Mitchell v. Home et al

Filing 22

MEMORANDUM OPINION AND ORDER. All pending motions, if any, are DENIED as moot. Email sent to Manager of Three Strikes List. (Signed by Judge George C Hanks, Jr) Parties notified. (jm4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IVORY R. MITCHELL,
TDCJ # 00363139,
Plaintiff,
VS.
CHIEF HOME,
Defendants.

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November 26, 2024
Nathan Ochsner, Clerk

CIVIL ACTION NO. 4:24-1656

MEMORANDUM OPINION AND ORDER
Plaintiff Ivory R. Mitchell, an inmate in the Texas Department of Criminal Justice–
Correctional Institutions Division (TDCJ), proceeds pro se and in forma pauperis in this
civil rights action. Mitchell has filed a complaint (Dkt. 1) and, as ordered by the Court, a
more definite statement of his claims (Dkt. 17). Because this case is governed by the Prison
Litigation Reform Act (PLRA), the Court is required to scrutinize the pleadings and
dismiss the complaint in whole or in part if it is frivolous, malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Having reviewed the pleadings as required, the Court will dismiss Mitchell’s claims for
the reasons explained below.
I.

BACKGROUND
Mitchell was released on parole in August 2020, but returned to TDCJ in November

2023 after his parole was revoked (Dkt. 17, at 2). He claims that, from the time of his
parole revocation, TDCJ officials have miscalculated the remaining time on his sentence.
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His TDCJ record reflects two offenses: (1) a 1983 conviction for aggravated robbery with
a sentence of 45 years; and (2) a 2023 conviction for possession of a controlled substance
with a sentence of 180 days.

See Inmate Information Search, available at

https://inmate.tdcj.texas.gov/InmateSearch (last visited Nov. 15, 2024). The record also
reflects that his next parole review is scheduled for March 2026. He is confined at the Bell
Unit in Cleveland, Texas.
Mitchell claims that he should not have been returned to TDCJ but rather should
have been punished, as a hearing officer recommended, by placement in an intermediate
sanction facility (ISF) (Dkt. 17, at 4). He also claims that he is “not to receive punishment
and to be prosecuted unless it [pertains] to the 65th legislat[ure] and [H]ouse [B]ill 2455,”
but that TDCJ and the Board of Pardons and Paroles are using other laws to lengthen his
sentence (id.). He states that TDCJ now is calculating his time under laws passed during
the 72nd and 73rd legislatures, in violation of the Ex Post Facto Clause of the Constitution
(id. at 4-5; see id., at 5 (“I should be eligible [for parole review] each year under the
legislation I was convicted under”). He also states that additional punishments he has
received, such as GPS monitoring and parole fees, are invalid because such penalties did
not exist when he was convicted in 1983 (id. at 6).
Mitchell brings his time-calculation claims against Chief Home at TDCJ’s Bell
Unit, alleging that she failed to address the alleged mistake in the length of his incarceration
and the timing and frequency of his parole reviews (id. at 7). He states that, when he
complained to Chief Home, she responded that “it was not her position to calculate
[Mitchell’s] time” (id. at 8).
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Mitchell also brings retaliation claims against three defendants: Travis Turner;
Kelly Enloe; and Joni White. He identifies each of these defendants as working in TDCJ’s
classifications department. He alleges that Turner retaliated against him in June 2016
when, along with Enloe and White, he “made it look like [Mitchell] was having an affair
with [an officer, Lisa Winston], when [he] was not” (id. at 10-11). He claims that Turner’s
retaliation caused “parole denials,” “unfair monitoring of [his] good time,” and
miscalculation of the remaining time on his sentence (id. at 12). When asked by the Court
how he knows that Turner caused him harm, he responded that he “feel[s] it was Travis
Turner, Kelly Enloe, and Joni White” because, before incident with Winston, Mitchell had
no issues with the calculation of his time credits and was a “well respected inmate” (id.).
When asked to provide all facts supporting his belief that Turner was motivated by
retaliation, Mitchell stated only that, prior to the incident, he had no issues in TDCJ (id.).
Mitchell alleges that Enloe, a classifications board member, retaliated against him
in 2016 when she described him in a court filing as “big and bad” and refused to transfer
him to protective custody, after which Mitchell was assaulted by other inmates (id. at 14).
When asked how he knows that Enloe was motivated by retaliation, Mitchell responded,
“I don’t know exactly why [Enloe] done the things she done” and that he “can only assume”
she acted to protect TDCJ from monetary damages (id. at 17).
Mitchell alleges that White, also a classification board member, retaliated against
him by failing to investigate his complaint in 2024 regarding the calculation of his sentence
(id. at 20). When asked how he knows that White was motivated by retaliation, Mitchell
stated that he does not know that White personally took the action or why she had done so,
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but that “she should be held accountable” because she’s a classification board member and
ignored his complaints (id. at 21).
Mitchell states that he filed a grievance regarding the calculation of his sentence,
which officials denied on the grounds that the issue was not grievable (id. at 22-23). He
did not provide any information regarding grievances relevant to his retaliation claims.
As relief for his claims, Mitchell requests release from confinement, recalculation
of his sentence, an order directing TDCJ to conduct his parole review more frequently, and
a refund of his fees for this civil action (Dkt. 1, at 4; Dkt. 17, at 6).
Since filing his more definite statement, Mitchell has submitted four letters in which
he complains of harassment and retaliation. He requests that the Court investigate or order
federal protection.1
II.

STANDARD OF REVIEW
Because the plaintiff is a prisoner proceeding in forma pauperis, the Court is

required by the PLRA to screen the case and dismiss the complaint at any time if it
determines that the complaint is frivolous, malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against a defendant who is immune from such

1

See Dkt. 18 (letter filed Oct. 7, 2024, states that Chief Home assigned him a cellmate who
is not disabled and 30 years younger than Mitchell and requests “federal protection”); Dkt. 19
(letter filed Oct. 10, 2024, states that, because of his complaint regarding his cellmate, he was
placed on a disciplinary pod “by classifications” in order to retaliate against him for filing housing
complaints); Dkt. 20 (letter filed Oct. 21, 2024, states that he was “shook down” by an officer
named Montoya, who is not a defendant in this suit, who took Mitchell’s cane in an effort to
provoke him into disciplinary problems); Dkt. 21 (letter filed Oct. 23, 2024, states that he is housed
with inmates who are 25-30 years old and “smoke dope all day long” and that Chief Home is trying
to get him assaulted; letter requests a court investigation into his safety).

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relief. 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). A district court may dismiss a
claim as frivolous if it lacks any arguable basis in law or fact. Samford v. Dretke, 562 F.3d
674, 678 (5th Cir. 2009). A claim lacks an arguable basis in law “if it is based on an
indisputably meritless legal theory.” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir.
2013) (cleaned up). It lacks an arguable basis in fact “if, after providing the plaintiff the
opportunity to present additional facts when necessary, the facts alleged are clearly
baseless.” Id. (cleaned up).
A dismissal under § 1915A(b) or § 1915(e)(2)(B) for failure to state a claim is
governed by the same standard as a motion under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. See Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002). Under this
standard, the Court “construes the complaint liberally in favor of the plaintiff,” “takes all
facts pleaded in the complaint as true,” and considers whether “with every doubt resolved
on [the plaintiff’s] behalf, the complaint states any valid claim for relief.” Harrington v.
State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009) (cleaned up). A court may
dismiss a case sua sponte and without notice to the plaintiff if the plaintiff has pleaded his
best case or if the dismissal is without prejudice. Brown v. Taylor, 829 F.3d 365, 370 (5th
Cir. 2016); see Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (holding that a court
may sua sponte dismiss for failure to state a claim “as long as the procedure employed is
fair”) (cleaned up); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986) (holding that
where the pleadings, viewed under the individual circumstances of the case, “demonstrate
that the plaintiff has pleaded his best case,” dismissal on the pleadings is appropriate if the
pleadings do not adequately state a cause of action).
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In reviewing the pleadings, the Court is mindful of the fact that the plaintiff
proceeds pro se. Complaints filed by pro se litigants are entitled to a liberal construction
and, “however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned
up). Even under this lenient standard a pro se plaintiff must allege more than “‘labels and
conclusions’ or a ‘formulaic recitation of the elements of a cause of action.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Additionally, regardless of
how well-pleaded the factual allegations may be, they must demonstrate that the plaintiff
is entitled to relief under a valid legal theory. See Neitzke v. Williams, 490 U.S. 319, 327
(1989); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
III.

DISCUSSION
Mitchell brings his civil-rights claims under 42 U.S.C. §1983, which provides a

vehicle for a claim against a person “acting under color of state law,” such as a prison
official, for a constitutional violation. See Pratt v. Harris Cty., Tex., 822 F.3d 174, 180
(5th Cir. 2016). Claims under § 1983 are subject to a two-year statute of limitations. See
Winfrey v. Rogers, 901 F.3d 483, 492 (5th Cir. 2018); TEX. CIV. PRAC. & REM.
CODE § 16.003(a). The limitations period “begins to run once the plaintiff becomes aware
that he has suffered an injury or has sufficient information to know that he has been
injured.” Matter of Hoffman, 955 F.3d 440, 444 (5th Cir. 2020) (cleaned up).

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A.

Claims against Chief Home
1. Venue

As an initial matter, this Court is not a proper venue for Mitchell’s claims against
Chief Home. Federal statute provides that a civil action may be brought in (1) “a judicial
district in which any defendant resides,” (2) “a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred,” or (3) “if there is no district
where the action may otherwise be brought . . . , any judicial district in which any defendant
is subject to the court’s personal jurisdiction.” 28 U.S.C. § 1391(b). Chief Home is in
Cleveland, Texas, at the Bell Unit, and the relevant events took place there. Cleveland is
in Liberty County, which is in the Eastern District of Texas, Beaumont Division. 28 U.S.C.
§ 124(c)(2). Mitchell does not plead any facts against Chief Home with a connection to
the Southern District of Texas.
When a case lays venue in the wrong district or division, the district court “shall
dismiss, or if it be in the interest of justice, transfer such case to any district of division in
which it could have been brought.” 28 U.S.C. § 1406(a). A district court has “broad
discretion in deciding whether to order a transfer.” Balawajder v. Scott, 160 F.3d 1066,
1067 (5th Cir. 1999). In this case, the Court determines that a transfer would not serve the
interests of justice because, as explained below, Mitchell’s claims against Chief Home
must be dismissed.
2. Claims Regarding Sentence
Mitchell alleges TDCJ officials miscalculated the length of his sentence in 2023,
when he was readmitted to TDCJ after his parole was revoked. He sues Chief Home
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because she allegedly failed to address or correct the error. He argues that he should be
sentenced according to laws passed during the 65th legislature, but that TDCJ is calculating
his sentence under laws passed during the 72nd and 73rd legislatures, in violation of the
Ex Post Facto Clause. He seeks release from confinement and more frequent parole
reviews.
Mitchell’s claim against Chief Home fails because the relief he seeks is not available
in a civil-rights action under § 1983. Although the line between civil-rights claims and
habeas claims is often “blurry,” “challenges to the fact or duration of confinement are
properly brought under habeas, while challenges to the conditions of confinement are
properly brought under § 1983.” Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017)
(footnotes omitted) (citing, inter alia, Preiser v. Rodriguez, 411 U.S. 475 (1973)); see
Cook v. Texas Dep’t of Criminal Justice Transitional Planning Dep’t, 37 F.3d 166, 168
(5th Cir. 1994). Because Mitchell seeks a shorter duration of his confinement, his claims
are properly categorized as habeas claims.
Mitchell may, if appropriate, file a habeas corpus action regarding his postrevocation sentence in the proper venue. Before filing a federal habeas action, the
petitioner is required to exhaust state remedies by seeking state habeas relief in the court
where he was convicted. See, e.g., Ex parte Evans, 964 S.W.2d 643, 647 (Tex. Crim. App.
1998). The Court notes that eligibility for street-time credit is determined by the law in
effect at the time of a prisoner’s parole revocation. See Ex parte Hernandez, 275 S.W.3d
895, 897 (Tex. Crim. App. 2009). The law in 2023 provided that, if parole is revoked for
a person convicted of aggravated robbery, the person “may be required to serve the
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remaining portion of the sentence on which the person was released . . without credit for
the time from the date of the person’s release to the date of revocation.” TEX. GOV’T CODE
§ 508.283(b) (emphasis added); see TEX. GOV’T CODE § 508.149(12) (aggravated
robbery).
B.

Retaliation Claims

On this record, the Court cannot determine whether Mitchell exhausted his
administrative remedies for his retaliation claims. In any event, his claims must be
dismissed for the reasons that follow.
To state a valid claim for retaliation, a prisoner must allege (1) a specific
constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or her
exercise of that right, (3) a retaliatory adverse act, and (4) causation. Baughman v.
Hickman, 935 F.3d 302, 312 (5th Cir. 2019). If an inmate is unable to point to a specific
constitutional right that has been violated, the claim will fail. Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995). To show intent, the inmate must allege more than his personal belief
that he is the victim of retaliation. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.
1997). The inmate must produce direct evidence of motivation, or allege a chronology of
events from which retaliation may plausibly be inferred. Woods, 60 F.3d at 1166. As for
causation, a successful claim of retaliation requires a showing that “but for” some
retaliatory motive, the complained-of adverse action would not have occurred. Nieves v.
Bartlett, 587 U.S. 391, 398-99 (2019); Woods, 60 F.3d at 1166. A supervisory official may
be held liable under § 1983 “only if (1) he affirmatively participates in the acts that cause
the constitutional deprivation, or (2) he implements unconstitutional policies that causally
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result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011)
(cleaned up).
Mitchell alleges that Turner and Enloe retaliated against him in 2016 (Dkt. 17, at
11, 16). He pleads no facts suggesting that he was unaware of the alleged injury at the
time. Because he filed this suit in 2024, these claims are barred by the two-year statute of
limitations. See TEX. CIV. PRAC. & REM. CODE § 16.003(a); Winfrey, 901 F.3d at 492.
Additionally, Mitchell does not plead facts that could show that either Turner or Enloe
acted with a retaliatory motive that was a “but for” cause of the alleged adverse action.2
Therefore, he fails to state a retaliation claim against either defendant. See Nieves, 587
U.S. at 398-99 (“but for” cause is required); Johnson, 110 F.3d at 310 (a plaintiff’s personal
belief that a defendant retaliated against him is insufficient).
Mitchell alleges that White retaliated against him by failing to investigate his
complaint regarding his sentence calculation, stating that he does not know exactly what
action or inaction is attributable to White or why she acted as she did (Dkt. 17, at 21).
Because he does not plead facts that could show that White’s retaliatory motive was a “but
for” cause of the alleged adverse action, he fails to state a retaliation claim against her. See
Nieves, 587 U.S. at 398-99; Johnson, 110 F.3d at 310.
Finally, in his four recent letters to the Court, Mitchell complains that Chief Home,
a non-defendant named Montoya, and “classifications” personnel generally are harassing

2

See Dkt. 17, at 12 (stating that he feels that Turner, Enloe, and White retaliated against him
because he had no issues with TDCJ before the Winston incident); id. at 17 (stating that he does
not “know exactly why” Enloe acted against him).

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him or retaliating against him based on his housing assignments (Dkt. 18; Dkt. 19; Dkt. 20;
Dkt. 21). He appears to state that at least some of the alleged retaliation is due to his
complaints regarding his housing assignments at the Bell Unit (see, e.g., Dkt. 19, at 1).
None of his letters adequately allege that a defendant in this suit intended to retaliate against
Mitchell for exercising a specific constitutional right, nor that the defendant’s retaliatory
motive was the “but for” cause of the adverse action against him. See Nieves, 587 U.S. at
398-99; Baughman, 935 F.3d at 312. Therefore, to the extent the letters could be construed
as a request for leave to amend his pleadings under Federal Rule of Civil Procedure 15(a),
or supplement his pleadings under Rule 15(d), the Court denies the request on the grounds
that the amendment or supplement would be futile.3 Moreover, because the officials
involved apparently are at the Bell Unit and the relevant events occurred there, the proper
venue for Mitchell’s claims would be in the Eastern District of Texas, Beaumont Division,
and not in this Court. Mitchell may, if appropriate, exhaust his administrative remedies
and file a new suit in the proper court.
Mitchell’s retaliation claims will be dismissed for failure to state a claim upon which
relief can be granted.

See FED. R. CIV. P. 15(a), (d); Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass’n,
751 F.3d 368, 378 (5th Cir. 2014) (“futility” in the context of a Rule 15 motion to amend means
that the proposed amended complaint would fail to state a claim upon which relief could be
granted). Additionally, because the proposed supplements mostly involve persons who are not
defendants in this case and pertain to completely separate incidents, the Court in its discretion
denies leave to supplement. See Burns v. Exxon, 158 F.3d 336, 343 (5th Cir. 1998) (whereas Rule
15(a) provides that leave to amend should be “freely given,” the text of Rule 15(d) contains no
such provision).
3

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IV.

CONCLUSION
For the reasons explained above the Court now ORDERS that Mitchell’s claims are

DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)
for failure to state a claim upon which relief can be granted.
All pending motions, if any, are DENIED as moot.
The Clerk will provide a copy of this order to the parties and to (1) the TDCJ
Office of General Counsel at the email address on file with the court; (2) the Inmate
Trust

Fund,

P.O.

Box

629,

Huntsville,

Texas

77342-0629,

by

email

at [e-mail]; and (3) the Manager of the Three-Strikes List
for the Southern District of Texas at [e-mail].
SIGNED at Houston, Texas, on

November 26

, 2024.

_________________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE

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