Opinion
2:00-CV-0172
August 13, 2001
REPORT AND RECOMMENDATION
Plaintiff NORMAN TANKSLEY, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff claims defendant SPRINKLE wrongly confiscated various property in violation of plaintiff's Fourth and Fourteenth Amendment rights to be free from "unjustified confiscation and depriviation [sic] of personal property." Plaintiff also claims defendant SPRINKLE violated plaintiffs "created liberty interest of the regulations of Texas Department of Criminal Justice-Institutional Division" by reading plaintiff's legal materials and confiscating two legal handbooks and a criminal appeals law book from plaintiff. Plaintiff alleges defendant SPRINKLE deliberately made a false statement on the disciplinary case he wrote plaintiff for possession of contraband, violating plaintiff's due process and tainting the disciplinary hearing.
Plaintiff further alleges defendant BRYAN refused to order the return of plaintiff's property, though he did say he might allow plaintiff to send the items home. Plaintiff alleges defendant BYARS, the Property Officer, destroyed or otherwise disposed of plaintiff's personal property without his consent and that defendant CASTRO refused to act on a complaint plaintiff sent to him.
Plaintiff requests compensatory and punitive damages.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his amended complaint and in his October 10, 2000, response to the Court's Questionnaire to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
In Hudson, the Supreme Court held "that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his cell." Hudson v. Palmer, 468 U.S. at 525-26, 104 S.Ct. at 3200; See, Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.),cert. denied, 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). The federal courts have found that the Fourth Amendment prohibition against unreasonable searches does not attach to the prison cell. The legitimate prison objective of maintaining constant security far outweighs any right of privacy a prisoner may have. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 60 L.Ed.2d 447 (1979); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495, (1974). Thus, to the extent plaintiff claims defendant SPRINKLE wrongly searched plaintiff's cell and his possessions, plaintiff's claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104L.Ed.2d338(1989).
Further, in the wake of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293.132 L.Ed.2d 418 (1995), plaintiff has no "created liberty interest of the regulations of Texas Department of Criminal Justice-Institutional Division". The failure of an officer to follow agency procedural regulations or even the relevant state law is not, without more, a constitutional violation, because the relevant constitutional minima may nevertheless have been satisfied. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979).
By his October 10, 2000, response to the Court's Questionnaire, plaintiff informs the Court that his appeal of the disciplinary case written by SPRINKLE for possession of contraband was denied and has indicated there was no favorable termination of the case. To bring a section 1983 claim based simply on the filing of a false disciplinary charge, a prisoner must show favorable termination prior to bringing suit. Woods v. Smith, 60 F.3d 1161, 1165 n. 16 (5th Cir. 1995) (citing Ordaz v. Martin, 5 F.3d 529 (5th Cir. 1993)(unpublished)). Drawing an analogy with malicious prosecution, the Fifth Circuit reasoned that absent proof of favorable termination there was no arguable basis for finding the violation of a federally protected right. Id. Consequently, plaintiff must demonstrate a favorable termination of the challenged disciplinary charge before he can assert a section 1983 claim on the basis that the charge was false. Thus, in this regard, plaintiff has failed to state a claim against defendant SPRINKLE on which relief can be granted.
Plaintiff's challenge to the deprivation and/or destruction of his property by defendants BRYAN, SPRINKLE, and BYARS is based upon such deprivation or destruction being wrongful, not in compliance with TDCJ regulations. Section 1983 will not support a cause of action if a person's property is taken by random and unauthorized conduct of a state actor and the state provides an adequate post-deprivation remedy. Cathey v. Guenther, 47 F.3d 162 (5th Cir. 1995). A prisoner's due process rights are not violated by the confiscation of property without regard to prison policy requiring notice and the opportunity to be heard, where the tort of conversion provides adequate post-deprivation remedies under Texas law.Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). Plaintiff's claim of wrongful deprivation and/or destruction of his property is a tort claim for which adequate due process exists in state court. Consequently, plaintiff's federal claim under section 1983 lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Further, to the extent any access to courts claim may be inferred from the presence of legal handbooks and a book on criminal appeals among the confiscated property, plaintiff was required to list the harm he suffered as a result of the confiscation and mentioned no impact of any kind on pending litigation. Thus, plaintiff has not stated an access to the courts claim on which relief can be granted.
As to plaintiffs claim against defendant CASTRO for failing to resolve plaintiffs complaint, the narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Plaintiff's claim against defendant CASTRO lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
For the reasons set forth above, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff NORMAN TANKSLEY be DISMISSED AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved 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 Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.