Kaizer v. Sgt. Spivey et al
MEMORANDUM ON DISMISSAL entered. The action filed by Randy J.J. Kaizer (TDCJ-CID Inmate #1730604) lacks an arguable basis in law. His claims are DISMISSED with prejudice under 28 U.S.C. § 1915A(b)(1). Any remaining pending motions are DENIED as moot. Email sent to Manager of Three Strikes List. (Signed by Judge Vanessa D Gilmore) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
RANDY J.J. KAIZER,
SERGEANT SPIVEY, eta!.,
November 29, 2017
David J. Bradley, Clerk
CIVIL ACTION H-17-2358
MEMORANDUM ON DISMISSAL
Randy J.J. Kaizer, an inmate of the Texas Department of Criminal Justice- Correctional
Institutions Division, sued in August 2017, alleging civil rights violations resulting from a denial of
access to the courts and a denial of due process. Kaizer, proceeding pro se and in forma pauperis,
sues Sergeant Spivey; Lieutenant Scott; John Doe, Unit Major; and Warden Jones.
The threshold issue is whether Kaizer's claims should be dismissed as frivolous.
Kaizer alleges that on March 10, 2017, Officer Falsey charged Kaizer with possessing a
weapon, a saw-like blade, in disciplinary case number 20170204425. On March 24, 2017, Captain
Watkins presided at Kaizer's disciplinary hearing. Captain Watkins found Kaizer guilty and
punished him with a loss of recreation privileges for forty-five days; a loss of commissary privileges
for forty-five days; suspension of contact visits through June 1, 20 17; placement in solitary
confinement for 15 days; and a reduction in good-time earning class status from State Approved
Trusty 3 to Line 1.
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Sergeant Spivey allegedly withheld evidence and falsified government documents. Kaizer
claims that Sergeant Spivey had told Kaizer exactly who planted the weapon and why, but he refused
to present this evidence at the disciplinary hearing. Lieutenant Scott did not present evidence to the
court and falsified government documents by not including Spivey's testimony on the report. Kaizer
complains that the Unit Major withheld evidence, destroyed evidence, and did not allow Kaizer to
defend himself in court. Warden Jones, who is ultimately responsible for her staff, did not allow
Kaizer to defend himself at the Unit Classification Committee hearing. On March 10, 2017 all of
his legal work was confiscated and was not returned to him until May 3, 2017. Kaizer did not have
access to any of his legal work for a total of 55 days.
Kaizer asks that Civil Action Number 2:15-0396 be dismissed until he has access to the
prison law library. He also requests placement in protective custody and access to 24-hour medical
A federal court has the authority to dismiss an action in which the plaintiff is proceeding in
forma pauperis before service if the court determines that the action is frivolous or malicious. 28
U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous if it lacks an arguable basis in law or fact. See
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir.
2001) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)). "A complaint lacks an
arguable basis in law if it is based on an indisputably meritless legal theory, such as ifthe complaint
alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003,
1005 (5th Cir. 1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).
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Procedural protections in the context of prison discipline is not the same as due process in
the criminal law context because "[p ]rison discipline proceedings are not a part of a criminal
prosecution, and the full panoply of rights due a criminal defendant does not apply." Wolff v.
McDonnell, 418 U.S. 539,556 (1974). The Supreme Court has historically held that the Due Process
Clause is applicable to disciplinary proceedings where a prisoner is threatened with a loss of goodtime or the imposition of solitary confinement. !d. The Court held that inmates must be afforded
written notice of the claimed violation at least twenty-four hours before a disciplinary hearing, a
written statement of the fact finders as to the evidence relied on and reasons, and the right to call
witnesses and present documentary evidence where such would not be unduly hazardous to
institutional safety or correctional goals.
The Supreme Court subsequently limited challenges to disciplinary cases in Sandin v.
Conner, 515 U.S. 4 72 ( 1995). The Court referred to its discussion in Wolff v. McDonnell, regarding
solitary confinement as "dicta." /d. The Supreme Court went on to hold that when discipline, even
segregated confinement, did not "present the type of atypical, significant deprivation in which a state
might conceivably create a liberty interest," there was no "protected liberty interest" that would
entitle the inmate to the procedural protections set forth in Wo(ff !d. at 486.
The Fifth Circuit has applied Sandin to a number of situations. Punishment consisting of
placement in administrative segregation or the loss of the opportunity to earn good-time is not
enough to trigger the protection ofthe Constitution. Luken v. Scott, 71 F.3d 192 (5th Cir. 1995). The
loss of the opportunity to earn good-time will not trigger the protection of the Constitution even
when an inmate is eligible for mandatory supervision. Malchi v. Thaler, 211 F.3d 953 (5th Cir.
2000). The imposition of commissary and cell restrictions likewise will not trigger the protection
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of the Constitution. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). The loss of good-time
will not support relief to the extent that it adversely affects parole eligibility. Sandin, 515 U.S. at 487.
However, the loss of good-time will trigger the protection of the Constitution if, and only if, a
prisoner is eligible for release on mandatory supervision. Madison v. Parker, 104 F.3d at 769.
Kaizer's punishment consisted of a loss of recreation privileges for forty-five days; a loss of
commissary privileges for forty-five days; suspension of contact visits through June 1, 2017;
placement in solitary confinement for 15 days; and a reduction in good-time earning class status from
State Approved Trusty 3 to Line 1. Kaizer states that he is ineligible for release on mandatory
supervision. (Docket Entry No. 13, p. 4). The restrictions on Kaizer's privileges are merely changes
in the conditions of his confinement, which do not implicate due process concerns. Madison v.
Parker, 104 F.3d 765, 768 (5th Cir. 1997). They are not penalties that would be considered "the type
of atypical, significant deprivation" that would be actionable. !d. See also Malchi v. Thaler, 211 F .3d
953, 958 (5th Cir. 2000); Pichardo v. Kinker, 73 F.3d 612, 612-13 (5th Cir. 1996). The Fifth Circuit
has specifically held commissary and telephone restrictions do not implicate protected liberty
interests. Lewis v. Dretke, No. 02-40956, 54 F. App'x 795,2002 WL 31845293 (5th Cir., December
11, 2002), citing Malchi v. Thaler, 211 F.3d 953,958 (5th Cir. 2000); Luken v. Scott, 71 F.3d 192,
193 (5th Cir. 1995) (stating reductions in line-class status do not implicate due process concerns);
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
Kaizer's due process claim is dismissed as frivolous. 28 U.S.C. § 1915A(b)(l).
The CJaim Based on Denial of Access to the Courts
The right of access to the courts is a fundamental constitutional right grounded in the First
Amendment right to petition and the Fifth and Fourteenth Amendment due process clauses. See
Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993). "Any deliberate impediment to access, even
delay of access, may constitute a constitutional deprivation." Jackson v. Procunier, 789 F.2d 307,
311 (5th Cir. 1986). To prevail on a denial of access to the courts claim, a plaintiff suing under
Section 1983 must establish that he has been prejudiced in connection with some identifiable past,
pending, or proposed legal proceeding. See Lewis v. Casey, 518 U.S. 343, 349-53 (1996).
In the case at bar, Kaizer states that he was denied access to the courts because prison
officials confiscated his legal work for 55 days. (Docket Entry No. 5, Plaintiffs Supplement, p. 5).
Kaizer states that he was working on a federal petition for a writ of habeas corpus in Civil Action
Number 2:15-0396. Kaizer states that he does not know the status of that case. (Docket Entry No.
13, p. 6). Online research reveals that Kaizer filed a petition for a writ of habeas corpus on
September 14, 2015 in the Corpus Christi Division, and United States Magistrate Judge Ellington
entered a Memorandum and Recommendation on May 12, 2017. Kaizer filed a motion for extension
of time to file objections to the Memorandum and Recommendation on June 2, 2017, which was
granted. Civil Action Number 2:15-0396 remains pending on the court's docket. When asked how
he was prevented from commencing, prosecuting, or appealing, Kaizer states that he was "locked
up unlawfully, taken out of the Law Library, taken away from all my legal help and confiscated all
my legal work."
Kaizer has failed to demonstrate prejudice as a result of the defendants' conduct. Kaizer's
access to the courts claim is therefore DISMISSED as frivolous.
The action filed by Randy J.J. Kaizer (TDCJ-CID Inmate #1730604) lacks an arguable basis
in law. His claims are DISMISSED with prejudice under 28 U.S.C. § 1915A(b)(1). Any remaining
pending motions are DENIED as moot.
The TDCJ-CID shall deduct twenty percent of each deposit made to Kaizer's inmate trust
account and forward payments to the court on a regular basis, provided the account exceeds $10.00,
until the filing fee obligation of $350.00 is paid in full.
The Clerk will provide a copy of this order by regular mail, facsimile transmission, or e-mail
the TDCJ- Office ofthe General Counsel, Capitol Station, P.O. Box 13084, Austin,
Texas, 78711, Fax: 512-936-2159;
the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, Fax:
the Manager of the Three-Strikes List for the Southern District of Texas at:
Three_Strikes@txs. uscourts. gov.
SIGNED at Houston, Texas, on
UNITED STATES DISTRICT JUDGE
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