Curtis v. Barbosa et al

Filing 11

DISMISSAL ORDER - Plaintiff's complaint is DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim and the complaint is DISMISSED for failure to comply with an order of the this Court. All pending motions are DENIED. CASE NO LONGER REFERRED to Magistrate Judge Pamela A. Mathy. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT of TEXAS
SAN ANTONIO DIVISION
DALE ALAN CURTIS,
# 644162,

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Plaintiff
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v.
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JOEL F. BARBOSA, Warden,
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TERESA G. BATES, Mailroom
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Administrative Assistant,
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DEBBIE D. STRAIT, Mailroom
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Administrative Assistant,
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SARINA MENDOZA, Sergeant,
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FRANCISCO DURAN, JR., Lieutenant,
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JAMES W. HOWE, Sergeant,
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RAUL GUERRA, JR., Correctional Officer, §
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Defendants
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Civil Action
No. SA-11-CA-34-XR

DISMISSAL ORDER
Before the Court is plaintiff Dale Alan Curtis’s 42 U.S.C. § 1983 civil rights complaint
(Docket Entry No. 1). This Court ordered plaintiff to show cause why his civil rights complaint
should not be dismissed (Docket Entry No. 3). Plaintiff was informed that if he failed to respond to
the Order, his complaint would be dismissed for failure to prosecute and failure to comply with an
order of this Court, pursuant to Fed. R. Civ. P. 41(b).
Plaintiff sought a stay of all proceedings because he was moved to another prison unit and
he did not have his legal paperwork with him (Docket Entry No. 6). This Court granted an extension
of time to respond to the Show Cause Order (Docket Entry No. 7). Plaintiff again asked for a stay
of the proceedings because he had not received his paperwork, which he said he needed to attach as
exhibits to an amended complaint (Docket Entry No. 9). Plaintiff did not identify the documents he

did not have, and he did not state why he needed them for an amended complaint. Nevertheless,
plaintiff was granted an extension of time to July 8, 2011, to respond to the Show Cause Order.
Plaintiff was informed that if he sought another extension based on not having his legal documents,
plaintiff would be required to identify the documents and exhibits that were missing, and he would
be required to explain why he was unable to file an amended complaint without them.
The time for compliance with this Court’s Order has expired, and plaintiff has not responded
to the Show Cause Order. Therefore, plaintiff’s complaint is dismissed for failure to prosecute or
comply with this Court’s Show Cause Order pursuant to Rule 41(b). See Martinez v. Johnson, 104
F. 3d 769, 772 (5th Cir. 1997).
Title 28 U.S.C. § 1915A requires this Court to screen prisoners’ complaints and dismiss the
complaint if the court determines it is frivolous or malicious, or it fails to state a claim on which
relief may be granted. An action is frivolous where there is no arguable legal or factual basis for the
claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989). To state a claim pursuant to Fed. R. Civ. P.
12(b)(6), plaintiff’s allegations must present “enough facts to state a claim to relief that is plausible
on its face,” i.e., the “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” and “labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
When interpreting a prisoner’s complaint, the court should look at the substance of the
complaint setting aside statements of “bare legal conclusions, with no suggestion of supporting
facts.” See Wesson v. Oglesby, 910 F. 2d 278, 281 (5th Cir. 1990). A conclusory complaint, one that
fails to refer to material facts, may be dismissed as frivolous, see e.g. Wilson v. Budney, 976 F. 2d
957, 958 (5th Cir. 1992); Moody v. Baker, 857 F. 2d 256, 257 (5th Cir. 1988), or for failure to state
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a claim, see Rios v. City of Del Rio, 444 F. 3d 417, 426 (5th 2006).
Plaintiff contends on September 16, 2009, he and his cellmate each received two sandwiches
in their cell. In Texas prisons, sandwiches or sack lunches are referred to as “johnnies” or “johnny
sacks.” One of the sandwiches plaintiff and his cellmate each received was a ground beef sandwich
containing four to six pieces of ground beef, but plaintiff asserts one-quarter pound of ground beef
is required on each sandwich. On September 21, 2009, plaintiff put his sandwich in an envelope and
his cellmate’s sandwich in another envelope. One envelope was addressed to a Texas state senator
and the other envelope was addressed to a Texas state representative. Plaintiff put the envelopes in
an indigent envelope and deposited the indigent envelope in the prison mailbox. On September 22,
2009, the mailings were returned to plaintiff with a note stating food cannot be sent by mail. On
September 24, 2009, plaintiff put stamps on the two envelopes and again put them in the prison
mailbox. On October 1, 2009, warden Joel F. Barbosa met with plaintiff and said he would not
permit the envelopes to be mailed. A document from Barbosa to plaintiff, attached to plaintiff’s
complaint, stated one johnny was removed from each package, because it was against TDCJ policy
to send johnnies to elected officials. On October 5, 2009, mailroom administrative assistant Debbie
D. Strait told plaintiff that other pieces of outgoing mail were being denied because the enclosed
sandwiches were uninspectable. In a document submitted by plaintiff with his complaint, Strait told
plaintiff that outgoing mail was being denied because a sandwich was enclosed in the mailing.
Plaintiff sent a request to Teresa G. Bates, mailroom supervisor, to have the envelopes and letters
returned to him. On October 1, 2009, Barbosa told plaintiff he knew how he was going to deal with
plaintiff in the future. On October 15, 2009, plaintiff filed a grievance against Barbosa for the denial
of outgoing legal mail. The grievance was denied.
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Plaintiff contends Barbosa began retaliating against plaintiff on November 16, 2009. Barbosa
was in charge of the Connally Unit classification committee. Plaintiff asserts on November 16, 2009,
Barbosa denied plaintiff’s promotion in line class from S-4 to S-3. Plaintiff filed a greivance. The
response to the grievance stated the decision of the three-member classification committee was based
on plaintiff’s three disciplinary infractions within six months.
Plaintiff asserts on November 20, 2009, Sergeant Sarina Mendoza entered into an agreement
to falsify a document that resulted in a disciplinary case. Plaintiff does not identify anyone with
whom Mendoza entered into any such agreement, although plaintiff elsewhere in his complaint
asserts Barbosa and Mendoza entered into an agreement with Mendoza to retaliate against plaintiff,
resulting in unlawful punishment. Plaintiff does not specify any document that Mendoza falsified.
Plaintiff refers to disciplinary case number 20100084849, in which plaintiff was accused of failing
to comply with grooming standards by not shaving and for being in a commissary when plaintiff was
not authorized on November 20, 2009. Plaintiff alleges on November 26, 2009, Lieutenant Franciso
Duran entered into an agreement with Mendoza to punish plaintiff for a false disciplinary case.
Plaintiff again refers to disciplinary case number 20100084849. At a disciplinary hearing in that case
conducted by Duran on November 26, 2009, plaintiff was found not guilty of the grooming offense,
but he was found guilty of being out-of-place, and he was assessed a punishment of twenty days of
recreation and commissary restriction. Plaintiff filed a grievance for the disciplinary case. The
response to the grievance observed that the grooming charge was dismissed at the disciplinary
hearing. The grievance response also stated plaintiff’s account showed a .00 balance, and that once
plaintiff’s card was swiped and his transaction was completed, plaintiff should have returned to his
cell.
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Plaintiff complains he was not seen on May 13, 2010, for a promotion in line-class. Plaintiff
asserts he was instead seen on May 18, 2010.
Plaintiff contends he possessed a clipper-shave pass authorizing him to maintain one-fourth
inch of facial hair. Plaintiff asserts on October 15, Barbosa instructed officer Derek E. Calero to
charge plaintiff with a disciplinary case for not shaving. Plaintiff was charged in disciplinary case
number 20110048478 with refusing to comply with grooming standards by refusing to shave. The
charging officer was listed as Raul Guerra, Jr., but plaintiff contends he had nothing to do with the
incident. Officer James W. Howe read the charges to plaintiff. At a disciplinary hearing, the case
was dismissed, and plaintiff was not punished. Plaintiff asserts on November 16, 2010, Barbosa
instructed another officer to charge plaintiff with a disciplinary case for not shaving. Plaintiff does
not allege whether he was actually charged with a disciplinary case for the November 16th incident,
and he does not state the result of any such disciplinary case. On December 10, 2010, Barbosa had
an officer stop plaintiff to charge him with a disciplinary case for not shaving. Barbosa took
plaintiff’s ID holder and threw it on the ground, cursing at plaintiff. Plaintiff does not allege whether
he was actually charged with a disciplinary case for the December 10th incident, and he does not
state the result of any such disciplinary case. On December 11, 2010, plaintiff asserts Barbosa
stopped plaintiff, used profanity toward plaintiff, and instructed another officer to charge plaintiff
with not shaving. Plaintiff does not allege whether he was actually charged with a disciplinary case
for the December 11th incident, and he does not state the result of any such disciplinary case.
Plaintiff asserts defendant Barbosa violated plaintiff’s right to free speech by not allowing
plaintiff’s legal mail to go out. Plaintiff contends defendants Bates and Strait violated plaintiff’s
First Amendment rights by refusing to send plaintiff’s legal mail. Plaintiff contends defendant
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Mendoza falsified a document to punish plaintiff, thereby violating plaintiff’s right to be free from
cruel and unusual punishment. Plaintiff asserts defendant Duran’s finding that plaintiff was guilty
in a disciplinary case violated plaintiff’s right to be free from cruel and unusual punishment.
Plaintiff claims defendant Guerra’s agreement to falsify a document constituted cruel and unusual
punishment. Plaintiff contends defendant Howe signed a document different than the original
document to ensure plaintiff was punished, in violation of the prohibition against cruel and unusual
punishment. Plaintiff also contends the acts committed by the defendants denied his right to due
process.
To establish a claim under § 1983, a plaintiff must prove the violation of a right secured by
the Constitution and laws of the United States and show the alleged deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). In a § 1983 civil
rights action, a plaintiff must prove the defendant was personally involved in the actions he
complains of, or is responsible for the policy or custom giving rise to the constitutional deprivation.
See McConney v. City of Houston, 863 F. 2d 1180, 1184 (5th Cir. 1989); Reimer v. Smith, 663 F. 2d
1316, 1323 (5th Cir. 1981); Howell v. Tanner, 650 F. 2d 610, 615 (5th Cir. 1981). The case and
controversy requirement of Article III of the Constitution requires that to proceed in federal court a
complaint must allege an injury, see O'Shea v. Littleton, 414 U.S. 488, 493-95 (1974), that is more
than de minimis or trivial, see Glenn v. City of Tyler, 242 F. 3d 307, 314 (5th Cir. 2001).
Plaintiff claims defendant Bates violated his constitutional rights by refusing to send out
plaintiff’s outgoing mail. However, plaintiff does not allege any facts regarding any refusal by Bates
to send outgoing mail. Instead, plaintiff only alleges he had to make a request that Bates return
plaintiff’s envelopes and letters to him. Plaintiff does not allege the material was not returned to
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him. Plaintiff does not allege defendant Bates was personally involved in the determination that
plaintiff’s mail with food enclosed could not be sent out, and plaintiff does not allege Bates was
responsible for a policy that food could not be mailed by inmates or that items in outgoing mail that
could not be inspected would not be permitted to be sent.
Qualified immunity extends to government officials performing discretionary functions
“insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.
Ct. 2727, 73 L. Ed. 2d 396 (1982). Once a qualified immunity defense is raised, it is the plaintiff's
burden to reply to that defense in sufficient detail to overcome the defense or face dismissal.
Schultea v. Wood, 47 F. 3d 1427, 1433 (5th Cir. 1995) (en banc). Overcoming a qualified immunity
defense requires examination of a two-step analysis: the plaintiff must show the defendant violated
his constitutional rights and the constitutional right allegedly violated was clearly established at the
time the events in question occurred. Nerren v. Livingston Police Dept., 86 F. 3d 469, 473 (5th Cir.
1996).
The United States Constitution permits greater restriction of prisoners' First
Amendment rights than it allows elsewhere and affords substantial deference to the
professional judgment of prison administrators. See Beard v. Banks, ---U.S. ----, 126
S.Ct. 2572, 2577-78, 165 L.Ed.2d 697 (2006) (upholding a prison policy that denies
access to newspapers, magazines, and photographs to violent inmates confined in
long-term restrictive housing) (citations omitted). Inmates have a First Amendment
right both to send and receive mail, see Thornburgh v. Abbott, 490 U.S. 401, 109
S.Ct. 1874, 104 L.Ed.2d 459 (1989), but that right does not preclude prison officials
from examining mail to ensure that it does not contain contraband. See Brewer v.
Wilkinson, 3 F.3d 816, 821 (5th Cir.1993) (“A prisoner's freedom from censorship
under the First Amendment ... with regard to his incoming mail is not the equivalent
of freedom from inspection or perusal.”) (citing Wolff v. McDonnell, 418 U.S. 539,
576, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).
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The Fifth Circuit has held that prisoners have a right to be free from “arbitrary
censorship” of outgoing mail. Brewer, 3 F.3d at 826. However, “freedom from
censorship is not equivalent to freedom from inspection or perusal.” Wolff v.
McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Weaver v. Rafter, 2008 WL 167310, No. G-05-0506 (S.D. Tex. Jan 16, 2008).
Defendants Barbosa, Bates, and Strait are entitled to invoke qualified immunity regarding
plaintiff’s claim about outgoing mail. Plaintiff has failed to allege particular facts sufficient to show
defendants are not entitled to qualified immunity. Plaintiff has failed to alleged facts that would
show his constitutional rights were violated by the inspection of his outgoing mail. See Brewer, 3
F.3d at 821. Also, plaintiff has not shown he clearly had a constitutional right to mail food from a
prison. Additionally, it would have been reasonable for defendants to have determined the
sandwiches were uninspectable, because they could not have determined whether any substance had
been added to the sandwiches. It would have been reasonable for defendants to have determined that
sandwiches could spoil while being transported in the mail, thus finding it necessary to protect the
addressees from receiving odious, spoiled food in a mailing from prison. Moreover, plaintiff has not
shown that food as an enclosure in mail is not considered to be contraband. Additionally, plaintiff
has not alleged facts that would show his attempted mailing of food complied with the requirements
of the United States Postal Service for hazardous, restricted, and perishable mail. See United States
Postal Service Publication 52; United States Postal Service Domestic Mail Manual.
Plaintiff has not shown how he was harmed by not being allowed to mail sandwiches. If
plaintiff’s purpose in mailing the sandwiches was to complain to elected officials about the quality
of the sandwiches he was served, plaintiff could have explained in a letter about the nature of any
problem he had with the food. Plaintiff does not allege he was prevented from sending a letter by
itself to the officials. Rather, prison officials would not permit the mailing of food.
Plaintiff’s claims against Barbosa, Mendoza, and Duran regarding disciplinary case number
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20100084849 fail to state a civil rights claim. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),
the Supreme Court held that a § 1983 claim about unconstitutional confinement does not accrue until
the basis of that confinement has been “reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called into question
by a federal court's issuance of a writ of habeas corpus.” In Wilkinson v. Dotson, 544 U.S. 74, 81-82
(2005), the Supreme Court held that “a state prisoner's § 1983 action is barred (absent prior
invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the
prisoner's suit (state conduct leading to conviction or internal prison proceedings) — if success in
that action would necessarily demonstrate the invalidity of confinement or its duration.” In Edwards
v. Balisok, 520 U.S. 641, 648, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997), the Supreme Court held
“[a prisoner's] claim for declaratory relief and money damages, based on [alleged due process
violations in the course of a prison disciplinary hearing] that necessarily imply the invalidity of the
punishment imposed, is not cognizable under § 1983.” See also Preiser v. Rodriguez, 411 U.S. 475,
487-88, 499, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) (an inmate may not recover good-time credits
lost in a prison disciplinary proceeding through a § 1983 action).
Here, plaintiff does not state his punishment in disciplinary case number 20100084849 has
been overturned. Therefore, he may not raise any claim in this civil rights case regarding that
disciplinary case.
Moreover, to prevail in a civil rights case or a habeas corpus case challenging a disciplinary
case, the plaintiff or petitioner must show the disciplinary proceedings denied him a liberty interest
protected by the Due Process Clause; typically such a protected liberty interest consists of lost goodtime where the loss of good-time will affect the duration of the petitioner’s sentence. See Wolff v.
McDonnell, 418 U.S. 539, 556-58 (1974). As a result of disciplinary case number 20100084849,

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plaintiff lost twenty days of recreation and commissary privileges. Plaintiff’s commissary and
recreation restrictions do not affect a liberty interest and do not implicate due process concerns.
Madison v. Parker,104 F.3d 765, 768 (5th Cir. 1997); see also Payne v. Dretke, 80 Fed. Appx. 314,
315 (5th Cir. 2003) (recreation restrictions do not implicate a liberty interest under the Due Process
Clause). Because plaintiff has not lost a protected liberty interest there is no predicate for a civil
rights or habeas corpus due process claim. See Sandin v. Conner, 515 U.S. 472, 483-87 (1995).
Also, plaintiff has not shown how a twenty-day loss of privileges is cruel and unusual punishment.
Regarding plaintiff’s claims against Barbosa, Howe, and Guerra regarding disciplinary case
number 20110048478, it does not appear plaintiff was found guilty or punished for any disciplinary
cases regarding the failure to comply with the grooming standards. Thus, plaintiff fails to allege an
injury. See O'Shea v. Littleton, 414 U.S. at 493-95 (the case and controversy requirement of Article
III of the Constitution requires that to proceed in federal court a civil rights complaint must allege
an injury). Also, plaintiff alleges Howe “signed a document that was different than the original.”
It is not clear what plaintiff means, and plaintiff does not allege any act that was a constitutional
violation. Plaintiff alleges Guerra agreed to falsify a document even though he was not a party to
the incident. Again, plaintiff does not explain what he means, and plaintiff does not allege any act
that was a constitutional violation.
“To state a valid claim for retaliation under section 1983, 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.” Jones v. Greninger, 188 F.3d 322,
324-25 (5th Cir.1999). Prison officials may not retaliate against an inmate for complaining to a
supervisor about a guard’s misconduct. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995). A
conclusory claim of retaliation is insufficient. Id. at 1166. However, a plaintiff may allege a

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chronology of events from which retaliation may be inferred. Id. The retaliatory adverse act cannot
be so de minimis that it would not deter an ordinary person from further exercising his or her
constitutional rights. Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Causation means that but
for the retaliatory motive, the adverse action would not have occurred. Johnson v. Rodriguez, 10
F.3d 299, 310 (5th Cir. 1997).
The Fifth Circuit has stated:
[P]rison officials must have wide latitude in the control and disciplining of
inmates, that latitude does not encompass conduct that infringes on an inmate's
substantive constitutional rights. Within that limitation we intend no undue restriction
of actions legitimately motivated by concerns of prison order and discipline. . . . 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 retaliation must
therefore be regarded with skepticism, lest federal courts embroil themselves in every
disciplinary act that occurs in state penal institutions.
To assure that prisoners do not inappropriately insulate themselves from
disciplinary actions by drawing the shield of retaliation around them, trial courts must
carefully scrutinize these claims. To state a claim of retaliation an inmate must allege
the violation of a specific constitutional right and be prepared to establish that but for
the retaliatory motive the complained of incident–such as the filing of disciplinary
reports as in the case at bar–would not have occurred. This places a significant
burden on the inmate. Mere conclusionary allegations of retaliation will not withstand
a summary judgment challenge. The inmate must produce direct evidence of
motivation or, the more probable scenario, allege a chronology of events from which
retaliation may plausibly be inferred. Although we decline to hold as a matter of law
that a legitimate prison disciplinary report is an absolute bar to a retaliation claim, the
existence of same, properly viewed, is probative and potent summary judgment
evidence, as would be evidence of the number, nature, and disposition of prior
retaliation complaints by the inmate.
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotation marks and citations omitted).
Here, plaintiff contends Barbosa retaliated against him. Plaintiff does not clearly allege the
reason for retaliation. Plaintiff appears to suggest the retaliation was because plaintiff unsuccessfully
tried to mail sandwiches to state officials. However, as explained elsewhere in this Order, plaintiff
had no constitutional right to mail sandwiches.

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Plaintiff appears to complain that he was denied a promotion in line class by the unit
classification committee, of which Barbosa was in charge, and that the denial of a promotion was
retaliatory. However, in response to a grievance, it was explained to plaintiff that the committee
decision was by a majority vote of three members, and the decision was based on plaintiff’s three
disciplinary infractions within six months. Plaintiff alleges no facts to dispute there were at least two
committee members who voted to deny the promotion and that the reason was plaintiff’s disciplinary
record. Plaintiff’s conclusory claim of retaliation is insufficient.
Plaintiff makes the conclusory claim that Barbosa and Mendoza retaliated against him,
resulting in Mendoza falsifying a document, but he does not allege how Barbosa was involved in
disciplinary case number 20100084849, he does not allege any facts to show any conspiracy to
retaliate, and he does not allege any specific constitutional right Mendoza intended to retaliate
against plaintiff for exercising. If plaintiff again means he was retaliated against for trying to mail
sandwiches, he has not shown he had a constitutional right to mail food to state officials.
Additionally, plaintiff was found guilty of being out-of-place; that determination has not been set
aside; and, contrary to plaintiff’s conclusory claim, he has not demonstrated that the allegation
against him was false. Also, plaintiff was found not guilty of the grooming charge. Because he
received no punishment for that charge, plaintiff has not shown how he was injured by any retaliation
related to the grooming charge.
Plaintiff also contends Barbosa instructed various other officers to charge plaintiff with
disciplinary actions for not shaving. It is not clear whether plaintiff alleges these were retaliatory acts
for plaintiff’s attempts to mail food. To the extent plaintiff’s complaint alleges retaliation regarding
these incidents, any such complaint is conclusory. Of these other incidents, plaintiff alleges there
was only one other disciplinary case: 20110048478 for refusing to comply with grooming standards

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by refusing to shave. Plaintiff asserts on October 15, 2010, Barbosa told officer Calero to charge
plaintiff with the disciplinary case. However, at the disciplinary hearing, the case was dismissed and
plaintiff was not punished. Plaintiff has not shown he was injured by any retaliation related to this
disciplinary case or to any other threatened disciplinary action.
For the foregoing reasons, plaintiff’s complaint is DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim, and the complaint
is DISMISSED for failure to comply with an order of this Court. All pending motions are
DENIED.
The Clerk of Court shall send a copy of this Dismissal Order and the Judgment in this
case to the Pro Se Staff Attorney, Attn.: Keeper of the “Three Strikes List,” U.S. District Court
for the Eastern District of Texas for the Tyler Division, 211 West Ferguson, Tyler, Texas
75702, so that this case may be recorded in the “Three-Strikes List.”
It is so ORDERED.
SIGNED this 26th day of July, 2011.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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