Tawe v. Gray et al

Filing 6

MEMORANDUM OPINION AND ORDER. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
February 07, 2018

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTH ERN D IST R ICT O F TEX A S
HOUSTON D IVISION

David J. Bradley, Clerk

RICRARD N . TAWE, TDCJ #1596960,
Plaintiff ,
CIVIL ACTION NO . H -17-3418
NORMA

GRAY , et

Defendants .

M EMO NAHDUM OPIN ION AN D ORD ER

The plaintiff, Richard N . Tawe (
TDCJ #1596960), has filed a
Prisoner

Civil

Rights

Complaint

(ucomplaint' (
') Docket Entry No.
confinement

the

Texas

under

U .S .C .

1983

concerning the conditions of his

Department

of

Correctional Institutions Division (%
'TDCJ'
')

Crim inal

Justice

Because Tawe is an

inmate who proceeds Xu forma pauperis, the court is required to
scrutinize the claims and dismiss the Comp laint -- in whole or in
part

determines

that

the

Complaint

frivolous,

malicious, or fails to state a claim upon which relief may be
granted' or useeks monetary relief from a defendant who is immune
'

from such relief.' 28
'

55 1915( 2)
e)(

l915A (
b). After

considering all of the pleadings, the court concludes that the
Complaint must be dismissed for the reasons exp lained below .

1.

Tawe

is

Huntsville x

currently

Backcround

incarcerated

He sues more than

at

the

Ellis

Unit

in

correctional officers and

officials who were employed by TDCJ at the Ellis Unit facility ,
including :

Officer Norma

Bridges,

Lieutenant Sonya J . Nesby ;

Sergeant Zachary

Officer Dustin E . Brishner ;

Officer Sylvester

Williford ;

Gray ;

Captain Curtis D .

Glaze, Jr .; ( Officer Shana R. Gorman; ( Officer Lisa A . Hall;
7)
8)
Officer Quentin

Hall ;

Officer John Shaundrick

Bozeman; (
11) Officer Tori A . Mullin; (
12) Officer Meagan
Talton ;

Officer Smith ;

Officer FNU Sm ith ;

FNU Lopez; (
16) Captain Michael A . Graham ;
Spradlin;

Officer

Officer Kathleen E .

Sergeant Emerald V . Brooks; (
19) Officer Brenda J .

Woodson; (
20) Officer Cody B . Frazier; (
21) Officer Okwonkwo A .
Chikemg ;

Officer Russell

Bryd ;

Officer Karilyn

Natho; (
24) Officer Darian A . Duffel;

Illgen;

(
26)

Officer

Tommy

Officer Heard ;

Brittney

Edwards;

A.

(
32) Sergeant Benito Moya,
Sergeant Luke

Gorman;

Warden Michael

(
31) Assistant

(
27)

Officer

Roesler ;

Warden

Charles

Sam;

Sergeant

H. Landis;

Lieutenant Richard E. Kembro;

Fowler ;

(
36) Officer Matthew Faw;

Sergeant Crystal W .

Sergeant Brittney

Edwards ;

Officer Jacob Johnson ;

Officer

Alicia Scott; (
39) Officer Kimberly Hatthorn; (
40) Officer Lorena
lcomp laint , Docket Entry No .
-

2-

p.

Hernandez; (
41) Officer William Hague; (
42) Officer Andre Walker;
Grievance Investigator Carrie Whatley ;

Bendinez;

(
45)

Archibald;

Officer

Kevan

Smith;

Officer Domingo

(
46)

Officer

Veronica

Officer Emily Redden; (
48) Officer Leslie Winslett;

(
49) Officer Carol Stanley ; (
50) Grievance Investigator K. Brumble;
and (
51) Officer Jaqueline Caldaza.
z

Tawe's primary complaint is that he was subject to strip
searches on several occasions, including :
January

lO,

2016;

January

11,

2016;

December
September

20157
27,

2016,

November 17 , 2016 ; November 24 , 2016 ; December 2, 2016 7 and May
2017 .3

Tawe contends that the searches v iolated his constitu -

tional rights because female correctional officers were present in
the vicinity and could see him naked .
4

Tawe also complains that

the lead defendant , O fficer Norma Gray , improperly searched his
cell and confiscated items of his personal property on January 26,
2016, in retaliation for a grievance that he had filed about the
strip searches on January 25 , 2016 .5 Tawe seeks monetary damages
from a11 of the defendants under 42 U .S .C . 5 1983 for the violation
of his constitutional rights .6

2Id . at

5-15 .

3Id . at 16,
4Id . at 16, 18, 20 .
5Id . at
6Id
=

II.

Discussion

A prisoner inmate's right to privacy is nminimal, at best,'
'

when juxtaposed with the legitimate security needs
institution .

See Oliver v. Scott,

the

F.
3d 736, 745 (
5th Cir.

2002)7 see also Elliott v . Lvnn, 38 F.
3d l8, 190-91 (
5th Cir.

1994). Thus, the Fifth Circuit has held that uE
tqhe presence of
female prison guards for security reasons on those occasions when
male prisoners are naked is not a constitutional violation .' Pettv
'

v . Johnson, 193 F . 518, 1999 WL 707860, at
3d

(
5th Cir. 1999)

(
unpublished table op.) (
citing Letcher v . Turner,

F. 508,
2d

510 (
5th Cir. 1992)). The Fifth Circuit has also consistently held
that the practice of conducting strip searches in the presence of
female officers is not unconstitutional .

See Oliver, 276 F .3d at

7477 Elliott , 38 F .3d at 190-92 ; Letcher , 968 F .2d at 5107 see also

Johnson v. Rupert, 647 F. App ' 407, 408 (
x
5th Cir. 2016) (
per

curiam); Tasbv v . Lvnauqh,

App'x

615 (
5th Cir. 2005);

McKenzie v . Johnson, 204 F . 1115, 1999 WL 1328074, at *1 (
3d
5th
Cir. 1999) (
unpublished table op .). Therefore, Tawe's claim that

he was improperly subjected to strip searches while female officers
were present is frivolous .
Tawe 's allegation that his personal property was wrongfully
confiscated by Officer Gray also lacks merit .

The Supreme Court

has held that a negligent, or even intentional, deprivation of

property by state officials that is random and unauthorized does
not rise to the level of a constitutional violation or a cognizable

claim under 42 U .S .C . 5 1983 if state 1aw provides an adequate
post-deprivation remedy .

See Hudson v . Palmer ,

3194 ,

3204 (
1984); see also Parratt v . Taylor, 10l S. Ct. 1908, 1917
(
1981), overruled in Dart on other grounds bv Daniels v . Williams,
l06 S . Ct. 662 (
1981). Texas provides a remedy for inmates whose
property has been taken or destroyed in an unauthorized manner .

See Myers v. Klevenhaqen,

F.3d 91,

(
5th

1996)7 Marshall

v . Norwood, 74l F.2d 761, 764 (
5th Cir. 1984); Aquilar v . Chastain,

923 S . . 740, 743-44 ( . Crim . App . 1996)7 see also TEX. GOV'
W 2d
Tex
T
CODE 55 501 .007 , 501 .008 .

Therefore , Tawe 's claim concerning his

confiscated property has no basis in federal law and must be
dismissed as legally frivolous .

See Murphv v . Collins , 26 F .3d

541, 543-44 (
5th Cir. 1994)7 see also Nelson v . Director, Texas
Dep't of Crim . Justice, 124 F. App ' 897, 898 (
x
5th Cir. 2005)

(
holding that 50th the civil rights lawsuit and appeal from
dismissal of a prisoner's suit seeking compensatory damages for

loss of personal property were ufrivolousr
').
Tawe's allegation that Officer Gray confiscated his property
nin retaliation' for filing a grievance , in which Tawe complained
'
about being strip searched in front of female officers , also fails
to state a valid claim .

In that regard , claim s of retaliation by

prison inmates umust be regarded with skepticism ,' which requires
'
a reviewing court to ucarefully scrutinize' whether a prisoner has
'
articu lated a sufficient retaliatory motive on the defendant's

part. Woods v . Smith, 60 F . 1161, 1166 (
3d
5th Cir . 1995)

Tawe

provides a copy of the grievance that reportedly instigated the
search of his cell , but it makes no mention of Officer Gray or any
possible motive for confiscating his property .?

Tawe does not

otherwise nallege a chronology of events from wh ich retaliation may

plausibly be inferred.' Id. (
'
citation and internal quotation marks
omitted); see also Jones v . Greninger, l88 F.3d 322, 325 (
5th Cir.

1999).

Because Tawe's bare allegations are insufficient to

establish retaliation or any other actionab le claim , his Comp laint
will be dismissed .
111 .

Conclusion and Order

Based on the foregoing , the court ORDERS that the Prisoner 's

Civil Rights Complaint filed by Richard
No .

Tawe

(
Docket Entry

D ISMISSED WITH PREJUDICE as frivolous .

The Clerk is directed to prov ide a copy of this Memorandum
Opinion and Order to the plaintiff . The Clerk will also provide a
copy

by

regular mail, facsim ile

the TDCJ

transm ission , or

e-mail to :

Office of the General Counsel, P .O . Box 13084 ,

Austin , Texas 78711 , Fax Number 512-936-21597 and

the Manager

of the Three-strikes List for the Southern District of Texas .

SIGNED at Houston , Texas, on this 7th day of F

A

ry , 2018 .

S IM L AKE
UNITED STATES DISTRICT JUDGE

R
Grievance #2016081787, Docket Entry No. 1-2, pp .