Mendez v. Johnson et al
Filing
5
MEMORANDUM OPINION AND ORDER. This case is DISMISSED with prejudice. The Inmate Trust Fund is ORDERED to deduct twenty per cent of each deposit made to theinmate trust account of Jesus Mendez.(Signed by Judge Sim Lake) Parties notified.(amwilliams, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JESUS MENDEZ,
TDCJ # 1684153,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
CAPTAIN JOHNSON, et al.,
Defendants.
CIVIL ACTION NO. H-14-2507
MEMORANDUM OPINION AND ORDER
State inmate Jesus Mendez (TDCJ # 1684153) filed this lawsuit
under 42 U.S.C.
§
1983,
alleging violations of his civil rights
while he was incarcerated at the Pam Lychner State Jail Unit of the
Texas Department of Criminal Justice - Correctional Institutions
Division
(TDCJ)
near
Humble,
officials as defendants.
Texas.
He
names
nineteen
TDCJ
After reviewing the complaint, the court
has determined that this action should be dismissed.
I.
Allegations and Claims
Mendez's principal complaint is based on his allegation that
he was wrongly charged with and fined for destruction of state
property in violation of TDCJ rules (Docket Entry No.1, p. 8).
He claims that the disciplinary action was imposed in furtherance
of the campaign of harassment and intimidation against him due to
his ethnici ty and nationality
(Docket Entry No.1,
p.
5).1
He
It is apparent from Mendez's pleadings that his primary
language is not English. A part of them are written in Spanish.
complains that he was discriminated against because he is Mexican
and
an
illegal
immigrant.
Lychner branded him as
a
He
also
alleges
homosexual
that
officials
at
and verbally harassed him
because he has money in his inmate account.
rd. at 5-6.
Mendez claims that, as a result of their prejudice against him
and their desire to prohibit him from using the unit law library,
the defendants fabricated a case accusing him of destroying state
property
(Docket
Entry No.1,
p.
1).
The disciplinary charge
specifically alleged that he destroyed two books by writing in
them.
rd. at 34.
Mendez was provided written notice of the charge
and attended the hearing in person.
rd.
testified
access
that
other
inmates
had
He denied the charges and
to
the
books.
The
disciplinary hearing officer found Mendez guilty of the charges and
assessed the following punishments: loss of recreation for 40 days;
loss of commissary privileges for 40 days;
visits
for
30
days;
one
day
in
assessment of $300.34 in damages.
suspension of contact
solitary
rd.
confinement;
and
an
No good time was forfeited.
Although a large portion of Mendez's complaint is rational,
his claim for relief does not appear to be sensible (Docket Entry
No.1, p. 8).
"What
some
technology
experiments
He states that he wants the Court to investigate,
people
can
do
to
anybody
with
nowdays
[sic]
new
and pitting[sic] on anybody objects, just to make some
bring
up
the
injustice
President Obama everyday speeches."
-2-
to
justice
as
a
(Docket Entry No.1,
remedy,
p.
8)
This incomprehensible request must be considered in context with
Mendez's
bizarre
allegations
that
government
officials
put
a
"nanotechnology devise [sic]" in his head while he was hospitalized
in 1996.
Id. at 6, 10.
Mendez's belief stems from an article he
read in "Muy Interesante," a Spanish language magazine dedicated to
subjects such as the origin of the universe,
time travel.
Id. at 6, 36-38.
human cloning,
and
After reading the article, Mendez
concluded that the prison guards knew what he was thinking and were
able to control his thought processes through their radios because
of the transmitter planted in his head.
Id.
He acknowledges that
his allegations are hard to believe, but he insists that they are
true, and he demands that this injustice be fought.
II.
This
§
civil
action
is
Id.
Analysis
subject
to
review
under
28
U.S.C.
1915 (e) (2) (B), which applies to all litigants proceeding in forma
pauperis.
Under this statute, a district court "shall dismiss" any
in
pauperis
forma
action
under
determines that the complaint is:
§
1915 (e) (2) (B)
if
the
court
(1) frivolous or malicious;
(2)
fails to state a claim upon which relief may be granted; or
(3)
seeks monetary relief against a defendant who is immune from such
relief.
In conducting this analysis, "[ a] document filed pro se is
'to be liberally construed,' . . . and 'a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.'"
-3-
Erickson v.
Pardus,
127
S.Ct. 2197, 2200 (2207), quoting Estelle v. Gamble,
97 S.Ct. 285,
292 (1976).
A
§
court
may
1915(e) (2) (B)
dismiss
a
complaint
as
frivolous
under
"if it lacks an arguable basis in law or fact."
Geiger v Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
"A complaint
lacks an arguable basis in law if it is based on an indisputably
meri tless
legal
theory,
violation
of
legal
a
such
interest
Samford v.
Dretke,
Hightower,
112 F.3d 191,
civil
rights
as
if
which
562 F.3d 674,
193
complaint
is
the
678
clearly does
(5th Cir.
(5th Cir.
based
complaint
on
alleges
not
the
exist."
2009); Siglar v.
1997). When a prisoner's
fantastic
or
delusional
allegations or it asserts an indisputably meritless theory, it is
subject to dismissal on the basis that it is frivolous.
Samford v.
Dretke,
Harris
v.
Regardless
of
Hegmann,
562
198
F.3d
674,
678
(5th
156
(5th
F.3d 153,
Cir.
Cir.
2009)
(citing
1999)).
Mendez's beliefs about what has been implanted in his head or how
his thought processes may have been monitored or manipulated, his
complaint and requests for relief are baseless.
Mendez asserts that his rights were violated under 42 U.S.C.
§
1983.
This
statute provides
a
private
right
of action
for
damages to individuals who are deprived of "any rights, privileges,
or immunities" protected by the Constitution or federal law by any
person acting under the color of state law.
Breen v. Texas A&M Univ.,
485 F.3d 325, 332
-4-
42 U.S.C.
§
1983;
(5th Cir. 2007).
To
establish liability under
establish two elements:
§
1983,
a civil rights plaintiff must
(1) state action, i.e., that the conduct
complained of was committed under color of state law,
and
(2)
a
resulting violation of federal law, i.e., that the conduct deprived
the plaintiff of rights secured by the Constitution or laws of the
United States.
See Collins v. City of Harker Heights, 102 S.Ct.
1061, 1066 (1992); Baker v. McCollan, 99 S.Ct. 2689, 2693 (1979);
see also Doe ex rel. Magee v. Covington County School Dist. ex rel.
Keys, 675 F.3d 849, 854 -855 (5th Cir.2012)
42 U.S.C.
§
1983,
"a plaintiff must
(1)
(To state a claim under
allege a violation of a
right secured by the Constitution or laws of the United States and
(2)
demonstrate that the alleged deprivation was committed by a
person acting under color of state law."),
citing James v.
Tex.
Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008)).
A.
Disciplinary Hearing - Due Process Claim
Mendez complains that he was disciplined for something he did
not do.
Unless the disciplinary proceeding has adversely affected
the amount of time that Mendez must serve or inflicts some unusual
punishment,
he
fails
to
assert
an
actionable
claim because
a
prisoner's challenges to an administrative disciplinary proceeding
are not actionable unless the disciplinary measures taken against
the prisoner inflict deprivations that are atypical and significant
in relation to the ordinary incidents of prison life.
Conner,
115 S.Ct.
2293,
2300
(1995).
-5-
Sandin v.
Given the difficulties in
maintaining order in a prison,
wi th
the
affairs.
("[AJ
prison
courts are hesitant to interfere
administration's
handling
of
its
disciplinary
See Rhodes v. Chapman, 101 S.Ct. 2392, 2400 n.14
(1981)
prison's internal security is peculiarly a matter normally
left to the discretion of prison administrators.").
Mendez's
temporary
loss
of
recreation
and
commissary
privileges and a brief one-day stay in solitary confinement do not
implicate due process concerns.
114
(5th Cir.
2010),
Evans v. Thaler, 396 F. App'x 113,
citing Malchi v.
Thaler,
211 F.3d 953,
958
(5th Cir. 2000); Guajardo v. Bayda, 344 F. App'x 922, 924 (5th Cir.
2009).
His loss of visitation privileges is not actionable.
Berry
v. Brady, 192 F.3d 504 (5th Cir. 1999); see also Kentucky Dep't of
Corrections v.
Thompson,
109 S.Ct.
1904,
1909
(1989)
(denial of
visitation is a customary element of a prison sentence).
Mendez's
allegation that he was charged with something that he did not do
does not support an actionable claim.
App'x 929,
930
248, 253-54
B.
Harris v.
Smith,
(5th Cir. 2012), citing Collins v. King,
482
F.
743 F.2d
(5th Cir. 1984)).
Loss of Property - No Denial of Due Process
Mendez contends that his due process rights were violated when
money was
property
taken
after
proceeding that
from his
it
had
inmate
been
trust
account
determined
in
he was guilty of damaging it.
to pay
the
for
disciplinary
This claim concerns
an alleged wrongful taking of Mendez's personal property.
-6-
the
See
Myers v.
Klevenhagen, 97 F.3d 91,
94
(5th Cir. 1996); Murphy v.
Collins, 26 F.3d 541, 543 (5th Cir.1994).
An unauthorized taking
of an inmate's property is not actionable in a
rights action where the state provides a remedy.
prisoner civil
Hudson v. Palmer,
104 S.Ct. 3194 (1984); Brewster v. Dretke, 587 F.3d 764, 768 (5th
Cir. 2009); Lewis v. Woods,
848 F.2d 649,
651
(5th Cir.
1988).
Mendez's constitutional due process rights have not been violated
because the Texas tort of conversion provides an adequate state
remedy.
Brewster, 587 F.3d at 768, citing Murphy v. Collins, 26
F.3d 541,
543
F.3d 162,
164
remedy
for
assert
a
(5th Cir.
1994).
(5th Cir.
See also Cathey v.
1995)
(Texas
1983
claim
regarding
47
law provides an adequate
unauthorized taking of property).
§
Guenther,
the
Mendez
monetary
fails
sanction
to
and
withdrawal from his account because he has not demonstrated that
there is no state remedy available to him.
Gee v.
Pacheco,
627
F.3d 1178, 1194 (10th Cir. 2010).
C.
No Claim for Verbal Harassment
Mendez
complains
that
the
defendants
harassed
subj ecting him to verbal abuse and name calling.
assert
an
actionable
claim
because
he
has
not
He fails
shown
suffered actual physical harm from the alleged acts.
§
1997e(e);
Geiger,
404
F.3d at
374.
Pursuant
him
that
by
to
he
42 U.S.C.
to the
Prison
Litigation Reform Act (PLRA) , a prisoner cannot recover damages for
emotional or mental harm if he has not suffered a physical injury.
-7-
Id.; Jones v. Greninger, 188 F.3d 322,326 (5th Cir. 1999)
42
u.s.c.
threats
§
1997e(e)).
(citing
Mere verbal abuse, even if accompanied by
of physical harm,
does
not
amount
violation if there is no physical injury.
to
a
constitutional
Jackson v. Harris, 446
F. App'x 668, 670 (C.A.5 (5th Cir. 2011), citing Bender v. Brumley,
1 F.3d 271,
274 n.
4
(5th Cir.1993).
A guard's use of racial
slurs, no matter how crude, indefensible or unprofessional, is not
actionable alone in a civil rights proceeding.
No.
9:12cv0083; 2013 WL 5503317,
*6
Gillard v. Rovelli,
(N.D.N.Y. 2013), citing Aziz
Zarif Shabazz v. Pico, 994 F.Supp. 460, 474
(S.D.N.Y. 1998).
Having reviewed Mendez's claims and allegations,
the Court
concludes that his complaint is based on an indisputably meritless
legal theory and has no basis in law.
F.3d 1059, 1061 (5th Cir. 1997).
dismissed as legally frivolous.
McCormick v. Stadler, 105
Therefore, this action shall be
28 U.S.C.
§
1915 (e) (2) (B).
III.CONCLUSION
The Court ORDERS the following:
1.
Officials at the TDCJ Inmate Trust Fund are ORDERED to
deduct twenty per cent (20%) of each deposit made to the
inmate trust account of Jesus Mendez (TDCJ # 1684153) and
forward the funds to the Clerk on a regular basis, in
compliance with the provisions of 28 U.S.C. § 1915(b),
until the entire filing fee ($350.00) has been paid.
2.
The prisoner civil rights complaint (Docket Entry No.1),
filed by Jesus Mendez (TDCJ No. 1684153) is DISMISSED
with prejudice under 28 U.S.C. § 1915 (e) (2) (B) as
frivolous.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties; the TDCJ - Office of the
-8-
General Counsel, P.O. Box 13084, Austin, Texas
78711, Fax
Number (512) 936-2159; the TDCJ-CID Inmate Trust Fund, P.O.
Box 60, Huntsville, Texas 77342-0060; and the Pro Se Clerk's
Office for the United States District Court, Eastern District
of Texas, Tyler Division, 211 West Ferguson, Tyler, Texas
75702.
SIGNED at Houston, Texas, on this ~3J day of September, 2014.
UNITED
-9-
LAKE
DISTRICT JUDGE
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