Alexander v. Officer Forgab et al
Filing
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OPINION AND ORDER DISMISSING CASE. (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
LIONEL ALEXANDER,
§
§
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§ CIVIL ACTION NO. 2:15-CV-90
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§
§
§
Plaintiff,
VS.
OFFICER FORSAB, et al,
Defendants.
OPINION AND ORDER DISMISSING CASE
This case was filed as a civil rights action by a Texas state prisoner pursuant to 42
U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996), any prisoner action brought under federal law must be dismissed if the complaint
is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. See 42 U.S.C. § 1997e(c); 28
U.S.C. §§ 1915(e)(2), 1915A.
Plaintiff’s action is subject to screening regardless
whether he prepays the entire filing fee or proceeds as a pauper. Ruiz v. United States,
160 F.3d 273, 274 (5th Cir. 1998) (per curiam); Martin v. Scott, 156 F.3d 578, 580 (5th
Cir. 1998) (per curiam), cert. denied, 527 U.S. 1041 (1999). Plaintiff’s pro se complaint
must be read indulgently, Haines v. Kerner, 404 U.S. 519, 520 (1972), and his allegations
must be accepted as true, unless they are clearly irrational or wholly incredible, Denton v.
Hernandez, 504 U.S. 25, 33 (1992).
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Applying these standards, Plaintiff’s claims against Defendants are dismissed for
failure to state cognizable § 1983 claims pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1).
I.
JURISDICTION.
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. Upon
consent of the Plaintiff (D.E. 13), this case was referred to the undersigned United States
magistrate judge to conduct all further proceedings, including entry of final judgment.
(D.E. 15). See 28 U.S.C. § 636(c).
II.
PROCEDURAL BACKGROUND AND PLAINTIFF’S ALLEGATIONS.
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Division (TDCJ-CID), and is currently confined at the McConnell Unit
(MCU) in Beeville, Texas. He is serving a life sentence for two counts of attempted
sexual assault, enhanced, entered in Cause No. F-0401414-NH in Dallas County, Texas
on October 14, 2004.
Plaintiff filed his original complaint on February 17, 2015, alleging that
Defendants Officer Forsab and Officer Santilliana negligently, recklessly, and/or in
violation of TDCJ policy, lost his personal property in violation of his constitutional
rights. (D.E. 1). Plaintiff claimed also that portions of his lost personal information were
unlawfully disseminated and even used against him in a false disciplinary case, causing
him emotional distress. Finally, Plaintiff alleged that the loss of his personal property
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resulted in the unlawful compromise of personal information concerning his family and
friends, in violation of their privacy rights.
A Spears1 hearing was conducted on April 14, 2015, and on April 20, 2015,
Plaintiff filed a copy of his Step 1 and Step 2 grievances complaining to MCU officials
about the loss of his personal property. (D.E. 11).
On May 4, 2015, Plaintiff filed a “Notice of Clarification,” in which he set forth
his constitutional arguments concerning property loss, as well as his allegations that
Defendants’ conduct violated TDCJ policy and procedure. (D.E. 12).
The following allegations were made in Plaintiff’s original complaint (D.E. 1), at
the Spears hearing, in his MCU grievances (D.E. 1, pp. 8-11, D.E. 11, pp. 2-5), or
Clarification (D.E. 12):
On October 9, 2014, Plaintiff was placed on the night medical chain to Hospital
Galveston. Officer Forsab, the 7-Building desk sergeant, was charged with packing and
inventorying Plaintiff’s personal property. Officer Forsab signed the Property Inventory
form, and Officer Santilliana certified that Officer Forsab had packed and inventoried
Plaintiff’s property, and he also signed the Property Inventory form. (See D.E. 1, p. 13).
On October 14, 2014, Plaintiff returned from Hospital Galveston and spoke to the
Property Room personnel about his belongings. The Property Room staff told Plaintiff
that Officer Forsab had packed Plaintiff’s property and taken it to the Building Supply
Room, not the Property Storage Room. As a consequence thereof, the Property Room
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th
Cir. 1996) (stating that testimony given at a Spears hearing is incorporated into the pleadings).
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did not have Plaintiff’s property, nor did the Property Room even have a record of
Plaintiff’s Property Inventory form because the copies had been placed in the bags with
Plaintiff’s property.
On October 14, 2014, Plaintiff filed a Step 1 grievance, Grievance No.
2015026141, stating that he had talked with the Property Room supervisor, Officer
Machaca, but that he was told nothing could be done about Plaintiff’s missing property
because Officer Forsab had failed to bring it to the Property Storage Room. (D.E. 11, pp.
2-3). Warden Putnam denied this grievance finding no evidence of staff misconduct and
noting also that “all property” was returned to Plaintiff. (D.E. 11, p. 3). Plaintiff filed a
Step 2 appeal and it was denied by the Region IV grievance investigator. (D.E. 11, pp. 45).
On October 27, 2014, Plaintiff filed a Step 1 grievance, Grievance No.
2015033481, relating that on October 25, 2014, he had spoken with Officer Forsab about
his missing property. (D.E. 1, pp. 8-9). Officer Forsab told Plaintiff that, after packing
and inventorying his property, it was no longer his responsibility, and the Property Room
personnel related they had no written inventory concerning his belongings. (D.E. 1, pp.
8-9).
Warden Putnam denied this grievance stating that “[r]ecords show that your
property did not leave your possession.” (D.E. 1, p. 9). Plaintiff filed a Step 2 appeal and
it was denied. (D.E. 1, pp. 10-11).
According to Plaintiff, his personal property included the following items: One (1)
AM/FM Radio; One (1) Pair of Headphones; Three (3) Bags of Chips; Three (3) Cookies;
One (1) Lotion; One (1) Detergent; Three (3) Coffee; Three (3) Commissary Bags; Three
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(3) Toothbrushes; One (1) Typewriter; One (1) Fan; Several Letters from Detroit and
Dallas; Photographs; Legal Work; Parole Decisions; Eight (8) Stamps; and One (1)
Writing Pad. (D.E. 1, p. 9, 13). Plaintiff testified that he did not file an action in state
court for conversion against Defendants or the TDCJ. Through this lawsuit, Plaintiff is
seeking compensation “for the loss of private and personal information in my letters,
causing emotional discomfort,” and the return of his other items. (D.E. 1, p. 4).
III.
LEGAL STANDARD.
Section 1983 provides a vehicle for redressing the violation of federal law by
those acting under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To
prevail on a § 1983 claim, the plaintiff must prove that a person acting under the color of
state law deprived him of a right secured by the Constitution or laws of the United States.
42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A defendant acts under color
of state law if he misuses or abuses official power and if there is a nexus between the
victim, the improper conduct, and the defendant’s performance of official duties.
Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).
“Personal involvement is an essential element of a civil rights cause of action.”
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
There is no vicarious or
respondeat superior liability of supervisors under section 1983. Thompkins v. Belt, 828
F.2d 298, 303-04 (5th Cir. 1987). See also Carnaby v. City of Houston, 636 F.3d 183,
189 (5th Cir. 2011) (the acts of subordinates do not trigger individual § 1983 liability for
supervisory officials). For a supervisor to be liable under § 1983, the plaintiff must show
that (1) the supervisor failed to supervise or train the subordinate official; (2) a causal
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link exists between the failure to train or supervise and the constitutional violation; and
(3) the failure to train or supervise amounts to deliberate indifference to the plaintiff’s
constitutional rights. Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).
Establishing a supervisor’s deliberate indifference generally requires a plaintiff to
demonstrate “at least a pattern of similar violations.” Rios v. City of Del Rio, Tex., 444
F.3d 417, 427 (5th Cir. 2006) (citations omitted).
Regardless of whether a plaintiff has properly exhausted his administrative
remedies, his action may be dismissed for failure to state a claim upon which relief can
be granted. 42 U.S.C. § 1997e(c)(2). An action may be dismissed for failure to state a
claim when it is clear that the prisoner can prove no set of facts in support of his claim
entitling him to relief. Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). The complaint
must be liberally construed in favor of the prisoner and the truth of all pleaded facts must
be assumed. Id.
IV.
DISCUSISSION.
Plaintiff is suing Officer Forsab and Officer Santilliana alleging that they failed to
handle properly his personal property resulting in its loss, and that this was done
negligently and/or recklessly, and in violation of TDCJ’s rules and regulations such that
he is entitled to damages. He also claims that his lost personal information was used
improperly causing him emotional damages for which he is entitled to compensation.
Finally, he claims that his family and friends have been harmed by the potential exposure
of their personal information via the loss of his personal letters.
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A.
Eleventh Amendment immunity and official capacity claims.
Plaintiff did not indicate whether he is suing Defendants in their official or
individual capacities, so it is assumed he is suing them in both.
A suit against a state officer in his or her official capacity is effectively a suit
against that state official’s office. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). The Eleventh Amendment, however, bars claims for money damages against a
state or state agency. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996);
Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). As
such, an action for monetary damages against a state official in his or her official capacity
is one against the state itself, and is barred by the Eleventh Amendment. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985). Indeed, the Fifth Circuit has extended the Eleventh
Amendment immunity specifically to TDCJ-CID officers and officials acting in their
official capacities. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (Eleventh
Amendment bars prisoner’s suit for money damages against prison officials in their
official capacities).
To the extent Plaintiff is suing Officer Forsab or Officer Santilliana in his official
capacity for monetary damages, those claims are barred by the Eleventh Amendment.
Accordingly, those claims are dismissed with prejudice as barred by the Eleventh
Amendment.
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B.
Loss of Property.
Plaintiff claims that Defendants negligently or recklessly lost his personal property
and belongings in violation of his constitutional rights.
(1)
Negligent acts do not raise constitutional claims.
The Supreme Court has held that “the Due Process Clause is simply not implicated
by a negligent act of an official causing unintended loss or injury to life, liberty, or
property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). The Fifth Circuit has held in a
number of contexts that allegations amounting to negligence cannot support a § 1983
claim. See e.g. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) (no constitutional
violation based on negligent medical care); Hare v. City of Corinth, 74 F.3d 633, 641-42,
646 (5th Cir. 1996) (negligence insufficient to support failure to protect claim under
§ 1983); Eason v. Thaler, 73 F.3d 1322, 1328-29 (5th Cir. 1996) (negligence cannot
support § 1983 action for deprivation of religious rights or for an Eighth Amendment
claim based upon prison officials’ alleged gross negligence in permitting a gas leak to
occur); Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137, 142 (5th Cir. 1992), vacated on
other grounds,15 F.3d 443 (5th Cir. 1994) (“Even when constitutional liberty interests
are implicated, not all bodily injuries caused by state actors give rise to a constitutional
tort, for it is well settled that mere negligence does not constitute a deprivation of due
process under the constitution.”). To the extent Plaintiff claims that Defendants were
negligent in failing to bring his personal property to the Property Storage Room but
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instead, mistakenly took it, or left it, to the Building Supply Room, he fails to state a
cognizable constitutional claim.
(2)
Intentional loss of property claim must be pursued in State court.
The Fourteenth Amendment of the Constitution provides that no State shall
“deprive any person of life, liberty, or property without due process of law.” U.S. Const.
amend. XIV § 1.
The Supreme Court has held that a random and unauthorized
intentional deprivation of property does not violate the Due Process Clause if the State
provides an adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517,
534-35 (1984); Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). A claimant must
either take advantage of the available remedies or show that the available remedies are
inadequate. Hudson, 468 U.S. at 534-35.
Texas law allows recovery of monetary damages for the loss of property that has
been taken without authorization. See Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.
1994) (in Texas, the tort of conversion fulfills this requirement); see also Beam v. Voss,
568 S.W.2d 413, 420-21 (Tex. Civ. App.– San Antonio 1978, no writ) (conversion is the
unauthorized and unlawful assumption and exercise of dominion and control over the
personal property of another, to the exclusion of, or inconsistent with the owner’s rights).
In addition, state law specifically provides that inmates may recover up to $500.00 on a
claim that the TDCJ lost or damaged personal property. See Tex. Gov’t Code § 501.007.
Because Texas law provides an adequate post-deprivation remedy, Plaintiff’s loss
of his personal property does not state a violation of the Due Process Clause. See
Hudson, 468 U.S. at 536 (noting that, even when a prisoner’s property was intentionally
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destroyed, such destruction did not violate the Fourteenth Amendment because state law
provided the prisoner with an adequate post-deprivation remedy).
A prisoner-plaintiff may bring suit in federal court for property loss only if relief is
denied in state court on grounds other than the merits of his claim. See Thompson v.
Steele, 709 F.2d 381, 383 n.3 (5th Cir. 1983). The burden is on the inmate to show that
the post-deprivation remedy is inadequate.
Myers v. Klevenhagen, 97 F.3d 91, 94 (5th
Cir. 1996). Plaintiff testified that he has not filed suit in state court pursuant to § 501.007
or for conversion. Because Plaintiff has not pursued his state court remedies he cannot
allege that the post-deprivation remedy available to him is inadequate.
As such,
Plaintiff’s claim for property loss fails to state a cognizable constitutional claim.
(3)
Failure to follow TDCJ Rules or Policies.
Plaintiff claims that the loss of his property was also the direct cause of
Defendants failing to follow TDCJ’s own written rules and policies concerning how
offender property should be handled when an inmate transfers on medical chain.
However, it is well-established that the violation of a TDCJ rule or regulation, without
more, does not equate with a constitutional violation, and is not actionable. Myers v.
Klevenhagen, 97 F.3d 91, 95 (5th Cir. 1996). Thus, even assuming that Defendants failed
to follow TDCJ policy and that this failure caused the loss of Plaintiff’s property, this
allegation fails to state a cognizable constitutional violation.
C.
Dissemination of personal information.
Plaintiff claims that, following the mishandling and loss of his personal property
on October 9, 2014, personal information became known to other prisoners and was even
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used against him in a false disciplinary case. Plaintiff testified that prison officials
discovered the fraud and the disciplinary charges against him were dismissed; however,
he claims that the distribution of his personal information has caused him emotional
distress for which he seeks damages.
First, it is well-established that prisoners retain a very minimal expectation of
privacy. See Hudson v. Palmer, 468 U.S. 517 525-26 (1984) (limited expectation of
privacy in prison cells and surroundings); Doe v. Delie, 257 F.3d 309, 315-16 (3d Cir.
2001) (limited privacy right with regard to medical information).
However, even
assuming that Plaintiff had a protected privacy interest in his personal letters, legal
documents, and parole decisions, he is not entitled to damages for “emotional distress” as
requested because he has failed to allege any corresponding physical injury. See 42
U.S.C. § 1997e(e) (“No federal civil action may be brought by a prisoner for mental or
emotional injury suffered while in custody without a prior showing of physical injury.”).
And see Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir. 2005) (applying 1997e(e)’s
physical injury requirement to inmate’s First Amendment claims). Moreover, Plaintiff
does not allege, let alone offer any evidence to suggest that Officer Forsab or Officer
Santilliana were involved in the dissemination of his personal information. Plaintiff’s
claims for emotional distress based on the alleged misuse of personal information are
dismissed for failure to state a cognizable constitutional violation.
D.
Revealing of family information.
In his final claim, Plaintiff alleges that his family and friends have been injured by
the distribution of their personal information via the loss of his personal property. As a
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nonlawyer, Plaintiff has no authority to bring the alleged claims of unidentified family or
friends under his name in this lawsuit.
See generally Rule 11(a). Fed. R. Civ. P;
Gonzales v. Wyatt, 157 F.3d 1016, 1021 (5th Cir. 1998) (noting that in federal court, a
party can represent himself or be represented by an attorney, but cannot be represented by
a nonlawyer). Accordingly, any claims Plaintiff is purportedly advancing on behalf of
his family and friends for breach of their personal privacy are dismissed for failure to
state a claim.
V.
CONCLUSION.
For the reasons stated above, Plaintiff’s loss of property and privacy claims
against Defendants are dismissed with prejudice for failure to state cognizable
constitutional violations. However, this dismissal shall not count as a § 1915(g) strike
because there is no dispute that Plaintiff’s property was misplaced and lost. Plaintiff can
pursue an action in state court for recovery of the property’s value should he so desire.
ORDERED this 16th day of June, 2015.
___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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