Gilbert v. Mossbarger et al

Filing 21

ORDER denying 20 AMENDED 16 MOTION, denying 16 MOTION for Extension of Time to file a motion for reconsideration. (Signed by Judge Sim Lake) Parties notified. (aboyd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

5
5
5
5

GERALD GILBERT,
TDCJ-CID NO. 1236206,
Plaintiff,

§

v.

5
5

RODNEY E. DEWALT, et al.,

§

CIVIL ACTION NO. H-11-4048

5
Defendants

§

MEMORANDUM OPINION AND ORDER
The court dismissed, as frivolous, the complaint filed by
state prisoner Gerald Gilbert after considering all of Gilbert's
pleadings, including his responses to the court's Order for More
Definite Statement.

Gilbert has moved for reconsideration of the

dismissal and for additional time to move for reconsideration. The
court will deny the motions.
Liberally construed, Gilbert's motions challenge the court's
decision regarding the merits of his pleadings.
was the primary basis of Gilbert's
by

a prison guard.

The incident that

complaint was a pat-down search

Gilbert argued that the guard

sexually

assaulted him by squeezing his chest, buttocks, and thighs.

He

further

in

contended

that

the

guard

conducted

the

search

retaliation for a grievance filed by Gilbert against the guard four
years earlier.

Gilbert also sued other prison officials for

allegedly failing to conduct a thorough investigation after he

filed a grievance in response to the purported sexual assault.

He

contended that the officials were involved in a conspiracy to deny
him due process.

In a supplemental complaint Gilbert alleged

inadequacies in the unit library, such as limited use of copiers
and scanners.
research

He also complained that the staff impeded his

efforts,

and

he

argued

that

he

was

entitled

to

unrestricted access to a computer, on-line legal research, and
certified mail.
The court dismissed the case, noting that Gilbert failed to
allege any physical injury resulting from the guardfs search, which
consisted of no more than a few harsh pinches. See Ikerd v. Blair,
101 F.3d 430, 434 (5th Cir. 1996); Sislar v. Hishtower, 112 F.3d
191, 193 (5th Cir. 1997) .

The court further noted that Gilbertfs

retaliation claims rested on conclusory allegations based on a
remote grievance that was filed some years earlier.

See Enlow v.

Tishominso County, Miss., 45 F.3d 885, 889 (5th Cir. 1995).

The

court also found that Gilbert's complaint about the unsatisfactory
response to his grievance about the search failed to assert an
actionable claim because no right had been implicated.

Finally,

the court dismissed Gilbert's denial-of-access-to-the-courts claim
because he had failed to show that any prison officials had impeded
his

efforts to present

a

claim

conditions of his incarceration.

challenging

the

validity

or

Lewis v. Casev, 116 S.Ct. 2174,

2182-83 (1996). In doing so, the court observed that Gilbert had
submitted lengthy pleadings and had demonstrated
-2-

that he was

provided the means to conduct basic legal research and draft
acceptable pleadings.
Gilbert's

current motions

(Docket Entry Nos.

16 and 20)

reiterate his earlier complaints about the alleged inadequacies of
the legal resources available to him.

Gilbert contends that he

must wait up to an hour for copies of a case that he requested
(Docket Entry No. 16 at 1).

He also claims that if a case is on

the internet, he may have to wait three days to one week for a
printout.

He also restates his desire to seek redress for the

alleged sexual assault and denial of due process in response to his
grievances.

However, he asserts no new facts in support of his

motions.
The court ordered Gilbert to submit a Definite Statement, so
he had a reasonable opportunity to set forth his best case.

See

Jones v. Greninser, 188 F.3d 322, 326-27 (5th Cir. 1999) . Although
the court carefully considered all of Gilbert's lengthy pleadings,
he failed to present any claim that is not frivolous.

Ruiz v.

United States, 160 F.3d 273, 275 (5th Cir. 1998).
Therefore,

plaintiff's

Motion

for

Reconsideration,

Time

Extension to File (Docket Entry No. 16) and Amendment to Motion for
Reconsideration (Docket Entry No. 20) are DENIED.
SIGNED at Houston, Texas, on this

UNITED STATES DISTRICT JUDGE