Malone v. Zambrano

UNITED STATES DISTRICT COURT March 24, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

CORPUS CHRISTI DIVISION

AARON MALONE, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 2:19-CV-269

§

KRISTINE ZAMBRANO, et al, §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

TO DISMISS CERTAIN CLAIMS AND TO RETAIN CASE

Plaintiff Aaron Malone is a Texas inmate appearing pro se and in forma pauperis.

He filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s case is

subject to screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. §

1997e(c); 28 U.S.C. §§1915(e)(2), 1915A.

For purposes of screening, Plaintiff has stated: (1) claims for the denial of access

to the courts, arising from certain conduct occurring in July and August 2018, against

Sergeant Kristine Zambrano, Mailroom Supervisor (MS) Selles, and Officer

Thompson in their individual capacities; and (2) retaliation claims against Sgt.

Zambrano, Major Gould, MS Selles, Unit Grievance Investigator (UGI) Christina

Rodriguez, Officer Laundry, and Officer Thompson in their individual capacities.

Accordingly, it is respectfully recommended that these claims be RETAINED. The

undersigned will order service on these defendants.

For the reasons set forth below, the undersigned further recommends that: (1)

Officer Martin, Officer Cordova, or Officer Espinoza be DISMISSED from this

action; (2) Plaintiff’s claims for money damages against all individuals Defendants in

their official capacities be DISMISSED as barred by the Eleventh Amendment; (3)

Plaintiff’s claims against the Texas Department of Criminal Justice (TDCJ) be

DISMISSED as barred by the Eleventh Amendment; (4) Plaintiff’s claims for

declaratory and injunctive relief against Defendants be DISMISSED as rendered moot;

and (5) Plaintiff’s claims against the remaining defendants be DISMISSED with

prejudice for failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A(b)(1).

I. JURISDICTION

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This

case has been referred to the undersigned magistrate judge for case management and

making recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

II. PROCEDURAL BACKGROUND AND PLAINTIFF’S ALLEGATIONS

Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal

Institutions Division (TDCJ-CID).1 Plaintiff’s claims and allegations in this action arise

in connection with his previous assignment to the McConnell Unit in Beeville, Texas.

1 On December 20, 2019, Plaintiff notified the Court that he resides at the Bee County Jail in Beeville, Texas. (D.E.

18). However, a review of the TDCJ website reflects that he may be currently incarcerated at the Michael Unit in

Tennessee Colony, Texas. Plaintiff is reminded that he must notify the Court of any change of address during the

pendency of this case. (D.E. 7, ¶ 10). “Failure to file such notice may result in this case being dismissed for want of

prosecution.” (D.E. 7, ¶ 10). Accordingly, Plaintiff is DIRECTED to file a notice with the court within fourteen

(14) days stating his current address.

In addition to suing the TDCJ, Plaintiff names the following McConnell Unit

officials in his complaint: (1) Sgt. Zambrano; (2) Assistant Warden Kenneth Putnam; (3)

Major Gould; (4) MS Selles; (5) UGI Rodriguez; (6) Officer Laundry; (7) Officer Martin;

(8) Officer Cordova; (9) Officer Espinoza; and (10) Officer Thompson. Plaintiff sues

each individual official in his or her individual and official capacity. Plaintiff seeks

declaratory, injunctive, and monetary relief.

Plaintiff’s Original Complaint is over sixty pages in length. He has also attached

numerous exhibits to his Original Complaint. Plaintiff’s rambling, narrative style in

presenting his allegations has made it difficult for the Court to evaluate and screen his

claims. On October 29, 2019, Plaintiff appeared before the undersigned at a brief Spears2

hearing, where he explained in general the claims he seeks to raise in this case.

Nevertheless, on October 30, 2019, the undersigned ordered Plaintiff to file a More

Definite Statement to assist the Court in evaluating the numerous claims he seeks to raise

in this action. (D.E. 13). As part of the October 30 Order, the undersigned directed

Plaintiff to answer certain questions with respect to each of the eleven named defendants.

(D.E. 13, p. 2). Plaintiff was cautioned that the Court will not consider any claim against

any defendant who is not listed in Plaintiff’s More Definite Statement. (D.E. 13, p. 3).

Plaintiff subsequently filed his More Definite Statement where he named and

answered all of the Court’s questions as to the following eight defendants: (1) the TDCJ;

(2) Sgt. Zambrano; (3) Assistant Warden Putnam; (4) Major Gould; (5) MS Selles; (6)

Christina Rodriguez; (7) Officer Laundry; and (8) Officer Thompson. (D.E. 16). In his

2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

Amended Complaint, Plaintiff neither listed nor answered as directed the questions set

forth by the undersigned with respect to Officer Martin, Officer Cordova, or Officer

Espinoza.3 Accordingly, the undersigned recommends that Plaintiff’s claims against

these three defendants be dismissed.

The following representations were made either at the Spears hearing or in

Plaintiff’s Original Complaint and More Definite Statement (D.E. 1, 16): Sometime prior

to November 5, 2014, Plaintiff suffered injuries to his neck, back, and tailbone in

connection with a bus accident. On November 5, 2014, at 3:15 a.m., Plaintiff suffered a

blackout spell. Thirty minutes later and while on crutches, Plaintiff saw Sgt. Zambrano

in front of the dining facility hall. Plaintiff explained his health issues to Sgt. Zambrano,

which had been reoccurring for a month due to his prior head injury.

Plaintiff alleges Sgt. Zambrano complained to Plaintiff about having her time

wasted by having Plaintiff visit the medical department. She reportedly told Plaintiff that

she would have his blood drawn with a very large instrument. Plaintiff believes Sgt.

Zambrano’s actions were calculated to harass Plaintiff and interfere with his right to

receive medical treatment. Plaintiff then left the infirmary, feeling forced to do so by Sgt.

Zambrano’s actions.

After Plaintiff refused the blood draw, Sgt. Zambrano allegedly ordered officers to

search Plaintiff’s cell and confiscate his medical and legal property. Plaintiff’s medical

property included Plaintiff’s medically-prescribed back brace and prescribed pain

medications. Plaintiff’s legal materials included transcripts from his criminal trial, legal

3 A review of the More Definite Statement reveals that Plaintiff provided only conclusory allegations regarding the

actions of Defendants Cordova, Martin, and Espinoza. (D.E. 16, p. 3).

books, legal notes, research materials, case citations, court opinions, and other court

documents from his criminal trial.

Sgt. Zambrano took possession of Plaintiff’s confiscated property. Plaintiff

demanded that his medical and legal property be returned. He explained to Sgt.

Zambrano that: (1) the back brace was needed to stabilize his injured back and prevent

pain; and (2) the medications were prescribed to provide relief for his back, neck, severe

headaches, and spasms. Plaintiff further told Sgt. Zambrano that his legal materials were

necessary to allow him to challenge his state conviction. Plaintiff alleges Sgt. Zambrano,

however, refused to return the property to Plaintiff or provide Plaintiff with “confiscation

papers” to allow Plaintiff an opportunity to recover his property. Plaintiff further alleges

Sgt. Zambrano subsequently distributed Plaintiff’s property to her inmate workers and

subordinate officers.

On November 5, 2014, the medical provider scheduled Plaintiff for a doctor’s

appointment to address his neck injury, headaches, and blackouts. According to Plaintiff,

Sgt. Zambrano ordered Plaintiff not to attend the appointment. Plaintiff explained to Sgt.

Zambrano that the doctor was going to recommend Plaintiff to visit the local hospital for

emergency treatment. Plaintiff alleges Sgt. Zambrano insisted that she better not find out

that Plaintiff had gone to the scheduled appointment. Out of fear for his safety, Plaintiff

did not attend his appointment.

The doctor documented Plaintiff as a “no show,” and Plaintiff did not see a doctor

until six months later. During this time, Plaintiff’s injuries worsened, and he suffered

pain. On April 20, 2015, Plaintiff’s back collapsed since he was not wearing his back

brace. Plaintiff fell to the ground and suffered severe pain from the fall. Plaintiff

believes his overall healing has slowed due to Sgt. Zambrano’s alleged actions.

Assistant Warden Putnam investigated Plaintiff’s Step 1 grievance complaint that

Sgt. Zambrano had stolen his medical property and legal materials. Plaintiff’s Step 1

grievance is dated November 15, 2014. (D.E. 1-4, pp. 7-8). Assistant Warden Putnam

concluded in his response dated January 12, 2015, that no evidence had been presented to

show that any items were taken from Plaintiff’s cell. (D.E. 1-4, p. 8). Plaintiff’s Step 2

grievance on this issue was also denied. (D.E. 1-4, pp. 9-10).

Sometime in 2015, Plaintiff sued Sgt. Zambrano in state court, claiming in part

that her actions in confiscating his legal and medical materials had impaired his ability to

pursue certain claims challenging his state conviction. Sgt. Zambrano and other named

Defendants then are alleged to have engaged in a series of acts in retaliation for Plaintiff

filing and refusing to dismiss the state court lawsuit against Sgt. Zambrano. These

retaliatory acts are described by Plaintiff as follows:

(1) On February 18, 2016, Sgt. Zambrano directed Officer Laundry to

threaten Plaintiff with harm and ongoing problems if Plaintiff did not

drop his lawsuit. She further directed Officer Laundry to bring a false

disciplinary case against Plaintiff on February 24, 2016, where Officer

Laundry provided false testimony. Plaintiff was ultimately found not

guilty, and the disciplinary case was dismissed.

(2) On May 3, 2016, Sgt. Zambrano directed Officer Laundry to bring

another false disciplinary case against Plaintiff because Plaintiff had

refused to dismiss his state court case against Sgt. Zambrano.

(3) On December 7, 2017, Sgt. Zambrano contributed to Major Gould’s

decision to authorize officers to bring false disciplinary cases against

Plaintiff and to grade them as major infractions when they were in fact

minor infractions. Major Gould provided this authorization because

Plaintiff had filed a state court action against TDCJ officials.

(4) On February 14, 2018, Sgt. Zambrano directed Officer Thompson to

bring three false disciplinary cases against Plaintiff in order to steal

funds from Plaintiff’s income trust account. Two of the three cases

were overturned. The third case failed to provide Plaintiff with any

notice of wrongdoing.

(5) On February 20, 2018, Officer Thompson stole Plaintiff’s grievance file

and refused to refund Plaintiff’s income trust account which were

charged in connection with grievances filed by Plaintiff.

(6) Major Gould authorized Officer Lopez to bring a false disciplinary case

based on Plaintiff’s failure to go to a medical appointment on February

28, 2018. Plaintiff, however, never had a medical appointment

scheduled. Major Gould graded Plaintiff’s offense as a major

infraction.

(7) On July 2, 2018, Sgt. Zambrano directed Officer Thompson to

confiscate Plaintiff’s privileged correspondence material and evidence

that she knew was being used by Plaintiff as summary judgment

evidence against Sgt. Zambrano in the state court case.

(8) On July 2, 2018, MS Selles notified Officer Thompson that she had

received Plaintiff’s legal mail from the Attorney General’s office related

to his state court case. Officer Thompson then stopped MS Selles and

stole all of the legal mail and other legal materials Plaintiff was using

against Sgt. Zambrano at trial. Plaintiff never received this legal

material back from Officer Thompson.

(9) On July 10, 2018, Sgt. Zambrano directed MS Selles to steal Plaintiff’s

first set of summary judgment evidence against Sgt. Zambrano from the

prison mailbox to cause Plaintiff to miss his deadline date in state court.

(10) Sgt. Zambrano directed MS Selles to prevent Plaintiff’s second set

of summary judgment evidence from being mailed to the trial court on

three different occasions, August 21, 2018, August 23, 2018, and

August 27, 2018.

(11) On August 27, 2018, Plaintiff filed a grievance against MS Selles

complaining about her actions in stealing the first set of summary

judgment evidence and preventing the second set of summary judgment

evidence from being mailed to the trial court. Sgt. Zambrano directed

UGI Rodriguez to interfere with Plaintiff’s grievance. UGI Rodriguez

then held the grievance for 90 days and caused it to be dismissed as time

barred. MS Selles also participated in preventing Plaintiff from filing

this grievance against her.

(12) Because Plaintiff would not voluntarily dismiss his state court

action, Sgt. Zambrano and other Defendants fulfilled their promise to

have Plaintiff transferred to another prison on November 8, 2018.

Plaintiff’s claims against Sgt. Zambrano in the state court action were ultimately

dismissed because Plaintiff missed a court deadline to present his summary judgment

evidence. Plaintiff was transferred to the Michael Unit after the dismissal of his state

court action.

III. LEGAL STANDARD

When a prisoner seeks to proceed in forma pauperis the Court shall evaluate the

complaint and dismiss it without service of process if the Court finds the complaint

frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.

See 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis

complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state

a claim upon which relief may be granted, or seeks monetary relief from an immune

defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v.

Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an

indisputably meritless legal theory, “such as if the complaint alleges the violation of a

legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.

1998). A claim has no arguable basis in fact if “after providing the plaintiff the

opportunity to present additional facts when necessary, the facts alleged are clearly

baseless.” Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).

“In analyzing the complaint, [the Court] will accept all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d

322, 324 (5th Cir. 1999). “The issue is not whether the plaintiff will ultimately prevail,

but whether he is entitled to offer evidence to support his claim. Thus, the Court should

not dismiss the claim unless the plaintiff would not be entitled to relief under any set of

facts or any possible theory that he could prove consistent with the allegations in the

complaint.” Id. (citations omitted). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Plaintiff must allege sufficient facts in support of its legal

conclusions that give rise to a reasonable inference that Defendant is liable. Id.; Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). The factual allegations must raise

Plaintiff’s claim for relief above the level of mere speculation. Twombly, 550 U.S. at

555. As long as the complaint, taken as a whole, gives rise to a plausible inference of

actionable conduct, Plaintiff’s claim should not be dismissed. Id.

Section 1983 provides a vehicle for redressing the violation of federal law by

those acting under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To

prevail on a § 1983 claim, the plaintiff must prove that a person acting under the color of

state law deprived him of a right secured by the Constitution or laws of the United States.

42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A defendant acts under color

of state law if he misuses or abuses official power and if there is a nexus between the

victim, the improper conduct, and the defendant’s performance of official duties.

Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).

IV. DISCUSSION

A. Eleventh amendment immunity and Official Capacity

A suit against a state officer in his or her official capacity is effectively a suit

against that state official’s office. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989). The Eleventh Amendment, however, bars claims for money damages against a

state or state agency. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996);

Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). As

such, an action for monetary damages against a state official in his or her official capacity

is one against the state itself, and is barred by the Eleventh Amendment. See Kentucky v.

Graham, 473 U.S. 159, 166 (1985). The Fifth Circuit has extended the Eleventh

Amendment immunity specifically to TDCJ officers and officials acting in their official

capacities. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (Eleventh Amendment

bars prisoner’s suit for money damages against prison officials in their official

capacities).

To the extent that Plaintiff sues the individual Defendants in their official

capacities for money damages, those claims are barred by the Eleventh Amendment.

Thus, it is respectfully recommended that Plaintiff’s claims for money damages against

the individual Defendants in their official capacities be dismissed as barred by the

Eleventh Amendment.

Plaintiff seeks to sue the TDCJ. However, “[t]he Eleventh Amendment bars suit

against state entities such as TDCJ … regardless of whether money damages or

injunctive relief is sought under § 1983.” See Flaming v. University of Texas Medical

Branch, No. H-15-2222, 2016 WL 727941, *5 (S.D. Tex. Feb. 24, 2016) (citing Aguilar

v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1988) and Clay v.

Texas Women's University, 728 F.2d 714, 715-16 (5th Cir. 1984)). Accordingly, it is

respectfully recommended that Plaintiff’s § 1983 claims against the TDCJ be dismissed

as barred by the Eleventh Amendment.

B. Claims for Declaratory and Injunctive Relief

Plaintiff seeks declaratory and injunctive relief against Defendants based on the

conditions of confinement at the McConnell Unit. Claims for declaratory and injunctive

relief based on the conditions of confinement, however, are rendered moot upon

prisoner’s release from custody or transfer to another facility. Smith v. City of Tupelo,

Mississippi, 281 F. App’x 279, 282 (5th Cir. 2008) (citing Herman v. Holiday, 238 F.3d

660, 665 (5th Cir. 2001)). See also Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir.

2000) (requests for injunctive and declaratory relief become moot when inmate is

transferred to another facility). Furthermore, the possibility of Plaintiff’s return to the

McConnell Unit is much too speculative to warrant relief. Smith, 281 F. App’x at 282.

Because Plaintiff is no longer incarcerated at the McConnell Unit, it is respectfully

recommended that his claims for declaratory and injunctive relief against Defendants be

dismissed.

C. Deliberate Indifference

Plaintiff claims that Sgt. Zambrano acted with deliberate indifference to Plaintiff’s

serious medical needs through her actions taken on November 5, 2014. Plaintiff alleges

that Sgt. Zambrano interfered with his right to have medical treatment for his serious

medical conditions involving his neck, back, and constant pain. He alleges that she

attempted to force Plaintiff to undergo a procedure involving a very large instrument,

ordered officials to take his back brace and other prescribed medications, and ordered

Plaintiff not to attend an important medical appointment. As a result of Sgt. Zambrano’s

conduct, Plaintiff’s injuries worsened with his back collapsing on April 20, 2015 due to

not having a back brace.

Before considering the merits of Plaintiff’s claim, it is necessary to determine

whether Plaintiff brought his deliberate indifference claim in a timely manner. Federal

civil rights actions instituted in Texas, such as those brought pursuant to § 1983, are

deemed analogous to personal injury claims, and, therefore, the applicable limitations

period is the two years fixed by Tex. Civ. Prac. & Rem. Code § 16.003(a). Piotrowski v.

City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). Accrual of a § 1983 claim is

governed by federal law. Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002). A cause of

action accrues when the plaintiff knows or has reason to know of the injury which is the

basis of the action. Gonzales v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998). Dismissal is

appropriate if it is clear from the face of the complaint that the claims asserted are barred

by the applicable statute of limitations. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.

1999). “A § 1983 claim to redress a medical injury arising from deliberate indifference

to a prisoner’s serious medical needs accrues when the plaintiff knows of his physical

injury and its cause.” Denby v. Norwood, No. 7:13-CV-140, 2016 WL 2937470, at *3

(N.D. Tex. Apr. 26, 2016).

Plaintiff filed this civil rights action on September 9, 2019, nearly five years after

the events forming the basis of Plaintiff’s deliberate indifference claims occurred with

respect to Sgt. Zambrano’s actions on November 5, 2014. Plaintiff’s allegations, taken as

true, reflect that he discovered the full extent of his injuries resulting from Sgt.

Zambrano’s actions on April 20, 2015, when his back collapsed. Even assuming that

Plaintiff’s deliberate indifference claims against Sgt. Zambrano accrued as late as March

20, 2015, they are time barred pursuant to the running of the applicable two-year statute

of limitations. Accordingly, the undersigned respectfully recommends that Plaintiff’s

deliberate indifference claims against Sgt. Zambrano be dismissed with prejudice as time

barred.

D. Due Process

(1) Confiscation of Property on November 5, 2014

Plaintiff claims that Sgt. Zambrano violated his due process rights by confiscating

his medical property and legal materials on November 5, 2014, and not providing him

with an opportunity to submit papers to seek return of the property. With respect to the

confiscation of Plaintiff’s property on that date, Plaintiff claims that Assistant Warden

Putnam violated his due process rights through his improper investigation of Plaintiff’s

Step 1 grievance and decision not to grant Plaintiff any relief.

State law claims analogous to Plaintiff’s due process claims “are conversion of

personal property and taking or detaining the personal property of another, for which the

statute of limitations is the same two-year provision applicable to personal injury claims.”

Harris v. Doe, No. 4:18-cv-638, 2019 WL 5739062, at *4 (N.D. Tex. Nov. 5, 2019)

(citing Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a)). Plaintiff’s allegations, taken as

true, reflect that he had reason to know of his injuries associated with Sgt. Zambrano’s

conduct on November 5, 2014, the day she confiscated Plaintiff’s medical property and

legal materials. Plaintiff’s due process claim against Sgt. Zambrano, therefore, accrued

on that day. Plaintiff further had reason to know of his claim against Assistant Warden

Putnam as of January 12, 2015, the day this defendant denied his Step 1 grievance.

Plaintiff’s due process claims against Sgt. Zambrano and Assistant Warden

Putnam are barred by the running of the applicable statute of limitations because his

complaint was filed more than four years later on September 9, 2019. Accordingly, the

undersigned respectfully recommends that Plaintiff’s due process claims against Sgt.

Zambrano and Assistant Warden Putnam, arising from the taking of his property on

November 5, 2014, be dismissed with prejudice as time barred.

(2) Legal Materials Stolen in February and July, 2018

Liberally construed, Plaintiff appears to claim due process violations based on the

conduct of Defendants Zambrano, Thompson, and Selles in stealing Plaintiff’s grievance

file, his legal mail, and other legal materials Plaintiff sought to use against Sgt. Zambrano

at trial in the state court action.

The Fourteenth Amendment of the Constitution provides that no State shall

“deprive any person of life, liberty, or property without due process of law.” U.S. Const.

amend. XIV § 1. The Supreme Court has held that a random and unauthorized

intentional deprivation of property does not violate the Due Process Clause if the State

provides an adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517,

534-35 (1984); Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). A claimant must

either take advantage of the available remedies or show that the available remedies are

inadequate. Hudson, 468 U.S. at 534-35.

Texas law provides Plaintiff with possible post-deprivation remedies. Texas law

allows recovery of monetary damages for the loss of property that has been taken without

authorization. See Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994) (in Texas, the tort

of conversion fulfills this requirement); see also Beam v. Voss, 568 S.W.2d 413, 420-21

(Tex. Civ. App.– San Antonio 1978, no writ) (conversion is the unauthorized and

unlawful assumption and exercise of dominion and control over the personal property of

another, to the exclusion of, or inconsistent with the owner’s rights). In addition, state

law specifically provides that inmates may recover up to $500.00 on a claim that the

TDCJ lost or damaged personal property. See Tex. Gov’t Code § 501.007.

A prisoner such as Plaintiff may bring suit in federal court for property loss only if

relief is denied in state court on grounds other than the merits of his claim. See

Thompson v. Steele, 709 F.2d 381, 383 n.3 (5th Cir. 1983). The burden is on the inmate

to show that the post-deprivation remedy is inadequate. Myers, 97 F.3d at 94. Plaintiff

failed to indicate in his pleadings or at the Spears hearing that he had filed a state court

lawsuit either to seek return of his materials taken in February and July, 2018 or money

damages for the taken property.

Because Texas law provides adequate post-deprivation remedies and Plaintiff has

failed to pursue them, the taking of Plaintiff’s materials does not state a violation of the

Due Process Clause. See Hudson, 468 U.S. at 536 (noting that, even when a prisoner’s

property was intentionally destroyed, such destruction did not violate the Fourteenth

Amendment because state law provided the prisoner with an adequate post-deprivation

remedy). Accordingly, the undersigned respectfully recommends that Plaintiff’s due

process claims against Defendants Zambrano, Selles, and Thomson, arising in connection

with the taking of his legal property in February and July 2018, be dismissed as frivolous

and/or for failure to state a claim for relief.

E. Access to Courts

Plaintiff claims that he has been denied access to the courts. Prisoners have a

constitutionally protected right of access to the courts. See Lewis v. Casey, 518 U.S. 343,

360 (1996) (citing Bounds v. Smith, 430 U.S. 817, 821 (1977)). The right does not

guarantee any “particular methodology but rather the conferral of a capability – the

capability of bringing contemplated challenges to sentences or conditions of confinement

before the courts.” Lewis, 518 U.S. at 356. See also Jones, 188 F.3d at 325 (the right

provides a reasonable opportunity to file nonfrivolous legal claims challenging

convictions or conditions of confinement).

Because the right of access is not a “freestanding right,” to state a cognizable First

Amendment claim, the plaintiff must demonstrate actual injury resulting from an alleged

denial of access to the courts. Lewis, 518 U.S. at 351; Chriceol v. Phillips, 169 F.3d 313,

317 (5th Cir. 1999). Without a showing of an actual injury, a plaintiff lacks standing to

pursue a claim of denial of access to the courts. Lewis, 518 U.S. at 349.

To meet the standing requirement, a plaintiff “must allege personal injury fairly

traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the

requested relief.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Allen v. Wright, 468

U.S. 737, 751 (1984)). Plaintiff “must establish that he has a personal stake in the alleged

dispute and that the alleged injury suffered is particularized as to him.” Id. at 819. In

particular, to succeed on a claim of denial of access to courts, a plaintiff must show that

he lost an actionable claim or was prevented from presenting such a claim because of the

alleged denial. See Lewis, 518 U.S. at 356. He must show “that his position as a litigant

was prejudiced” as a direct result of the denial of access. Eason v. Thaler, 73 F.3d 1322,

1328 (5th Cir. 1996).

(1) Confiscation of Legal Materials on November 5, 2014

Plaintiff claims that Sgt. Zambrano’s confiscation of his legal property on

November 5, 2014 prevented him from challenging his state conviction and sentence.

Because his legal materials were taken, Plaintiff asserts that he was prevented from: (1)

challenging the charging instrument in his state criminal action as insufficient to satisfy

Texas Constitutional law; (2) presenting important information in support of a state

mandamus petition; (3) presenting non-frivolous issues in a state habeas petition; and (4)

filing a federal habeas petition in a timely manner.

Plaintiff’s allegations, taken as true, reflect that he had reason to know of his

injuries associated with Sgt. Zambrano’s conduct on November 5, 2014, the day she

confiscated legal materials. Plaintiff’s denial-of-access-to-courts claim against Sgt.

Zambrano, therefore, is barred by the running of the applicable statute of limitations

because his complaint was filed nearly five years later on September 9, 2019.

Accordingly, the undersigned respectfully recommends that Plaintiff’s claim for the

denial of access to courts, arising from the taking of his legal materials on November 5,

2014, be dismissed with prejudice as time barred.

(2) Taking of Evidence In July and August, 2018

Plaintiff claims that, in July and August 2018, Defendants Zambrano, Selles, and

Thompson denied him access to courts when they participated in: (1) confiscating the

legal materials Plaintiff sought to use against Sgt. Zambrano in the state court action; (2)

stealing Plaintiff’s first set of summary judgment evidence that he sought to file in the

state court action against Sgt. Zambrano; and (3) preventing Plaintiff from filing his

second set of summary judgment evidence against Sgt. Zambrano in the state court

action. According to Plaintiff, his claims against Sgt. Zambrano in the state court action

were ultimately dismissed because the actions of Defendants Zambrano, Selles, and

Thompson caused Plaintiff to miss a court deadline to present his summary judgment

evidence.

In his state court action, Plaintiff asserted claims arising in connection with his

confinement at the McConnell Unit. Plaintiff’s allegations, taken as true, suggest that the

actions of Defendants Zambrano, Selles, and Thompson caused Plaintiff to lose

actionable claims in the state court action and that Plaintiff suffered prejudice as a result.

See Lewis, 518 U.S. at 356. Accordingly, the undersigned recommends that the Court

retain Plaintiff’s claims for denial of access to the courts, arising from conduct occurring

in July and August 2018, against Defendants Zambrano, Selles, and Thompson.

F. Retaliation

Plaintiff claims that several defendants retaliated against him after he had filed a

state court action against Sgt. Zambrano. Retaliation is not expressly referred to in the

Constitution; however, it is nonetheless actionable because retaliatory actions may tend to

chill an individual’s exercise of constitutional rights. See Perry v. Sindermann, 408 U.S.

593, 597 (1972). Retaliation is actionable “only if the retaliatory act ‘is capable of

deterring a person of ordinary firmness from further exercising his constitutional rights.’”

Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008) (quoting Morris v. Powell, 449 F.3d

682, 684 (5th Cir. 2006)).

The purpose of allowing retaliation claims under § 1983 is to ensure that prisoners

are not unduly discouraged from exercising their constitutional rights. Morris, 449 F.3d

at 686. Thus, “[a] prison official may not retaliate against or harass an inmate for

exercising the right of access to the courts, or for complaining to a supervisor about a

guard’s misconduct.” Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). “Filing

grievances and otherwise complaining about the conduct of correctional officers through

proper channels are constitutionally protected activities, and prison officials may not

retaliate against inmates for engaging in such protected inmates.” Reese v. Skinner, 322

F. App’x 381, 383 (5th Cir. 2009) (citing Morris, 449 F.3d at 684).

The Fifth Circuit has emphasized that “prisoners’ claims of retaliation are

regarded with skepticism and are carefully scrutinized by the courts.” Adeleke v.

Fleckenstein, 385 F. App’x 386, 387 (5th Cir. 2010) (citing Woods, 60 F.3d at 1166). In

addition, the Fifth Circuit has concluded that some acts, even though they may be

motivated by retaliatory intent, are so de minimis that they would not deter the ordinary

person from further exercise of his rights. Morris, 449 F.3d at 686. Such acts do not rise

to the level of constitutional violations and cannot form the basis of a § 1983 claim. Id.

To state a valid § 1983 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.” Jones, 188

F.3d at 324-25 (citing McDonald v. Stewart, 132 F.3d 225, 231 (5th Cir. 1998)). An

inmate must allege more than his personal belief that he is the victim of retaliation.

Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (citation omitted). “Mere

conclusory allegations of retaliation will not be enough to withstand a proper motion for

dismissal of the claim.” Jones, 188 F.3d at 325. The inmate must produce direct

evidence of motivation or a chronology of events from which retaliation may be inferred.

Id. In other words, a successful claim of retaliation requires a showing that, but for some

retaliatory motive, the complained of adverse incident would not have occurred. Woods,

60 F.3d at 1166.

Plaintiff alleges that Defendants Zambrano, Gould, Selles, Rodriguez, Laundry

and Thompson engaged in a series of retaliatory acts against Plaintiff after Plaintiff had

filed a state court action against Sgt. Zambrano. Plaintiff’s allegations indicate that,

following the filing of his state court action, he was subjected to many adverse actions

including the following: (1) authorization from Major Gould, through Sgt. Zambrano’s

bidding, that false disciplinary cases be brought against Plaintiff for minor infractions

which were then deemed major infractions; (2) the filing of several false disciplinary

cases against Plaintiff; (3) the stealing of Plaintiff’s grievance file and refusal to refund

the income trust account which were charged in connection with his grievances; (4) the

stealing of Plaintiff’s various legal materials which prevented him from properly

litigating his state court action against Sgt. Zambrano; (5) interference with Plaintiff’s

ability to file certain grievances; and (6) threats of transferring Plaintiff to another unit,

which was ultimately carried out after the state court action was dismissed. According to

Plaintiff, these actions were taken against Plaintiff to force him to dismiss his state court

action against Sgt. Zambrano.

Taken as true, Plaintiff’s allegations state retaliation claims as they suggest a

pattern of retaliatory conduct undertaken by Defendants Zambrano, Gould, Selles,

Rodriguez, Laundry, and Thompson. While many of the acts of retaliation by themselves

do not constitute constitutional violations, they do demonstrate a chronology of events

from which retaliation may plausibly be inferred. Because Plaintiff’s allegations are

sufficient at this stage to state retaliation claims, the undersigned recommends that they

be retained against Defendants Zambrano, Gould, Selles, Rodriguez, Laundry and

Thompson.

G. Grievance Process

Plaintiff claims that Defendants Zambrano, Rodriguez, and Selles interfered with

Plaintiff’s ability to file a grievance complaining about MS Selles’s actions in stealing the

first set of summary judgment evidence and preventing the second set of summary

judgment evidence from being mailed to the trial court. According to Plaintiff, he filed

the grievance on August 27, 2018. Plaintiff asserts that Sgt. Zambrano directed UGI

Rodriguez to interfere with Plaintiff’s grievance, that UGI Rodriguez then held the

grievance for 90 days and caused it to be dismissed as time barred, and that MS Selles

also participated in preventing Plaintiff from filing this grievance against her.

Plaintiff’s allegations, at best, point to his dissatisfaction with the actions taken by

Sgt. Zambrano, UGI Rodriguez, and MS Selles in processing and/or rejecting Plaintiff’s

formal grievance. Such allegations, however, fail to state a cognizable constitutional

claim. See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 138

(1977) (Burger, C.J., concurring) (applauding institution of grievance procedures by

prisons but noting that such procedures are not constitutionally required); Geiger v.

Jowers, 404 F.3d 371, 374 (5th Cir. 2005) (prisoners do not have a federally protected

liberty interest in having grievances investigated, let alone resolved in their favor);

Mahogany v. Miller, 252 F. App’x 593, 595 (5th Cir. 2007) (holding that the plaintiff

had no actionable § 1983 claim based on prison officials’ failure to process his grievances

because he had no protected liberty interest in the processing of grievances).

Accordingly, the undersigned recommends that Plaintiff’s claims against Sgt.

Zambrano, UGI Rodriguez, and MS Selles regarding the grievance process be dismissed

for failure to state a claim and/or as frivolous.

RECOMMENDATION

For purposes of § 1915A, Plaintiff has stated sufficient facts that, if true, state (1)

claims for the denial of access to courts, arising from conduct occurring in July and

August 2018, against Sgt. Zambrano, MS Selles, and Officer Thompson in their

individual capacities; and (2) retaliation claims against Sgt. Zambrano, Major Gould,

MS Selles, UGI Rodriguez, Officer Laundry, and Officer Thompson in their

individual capacities. Accordingly, it is respectfully recommended that these claims be

RETAINED. The undersigned will order service as to these defendants by separate

order.

The undersigned further recommends that: (1) Plaintiff's claims against Officer

Martin, Officer Cordova, or Officer Espinoza be DISMISSED from this action; (2)

Plaintiff's claims for money damages against all individuals Defendants in their official

capacities be DISMISSED as barred by the Eleventh Amendment; (3) Plaintiffs claims

against the TDCJ be DISMISSED as barred by the Eleventh Amendment; (4) Plaintiffs

claims for declaratory and injunctive relief against all defendants be DISMISSED as

rendered moot; and (5) Plaintiffs claims against the remaining defendants be

DISMISSED for failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A(b)(1).

Respectfully submitted this 24th day of March 2020.

C Jason B. Libby Z

United States Magistrate Judge

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NOTICE TO PARTIES

The Clerk will file this Memorandum and Recommendation and transmit a copy to

each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy

of the Memorandum and Recommendation, a party may file with the Clerk and serve on

the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.

Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District

Court for the Southern District of Texas.

A party’s failure to file written objections to the proposed findings, conclusions,

and recommendation in a magistrate judge’s report and recommendation within

FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon

grounds of plain error, from attacking on appeal the unobjected-to proposed factual

findings and legal conclusions accepted by the District Court. Douglass v. United Servs.

Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).