Sanchez v. Moore

IN THE UNITED STATES DISTRICT COURT April 22, 2020

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

CORPUS CHRISTI DIVISION

DANIEL G. SANCHEZ, §

§

Plaintiff, §

VS. § CIVIL NO. 2:19-CV-69

§

CANDANCE R. MOORE, et al, §

§

Defendants. §

ORDER

The Court is in receipt of the Magistrate Judge’s Memorandum and

Recommendation (“M&R”), Dkt. No. 15, and Plaintiff’s Objections to the M&R, Dkt.

No. 17.

After independently reviewing the filings, the record, and applicable law, the

Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the M&R, Dkt.

No. 15. Accordingly, the Court DISMISSES Plaintiff’s complaint.

I. Background

The Court adopts Magistrate Judge Jason B. Libby’s description of the case:

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

Institutions Division (TDCJ-CID) and is currently confined at the

McConnell Unit in Beeville, Texas. In this civil rights action, Plaintiff

names the following McConnell Unit officials: (1) Law Librarian Candance

R. Moore; (2) Officer Megan R. Thompson; (3) Senior Warden Philip J.

Sifuentes; (4) Medical Director Dr. Isaac Kwarteng; and (5) Medical

Administrator Tanya Lawson. Plaintiff does not indicate whether he sues

each defendant in his or her individual capacity, official capacity, or both.

He claims that his constitutional rights were violated in connection with

Defendants’ failure to issue him a medical pass or otherwise allow him to

use the restroom during his set time in the McConnell Unit’s law library.

Plaintiff seeks injunctive relief.

A Spears1 hearing was conducted on March 18, 2019. The following

representations were made either at the Spears hearing or in Plaintiff’s

original complaint (D.E. 1):

Plaintiff suffers from a number of medical issues including kidney disease,

Type II diabetes, high blood pressure, an enlarged prostate, and an

enlarged liver. Plaintiff’s medical condition and medications increase the

frequency in which he must urinate. Plaintiff testifies he often has to use

the bathroom six times an hour. Plaintiff’s need to urinate interferes with

his ability to use the McConnell Unit law library.

Plaintiff reserves time in the law library daily for two-hour periods of

time. Plaintiff works on his own cases as well as cases for other inmates.

During his scheduled time in the law library, Plaintiff is allowed to use a

restroom located nearby but is not permitted to return to the law library

after using the bathroom. Plaintiff estimates that he is able to spend just

over one hour during his library sessions before he must use the

bathroom. One of the medical providers has offered Plaintiff adult diapers

for his urinary issues. Plaintiff declined that option and does not currently

use them.

With regard to his cases, Plaintiff testified that he has not missed any

deadlines or otherwise been prejudiced as a result of not being allowed to

return to the law library and complete his scheduled two hours. However,

Plaintiff maintains he should be able to use the bathroom and return to

the law library.

Plaintiff is unsure whether the restroom policy for the law library is a

formal TDCJ policy. He believes Law Librarian Moore may have created

the policy for the McConnell Unit’s law library. She enforces the policy

with all inmates, including the direction for her to accompany Plaintiff to

the restroom located near the law library. While a restroom is located

inside the law library, inmates are not allowed to use it.

Plaintiff once received a medical pass to use the bathroom during his time

at the Robertson Unit in Abilene, Texas, but it was revoked after a brief

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir.

1996) (stating that testimony given at a Spears hearing is incorporated into the pleadings).

amount of time. Dr. Kwarteng and Medical Administrator Lawson

informed Plaintiff that no policy exists at the McConnell Unit regarding

the issuance of medical passes for any medical condition, including

frequent urination. Medical Administrator Lawson informed Plaintiff that

his bathroom issue is a security matter and not a medical matter. Plaintiff

nevertheless sues Dr. Kwarteng and Medical Administrator Lawson for

failing to provide him with a medical pass.

Plaintiff has communicated to Warden Sifuentes verbally and through

letters about Plaintiff’s issues regarding the law library. Warden

Sifuentes has taken no action to help Plaintiff. All of Plaintiff’s informal

and formal grievances requesting a special bathroom pass have been

denied.

On April 8, 2019, Plaintiff filed a letter which is construed as a motion to

supplement or amend his complaint. (D.E. 12). Contrary to his assertion

in the letter, Plaintiff alleges for the first time claims of harassment and

retaliation against Defendants Moore and Thompson. In a separate order,

the undersigned has granted Plaintiff’s motion to supplement or amend.

(D.E. 14).

Plaintiff has attached to his letter a Step 1 grievance, dated December 20,

2018, in which he claimed that Officer Thompson retaliated against

Plaintiff by denying him a restroom break while he was in the law library

and forcing him to return to his housing building. (D.E. 12, pp. 3–4). The

reviewing officer denied this grievance, stating that there was no evidence

presented to substantiate Plaintiff’s claims. (D.E. 12, p. 4). In his Step 2

grievance, dated February 6, 2019, Plaintiff reiterated his complaints that

he is being denied a restroom break in the bathroom located close to the

law library. (D.E. 12, pp. 5–6). The reviewing officer denied this grievance,

finding that the available evidence supports the conclusions in the Step 1

grievance. (D.E. 12, p. 6).

Plaintiff further alleges that, on April 2, 2019, Defendants Moore and

Thompson harassed and retaliated against Plaintiff by forcing him to

work at a table with three other inmates and no typewriter. (D.E. 12, p.1).

Plaintiff alleges the work space was not large enough to accommodate the

inmates. (D.E. 12, p. 2).

Dkt. No. 15 at 2–5.

II. Legal Standard

The Court adopts Magistrate Judge Libby’s description of the 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, 961 (5th Cir. 2002).

Dkt. No. 15 at 5–7.

III. Legal Discussion

In the M&R, the Magistrate Judge evaluated Plaintiff’s claims and concluded

that they should be dismissed for failure to state a claim. After independently

reviewing the filings, the record, and applicable law, the Court agrees with the

Magistrate Judge’s recommendation of dismissing Plaintiff’s claims but declines to

adopt the reasoning that Plaintiff being offered the option of wearing adult diapers

adequately alleviated his issues associated with loss of bladder control.

a. Supervisory Defendant

As Magistrate Judge Libby describes:

It is well-established that a prison supervisor cannot be held liable for the

misconduct of his or her subordinates. See Thompkins v. Belt, 828 F.2d

298, 303 (5th Cir. 1987). “Personal involvement is an essential element of

a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th

Cir. 1983). There is no vicarious or respondeat superior liability of

supervisors under section 1983. Thompkins, 828 F.2d at 303–03; see also

Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011) (holding the

acts of subordinates do not trigger individual § 1983 liability for

supervisory officials).

“Supervisory officials may be held liable only if: (1) they affirmatively

participate in acts that cause constitutional deprivation; or (2) implement

unconstitutional policies that causally result in plaintiff’s injuries.”

Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992). “Mere

knowledge and acquiescence on a supervisor’s part is insufficient to create

supervisory liability under § 1983.” Doe v. Bailey, No. H-14-2985, 2015 WL

5737666, at *9 (S.D. Tex. Sept. 30, 2015) (citing Iqbal, 556 U.S. at 677).

Taken as true, Plaintiff’s allegations against Warden Sifuentes suggest

that he only had knowledge of Plaintiff’s issues concerning his use of the

restroom during his law library time and the failure to provide him with a

medical pass. Plaintiff, however, alleges no specific facts to indicate that

Warden Sifuentes, in his role as a supervisory official, personally

participated in any actions to deprive Plaintiff of his constitutional rights

or implemented any unconstitutional policies which resulted in injury to

Plaintiff.

Dkt. No. 15 at 7–8. Accordingly, the Court adopts the recommendation that

Plaintiff’s claims against Sifuentes in his supervisory capacity be dismissed for

failure to state a claim.

b. Due Process

As Magistrate Judge Libby describes:

Liberally construed, Plaintiff claims that Defendants Kwarteng and

Lawson violated his due process rights by failing to issue him a medical

pass for frequent urination. Procedural due process applies only with

respect to the deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty and property. Board of Regents v. Roth,

408 U.S. 564, 569 (1972). “[I]n determining whether state action has

violated an individual’s right to procedural due process, the district court

must first address whether or not the state action ahs deprived the person

of a protected life, liberty, or property interest.” Whitlock v. Stephens, No.

5:14-cv-94, 2016 WL 7168029, at *4 (E.D. Tex. Oct. 5, 2016) (citing

Augustine v. Doe, 740 F.2d 322, 327 (5th Cir. 1984)).

In Whitlock, inmate Tarrance Whitlock similarly complained that prison

officials at the Telford Unit violated his due process rights by failing to

follow prison policy and issue a medical pass for his frequent urination.

Whitlock, 2016 WL 7168029, at *4. Like Plaintiff, Whitlock was not

allowed to return to his prison’s law library to finish his two-hour session

upon using a nearby restroom. Id. at *1. Whitlock was prescribed a high

blood pressure medication which caused frequent urination. Id. Despite

his need for frequent urination, Whitlock was told that the Telford Unit

did not issue medical passes under those circumstances. Id. at 1–2.

In evaluating Whitlock’s claims, the court cited another case from the

Eastern District of Texas, where evidence was presented showing that

medical passes would only be issued if an inmate suffered from urinary

problems. Id. (citing Lowe v. Green, No. 6:07-CV-5, 2007 WL 1217875, at

*2 (E.D. Tex. Apr. 24, 2007)). Even assuming a prisoner policy existed at

the Telford Unit where medical passes would be issued for urinary

disorders, the Whitlock court explained that such a policy would not

require the issuance of a medical pass where an inmate complained only

about his medication causing more frequent urination. Id. at *4–*5.

Whitlock, therefore, failed to show that the refusal to issue him a pass

amounted to a violation of prison rules, much less the due process clause.

Id.

Plaintiff alleges in this case that: (1) he suffers from a number of medical

issues, including kidney disease, Type II diabetes, high blood pressure, an

enlarged prostate, and an enlarged liver; (2) his kidneys are deteriorating

to the point where he eventually will end up on dialysis; and (3) Plaintiff

takes diuretics which is a medication that increases his need to urinate.

Plaintiff, however, alleges no facts to indicate that the McConnell Unit

has a policy regarding medical passes for frequent urination and what

medical conditions would entitle a prisoner to such a medical pass.

It is well settled in the Fifth Circuit that allegations of a prison official’s

failing to follow prison policy, without more, does not state a

constitutional cause of action by itself. Hernandez v. Estelle, 788 F.2d

1154, 1158 (5th Cir. 1986). Plaintiff’s allegations, taken as true, fail to

indicate that a policy existed at the McConnell Unit regarding medical

passes for any medical issue, including frequent urination. Even if a policy

existed and Plaintiff was eligible to obtain a medical pass due to his

medical condition, he has no liberty or property interest in receiving a

medical pass. See Whitlock, 2016 WL 7168029, at *4 (explaining that

prisoners have no liberty or property interest in having a medical pass).

Dkt. No. 15 at 8–10. Accordingly, the Court adopts the recommendation that

Plaintiff’s due process claim against Kwarteng and Lawson be dismissed for failure

to state a claim.

c. Access to Courts

As Magistrate Judge Libby describes:

Plaintiff further claims that Defendant Moore has effectively denied him

access to the courts by enforcing a policy where he would not be allowed

back in the law library after going to the nearby restroom. 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

(holding 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).

Plaintiff alleges that: (1) he reserves time in the law library daily for two-

hour periods of time; (2) during his time in the law library, he works on

his cases as well as cases for other inmates; (3) he is able to spend just

over an hour during his library sessions before he must use the restroom;

(4) Law Librarian Moore may have created the policy or practice of not

allowing inmates to return to the law library after going to the nearby

restroom; (5) Officer Thompson follows the policy set by Law Librarian

Moore and is directed by her to accompany Plaintiff to the nearby

restroom; and (6) he has not missed any deadlines or otherwise been

prejudiced as a result of not being allowed to return to the law library

after going to the restroom. Taken as true, Plaintiff’s allegations fail to

state a plausible First Amendment claim for denial of access to courts

because his allegations fail to suggest he has been denied the ability to

present a case or otherwise has lost an actionable claim.

Dkt. No. 15 at 10–11. Accordingly, the Court adopts the recommendation that

Plaintiff’s First Amendment claim against Moore and Thompson be dismissed for

failure to state a claim.

d. Deliberate Indifference

i. Defendant Moore’s Restroom Policy

As Magistrate Judge Libby describes:

Liberally construed, Plaintiff claims that Law Librarian Moore’s policy

and enforcement of same as to Plaintiff regarding restroom usage

constituted deliberate indifference to his health. The Eighth Amendment

prohibits cruel and unusual punishment. U.S. Const. amend. VIII. “The

Constitution does not mandate comfortable prisons . . . but neither does it

permit inhumane ones, and it is now settled that the treatment a prisoner

receives in prison and the conditions under which he is confined are

subject to scrutiny under the Eighth Amendment.” Harper v. Showers, 174

F.3d 716, 719 (5th Cir. 1999) (quoting Woods v. Edwards, 51 F.3d 577, 581

(5th Cir. 1995) (per curiam) (internal quotations omitted)).

An Eighth Amendment violation occurs when a prison official is

deliberately indifferent to an inmate’s health and safety. Farmer, 511 U.S.

at 834. The test for deliberate indifference has both an objective and

subjective prong. Under the objective prong, the inmate “must first prove

objective exposure to a substantial risk of serious harm.” Trevino v.

Livingston, No. 3:14-CV-52, 2017 WL 1013089, at *3 (S.D. Tex. Mar. 13,

2017) (citing Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006)). To

prove the subjective prong of the deliberate indifference test, the inmate

“must show both: (1) that the defendant was aware of facts from which the

inference of an excessive risk to the [inmate’s] health or safety could be

drawn; and (2) that the defendant actually drew the inference that such

potential for harm existed.” Trevino, 2017 WL 1013089, at *3 (citing

Farmer, 511 U.S. at 397, and Harris v. Hegmann, 198 F.3d 153, 159 (5th

Cir. 1999)).

The deliberate indifference standard “is an extremely high standard to

meet.” Domino v. Texas Dep’t of Criminal Justice, 230 F.3d 752, 756 (5th

Cir. 2001). Deliberate indifference is more than mere negligence. Farmer,

511 U.S. at 835. “Even proof of gross negligence does not establish

deliberate indifference.” Levine v. Taylor, No. 3:12-CV-186, 2017 WL

1215426, at *7 (S.D. Tex. Mar. 31, 2017) (citing Whitley v. Hanna, 726

F.3d 631, 641 (5th Cir. 2013)).2 Deliberate indifference encompasses only

unnecessary and wanton infliction of pain repugnant to the conscience of

mankind. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)

(citations omitted).

Plaintiff alleges no facts to suggest that Law Librarian Moore’s policy and

enforcement of same exposed Plaintiff to a substantial risk of serious

harm. Plaintiff was never denied the ability to visit the restroom during

his law library sessions, and there is no suggestion he ever suffered any

physical injury as a result of Law Librarian Moore’s actions. See Whitlock,

2016 WL 7168029, at *6–*7 (recommending prisoner’s deliberate

indifference claim be dismissed for failure to state a claim in part because

he did not allege he had suffered any physical harm as a result of the

enforcement of law library’s restroom policy).

2 The Fifth Circuit has clarified that “gross negligence . . . is a heightened degree of negligence, while

[deliberate indifference] is a lesser form of intent.” Whitley, 726 F.3d at 641 (internal quotations and

citation omitted).

Dkt. No. 15 at 12–13. Accordingly, the Court adopts the recommendation that

Plaintiff’s deliberate indifference claim arising from the enforcement of Moore’s

restroom policy be dismissed for failure to state a claim.

ii. Defendants Kwarteng and Lawson

As Magistrate Judge Libby describes:

Plaintiff claims that Dr. Kwarteng and Medical Administrator Lawson

acted with deliberate indifference to his serious medical needs by not

issuing him a medical pass for his frequent urination. Prisoners are

protected from cruel and unusual punishment by the Eighth Amendment.

While not mandating a certain level of medical care for prisoners, the

Eighth Amendment imposes a duty on prison officials to ensure that

inmates receive adequate medical care. Easter v. Powell, 467 F.3c 459, 463

(5th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

Prison officials are liable for failure to provide medical treatment if they

are deliberately indifferent to a prisoner’s serious medical needs. Estelle v.

Gamble, 429 U.S. 97 (1976). Deliberate indifference may be exhibited by

prison doctors in their response to prisoners’ needs, but it may also be

shown when prison officials have denied an inmate prescribed treatment

or have denied him access to medical personnel capable of evaluating the

need for treatment. Id. at 104–05.

In the context of medical treatment, the prisoner must show “that prison

officials refused to treat him, ignored his complaints, intentionally treated

him incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs.” Gobert v.

Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal quotation marks and

citation omitted). Although inadequate medical treatment may rise to the

level of a constitutional violation, “successful medical treatment and acts

of negligence or medical malpractice do not constitute deliberate

indifference, nor does a prisoner’s disagreement with [his] medical

treatment, absent exceptional circumstances.” Sama v. Hannigan, 669

F.3d 585, 590 (5th Cir. 2012).

Plaintiff alleges that both Dr. Kwarteng and Medical Administrator

Lawson informed Plaintiff that no policy existed at the McConnell Unit

regarding the issuance of medical passes for any medical condition,

including frequent urination. Plaintiff otherwise provides nothing to

suggest that Dr. Kwarteng or Medical Administrator Lawson engaged in

conduct evincing a wanton disregard or otherwise constituting deliberate

indifference to Plaintiff’s serious medical needs.

Dkt. No. 15 at 14–15. Accordingly, the Court adopts the recommendation that

Plaintiff’s deliberate indifference claims against Kwarteng and Lawson be

dismissed for failure to state a claim.

e. Retaliation

As Magistrate Judge Libby describes:

Plaintiff claims in his Supplemental Complaint that he has been subjected

to retaliation and harassment by Law Librarian Moore and Officer

Thompson. 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 claims that Officer Thompson retaliated against him by denying

him a restroom break while he was in the law library and forcing him to

return to his housing building. (D.E. 12, pp. 3–4). As discussed above,

however, “the invocation of a specific constitutional right is the first

element of a retaliation claim.” Williams v. Sellers, No. H-11-4287, 2014

WL 794191, at *11 (S.D. Tex. Feb. 26, 2014). Plaintiff makes no allegation

that he exercised a specific constitutional right preceding Officer

Thompson’s conduct.

Plaintiff also fails to allege that he was subjected to an adverse act. As

noted above, to prevail on a retaliation claim, Plaintiff must demonstrate

that he suffered an adverse act that “would chill or silence a person of

ordinary firmness” from complaining in the future. Morris, 449 F.3d at

685–86. Plaintiff’s allegations indicate that he subsequently filed a

grievance against Officer Thompson for denying him a restroom break

near the library. Thus, it is clear that Officer Thompson’s action had no

chilling effect on Plaintiff's ability to complain.

Plaintiff further alleges that, on April 2, 2019, Law Librarian Moore and

Officer Thompson retaliated against Plaintiff by forcing him to work at a

table with three other inmates and no typewriter and denying him access

to the typewriter table. (D.E. 12, pp. 1-2). Plaintiff does not specify

whether these actions came in response to Plaintiff's exercise of a

constitutional right, such as the filing of this case. Furthermore, the

actions taken by Defendants Moore and Thompson are of such a de

minimis nature as to not form the basis of a § 1983 claim. See Garner uv.

Moore, 2:13-CV-3838, 2014 WL 4082510, at *3 (S.D. Tex. Aug. 19, 2014)

(concluding that the alleged retaliatory acts of limited talking privileges,

verbal reprimand, temporary suspension of library privileges, and delays

in supply delivery are de minimis); Kolberg v. Pille, No. 1:12-CV-280, 2012

WL 6967234, at *5 (E.D. Tex. Dec. 14, 2012) (concluding that the act of

separating one inmate from another inmate “in the law library for a day is

de minimis, cannot form the basis for a retaliation claim’).

Dkt. No. 15 at 15-18. Accordingly, the Court adopts the recommendation that

Plaintiffs retaliation claims be dismissed for failure to state a claim.

IV. Conclusion

For the reasons above, the Court ADOPTS IN PART and DECLINES

TO ADOPT IN PART the M&R, Dkt. No. 15. Accordingly, the Court

DISMISSES Plaintiffs complaint.

SIGNED this 21st day of April, 2020.

Hilda Tagle

Senior United States District Judge

14/14