Tawe v. Clemons et al

Filing 9

MEMORANDUM AND ORDER Email sent to Manager of Three Strikes List. (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICHARD N. TAWE,
TDCJ #1596960,
Plaintiff,
v.
CLEMONS MAILROOM
CLERK, et al.,
Defendants.

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April 25, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-0187

MEMORANDUM AND ORDER
State inmate Richard N. Tawe (TDCJ #1596960) has filed a civil rights
complaint under 42 U.S.C. § 1983, challenging the conditions of his confinement in
the Texas Department of Criminal Justice - Correctional Institutions Division
(“TDCJ”). At the Court’s request, Tawe has filed a more definite statement of his
claims [Doc. # 8]. Because Tawe is a prisoner proceeding in forma pauperis, the
Court is required by the Prison Litigation Reform Act (“PLRA”) to scrutinize the
pleadings and dismiss the case if it is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B). After
reviewing all of the pleadings and the applicable law, the Court concludes that this
case must be dismissed for reasons set forth below.

I.

BACKGROUND
Tawe is currently confined at the Ellis Unit in Huntsville.1 Tawe sues the

following officials concerning a piece of mail that he sent while he was in custody at
the McConnell Unit in Beeville, Texas: (1) “Clemons Mailroom Clerk” at the Ellis
Unit; (2) “Unknown Mailroom Clerk” at the McConnell Unit; (3) “Unknown Beeville
Post Office Clerk”; (4) “Unknown Post Office Clerk Dallas”; and (5) John F. Warren,
who is described as Clerk of Court for the United States District Court for the
Northern District of Texas.2
While he was assigned to the McConnell Unit, Tawe sent a letter to Warren on
September 16, 2015, requesting information about two previous lawsuits filed by
Tawe in the Northern District of Texas, which had reportedly resulted in sanctions
against him.3 Tawe explains that he needed this information because Section VIII(B)
of the standard prisoner civil rights complaint form, which has been adopted and

1

Complaint [Doc. # 1], at 5.

2

Id. The Court takes judicial notice that John F. Warren is actually the “Dallas County
Clerk,” and not Clerk of Court for the Northern District of Texas. See Dallas County website,
www.dallas.county.org (last visited April 24, 2017).
3

More Definite Statement [Doc. # 12], at 2. Court records from the Northern District
of Texas reflect that one of Tawe’s lawsuits was dismissed as frivolous on June 8, 2011. See
Tawe v. Unknown Psychiatrist, No. 3:11-cv-1016 (N.D. Tex.). A second suit filed by Tawe
was dismissed for lack of subject matter jurisdiction on January 15, 2013. See Tawe v.
Unknown Psychiatrist, No. 3:11-cv-3149 (N.D. Tex.).
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approved by all of the federal district courts in Texas, asks prisoners to provide
information about “every lawsuit in which sanctions were imposed” against them
previously.4
Shortly after Tawe mailed his letter to Warren, Tawe was transferred from the
McConnell Unit to the Ellis Unit, where he has continued to reside since October of
2015.5 At some point, Tawe’s letter to Warren was returned to the McConnell due to
an insufficient address.6 Eventually the letter was forwarded to the Ellis Unit, where
Tawe received it on January 14, 2016.7 Tawe claims that mailroom personnel at the
McConnell Unit, acting in “cahoot[s]” with mailroom personnel at the Ellis Unit and
unidentified state court personnel,“held” the letter improperly for “close to four
months (three months and 27 days),” delaying his ability to file a court case.8
On January 17, 2017, Tawe filed the pending civil rights complaint against the
defendants, alleging that he was denied access to courts because his letter was

4

More Definite Statement [Doc. # 12], at 2; see Complaint [Doc. # 1] at 6-7 (requesting
information about sanctions).
5

More Definite Statement [Doc. # 12], at 2.

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Id.

7

Id.

8

Id. at 2, 7.
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improperly held by mailroom personnel as part of a retaliatory conspiracy.9 Without
that letter, Tawe alleges that he was unable to file a lawsuit in state court in
compliance with time limits imposed by § 14.005 of the Texas Civil Practice and
Remedies Code.10 That lawsuit consisted of civil rights claims against Lieutenant
Kimberly K. Kinkler.11 Tawe subsequently filed his civil rights lawsuit against
Lieutenant Kinkler in federal court, where it remains pending.12 See Tawe v. Kinkler,
et al., Civil No. 2:16-0077 (S.D. Tex.). Alleging interference with his ability to access
information, Tawe seeks monetary damages and other relief against the defendants for
violating his constitutional rights. The Court concludes, however, that this case must
be dismissed for reasons discussed below.
II.

DISCUSSION
Prisoners clearly have a constitutionally protected right of access to the courts.

See Lewis v. Casey, 518 U.S. 343, 360 (1996) (citing Bounds v. Smith, 430 U.S. 817

9

Complaint [Doc. # 1], at 5-6.

10

More Definite Statement [Doc. # 8], at 3. Texas prisoners are required by the Texas
Civil Practice and Remedies Code to present proof that they have exhausted administrative
remedies within the penal grievance system before initiating the lawsuit. See TEX. CIVIL
PRACT. & REM. CODE § 14.005(a). A Texas trial court is required to dismiss a prisoner’s
claim if he fails to file his suit before the thirty-first day after the date that he received the
written decision from the grievance system. See id. at § 14.005(b); see also Moreland v.
Johnson, 95 S.W.3d 392, 394 (Tex. App. — Houston [1st Dist.] 2002, no pet.) (describing
grievance procedures and timing requirements that must be complied with under Texas Civil
Practice and Remedies Code § 14.005).
11

More Definite Statement [Doc. # 8], at 3.

12

Id.
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(1977)). However, the right of access for prisoners is not unlimited. See Jones v.
Greninger, 188 F.3d 322, 325 (5th Cir. 1999) (citing Johnson v. Rodriguez, 110 F.3d
299, 310 (5th Cir. 1997)). The right encompasses only a reasonably adequate
opportunity to file nonfrivolous legal claims challenging their convictions or
conditions of confinement. See Jones, 188 F.3d at 325 (citing Lewis, 518 U.S. at 351).
To state a claim, a prisoner alleging a violation of the right to access the courts
must demonstrate that he has suffered an actual injury stemming from a defendant’s
unconstitutional conduct. See Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999);
Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998) (holding that “without an
actual injury, a prisoner cannot prevail on an access-to-the-courts claim”). Actual
injury in this context is “actual prejudice with respect to contemplated or existing
litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis,
518 U.S. at 348. In other words, a prisoner must demonstrate “that his position as a
litigant was prejudiced by his denial of access to the courts.” Eason v. Thaler, 73 F.3d
1322, 1328 (5th Cir. 1996) (citing Walker v. Navarro County Jail, 4 F.3d 410, 413
(5th Cir. 1993)). Tawe does not make that showing.
Tawe’s primary complaint is that the defendants conspired to interfere with his
right to access the courts by withholding his letter to Warren after it was returned by
the Post Office, preventing him from suing Lieutenant Kinkler in state court.

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However, Tawe does not persuasively demonstrate that he was unable to file suit in
state court without access to the letter from Warren or the information about past
sanctions that he was seeking in that letter. More importantly, court records confirm
that Tawe was able to file his civil rights complaint against Lieutenant Kinkler and
others in the Southern District of Texas. See Tawe v. Kinkler, et al., Civil No. 2:160077 (S.D. Tex.). That lawsuit, which has been consolidated with two other civil
actions filed by Tawe, remains pending in the Corpus Christi Division. See Tawe v.
Reo, et al., Civil No. 2:16-0076 (S.D. Tex.) and Tawe v. Perez et al., Civil No. 160083 (S.D. Tex.). The record in these cases reflects that Tawe has not been prevented
from pursuing his claims against Lieutenant Kinkler in any meaningful way or that he
suffered an actual injury as a result of the letter that was allegedly withheld. Likewise,
Tawe’s conclusory allegations of retaliation are not sufficient to state a viable
conspiracy claim. See McAfee v. 5th Circuit Judges, 884 F.2d 221, 222 (5th Cir.
1989). Under these circumstances, Tawe fails to state a claim upon which relief may
be granted and his complaint will be dismissed.
III.

CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:

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1.

The complaint filed by Richard N. Tawe (TDCJ #1596960) is
DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim.

2.

The dismissal will count as a “strike” for purposes of 28 U.S.C.
§ 1915(g).

The Clerk is directed to provide a copy of this order to the plaintiff and to
the Manager of the Three Strikes List for the Southern District of Texas.
SIGNED at Houston, Texas, on April 25, 2017.

NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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