Gonzales v. Gross et al
Filing
19
MEMORANDUM OPINION AND ORDER denying as moot 17 MOTION to Strike 16 Order, dismissing with prejudice 1 Complaint. Email sent to Manager of Three Strikes List. (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
ANDREW GONZALES, TDCJ #1289340,
Plaintiff,
MATT GROSS, et al.,
David J. Bradley, Clerk
§
§
§
§
§
§
v.
June 27, 2018
CIVIL ACTION NO. H-17-3190
§
§
§
Defendants.
MEMORANDUM OPINION AND ORDER
The plaintiff, Andrew Gonzales
(TDCJ #1289340), has filed a
Verified Complaint for Declaratory and Injunctive Relief under 42
U.S.C.
§
1983
("Complaint")
(Docket Entry No.
4),
concerning the
conditions of his confinement in the Texas Department of Criminal
Justice
Correctional
Institutions
Division
( "TDCJ") .
At
the
court's request, Gonzales has provided Plaintiff's More Definite
Statement
of
his
claims
(Docket
Entry
No.
9)
i
and
the
State
Attorney General's Office has submitted a report under Martinez v.
Aaron, 570 F.2d 317
(lOth Cir. 1987)
("Martinez Report")
(Docket
Entry No. 13), as well as a Supplement to that report, which has
been filed under seal
(Docket Entry No. 14) . 1
After considering
all of the pleadings, the court concludes that the Complaint should
be dismissed for the reasons explained below.
1
Gonzales has filed a "Motion to Strike or Suspend" the
court's Order placing the Supplement under seal (Docket Entry
No. 17).
Because Gonzales subsequently filed a "Notice" stating
that he wishes to withdraw that request (Docket Entry No. 18,
p. 2), this motion will be denied as moot.
I.
The
Complaint
in
Background
this
case
sterns
from
proceeding that occurred at the Estelle Unit,
currently incarcerated. 2
employed by TDCJ
proceeding,
Major
R.
Townsend,
Classification
disciplinary
where Gonzales is
Gonzales sues several prison officials
in connection with
including:
a
the
consequences
of
that
Assistant Regional Director Matt Gross,
Chief
Coordinator
of
Classification
John
Doe,
and
Debbie
Assistant
Ballard,
Warden
Christopher Lacox. 3
Gonzales alleges that on September 7, 2014, he was involved in
an altercation with an officer who is not a party to this lawsuit
(Officer Lenderman)
was
charged
20150010578.
5
with
4
As a result of this altercation, Gonzales
a
disciplinary
violation
in
Case
Number
Records provided by the Attorney General's Office
show that Gonzales and three other offenders were charged in that
case with participating in an altercation that included assaults on
multiple officers. 6
Gonzales was charged with participating in a
riot with the other offenders that "resulted in a major use of
Cornplaint, Docket Entry No. 4, p. 2.
For purposes of
identification, all page numbers refer to the pagination at the top
assigned to each docket entry by the court's electronic filing
system, CM/ECF.
2
3
Id. at 2-3.
5
Plaintiff's More Definite Statement, Docket Entry No. 9, p. 3.
6
TDCJ Disciplinary Report and Hearing Record,
No. 13-1, p. 58.
-2-
Docket Entry
force and injuries to officers." 7
The accusing officer stated that
Gonzales "struck [him] in the face with a closed fist" during the
altercation. 8
A disciplinary hearing officer found Gonzales guilty
as charged of participating in a
assaulting
an officer
(Offense
riot
Code
(Offense Code
in
03.3)
that
08.0)
and
case. 9
As
punishment, Gonzales lost commissary and recreation privileges for
45 days and he also forfeited 349 days of previously earned good-
credit. 10
time
Gonzales
filed
grievances
to
challenge
the
conviction, but his appeal was unsuccessful. 11
Gonzales,
Population,
segregation,
who
G4
12
was
subsequently
medium
claims
that
custody
the
transferred
status"
defendants
to
from
"General
administrative
wrongfully
imposed
a
Security Precaution Designator ("SPD") Code on his classification as
a result of his disciplinary conviction in Case No. 20150010578. 13
The SPD Code was imposed based on evidence from the disciplinary
7
0ffense Report, Docket Entry No. 13-1, p. 59.
8
TDCJ Preliminary Investigation Report, Docket Entry No. 13-1,
p. 62.
9
Complaint, Docket Entry No. 4, p. 5; TDCJ Disciplinary Report
and Hearing Record, Docket Entry No. 13-1, p. 58.
10
TDCJ Disciplinary Report and Hearing Record,
No. 13-1, p. 58.
11
Plaintiff' s
pp. 4-5.
12
More Definite Statement,
Docket Entry
Docket Entry No.
9,
Id. at 4.
13
Complaint, Docket Entry No. 4, p. 5; Plaintiff's
Definite Statement, Docket Entry No. 9, pp. 5-6.
-3-
More
case showing that Gonzales assaulted Officer Lenderman during the
altercation that occurred on September 7, 2014. 14
Gonzales notes that an SPD Code is a "punitive classification
code
signifying
to
all
TDCJ
employees
that
[he]
assaulted an
employee causing him/her serious injuries." 15 Because of the SPD
Code,
Gonzales explains that he will be subject to a custodial
classification with "heightened security" for at least 10 years. 16
Arguing that no officer was hurt during the incident that formed
the basis for his disciplinary conviction, Gonzales contends that
the SPD code was placed on his classification in retaliation for
the grievances that he filed to challenge his conviction in Case
No. 20150010578 and an unrelated disciplinary conviction that was
entered against him on July 25, 2014, in Case No. 20140335050, for
filing
a
fraudulent
Commercial Code ( "UCC")
financing
17
statement
under
the
Uniform
Gonzales also alleges that the SPD code
was imposed arbitrarily based on false information in violation of
due process. 18
14
Gonzales seeks declaratory and injunctive relief in
Plaintiff's More Definite Statement,
Docket Entry No.
9,
pp. 2-3.
15
Complaint, Docket Entry No. 4, p. 5.
16
Id. at 6.
17
Complaint, Docket Entry No. 4, pp. 5-7 i TDCJ Disciplinary
Report and Hearing Record, Docket Entry No. 13-1, p. 10i Offense
Report, Docket Entry No. 13-1, p. 11i Inter-Office Communication
dated July 21, 2014, from Sergeant Y. Beltran, Docket Entry
No. 13-1, p. 13.
18
Complaint, Docket Entry No. 4, p. 8.
-4-
the form of a court order directing the defendants to remove the
SPD code from his classification. 19
II.
Standard of Review
Because Gonzales is an inmate who proceeds in forma pauperis,
the court is required to scrutinize the claims and dismiss the
Complaint, in whole or in part, if it determines that the Complaint
"is frivolous, malicious, or fails to state a claim on which relief
may be granted" or "seeks monetary relief from a defendant who is
2 8 U.S. c.
immune from such relief."
§§
1915 (e) ( 2) (B) , 1915A (b) .
An administrative report submitted by state officials pursuant to
Martinez v.
Aaron,
570
F.2d 317
(lOth Cir.
1978)
(a "Martinez
report"), is a tool to assist courts in making a determination of
frivolity under 28 U.S.C.
§
1915.
See Norton v. Dimazana, 122 F.3d
286, 292-93 (5th Cir. 1997); see also Cay v. Estelle, 789 F.2d 318,
323
&
n.4
(5th Cir. 1986)
(discussing the utility of a Martinez
report) .
The court
pro
se
in
litigant's
is mindful of
this
case.
Courts
contentions,
construction.
Haines
92
S.
pro
se
19
that plaintiff proceeds
required
inartfully
to
give
pleaded,
a
a
pro
se
liberal
See Erickson v. Pardus, 127 S. Ct. 1081, 2200 (2007)
Gamble,
allegations
fact
are
however
(citing Estelle v.
v.
the
Kerner,
in a
97 S. Ct.
Ct.
594,
complaint
Id. at 8-9.
-5-
285,
595-96
are
292
(1976)); see also
(1972)
held to
(noting
less
that
stringent
standards than formal pleadings drafted by lawyers) .
"[t] hreadbare
recitals
of
the
elements
of
a
Nevertheless,
cause
of
action,
supported by mere conclusory statements, do not suffice" and are
inadequate to state a viable claim.
1937, 1949 (2009)
(citation omitted).
III.
A.
Ashcroft v. Iqbal, 129 S. Ct.
Discussion
The Rule in Heck v. Humphrey
To the extent that his allegations may call into question the
validity of his disciplinary conviction for assaulting an officer
in Case No. 20150010578, which has not been overturned, Gonzales
cannot maintain an action under 42 U.S.C.
§
1983 under the rule
announced in Heck v. Humphrey, 114 S. Ct. 2364 (1994).
Under this
rule a claim that bears a relationship to a conviction or sentence
that has not been invalidated,
federal habeas review,
either by a state tribunal or on
is not cognizable under 42 U.S.C.
§
1983.
Id. at 2372.
Although Heck involved a claim for damages, the Fifth
Circuit
held
has
that
the
rule
also
applies
to
claims
for
injunctive or declaratory relief that implicate the validity of a
conviction that
has not already been set aside.
See Mann v.
Denton County Texas, 364 F. App'x 881, 883 (5th Cir. 2010)
(citing
Kutzner v. Montgomery County, 303 F. 3d 339, 340-41 (5th Cir. 2002);
and
Shaw
v.
Harris,
116
F.
App'x
499
(5th
Cir.
2004)).
A
"conviction" includes a prison disciplinary conviction that results
in the loss of good-time credit.
-6-
See Edwards v.
Balisok,
117
S.
Ct.
1584,
1589
(1997).
Gonzales does not otherwise state a
valid claim for relief for the reasons discussed below.
B.
Due Process
Gonzales
contends
that
an
SPD
Code
was
placed
on
his
classification arbitrarily based on false information in violation
of his right to due process. 20
He argues in particular that the SPD
Code was improperly imposed because no officer was injured as the
result
of
the
disciplinary
altercation
conviction
for
that
formed
assaulting
the
an
basis
officer
for
his
in
Case
No. 20150010578. 21
To maintain a due process challenge in this context Gonzales
must
demonstrate
that
the
challenged
classification
decision
"deprived him of a liberty interest protected by the Fourteenth
Amendment."
2008)
Hernandez v. Velasquez,
522 F.3d 445,
562
(5th Cir.
(citing Meachum v. Fano, 96 S. Ct. 2532, 2538 (1976)).
As a
general matter, however, a prison inmate has no protected liberty
interest in his custodial classification.
See id.; see also Moody
v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988)
S. Ct. at 2538).
'[p]rison
(citing Meachum, 96
The Fifth Circuit "has repeatedly affirmed that
officials
should
be
accorded
the
widest
possible
deference' in classifying prisoners' custodial status as necessary
2
°Complaint, Docket Entry No. 4, pp. 7-8.
21
Plaintiff' s
pp. 8-9.
More Definite Statement,
-7-
Docket Entry No.
9,
'to maintain security and preserve internal order. '"
Hernandez, 522
F.3d at 562 (quoting McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir.
1990); Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2003)).
A prisoner may maintain a due process challenge to a change in
his
custodial
classification
"extraordinary circumstances."
only
when
Hernandez,
he
demonstrates
522 F.3d at 562.
The
Supreme Court has limited those circumstances to those that impose
an "atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life."
S . Ct . 2 2 9 3,
2300
such circumstance.
(2005)
( 19 9 5) .
Sandin v.
Conner,
115
Transfer to a supermax prison is one
See Wilkinson v. Austin, 125 S. Ct. 2384, 2395
(finding that prisoners have a liberty interest in avoiding
assignment
supermax
to
the
prison) .
harsh
conditions
Transfer
from
of
confinement
medium
custody
found
to
in a
maximum
security, however, is not considered an exceptional circumstance.
Meachum,
96 S.
Ct.
at 2538.
administrative segregation,
Thus,
an inmate's confinement in
without more,
does not constitute a
deprivation of a constitutionally cognizable liberty interest.
Luken v. Scott, 71 F. 3d 192, 193 (5th Cir. 1995)
See
(per curiam)
The Attorney General's Office has provided Gonzales's relevant
grievance
records,
which
reflect
that
he
has
remained
in
administrative segregation since the incident that formed the basis
of his disciplinary conviction in Case No.
22
20150010578. 22
These
Grievance Records for Offender Andrew Gonzales, Docket Entry
No. 14-1, pp. 2-139.
-8-
records reflect that Gonzales has challenged his classification,
arguing that the SPD Code was imposed in error because no officer
sustained an injury. 23
SPD
Code
was
Classification officials determined that the
appropriate
because
the
officer
whom
Gonzales
assaulted required medical care beyond first aid as a result of the
altercation. 24
Although Gonzales complains that this determination
is based on false information, he does not allege that there has
been a denial of a procedure for demonstrating the falsity of this
information.
Under these circumstances, Gonzales has not demon-
strated
his
that
classification
implicates
a
constitutionally
protected liberty interest or that a due process violation has
occurred.
See Luken, 71 F.3d at 193.
Accordingly, Gonzales's due
process allegation will be dismissed for failure to state a claim
for which relief may be granted.
C.
Retaliation
Gonzales
contends
that
the
SPD
Code
was
placed
on
his
classification improperly in retaliation for grievances that he
filed
to challenge his
conviction in Case No.
20150010578
for
participating in a riot and assaulting an officer on September 7,
2014,
and an unrelated disciplinary conviction that was entered
against him on July 25, 2014, in Case No. 20140335050, for filing
23
Step 1
pp. 103-04.
24
Grievance
#2017090343,
Id. at 104, 107.
-9-
Docket
Entry
No.
14-1,
a fraudulent financing statement under the UCC, which is a felony
offense under state law. 25
imposed because of
Gonzales believes that the SPD Code was
the grievances he
filed
to challenge
these
convictions because "Major Doe" reportedly told him not to file any
grievances while he was investigating the disciplinary case filed
against him in Case No. 20150010578. 26
"To
prevail
on
a
claim
of
retaliation,
establish (1} a specific constitutional right,
a
prisoner
must
(2) the defendant's
intent to retaliate against the prisoner for his or her exercise of
that right,
( 3)
a
retaliatory adverse act,
McDonald v. Steward, 132 F. 3d 225, 231
and
( 4)
(5th Cir. 1998); see also
Morris v. Powell, 449 F.3d 682, 684
(5th Cir. 2006).
requires
the
a
showing
complained of
(internal
that
but
for
incident
quotation
marks
retaliatory
would not
and
causation."
have
citations
omit ted) .
"Causation
motive
the
occurred. "
The
Fifth
Circuit has emphasized that prison officials must be given "wide
latitude" in the management of inmates and has cautioned district
courts to "carefully scrutinize" retaliation claims:
The prospect of endless claims of retaliation on the part
of inmates would disrupt prison officials in the
discharge of their most basic duties.
Claims of
25
Complaint, Docket Entry No. 4, pp. 5-7; TDCJ Disciplinary
Report and Hearing Record, Docket Entry No. 13-1, p. 10; Offense
Report, Docket Entry No. 13-1, p. 11; Inter-Office Communication
dated July 21, 2014, from Sergeant Y. Beltran, Docket Entry
No. 13-1, p. 13.
26
Plaintiff's More Definite Statement, Docket Entry No. 9, p. 6.
-10-
retaliation must therefore be regarded with skepticism,
lest
federal
courts
embroil
themselves
in every
disciplinary act that occurs in state penal institutions.
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)
v. Rice,
40 F.3d 72, 74
(4th Cir. 1994)).
(quoting Adams
An inmate must allege
more than his personal belief that he is the victim of retaliation.
See Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999)
Johnson v.
demonstrate
Rodriguez,
that
a
110 F. 3d 299,
310
(5th Cir.
defendant acted with intent
(citing
1997)).
To
to retaliate a
prisoner must produce "direct evidence of motivation" or, at the
very least,
he must
"allege a
chronology of events
retaliation may plausibly be inferred."
from which
Woods, 60 F.3d at 1166.
By Gonzales's own admission, the SPD Code was imposed on his
classification after he was convicted of participating in a riot
and
No.
assaulting
an
20150010578. 27
officer
on
September
7,
2014,
in
Case
Records provided by the Attorney General's
Office confirm that the SPD Code has been upheld based on evidence
developed in connection with that disciplinary case, showing that
the
officer
whom
Gonzales
assaulted
required more than first aid. 28
suffered
an
injury
that
Under these circumstances Gonzales
does not satisfy the element of causation for purposes of stating
a retaliation claim because he does not allege facts showing that,
but for any grievance that he filed,
the SPD Code would not have
27
Complaint, Docket Entry No. 4, pp. 5-6.
28
Step 1 Grievance #2017090343, Docket Entry No. 14-1, pp. 104,
107.
-11-
been placed on his classification.
Nor has he alleged a chronology
of events from which retaliation may plausibly be inferred.
Woods,
60
F.3d
at
1166.
Gonzales's
retaliation
claim
See
will
therefore be dismissed for failure to state a claim upon which
relief my be granted.
IV.
Conclusion and Order
Based on the foregoing, the court ORDERS as follow:
1.
This action is DISMISSED WITH PREJUDICE for failure
to state a claim upon which relief may be granted.
2.
Plaintiff's Motion to Strike or Suspend Court Order
Granting 'Motion to Seal Supplement to the Attorney
General's Martinez Report and Exhibit'
(Docket
Entry No. 17) is DENIED AS MOOT.
3.
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 Memorandum
Opinion and Order to the plaintiff.
copy
(1)
by
regular
mail,
facsimile
The Clerk will also provide a
transmission,
the TDCJ - Office of the General Counsel,
or
P.O.
e-mail
to:
Box 13084,
Austin, Texas 78711, Fax Number 512-936-2159; and (2) the Manager
of the Three-Strikes List for the Southern District of Texas at
Three_Strikes®txs.uscourts.gov.
SIGNED at Houston, Texas, on this the 26th day of June, 2018.
UNITED STATES DISTRICT JUDGE
-12-
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