Lewis v. Landis et al
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CALVIN LEWIS, TDCJ #1185552,
CHARLES H. LANDIS, et al.,
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.
Captain Kevin B.
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
(Docket Entry No. 16).
Also pending are
Defendants' Motion to Strike Plaintiff's Objection to Defendants'
Answer ("Defendants' Motion to Strike")
Motion for Judgment on the
Motion for Judgment")
(Docket Entry No. 18) and
(Docket Entry No. 19).
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
Judgment on the Pleadings and will dismiss this action for the
reasons explained below.
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
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
Werner determined that the items
material that threaten[ed] the security of [the]
Complaint, Docket Entry No. 1, p. 3.
Plaintiff's More Definite Statement, Docket Entry No. 9, p. 1.
Id. at 4, 6.
Id. at 1, 6.
At a disciplinary hearing before Captain Smith on November 9,
Lewis admitted possessing the confiscated items,
obtained from books that were in the prison law library. 6
Smith found Lewis guilty of possessing dangerous materials that
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
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
rejected the grievance without conducting any investigation to
Id. at 1.
Id. at 1-2.
Id. at 2; Complaint, Docket Entry No. 1, p. 3.
Step 2 Grievance, Docket Entry No. 1, p. 6.
confirm that the confiscated materials were available from the law
Lewis now seeks relief from his disciplinary conviction under
1983, asking the defendants to "expunge" the conviction
from his record and restore his classification status. 13
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
Motion to Strike Plaintiff's Objection
At the court's request, defendants Landis, Smith, Werner, and
(Docket Entry No.
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
Entry No. 18) because Plaintiff's Objection is not authorized.
Complaint, Docket Entry No. 1, p. 3 i
Definite Statement, Docket Entry No. 9, p. 5.
Complaint, Docket Entry No. 1, p. 4.
Id.; Plaintiff's More Definite Statement, Docket Entry No. 9,
pp. 2-3, 5.
The Objection filed by Lewis does not take issue with the
sufficiency of Defendants' Answer,
but instead appears to raise
pleadings filed by pro se litigants under a less stringent standard
than those drafted by lawyers.
liberally construed [.] '")
See Haines v.
see also Erickson v.
filed pro se
(quoting Estelle v.
92 S. Ct.
285, 292 (1976)).
To the extent that Lewis's Objection contains an
Defendants' Motion to Strike and will construe the Objection as a
supplement to the Complaint.
Motion for Judgment on the Pleadings
Pleadings, which is governed by Rule 12(c) of the Federal Rules of
A motion brought
"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)
SA CHARLES A. WRIGHT
13 6 7
at 5 0 9 - 1 0
ARTHUR R. MILLER,
( 19 9 0 ) ) .
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
1368 at 591
("A number of courts have held that the standard to be
applied in a
Rule 12 (c)
Rule 12(b) (6)
to that used in a
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
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
WL 143 7267 I
1 060 ,
F . 3d
warning," of proscribed conduct before a severe sanction,' such as
deprivation of good-time credits, may be imposed."
Adams v. Gunnell, 729 F.2d 362, 369 (5th Cir. 1984)).
The defendants argue that Lewis cannot state a violation of
adequate notice, he did not lose any good-time credit and none of
the other punishment imposed as
the result of his disciplinary
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).
See Sandin v.
In Texas only those inmates
supervision have a constitutional expectancy of early release.
Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).
As a result,
a Texas prisoner cannot demonstrate a constitutional violation in
(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
This is fatal to his due process
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
confinement," do not implicate due process concerns.
Plaintiff's More Definite Statement, Docket Entry No. 9, p. 2.
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
reductions in a prisoner's custodial
classification and the potential impact on good-time credit earning
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.
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.
the defendants are
entitled to judgment on the pleadings.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
Defendants' Motion to Strike Plaintiff's Objection
to Defendants' Answer (Docket Entry No. 18) is
Defendants' Motion for Judgment on the Pleadings
(Docket Entry No. 19) is GRANTED.
The Prisoner Civil Rights Complaint filed under 42
U.S. C. § 1983 by Calvin Lewis is DISMISSED with
prejudice for failure to state a claim upon which
relief may be granted.
Plaintiff's Motion for Appointment of
(Docket Entry No. 15) is DENIED as moot.
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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