von Falkenhorst v. Ouswu et al

Filing 25

MEMORANDUM AND ORDER Denying 9 MOTION for Temporary Restraining Order Stricken 9 MOTION to Amend 1 Complaint, Denying as moot 8 MOTION for Extension of Time Process by TDCJ to Release Funds, Stricken 16 MOTION for Leave to File Amended Complaint and Summons, denying 14 MOTION for Appointment of Counsel (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

February 04, 2019
David J. Bradley, Clerk

RAINER VON FALKENHORST III, TDCJ §
# 01938554,
§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 3:18-CV-0128
§
KAWABENA OWUSU, et al,
§
§
Defendants.
§
MEMORANDUM OPINION AND ORDER
Plaintiff Rainer von Falkenhorst, an inmate at the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”), filed this civil rights action alleging
that Defendants denied him medication and violated his right to participate in a religious
fellowship. By separate order entered this day, the Court has instructed Plaintiff to
submit a more definite statement. The Court now addresses Plaintiff’s pending motions.
1.

Plaintiff’s motion for extension of time to allow TDCJ to process funds

(Dkt. 8) is DENIED as moot because TDCJ now has processed his payments.
2.

Plaintiff’s motion for appointment of counsel (Dkt. 14) is DENIED

without prejudice because the Court has not yet completed its screening process. See
Order (Dkt. 7), at 3, ¶ 9.
3.

Plaintiff’s motions to amend or supplement his complaint (Dkt. 9, Dkt. 16)

are STRICKEN because Plaintiff has failed to comply with the Court’s instruction to
attach “a complete amended complaint” to any motion to amend. See Order (Dkt. 7), at

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2, ¶ 7 (“Any pleadings or other papers filed in violation of these directions . . . shall
automatically be STRICKEN from the record . . .”).
4.

To the extent Plaintiff’s allegations of retaliation in his filings could be

construed as a request for emergency injunctive relief, Plaintiff has failed to make the
required showing.

A plaintiff seeking a preliminary injunction must establish “(1) a

substantial likelihood of success on the merits, (2) a substantial threat of irreparable
injury if the injunction is not issued, (3) that the threatened injury if the injunction is
denied outweighs any harm that will result if the injunction is granted, and (4) that the
grant of an injunction will not disserve the public interest.” Jones v. Texas Dep’t of
Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018) (citations omitted). To state a valid
claim for retaliation in this context, a prisoner must allege: “(1) a specific constitutional
right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of
that right, (3) a retaliatory adverse act, and (4) causation.” Brown v. Taylor, 911 F.3d 235
(5th Cir. 2018). In this case, Plaintiff has failed to show a “substantial likelihood of
success on the merits” because, among other reasons, he fails to identify any particular
person who caused the specific events about which he complains. See, e.g., Dkt. 9, at 2
(“they shook me down”); id. (“I’m harassed by strip searches [and] they stop[p]ed
medicine”); id. at 3 (“I felt the[y’re] trying to make me quit my job as clerk in cannery”).
In addition, his allegations appear to be based on no more than his personal belief that he
is a victim of retaliation, which is insufficient to satisfy the element of causation or to

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demonstrate retaliation. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
Therefore, his request for injunctive relief is DENIED.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 4th day of February, 2019.
___________________________________
George C. Hanks Jr.
United States District Judge

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