Avila v. Landgrebe et al
Filing
17
MEMORANDUM OPINION AND ORDER dismissing 1 Complaint, denying as moot 8 MOTION for Extension of Time File More Definite Statement, denying as moot 9 MOTION for Extension of Time Plaintiff's More Definite Statement, denying as moot 16 MOTION for Extension of Time TO FILE ANSWER. (Signed by Judge Sim Lake) Parties notified. (aboyd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSE MARIA VILLATORO AVILA,
NO. A090968520,
Plaintiff,
V.
KENNETH LANDGREBE, et al.,
Defendants.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-12-2315
5
MEMORANDUM OPINION AND ORDER
Jose Maria Villatoro Avila, an immigration detainee at the Joe
Corley Detention Center, has filed a civil rights complaint against
Kenneth Landgrebe, Director, Removal and Detentions Operations for
the United States Immigrations and Customs Enforcement ("ICE");
Gary Goldman, Chief Counsel for the United States Department of
Homeland Security ("DHS"); John Morton, Director for ICE; and Eric
Holder (Original Complaint, Docket Entry No. 1).
For the reasons
explained below, this action will be dismissed.
I.
Villatoro Avila
C l a i m s and A l l e c r a t i o n s
claims that he has been denied adequate
medical care in violation of his rights under the Constitution.
The medical care claim is based on alleged inadequate responses to
requests for dental and vision care. He also complains that he has
been denied access to the courts.
In both his Original Complaint
(Docket Entry No. 1, pp. 3 and 4) and his More Definite Statement
(Docket Entry
No.
10, pp.
3
and
4),
Villatoro Avila
names
Landgrebe, Goldman, Morton, and Holder as the defendants to his
complaint. He contends that Landgrebe, who is the director of the
Joe Corley Center, is responsible for the facility's
operations.
Villatoro Avila names Goldman because he is Chief Counsel for ICE
in Houston.
Morton is named because he is the Director of ICE.
Holder is named because he is the United States Attorney General.
All are sued in their official capacities (Docket Entry No. 10,
p. 3 ) Villatoro Avila
also
identifies
John
Hernandez,
official, as a defendant in his more definite statement.
an
ICE
I .at 2.
d
Villatoro Avila contends that Hernandez intervened constantly in
matters in which he filed grievances.
Villatoro Avila complains
that Hernandez told him that he was creating a hostile environment
by filing grievances and that he would give Villatoro Avila glasses
if he would stop filing grievances (Docket Entry No. 10, p. 2) .
Hernandez is also alleged to be involved in the kitchen operations,
and Villatoro Avila speculates that Hernandez removed detainees
from their jobs if they challenged their immigration cases or filed
grievances.
A.
I.
d
Dental Care
Villatoro Avila states that his teeth are in bad condition and
that a dentist at the Cameron County Detention Center had to pull
-2-
one of his molars in 2006 (Docket Entry No. 10, p. 19).
He was
later transferred to the Hidalgo Detention Center in La Villa,
Texas, where a dentist pulled a second molar in 2010 (Docket Entry
No. 10, p. 19) .
He was subsequently moved to the Joe Corley
Detention Center where he
submitted requests
for
replacement
molars, a root canal, fillings, and chipped tooth repair.
4.
I . at
d
Villatoro Avila claims that he was told that the dentists at
Joe Corley only performed emergency procedures and that he was not
eligible for replacement molars.
that he was given several fillings.
I . at 6.
d
However, he admits
I .at 20. He states that he
d
filed a grievance about his dental care and his response contains
the following chronology:
The detainee arrived on 11/18/11 and was seen that
day by dental.
He placed a sick call on 1/20/12 for a call for a
filling. He was seen 01/20/12 by the dentist. He
wanted his teeth cleaned and complained of tooth
#19 bothering him. The dentist did some scaling
around the tooth, gave some Tylenol for pain, and
Peridex rinse to clean and remove food particles
from around the tooth.
The detainee was
reschedule[d] for filling placement.
On 02/13/12 the detainee had a filling in tooth
#19.
On 03/23/12 the detainee put in another sick call
for chipped teeth and 2 missing molars which he
arrived to the facility with, he was schedule[d] to
see the dentist on 03/27/12, but the detainee
refused his appointment.
On 04/05/12 the detainee put in a sick call for the
above problem again. He was seen by the dentist.
The dentist told him he was ineligible for the
dental work the detainee was requesting such as
bridges, crown work, etc . . .the dentist did fill
tooth 21 and 22.
On 4/13/12 the detainee placed a sick call for
missing molars and was requesting a root canal or
bridges. A written response was submitted back to
the detainee stating that he was not eligible for
replacement molars and did not require a root
canal.
The JDCF
only.
[sic] completes emergency dental care
Docket Entry No. 10, p. 5.
Villatoro Avila complains that he is entitled to additional
services including bridge work and crowns.
He admits that he can
eat almost anything although he has bitten his inner cheeks while
using his middle teeth to chew.
I , at 20.
d
Villatoro Avila
contends that he has experienced humiliation and discrimination due
to his lack of dental care.
B.
I . at 15.
d
Vision Care
Villatoro Avila complains that he has been denied medical care
for his vision.
He alleges that he had been trying to obtain
eyeglasses for reading since November of 2011 (Docket Entry No. 10,
p. 6) although he admits that there is no record of such a request
being made
(Docket Entry No.
January 17, 2012, he
optometrist.
10, p.
submitted a
6).
He states that on
request to be
seen by
an
The medical staff responded the next day by telling
Villatoro Avila that the request was "non-urgent" and that he
needed to be in ICE custody continuously for one year before he
could be issued reading glasses.
I . He was also informed that he
d
could purchase reading glasses at the commissary.
On March 23, 2012, Villatoro Avila
request for eyeglasses.
sent another medical
I . at 7. This time he declared that he
d
had been in federal custody for two years and two months and that
he could not wait an entire year to receive glasses (Docket Entry
No. 10, p. 7).
Although the court instructed Villatoro Avila to
describe the problems with his vision as determined by a doctor, he
provides no such information in his court ordered more definite
statement. See id. at 6-7, 21. He alleges that John Hernandez, an
ICE official, came to see him about his glasses on March 29, 2012.
According to Villatoro Avila, Hernandez said that he would get him
some glasses if he would stop filing grievances.
I . In spite of
d
Hernandezfs offer, Villatoro filed another grievance on May 7,
2012, complaining that he had been trying to obtain glasses with
corrective lenses since November of 2011.
answered
with
the
following
statement,
His grievance was
"we
were
awaiting
confirmation from the medical department in regards to an eye
appointment.
It has been confirmed that you will be seen for an
eye exam on June 4, 2012."
Id.
Villatoro Avila states that he was provided glasses on or
about June 15, 2012 (Docket Entry No. 1, p. 7).
to wait eight months before ICE gave him glasses.
In total, he had
I .at 21. He
d
complains that he suffered pain and discomfort trying to read
before he received the glasses (Docket Entry No. 1, p. 7).
He
further alleges that the optometrist tested him for vision loss
although he admits that he does not know if the delay harmed his
I.
d
eyes.
C.
Access to Courts
Villatoro Avila complains about the limitations or lack of
various services he claims that he needs to perform his legal work.
He alleges that he was not allowed personal use of a copier, which
is necessary to maintain the confidentiality of his legal work
(Docket Entry No. 10, p. 7).
He alleges that he filed a grievance
requesting that a copier be placed in the unit law library, but was
told by the law library clerk that she did not have the authority
to order a copy machine.
I . at 7-8. She also informed him that
d
it was her job to make copies, assuring him that no one else would
see his materials.
I .at 8. However, Villatoro Avila objects to
d
the policy because he does not want the clerk to keep his materials
for an extended time. He filed another grievance on April 8, 2012,
again requesting personal access to a copier in the library and
stating that it is unlawful to keep his materials for several days.
I . A week later, the grievance was denied, apparently by the
d
warden, with the notation that Villatoro Avila needed to follow the
established procedure if he wanted copies made.
Villatoro Avila complains about the policy of limiting him to
ten free copies per week unless the warden grants permission.
at 10.
I.
d
He filed a grievance asserting that his family provided
-6-
meager financial support and that he needed additional copies
because of his federal court proceedings.
The grievance was
rejected based in part on the finding that Villatoro Avila worked
in the kitchen for which he was paid.'
The response also indicated
that Villatoro Avila could make additional copies even if he did
not have funds and his inmate account would reflect a deficit for
the excess copies (Docket Entry No. 10, p. 10) .
Villatoro Avila
complains that he only earns $3.00 per day and that his family sent
the money so that he could treat himself to a candy bar or soda,
not to pay his legal expenses.
When Villatoro Avila appealed the
decision, the response stated that his
inmate account record
reflected that he was indulging in more than an occasional candy
bar and that he would be charged for additional copies.
I .at 11.
d
Villatoro Avila also complains that he has to pay postage for
his legal mail. Like his grievances regarding copies, the response
from the officials was that he was not
indigent due to his
employment and the gifts from his family. The response also noted
that there were funds in his account. Villatoro Avila repeated his
protest that he was only paid $3.00 per day and that his family's
money was for candy and soda, not legal expenses.
He argues that
the finding that he is not indigent because he receives a meager
salary and an occasional gift is akin to declaring that a homeless
'~lthough
the court has allowed Villatoro Avila to proceed as
a pauper in this proceeding, his records indicate that he receives
approximately $50 per month.
Docket Entry No. 3.
person is no longer homeless when someone gives him money.
I .at
d
11, 13.
Villatoro
Avila
complains
that he
has
not been
allowed
sufficient time in the law library (Docket Entry No. 10, p. 13) .
He alleges that he requested additional time to print out legal
information he needed
(Docket Entry No. 10, p. 13).
library responded that it was necessary to make
The law
the library
available to detainees held by the United States Marshal as well as
those held by ICE and that the two groups could not be mixed.
I.
d
However, Villatoro Avila was also told than an accommodation would
be made if time permitted after the entire detainee population had
a chance to use the law library that week.
On another occasion
Villatoro Avila sought additional library time stating that he had
only been allowed to use the library for less than three hours for
each of the previous three weeks.
I . at 14.
d
acknowledged that his designated time was
5:00 p.m. each Monday.
The response
from 2:00 p.m. to
The library also repeated the need to
provide access to the entire population including females and those
placed in segregation, which could not be commingled.
Villatoro
Avila alleges that he has been banned from the library because the
library clerk did not like his attitude.
I . He contends that the
d
staff provoked his alleged misbehavior.
Villatoro Avila also complains that the law library has an
incomplete collection.
I . at 15. He alleges that there is only
d
case law on immigration and none on habeas or civil law. He admits
that he did not exhaust the grievance process on this subject but
claims that he did not file any grievances for fear of retaliation
by ICE officials (Docket Entry No. 10, p. 15) .
He also complains
about the quality of the computers available to him at the library
as well as his access to the LexisNexis network.
I . at 23.
d
In response to the court's order for more definite statement,
Villatoro Avila states that he was working on an immigration case
and a 5 2241 habeas case when he was allegedly denied access to the
courts.
I .at 22. Although he alleges that he was substantially
d
delayed in obtaining judicial review of his claims, he does not
cite any instance in which a petition or complaint was dismissed or
denied due to untimely filing.2
He only refers to his frustration
with officials who make copies of his documents and his limited
access to the law library and related resources.
11.
Analvsis
Although Villatoro filed this action as a suit under 42
U.S.C.
§
1983, his pleading is actually a complaint filed pursuant
to Bivens v.
Narcotics,
Six Unknown Named Agents
91 S.Ct. 1999
of Federal Bureau of
(1971), in which the Supreme Court
recognized the right of individuals to assert claims for damages
against federal officials in causes of actions similar to suits
2~here
are two actions filed by Villatoro Avila pending in the
McAllen Division of the Southern District of Texas. Villatoro
Avila v. USA, No. 7:11cv150 (S.D. Tex); Villatoro v. Holder,
No. 7:llmc025 (S.D. Tex.) .
brought against state officials under 42 U.S.C.
§
1983.
Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1948 (2009); Whitlev v. Hunt, 158 F.3d
882, 885 (5th Cir. 1998).
Claims presented in Bivens actions are
subject to standards comparable to those presented in actions
brought under 42 U.S.C.
§
1983.
I . Consequently, the plaintiff
d
in a Bivens action must show that the defendants violated his
constitutional rights. Abate v. Southern Pacific Transp. Co., 993
F.2d 107, 110 (5th Cir. 1993) .
Villatoro Avila named Landgrebe, Goldman, Morton, and Holder
as defendants in this action due to their superior administrative
positions.
These defendants cannot be found liable because the
doctrine of respondeat superior does not apply in civil rights
actions.
Montova-Ortiz v. Brown, 154 F.Appfx 437, 439 (5th Cir.
2005); Cronn v. Buffinston, 150 F.3d 538, 544 (5th Cir. 1998);
Eason v. Thaler, 73 F.3d 1322, 1327 (5th Cir. 1996).
Villatoro
Avila must show that the defendants were either personally involved
in'the alleged deprivations or that the policies they implemented
were so deficient that they resulted in the deprivations.
Cronn,
150 F.3d at 544. Allegations of isolated instances of deprivations
alone do not support a liability claim based on a policy.
Citv of
Oklahoma Citv v. Tuttle, 105 S.Ct. 2427, 2436 (1985); Biqford v.
Tavlor, 834 F.2d 1213, 1220 (5th Cir. 1988).
There are no allegations of any policies promulgated by
Landgrebe, Goldman, Morton, and Holder that injured Villatoro
Avila.
Therefore, these defendants cannot be held liable.
See
Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996) .
Moreover, the
doctrine of sovereign immunity acts as a bar against Bivens actions
brought against federal employees in their official capacities.
Gibson v. Federal Bureau of Prisons, 121 F.Appfx 549, 551 (5th Cir.
2004), citins Correctional Services Corp. v. Malesko, 122 S.Ct.
515, 522 (2001); see also Hafer v. Melo, 112 S.Ct. 358, 361 (1991)
(claims against employees in official capacities are considered a
suit against the government entity they represent).
In addition,
Villatoro Avila has failed to assert facts that there was any
deprivation of his federal or constitutional rights as will be
explained.
A.
Dental Care
As a detainee Villatoro Avila has a constitutional right to
basic, reasonable medical care. Jacobs v. West Feliciana Sheriff's
Dep't, 228 F.3d 388, 393 (5th Cir. 2000); Cupit v. Jones, 835 F.2d
82, 85 (5th Cir. 1987).
A custodial official violates that right
if he is deliberately indifferent to an inmatefs serious medical
need. Lawson v. Dallas Countv, 286 F.3d 257, 262 (5th Cir. 2002),
citins Estelle v. Gamble, 97 S.Ct. 285, 291 (1976).
A serious
medical need is one that has been diagnosed by a doctor or health
professional or a condition that is so obvious that even a
layperson would recognize that medical care is required. Gobert v.
Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
An inmate's right of access to medical care includes the right
to see a dentist when the conditions of his teeth or gums have a
serious affect on his health and well being.
Williams v. Mason,
210 F.Apprx 389 (5th Cir. 2006), citins Farrow v. West, 320 F.3d
1235, 1239-41 (11th Cir. 2003); Wvnn v. Southward, 251 F.3d 588,
593 (7th Cir. 2001).
In such cases, the inmates cannot chew or eat
adequately due to the extreme poor condition of their dental
health.
I . Often, they have few if any teeth left. See Farrow,
d
(only two teeth remaining); Huffman v. Linthicum, 265 F.App'x 162
(5th Cir. 2008) (only three teeth remaining); Wvnn, 251 F.3d at 591
(prisoner unable to chew food without dentures which had been
previously issued). In contrast, Villatoro Avila has almost a full
set of teeth, and he admits that he can eat most foods although he
experiences some difficulty because of the two missing molars.
Villatoro Avila complains that his teeth have not been given
adequate attention, but he admits that he has been seen by a
dentist on several occasions and that he has had two or three
fillings.
These
facts
rebut
his
allegations of
deliberate
indifference. Hav v. Thaler, 470 F.Applx 411, 416 (5th Cir. 2012),
citins Gobert, 463 F.3d at 346 n.24.
- - Banuelos v.
See also
McFarland, 41 F.3d 232, 235 (5th Cir. 1995); Mendoza v. Lvnaush,
989 F.2d 191, 193-95 (5th Cir. 1993).
deliberate
indifference by
An inmate cannot establish
alleging that the defendants were
unsuccessful treating him or that they were negligent.
-12-
m, 470
F.Apprx 411, citinq Gobert, 463 F.3d at 346.
See also Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
Villatoro Avila complains that he had planned on receiving
crowns for his broken teeth along with braces or veneers before
being detained by the authorities (Docket Entry No. 10, p. 20) . He
contends that he is entitled to these services in addition to the
I . While an inmate has a right to basic
d
molar replacements.
medical services to treat serious physical needs, he does not have
a right to the best possible care or care that is .available to
those
who
are
not
detained
or
incarcerated.
Dallas Countv, 591 F.3d 445, 455 n.3 (5th Cir. 2009).
Shepherd
v.
There is no
right to services such as braces and veneers that serve only a
See Blavne v. Flatterv, 180 F.Appfx 510 (5th
cosmetic purpose.
Cir. 2006); Jackson v. Wharton, 687 F.Supp. 595 (M.D. Ga. 1988).
Villatoro Avila has not shown that he has been denied dental
services in regard to a serious health need. His disagreement with
the health officials over what is necessary is not actionable.
Sama
v.
Hannisan,
669
F.3d
585,
590-591
(5th Cir.
2012).
Therefore, this claim has no legal basis.
B.
Vision Care
-
Glasses
Villatoro Avila complains that he was denied glasses for eight
months.
Denial of eyeglasses may constitute an act of deliberate
indifference if it results in serious injury or loss of vision.
See
- Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (inmate
-13-
suffered double vision and loss of depth perception due to head
injury which could have been remedied by prescription glasses).
See also
- - Newman v. Alabama, 503 F.2d 1320, 1331 (5th Cir. 1974).
Glasses are necessary and must be issued when an inmate is blind
and unable to function without them.
See, e.s., Benter v. Peck,
825 F.Supp. 1411 (S.D. Iowa 1993); Williams v. ICC Committee, 812
F.Supp. 1029 (N.D. Cal. 1992) (Both inmates were legally blind.).
However, failure to issue glasses does not support a civil rights
claim where there is no showing of substantial harm or that the
defendants were subjectively aware of the inmaters need. Thomas v.
Owens, 345 F.Apprx 892, 896 (5th Cir. 2009).
The fact that an
inmate cannot see well without his glasses is not sufficient
without a showing that he would suffer harm without them.
The plaintiffrs vision in Benter was 20/400.
I.
d
Benter, 825
F.Supp. at 1416. Villatoro Avila fails to assert a specific acuity
in response to the court's inquiry (Docket Entry No. 10, p. 21).
He states that he has difficulty reading small text and that his
blurry vision affects his daily life (Docket Entry No. 10, p. 21).
He also complains that his eyes become irritated when he reads
without glasses.
I . He admits that he was given glasses after
d
eight months and fails to assert any harm resulting from the delay.
The alleged delay in receiving the glasses is not actionable where
there is no indication that Villatoro Avila was harmed by the
delay.
Mendoza, 989 F.2d at 195.
legal basis.
Therefore, this claim has no
C.
Access to Courts
Villatoro Avila complains about the law library and copying
services available to him at the Joe Corley Center.
He complains
that he does not have direct access to a copier and that he is only
allowed ten free copies each week.
He laments how he must choose
between paying for extra copies or candy and soda. A prison inmate
or detainee has a right of access to the court system, and he must
have access either to an adequate law library or to adequate legal
assistance by trained personnel.
1498 (1977).
Bounds v. Smith, 97 S.Ct. 1491,
However, the "Supreme Court has not extended this
right to encompass more than the ability of an inmate to prepare
and transmit a necessary legal document to a court."
Wilkinson, 3 F.3d 816, 821
Brewer v.
(5th Cir. 1993), citins Wolff v.
McDonnell, 94 S.Ct. 2963, 2984 (1974).
"In other words, Bounds
does not guarantee inmates the wherewithal to transform themselves
into
litigating
engines
capable
of
filing
everything
shareholder derivative actions to slip-and-fall claims."
from
Lewis v.
Casev, 116 S.Ct. 2174, 2182 (1996).
Villatoro Avila fails to show that being charged for copies is
a violation of his rights because there is no free standing right
to copies of legal work.
136 (5th Cir. 1975).
See Bonner v. Henderson, 517 F.2d 135,
See also Brinson v. McKeeman, 992 F.Supp.
897, 910 (W.D. Tex. 1997) ("access to typewriters and copy machines
is not an essential part of the right of access to the courts").
Although free access to a copier would
-15-
facilitate his work,
Villatoro Avila has failed to show he has been prevented from
filing his pleadings.
2012).
See In re Maxv, 674 F.3d 658, 661 (7th Cir.
The extensive typewritten pleadings filed in this action
alone belie his allegation that his efforts have been seriously
impeded. Beck v. Lvnauqh, 842 F.2d 759, 762 (5th Cir. 1988). The
Joe Corley Detention Center provides Villatoro Avila his basic
needs for food, shelter, and medical care.
It is not unreasonable
or unconstitutional to expect him to pay for some of the costs of
preparing and filing his court cases. See Atchison v. Collins, 288
F.3d 177, 180-81 (5th Cir. 2002).
Villatoro Avila also fails to show how his rights are violated
when a clerk holds his papers for copying.
Busbv v. Dretke, 359
F.3d 708, 721 (5th Cir. 2004) . Courts have recognized the need for
custodial authorities to open, review, and occasionally censor
outgoing mail.
I . Villatoro Avila has presented no facts
d
indicating that anyone read or tampered with his materials while
copying them.
Therefore, his complaint regarding the copies is
baseless.
Villatoro
Avila
also
complains
about being
charged
for
postage. Like his complaint about copies, Villatoro Avila fails to
show how the postal charges have impeded his access to the courts.
See
- Winn v. Department of Corrections, 340 F.Apprx 757, 758 (3d
Cir. 2009).
While an indigent inmate has a right to mail his
pleadings if he does not have the requisite funds, his custodian
can seek reimbursement when the inmate receives funds.
-16-
Id
I .
.
Guaiardo v.
Estelle,
580
F.2d
748,
762-63
(5th Cir.
1978).
Villatoro Avila admits that he has been receiving money from his
family and his job.
Although he compares himself to a homeless
person, he is being provided food and shelter along with other
basic services.
He can be charged for postage if he has funds.
See Atchison, 288 F.3d at 180-81.
Villatoro Avila complains that he does not have enough time in
the library although he is allowed to visit for three hours every
week.
Some restrictions may be placed on an inmate's access to a
See Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir.
law library.
1996).
Custodial officials may restrict the number of hours an
inmate
may
spend
in
the
library
without
violating
his
constitutionally protected right of access to the courts. Jones v.
Greninqer, 188 F.3d 322, 325 (5th Cir. 1999). There are other ways
in which an inmate may be able to achieve meaningful access to the
courts.
Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir. 1985) .
Villatoro Avila admits that he has been allowed to make copies of
legal materials.
He may take advantage of this privilege by
copying statutory materials and case law for later study in the
privacy of his cell.
Villatoro
Avila
complains
about
the
materials
and
the
computers at the library. An inmate does not have a constitutional
right to use a computer for legal research even under seemingly
compelling circumstances.
See Wells v. Thaler, 460 F.Appfx 303,
312-13 (5th Cir. 2012) (blind inmate's needs were met when he was
allowed to work with another inmate who could read to him in the
library and assist him in prepar-ing his pleadings).
Villatoro
Avila complains about the limited legal materials in the library,
but he fails to specify how the alleged shortcomings prevented him
from filing a complaint or petition challenging the conditions or
the validity of his confinement.
757, 761-762 (5th Cir. 2010).
See Terry v. Hubert, 609 F.3d
Moreover, Villatoro Avila has not
shown that his position as a litigant has been prejudiced by the
library's perceived deficiencies.
Brewster v. Dretke, 587 F.3d
764, 769 (5th Cir. 2009), citinq Lewis 116 S.Ct. at 2180.
allegations
regarding
the restricted hours
and
His
the available
resources at the library do not support an actionable claim because
he does not demonstrate how it has impeded his work or prejudiced
his position as a litigant.
MacDonald v. Steward, 132 F.3d 225,
230-31 (5th Cir. 1998), citins Eason v. Thaler, 73 F.3d at 1328.
In addition to failing to assert a claim regarding the
library's resources, Villatoro Avila admits that he did not file a
grievance regarding the library.
Before a prisoner can present a
claim as to prison conditions in federal court, he must first
exhaust prison administrative remedies that are available to him.
42 U.S.C.
§
1997e.
Porter v. Nussle,
This applies to all aspects of prison life.
122 S.Ct. 983, 992 (2002).
Villatoro Avila
alleges that he failed to comply with the grievance requirement
because he was afraid that retaliatory measures would be taken
against him. However, he fails to present any facts substantiating
his fears and does not show that his grievances would subject him
to retaliation. Jones, 188 F.3d at 325. An inmate is not required
to exhaust administrative remedies if they are not available to him
due to intimidation and threats of retaliation.
660 F.3d 1249, 1254 (10th Cir. 2011).
Tuckel v. Grover,
However, he must show:
"(1) that the threat or intimidation actually did deter the
plaintiff inmate from lodging a grievance or pursuing a particular
part of the prison administrative process; and (2) that the threat
or
intimidation would
deter
a
reasonable
inmate of
ordinary
firmness and fortitude from lodging a grievance or pursuing the
part of the prison administrative process that the inmate failed to
exhaust."
I.
d
sufficient
to
Villatoro Avila' s unsupported
exempt
him
from
the
statutory
exhaustion requirement contained in 42 U.S.C.
Lvnch, 460 F.Appfx 45, 47-48 (2d Cir. 2012).
§
fears are not
administrative
1997e.
Sinsh v.
Therefore, his claim
regarding the library is subject to dismissal because of his
failure to exhaust remedies as well as his failure to assert a
claim with any legal basis.
D.
Retaliation (John Hernandez)
Villatoro Avila named only four defendants in his complaint:
Landgrebe, Goldman, Morton, and Holder.
The complaint' s primary
focus was the alleged deficiencies in medical services and court
access.
However, Villatoro Avila also complained about John
Hernandez, who appears to be the only party who had personal
-19-
contact with Villatoro Avila.
Hernandez was apparently responding
to the grievances filed by Villatoro Avila by meeting with him and
attempting to persuade him to cease filing them.
characterizes Hernandez's
Villatoro ~ v i l a
statements as retaliation.
He also
speculates that Hernandez removes inmates from their kitchen jobs
if they file grievances or challenge their immigration cases.
Prisonersf and detaineesf claims of retaliation are considered
warily by the courts lest they become embroiled in the multitudes
of disciplinary actions and grievances filed daily in the prisons,
jails, and detention centers.
(5th Cir. 1995) .
Woods v. Smith, 60 F.3d 1161, 1166
To state a retaliation claim "'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.'"
McFaul v. Valenzuela, 684 F.3d 564, 578 (5th Cir. 2012), suotinq
Jones
f
188 F.3d at 324-25. Causation requires a showing that "but
for the retaliatory motive the complained of incident
have occurred. ' "
...
would not
MacDonald v. Steward, 132 F.3d at 231, suotinq
Johnson v. Rodrisuez, 110 F.3d 299, 310 (5th Cir. 1997).
Hernandez apparently tried to talk Villatoro Avila out of
filing grievances. His only overt statement was a promise that he
would see to it that Villatoro Avila got his glasses if he stopped
filing grievances. Although Villatoro Avila may have not received
his glasses as soon as promised, he had no constitutionally
protected right to receive them immediately.
-20-
Thomas, 345 F.Appfx
at 896.
Hernandez cannot be held liable for failing to resolve a
grievance to Villatoro Avila's satisfaction. Geiser v. Jowers, 404
F.3d 371, 374 (5th Cir. 2005).
Villatoro Avila also fails to
assert a claim regarding his allegations that Hernandez may have
removed some inmates from their kitchen jobs for filing grievances
or immigration litigation. An inmate's claims of retaliation must
rest on more than mere speculations.
See Shelton v. Lemons, 486
F.Appfx 395, 397-398 (5th Cir. 2012).
His personal belief is not
sufficient to support a claim of retaliation. Allen v. Jones, 458
F.Apprx 408, 410 (5th Cir. 2012) .
Villatoro Avila has failed to
allege facts that support a claim of retaliation.
Villatoro Avila was granted permission to proceed as a
pauper.
A prisoner complaint filed in forma pauperis may be
dismissed if it is frivolous. 28 U.S.C.
§
1915 (e)(2)(B)(I).
Such
a complaint is frivolous if it lacks an arguable basis in law.
Talib v. Gillev, 138 F.3d 211, 213 (5th Cir. 1998).
This complaint
will be dismissed because it is frivolous.
111.
Conclusion
1.
Plaintiff's Original Complaint filed under 42
U.S.C. § 1983 (Docket Entry No. 1) by Jose Maria
Villatoro Avila (No. A090968520) is DISMISSED
because it is frivolous. 28 U.S.C. § 1915(e).
2.
Plaintiff's requests for extension of time (Docket
Entry Nos. 8 and 9) are DENIED AS MOOT.
3.
The Clerk shall send a copy of this Memorandum
Opinion and Order to the parties and to Betty
Parker, United States District Court, Eastern
District of Texas, Tyler Division,
Ferguson, Tyler, Texas 75702.
211
West
Defendants' Motion for Enlargement of Time to File Answer
(Docket Entry No. 16) is DENIED A S MOOT.
SIGNED at Houston, Texas, on this 29th day of March, 2013.
v
SIM LAKE
UNITED STATES DISTRICT JUDGE
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