unauthorized, and the state has an adequate postdeprivation tort remedy, due process is satisfied. Hudson v. Palmer, 468 U.S. 517 (1984) (holding
that the due process clause is not violated when a state employee intentionally deprives an individual
of property where the state has a meaningful post-deprivation remedy); Parratt v. Taylor, 451 U.S.
527 (1981) (finding no due process violation when a state employee negligently deprives an
individual of property if the state provides a post-deprivation remedy), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327 (1986); see also Geiger v. Jowers, 404 F.3d 371, 374
(5th Cir. 2005) (concluding that plaintiff failed to state a claim regardless of whether the deprivation
of property was the result of negligence or intentional misconduct); Murphy v. Collins, 26 F.3d 541,
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543-44 (5th Cir. 1994) (noting that deprivations of property caused by the misconduct of state
officials do not violate constitutional due process, provided adequate state post-deprivation remedies
exist).
In this case, plaintiff alleges the deprivations of his property were random and unauthorized.
The Texas tort of conversion provides an adequate post-deprivation remedy. Brewster v. Dretke, 587
F.3d 764, 768 (5th Cir. 2009). As a result, plaintiff has failed to state a constitutional claim for the
deprivations of his property.
Violations of Prison Policy
Finally, plaintiff contends that prison officials violated multiple prison policies. However,
the failure of prison officials to follow prison policies does not rise to the level of a constitutional
violation. McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012).
Conclusion
This civil rights action should be dismissed pursuant to 28 U.S.C. § 1915(e) as frivolous and
for failure to state a claim upon which relief may be granted. A final judgment will be entered in
accordance with this Memorandum Opinion.
So ORDERED and SIGNED March 22, 2020.
____________________________
Ron Clark, Senior District Judge
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