Birdo v. Abbott

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

KENNETH R. BIRDO, §

TDCJ-CID No. 02402313, §

§

Plaintiff, §

§

v. § 2:24-CV-20-Z-BR

§

GREG ABBOTT, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS TO DISMISS COMPLAINT

Before the Court is the Amended Complaint (ECF 17) filed by Plaintiff Kenneth R. Birdo

(“Birdo”) against Defendants Gov. Greg Abbott, Bryan Collier, The Hon. Elizabeth Beach, Pia R.

Lederman, W. Chase Payne, Warden Adam Gonzales, Warden William Jones, Major Miller, S.

Parks, Asst. Warden Schiwart, Major F. Martinez, FSM Mike Marquez and FSM Mark Allen,

alleging violations of Birdo’s civil rights. Birdo filed this lawsuit pro se while a prisoner in the

Clements Unit of the Texas Department of Criminal Justice (“TDCJ”) and he has been granted

permission to proceed in forma pauperis. As such, his lawsuit is subject to preliminary screening

as provided by the Prison Litigation Reform Act (“PLRA”). Pursuant to such screening and for the

reasons stated below, the Magistrate Judge recommends that Birdo’s Amended Complaint be

DISMISSED pursuant to 28 U.S.C. §§ 1915 and 1915A, and that he be issued a strike within the

meaning of 28 U.S.C. § 1915(g).

I. STANDARD OF REVIEW

A court must dismiss a complaint filed in forma pauperis by a prisoner against a

government entity or employee if the court determines that the complaint is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant

who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (2017); see also Section 1915A(b)

(applying section to any suit by a prisoner against certain governmental entities, regardless of

whether the prisoner is proceeding in forma pauperis). When analyzing a prisoner’s complaint, the

court may consider reliable evidence such as the plaintiff’s allegations, responses to a

questionnaire, and authenticated prison records. Wilson v. Barrientos, 926 F.2d 480, 483-84 (5th

Cir. 1991); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (explaining that responses

to a questionnaire or testimony given during an evidentiary hearing are incorporated into the

plaintiff’s pleadings).

In evaluating the sufficiency of a complaint, the court accepts well-pleaded factual

allegations as true, but does not credit conclusory allegations or assertions that merely restate the

legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016).

While courts hold pro se plaintiffs to a more lenient standard than attorneys when analyzing

complaints, such plaintiffs still must plead factual allegations that raise the right to relief above a

speculative level. Id. (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).

II. LEGAL ANALYSIS

A. Factual Background.1

Birdo’s original Complaint alleges that Texas Governor Greg Abbott, high-ranking

Clements Unit officials, and state officials involved in his criminal prosecution have conspired to

discriminate against and oppress minority prisoners such as Birdo. (ECF 3). He claimed that

Defendants “deliberately undermine” the U.S. Constitution by both treating him as a captive and

conducting human trafficking of minority prisoners. (Id. at 4). On February 20, 2025, Birdo

1These background facts are taken from Birdo’s Complaint (ECF 3), Amended Complaint (ECF 17) and

questionnaire responses (ECF 11).

amended his complaint. In addition to Birdo’s allegations concerning his claims of discrimination

and slavery, and his dissatisfaction with the conditions of his confinement, he added allegations

that certain defendants withheld medical care, and others mishandled various grievances and

disciplinary cases. (ECF 17). For the reasons stated below, Birdo’s Amended Complaint should

be dismissed as frivolous.

B. Claims Against Greg Abbott.

Birdo sues Texas Governor Greg Abbott (“Abbott”) as the “head ruler appointed to govern

the State of Texas.” (ECF 11 at 1). He claims that Abbott failed to “hold accountable individuals

who violate and pervert justice with premeditated schemes done behind the scenes in the court

room.” (Id. at 2). Birdo further claims that Abbott allows human trafficking to take place, and

subjects him to “cruel and unusual punishment in order to make money.” (ECF 17 at 7). He further

alleges that Abbott fails to prevent the judicial system from “strip[ping] away the rights of

poverty[-] stricken individuals” and utilizes the judicial system “for s[u]bliminal human trafficking

as a means of accumulating wealth[,] creating hostage conditions within the prisons.” (ECF 11 at

12). He provides no specific facts in support of these allegations.

A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on

an indisputably meritless legal theory.” Id. at 327. A claim lacks an arguable basis in fact when it

describes “fantastic or delusional scenarios.” Id. at 327-28. As the U.S. Supreme Court has stated,

courts

may dismiss a claim as factually frivolous only if the facts alleged are clearly

baseless, a category encompassing allegations that are fanciful, fantastic, and

delusional. As those words suggest, a finding of factual frivolousness is appropriate

when the facts alleged rise to the level of the irrational or the wholly incredible,

whether or not there are judicially noticeable facts available to contradict them.

Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citations and internal quotation marks omitted).

Birdo alleges no factual support for his fanciful claims against Abbott. Under Section 1915(e), a

court is not bound to accept without question the truth of a pro se plaintiff’s allegations. Id. The

absence of material facts, combined with the irrational nature of a claim, can support a finding of

factual frivolousness. See Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990). Here, Birdo’s

complaints against Abbott rise to the level of the irrational or wholly incredible and, consequently,

are factually frivolous.2 Birdo has failed to state a claim upon which relief may be granted, and his

claims against Abbott should be dismissed as frivolous.

C. Claims Against Bryan Collier.

Birdo sues Bryan Collier (“Collier”) for “doing away with the digital mailing system where

mail comes from family and friends directly to the unit.” (ECF 17 at 7). While he acknowledges

that the stated purpose of the electronic mail program is to stem the flow of drugs into the Clements

Unit, Birdo alleges that the program was actually implemented to punish prisoners and separate

them from their loved ones. (ECF 11 at 2, 12). He further claims that Collier and unspecified others

use the digital mail system to censor statements that prisoners attempt to send out “about corrupted

staff, and crimes committed by staff that are going undetected.” (Id.).

A prison inmate “retains those [constitutional] rights that are not inconsistent with his status

as a prisoner.” Turner v. Safley, 482 U.S. 78 (1987) (quoting Pell v. Procunier, 417 U.S. 817, 822

(1974); Adams v. Ellis, 197 F.2d 483, 485 (5th Cir. 1952)). However, “these rights must be

exercised with due regard for the ‘inordinately difficult undertaking’ that is modern prison

2Even if Birdo’s claims against Abbott were considered viable, however, he fails to allege facts showing

Abbott’s personal involvement in the alleged constitutional violations. See Porter v. Epps, 659 F.3d 440,

446 (5th Cir. 2011) (supervisory official may be held liable only if he affirmatively participates in the acts

causing a constitutional deprivation or implements unconstitutional policies that result in the constitutional

injury).

administration.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). “Accordingly, prisoners and

their correspondents enjoy the protections of the First Amendment except to the extent that prison

regulations curtailing those protections are ‘reasonably related to legitimate penological

interests.’” Prison Legal News v. Livingston, 683 F.3d 201, 214 (5th Cir. 2012) (quoting

Thornburgh, 109 S. Ct. at 1877); Brewer v. Wilkinson, 3 F.3d 816, 820-21, 825-26 (5th Cir. 1993).

Noting that the “judiciary is ‘ill equipped’ to deal with the difficult and delicate problems of prison

management, [the Supreme Court] has afforded considerable deference to the determinations of

prison administrators.” Thornburgh, 490 U.S. at 407-8. Accordingly, “‘prison administrators ...,

and not the courts, [are] to make the difficult judgments concerning institutional operations.’” Id.

(quoting Turner, 482 U.S. at 85). The plaintiff bears the burden to show that the challenged

regulations, as applied, are not reasonably related to a legitimate penological interest. Overton v.

Bazzetta, 539 U.S. 126, 132 (2003). The Fifth Circuit has noted that courts must give substantial

deference to the judgment of prison officials. Prison Legal News, 683 F.3d at 215 (citing Overton,

539 U.S. at 132).

Birdo has described no constitutional violation caused by the digital mail policy, nor has

he alleged facts to support a plausible claim against Collier arising from institution of the digital

mail policy. See Spiller v. City of Texas City, Texas Police Department, 130 F.3d 162, 167 (5th

Cir. 1997) (in order to satisfy the cause in fact requirement, the plaintiff must allege that the custom

or policy served as the moving force behind the constitutional violation at issue or that his injuries

resulted from the execution of the policy or custom; the description of the policy or custom and its

relationship to the underlying constitutional violation cannot be conclusory, but must contain

specific facts). Birdo’s allegations fail to meet this standard. Specifically, he fails to allege facts

showing a constitutional violation and a resulting injury to him. His allegations are not sufficient

to impute liability to Collier. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)). Accordingly,

Birdo’s claims against Collier should be dismissed as frivolous.

D. Claims Against Elizabeth Beach.

Birdo alleges that Defendant Elizabeth Beach (“Beach”), the presiding judge of Criminal

District Court No. 1 of Tarrant County, Texas, “failed in her [duties] as one in authority to render

justice the way God intended for it to be carried out.” (ECF 11 at 3). Specifically, he claims that

Beach “admitted lies into her court room in a charging instrument Plaintiff has never been charged

or arraigned on.” (Id.). He further alleges that she retaliated against him because the crimes upon

which he was charged were “related to women.” (ECF 11 at 13).

Judges are absolutely immune from claims for damages arising out of acts done in the

exercise of their judicial functions. Mireles v. Waco, 502 U.S. 9, 11 (1991). Like other forms of

official immunity, judicial immunity is an immunity from suit, not just from paying damages.

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Absolute judicial immunity can be overcome only

if the plaintiff shows that the complained-of actions were nonjudicial in nature or that the actions

were taken in the complete absence of all jurisdiction. Mireles, 502 U.S. at 11. Birdo has failed to

allege facts overcoming Beach’s absolute judicial immunity; accordingly, his claims against Beach

should be dismissed as frivolous.

E. Claims Against Pia Lederman.

Birdo alleges that Defendant Pia Lederman (“Lederman”) “neglected her duties as a

defense counsel” while representing him in his state court criminal proceedings. (ECF 11 at 3). He

further alleges that Lederman “strategically aid[ed] the state in painting a one-sided narrative to

make Plaintiff seem menacing.” (Id. at 13). To state a valid cause of action under 42 U.S.C. §

1983, Birdo must show that he has been deprived of a right guaranteed by the Constitution or laws

of the United States by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988). A defense attorney, whether appointed or retained, does not act under color of state law.

Polk County v. Dodson, 454 U.S. 312 (1981). Birdo has alleged no facts showing that Lederman

is a state actor; as a result, his claims against her should be dismissed as frivolous.3

F. Claims Against W. Chase Payne.

Birdo next alleges that Defendant W. Chase Payne (“Payne”), a Texas state court

prosecutor, falsified a charging instrument against Birdo, as well as coerced an alleged victim to

lie in an unspecified manner. (ECF 11 at 4-5). He further alleges that Payne “aided the state of

[Texas] in a corrupted scheme of human trafficking in prisons” and that Payne conspired with

Lederman to strip Birdo of his due process rights. (ECF 17 at 3; ECF 11 at 13). Criminal

prosecutors are immune from civil suit for damages under Section 1983 in presenting the state’s

case. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). This applies to the prosecutor’s actions in

initiating prosecution and carrying the criminal case through the judicial process. Young v. Biggers,

938 F. 2d 565, 569 (5th Cir. 1991); Krueger v. Reimer, 66 F.3d 75, 76-77 (5th Cir. 1995). Birdo

has alleged no facts that overcome Payne’s prosecutorial immunity. Birdo’s claims against Payne

should be dismissed as frivolous.

G. Claims Against Adam Gonzales.

Birdo alleges that Adam Gonzales (“Gonzales”) conspired with “a class of highly

discriminative privileged individuals who impose oppression and slave tactics on people who

commit crimes, such as Plaintiff, by deliberately undermining the U.S. Constitution, state laws,

and TDCJ policy.” (ECF 17 at 9). He further alleges that Gonzales allows state officials at the Bill

3To the extent Birdo attempts to allege ineffective assistance of counsel at his criminal trial, such claims

are properly brought in a petition for writ of habeas corpus rather than a civil rights lawsuit.

Clements Unit to falsify documents, deny due process and mistreat Plaintiff with all kinds of

harmful acts.” (Id.). Lastly, he claims that Gonzales “has a duty to make sure all rules, regulations

and policies are maintained by residents and staff” but that disciplinary hearings are held in “a

kangaroo styled fashion” that impose “excessive” amounts of good-time loss and other

punishments upon prisoners. (ECF 11 at 6). He further alleges that Gonzales “neglected his duties

to investigate grievances from Plaintiff.” (ECF 17 at 4).

Under the standard set forth above, the majority of Birdo’s allegations against Gonzales

should be dismissed as factually frivolous. See Neitzke, 490 U.S. at 325. To the extent that Birdo

alleges that Gonzales has implemented an administrative grievance policy that violates his

constitutional rights, Birdo has failed to state a plausible claim because there is no constitutionally

protected right to a prison grievance system. See Schwarzer v. Wainright, 810 F. App’x 358, 360

(5th Cir. 2020) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)); Geiger v. Jowers, 404 F.3d

371, 374 (5th Cir. 2005) (holding that prisoners do not have a federally protected liberty interest

in having grievances resolved to their satisfaction); Alexander v. Tex. Dep’t of Crim. Just., 951

F.3d 236, 240 (5th Cir. 2020) (affirming trial court’s dismissal of inmate’s claim that his grievances

were mishandled or improperly denied, as prisoners have no due-process rights in the inmate

grievance process); Grogan v. Kumar, 873 F.3d 273, 280 (5th Cir. 2017) (“[I]t is well established

that prisoners have no due process rights in the inmate grievance process.”) (citation omitted);

Jenkins v. Henslee, No. 3-01-CV-1996-R, 2002 WL 432948, at *2 (N.D. Tex. March 15, 2002)

(“An inmate does not have a constitutional entitlement to [a] grievance procedure. Hence any

alleged violation of the grievance procedure does not amount to a constitutional violation.”).

Birdo’s conclusory claims regarding Gonzales implementing improper grievance procedures and

failing to properly investigate grievances state no constitutional violation. See Geiger, 404 F.3d at

374-75 (“Insofar as [the inmate] seeks relief regarding an alleged violation of his due process rights

resulting from the prison grievance procedures, the district court did not err in dismissing his claim

as frivolous.”). Birdo’s claims against Gonzales should be dismissed as frivolous.

H. Claims Against S. Parks and Major Miller.

Birdo alleges that Major Miller (“Miller”) failed to impose upon a white inmate the same

punishment that Birdo received for fighting with that inmate, thereby discriminating against Birdo.

(ECF 11 at 8, 14). He alleges that S. Parks (“Parks”) falsified a disciplinary report regarding the

fight by wrongly labeling him as the aggressor. (Id.). However, dissatisfaction with the handling

of a disciplinary case, without more, does not state a due process violation.

“Prison disciplinary proceedings are not [a] part of a criminal prosecution, and the full

panoply of rights due a [criminal] defendant in such proceedings does not apply.” Wolff v.

McDonnell, 418 U.S. 539, 556 (1974). To establish a due process violation in connection with a

disciplinary hearing, a prisoner must establish that he has been denied a “liberty interest that the

prison action implicated or infringed.” Richardson v. Joslin, 501 F.3d 415, 418 (5th Cir. 2007)

(internal quotation omitted). Liberty interests are “generally limited to freedom from restraint

which...imposes atypical and significant hardship on the inmate in relation to the ordinary incidents

of prison life.” Sandin, 515 U.S. at 484. A claim that a disciplinary charge was false, by itself, does

not state a claim upon which relief may be granted. See Harris v. Smith, 482 F. App’x 929, 930

(5th Cir. 2012); Lasater v. Herrera, 729 F. App’x 362, 362-63 (5th Cir. 2018) (allegation of a false

disciplinary report failed to state a claim, and due process was not implicated where plaintiff lost

prison privileges).

Most of the punishments of which Birdo complains do not implicate a cognizable liberty

interest and, therefore, fail to state a constitutional violation as a matter of law. Removing him

from faith-based classes does not deprive him of a cognizable liberty interest. See Morales v.

Abbott, No. 9:17-cv-94; 2024 WL 1189480 (E.D. Tex. Feb. 27, 2024) (“Prisoners generally have

no constitutionally-protected property or liberty interest in participating in rehabilitation[]

programs.”); Bulger v. Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995) (same); Madison v.

Parker, 104 F.3d 765, 768 (5th Cir. 1997) (concluding that commissary and cell restrictions do not

implicate due process concerns); Taylor v. Swift, 2015 WL 5834057, at *1 (5th Cir. Oct. 7, 2015)

(per curiam) (finding that loss of recreation and commissary privileges does not result in a

deprivation of a liberty interest); Allums v. Phillips, 444 F. App’x 840, 841 (5th Cir. 2011) (per

curiam) (“Placement in administrative segregation or a change in custodial classification as a result

of a disciplinary infraction, without more, does not constitute a deprivation of a constitutionally

cognizable liberty interest, and, therefore, there is no right to due process.”).

Construing Birdo’s claims broadly to encompass a claim about him losing good-time

credits, such claim could implicate due process concerns. However, Birdo’s claim is barred by

Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, a prisoner may not “seek[] damages in a §

1983 suit” if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence.” Heck, 512 U.S. at 487. Otherwise, Section 1983 could be used as a tool

effectively to reverse state convictions without recourse to more proper means, such as habeas

corpus. Thus, plaintiffs convicted of crimes may not use Section 1983 to challenge the validity or

duration of their sentences. Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). Because

Heck applies to both the validity and the duration of confinement, it extends to prison disciplinary

convictions in addition to criminal convictions. Gray v. White, 18 F.4th 463 (5th Cir. 2021) (citing

Bourne v. Gunnels, 921 F.3d 484, 490 (5th Cir. 2019)).

Heck “precludes § 1983 litigation in the prison-disciplinary-proceeding context where it

would ‘negate [the prisoner’s] disciplinary conviction’ if negating that conviction would ‘affect[]

the duration of his sentence by restoring his good time credits.’” Gray, 18 F.4th at 467 (quoting

Bourne, 921 F.3d at 491). “Whether the plaintiff in fact seeks the restoration of good time credits,

rather than another remedy such as damages, is immaterial.” Id. (citing Aucoin v. Cupil, 958 F.3d

379, 383 (5th Cir. 2020)). Birdo’s claim for damages based upon loss of good-time credits

implicates Heck considerations and thus is barred. Accordingly, Birdo has failed to allege any due

process violations against Miller or Parks, and his claims against them should be dismissed until

the conditions of Heck are met.

I. Claims Against Warden William Jones III.

1. Retaliation.

Birdo first alleges that Warden William Jones III (“Jones”) retaliated against him for filing

a grievance. (ECF 17 at 9; ECF 11 at 6). Specifically, he alleges that Jones “racially attacked” him

as he sat in medical “for previously using the grievance procedure saying that certain white officers

were racially discriminating.” (ECF 17 at 9). Birdo states that Jones walked up to him and started

a verbal altercation. (ECF 11 at 6). Birdo then alleges that the situation escalated in an unspecified

manner, and Jones eventually called for backup, which resulted in “staff” repeatedly spraying

Birdo with chemical agents that caused his skin to burn for three or four days. (Id. at 7). He alleges

that Jones “demanded that ranking officers repeatedly use chemical agents on [Birdo], using

excessive punishment.” (ECF 17 at 9). He also alleges that Jones denied him access to a mental

illness treatment program. (ECF 11 at 7).

When an inmate claims that he has been the subject of retaliation, he must show facts, not

merely conclusions. Whittington v. Lynaugh, 842 F.2d 818 (5th Cir.), cert. denied, 488 U.S. 840

(1988). The plaintiff must present facts showing a retaliatory motive or the alleged conduct must

itself raise an inference of retaliation in order to support a claim. Id. at 819. “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.”

Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). The fact that one event follows another in

time does not amount to proof of retaliation. Enlow v. Tishomingo County, Mississippi, 45 F.2d

885, 889 (5th Cir. 1995).

A valid retaliation claim requires a plaintiff to allege that: (1) he exercised a specific

constitutional right; (2) the defendant intended to retaliate against him because he exercised that

right; (3) he experienced a retaliatory adverse act; and (4) the adverse act would not have occurred

but for a retaliatory motive. Welsh v. Cammack, No. 23-10961, 2024 WL 3649583 at *5 (5th Cir.

2024) (citing Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999)). The Fifth Circuit has

defined an actionable retaliatory adverse act as one “capable of deterring a person of ordinary

firmness from further exercising his constitutional rights.” Morris v. Powell, 449 F.3d 682, 686

(5th Cir. 2006). A plaintiff must offer direct evidence of motivation or allege a chronology of

events from which retaliation may plausibly be inferred. Woods, 60 F.3d at 1166. This is a

“significant burden” Id. “Mere conclusionary allegations of retaliation” are insufficient. Id.; see

also Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (Conclusory allegations amounting

to a plaintiff’s “personal belief that he is the victim of retaliation” are insufficient to state a claim

for relief). Causation requires a showing that “but for the retaliatory motive the complained of

incident … would not have occurred.” McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998)

(citation omitted).

Birdo has provided no factual allegations supporting his claim of retaliation against Jones,

nor has he provided a chronology of events from which retaliation may be inferred. Birdo provides

nothing more than his personal belief that he is the victim of retaliation. Birdo has not plausibly

alleged facts showing that any retaliatory motive was the cause for Jones walking up to him to start

a verbal altercation that ultimately resulted in Birdo being sprayed with chemical agents. Similarly,

Birdo has alleged no facts to support his conclusory claim that Jones denied him mental health

treatment in retaliation for Birdo filing grievances. (ECF 11 at 7). As a result, Birdo is unable to

sustain his claim of retaliation against Jones, and his retaliation claim should be dismissed as

frivolous.

2. Excessive Force.

The Eighth Amendment proscribes the unnecessary and wanton infliction of pain, which

includes actions that are “so totally without penological justification that it results in the gratuitous

infliction of suffering.” Gregg v. Georgia, 428 U.S. 153, 183 (1976). Not all force rises to the level

of an Eighth Amendment claim. Specifically, Eighth Amendment protections do not extend to de

minimis uses of physical force that are not “repugnant to the conscience of mankind.” Hudson v.

McMillian, 503 U.S. 1, 9-10 (1992). To determine whether a prison official violated an inmate's

rights by using excessive force, “the core judicial inquiry is ... whether force was applied in a good-

faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at

6-7. Courts must “focus on the prison official’s ‘subjective intent’ and determine it ‘by reference

to the well-known Hudson factors.’” Byrd v. Harrell, 48 F.4th 343, 347 (5th Cir. 2022) (quoting

Cowart v. Erwin, 837 F.3d 444, 452-53 (5th Cir. 2016)). Those factors are “(1) the extent of the

injury suffered, (2) the need for the application of force, (3) the relationship between that need and

the amount of force used, (4) the threat reasonably perceived by the responsible officials, and (5)

any efforts made to temper the severity of a forceful response.” Id. (quoting Bourne v. Gunnels,

921 F.3d 484, 490 (5th Cir. 2019)).

Birdo alleges no facts indicating that force was unnecessary, or that the relationship

between his actions and the force used was excessive to the needs of the situation. Nor does Birdo

allege facts showing what, if anything, the officers perceived as a threat, reasonably or otherwise.

He admits that Jones’s order to another guard to write him up for creating a disturbance did

“provoke a negative reaction” from Birdo, although he fails to specify the form that such “negative

reaction” took. (ECF 22 at 14). Birdo fails to provide sufficient facts to show that his claim of

excessive force is plausible.

Even if, however, Birdo had alleged sufficient facts to state a claim that Jones maliciously

and sadistically used force upon him, he fails to allege that he suffered more than de minimis

injuries by the use of force. Although a showing of “significant injury” is not required in the

context of an excessive force claim, “we do require a plaintiff asserting an excessive force claim

to have suffered at least some form of injury.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.

2001) (citing Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). The injury must be more

than a de minimis injury and must be evaluated in the context in which the force was deployed.

Glenn, 242 F.3d at 314.

One way to distinguish if an injury is “de minimis” is to consider whether medical care and

treatment were needed to treat the injury. See Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.

1999). In Gomez, the court determined that the plaintiff “did not seek or receive medical treatment”

for his alleged injury, and thus his injury was considered de minimis:

In Siglar, we described the complained of conduct and injury as follows: “[the

corrections officer] twisted Siglar’s arm behind his back and twisted Siglar’s ear.

Siglar’s ear was bruised and sore for three days but he did not seek or receive

medical treatment for any physical injury resulting from the incident. There is no

allegation that he sustained long term damage to his ear.” [Siglar v. Hightower, 112

F.3d 191 (5th Cir. 1997)]. We stated that these allegations presented the question

“whether Siglar’s bruised ear amounts to a ‘physical injury’ that can serve as the

basis for his excessive force” claim, and concluded that because “Siglar’s alleged

injury—a sore, bruised ear lasting for three days—was de minimis” he had therefore

“not raised a valid Eighth Amendment claim for excessive force.” Id.

Gomez, 163 F.3d at 924. While Birdo alleges that his skin burned for three or four days, nowhere

does he allege that such injury was anything more than temporary pain. He admits that he was seen

by medical personnel, although he claims that they falsely stated that they did not see any injuries.4

(ECF 11 at 7). He does not allege, however, that medical care was needed. (Id.). Taking Birdo’s

allegations as true, he has alleged, at most, a de minimis injury that does not rise to the level of a

constitutional violation. See Westfall v. Luna, 903 F.3d 534, 549-50 (5th Cir. 2018) (recognizing

that abrasions, bruises, bloody urine, and high blood pressure and heart rate are de minimis injuries

insufficient to support an excessive force claim); Brooks v. City of W. Point, Miss., 639 F. App’x

986, 990 (5th Cir. 2016) (finding that abrasions to hands and knees, some neck and back pain, and

unspecified problems with asthma are de minimis injuries). Birdo has not stated a claim of

excessive force against Jones, and such claim should be dismissed as frivolous.

3. Lost Property.

Birdo next alleges that Jones threw away a $100 pair of shoes that Birdo’s family and

friends purchased for him and sent to the unit. (ECF 17 at 9). “Prisoners have a cognizable

constitutionally protected property interest in their personal property.” Eubanks v. McCotter, 802

F.2d 790, 793–94 (5th Cir. 1986). Nevertheless, under the Parratt/Hudson doctrine, “a deprivation

of a constitutionally protected property interest caused by a state employee’s random, unauthorized

conduct does not give rise to a § 1983 procedural due process claim, unless the State fails to

4While this may have supported a claim against the unnamed medical personnel, Birdo does not allege that

Jones prevented medical personnel from treating him.

provide an adequate post[-]deprivation remedy.” Allen v. Thomas, 388 F.3d 147, 149 (5th Cir.

2004) (quotation marks and citations omitted). The Texas administrative and judicial systems

allow prisoners to raise ordinary tort claims such as conversion or an administrative remedy for

lost or damaged property. See Cathey v. Guenther, 47 F.3d 162, 164 (5th Cir. 1995); Spurlock v.

Schroedter, 88 S.W.3d 733, 737 (Tex. App.--Corpus Christi 2002).

Therefore, the initial question is whether Birdo has alleged that Jones took his shoes

pursuant to a state policy or as “random, unauthorized conduct”. The U.S. Supreme Court has

noted that “[c]onduct is not ‘random and unauthorized’ … if the state ‘delegated to [the defendants]

the power and authority to effect the very deprivation complained of.” Zinerman v. Burch, 494

US. 113, 115 (1990) (quoted in Allen, 388 F.3d at 149 (5th Cir. 2004)). Birdo clearly and

undisputedly alleges that Jones was acting illegally in confiscating his property, rather than

pursuant to a state policy. (ECF 17 at 9). Because Birdo alleges that Jones’s conduct was

unauthorized, the Parratt/Hudson doctrine applies.

“A prison official’s failure to follow the prison’s own policies, procedures or regulations

does not constitute a violation of due process, if constitutional minima are nevertheless met.”

Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (quotation marks and citations omitted). In

Brewster, the Fifth Circuit Court of Appeals held that a due process claim was properly dismissed

because Texas law provides the adequate post-deprivation remedy of conversion when property is

taken without proper procedures. Id. Because Birdo has an adequate post-deprivation remedy

under Texas law in that he has the right to sue for conversion in state court, he does not have a

Section 1983 due process claim. Accordingly, Birdo’s claims against Jones should be dismissed

as frivolous.5

5Birdo’s conclusory, one-line claim that Jones attempted to get an officer to write a false disciplinary case

J. Claims Against Assistant Warden Schiwart and Major F. Martinez.

Birdo’s claims against Assistant Warden Schiwart (“Schiwart”) and Major F. Martinez

(“Martinez”) arise from his dissatisfaction with the manner in which his grievances were handled.

(ECF 19 at 1, 2). Specifically, he alleges that Schiwart falsified documents in response to Birdo’s

grievance and did not do a “just investigation.” (Id. at 1). He alleges that Martinez utilized

improper questions in investigating his grievance “only to take the information in order to label

Plaintiff a snitch.” (Id. at 2). Birdo admits that he was not physically injured due to anyone

believing Martinez’s alleged claim that he was a snitch, but complains that Martinez lied about

him and that his “feelings were hurt and still are.” (Id. at 5-6).

1. Labeling Birdo as a Snitch.

Labeling an inmate a “snitch” can give rise to an Eighth Amendment duty to protect

inmates from harm in certain circumstances. See Schreane v. Beemon, 575 F. App’x 486 (5th Cir.

2014) (“The Eighth Amendment duty to protect inmates from harm can be violated when a prison

official acts with deliberate indifference by exposing a prisoner to physical assault through labeling

him a ‘snitch’ to other inmates.”). However, that duty is violated only when the inmate suffers an

actual physical injury as a result of being labeled a snitch.

Numerous cases have addressed whether injury is required to demonstrate a constitutional

violation in the context of a failure to protect claim and have concluded that the dismissal is

warranted when no injury has occurred as a result of the defendant’s actions. See Walzier v.

McMullen, 333 F. App’x 848, 851 (5th Cir. 2009) (upholding summary judgment in favor of the

defendants where there was no proof of harm to the plaintiff from co-inmates and, “[a]bsent a

against him also states no viable claim, under the standards set forth above, especially because the officer

apparently refused to do so. (ECF 17 at 9).

showing that other inmates harmed [the plaintiff], there is no factual basis for a failure to protect

claim”); Castellano v. Treon, 79 F. App’x 6, 7 (5th Cir. 2003) ([inmate’s] failure-to-protect claim

fails because “he concedes that he suffered no actual physical injury resulting from the prison

officials’ purported failure to protect”). While the Court accepts all well-pleaded facts as true and

in a light favoring the plaintiff, the Court does not accept “conclusory allegations, unwarranted

factual inferences, or legal conclusions.” Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020)

(citation omitted). Because Birdo suffered no physical injury, he cannot state a constitutional

violation for failure to protect against Martinez, and that claim should be dismissed as frivolous.

2. Complaints About the Grievance Process.

Birdo’s allegations against Shiwart and Martinez amount to nothing more than a claim that

his grievance was not resolved to his satisfaction. “Prisoners do not have a federally protected

liberty interest in having [their] grievances resolved to their satisfaction, and an alleged § 1983

due process violation for failure to investigate grievances is indisputably meritless.” Hill v. Walker,

718 F. App’x 243, 250 (5th Cir. 2018) (internal quotations omitted). The Fifth Circuit has stated

that an alleged violation of a prisoner’s due process rights resulting from prison grievance

procedures is a “legally nonexistent interest.” Geiger, 404 F.3d at 374. Further, even an intentional

cover-up does not amount to a constitutional violation. See Cunningham v. de la Vaga, 131 F.3d

141 (5th Cir. 1997) (per curiam) (“Regarding Cunningham’s contention that the defendants

conspired to cover up the attack …, Cunningham has not shown that the defendants violated any

constitutionally protected right.”). Accordingly, assuming the truth of the allegations in Birdo’s

Amended Complaint, his cause of action against Shiwart and Martinez regarding an improper

grievance investigation fails to state a viable due process violation and, therefore, should be

dismissed as frivolous.

K. Claims Against Nebiyu A. Tesfaw.

Birdo’s Amended Complaint alleges that Nebiyu A. Tesfaw (“Tesfaw”) discriminated

against him “by abusing his authority, treating Plaintiff with cruel and unusual punishment by

retaliating on Plaintiff to aid other staff members in mistreating Plaintiff.” (ECF 17 at 5). He states

that he was sent to pre-hearing detention after a fight with another inmate who was high on K-2 at

the time. (Id. at 1). When asked to elaborate in the Court’s questionnaire, Birdo states that Tesfaw

“did lock me up in [pre-hearing detention] out of retaliation[,] assisting Major Martinez who was

upset about [Birdo] reporting a [third] degree burn injury obtained in the kitchen.” (ECF 19 at 4).

The Eighth Amendment’s prohibition on cruel and unusual punishment requires prison

officials to “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan,

511 U.S. 825, 832 (1994) (internal citations omitted). To establish an Eighth Amendment

violation, Birdo must show that he was exposed to “a substantial risk of serious harm,” and “that

prison officials acted or failed to act with deliberate indifference to that risk.” Gobert v. Caldwell,

463 F.3d 339, 345-46 (5th Cir. 2006). “A prison official displays deliberate indifference only if he

(1) ‘knows that inmates face a substantial risk of serious bodily harm’ and (2) ‘disregards that risk

by failing to take reasonable measures to abate it.’” Arenas v. Calhoun, 922 F.3d 616, 620 (5th

Cir. 2019) (quoting Gobert, 463 F.3d at 346).

Birdo’s claims fall far short of this “extremely high standard.” See Arenas, 922 F.3d at 620

(quoting Domino v. TDCJ, 239 F.3d 752, 756 (5th Cir. 2001)). Birdo alleges only that Tesfaw

placed him in pre-hearing detention for an unspecified amount of time because Martinez was upset

that Birdo had reported a burn injury. He fails to allege any facts indicating that Tesfaw acted with

deliberate indifference. Birdo’s claims against Tesfaw should be dismissed as frivolous.

L. Claims Against Mike Marquez and Mark Allen.

Birdo sues Mike Marquez (“Marquez”) and Mark Allen (“Allen”) for claims arising out of

an incident in the prison kitchen whereby Birdo was “severely burned” while cooking. (ECF 17 at

12). Birdo claims that Marquez authorized Birdo to cook grits, which he had done several times

before, although Birdo was neither trained to do so nor assigned as a kitchen cook at the time. Hot

grits spilled onto Birdo’s wrist as he worked with the kitchen equipment. (Id.; ECF 19 at 6). Birdo

claims that Marquez and Allen threatened to write a false disciplinary case against him if he asked

for medical care since he was not assigned to them as a kitchen cook and they would be blamed

for his injury. (Id. at 3). As a result, Birdo states he was forced “to walk around for [three] days

with [third] degree boils causing infection.” (ECF 17 at 12). Birdo eventually asked another guard

to take him for medical care, and the guard did so. He states he was treated from November 2024

to January 2025 for the burn. (Id.).

A prison official’s deliberate indifference to the serious medical needs of a prisoner can

constitute a violation of the Eighth Amendment actionable under 42 U.S.C. § 1983. Estelle v.

Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference is an “extremely high standard to meet.”

Domino, 239 F.3d at 756. It requires a finding that the defendant “disregards a risk of harm of

which he is aware” and does not permit such a finding based on mere “failure to alleviate a

significant risk that [the person] should have perceived but did not[.]” Farmer, 511 U.S. at 836-

40. A plaintiff must show that the defendant “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.” Brewster, 587 F.3d at 770 (citation and internal

quotation omitted); see also McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)

(“Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant

to the conscience of mankind.”).

The deliberate indifference standard has both an objective and subjective component. See

Farmer, 511 U.S. at 834. To establish deliberate indifference, Birdo must show that Marquez and

Allen each were (1) aware of facts from which an inference of an excessive risk to Birdo’s health

or safety could be drawn, and (2) that they actually drew an inference that such potential for harm

existed. Id. at 837; Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). Under the subjective

prong of this analysis, a prison official acts with deliberate indifference “only if … he knows that

inmates face a substantial risk of serious bodily harm and … he disregards that risk by failing to

take reasonable measures to abate it.” Gobert, 463 F.3d at 346 (quoting Farmer, 511 U.S. at 847);

Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“Because society does not expect that prisoners will

have unqualified access to health care, deliberate indifference to medical needs amounts to an

Eighth Amendment violation only if those needs are ‘serious.’”).

Birdo sues Marquez and Allen for the three-day delay before he received medical care.

“[D]elay in medical care can only constitute an Eighth Amendment violation if there has been

deliberate indifference [that] results in substantial harm.” Easter v. Powell, 467 F.3d 459, 464 (5th

Cir. 2006) (per curiam) (alterations in original) (quoting Mendoza v. Lynaugh, 989 F.2d 191, 195

(5th Cir. 1993)). Birdo, however, has not alleged a serious medical need that either Marquez or

Allen knowingly disregarded.

A “serious medical need” is “one for which treatment has been recommended or for which

the need is so apparent that even laymen would recognize that care is required.” Gobert, 463 F.3d

at 345 n.12. “[T]he facts . . . must clearly evince the medical need in question and indicate that the

denial of treatment was much more likely than not to result in serious medical consequences.” See

Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Birdo alleges no facts showing that he

requested medical care from Marquez or Allen, nor has he alleged facts showing that he had a

“serious medical need” that was so apparent that even a layman would recognize the need for care.

See Alexander v. Tex. Dep’t of Crim. Just., 951 F.3d 236, 241 (5th Cir. 2020) (“To establish

deliberate indifference, the prisoner must show that the prison official knew of and disregarded an

excessive risk to inmate health or safety.”) (citation omitted). Birdo does not describe the burn or

provide any other facts showing that Marquez or Allen had a subjective understanding that Birdo

needed immediate medical attention for a serious injury that resulted from hot grits landing on his

wrist.

Birdo states that, at the time he received medical treatment, his arm had started blistering

and turning pink; however, he does not allege that the delay in medical care itself caused this

condition, rather than the burn. (ECF 19 at 5). Nor does Birdo allege any facts showing that the

delay in care caused an infection.6 Birdo’s conclusory statements do not meet his burden to plead

specific facts showing that either Marquez or Allen violated his Eighth Amendment rights. See

Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (stating that a Section 1983 plaintiff must

file a “short and plain statement of his complaint ... that rests on more than conclusions alone”);

Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1983) (explaining that

conclusory allegations will not suffice to prevent dismissal for failure to state a claim).

Accordingly, Birdo’s claims against Marquez and Allen should be dismissed as frivolous.

6Authenticated records show that Birdo had put mustard on the burn. When asked about it in the Court’s

questionnaire, Birdo neither confirmed nor denied the assertion. (ECF 19 at 5). Authenticated records

further indicate that Birdo refused several offers for medical treatment; although Birdo admits the truth of

this assertion, he claims he refused treatment due to his fear that Marquez and Allen would write him up.

(Id. at 4). However, he alleges no facts indicating that Marquez and Allen interfered with his eventual

request for medical care.

M. Claim for Injunctive Relief.

Birdo asks the Court for a preliminary injunction to restrain the Clements Unit mail room

from unreasonably delaying his receipt of mail. An injunction is “an extraordinary remedy and

should not issue except upon a clear showing of possible irreparable injury.” Lewis v. S.S. Baune,

534 F.2d 1115, 1121 (5th Cir. 1976). To obtain injunctive relief, a plaintiff must establish: (1) a

substantial likelihood that he will prevail on the merits; (2) a substantial threat that irreparable

harm will result if the injunction is not granted; (3) that the threatened injury outweighs the

threatened harm to the non-movant; and (4) that the granting of the preliminary injunction will not

disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). The plaintiff

“must satisfy a cumulative burden of proving each of the four elements enumerated before a

temporary restraining order or preliminary injunction can be granted.” Id. If the plaintiff fails to

satisfy any one of the four factors, injunctive relief will not issue. See, e.g., May v. Wells Fargo

Home Mortg., No. 3:12-CV-4597-D, 2013 WL 2367769, at *1 (N.D. Tex. May 30, 2013).

As stated above, Birdo has failed to show a substantial likelihood that he will prevail on

the merits of his claim against Gonzales regarding the Clements Unit mail system. Birdo’s claim

for injunctive relief should be denied.

N. Claim for Declaratory Judgment.

Birdo asks the Court for a declaratory judgment to overturn various court cases issued by

both the U.S. Supreme Court and the Fifth Circuit Court of Appeals. This Court is without the

power to provide such relief. Birdo’s request for a declaratory judgment should be denied as

frivolous.

O. Leave to Amend.

Ordinarily, a pro se plaintiff should be granted leave to amend his complaint prior to

dismissal. Brewster, 587 F.3d at 767-68. The district court is not required to allow such an

opportunity, though, if the prisoner’s claims are clearly frivolous, Eason v. Thaler, 14 F.3d 8, 9

(Sth Cir. 1994), or if the prisoner has pleaded his best case in the current complaint. Mendoza-

Tarango v. Flores, 982 F.3d 395, 402 (Sth Cir. 2020). Birdo has fully responded to the Court’s

two questionnaires and has amended his Complaint; therefore, leave to amend is unnecessary.

RECOMMENDATION

For the reasons stated above, the Magistrate Judge concludes that Birdo’s Heck-barred

claims should be DISMISSED WITH PREJUDICE until the conditions of Heck are met. Birdo’s

remaining claims should be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii), and Birdo should be issued a strike within the meaning of 28 U.S.C. § 1915(g).

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions

and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED August 29, 2025.

LEE ANN RENO

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28

24

U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections

with the United States District Clerk and serve a copy of such objections on all other parties. A

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds

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

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district

court. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc),

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery

Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275,

276–77 (5th Cir. 1988).