Corbett v. Chapa et al

Filing 76

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: adopting 73 Memorandum and Recommendations, denying 71 MOTION for Leave to Appeal in forma pauperis, denying 64 MOTION for Leave to Appeal in forma pauperis, denying 69 MOTION to file appeal (Signed by Judge Nelva Gonzales Ramos) Parties notified. (fmc2)

United States District Court
Southern District of Texas

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

EDWARD MANUAL CORBETT,
Plaintiff,
VS.
ARMANDO CHAPA, et al.,
Defendants.

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ENTERED
November 26, 2024
Nathan Ochsner, Clerk

CIVIL ACTION NO. 2:23-CV-00196

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court are three documents filed by Plaintiff Edward Corbett that
are construed together as an application to proceed in forma pauperis on appeal. D.E. 64,
69, 71. On July 15, 2024, United States Magistrate Judge Mitchel Neurock issued his
“Memorandum and Recommendation of United States Magistrate Judge,” recommending
denial of the application because the proposed appeal is not taken in good faith. M&R,
D.E. 73. Plaintiff timely filed his objections (D.E. 75-2)1 on August 1, 2024.
STANDARD OF REVIEW
The district court conducts a de novo review of any part of a magistrate judge’s
disposition that has been properly objected to. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b)(3); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). “Parties filing objections
must specifically identify those findings objected to. Frivolous, conclusive or general

Plaintiff’s objections were scanned into an instrument filed on the docket at D.E. 75. However, the scans did not
include the entire page, allowing the loss of information at the margins. A new scan was performed to reflect the
entirety of each page and was appended at D.E. 75-2. The Court references D.E. 75-2 as the complete set of objections
as if that scan was the original docketed instrument.
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objections need not be considered by the district court.” Battle v. U.S. Parole Comm’n, 834
F.2d 419, 421 (5th Cir. 1987) (per curiam) (discussing pro se petitioner’s objections to
M&R), overruled on other grounds by Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415
(5th Cir. 1996)). As to any portion for which no objection is filed, a district court reviews
for clearly erroneous factual findings and conclusions of law. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989) (per curiam).
DISCUSSION
In deciding whether to grant a party leave to appeal in forma pauperis, a district
court may refuse to certify the appeal if it would not be taken in good faith. 28 U.S.C.
§ 1915(a); Fed. R. App. P. 24(a)(4)(B); Howard v. King, 707 F.2d 215, 219 (5th Cir. 1983).
Good faith may be “demonstrated when a party seeks appellate review of any issue ‘not
frivolous.’” Howard, 707 F.2d at 220 (quoting Coppedge v. United States, 369 U.S. 438,
445 (1962)). An in forma pauperis suit is frivolous if the claim lacks an arguable basis in
fact or in law. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
I.

Library Policy and Access

First, Plaintiff presents a set of objections regarding the Magistrate Judge’s
assessment of the good faith nature of his claim regarding the Aransas County Detention
Center’s (ACDC) library policy and access to the law library. D.E. 75-2, pp. 1-10. Plaintiff
states that he can demonstrate actual injury based on ACDC’s inadequate law library
resources and library policy. D.E. 75-2, p. 3. He asserts that if the Court had granted leave
to amend, he would have been able to correct the underlying deficiencies in his complaint.
D.E. 75-2, p. 4.
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First, as noted in a prior M&R (D.E. 35) and this Court’s Order adopting that M&R
(D.E. 58), leave to amend Plaintiff’s complaint would be futile because he did not exhaust
his administrative remedies before filing the complaint. A complaint for a denial of access
to a law library is a claim that must be exhausted if a grievance policy is available.2 Garner
v. Moore, 536 F. App’x 446, 449 (5th Cir. 2013) (per curiam). Plaintiff’s failure to exhaust
the appropriate grievance process cannot be corrected on appeal. Granting a motion for
leave to amend would remain futile.
Plaintiff cites Davis v. Milwaukee County, 225 F. Supp. 2d 967, 976 (E.D. Wis.
2002), for the proposition that dismissing a case for failure to exhaust administrative
remedies denies plaintiff access to the courts. D.E. 75-2, p. 2. In Davis, the court held that
the defendants interfered with the plaintiff’s ability to exhaust because the total absence of
legal materials did not permit him to learn about the exhaustion requirement. In contrast,
Plaintiff does not allege that he was unaware of the exhaustion requirement or the grievance
procedure, nor does he state any objection that explains why he did not file grievances.
Plaintiff also cites Cody v. Weber, 256 F.3d 764, 768-69 (8th Cir. 2001), for the
proposition that he is not required to prove a case within a case to support his actual injury
related to the denial of access to legal materials. But the injury in Cody was a violation of
constitutional rights by opening plaintiff’s legal mail. Here, there is no such independent
injury. Plaintiff must show that he had a viable claim that was hindered or lost due to the
lack of access to the library. For such a claim, a case within the case is required.

ACDC has a policy that requires filing grievances before filing a civil rights complaint. See Aransas County
Detention Center Inmate Handbook, Aransas County, https://www.aransascounty.org/detentioncenter/edocs/Inmate%20Rule%20Book%204%2026%202022.pdf, last visited November 26, 2024.
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Plaintiff cites additional cases in support of his argument that he presented a proper
access-to-courts claim, but none of these are responsive to the recommendations in the
M&R, nor do they concern appeals in forma pauperis. See Neitzke v. Williams, 490 U.S.
319 (1989) (regarding complaint, not appeal, filed in forma pauperis); Christopher v.
Harbury, 536 U.S. 403 (2002) (holding that plaintiff failed to state a backward-looking
access-to-courts claim upon which relief could be granted); Thomson v. Washington, 362
F.3d 969 (7th Cir. 2004) (holding that prisoners’ civil rights suits do not require heightened
pleading); Morrow v. Harwell, 768 F.2d 619 (5th Cir. 1985) (decided before the Supreme
Court’s clarification of access-to-courts claims in Lewis v. Casey, 518 U.S. 343 (1996));
Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003) (regarding prison law library’s failure to
provide a copy of the statute necessary for plaintiff’s habeas claim).
Plaintiff states that prisoners must receive sufficient access to prison libraries, and
that according to ACDC’s library policy, inmates do not have sufficient time for legal
research. However, there is no right to unlimited access to prison law libraries, and there
may be limitations placed on access if these regulations are “reasonably related to
legitimate penological interests.” McDonald v. Steward, 132 F.3d 225, 230 (5th Cir. 1998)
(citing Lewis, 518 U.S. at 361; see also Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.
1999) (holding that limiting access to a law library to five hours a week does not violate
the right of access to the court). Plaintiff cannot assert in good faith an access-to-courts
claim because he has failed to demonstrate that any lack of access to the law library
impacted any particular legal claim.

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Plaintiff also argues that “in order to assure that incarcerated persons have
meaningful access to courts, states are required to provide affirmative assistance in the
preparation of legal papers in cases involving constitutional rights, and other civil actions
related to their incarcerations.” D.E. 75-2. p. 10. His assertion is incorrect. See Lewis, 518
U.S. at 351 (clarifying that there is no “freestanding right to a law library or legal
assistance,” but instead a right of access to the courts.).
Last, Plaintiff contends that “states may not erect barriers that impede the right of
access of incarcerated persons.” D.E. 75-2, p. 7. To allege a constitutional violation,
inmates must “demonstrate that the alleged shortcomings in the library or legal assistance
program hindered [their] efforts to pursue a legal claim.” Lewis, 518 U.S. at 351. Despite
numerous rulings explaining this requirement, Plaintiff does not demonstrate how the
ACDC library policy prevented him from pursuing any particular legal claim. His
assertions are contrary to the well-established requirements for access to courts claims, are
conclusory, and do not present a nonfrivolous claim. See Al-Ra'id v. Ingle, 69 F.3d 28, 32
(5th Cir. 1995) (asserting that conclusory allegations are insufficient to maintain a claim).
All of Plaintiff’s objections regarding the law library policy are OVERRULED.
II.

Retaliation

Plaintiff objects to the Magistrate Judge’s recommendation to deny his in forma
pauperis appeal for his retaliation claim. D.E. 75-2, p. 11. He does not state specific
objections to the recommendations but references his prior briefing. A complaint that
merely rehashes prior briefing that has been rejected by the Court does not constitute a

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proper objection and will not be considered. Edmond v. Collins, 8 F.3d 290, 293 n.7 (5th
Cir. 1993).
Plaintiff’s objection is OVERRULED.
III.

Sexual Discrimination

Plaintiff objects that his sexual discrimination allegations were previously
dismissed because he was not given leave to amend the claim to fix the issues therein. D.E.
75-2, p. 11. Plaintiff also states that he is not an attorney with law school experience, nor
was he appointed an attorney to help him with his legal matters. But if granted leave to
appeal, Plaintiff contends that the case would be found in his favor. D.E. 75-2, p. 12.
However, this claim would fail upon appeal, since unlawful discrimination is a civil rights
claim that must first be exhausted through administrative remedies before filing suit.
Johnson v. Johnson, 385 F.3d 503, 515, 519 (5th Cir. 2004). Plaintiff did not exhaust the
administrative remedy of filing grievances with ACDC.
Plaintiff’s objection is OVERRULED.
CONCLUSION
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 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.

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Accordingly, the Court DENIES Plaintiff’s motions to proceed in forma pauperis
on appeal (D.E. 64, 69, 71). The Court certifies that the appeal is not taken in good faith.
Plaintiff may pay the filing fee and other relevant costs in order to proceed on appeal or
can contest this Court’s certification decision by filing a motion for leave to proceed in
forma pauperis with the court of appeals. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
ORDERED on November 26, 2024.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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