Garrett v. Stephens et al

Filing 20

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION TO DISMISS ACTION re: 10 Memorandum and Recommendation. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MICHAEL GARRETT,
Plaintiff,
VS.
WILLIAM STEPHENS, et al,
Defendants.

February 22, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:15-CV-403
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ORDER ADOPTING MEMORANDUM AND
RECOMMENDATION TO DISMISS ACTION
Pending before the Court for initial screening is Plaintiff’s civil rights action (D.E.
1). On December 3, 2015, United States Magistrate Judge Jason B. Libby issued a
Memorandum and Recommendation (M&R, D.E. 10), recommending that Plaintiff’s
action be dismissed. Plaintiff filed both his Amended Complaint (D.E. 14) and his
Objections (D.E. 15) on December 18, 2005.
First, Plaintiff objects to the M&R’s analysis of the Eleventh Amendment issue
because he seeks declaratory and injunctive relief under Ex Parte Young, 209 U.S. 123
(1908). By its terms, the M&R’s recommendation of dismissal pursuant to the Eleventh
Amendment applies only to the claims for monetary relief, consistent with Ex Parte
Young.

Thus the claims for declaratory or injunctive relief survived the Eleventh

Amendment analysis and the objection is misplaced.
However, Plaintiff’s objection based on Ex Parte Young appears to go beyond the
Eleventh Amendment defense. All of his objections addressing his affirmative causes of
action include references to his requests for declaratory and injunctive relief as if to
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suggest that they should always be protected from dismissal pursuant to Ex Parte Young.
That is not the holding of the case. Ex Parte Young’s analysis applies only to the
Eleventh Amendment defense.
The type of relief sought is of no consequence if Plaintiff cannot satisfy the
elements of his claims, as found by the Magistrate Judge and this Court. Thus the Court
does not address the declaratory and injunctive nature of his requests for relief when each
of his claims fail on one or more of its essential elements. Plaintiff’s first objection is
OVERRULED.
Second, Plaintiff objects to the M&R’s analysis of the retaliation claim against
Defendant Candace Moore, arguing that his assertions of the facts regarding her threats
and multiple meritless disciplinary actions taken against him should be sufficient
evidence to withstand a dismissal at the screening stage of this case. As the M&R points
out, and Plaintiff does not dispute, if Plaintiff was convicted in a disciplinary case, he
must show that the conviction was overturned before he can be entitled to relief for
retaliation.
The M&R notes that Plaintiff was convicted in Disciplinary Case No.
20150274095, appealed to this Court and still pending at the time the M&R was issued.
At that time, Plaintiff could not show that the conviction was overturned. While the
M&R remained pending, this Court refused to grant habeas corpus relief from that
disciplinary conviction in Civil Action No. 2:15-cv-311. Plaintiff therefore has not
shown, and cannot show, the necessary prerequisite for bringing his claim for retaliation.
Plaintiff’s second objection is OVERRULED.
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Third, Plaintiff objects to the M&R’s analysis of his retaliation claim because the
bar to recovery presented by his disciplinary conviction is not relevant to a conditions-ofconfinement case. Plaintiff fails to present any authority to support this argument. As
the M&R demonstrates, if litigation against the Plaintiff has merit, then the fact that it
was filed cannot serve as the basis for a retaliation claim. Plaintiff’s third objection is
OVERRULED.
Fourth, Plaintiff objects to the M&R’s Fourteenth Amendment analysis,
contending: (a) TDCJ has failed to return his confiscated property, contrary to TDCJ’s
own policy; (b) he cannot get state court jurisdiction pursuant to 18 U.S.C. § 1519,
rendering his post-deprivation rights illusory; and (c) he is experiencing a number of
adverse consequences related to other constitutional rights, such as access to the courts,
maintenance of family relationships, maintenance of sanitary hygiene, and the ability to
engage in his chosen religious practice. None of these arguments is persuasive.
TDCJ’s failure to follow its own policies is, generally, not actionable. See Myers
v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).

However, the available remedies

identified in the M&R for preventing an unconstitutional takings claim are not limited to
enforcement of TDCJ policies. Instead, they include a state court remedy for common
law conversion or statutory remedies for TDCJ losing or destroying property pursuant to
Tex. Gov’t Code § 501.007. Plaintiff has not demonstrated that those remedies are
unavailable. His reference to a lack of state court jurisdiction to adjudicate claims under
18 U.S.C. § 1519 is inapplicable to this analysis. Last, Plaintiff’s claims to secondary
constitutional effects of property deprivation are conclusive hyperbole that remain
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inapplicable unless and until Plaintiff seeks to enforce his available state court remedies.
Plaintiff’s fourth objection is OVERRULED.
Fifth, Plaintiff objects to the M&R’s Eighth Amendment analysis.

In his

complaint (D.E. 1), Plaintiff complained that the filing of disciplinary cases against him,
the disciplinary conviction, and the confiscation of his property were having adverse
physical effects on him because of stress. The M&R found those complaints to be
without merit and insufficient to state an Eighth Amendment violation for the denial of
the minimal civilized measure of life’s necessities with the requisite intent. Plaintiff
continues to urge these complaints without articulating any defect in the M&R’s analysis.
To that extent, any objections are OVERRULED.
In addition, Plaintiff now appears to assert an Eighth Amendment claim based on
the type of “inhumane” housing he has been assigned to. In particular, he suggests that
constant lighting in his unit interferes with his sleep and there is occasional leaking of
rain into the cell. The only housing complaint expressed in Plaintiff’s complaint was that
he was placed in administrative segregation and disciplinary housing as a result of what
he considered baseless and retaliatory disciplinary cases. D.E. 1. He did not allege
inhumane conditions. Even in his proposed amended complaint, his sleep deprivation
claim is asserted only as it relates to his request for appointment of counsel because he
claims to be mentally incapable of representing himself. D.E. 16, p. 5.

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While it is possible for sleep deprivation to trigger an Eighth Amendment claim,1
Plaintiff has not properly alleged such a claim here and has not exhausted his
administrative remedies as a mandatory prerequisite.2 D.E. 1; 42 U.S.C.A. § 1997e(a).
The same is true for Plaintiff’s claim regarding rainwater leaks, which also fails to
specify any adverse effect on his health or safety caused by the alleged leaks. Plaintiff’s
inhumane housing complaints are thus raised for the first time in his objections and are
not properly before the Court. Objections based on those complaints are OVERRULED.
Last, Plaintiff complains because he is being medicated for seizures that he blames
on the stress of all of his complaints. Because his complaints about the disciplinary cases
and the confiscation of his property fail on the merits, his damages are not compensable.
He does not suggest that the medication is medically inappropriate to his mental,
physical, or emotional condition and he does not request injunctive relief to discontinue
the treatment. Neither does he suggest that there is any medical opinion providing a
causal link between the loss of property, stress, and medical condition.

Plaintiff’s

complaints about his medication have not been subjected to administrative exhaustion

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Pending before this Court is another complaint that this Plaintiff has brought, alleging sleep deprivation related to
the schedule enforced in the prison. See Civil Action No. 2:13-cv-070.
2

The Court does not suggest that the 24/7 lighting complaint would have merit, if made. The Fifth Circuit has
written in another case more developed than this that, “The policy of constant illumination is thus reasonably related
to the legitimate penological interest of guard security. Accordingly, the enforcement of the policy does not violate
the Eighth Amendment. Because the policy of 24–hour illumination does not violate the Eighth Amendment, [the
prisoner’s] complaint about the policy is based upon an indisputably meritless legal theory.” Chavarria v. Stacks,
102 F. App'x 433, 436-37 (5th Cir. 2004 (citation omitted).

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and do not state an Eighth Amendment complaint. Plaintiff’s fifth objection3 related to
his Eighth Amendment claim is OVERRULED.
Sixth, Plaintiff objects to the M&R’s analysis of the Religious Land Use and
Institutionalized Persons Act (RLUIPA) claim.

Specifically, he argues (a) that the

observation that Defendant Moore was not acting pursuant to a TDCJ religious policy is
tantamount to an admission that she was affirmatively violating that policy and (b) his
right to exercise his religion, as guaranteed by RLUIPA, as a clearly established right.
With respect to the first argument, Plaintiff has misunderstood the Magistrate Judge’s
meaning. By not acting pursuant to a religious policy, the M&R states that she was
acting as an individual, not as “the government.”
With respect to the second argument, there is no question that Plaintiff has a
clearly established right to practice his religion and the M&R does not dispute that.
However, without challenging the legal requirement of the elements of his RLUIPA
claim identified in the M&R, Plaintiff continues to fail to demonstrate how the
confiscation of any property amounts to a substantial burden on the practice of his
religion. Without sufficient factual allegations to satisfy that element, his claim fails and
Defendants are never put to their burden to show a compelling governmental interest or
least restrictive means. See 42 U.S.C. § 2000cc-1(a). Plaintiff’s sixth objection is
OVERRULED.

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Plaintiff also complains of the denial of due process in his disciplinary proceeding, which is a matter outside the
scope of this § 1983 case and has been adjudicated under Civil Action No. 2-15-cv-311.

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Seventh, Plaintiff objects to the M&R’s recommendation on the supervisory
liability claim.

He argues that Defendant Stephens was advised of Plaintiff’s

complaints—after they arose—and he failed to remedy them. As demonstrated in the
M&R, Plaintiff’s complaints are insufficient to warrant constitutional intervention.
Defendant Stephens’ inaction under the facts alleged here does not transform into
responsibility for Defendant Moore’s or anyone else’s conduct. Plaintiff offers nothing
to show that Defendant Stephens had prior knowledge of a pattern of conduct or operated
with an express or implied policy that supported Defendant Moore’s alleged conduct,
violating any Plaintiff’s rights, as of the time it occurred. Plaintiff’s seventh objection is
OVERRULED.
Eighth, Plaintiff has reserved the right to amend his complaint and has filed his
proposed amendment. D.E. 15, p. 1; 16. The Court has reviewed the amended complaint
and finds that it does nothing to cure the defects in the claims addressed by the M&R and
this Court. Plaintiff’s intention to add claims against Texas Attorney General Ken Paxton
is without merit. Plaintiff’s only complaint against the Attorney General relates to an
alleged policy to enforce the law that was the basis for Plaintiff’s disciplinary conviction.
Plaintiff has failed to articulate a cognizable claim against the Attorney General.
Plaintiff’s eighth objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s Objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
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Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Plaintiff’s Complaint (D.E. 1) is
DISMISSED WITH PREJUDICE. The Court ORDERS that this action count as a
strike pursuant to 28 U.S.C. § 1915(g), and that a copy of the Memorandum and
Recommendation (D.E. 10) and this Order, be sent to Ms. Lori Stover, Three Strikes
Docketing Clerk for the Fifth Circuit, 7940 Preston Road, Plano, Texas 75024.

ORDERED this 22nd day of February, 2016.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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