Opinion
No. 7:03-CV-228-R.
December 20, 2004
MEMORANDUM OPINION AND ORDER
ON THIS DATE, came on to be considered Defendants' Motion for Summary Judgment and the Court finds and orders as follows:
Plaintiff, an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas, filed this action pursuant to 42 U.S.C. § 1983. On November 24, 2003, questions were issued to Plaintiff, his answers to which were filed on December 24, 2003. Thereafter, process was issued and, on February 25, 2004, Defendants filed a Motion to Dismiss for Failure to State a Claim. On March 24, 2004, Defendants' motion was granted in part and all claims against Danny Horton were dismissed and all claims against the remaining Defendants in their official capacity were dismissed. On April 6, 2004, Defendants Richard Wathen, Dolores Thornton, Robert Fowler and Justin Houck filed their Answer. On October 14, 2004, Defendants filed their Motion for Summary Judgment. Plaintiff has not filed a response.
Plaintiff claims that, on August 15, 2003, Defendants denied him access to the courts by confiscating legal materials from him and that the unlawful taking of his legal materials was an act of retaliation against Plaintiff because of his activities as a prison "writ writer." Complaint ¶ V. Plaintiff alleges that, in addition to the confiscation of his legal materials, Defendants confiscated legal materials belonging to other inmates that were temporarily in his possession while he was providing legal assistance to the other inmates. Id. Wilson asks the Court to order the return of all legal materials taken by Defendants, to indemnify him for any judgments obtained against him by other inmates whose legal materials were taken, to award actual and punitive damages, to enjoin Defendants from retaliating against him and to prohibit any interference with his writ writing activities. See Complaint ¶ VI; Plaintiff's Supplement, filed on November 20, 2003.
A writ writer "is generally understood to mean a prisoner who files lawsuits, and/or assists other prisoners in the preparation or prosecution of lawsuits, usually against prison (or sometimes jail) authorities and including conditions of confinement and habeas cases and suits against law enforcement and court personnel." Johnson v. Rodriguez, 110 F.3d 299, 309-10 (5th Cir. 1997).
Prisoners have a constitutional right of adequate and meaningful access to the courts. E.g., Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 (1996); Bounds v. Smith, 430 U.S. 817, 821-23, 97 S.Ct. 1491, 1494-95 (1977); McDonald v. Steward, 132 F.3d 225, 230 (5th Cir. 1998). However, the right of access is not unlimited. "[I]t encompasses only `a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.'" Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th Cir. 1997) (quoting Lewis v. Casey, 518 U.S. 343, 356, 116 S.Ct. 2174, 2182 (1996)). In order to establish a claim for denial of access to the courts, a prisoner must demonstrate that he suffered some "actual injury." See Lewis v. Casey, 518 U.S. 343, 351-52, 116 S.Ct. 2174, 2180 (1996) (holding that actual injury is a constitutional prerequisite to maintaining a claim involving denial of access to the courts). This, in turn, requires proof that the denial of access "hindered [the inmate's] efforts to pursue a legal claim." Lewis, 518 U.S. at 351, 116 S.Ct. at 2180; see also McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998) (noting that, in order to prevail on a claim of denial of access to the courts, an inmate must demonstrate that his position as a litigant was prejudiced.).
Defendants concede that materials were confiscated from Plaintiff, but they state that the materials were confiscated as contraband because Plaintiff was improperly storing large stacks of papers without requesting and using approved fire-resistant containers thereby creating safety and fire hazards. Defendants Brief in Support of Their Motion for Summary Judgment pp. 21-23. Defendants assert (1) that Plaintiff was aware of the container storage requirement because he already had requested and had been given one additional container and (2) that Plaintiff could have had the confiscated materials delivered to any person on his visitors list or to his attorney, but failed to request any such disposition of the property. Id. pp. 23-24. The summary judgment evidence submitted by Defendants supports their position. See Appendix to Defendants' Brief in Support of Their Motion for Summary Judgment pp. 6-11, 24-25 29-30.
Defendants further argue that Wilson's access-to-the-courts claim must fail because he suffered no actual injury as a result of their actions. Wilson states, and the U.S. Party/Case Index confirms, that he had only one case pending at the time his materials were confiscated by Defendants, Wilson v. Texas Department of Criminal Justice, 5:02-CV-91-DF (E.D. Tex.). See Plaintiff's Answer to the Court's Question No. 2. That case was a petition for writ of habeas corpus wherein Wilson was challenging his conviction for the felony offense of sexual assault of a child and the resulting 99-year sentence. Review of the docket sheet for that case reflects that, on the date Plaintiff's legal materials were confiscated, the state had already filed its response to Wilson's petition and Wilson had already filed his reply. There was nothing remaining to be done in the case except await an order from the Court, whether it be final or interim. On July 16, 2004, Wilson's habeas petition was dismissed as barred by the statute of limitations. Thus, it is readily apparent that the August 15, 2003 confiscation of any legal materials pertaining to this case could have not prejudiced Wilson's position as a litigant. All briefing had been completed, all arguments had been submitted to the Court and it was ultimately determined that Wilson's petition, which was filed on April 29, 2002, was time-barred. Wilson did not appeal the Court's decision and he makes no claim that the confiscation of his materials hampered his ability to file a notice of appeal or engage in any future litigation. Because Defendants have demonstrated that Wilson's position as a litigant was not prejudiced as a result of the confiscated legal materials, Wilson cannot prevail on his claim that he was denied access to the courts.
This court can take judicial notice of another court's judicial actions. See Maher v. Hyde, 272 F.3d 83, n. 3 (1st Cir. 2001); Najjar v. Ashcroft, 257 F.3d 1262, 1283 (11th Cir. 2001); U.S. v. Jones, 29 F.3d 1549, 1553-54 (11th Cir. 1994) (a court may take judicial "notice of another court's ruling . . . for the limited purpose of recognizing the `judicial act' that the order represents or the subject matter of the litigation and related filings.").
Wilson seeks redress for denial of access to the courts on behalf of other inmates whose legal materials were confiscated from him by Defendants. Wilson makes no specific allegations in this regard, however he states generally that Defendants have prevented other inmates "from challenging their convictions on collateral review." Plaintiff's Second Supplemental Complaint, filed on November 20, 2003 at p. 8. Unfortunately, Wilson is not entitled to pursue claims on behalf of other inmates. A plaintiff who is seeking recovery for the injury allegedly suffered by another inmate has no standing to do so. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205 (1975); O'Hair v. White, 675 F.2d 680, 687 (5th Cir. 1982). Therefore, Plaintiff's claim that other inmates have been denied access to the courts because of Defendants' actions in confiscating the legal materials must be dismissed.
To the extent, if any, that Wilson seeks redress for the unlawful taking of property, his claim cannot proceed in this Court. The United States Supreme Court has held that the "unauthorized, intentional deprivation of property" does not constitute a civil rights violation if there exists a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204 (1984); accord Nickens v. Melton, 38 F.3d 183, 184-85 (5th Cir. 1994), cert. denied, 514 U.S. 1025, 115 S.Ct. 1376 (1995); Holloway v. Walker, 790 F.2d 1170, 1174 (5th Cir.) (finding no breach of federally guaranteed constitutional rights, even where a high level state employee intentionally engages in tortious conduct, as long as the state system as a whole provides due process of law), cert denied, 479 U.S. 984, 107 S.Ct. 571 (1986).
Wilson has the state common-law action of conversion available to remedy his alleged loss of property. Myers v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs when there is an unauthorized and unlawful exercise of dominion and control over the personal property of another which is inconsistent with the rights of the owner. Beam v. Voss, 568 S.W.2d 413, 420-21 (Tex.Civ.App.-San Antonio 1978, no writ). If Defendants exercised unauthorized control over Wilson's personal property, he has a factual basis to allege a cause of action in conversion. Such a common-law action in state court would be sufficient to meet constitutional due process requirements. Groves v. Cox, 559 F. Supp. 772, 773 (E.D. Va. 1983).
Next, Wilson claims Defendants unlawfully retaliated against him because of his prison writ writing activities. Prison officials may not retaliate against an inmate for the exercise of a constitutionally protected right. Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975 (1986). In order to show retaliation an inmate must: (1) allege the violation of a specific constitutional right, and (2) establish that the incident would not have occurred but for a retaliatory motive. Johnson v. Rodriguez, 110 F.3d 299, 313 (5th Cir.), cert. denied, 522 U.S. 995, 118 S.Ct. 559 (1997); Woods, 60 F.3d at 1166. This places a significant burden on the inmate. Mere conclusory allegations are insufficient to state a claim. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)).
In the case at bar, Plaintiff claims that Defendants confiscated legal materials from him in retaliation for his activities as a prison "writ writer" or "jailhouse lawyer." Inmates have a constitutional right of access to the courts. However, this right is not unlimited. It encompasses only a prisoner's reasonably adequate opportunity to file nonfrivolous legal claims challenging his conviction or his conditions of confinement. Johnson v. Rodriguez, 110 F.3d 299, 310-311 (5th Cir. 1997) (citing Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2182 (1996)). "[N]either any frivolous filings nor secondary litigation activity, i.e., legal research and writing that does not involve preparation of lawsuits challenging a writ writer's own conviction(s) or the conditions of his or her confinement, may comprise the basis of a retaliation claim." Johnson v. Rodriguez, 110 F.3d 299, 311 (5th Cir. 1997). The right of access to the courts is vested in the plaintiff or petitioner in a particular action and not in his writ writer. Id. Therefore, a person assisting an inmate in preparing and filing a lawsuit is not, himself, engaging in any constitutionally protected activity. See id.
In the instant case, the only reason given by Plaintiff for the alleged retaliatory conduct of Defendants is that he was a writ writer assisting other inmates in litigation. See Complaint and Plaintiff's two Supplements to his Complaint. Even assuming, arguendo, that Plaintiff had alleged retaliation for his own litigation activities, such a claim would fail. Prior to the incident at issue in this lawsuit, Plaintiff had filed two actions in federal court. The first was his petition for writ of habeas corpus in which he challenged his criminal conviction. This action had absolutely nothing to do with the Defendants in the instant case. Wilson's second action, a request for temporary restraining order, was dismissed as frivolous on November 20, 2002. Defendants in that action were never served and it is not likely that they were even aware of the lawsuit. Assuming that they were, it is not plausible that they waited almost one year to retaliate against Plaintiff for filing a lawsuit that was dismissed by this Court sua sponte as frivolous. Moreover, Richard Wathen was the only Defendant named in that action and in the instant case. With regard to the confiscation of Plaintiff's legal materials, Wilson's only allegation against Wathen is that he is responsible for the conduct of his subordinates. Plaintiff's Answer to the Court's Question No. 7. Clearly, there is no chronology of events alleged by Plaintiff that could show Wathen engaged in retaliation when Plaintiff concedes that it was the other Defendants who actually confiscated his legal materials and there is no allegation that Wathen was involved in that incident. To the extent that Wathen is named as a Defendant because of his supervisory position, there is no vicarious liability under the civil rights act. Monell v. Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978).
In his answers to the Court's questions, Wilson raises on additional factual allegation of retaliation against Wathen. He claims that, after a heated discussion with Wathen on April 6, 2002 involving Wilson's allegations of harassment and retaliation against writ writers, Wathen moved him to less desirable housing and took his job away. Here again, Plaintiff does not allege that he was engaged in any constitutionally protected activity. As of April 6, 2002, the date of the heated discussion with Wathen, Plaintiff had not filed any lawsuits in any federal court within the jurisdiction of the Fifth Circuit and he makes no claim that Wathen's alleged actions were taken in retaliation for any state court filings. Moreover, Defendants have submitted competent summary judgment evidence demonstrating that the changes in Plaintiff's custodial status and assignments were due to TDCJ policy changes rather than any unilateral conduct on the part of Wathen. Defendants' Brief in Support of Their Motion for Summary Judgment pp. 17-19; Appendix to Defendants Brief in Support of Their Motion for Summary Judgment pp. 10 48-50. Because Plaintiff has not shown that the alleged retaliation was in response to his exercise of a constitutionally protected activity and because he has failed to allege a chronology of events from which retaliation may plausibly be inferred, he cannot prevail on his claim of retaliation.
Summary judgment is proper when the pleadings and evidence illustrate that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir. 1991). Disputes concerning material facts are genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Substantive law provides that an issue is "material" if it involves a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The nonmovant is not required to respond to the motion until the movant properly supports his motion with competent evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). However, once the movant has carried his burden of proof, the nonmovant may not sit idly by and wait for trial. Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988).
When a movant carries his initial burden, the burden then shifts to the nonmovant to show that the entry of summary judgment is inappropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53; Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). Although the nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent evidence, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden," Douglass, 79 F.3d at 1429, as "the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Merely colorable evidence or evidence not significantly probative, however, will not defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Furthermore, a mere scintilla of evidence will not defeat a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).
Summary judgment evidence is viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). In addition, factual controversies are resolved in favor of the nonmovant, but only when both parties have submitted evidence of contradictory facts, thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In the absence of any proof, however, the Court does not assume that the nonmovant could or would prove the necessary facts. Id.
In making its determination on the motion, the Court looks at the full record including the pleadings, depositions, answers to interrogatories, admissions, and affidavits. Fed.R.Civ.P.56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). However, "the [Court's] function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. The movant's motion for summary judgment will be granted if he meets his burden and the nonmovant fails to make the requisite showing that a genuine issue exists as to any material fact. Fed.R.Civ.P.56(c); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1119 (5th Cir. 1992).
The summary judgment evidence presented in this case establishes that there are no genuine issues of material fact and that Defendants are entitled to summary judgment as a matter of law.
IT IS THEREFORE ORDERED that, for the forgoing reasons and for the reasons stated by Defendants in their Brief in Support of Their Motion for Summary Judgment, Defendants' Motion for Summary Judgment is GRANTED and Plaintiffs complaint is dismissed with prejudice.
IT IS FURTHER ORDERED that, to the extent, if any, Wilson presents a claim that his property was unlawfully taken, that claim is dismissed without prejudice.
Copies of this order shall be transmitted to the parties.