Lewis v. Landis et al
Filing
27
MEMORANDUM OPINION AND ORDER denying 18 MOTION to Strike 16 Objections to Defendants' Answer, denying as moot 15 MOTION for Appointment of Counsel, granting 19 Motion for Judgment on the Pleadings, dismissing with prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CALVIN LEWIS, TDCJ #1185552,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
CHARLES H. LANDIS, et al.,
Defendants.
August 11, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0640
MEMORANDUM OPINION AND ORDER
State inmate Calvin Lewis (TDCJ #1185552) has filed a Prisoner
Civil Rights Complaint under 42 U.S. C.
Entry
No.
1)
disciplinary
Charles H.
alleging
measures
Landis,
that
by
he
the
§
1983 ("Complaint")
was
improperly
Captain Kevin B.
Smith,
subjected
(Assistant
defendants
(Docket
to
Warden
Sergeant Carlisietta
Werner, and Major Timothy M. Preischel) in violation of his right
to due process.
Pending before the court are plaintiff's Motion
for Appointment of Counsel (Docket Entry No. 15) and Petitioner's
Objection
to
the
Following
("Plaintiff's Objection")
Original
Defendants'
(Docket Entry No. 16).
Answer
Also pending are
Defendants' Motion to Strike Plaintiff's Objection to Defendants'
Answer ("Defendants' Motion to Strike")
Defendants'
Motion for Judgment on the
Motion for Judgment")
(Docket Entry No. 18) and
Pleadings
(Docket Entry No. 19).
("Defendants'
Lewis has not filed
a response to either Motion filed by the defendants and his time to
do so has expired. After considering all of the pleadings and the
applicable
law,
the
court
will
grant
Defendants'
Motion
for
Judgment on the Pleadings and will dismiss this action for the
reasons explained below.
I.
Background
Lewis is currently incarcerated in the Texas Department of
Criminal Justice - Correctional Institutions Division ("TDCJ") at
the Ellis Unit in Huntsville. 1
All of the defendants are employed
by TDCJ as correctional officers or officials at the Ellis Unit
facility.
2
On November 7,
Ellis Unit. 3
2016, there was a routine "shakedown" at the
During that shakedown Sergeant Werner confiscated
several "composition notebooks" that included "business plans" and
"legal research" that were part of an assignment Lewis was working
on in connection with a "commercial business law" course that he
was taking through Lee College. 4
pertained
to
disciplinary
the
Uniform
charges
Werner determined that the items
Commercial
against
Lewis
Code
for
( "UCC")
possessing
material that threaten[ed] the security of [the]
and
issued
"dangerous
Institution." 5
1
Complaint, Docket Entry No. 1, p. 3.
2
Id.
3
Plaintiff's More Definite Statement, Docket Entry No. 9, p. 1.
4
Id. at 4, 6.
5
Id. at 1, 6.
-2-
At a disciplinary hearing before Captain Smith on November 9,
2016,
Lewis admitted possessing the confiscated items,
which he
obtained from books that were in the prison law library. 6
Captain
Smith found Lewis guilty of possessing dangerous materials that
threatened institutional
security and,
as
a
result,
Lewis
was
restricted to his cell without commissary or recreation privileges
for 45 days. 7
S2 to S4. 8
Lewis was also reduced in classification status from
As a result of his reduced classification, Lewis claims
that Major Preischel removed him from the Trustee Camp and assigned
him to a "field squad." 9
Lewis
filed
grievances
to
challenge
the
disciplinary
conviction, explaining that the confiscated materials were for a
college class in business commerce and were not dangerous or a
threat to the institution. 10
Lewis added that he obtained the
materials from the prison law library and had no notice that they
prohibited. 11
were
Lewis
claims
that
Assistant
Warden
Landis
rejected the grievance without conducting any investigation to
6
Id. at 1.
7
Id. at 1-2.
8
Id.
9
Id. at 2; Complaint, Docket Entry No. 1, p. 3.
10
Step 2 Grievance, Docket Entry No. 1, p. 6.
11
Id.
-3-
confirm that the confiscated materials were available from the law
library. 12
Lewis now seeks relief from his disciplinary conviction under
42 U.S.C.
§
1983, asking the defendants to "expunge" the conviction
from his record and restore his classification status. 13
Lewis
contends that he had no notice that possessing UCC materials was
prohibited by prison rules. 14
Lewis contends, therefore, that he
was punished without due process because he did not know it was
wrong to possess those materials. 15
II.
A.
Discussion
Motion to Strike Plaintiff's Objection
At the court's request, defendants Landis, Smith, Werner, and
Preischel
filed
("Defendants'
Complaint.
Defendants'
Answer")
Original
Answer
(Docket Entry No.
14)
and
Jury
Demand
in response to the
Lewis, who proceeds prose, filed Plaintiff's Objection
(Docket Entry No. 16).
Noting that a party may not file a reply to
an answer unless ordered by the court, see Fed. R. Civ. P. 7(a) (7),
the defendants have filed Defendants'
Motion to Strike
(Docket
Entry No. 18) because Plaintiff's Objection is not authorized.
12
Complaint, Docket Entry No. 1, p. 3 i
Definite Statement, Docket Entry No. 9, p. 5.
13
Plaintiff's
More
Complaint, Docket Entry No. 1, p. 4.
14
Id.; Plaintiff's More Definite Statement, Docket Entry No. 9,
pp. 2-3, 5.
15Id.
-4-
The Objection filed by Lewis does not take issue with the
sufficiency of Defendants' Answer,
legal
arguments
in
support
of
but instead appears to raise
his
claims.
Courts
construe
pleadings filed by pro se litigants under a less stringent standard
than those drafted by lawyers.
594,
S.
596
Ct.
(1972)
2197,
(per curiam);
2200
(2007)
liberally construed [.] '")
See Haines v.
Kerner,
see also Erickson v.
("A document
Pardus,
filed pro se
(quoting Estelle v.
92 S. Ct.
Gamble,
is
127
'to be
97 S.
Ct.
285, 292 (1976)).
To the extent that Lewis's Objection contains an
argument
relevant
that
is
to his
claims,
the
court will
deny
Defendants' Motion to Strike and will construe the Objection as a
supplement to the Complaint.
B.
Motion for Judgment on the Pleadings
The
defendants
have
filed
a
Motion
for
Judgment
on
the
Pleadings, which is governed by Rule 12(c) of the Federal Rules of
Civil
Procedure.
A motion brought
pursuant
to Rule
12 (c)
is
"designed to dispose of cases where the material facts are not in
dispute and a judgment on the merits can be rendered by looking to
the substance of the pleadings and any judicially noticed facts."
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
F. 3d 305, 312 (5th Cir. 2002)
(citing Hebert Abstract Co., Inc. v.
Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990)
curiam);
PROCEDURE
SA CHARLES A. WRIGHT
§
13 6 7
1
at 5 0 9 - 1 0
313
&
ARTHUR R. MILLER,
( 19 9 0 ) ) .
-5-
FEDERAL PRACTICE
(per
AND
The standard for deciding a
motion filed under Rule 12(c)
is the same as the one governing
motions filed under Rule 12(b) (6).
See Great Plains Trust Co., 313
F. 3d at 313 n. 8
& MILLER,
(Supp. 2002)
(citing SA
WRIGHT
supra,
1368 at 591
§
("A number of courts have held that the standard to be
applied in a
Rule 12 (c)
Rule 12(b) (6)
motion."
motion is
identical
(footnote omitted)).
to that used in a
Thus,
"'the central
issue is whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief.'"
Great Plains Trust
Co., 305 F.3d at 312.
As noted above, Lewis maintains that he was punished without
due process because he had no advance notice that UCC materials
were prohibited.
The Fifth Circuit has held in a case involving
the prohibition of UCC materials by TDCJ that "it is a violation of
due process to punish inmates for acts which they could not have
known were
WL 143 7267 I
prohibited."
*3
(5th Cir.
~R'-"'e""e'-"v_,e::.!:s~....!v:.....:·'---=P_,e::...!t::....:t::....:c:::..:o~x~,
curiam)) .
"'An
19
inmate
Canady v.
April 24,
2017)
1 060 ,
1061
entitled
to
F . 3d
is
Davis,
-
F.
App'x
2017
(per curiam)
(5th
prior
Cir.
(quoting
1994)
notice,
or
(per
"fair
warning," of proscribed conduct before a severe sanction,' such as
deprivation of good-time credits, may be imposed."
Id.
(quoting
Adams v. Gunnell, 729 F.2d 362, 369 (5th Cir. 1984)).
The defendants argue that Lewis cannot state a violation of
the
Due
Process
Clause
because,
even
assuming
that
he
lacked
adequate notice, he did not lose any good-time credit and none of
the other punishment imposed as
-6-
the result of his disciplinary
conviction
interest.
implicated
a
constitutionally
protected
liberty
Prisoners charged with institutional rules violations
are entitled to rights under the Due Process Clause only when the
disciplinary action may result in a sanction that will infringe
upon a constitutionally protected liberty interest.
Conner, 115 S. Ct. 2293, 2302 (1995).
who
are
eligible
for
the
form
of
See Sandin v.
In Texas only those inmates
parole
known
as
mandatory
supervision have a constitutional expectancy of early release.
Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).
See
As a result,
a Texas prisoner cannot demonstrate a constitutional violation in
the
prison
disciplinary
following criteria:
context
without
first
satisfying
the
(1) he must be eligible for early release on
mandatory supervision; and (2) the disciplinary conviction at issue
must have resulted in a loss of previously earned good-time credit.
See id. at 957-58.
Lewis concedes that he did not lose any good-time credit as
the result of his conviction. 16
claims.
This is fatal to his due process
See id.
Although the disciplinary conviction at issue also resulted in
a loss of privileges and affected his classification status, the
Fifth Circuit has recognized that sanctions such as these, which
are
"merely
changes
in
the
conditions
of
[an
confinement," do not implicate due process concerns.
16
inmate's]
Madison v.
Plaintiff's More Definite Statement, Docket Entry No. 9, p. 2.
-7-
Parker, 104 F.3d 765 1 768 (5th Cir. 1997).
Limitations imposed on
privileges are the type of sanctions that do not pose an atypical
or significant hardship beyond the ordinary incidents of prison
life.
Likewise,
reductions in a prisoner's custodial
classification and the potential impact on good-time credit earning
ability are
Clause.
too attenuated to be protected by the Due Process
See Malchi, 211 F.3d at 958; Luken v. Scott, 71 F.3d 192,
193 (5th Cir. 1995); Neals v. Norwood, 59 F.3d 530, 533 (5th Cir.
1995) .
Because
none
of
the
punishment
imposed
implicates
a
constitutionally protected liberty interest, Lewis cannot establish
a due process violation.
Absent a constitutional violation, Lewis
fails to overcome the defendants' assertion that they are entitled
to qualified immunity from his claims.
Lewis does not otherwise
demonstrate that he has a valid claim for which relief may be
granted under 42 U.S.C.
§
1983.
Accordingly,
the defendants are
entitled to judgment on the pleadings.
III.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.
Defendants' Motion to Strike Plaintiff's Objection
to Defendants' Answer (Docket Entry No. 18) is
DENIED.
2.
Defendants' Motion for Judgment on the Pleadings
(Docket Entry No. 19) is GRANTED.
3.
The Prisoner Civil Rights Complaint filed under 42
U.S. C. § 1983 by Calvin Lewis is DISMISSED with
-8-
prejudice for failure to state a claim upon which
relief may be granted.
4.
Plaintiff's Motion for Appointment of
(Docket Entry No. 15) is DENIED as moot.
Counsel
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 11th day of August, 2017.
UNITED STATES DISTRICT JUDGE
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