Petition for Writ of Certiorari — Reynaldo Flores, Petitioner v. Texas Department of Criminal Justice Transitorial Planning Department, et al.

Supreme Court briefDec 30, 2017

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Case: 15-41340

Document: 00514099044 Page: 1 Date Filed: 08/02/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-4.1340

Summary Calendar

FILED

August 2, 2017

Lyle W. Cayce

Clerk

Cons/w No. 16-40409

REYNALDO FLORES,

Plaintiff-Appellant

TEXAS DEPARTMENT OF CRIMINAL JUSTICE TRANSITORIAL

PLANNING DEPARTMENT SOUTHERN REGION INSTITUTIONS

DIVISION ET AL; MAYRA RUBIO SANCHEZ; EDWARD GARCIA; FRANCIS

OCHOA, San Antonio Police Department Officer; CASTELLANOS, San

Antonio Police Department Officer, et al,

Defendants-Appellees

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 2:14-CV-283

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:k

Reynaldo Flores, Texas prisoner # 1912036, appeals the dismissal of his

civil.rights lawsuit. We CONSOLIDATE the interlocutory appeal in No. 1541340 and the appeal from the final judgment in No. 16-40409 on our own

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

dR. R. 47.5.4.

nPPE/hcL9/X C

Case: 15-41340

Document: 00514099044 Page: 2 Date Fi led: 08/02/2017

No. 15-41340

c/w No. 16- 40409

motion. Accordingly, we DENY as unnecessary Flores's motion in No. 1640409 to incorporate the brief he filed in No. 15-41340.

Flores challenges the district court's finding that his wife, Mayra Rubio

Sanchez, and her boyfriend, Edward Garcia, were not state actors for purposes

of the civil rights statutes. We review de novo the dismissal of these allegations

under 28 U.S.C. § 1915(e)(2)(B)(11) for failure to state a claim on which relief

may be granted. Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). Flores

fails to identify factual content that he alleged in the district court that allowed

the court to draw the reasonable inference that Rubio Sanchez or Garcia were

willful participants in joint activity with state actors. See.Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).

Although Flores repeats allegations regarding the Bexar County and

LaSalle County defendants, he has failed to brief any challenge to the venuebased dismissal of his claims against them. Accordingly, he has "effectively

abandoned" those claims. Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008).

Similarly, the district court dismissed the claims against the Bee County

defendants regarding the deprivation of meals on the ground that he failed to

allege more than a de minimis injury, and the remaining claims against them

on grounds of sovereign immunity, mootness, and failure to state a claim on

which relief may be granted. Because Flores has failed to brief those grounds

for the dismissal of his respective allegations against the Bee County

defendants, has again "effectively abandoned" those claims. See id.; see also

Green v. Ferrell, 801 F.2d 765, 770-71 (5th Cir. 1986).

Accordingly, we AFFIRM the judgment of the district court. We DENY

Flores's motion to appoint a special master and for a subpoena duces tecum (in

No. 15-41340) and his motion to appoint a master and for a subpoena duces

tecum (docketed as a motion for extraordinary relief in No. 16-40409). See

United States v. Okoronkwo, 46 F.3d 426, 435 (5th Cir. 1995). We DENY as

Case: 15-41340

•

Document: 00514099044 Page: 3 Date Filed: 08/02/2017

No. 15-41340

ciw No. 16- 40409

unnecessary Flores's motion to substitute parties (docketed as

a motion for

• extraordinary relief in No. 16-40409). See FED. R. App. P. 43(c)(2).

APPEALS CONSOLIDATED; AFFIRMED; MOTIONS DENTED.

Case 2:14-cv-00283 Document 67 Filed in TXSD on 03/08/16 Page 1 of 1

United States District Court

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

REYNALDO FLORES,

FtArr.hflQ

lVUU ,.lI

David J. Bradley, Clerk

Plaintiff,

VS.

TDCJ TRANSITORIAL PLANNING

DEPART. SOUTHERN REGION INST.

DIVISION ET AL, et al,

CIVIL ACTION NO. 2:14-CV-00283

Defendants.

FINAL JUDGMENT

Pursuant to the Court's Order Adopting Supplemental Memorandum and

Recommendation on Remanded Claim (D.E. 65), the Court enters final judgment

dismissing this action with prejudice.

ORDERED this 8th day of March, 2016.

1111 mwap.,.. — 0'.

UNITED STATES DISTRICT JUDGE

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001

Case 2:14-cv-00283 Document 65 Filed in TXSD on 03/07/16 Page 1 of 3

United States District Court

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

REYNALDO FLORES,

March 08, 2016

David J. Bradley, Clerk

Plaintiff,

VS.

CIVIL ACTION NO. 2:14-CV-00283

TDCJ TRANSITORIAL PLANNING

DEPART. SOUTHERN REGION INST.

DIVISION ET AL, et al,

Defendants.

ORDER ADOPTING SUPPLEMENTAL MEMORANDUM

AND RECOMMENDATION ON REMANDED CLAIM

Pending before the Court for initial screening is Plaintiff's civil rights complaint

(D.E. 1). On November 17, 2015, United States Magistrate Judge Jason B. Libby issued

his Supplemental Memorandum and Recommendation on Remanded Claim (M&R, D.E.

54), recommending dismissal of Plaintiff's claim that he had been deprived of food while

incarcerated in the Texas Department of Corrections, Garza East and West Units,

Beeville, Texas, in violation of the Eighth Amendment prohibition against cruel and

unusual punishment. After obtaining an extension of time, Plaintiff filed his objections

(D.E. 61) on January 7, 2016.

Plaintiff's objections span over eighteen pages. However, the vast majority of the

matters discussed are unrelated to the M&R under consideration or any issues prompted

by that M&R. To the extent that Plaintiff fails to state specific objections to the findings

of fact and conclusions of law in the M&R, such objections are OVERRULED.

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Case 2:14-cv-00283 Document 65 Filed in TXSD on 03/07/16 Page 2 of 3

With respect to the alleged deprivation of meals, Plaintiff claims that Defendants

are "stealing the limited donations from Plaintiff [sic] trust fund, necessary to cover the

deprivation of meals on Saturdays and Sundays." D.E. 61, p. 8. While this may state a

complaint, it does not rise to the level of a complaint for cruel and unusual punishment

because it does not address whether the amount and timing of meals actually provided is

unconstitutional. This objection is OVERRULED.

Plaintiff also complains that, "[A] Discovery Phase and Jury Trial, will

demonstrate that Plaintiff was transferred from Bexar County Jail in inhumane conditions

due to the lack of meals or not worthy of Human consumption, for which lost an average

of 45 Pounds in County Jail." D.E. 61, p. 17. As pled, Plaintiff has challenged treatment

at the Garza Units, not county jail. Thus any lack of quantity or quality of meals leading

to weight loss in county jail is irrelevant here. Furthermore, the reason for screening the

complaint is to eliminate frivolous claims based on the facts provided by Plaintiff. A

general objection that discovery would produce evidence to support the claim is

misplaced when the claim, itself, is insufficient. See generally, Neitzke v. Williams, 490

U.S. 319, 327 (1989); Al-Raid v. Ingle, 69 F.3d 28, 33 (5th Cir. 1995). This objection is

OVERRULED.

Having reviewed the findings of fact, conclusions of law, and recommendations

set forth in the Magistrate Judge's M&R, as well as Plaintiff's objections, and all other

relevant documents in the record, and having made a de novo disposition of the portions

of the Magistrate Judge's M&R to which objections were specifically directed, the Court

OVERRULES Plaintiff's objections and ADOPTS as its own the findings and

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Case 2:14-cv-00283 Document 65 Filed in TXSD on 03/07/16 Page 3 of 3

conclusions of the Magistrate Judge. Accordingly, Plaintiff's claims related to the

deprivation of meals is DISMISSED WITH PREJUDICE. Having already dismissed

Plaintiff's other claims (D.E. 42), this action is DISMISSED WITH PREJUDICE.

ORDERED this 7th day of March, 2016.

NELL-VA GO-NZALL~; RAMOS

UNITED STATES DISTRICT JUDGE

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Case 2:14-cv-00283 Document 54 Filed in TXSD on 11/17/15 Page 1 of 8

United States District Court

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

REYNALDO FLORES,

November 17, 2015

David J. Bradley, Clerk

Plaintiff,

VS.

CIVIL ACTION NO. 2:14-CV-283

TDCJ TRANSITORIAL PLANNING

DEPART. SOUTHERN REGION INST.

DIVISION ET AL, et al,

Defendants.

SUPPLEMENTAL MEMORANDUM AND

RECOMMENDATION ON REMANDED CLAIM

By Order entered September 21, 2015, United States District Judge Nelva

Gonzales Ramos remanded for § 1915A screening of Plaintiffs Eighth Amendment

claim that, while he was confined at the Garza East and West Units in Beeville, Texas, in

2014, he was served no food on weekends. (D.E. 42, p. 12). Below are the findings and

recommendation on this claim.

JURISDICTION.

The Court has federal question jurisdiction over this civil rights action pursuant to

28 U.S.C. § 1331.

PROCEDURAL BACKGROUND.

The procedural background of this case is set forth in the June 15, 2015 Amended

Memorandum and Recommendation to Dismiss Action (D.E. 36), and need not be

repeated herein. For purposes of this supplemental memorandum, Plaintiff remains a

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Case 2:14-cv-00283 Document 54 Filed in TXSD on 11/17/15 Page 2 of 8

prisoner in the Texas Department of Criminal Justice, Criminal Institutions Division

(TDCJ-CID), and is confined at the Cotulla Unit in Cotulla, Texas. He is currently

serving a ten-year sentence out of Bexar County, Texas, entered on December 3, 2012,

for assaulting a family member. Plaintiff is a Mexican National with an immigration

hold against him.

By Amended Memorandum and Recommendation entered June 15, 2015, the

undersigned recommended that Plaintiff's action be dismissed for failure to state a claim

and/or as frivolous, and that his request for a Temporary Restraining Order be denied.

(D.E. 36). On September 21, 2015, the Court adopted the recommendation in part and

dismissed all of Plaintiff's claims, save and except his allegation that he was denied food

on the weekends while detained at the Garza East and West Units. (D.E. 42). No final

judgment was entered. On October 1, 2015, Plaintiff filed a Notice of Interlocutory

Appeal. (D.E. 44).

On October 16, 2015, a supplemental Spears' hearing was conducted.

III. PLAINTIFF'S EVIDENCE REGARDING FOOD CLAIM.

Plaintiff arrived at the Garza West Unit on March 13, 2014.2 On April 7, 2014, he

was transferred to the Garza East Unit. On June 29, 2014, he was transferred to the

Cotulla Unit. Thus his denial of food on the weekends claim spans from March 13, 2014,

until June 29, 2014, approximately three and a-half months.

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

Plaintiff was also confined at the Garza West Unit from May 27, 2011 through September 30, 2011. He filed his

original complaint on June 30, 2014, and any claim from 2011 is barred by limitations. See Jacobsen v. Osborne,

133 F.3d 315, 319 (5th Cir. 1998) (federal court borrows forum state's general personal-injury limitations provision,

and in Texas, that period is two years).

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Case 2:14-cv-00283 Document 54 Filed in TXSD on 11/17/15 Page 3 of 8

Initially, Plaintiff testified that he received "no food at all" on the weekends while

confined at the Garza East and West Units in 2014. However, upon additional

questioning, Plaintiff admitted that he received both breakfast and dinner on weekends,

but did not receive lunch. On Saturdays and Sundays, the Garza East and West Units

served only two meals a day: a breakfast, served between 5:00 and 7:00 a.m., and a

dinner, served between 4:00 and 6:30 p.m. When Plaintiff questioned prison officials

about this practice, he was told that prisoners get double servings at breakfast and dinner

on the weekends, thus justifying no lunch. Plaintiff filed several grievances with prison

officials complaining about the failure to provide three meals a day but those grievances

were destroyed or otherwise "interfered with," and his request to appoint a special master

to look into the matter was denied by prison authorities.

Plaintiff claims that he is suing Brad Livingston, the TDCJ Executive Director and

"all of his subordinates" in charge of food services because they orchestrated a

conspiracy to deny Plaintiff his Eighth Amendment rights. Plaintiff is suing Major Harris

of the Garza East Unit because, after Plaintiff complained to him about the denial of

lunch as cruel and unusual punishment, Major Harris responded on June 26, 2014 that, he

had a "license to torture inmates," and he did nothing to remedy the situation. Plaintiff

claims that Major Harris is "an enemy of the Constitution."

Plaintiff is 43 years old. He is 5'11" tall and weighs between 155-160 pounds.

His weight has remained fairly consistent throughout his time in the TDCJ-CID. When

he has money in his inmate account, he is able to purchase food at the prison commissary.

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Case 2:14-cv-00283 Document 54 Filed in TXSD on 11/17/15 Page 4 of 8

Plaintiff is seeking compensatory and punitive damages for the violation of his

Eighth Amendment rights while at the Garza East and West Units.

IV. DISCUSSION.

Plaintiff maintains that Defendants violated his right to be free from cruel and

unusual punishment when they denied him lunch on the weekends between March 13,

2014 and June 29, 2014.

The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const.

amend. VIII. Prison officials must provide humane conditions of confinement; ensure

that inmates receive adequate food, clothing, shelter, and medical care; and take

reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S.

825, 832 (1994). Conditions that result in "unquestioned and serious deprivations of

basic human needs" or "deprive inmates of the minimal civilized measure of life's

necessities" violate the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8-10

(1992); Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Such a violation occurs when a

prison official is deliberately indifferent to an inmate's health or safety. Farmer, 511

U.S. at 834. Deliberate indifference is more than mere negligence. Id. at 835. To act

with deliberate indifference, a prison official must both know of and disregard an

excessive risk to inmate health or safety; the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists and he

must also draw the inference. Id. at 837.

Prisoners are guaranteed a nutritionally adequate diet. See Wilson v. Seiter, 501

U.S. 294, 303 (1991). However, withholding of food does not per se constitute an

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Case 2:14-cv-00283 Document 54 Filed in TXSD on 11/17/15 Page 5 of 8

objectively serious deprivation in violation of the Constitution. Reed v. McBride, 178

F.3d 849, 853 (7th Cir. 1999). The circumstances, nature, and duration of a deprivation

of life's necessities must be considered in determining whether a constitutional violation

has occurred. "In general, the severity and duration of deprivations necessary to state a

constitutional violation are inversely proportional, so that minor deprivations suffered for

short periods would not rise to an Eighth Amendment violation, while 'substantial

deprivations of shelter, food, drinking water, and sanitation' may meet the standard

despite a shorter duration." Deapain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)

(quoting Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 1999)); see also Whitnack v.

Douglas County, 16 F.3d 954, 958 (8th Cir. 1994).

In Green v. Ferrell, 801 F.2d 765, 770-71 (5th Cir. 1986), prisoner-plaintiffs

brought a class action lawsuit complaining about the conditions of confinement in a

Mississippi county jail, including that the Adams County Jail served only two meals a

day. The case was tried before a magistrate judge and he ordered injunctive relief inter

alia, on the food claim, stating: "The jail must provide three nutritionally adequate meals

per day. The third meal may be in the form of a mid-day or bedtime light meal, so long

as the meal meets the recognized daily requirements both nutritionally and calorically."

Id. at 770. On appeal, the Fifth Circuit reversed the portion of the judgment requiring a

third meal. Id. at 771. The Fifth Circuit noted that none of the prisoner-plaintiffs had

alleged any medical problems caused by being served only two meals, and the mere fact

that experts might recommend three meals a day does "not create constitutional standards

under the eighth amendment."

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Id.

Thus, under Green, two meals a day may be

Case 2:14-cv-00283 Document 54 Filed in TXSD on 11/17/15 Page 6 of 8

constitutionally adequate on even a regular, permanent basis, let alone only two days a

week. See also, Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998) (finding it

"doubtful" that prisoners missing fifty meals in five months "was denied anything close

to a minimal measure of life's necessities," and commenting that "[m]issing a mere one

out of every nine meals is hardly more than that missed by many working citizens over

the same period."); Berry v. Brady, 192 F.3d 504, 506-08 (5th Cir. 1999) (finding that

denying an inmate eight meals over seven months because of the inmate's failure to

shave did not meet the objective component, and noting that the prisoner had not alleged

any specific physical harm, nor had he claimed that he lost weight or suffered other

adverse physical effects or had his health put at risk). And see Gardner v. Beale, 780 F.

Supp. 1073 (E.D. Va. 1991), aff'd 998 F.2d 1008 (4th Cir. 1993) (providing prisoner with

only two meals per day, with an 18-hour interval between dinner and brunch, did not

satisfy objective component of Eighth Amendment standard).

Between March 13, 2014 and June 29, 2014, there were sixteen (16) weekends, for

a total of 32 days. Plaintiff was confined at the Garza East/West Units a total of 108

days. If Plaintiff had received 3 meals a day for 108 days he would have received 324

meals. Instead, he received 3 meals a day for 76 days, which is 228 meals, plus 2 meals a

day for 32 days, or 64 meals, for a total of 292 meals. Thus, over 108 days, Plaintiff is

complaining about missing 32 meals out of 324.

More importantly, Plaintiff alleges no injury as a consequence of receiving two

meals a day on the weekends. Plaintiff testified that his weight has remained constant

throughout his time in the TDCJ; he has not suffered any significant weight loss, nor has

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Case 2:14-cv-00283 Document 54 Filed in TXSD on 11/17/15 Page 7 of 8

he been diagnosed with any medical condition attributable to poor nutrition or lack of

calories. Without some injury, Plaintiff cannot prevail on his Eighth Amendment claim

for damages against the named Defendants.3 See Hudson v. McMillian, 503 U.S. 1, 8-10

(1992) (to state an Eighth Amendment conditions of confinement claim, the harm

suffered from the alleged violation must be more than de minimis).

V. RECOMMENDATION.

Plaintiff claimed that he was denied all food on weekends and, after questioned

whether the records of Garza East and West Units would reflect as much, he clarified that

his complaint was he was not served lunch on the weekends. However, Plaintiff testified

that he did not suffer any injury as a consequence of receiving lunch on the weekends for

the 108 days he was confined at the Garza East and West Units in 2014. Accordingly, he

fails to state a cognizable Eighth Amendment violation, and it is respectfully

recommended that this claim be dismissed with prejudice as frivolous and for, failure to

state a claim pursuant to 28 U.S.C. §.1915e(2) and 1915A(b)(1).4 It is further

respectfully recommended that final judgment of dismissal be entered in this action.

ORDERED this 17th day of November, 2015.

Jason B. Libby

United States Magistrate Judge

Plaintiff repeatedly testified that he is seeking injunctive relief against the TDCJ-CID to stop the two-meals on the

weekends practice. Plaintiff was advised that those claims are properly maintained, if at all, in the jurisdiction in

which he is incarcerated, and would not be address herein.

It was previously recommended that the dismissal of this case count as a § 1915(g) strike. See D.E. 36, p. 22. This

claim need not receive a separate strike order.

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Case 2:14-cv-00283 Document 54 Filed in TXSD on 11/17/15 Page 8 of 8

NOTICE TO PARTIES

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

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

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

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

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

Court for the Southern District of Texas.

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

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

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

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

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

Auto Assn, 79F.3d 1415 (5th Cir. 1996) (enbanc).

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Case 2:14-cv-00283 Document 42 Filed in TXSD on 09/21/15 Page 1 of 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

REYNALDO FLORES,

Plaintiff,

VS.

TDCJ TRANSITORIAL PLANNING

DEPART. SOUTHERN REGION INST.

DIVISION ET AL, et al,

Defendants.

§ CIVIL ACTION NO. 2:14-CV-283

ORDER ADOPTING IN PART AMENDED MEMORANDUM

AND RECOMMENDATION TO DISMISS ACTION

Pending before the Court are Plaintiff's Complaint (D.E. 1), Plaintiff's Motion for

Extension of Time to File an Amended Complaint (D.E. 17), Plaintiff's Amended

Complaint filed with his Objections to the initial Memorandum and Recommendation

(D.E. 25), and Plaintiff's Motion for Order to Show Cause for a Preliminary Injunction

and a Temporary Restraining Order (D.E. 27). On June 15, 2015, United States

Magistrate Judge Jason B. Libby issued an Amended Memorandum and

Recommendation to Dismiss Action (Amended M&R, D.E. 36), recommending that

Plaintiff's Motion for Extension of Time be denied and that Plaintiff's Complaint be

dismissed. Plaintiff timely filed his Objections (D.E. 41) on July 29, 2015.

As set out more fully below, the Court GRANTS Plaintiff's motion for extension

of time (D.E. 17) and grants leave to file Plaintiff's amended complaint, made part of his

initial objections (D.E. 25). After a review of Plaintiff's amended claims, the Court

RETAINS the claim that inmates are deprived of food on weekends for further

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Case 2:14-cv-00283 Document 42 Filed in TXSD on 09/21/15 Page 2 of 15

determination of whether the claim is frivolous. This claim needs to be further developed

and screened because it is unclear who the claim is against. The Court DISMISSES the

remaining claims. The Court further DENIES the motion for a temporary restraining

order or preliminary injunction because Plaintiff has not pleaded sufficient likelihood of

success on the merits.

Plaintiff argues that the screening requirements of the Prison Litigation Reform

Act, 42 U.S.C. § 1997e; 28 U.S.C. §§ 1915(e)(2), 1915A, do not apply because he is a

political prisoner or immigration detainee. The records reflect, however, that he is

incarcerated in the Texas Department of Criminal Justice-Criminal Institutions Division

on a ten-year sentence for a family violence conviction—a fact that he does not dispute.

His objection to having his complaint subjected to screening is without merit and is

OVERRULED.

Plaintiff's objections (D.E. 41) comprise 52 pages of handwritten discussion that

includes a historical background of 42 U.S.C. §§ 1981-1989 and a repetition of all of his

claims. He alleges that he was kidnapped at gunpoint and is being held in captivity as a

result of a conspiracy involving his insane wife, her sexual partners, and domestic and

international terrorism. The purpose of the conspiracy was to appropriate his identity and

assets and to have his children "sold as livestock." The objections are stated in the form

of re-urging his amended complaint and thus contain little as to any alleged error in the

reasoning of the M&R.

Because Plaintiff's objections are based on the allegations in his amended

complaint, and for clarity in ruling on those allegations, the Court GRANTS Plaintiff's

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motion for extension of time to file an amended complaint (D.E. 17), and rules on his

claims as stated in the amended complaint, which is contained within his objections (D.E.

25) to a prior memorandum and recommendation (D.E. 19). The Court reviews

Plaintiffs claims on a party-by-party basis.

A. Plaintiff's Wife and Her Boyfriend

Plaintiff sues his wife, Mayra Rubio Sanchez (Sanchez), and her boyfriend,

Edward Garcia (Garcia). He alleges that they made false accusations against him (some

of which led to acquittals and some of which serve as the basis for his convictions) so

that they could sell his assets for their own gain. He alleges that they appropriated his

identity in order to obtain credit for their use and required him to pay debts before they

would allow him to visit with his children.

Plaintiff brings this action under 42 U.S.C. §§ 1981 et seq, claiming that he is

discriminated against because he is an immigrant. However, Sanchez and Garcia's

conduct is not conduct engaged in "under color of law" as required by 42 U.S.C. §

1981(c), 1983 because they are private individuals. Plaintiff alleges that Sanchez and

Garcia enlisted the assistance of Detective Vara and that Garcia introduced himself on

one occasion as "Sgt. Garcia," but that is not enough to make Sanchez and Garcia "state

actors." Plaintiff also claims that Sanchez and Garcia are "state actors" by virtue of a

conspiracy with law enforcement to conceal Plaintiff's exculpatory evidence. This

allegation is conclusory and speculative, without specific factual allegations to support it.

It fails the pleading test of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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The Court OVERRULES Plaintiff's objection and adopts the Amended M&R's

recommendation of dismissal of the claims against Sanchez and Garcia because they are

not state actors and did not engage in discrimination as required by the statutes under

which they are sued. D.E. 36, p. 12. Alternatively, the allegations regarding Sanchez and

Garcia involve events that took place in Bexar County. There are no allegations

connecting them to any location within the geographical jurisdiction of this Court. As

discussed more fully below, venue is not appropriate in this Court and the Court

dismisses the claims on that basis.

B. Bexar County Defendants

Plaintiff sues everyone connected with his arrest and the prosecution of the

criminal charges against him. Included are:

• San Antonio Police Department employees: Officer Francis Ochoa,

Officer Castellanos, Detective R. Vara, Detective R. Valadez, Sergeant

J. Porter, and Sergeant David Bierman, named for their actions in

arresting and holding Plaintiff pursuant to the criminal complaints made

against him.

• The Grand Jury foreman, with respect to the indictment against

Plaintiff.

• Bexar County prosecutors: Susan D. Reed, George Albritton "Britt"

Eastland, and Christopher W. DeMartino, named for their actions in

prosecuting the criminal complaints against Plaintiff.

• His attorney, Rebecca P. Bustamante, who defended him against the

criminal complaints until he received permission to represent himself

pro se. He alleges that Bustamante had an agreement with the District

Attorney which facilitated the conviction of immigrants and he alleges

other errors and omissions in his defense.

• Bexar County Juvenile Detention Officer, David Geyer, who Plaintiff

contends was a bribed witness in a conspiracy with Susan Reed.

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Case 2:14-cv-00283 Document 42 Filed in TXSD on 09/21/15 Page 5 of 15

• Kevin P. Yeary, the State's appellate counsel, for his work to gain

affirmance of Plaintiff's conviction.

• Bexar County District Clerk, Donna K. McKinney, and Supervisor of

Criminal Support, Alice Gonzales, for alleged failures to file, or

spoliation of, letters Plaintiff sent and for sending him copies of the

wrong documents or an incomplete copy of the right documents when

he sought his trial record.

• Former Chief Justice Catherine Stone and Justices Marialyn Barnard,

Rebeca Martinez, and Patricia Alvarez of the Fourth Court of Appeals

of Texas for their opinion affirming his conviction and orders refusing

to allow him untimely filing of documents.

• San Antonio Parole Board Officers or employees, Juanita Gonzales,

Anthony Ramirez, Charles Speier, and Jesus Salinas, for allegedly

participating in a conspiracy to keep him incarcerated and retaliating

against him for his effort to appeal his conviction and incarceration.

Plaintiff's complaints are made against these Defendants in their official and personal

capacities. While this Court dismisses these claims on procedural grounds (improper

venue), the Court notes that these complaints have questionable merit and are likely

barred by various privileges, immunities, and conditions precedent. The Court cautions

Plaintiff to carefully consider pursuing these claims given the three-strikes rule to which

he is subject. 28 U.S.C. § 1915(g).

Plaintiff has failed to allege any fact to show that these Defendants reside within

the geographical jurisdiction of the Southern District of Texas. The San Antonio Police

Department is located in Bexar County, where the events regarding Plaintiff's arrest took

place. Bexar County was the venue for his prosecution and the appeal of his conviction.

There is no suggestion that any evidence is more easily accessed through this Court than

through one located in Bexar County. As the Amended M&R observes, Bexar County is

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in the geographical jurisdiction of the Western District of Texas. 28 U.S.C. § 124(d)(4).

There are no allegations connecting the claims or evidence against these Defendants with

the Southern District of Texas.

Under the general venue statute, 28 U.S.C. § 1391(b)(1), (2), venue lies in the

place where the defendant resides or where a substantial part of the events or omissions

giving rise to the claim occurred. Plaintiff offers no allegation regarding where these

Defendants reside. Clearly, the events about which he complains took place in Bexar

County. Thus, under the venue statute, venue belongs in the Western District of Texas,

San Antonio Division.

Plaintiff was given notice that venue was incorrect for these claims and that the

Amended M&R recommended dismissal rather than transfer to the Western District. He

made only two arguments in defense of filing the claims in this Court: (1) all of the

claims must be joined together because they are sufficiently intertwined with the

complaints about the Garza East and Garza West Units, located in this District and

Division; and (2) the catchall provision of 28 U.S.C. § 1391(b)(3) applies.

The catchall provision does not apply where § 1391(b)(1) or (2) supplies an

available venue so that argument is without merit. With respect to the joinder of claims,

the Court disagrees. This is not a matter of multiple claims being made against a single

party, as provided for in Federal Rule of Civil Procedure 18(a). And while the claims

relate to Plaintiff's arrest, prosecution, conviction, appeal, and punishment for domestic

violence, the claims are not "such that he would ordinarily be expected to try them all in

one judicial proceeding." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725

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(1966). The claims involving the Garza Units are particular to the employees of that

facility and do not relate to the events that led to Plaintiff's incarceration there.

Therefore, his claims against the Bexar County Defendants are not properly brought in

this Court.

The Court finds that these claims are subject to dismissal for improper venue. 28

U.S.0 § 1406(a). Without adopting the Amended M&R's reasoning regarding a

jurisdictional basis for dismissal, the Court OVERRULES Plaintiff's objections and

adopts the Amended M&R's recommendation of dismissal of these claims without

prejudice.

C. LaSalle County Defendants

Plaintiff sues Warden Barber and Classification Officer J. Diaz with respect to

conduct occurring at the Cotulla Unit of TDCJ-CID. Included are allegations that the

conditions of confinement constituted cruel and unusual punishment in violation of the

Eighth Amendment. More specifically, Plaintiff complains of the facility being a "metal

cage" without ventilation where he was placed in solitary confinement for 25 days with

the temperature sometimes exceeding 100 degrees Fahrenheit.

The Cotulla Unit is located in LaSalle County, Texas. LaSalle County is in the

geographic jurisdiction of the Laredo Division of the Southern District of Texas. 28

U.S.C. § 124(b)(3). Just as with the Bexar County Defendants discussed above, there are

no allegations linking the La Salle County Defendants or their conduct to the Corpus

Christi Division of the Southern District of Texas. The Amended M&R provided notice

that these claims were not raised in the correct venue and that dismissal was

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recommended. Again, Plaintiff seeks to apply the catchall provision of the venue statute,

28 U.S.C. § 1391(b)(3), which does not apply when the correct venue is available. He

again seeks joinder of common claims, which is rejected.

Plaintiff also invokes the venue provision for multi-district litigation, 28 U.S.C. §

1407. This case does not qualify as multi-district litigation because it involves separate

claims against separate defendants. It is not a situation where several plaintiffs make

common claims against the same defendants. The Court OVERRULES Plaintiff's

objections and adopts the recommendation of the Amended M&R to dismiss the claims

against the LaSalle County Defendants. This ruling is based on improper venue rather

than the jurisdictional basis stated in the Amended M&R.

D. Bee County Defendants

The remaining Defendants, Mayor Harris, R. Trevino, Mitchell, and John Doe

employees of mailrooms, are sued in connection with their work at the Garza East and/or

Garza West Units of TDCJ-CID, both of which are located in Bee County, Texas. These

facilities are within the geographical jurisdiction of this Court. 28 U.S.C. § 124(b)(6).

Thus venue is appropriate in this Court for these claims.

As the Amended M&R concludes, the Eleventh Amendment prevents this Court

from exercising jurisdiction over certain claims. The Eleventh Amendment's effect on

this Court's jurisdiction is tantamount to granting state officials immunity from particular

claims. D.E. 36, pp. 13-14. Plaintiff argues that Eleventh Amendment immunity cannot

prevent his request for injunctive relief (and attorney's fees attendant to that claim) or

claims made against these Defendants in their personal capacities. However, the

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Amended M&R did not recommend dismissal of the injunctive relief claims or the claims

against Defendants in their personal capacities based on Eleventh Amendment grounds.

Thus this objection is OVERRULED.

Plaintiff's claims for injunctive relief against the Garza Units' officers are subject

to dismissal because they became moot upon his transfer from that facility. D.E. 36, p.

14 n.3. He objects to the dismissal, claiming that his rights continued to be violated in

the facility to which he was transferred. He cites Helling v. McKinney, 509 U.S. 25, 3536 (1993) and Williams v. Lane, 851 F.2d 867, 883-84 (7th Cir. 1988) in support, but

these cases are inapposite.

In Helling, the issue was whether the prison system exposed the inmate to a

substantial health risk by not protecting him from second-hand cigarette smoke.

Although the prisoner had been transferred from the facility in which his ceilmate had

been a heavy smoker, the Supreme Court held that the prisoner could proceed with his

claim because the danger had not necessarily subsided and that it was important to

determine the prison's liability in light of the ameliorative prison policies that had since

been put into effect. While the opinion acknowledged that injunctive relief had been

requested, the propriety of such relief under the circumstances there (which involved an

evolution in societal norms to which all prisons must be responsive) was not expressly

challenged.

Williams involved a class action brought on behalf of persons held in protective

custody whose rights to the free exercise of religion and access to the courts were

impaired by prison policies. The prison had failed to comply with previous orders and

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Case 2:14-cv-00283 Document 42 Filed in TXSD on 09/21/15 Page 10 of 15

the issue was whether a special master could lawfully be appointed to monitor and

supervise the prison's compliance. Here, Plaintiff's individual complaints in seeking an

injunction after leaving a facility that treated him in a manner he alleges was cruel and

unusual are not analogous to those in Williams.

Plaintiff attempts to link conduct in different facilities so that he can claim a single

harm that follows him throughout those TDCJ facilities. He contends that his complaints

about the Garza Units are part of one vast conspiracy that began with his arrest and

continues as he serves his sentence, wherever he may be serving that sentence. As

previously noted, Plaintiff's "vast conspiracy" allegations are conclusory and fail the

Twombly/Iqbal test. The Court OVERRULES Plaintiff's objection to the Amended

M&R's conclusion that his claim for injunctive relief was mooted upon his transfer from

the Garza Units.

Plaintiff also objects to the application of qualified immunity to the injunctive

relief claims because he alleges that the officers' actions were unreasonable. However

the Amended M&R did not apply qualified immunity to these claims so this Court

OVERRULES his objection as moot. The Court thus OVERRULES Plaintiff's

objections to the application of the Eleventh Amendment and adopts the Amended

M&R's recommendation to dismiss any claim for money damages against the Bee

County Defendants in their official capacities. The Court also adopts the Amended

M&R's recommendation to dismiss any claims for injunctive relief as moot.

Because Plaintiff also seeks damages against these Defendants in their personal

capacities, the Court reviews the substance of the allegations to determine whether they

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Case 2:14-cv-00283 Document 42 Filed in TXSD on 09/21/15 Page 11 of 15

are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28

U.S.C.A. §§ 1915(e), 1915A(b). The Amended M&R recommends dismissal of each of

the claims as lacking merit and further recommends that a dismissal of the claims count

as a "strike" under the three-strikes rule applicable to cases filed in forma pauperis. 28

U.S.C.A. § 1915(g).

1. Conditions of Confinement

The Amended M&R notes that in order to make a claim that a condition of

confinement violates the Eighth Amendment "cruel and unusual punishment" clause,

Plaintiff must plead facts that satisfy a two-pronged test: (1) that prison conditions were,

objectively, serious enough to have deprived him of the "minimal civilized measure of•

life's necessities" under contemporary standards of decency; and (2) that the responsible

defendants acted with deliberate indifference—that they knew of and disregarded a

substantial risk to an inmate's health or safety. D.E. 36, pp. 14-16. The Amended M&R

reasons that Plaintiff's allegations regarding conditions of confinement did not satisfy the

requirement of presenting a substantial risk to him of which Defendants were actually

aware.

In his objections, Plaintiff fails to state how the conditions he complains about,

including unsanitary conditions presented by pests, food quality, air quality,' or extreme

temperatures, pose a substantial risk of harm to him. His allegations are speculative and

conclusory and do not satisfy the pleading requirements of Twombly/Iqbal for the claims

alleged.

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case 2:14-cv-00283 Document 42 Filed in TXSD on 09/21/15 Page 12 of 15

The only exception is allegations that the Garza facility and all facilities within

Region IV of TDCJ-CID serve no food on weekends, thus depriving the inmates of food

on more than 110 days per year. The Amended M&R recites that Plaintiff did not

complain of being deprived of food. However, the amended complaint which the Court

allowed to be filed makes this allegation and Plaintiff's objections repeat the allegation.

While this claim lacks plausibility, the Court RETAINS this claim for further

determination of whether the claim is frivolous under the terms of the Prison Litigation

Reform Act.

The Court OVERRULES Plaintiff's objections to the Amended M&R and adopts

the recommendation to dismiss his complaints regarding unsanitary conditions posed by

pests, food quality, air quality, and extreme temperatures, retaining only the claim

regarding deprivation of food on weekends.

2. Denial of Access to Courts

In his objections, Plaintiff contends that he suffered an actual injury from the

Garza Units' interference with his access to courts in that his conviction was affirmed

(Case No. 04-12-00815-CR/14-50061) on or about June 25, 2014, his parole was denied

about the same date, and there was interference with his mail to the Human Rights

Organization and International Court of Human Rights in the Hague, Netherlands.

Plaintiff does not show any prejudice from the alleged interference with the appeal

of his conviction. The appeal had been fully briefed and the court affirmed the

conviction. At best, he was deprived of an opportunity to file a motion for rehearing and

perhaps further appeals. But Plaintiff does not allege any facts by which this Court could

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find that he would have succeeded in getting his conviction reversed had he engaged in

any further appeal. Likewise, he does not allege any facts to support his conclusion that

interference with his legal mail or supplies caused him to be denied parole. Without a

demonstration of prejudice from the alleged denial of access to courts, he has no viable

complaint. D.E. 36, pp. 19-20.

In addition, Plaintiff does not, demonstrate that the Hague has any jurisdiction to

effect any remedies on his behalf or that such remedies would have been implemented

had there been no interference with his legal mail or supplies. Again, Plaintiff has failed

to plead facts that would support a finding of prejudice. His conclusory complaints are

insufficient under Twombly/Iqbal. The Court OVERRULES Plaintiff's objections to the

Amended M&R with respect to claims for interference with his access to courts and

adopts the Amended M&R's recommendation to dismiss these claims.

3. Retaliation

Plaintiff objects to the Amended M&R's recommendation that his claim for

retaliation be dismissed, stating that it was not unusual for him to have a supply of stamps

and envelopes because he bought them at a time when he was not indigent. He claims to

need them because he acts as a jailhouse lawyer for other inmates and that Defendants are

retaliating against him for the legal work he does on behalf of others. While Plaintiff

describes this as a First Amendment issue, he does not describe his exercise of any First

Amendment right that allegedly triggered retaliation.

Plaintiff does not have a constitutional right to act as a jailhouse lawyer for other

inmates or to do so in a particular facility. Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996).

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Case 2:14-cv-00283 Document 42 Filed in TXSD on 09/21/15 Page 14 of 15

His argument, therefore, cannot supply the basis for a retaliation claim under 42 U.S.C. §

1983. consequently, Plaintiff has not stated a viable claim for retaliation. The court

OVERRULES his objection and adopts the Amended M&R's recommendation to dismiss

the retaliation claim.

E. Construction as Petition for Writ of Habeas Corpus.

Plaintiff occasionally suggests that his complaint should be construed as a petition

for writ of habeas corpus. Plaintiff complains of both conditions of confinement and the

fact or duration of confinement. The Court declines to treat this as a habeas case for three

reasons: (1) this case was filed as a civil rights complaint under 42 U.S.C. § 1983 and

addresses some complaints regarding conditions of confinement, which are not

appropriate in a habeas case; (2) the Court has dismissed the claims that most closely

challenge the fact or duration of his confinement for improper venue and they were not

addressed on their merits; and (3) Plaintiff specifically states that it is "imperative" that

the Court understand that he is not challenging his conviction in this case. D.E. 25, p. 10.

Having reviewed the findings of fact, conclusions of law, and recommendations

set forth in the Magistrate Judge's Amended Memorandum and Recommendation, as well

as Plaintiff's Objections, and all other relevant documents in the record, and having made

a de novo disposition of the portions of the Magistrate Judge's Amended Memorandum

and Recommendation to which objections were specifically directed, the Court

SUSTAINS Plaintiff's objection to the dismissal of his claim for deprivation of food and

RETAINS this claim for further investigation. The Court OVERRULES the remainder

of Plaintiff's Objections and ADOPTS IN PART AS MODIFIED the findings and

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Case 2:14-cv-00283 Document 42 Filed in TXSD on 09/21/15 Page 15 of 15

conclusions of the Magistrate Judge and DISMISSES the remaining claims.

Accordingly, the Court GRANTS Plaintiff's motion for extension of time (D.E. 17) and

grants leave to file Plaintiff's amended complaint, made part of his objections (D.E. 25).

The Court DENIES Plaintiff's motion for preliminary injunctive relief (D.E. 27).

ORDERED this 21st day of September, 2015.

en'"B-UNITED STATES DISTRICT JUDGE

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Case 2:14-cv-00283 Document 36 Filed in TXSD on 06/15/15 Page 1 of 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

REYNALDO FLORES,

Plaintiff,

VS.

TDCJ TRANSITORIAL PLANNING

DEPART. SOUTHERN REGION INST.

DIVISION ET AL,

Defendant.

CIVIL ACTION NO. 2:14-CV-283

AMENDED MEMORANDUM AND

RECOMMENDATION TO DISMISS ACTION

This civil rights action was filed by a Texas state prisoner pursuant to 42 U.S.C.

§ 1983. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321

(1996), any prisoner action brought under federal law must be dismissed if the complaint

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

monetary relief from a defendant immune from such relief. See 42 U.S.C. § 1997e(c); 28

U.S.C. §§ 1915(e)(2), 1915A. Plaintiff's action is subject to screening regardless of

whether he prepays the entire filing fee or proceeds as a pauper. Ruiz v. United States,

160 F.3d 273, 274 (5th Cir. 1998) (per curiam); Martin v. Scott, 156 F.3d 578, 580 (5th

Cir. 1998) (per curiam), cert. denied, 527 U.S. 1041 (1999). Plaintiff's pro se complaint

must be read indulgently, Haines v. Kerner, 404 U.S. 519, 520 (1972), and his allegations

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Case 2:14-cv-00283 Document 36 Filed in TXSD on 06/15/15 Page 2 of 23

must be accepted as true, unless they are clearly irrational or wholly incredible, Denton v.

Hernandez, 504 U.S. 25, 33 (1992).

Applying these standards, it is respectfully recommended that Plaintiff's claims

against the Garza Unit Defendants be dismissed with prejudice for failure to state a claim

and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), and that the

dismissal be counted as a "strike" for purposes of 28 U.S.C. § 1915(g). It is respectfully

recommended further that Plaintiff's remaining claims against the remaining Defendants

be dismissed without prejudice.

JURISDICTION.

The Court has federal question jurisdiction over this civil rights action pursuant to

28 U.S.C. § 1331.

PROCEDURAL BACKGROUND.

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

Institutions Division (TDCJ-CID), and he is currently confined at the Cotulla Unit in

Cotulla, Texas.

On June 30, 2014, Plaintiff filed his original complaint alleging unconstitutional

conditions of confinement while he was housed temporarily at the Garza East Transfer

Facility in Beeville, Texas, from April 7, 2014 through June 29, 2014. (D.E. 1). He

named as Defendants the TDCJ Transitorial Planning Department and Southern Regional

Institutional Division. Id. at 2.

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On August 21, 2014, Plaintiff was granted an extension of time until September

30, 2014 to file an amended complaint. (D.E. 13). On October 1, 2014, a Spears'

hearing was conducted. On October 29, 2014, the undersigned magistrate judge entered a

Memorandum and Recommendation (M&R) that Plaintiff's constitutional and retaliation

claims be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). (D.E. 19).

On November 17, 2014, Plaintiff was granted an extension of time until December 22,

2014 to file objections to the M&R. (D.E. 22). On December 22, 2014, Plaintiff filed a

notice of filing objections. (D.E. 23).

On December 29, 2014, Plaintiff filed a 297-page pleading entitled "Objection to

Memorandum-Recommendation to Dismiss Action and Amended Complaint." (D.E.

25). In his amended complaint, Plaintiff is no longer suing the TDCJ Transitorial

Planning Department and Southern Regional Institutional Division. (D.E. 25, p. 1).

However, he has named as Defendants his ex-wife Mayra Rubio Sanchez, the

complainant and victim in both criminal actions; six (6) San Antonio police officers;

several Bexar County District Attorneys; his court-appointed trial and appellate counsel;

justices on the Fourth Court of Appeals; and members of the State of Texas Board of

Pardons and Paroles. (D.E. 25, pp. 1, 7-8, 15-20). Plaintiff has named also two prison

officials assigned to the Cotulla Unit, Warden Barber and Officer Diaz. (D.E. 25, pp. 1,

19). Finally, Plaintiff has sued the following Garza Unit officials/employees: (1) Major

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

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

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Harris; (2) Officer R. Trevino; (3) Officer Mitchell; and (4) John and Jane Does working

in the Garza West Unit Mail Room. (D.E. 25-1, PP. 24-27, and 25-2, pp. 1-2).

Plaintiff is suing all Defendants in their official and individual capacities. (D.E.

25, p. 1). He seeks an injunction ordering Defendants "to stop their harassment

campaign," as well as compensatory and punitive damages. (D.E. 25-2, pp. 24-25).

III. PLAINTIFF'S EVIDENCE AND ALLEGATIONS.

Plaintiffs criminal convictions.

On April 18, 2011, Plaintiff was found guilty of family violence with strangulation

against his wife, complainant Mayra Rubio Sanchez, in Cause No. 2011-CR-1002 in the

226th Judicial District Court of Bexar County, Texas, and sentenced to two (2) years in

the TDCJ-CID.2 (D.E. 25-3, pp. 1-3). His court appointed counsel was Defendant

Rebecca P. Bustamante. (D.E. 25-3, p. 1). While on parole for that offense, Plaintiff was

charged in a three-count indictment with aggravated kidnapping, sexual assault, and

family violence in Cause No. 2012-CR-1

in the 290th Judicial District Court of Bexar

County, Texas. (D.E. 25-5, pp. 1-9). On December 3, 2012, a jury found Plaintiff guilty

of assault/family violence and sentenced him to ten (10) years in the TDCJ-CID and

assessed a fine in the amount of $10,000.00 in Cause No. 2012-CR-1969. (D.E. 25-8, p.

1). Plaintiff was also convicted of unlawful restraint and sentenced to one-year

In his amended complaint (D.E. 25), Plaintiff has provided over 290 pages of his past criminal proceedings and

records, and the details provided herein are garnered from those documents.

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confinement in the county jail and assessed a fine of $4,000.00. Id. He was found not

guilty of aggravated kidnapping and sexual assault. (D.E. 25-5, pp. 2-3).

Represented by counsel, Plaintiff appealed his conviction in Cause No. 20 12-CR1969 to the Fourth Court of Appeals in Appeal No. 04-12-00815-CR. (D.E. 25-5, pp. 1038). On April 15, 2013, the Fourth Court of Appeals heard arguments on Plaintiff's

motion to discharge his counsel and proceed on appeal pro se because Plaintiff believed

Defendant George Eastland was working in coercion with the prosecution. (D.E. 25-7, p.

11). The Fourth Court of Appeals granted his motion to proceed pro se (D.E. 25-7, pp.

19), and on December 12, 2013, Plaintiff filed a reply brief to the State's response. (D.E.

25-6, pp. 1-29). On June 25, 2014, the Fourth Court of Appeals affirmed Plaintiffs

convictions. (D.E. 25-8, pp. 1-14). There is no documentation to suggest that Plaintiff

filed a Petition for Discretionary Review (PDR) with the Texas Court of Criminal

Appeals; however, in his amended complaint, Plaintiff states that he filed a writ of

certiorari with the United States Supreme Court, No. 14-50061. (D.E. 25-2, p. 2).

Original Complaint allegations.

In his original complaint, Plaintiff introduces himself as a "jail house lawyer" and

"sentinel of human rights in Texas." (D.E. 1, p. 1). He claims that his current

incarceration in Cause No. 2012-CR-1 969 is the result of "premeditated kidnapping" and

a "malicious conspiratorial trial" involving his appointed defense counsel, the prosecutor,

and the trial court. He correctly points out that the jury actually found him not guilty of

aggravated kidnapping and sexual assault, but claims he was "unconstitutionally rePage 5 of 23

Case 2:14-cv-00283 Document 36 Filed in TXSD on 06/15/15 Page 6 of 23

convicted" for assault of Mayra Rubio Sanchez arising from his earlier conviction in

Cause No. 2011-CR-1002. Plaintiff claims that his current conviction wrongfully

includes the earlier 2011 conviction in violation of the double jeopardy clause.

On April 7, 2014, Plaintiff was transferred from the Bexar County Jail to the

Garza East Transfer Facility. (D.E. 1, p. 3). Plaintiff claims that he was subjected to

"continuous harassment" and "the spoliation of [his] personal and legal mail" in

retaliation for his exercising his right of access to the courts, as well as for assisting

"thousand[s] of vulnerable immigrants and illiterate American citizens.

.."

to their right

of access to the courts. Id.

At the October 1, 2014 Spears hearing, Plaintiff testified that on June 26, 2014, the

"harassment campaign" became even more evident. Plaintiff was cleaning the shower,

Officer Mitchell arrived and ordered Plaintiff to come to Dorm 6 sally port. Plaintiff

arrived at the sally port and found Officer R. Trevino "tampering and reading [Plaintiff's]

reporter's record and clerk's record and [she] took possession of 80 postage stamps and

stamped envelopes.., without legal reason to confiscate them...". (D.E. 1, p. 3). Plaintiff

informed Officer Trevino that he had legally purchased the stamps at the prison

commissary and that he had a constitutional right to be a jail house lawyer and to assist

other inmates with their litigation. However, Officer Trevino kept the stamps and

envelopes.

The harassment of Plaintiff continued. Plaintiff recently filed on behalf of another

inmate a complaint before the International Court of Human Rights in which Plaintiff

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Case 2:14-cv-00283 Document 36 Filed in TXSD on 06/15/15 Page 7 of 23

furnished to that court "material evidences of the modis operandi (sic) of the Texas

Judicial System, and innocence of at least 80% of prisoners wrongfully convicted." (D.E.

1, p. 4). However, this correspondence was tampered with and opened, and Plaintiff has

no proof that it was received by the Hague Court in the Netherlands.

Id.

Other

correspondence has been lost and/or stolen. For example, Plaintiff received on May 29,

2014 correspondence from the Fifth Circuit dated May 6, 2014, giving him 30 days to

respond to a district court's denial of his motion to proceed in forma pauperis with no

explanation for the delay. Plaintiff testified that he was able to submit the i.f.p.

application timely, but the delay "caused him stress." He represented himself on his

criminal appeal and he did not miss any deadlines.

In addition to the myriad of First Amendment violations, Plaintiff complains he

and the other inmates are subjected to unsanitary and unhealthy conditions in the Garza

East dorms, including bacteria and mold. Plaintiff obtained the signatures of twentyeight other inmates complaining about the conditions and submitted the complaint to the

Mayor of Beeville. Warden Pawelek told Plaintiff that he would get transferred if he

complained about the conditions, and on June 29, 2014, he was transferred to the Cotulla

Unit. Plaintiff claims that he filed grievances protesting the transfer as being in violation

of the Eighth Amendment, but his grievances were denied.

With his original complaint, Plaintiff filed the affidavit of Offender Hector

Edwardo Vasquez attesting to the unsanitary conditions at the Garza East Unit. (D.E. 11, pp. 5-6). On September 10, 2014, Plaintiff filed the affidavit of Offender Victor Diaz,

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a Cotulla Unit inmate, who testifies to the "philanthropic legal work" Plaintiff performs

for others. (D.E. 15, pp. 1-2). Plaintiff also offers the affidavit of Offender Tommy

Harris, also at the Cotulla Unit, who testifies that, since engaging the legal assistance of

Plaintiff, he has suffered retaliatory conduct by prison staff. (D.E. 16, pp. 1-2).

Amended Complaint allegations.

In his amended complaint, Plaintiff is suing various individuals that were involved

in his criminal convictions, some of whom are not state actors. He claims that his exwife, Mayra Rubio Sanchez is insane and that her charges against him were fabricated.

(D.E. 25, p. 12). He is suing Edward Garcia alleging that this individual took advantage

of Ms. Rubio Sanchez' insanity and vandalized Plaintiff's warehouse and storage units.

(D.E. 25, pp. 13-14). Plaintiff is suing San Antonio Police Officers Ochoa, Castellanos,

Vara, Valadez, Porter and Bierman for, inter alia, arresting him on false charges. (D.E.

25, pp. 15-21). He is suing Rebecca Bustamante, his appointed counsel in Cause No.

2011 -CR- 1002, for ineffective assistance of counsel, and George Eastland, his counsel in

Cause No. 2012-CR-1969, for conspiring with the prosecution to find him guilty. (D.E.

25, pp. 21-27). Plaintiff is suing Edward A. Garcia, Jr. as the foreman of the Bexar

County grand jury that issued the indictment in Cause No. 12-CR-1969. (D.E. 25, p. 2728). Defendant Susan Reed was the prosecuting District Attorney (DA) in Cause No.

2012-CR-1969, while Christopher Demartino was the Assistant DA. (D.E. 255 pp. 29-33

D.E. 25-1, pp. 1-4). Defendant David Geyer is a Bexar County Juvenile Detention

Center Officer. (D.E. 25-1, p. 5). Plaintiff claims that Mr. Geyer was a "false witness"

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against him. Id Defendant Kevin Yearly represented the State in Plaintiff's appeal to

the Fourth Court of Appeals. (D.E. 25-1, p. 8). Defendant Donna McKinney is the Bexar

County District Clerk and Plaintiff claims that she, "with evil intent," failed to file his

state habeas corpus petition in Cause No. 201 1-CR-1002 and engaged in other "trickery."

(D.E. 25-1, pp. 10-13). Alice Gonzales is the supervisor of the criminal support staff of

the Bexar County District Clerk's Office, and Plaintiff claims that this Defendant

conspired with DA Demartino to not furnish Plaintiff a copy of the record in Cause No.

12-CR-1969 as ordered by the Fourth Court of Appeals. (D.E. 25-1, pp. 13-14).

Plaintiff has sued four justices on the Fourth Court of Appeals, Catherine Stone,

Marilyn Barnard, Rebecca Martinez, and Patricia Alvarez, as they issued the opinion

affirming his convictions. (D.E. 25-1, pp. 14-20). Plaintiff is suing State Parole Board

members Juanita Gonzales, Anthony Ramirez, and Charles Speier alleging that they

denied his parole without sufficient evidence. (D.E. 25-1, pp. 20-22). Plaintiff claims

that Parole Officer Jesus Salinas threatened him and caused him to dismiss his appeal in

exchange for his release on parole. (D.E. 25-1, pp. 22-23).

As to the Garza Unit Defendants, Plaintiff claims that Major Harris knew of

unconstitutional conditions of confinement as it concerned the food, air quality, and

temperatures in the Garza East Unit. (D.E. 25-1, pp. 24-26). Plaintiff claims that

Defendants Trevino and Mitchell are "subordinates of Defendant Harris" and participated

in the violation of his Eighth Amendment rights. (D.E. 25-1, p. 27

D.E. 25-2, p. 1).

Plaintiff claims that the John and Jane Doe Defendants of the Garza West Unit mail room

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delayed his legal mail "with the evil intent to obtain the dismissal of Criminal Appeal No.

01-12-00815-CR and Federal Appeal No. 14-50061." (D.E. 25-2, p.2).

Finally, Plaintiff has sued Warden Matt Barber and Classification Officer Diaz,

both of the Cotulla Unit, alleging that these Defendants have violated his due process

rights in regards to finding him guilty of disciplinary violations without adequate notice

and hearing, have interfered with his right of access to the courts, and have denied him

adequate conditions of confinement. (D.E. 25-2, pp. 3-5).

IV.

LEGAL STANDARD.

Regardless of whether a plaintiff has properly exhausted his administrative

remedies, his action may be dismissed for failure to state a claim upon which relief can

be granted. 42 U.S.C. § 1997e(c)(2). "To state a claim under 42 U.S.C. § 1983, a

plaintiff must allege the violation of a right secured by the Constitution and laws of the

United States, and must show that the alleged deprivation was committed by a person

acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); see also Biliski

v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995). An action may be dismissed for failure to

state a claim when it is clear that the prisoner can prove no set of facts in support of his

claim entitling him to relief. Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). The

complaint must be liberally construed in favor of the prisoner and the truth of all pleaded

facts must be assumed. Id.

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V. DISCUSSION.

Plaintiffs Amended Complaint and Objections are untimely.

Plaintiff was granted an extension of time until September 30, 2014 to file his

amended complaint. (D.E. 13). He did not actually file an amended complaint until he

filed his objections to the M&R on December 29, 2014. (D.E. 25). He was granted an

extension of time until December 22, 2014 to file his objections to the M&R (D.E. 22),

but all he filed on that day was a 2-page "notice" of filing objections (D.E. 24); the actual

objections were not filed until a week later on December 29, 2014. (D.E. 25). However,

because neither Plaintiff's objections or amended complaint affect the recommendation

that Plaintiff's claims against the Garza Unit Defendants be dismissed with prejudice and

count as a § 1915(g) strike, and his remaining claims dismissed without prejudice, it is

respectfully recommended that the Court consider Plaintiff's objections and amended

complaint in assessing the disposition of this action.

No jurisdiction over Bexar County Defendants.

In his amended complaint (D.E. 25), Plaintiff has now named as Defendants

numerous individuals associated with his criminal convictions arising in Bexar County,

Texas. On their face, these claims appear to be wholly without merit and subject to

various valid defenses ranging from absolute prosecutorial and judicial immunity to

qualified immunity and limitations. However, the Court need not address the merits of

those claims as the state actor Defendants are alleged to live in Bexar County, Texas, and

that is also where the alleged constitutional violations are alleged to have occurred.

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Bexar County is located in the United States District Court for the Western District of

Texas, San Antonio Division. 28 U.S.C. § 124(d)(4). This Court does not have

jurisdiction over those claims, and it is respectfully recommended they be dismissed

without prejudice. Because they appear frivolous, it is not recommended that they be

transferred to the San Antonio Division.

Non-state actors.

Plaintiff has sued his former spouse and her friend, Edward Garcia. He does not

state where Ms. Rubio Sanchez resides but claims that Mr. Garcia lives in Corpus Christi.

Regardless of their residences, Plaintiff cannot sue either of these individuals for

violations of his constitutional rights under § 1983 because he fails to establish that either

of these Defendants was acting under color of state law and deprived him of a federal

right. Cinel v. Connick, 15 F.3d 1338, 1342 (5th Cir. 1994). Ms. Rubio Sanchez was

simply the complainant/victim in the State's criminal actions against Plaintiff, and Mr.

Garcia is charged only with assisting Ms. Rubio Sanchez in seizing Plaintiff's property.

These allegations fail to state cognizable constitutional violations, and it is therefore

recommended that they be dismissed.

Improper venue for Cotulla Unit Defendants.

Plaintiff is currently confined at the Cotulla Unit. In his amended complaint, he

added claims against Cotulla Unit Warden Matt Barber and Classification Officer Diaz

objecting to their handling of a disciplinary case against him as well as complaints about

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a fan and legal mail. In support of these claims, he has attached copies of his grievances

regarding those manners. (See D.E. 25-9, pp. 13-20).

The Cotulla Unit is located in La Salle County, Texas, which is located in the

Southern District of Texas, Laredo Division. 28 U.S.C. § 124(b)(3). Even if this Court

were to exercise jurisdiction over these claims, Defendants could raise the meritorious

defense of lack of personal jurisdiction. Moreover, venue is proper in the Laredo

Division. See 28 U.S.C. § 1391(b). Accordingly, it is respectfully recommended that the

Court dismiss these claims without prejudice to Plaintiff refihing them in the proper court

should he so desire. Again, it is not recommended that these claims be severed and

transferred because, on their face, they appear without merit. Moreover, the claims arose

in late 2014 and therefore Plaintiff has no imminent limitations deadline should he decide

to pursue them.

Claims against the Garza Unit Defendants.

(1)

Eleventh Amendment Immunity.

Plaintiff has sued the Garza Unit Defendants in their official and individual

capacities.

The Eleventh Amendment provides that "[t]he Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another state.. .." Const. amend. XI. This

withdrawal of jurisdiction effectively confers immunity from suit. P.R. Aqueduct and

Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 144 (1993). When a plaintiff files suit

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against state officials in their official capacities, the lawsuit is effectively one against the

State. Hafer v. Melo, 502 U.S. 21, 25 (1991). That is, a claim for monetary damages

against a state official in his or her official capacity is "no different from a suit against the

state itself," and consequently, is barred by the Eleventh Amendment.3 Will v. Mich.

Dep't of State Police, 491 U.S. 58, 71(1989). See also McKinley. v. Abbott, 643 F.3d

403, 406 (5th Cir.), cert. denied, 132 S. Ct. 825 (2011) ("Eleventh Amendment immunity

extends to state officials who are sued in their official capacities because such a suit is

actually one against the state itself."). The Fifth Circuit has repeatedly held that the

Eleventh Amendment bars claims for money damages against TDCJ officers in their

official capacities. See e.g., Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002).

To the extent Plaintiff is suing any Defendant in his or her official capacity for

money damages, those claims are barred by the Eleventh Amendment and it is

respectfully recommended that those claims be dismissed with prejudice.

(2)

Conditions of confinement.

In his amended complaint, Plaintiff argues that, in Warden Pawelek's absence,

Defendant Major Harris was in charge of the Garza East Unit and that, under his

supervision, Plaintiff was subjected to unconstitutional conditions of confinement

The Eleventh Amendment does not bar a plaintiff's claim for prospective injunctive relief. Ex pane Young, 209

U.S. 123, 159 (1908) (establishing exception to Eleventh Amendment immunity in cases where the alleged

constitutional violation is caused by a state official's actions or refusal to act within the authority of his or her

office). In this case, to the extent Plaintiff sought injunctive relief against the Garza Unit Defendants, his transfer

off that unit rendered those claims moot. See Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000) (request for

injunctive and declaratory relief becomes moot when inmate leaves the complained-of facility).

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involving unsanitary housing, inadequate food, poor air quality, and extreme

temperatures.