Camp v. Dobbs et al

Filing 9

ORDER OF DISMISSAL: re: adopting 7 Report and Recommendation. It is Therefore Ordered that the Civil Rights Complaint by Kriss Ray Camp is Dismissed with Prejudice as Frivolous until the Heck Conditions have been met, Johnson v. McElveen, 701 F.3d 423, 424 (sth Cir. 1996), and for Failure to State a Claim on Which a Relief can be Granted. Plaintiff's claim of inadequate food while in jail is Dismissed without Prejudice to being reasserted in a separate lawsuit. The Clerk shall send a c opy of this order to plaintiff and to any attorney of record. The Clerk shall also mail copies of this order to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division. (Ordered by Judge Mary Lou Robinson on 1/10/2012) (egb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

KRISS RAY CAMP, PRO SE,
also known as KRISS CAMP,
TDCJ-CID No. 1734943,
Pofter County ID No. 140210,
Previous TDCJ-CID No. 387591,
Previous TDCJ-CID No. 689643,

Plaintiff,
2:11-CV-0140

V.

T. ERIC DOBBS, Assistant Potter County
Attorney;
BELINDA CAMP, Ex-Wife;
VICTOR MARTINEZ, Ciminal Investigator
DA Office; and
AUDREY MINK, Assistant District Attorney,
Defendants.

ORDER OF DISMISSAL
Plaintiff KRISS RAY CAMP, while

a prisoner confined

in the Potter County Detention

Centerr, filed suit pursuant to Title 42,IJnited States Code, section 1983 complaining against the
above-named defendants, and has been granted permission to proceed informa pauperis.
On December

20,20II, a Report

and Recommendation was issued by the United States

Magistrate Judge recommending the instant cause be dismissed with prejudice as frivolous and

for failure to state a claim on which relief can be eranted.

'Since filing this lawsuit, plaintiff has been convicted of assault causing bodily injury to a family member and
transferred to the custody of the Texas Department of Criminal Justice, Correctional Institutions Division. Review of TDCJ
records also indicate his parole on a conviction for burglary ofa habitation was revoked as well. See,
http://offender.tdcj.state.tx.us/POSdb2/offenderDetail.action?sid=03302430, viewed December 19, 2011.

Plaintiff filed his Objections on January 6,2012, calling it his "arguments and amended
complaint2." Plaintiff also states he is adding four new defendants, POTTER COUNTY JAIL,
STAFF, MEDICAL STAFF, and FOOD PREP STAFF; and has amended his request for relief.
The Court considers any new facts or claims set forth in plaintiff s Objections to be an
amendment to his complaint and addresses them below.

By his Objections, plaintiff states his criminal conviction and his civil divorce case are
presently on appeal "and have no bearing in this case."

Plaintiff alleges defendant MARTINEZ, an investigator, destroyed tapes of telephone
conversations plaintiff had while he was in the Potter County Detention Center, which tapes

plaintiff contends would have proven his innocence. Although plaintiff has argued the phone
calls were exculpatory, he now contends they

"will

have no bearing on criminal case

retrial. For

the simple fact that the indictment enhancement paragraph was unproven by fingerprint expert as
not identiffing me to the enhancement paragraph as to having a prier, [sic] charge should have
been a mistameaner [sic] like

I said, all along."

Plaintiff has informed the Court his criminal conviction is on appeal. Plaintiff appears to
be assuming what the results of the appeal

will

be, although his explanation is largely incoherent.

At this time and given plaintiff s earlier contention that the telephone calls constituted
exculpatory evidence, plaintiff s allegation still asserts a claim under Brady v. Maryland,383

U.S. 83, 83 S.Ct. 1194, l0 L.Ed.2d 215 (1963). Brady claims are within the traditional core of
habeas corpus and outside the province

'Plaintiffs

of $ 1983.

January 6,2012 Objections at page

l.

See

Heckv. Humphrey, 512 U.S. 477,479,

490,114 S.Ct. 2364, 129 L.Ed.zd 383 (1994) (claim that prosecutors and an investigator had

"

'knowingly destroyed' evidence 'which was exculpatory in nature and could have proved
[petitioner's] innocence' " cannot be maintained under $ 1983); Amaker v. Weiner, I79 F.3d 48,

5l (C.A.21999) ("claim [that]

sounds under Brady v. Maryland... does indeed call into question

the validity of [the] conviction"); Beckv. Muskogee Police Dept., 195 F.3d 553, 560 (C.A.10
1999) (same). Any

plaintiff

s

civil rights action in connection with

a claim that attacks the

validity of the

criminal convictions or the length of his confinement will not accrue until after the

conditions3 set forth in Heck v. Humphrey, 5l2U.S. 477,1 14 S.Ct. 2364,2372, I29 L.F,d.2d 383
(1994) have been met. Boyd v. Biggers,3l F.3d 279 (sthCir. 1994).

Plaintiff asserts

a new

complaint: that Potter County Sheriffs Department STAFF

notarized documents plaintiff says his ex-wife, defendant CAMP, persuaded him to sign, i.e., a
power of attorney, his paycheck, and the title to his truck. Plaintiff claims that, by doing so, the
Potter County Sheriffs Department "became a state actor of depriving [plaintiff] of [his] personal

property . . . ." Plaintiff s new allegations fail to state a claim of constitutional and do not state a
claim on which relief can be sranted.

Plaintiff claims that the Fifth Amendment Due Process Clause entitles every inmate to
access legal materials whether

civil or criminal, when it is requested and that jail officials must

provide him access to a law library or assistance in the preparation of his legal papers. An
inmate's right to access legal materials is grounded in his First Amendment right to petition the

3The Heck
court held that any section 1983 claim which attacks the unconstitutionality ofa conviction (or
imprisonment, as the case may be) does not accrue until that conviction (or sentence) has been "reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question
by a federal court's issuance of a writ of habeas corpus." Wells v. Bonner,45 F.3d 90, 94 (5th Cir. 1995) (quoting Heckv.
Hump hr ey, S.Ct. at 237 2).

govemment for redress of grievances, sometimes called the right of access to courts. Bounds

v.

Smith,430 U.S. 817,828,97 S.Ct. 1491,1498,52L.F,d.zd72 (1977), overruled on other

grounds. The right of access to courts encompasses only

a prisoner's reasonably adequate

opportunity to file nonfrivolous legal claims challenging his conviction(s) or his conditions of
confinement

.

Johnson v. Rodriguez, 1 10 F.3d 299, 310-3 1 1 (5th Cir. 1997)(citing Lewis v.

Casey,s18 U.S. 343,1l6 S.Ct. 2174,2182,135 L.Ed.2d 606 (1996). An inmate who claims to
have suffered a deprivation of access to library resources must show he has suffered an actual

injurya stemming from the defendants' unconstitutional conduct. Lewis v. Casey,518 U.S. 343,

351-54, 116 S.Ct. 2174,135 L.Ed.2d 606 (1996); Ruiz v. United States,160 F.3d 273,275 (sth

Cir. 1998)(without proving actual injury, the prisoner/plaintiff cannot prevail on an access-tocourts claim); Chriceol v. Phillips,169 F.3d 313 (5th Cir. 1999). Actual injury" is "actual
prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing
deadline or to present a claim." Lewis,518 U.S. at348. Without a showing of an actual injury, a

plaintiff lacks standing to pursue a claim of denial of

access to the courts. Lewis,518 U.S. at

349. Plaintiff has made no such showing and has failed to state a claim concerning deprivation
of access to legal materials.

Plaintiff states "[t]he main concern of this lawsuit is the unconstitutional protective order
filed September 14, 2010." Plaintiff presents new factual allegations explaining there was
already a temporary protective order in existence and argues protective orders cannot be stacked
in the State of Texas. Plaintiff complains he had to appear at a hearing on September 28,2010,

4It is doubtful that plaintiff can show an actual injury at this point. He has not alleged any specific injury to date.

4

and listen to his wife commit perjury by her testimony, and that the Judge, the County Attorney,

the State Investigator (defendant MARTINEZ), and a uniformed deputy sheriff of Potter County

all failed to arrest her. Further, plaintiff says the Judge "refuses to sign his own order of
protection that is predated to begin September 28,2012." Plaintiff says a copy of this order has
been forwarded to Potter County Sheriffs Department and the Texas Department of Public

Safety. He complains that he suffered embarrassment at "being labeled an abuser without the
due process of law."

Plaintiff s dissatisfaction with the procedures followed in the state court must be
addressed by appeal to the state appellate courts. "[L]itigants may not obtain review of state

court actions by filing complaints about those actions in lower federal courts cast in the form

of

civil rights suits." Hale v. Harney,786F.2d 688, 691 (5'h Cir. 1986).
Ptaintiff s claim that he is embarrassed by the outcome of the proceedings does not state
claim of constitutional dimension. Assuming plaintiff is embarrassed because he feels his
reputation has been damaged, the Court notes that allegation of an injury solely to a plaintiff

s

reputation is insufficient to establish liability for civil rights violation under section 1983. See,
e,g., Paul v.

David,424U.S.693,7lI-12,96 S.Ct. I155,47 L.Ed.2d

reputation alone does not implicate a "liberty" or
process protection under section 19S3); Cinel v.

405 (1976)(interest in

o'property" interest suffrcient to invoke due

Connick,l5 F.3d 1338, 1343

(5'h Cir.

1994)(same); Oliver v. Collins,904F,2d278,28I (5th Cir. 1990)(injury to reputation as a result

of libel or slander in false prison report does not give rise to section 1983 liability).

a

Plaintiff makes new factual allegations with respect to his claimed wrongful confiscation
of letters. Plaintiff now states the Assistant District Attorney, defendant MINK, wrongfully
instructed the POTTER COTINTY JAIL to note plaintiff was not to be allowed to receive mail

from his daughter. Plaintiff said he had to give instructions that such mail be released to his
attorney. Further, plaintiff adds a new complaint: he is deprived of mail from his family because
he had to ask them not to write him while his criminal proceedings are ongoing.

Plaintiff does not provide sufficient facts about either of these claims to state a claim of
constitutional dimension against anyone. Plaintiff has failed to state a claim on which relief can
be granted.

Plaintiff claims he was not provided sufficient writing materials while housed in the
Potter County Detention Center. To the extent plaintiff is attempting to assert an access to courts

claim based on that allegation, even assuming unconstitutional conduct by some defendant(s),

plaintiff has utterly failed to allege facts showing an actual injury stemming from the defendants'
unconstitutionalconduct. Lewisv.Casey,518U.S.343,35I-54,1169.Ct.2174,135L.Ed.2d
606 (1996). Plaintiff has failed to state a claim on which relief can be granted.

Plaintiff claims a conspiracy exists between POTTER COUNTY, the DISTRICT
ATTORNEY, the jail, the SHERIFFS DEPARTMENT, and his ex-wife, defendant CAMP, to
violate his constitutional rights. Plaintiff says the conspiracy is "obvious." Plaintiff has alleged
no material fact to support his allegation of conspiracy. Conclusory allegations lacking reference

to material facts are not sufficient to state a claim of conspiracy under section 1983, McAfee

v.

5th Circuit Judges,884 F.2d 221 (sth Cir.l989), cert. denied,493 U.S. 1083, 110 S.Ct.
107 L.Ed.2d 1046

(1

Il4l,

990).

Plaintiff makes

a new

claim: that he and/or other inmates have suffered or are suffering

severe health problems such as severe weight loss, kidney and tooth problems, and depression,
due to lack of proper food while incarcerated at the Potter County Detention Center. Plaintiff is

presently incarcerated in the custody of the Texas Department of Criminal Justice, Correctional

Institutions Division. Plaintiff has provided no factual specifics and does not even make clear
what health problems he is suffering and which ones he claims are being suffered by other

inmates. Plaintiff does not state which defendant or defendants are liable. Plaintiff

s vague and

global allegations are not sufficient to state a claim on which relief can be granted.
Moreover, this claim is not properly joined with the claims originally asserted in this
cause. Plaintiff may not avoid the three-strike provision of the Prison Litigation Reform Act by
pursuing a multitude of improperly-joined claims in a single cause. If plaintiff wishes, he may

file

a new

lawsuit assertins this claim. He is instructed he must file within the relevant statute of

limitations on the

"r-

uu],,uble at the unit law library and he will be responsible for payment of

the filing fee, either at the time of filing or by installments under the in forma pauperis statute.

Lastly, plaintiff argues jail officials may not retaliate against a prisoner for exercising his
First Amendment right to send and receive mail to and from family and friends. Plaintiff alleges
no fact to support any claim of retaliation for sending and receiving mail and does not identiff
any defendant whom he contends is liable in this respect. Plaintiff has failed to state a claim on

which relief can be eranted.

Plaintiff has had sufficient opportunity to cure the deficiencies in his factual pleadings
and has attempted to supplement the facts alleged in his complaint with additional facts, claims,
and defendants in his objections.

Plaintiff s objections show that, even with the addition of new

factual allegations, plaintiff is unable to provide facts suffrcient to support his claims and,
therefore, appears to have stated his best case. Bazrowx v. Scott,136 F.3d 1053, 1054 (5th Cir.

1998). The required opportunity to amend does not does not mean that

a

plaintiff must

be

allowed to continue to amend or supplement his pleading until he stumbles upon a formula that
carries him over the threshold. Jacquez v.

Procunier,80IF,2d789,792 (5th Cir. 1986).

The Court has made an independent examination of the records in this case and has
examined the Magistrate Judge's Report and Recommendation, as well as the Objections filed by
the

plaintiff and plaintiff

s original and amended complaints.

The Court is of the opinion that the objections of the plaintiff should be OVERRULED
and the Report and Recommendation of the United States Magistrate Judge should be

ADOPTED by the United States District Court, as supplemented herein,
This Court, therefore, does OVERRULE plaintiff s objections, and does hereby ADOPT
the Report and Recommendation of the United States Magistrate Judge, as supplemented herein.

IT IS THEREFORE ORDERED that the Civil Rights Complaint by KRISS RAY CAMP
is DISMISSED WITH PREJUDICE AS FRIVOLOUS, AS FRIVOLOUS UNTIL THE HECK

CONDITIONS HAVE BEEN MET, Johnson v. McElveen, 701 F.3d 423, 424 (sth Cir. 1996),

AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.

Plaintiff s claim of inadequate food while in jail is DISMISSED WITHOUT PREJUDICE to
being reasserted in a separate lawsuit.

LET JUDGMENT BE ENTERED ACCORDINGLY.
The Clerk shall send a copy of this order to plaintiff and to any attomey of record. The

Clerk shall also mail copies of this order to TDCJ-Office of the General Counsel, P.O. Box
13084, Austin,

TX

787 | 1; and

to the Pro Se Clerk at the U.S. District Court for the Eastern

District of Texas, Tyler Division.
IT IS SO ORDERED.
Signed this

the /fllo^y
-7-----v-

of January

,z0rz.

SO