Musgrove v. Burks et al

Filing 32

MEMORANDUM AND ORDER ON DISMISSAL.(Signed by Judge Kenneth M. Hoyt) Parties notified.(ccarnew, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JAMES MUSGROVE,
Plaintiff,
VS.
ARIEL BURKS, et al,
Defendants.

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CIVIL ACTION NO. G-08-177

MEMORANDUM AND ORDER OF DISMISSAL
James Musgrove (TDCJ # 653775), an inmate in custody of the Texas Department of
Criminal Justice-Correctional Institutions Division, (TDCJ-CID), has filed a complaint under 42
U.S.C. § 1983, alleging violations of his civil rights in connection with conditions of his
confinement. Musgrove, who proceeds pro se and in forma pauperis, has also filed an amended
complaint. In order to properly evaluate the plaintiff’s claims, the Court ordered, via a Martinez1
report, relevant grievances. After considering all the pleadings and the applicable law, the Court
will dismiss this case for reasons set forth below.
I.

BACKGROUND
Musgrove, who is presently incarcerated at the Polunsky unit, sues the following officials

employed by the TDCJ at the Darrington unit facility: (1) Assistant Warden Todd Harris; (2)
former Director Nathaniel Quarterman; (3) Officer Ariel Burks; (4) Officer Davis; (5) Officer
Lakendra Dently; (6) Officer Hester Jones; (7) Officer Taylor; (8) Officer Weeks; and (9) John
Doe #s 1 - 3. The complaint is summarized below.
Musgrove alleges that in 2008, defendant Burks and Dentley retaliated against him to
discourage him from taking showers by stealing his personal property (a “trapper keeper”),
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Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1987).

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throwing the personal property in his cell into disarray and stomping on his bed with filthy shoes
while he was in the shower. Musgrove states that the defendants seek to discourage the taking of
showers because they don’t want to do their jobs. Musgrove believes that Burks is responsible
for other acts of retaliation by defendant Davis, who terminated showers too quickly and
sometimes refused to turn on the hot water.
Musgrove also claims that Defendant Taylor delayed his visitation with his parents,
forcing them to leave “visibly upset.”
Finally, Musgrove alleges that while attempting to clear a blocked sink, two prisoners
broke the sink and the seal on the drain pipe in his cell, causing water to puddle on his cell floor.
He blames Assistant Warden Todd Harris and former Director Quarterman for failing to hire
professional plumbers to fix the sink.
II.

STANDARD OF REVIEW
When a plaintiff seeks to proceed in forma pauperis pursuant to 28 U.S.C. §1915(a), the

court may dismiss the pauper's case if satisfied that it is frivolous, malicious, or fails to state a
claim for which relief can be granted. 28 U.S.C. §1915A(b)(1). A case may be dismissed for
being frivolous if the claim has no realistic chance of ultimate success or has no arguable basis in
law and fact. 28 U.S.C. § 1915(e)(2)(B)(1); Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir.
2007). The determination whether an action is frivolous or malicious may be made prior to
service of process; therefore, such claims are dismissible sua sponte prior to service under 28
U.S.C. § 1915 (e)(2). Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990).
III.

DISCUSSION
With respect to Musgrove’s complaint about the loss or destruction of personal property,

it is well established that a negligent, or even intentional, deprivation of property by state

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officials that is random and unauthorized does not rise to the level of a constitutional violation or
a cognizable claim under 42 U.S.C. § 1983 if state law provides an adequate post-deprivation
remedy. See Hudson v. Palmer, 468 U.S. 517, 533-34. Texas provides a remedy for inmates
whose property has been taken or destroyed in an unauthorized manner.

See Myers v.

Klevenhagen, 97 F.3d 91, 95 (5th Cir. 1996; Marshall v. Norwood, 741 F.2d 761, 764 (5th Cir.
1984); see also

TEX. GOV’T CODE

§§ 501.007, 501.008. Thus, Musgrove’s allegation that items

of personal property were thrown into disarray, lost or destroyed in an unauthorized manner fails
to state a claim. See Myers, 97 F.3d at 95; see also Leggett v. Williams, 277 F. App’x 498, 500,
2008 WL 1984271 (5th Cir. 2008) (holding that the plaintiff’s claim that his property was
confiscated and destroyed as an act of retaliation for his status as a writ writer was barred by the
Parratt/Hudson doctrine).
With regard to Musgrove’s visitation privileges, it is well settled that inmates have no
absolute constitutional right to receive visits while in prison. See McCray v. Sullivan, 509 F.2d
1332, 1334 (5th Cir.), cert. denied, 423 U.S. 859 (1975). The Fifth Circuit has repeatedly held
that “[v]isitation privileges are a matter subject to the discretion of prison officials.” Berry v.
Brady, 192 F.3d 504, 508 (5th Cir. 1999) (quoting McCray, 509 F.2d at 1334); see also Thorne
v. Jones, 765 F.2d 1270, 1273, cert. denied, 475 U.S. 1016 (1986). Musgrove contends only that
his parents were visibly upset during one visitation and chose to leave the visitation early. Under
these circumstances, Musgrove’s complaint that the defendants interfered with his visitation
privileges fails to present “a cognizable claim.” Berry, 192 F.3d at 508.
The remainder of Musgrove’s complaints refer to random allegations of retaliatory
interference with his showers. His allegations are insufficient to make a claim of retaliation. To
state a claim of retaliation, “a prisoner must establish (1) a specific constitutional right, (2) the

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defendant’s intent to retaliate against the prisoner for his or her exercise of that right, (3) a
retaliatory adverse act, and (4) causation.” McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.
1998). A prisoner’s personal belief that retaliation must have been the reason for the adverse
action is insufficient to state a valid claim under 42 U.S.C. § 1983. See Jones v. Greninger, 188
F.3d 322, 325 (5th Cir. 1999). Moreover, a claim of retaliation must spring from the initial
violation of a constitutional right. Musgrove has not identified a constitutional right that has
been violated.
Musgrove does not specifically attribute his complaints about the plumbing to Assistant
Warden Harris or former Director Quarterman personally.

In that respect, the conclusory

allegations made by Musgrove are insufficient to show that Assistant Warden Harris or former
Director Quarterman had any improper retaliatory motive or personal involvement with a
retaliatory adverse act where Musgrove’s plumbing complaints were concerned. Absent specific
facts showing that Assistant Warden Harris or former Director Quarterman had the requisite
personal involvement with a constitution violation, Musgrove’s complaint fails to state a claim
upon which relief can be granted. Because Musgrove fails to show that any of the claims in his
complaint are valid under 42 U.S.C. § 1983, this case will be dismissed.
IV.

CONCLUSION
Based on the foregoing, the Court ORDERS that the complaint is DISMISSED with

prejudice as legally frivolous for purposes of 28 U.S.C. § 1915(e)(2)(b).
The Clerk is directed to provide a copy of this order to the plaintiff. The Clerk will
also provide a copy of this order by regular mail, facsimile transmission, or e-mail to: (1)
the TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, Texas, 78711, Fax
Number [phone]; and (2) the District Clerk for the Eastern District of Texas, Tyler

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Division, 211 West Ferguson, Tyler, Texas, 75702, Attention: Manager of the Three-Strikes
List.
SIGNED at Houston, Texas this 4th day of August, 2011.

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Kenneth M. Hoyt
United States District Judge

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