# Birdo v. Abbott

> District Court, N.D. Texas · August 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11145873

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** August 29, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11145873

## How later opinions describe it (automated extraction)

- holding that prisoners do not have a federally protected liberty interest in having grievances resolved to their satisfaction
- concluding that commissary and cell restrictions do not implicate due process concerns
- 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
- finding that abrasions to hands and knees, some neck and back pain, and unspecified problems with asthma are de minimis injuries

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11145873. Public record. Not legal advice.