Franklin v. Moore

UNITED STATES DISTRICT COURT March 31, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

TONY L. FRANKLIN, §

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Plaintiff, §

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v. § Civil Action No. 4:22-CV-00207

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KRYSTAL SIMMONS, and JUSTIN C. §

SAND-WABLE, §

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Defendants. §

MEMORANDUM OPINION AND ORDER

Tony L. Franklin, an inmate in the Texas Department of Criminal Justice (“TDCJ”),

has filed suit under 42 U.S.C. § 1983 against four TDCJ employees, Defendants Rocky

Moore, Krystal Simmons, Justin Sand-Wable, and Dustin Wonders, for conspiring to

retaliate against him, retaliating against him, and violating his due process rights.

Previously on May 4, 2022, the Court dismissed Defendants Rocky Moore and Dustin

Wonders. (Dkt. No. 5). Now pending before the Court is the remaining Defendants’

Motion for Summary Judgment. (Dkt. No. 12). For the following reasons, the Court

GRANTS IN PART and DENIES IN PART Defendants’ Motion.

I. BACKGROUND1

On May 25, 2021, Franklin was housed in his cell in a TDCJ facility. (Dkt. No. 3 at

1, ¶ 4). On the same day, Defendant Krystal Simmons filed a disciplinary charge against

1 Except where noted, this Section contains only undisputed facts, which have been

construed in the favor of the nonmovant. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769,

1774–75, 167 L.Ed.2d 686 (2007).

Franklin for masturbating in public. (Id. at 1, ¶ 5). Franklin claims that the charge was

false and was filed in retaliation for a grievance Franklin had filed against Simmons’s

husband, who is also a TDCJ employee. (Dkt. No. 1-5 at 5–7). Defendant Justin C. Sand-

Wable, TDCJ Corrections Captain, presided over the disciplinary hearing and found

Franklin guilty of the charge. (Dkt. No. 3 at 2, ¶¶ 8, 16). Franklin was denied 45 days of

recreation and 60 days of commissary privileges. (Dkt. No. 12-1 at 3). The guilty finding

was later overturned through the prison grievance process. (Dkt. No. 1-5 at 9).

Franklin filed suit, alleging that the Defendants conspired to retaliate against him,

actually retaliated against him, and denied him due process. (Dkt. No. 3); (Dkt. No. 1-5

at 5–7). The Court sua sponte dismissed Defendant Rocky N. Moore, the Unit Warden.

(Dkt. No. 5). Defendants Simmons and Sand-Wable now move for summary judgment.

(Dkt. No. 12).

II. LEGAL STANDARD

Summary judgment is appropriate when there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A material fact is one that might affect the outcome of the suit under governing

law, and a fact issue is genuine if the evidence is such that a reasonable jury could return

a verdict for the non-moving party.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605,

611 (5th Cir. 2018) (internal quotation marks and citations omitted). The moving party

“always bears the initial responsibility of informing the district court of the basis for its

motion” and identifying the record evidence the movant “believes demonstrate[s] the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S.Ct. 2548, 2253, 91 L.Ed.2d 265 (1986). “If the moving party fails to meet this initial

burden, the motion [for summary judgment] must be denied, regardless of the

nonmovant’s response.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en

banc) (per curiam).

If the movant meets this burden, the nonmovant must then come forward with

specific facts showing there is a genuine issue for trial. Fed. R. Civ. P. 56(c); see also

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 1356,

89 L.Ed.2d 538 (1986). The nonmovant “must go beyond the pleadings and by [the

nonmovant’s] own affidavits, or by the depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that there is a genuine issue for trial.”

Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (citation

omitted). “If the evidence is merely colorable, or is not significantly probative,” summary

judgment is appropriate. Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th

Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505,

2511, 91 L.Ed.2d 202 (1986)). The nonmovant’s burden “will not be satisfied by ‘some

metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated

assertions, or by only a scintilla of evidence.’” Boudreaux v. Swift Transp. Co., 402 F.3d 536,

540 (5th Cir. 2005) (quoting Little, 37 F.3d at 1075). But the district court must view the

evidence in the light most favorable to the nonmovant and draw all reasonable inferences

in the nonmovant’s favor. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.

1997) (citation omitted).

III. DISCUSSION

Defendants argue that summary judgment is proper for four reasons. First,

Defendants argue that they are immune from suit under the Eleventh Amendment. (Dkt.

No. 12 at 4–6). Second, Defendants argue that they did not violate Franklin’s due process

rights. (Id. at 6–9). Third, Defendants argue that Franklin has failed to state a claim for

retaliation. (Id. at 9–14). And fourth, Defendants argue that Franklin has failed to state a

claim for conspiracy. (Id. at 14–16).

A. ELEVENTH AMENDMENT IMMUNITY

Franklin sues Defendants for monetary and injunctive relief. (Dkt. No. 3 at 3). In

their Motion for Summary Judgment, Defendants argue that the Eleventh Amendment

bars Franklin from filing suit against Defendants. (Dkt. No. 12 at 4–6). The Eleventh

Amendment provides in full that:

The Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. “Under the Eleventh Amendment, absent waiver, neither a State

nor agencies acting under its control may be subject to suit in federal court.” Cox v. Texas,

354 Fed. App’x 901, 902 (5th Cir. 2009) (cleaned up); see also P.R. Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 687–88, 121 L.Ed.2d 605 (1993)

(citations omitted). The Fifth Circuit has held that the TDCJ is a state agency that enjoys

immunity from suit in federal court. Harris v. Angelina Cnty., Tex., 31 F.3d 331, 338 n.7

(5th Cir. 1994) (“Under the current state of the law, the TDCJ is deemed an

instrumentality of the state operating as its alter ego in carrying out a public function of

the state, and is immune from suit under the Eleventh Amendment.”)). The Fifth Circuit

has further extended this immunity to TDCJ’s officers acting in official capacity. See

Aguilar v. TDCJ, 160 F.3d 1052, 1054 (5th Cir. 1998); accord Oliver v. Scott, 276 F.3d 736 (5th

Cir. 2002) (noting that the Fifth Circuit has “twice [] held that the Eleventh Amendment

bars recovering § 1983 money damages from TDCJ officers in their official capacity).

Accordingly, Defendants are entitled to summary judgment on Franklin’s claims for

monetary relief.

However, Eleventh Amendment immunity does not bar a grant of prospective

injunctive relief against state actors in their official capacities. See e.g., Ex parte Young, 209

U.S. 123, 159–60, 28 S.Ct. 441, 453–54, 52 L.Ed. 714 (1908); see also Green v. Mansour, 474

U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985) (citing Ex parte Young, 209 U.S. at 159–

60, 28 S.Ct. 411 at 453–54). Defendants argue that since Franklin’s claim arises under state

law, Eleventh Amendment immunity is still available. (Dkt. No. 12 at 5–6). The Court

disagrees. Franklin alleges retaliation for the exercise of his First Amendment rights, i.e.,

a claim under federal law. (Dkt. No. 3 at 1). Therefore, Franklin’s claims for injunctive

relief are not barred by the Eleventh Amendment.

B. DUE PROCESS

Franklin also claims that Defendants violated his right to due process in the

disciplinary hearing. (Id.). The procedural protections of the Due Process Clause are

triggered only where there has been a deprivation of life, liberty, or property. Wilkinson

v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174 (2005). Here, because

neither Franklin’s life nor property interests are at stake, the threshold question is

“whether [he] had a liberty interest that the prison action implicated or

infringed.” Richardson v. Joslin, 501 F.3d 415, 418 (5th Cir. 2007) (internal quotation marks

and citations omitted).

In Sandin v. Conner, the Supreme Court held that the focus of the liberty interest

inquiry should be on “the nature of the deprivation . . . .” 515 U.S. 472, 481, 115 S.Ct. 2293,

2299, 132 L.Ed.2d 418 (1995). Such interests for inmates will generally be “limited to

freedom from restraint which . . . imposes atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. at 2300 (internal

citations omitted). When Franklin was found guilty in his disciplinary hearing, Franklin

was assessed a loss of 45 recreation days and 60 commissary days. (Dkt. No. 12-1 at 3).

These penalties do not constitute “atypical and significant hardship . . . in relation to the

ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2293; see also Madison

v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (holding that loss of commissary and recreation

privileges are “merely changes in the conditions of [] confinement and do not implicate

due process concerns”). Franklin, therefore, did not suffer the loss of any protected

liberty interest.

C. RETALIATION

Franklin alleges that Defendants created a false disciplinary charge and found him

guilty of that charge to retaliate against him for filing a grievance against Simmons’s

husband. (Dkt. No. 1-5). Simmons denies retaliatory motives but offers no evidence in

support of her denial and, instead, argues that the Defendants are entitled to qualified

immunity. (Dkt. No. 12 at 9–16). In his Response, Franklin argues that the lack of

summary judgment evidence, coupled with his account of the events, raises genuine

issues of material fact. (Dkt. No. 18 at 8–9). The Court agrees with Franklin.

“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.” Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008) (citation omitted). On

causation, an inmate must “be prepared to establish that but for the retaliatory motive

the complained of incident . . . would not have occurred. . . . The inmate must provide

direct evidence of motivation or, the more probable scenario, allege a chronology of

events from which retaliation may plausibly be inferred.” Woods v. Smith, 60 F.3d 1161,

1166 (5th Cir. 1995) (internal quotation marks and citations omitted).

Here, Franklin alleges that: (1) he filed a grievance against Simmons’s husband—

a clear exercise of his First Amendment rights, and (2) Simmons then filed a false

disciplinary case against him. (Dkt. No. 18 at 8). Franklin claims that Simmons has not

established that she would not have taken the same action against him regardless of his

filing of a grievance against her husband. (Id.). On a motion for summary judgment,

where all reasonable inferences must be drawn in favor of the nonmovant, Franklin’s

allegations are sufficient to plausibly infer retaliation and to raise a genuine issue of

material fact.

Defendants also argue that they are entitled to qualified immunity. (Dkt. No. 12

at 15–16). “The doctrine of qualified immunity shields public officials . . . from damages

actions unless their conduct was unreasonable in light of clearly established law.” Elder

v. Holloway, 510 U.S. 510, 512, 114 S.Ct. 1019, 1021, 127 L.Ed.2d 344 (1994). The Fifth

Circuit has held that, to overcome qualified immunity, “pre-existing law must dictate,

that is, truly compel (not just suggest or allow or raise a question about), the conclusion

for every like-situated, reasonable government agent that what the defendant is doing

violates federal law in the circumstances.” Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997)

(internal quotation marks and citation omitted) (emphasis in original).

There can be no question that clearly established law dictated that prison officials

may not retaliate against an inmate for the inmate’s exercise of his First Amendment right

to file a grievance. “The law of this circuit is clearly established . . . that a prison official

may not retaliate against or harass an inmate . . . for complaining to a supervisor about a

guard’s misconduct.” Woods, 60 F.3d at 1164. Defendants are not entitled to qualified

immunity and are not entitled to summary judgment on the retaliation claim.

D. CONSPIRACY TO RETALIATE

To prove his conspiracy claim, Franklin must show (1) an actual violation of a right

protected under Section 1983 and (2) actions taken in concert by the defendants with the

intent to violate that right. Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999), abrogated on

other grounds by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003). As discussed above,

Franklin has pleaded specific facts setting out a sequence events from which it can

reasonably be inferred that Defendants retaliated against him for his exercise of his First

Amendment rights. Further, Franklin has alleged specific facts from which a reasonable

inference can be drawn that Defendants acted in concert with the intent to retaliate

against him. Defendants have not offered any summary judgment evidence indicating

that they are entitled to judgment as a matter of law. As such, Franklin’s allegations are

enough to withstand a motion for summary judgment on the conspiracy claim.

IV. CONCLUSION

Considering the foregoing analysis, the Court GRANTS IN PART and DENIES

IN PART Defendants’ Motion for Summary Judgment, (Dkt. No. 12). The Court grants

summary judgment on all of Franklin’s claims except his retaliation and conspiracy to

retaliate claims against the Defendants.

It is SO ORDERED.

Signed on March 31, 2023.

& per

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE