Russell v. Bell et al

Filing 5

REPORT AND RECOMMENDATIONS re 1 Complaint filed by David Russell. RECOMMENDS that Plaintiff's complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e). Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DAVID RUSSELL #1636898
V.
OLIVER BELL, BRAD LIVINGSTON,
RICK THALER, WILLIAM STEPHENS,
OSCAR MENDOZA, and FRANK HOKE

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A-14-CA-667-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave
to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the
Powledge Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
Plaintiff complains, due to cutbacks in the prison budget, he has limited legal research materials and
personal correspondence supplies. He claims the cutbacks have resulted in violations of his rights
under the First, Fifth, Eighth, and Fourteenth Amendments. He also claims the defendants violated
criminal law under 18 U.S.C. § 242.1 He sues Oliver Bell, Brad Livingston, Rick Thaler, William
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Plaintiff does not have a private cause of action under the criminal statutes.

Stephens, Oscar Mendoza and Frank Hoke. Plaintiff seeks a declaratory judgment, compensatory
damages, punitive damages, and nominal damages. Plaintiff make clears he seeks damages against
the defendants only in their individual capacities.
DISCUSSION AND ANALYSIS
A.

Standard Under 28 U.S.C. § 1915(e)

An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e)
if the court determines 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 suit. A dismissal
for frivolousness or maliciousness may occur at any time, before or after service of process and
before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as
liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner’s pro se status
does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog
the judicial machinery with meritless litigation and abuse already overloaded court dockets.”
Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
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B.

First Amendment

Inadequate Law Library

Prisoners have a constitutional right of meaningful access to the courts through adequate law
libraries or assistance from legally trained personnel. McDonald v. Steward, 132 F.3d 225, 230 (5th
Cir. 1998) (citing Degrate v. Godwin, 84 F.3d 768, 768-69 (5th Cir. 1996) (quoting Bounds v. Smith,
430 U.S. 817, 828 (1977)). Nevertheless, this constitutional guarantee does not afford prisoners
unlimited access to prison law libraries. Id. Limitations may be placed on library access so long as
the regulations are “reasonably related to legitimate penological interests.” Id. (citing Lewis v.
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Casey, 518 U.S. 343, 361 (1996) (quoting Turner v. Safley, 482 U.S. 78, 89, (1987)). Additionally,
before a prisoner may prevail on a claim that his constitutional right of access to the courts was
violated, he must demonstrate “that his position as a litigant was prejudiced by his denial of access
to the courts.” Id. at 230-31 (citing Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996) (citing
Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993)). Plaintiff’s allegations do not set
forth an actual injury for purposes of a denial-of-access-to-courts claim.
2.

Correspondence Supplies

The prison’s new correspondence rules must be evaluated under the factors set forth in
Turner v. Safley, 482 U.S. 78, 89-91 (1987). In Turner the Supreme Court held that four factors are
relevant in deciding whether a prison regulation affecting a constitutional right that survives
incarceration withstands constitutional challenge: (1) whether the regulation has a valid, rational
connection to a legitimate governmental interest; (2) whether alternative means are open to inmates
to exercise the asserted right; (3) what impact an accommodation of the right would have on guards
and inmates and prison resources; and (4) whether there are “ready alternatives” to the regulation.
The burden is not on the State to prove the validity of prison regulations but on the prisoner to
disprove it. Overton v. Bazzetta, 539 U.S.126, 132 (2003) (citations omitted).
According to Plaintiff, due to budget cuts, he is not given the same amount of correspondence
supplies as he received prior to October 2013. Plaintiff asserts under the new policy each month he
is given five envelopes, twenty-five sheets of paper, and $2.30 of postage. Under the old policy,
Plaintiff claims he received that amount of supplies each week. Plaintiff alleges he now has to
choose wisely when corresponding to family and friends and when deciding to practice and study

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his religion by way of postal correspondence. For example, Plaintiff asserts he has to stop writing
his brother in order for him to write his girlfriend.
The correspondence rules of which Plaintiff complains serve the legitimate goals of reducing
the cost of running the prison. Other than declaring the policy regarding correspondence supplies
unconstitutional, Plaintiff has failed to suggest ready alternatives to the policy. Eliminating the
policy would require the prison to reallocate resources to offender correspondence.

After

consideration Plaintiff’s complaint, the Court is satisfied the correspondence policy challenged by
Plaintiff satisfies the Turner factors and withstands a constitutional challenge.
C.

Fifth Amendment

To the extent Plaintiff raises a due process claim pursuant to the Fifth Amendment his claim
must be dismissed. The Fifth Amendment provides protection for citizens against the federal
government, not the states. In the present case, Plaintiff sues state officials. Therefore, the
Fourteenth Amendment would be the proper constitutional amendment for adjudicating Plaintiff’s
claims against the state officials.
D.

Eighth Amendment

The Eighth Amendment imposes duties on prison officials to provide humane conditions of
confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and
medical care, and must “take reasonable measures to guarantee the safety of the inmates.” Farmer
v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). Prison officials violate the Eighth
Amendment only when two requirements are met. First, the deprivation alleged must be,
objectively, “sufficiently serious.” Id. at 834. Second, a prison officials act or omission must result

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in the denial of “the minimal civilized measure of life’s necessities.” Id. Plaintiff’s allegations fail
to rise to the level of an Eighth Amendment violation.
E.

Fourteenth Amendment
1.

Due Process

Prior to Sandin v. Conner, courts examined state laws to determine whether a protected
liberty interest was created by mandatory language in the statute. Sandin v. Conner, 515 U.S. 472,
(1995). In Sandin, the Supreme Court disapproved of previous cases which “shift[ed] the focus of
the liberty interest inquiry to one based on the language of a particular regulation, and not the
deprivation.” 515 U.S. at 481. The Court concluded that such an inquiry “encouraged prisoners to
comb regulations in search of mandatory language on which to base entitlements to various stateconferred privileges.” Id. The Court recognized that states may create liberty interests which are
protected by the Due Process Clause. However, the Court held that these interests are “generally
limited to freedom from restraint which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Id. at 484. (citations omitted).
As a general rule, only sanctions which result in loss of good conduct time credits for inmates
who are eligible for release on mandatory supervision or which otherwise directly and adversely
affect release on mandatory supervision will impose upon a liberty interest. See Orellana v. Kyle,
65 F.3d 29, 31-33 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996) (“Although Sandin cites with
approval cases in which it was held that state law could create a constitutional liberty interest in
good-time credits, or release on parole, it is difficult to see that any other deprivations in the prison
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context, short of those that clearly impinge on the duration of confinement, will henceforth qualify
for constitutional ‘liberty’ status.”) (citations omitted). Changes to the correspondence rules, at
most, are mere changes in the condition of a prisoner’s confinement and do not implicate due process
concerns.
2.

Equal Protection

A violation of equal protection occurs only when the governmental action in question
“classif[ies] or distinguish[es] between two or more relevant persons or groups[,]” Brennan v.
Stewart, 834 F.2d 1248, 1257 (5th Cir.1988), or when a classification impermissibly interferes with
a fundamental right. Hatten v. Rains, 854 F.2d 687, 690 (5th Cir.1988). A “fundamental right,” for
purposes of equal protection analysis, is one that is “among the rights and liberties protected by the
Constitution.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973).
Plaintiff does not identify any similarly situated prisoners, nor does his allegations show he
was intentionally treated differently from other prisoners absent a rational basis. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Vague and conclusional allegations that a
prisoner’s equal protection rights have been violated are insufficient to raise an equal protection
claim. Pedraza v. Meyer, 919 F.2d 317, 318 n.1 (5th Cir. 1990). Moreover, as explained above, the
change in policy is rationally related to a legitimate state interest and withstands a constitutional
challenge.
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed with prejudice as
frivolous pursuant to 28 U.S.C. § 1915(e).

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It is further recommended that the Court include within its judgment a provision expressly
and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in
(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant
monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff
from filing any lawsuits in this Court without first obtaining the permission from a District Judge
of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some
combination of these sanctions.
It is further recommended that Plaintiff should be warned that for causes of action which
accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order
of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate
while the inmate was in the custody of the Department or confined in county jail awaiting transfer
to the Department following conviction of a felony or revocation of community supervision, parole,
or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good conduct
time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued
good conduct time, if the Department has previously received two final orders; or (3) 180 days of
an inmate’s accrued good conduct time, if the Department has previously received three or more
final orders. See, TEX. GOV’T CODE ANN. § 498.0045 (Vernon 1998).
It is further recommended that Plaintiff be warned that if Plaintiff files more than three
actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure
to state a claim on which relief may be granted, then he will be prohibited from bringing any other
actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
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In the event this Report and Recommendation is accepted, adopted or approved, it is
recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the TDCJ
- Office of the General Counsel and the Pro Se Clerk for the United States District Court for the
Eastern District of Texas.
OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 8th day of September, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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