Gonzales v. Gross et al, No. 4:2017cv03190 - Document 19 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER denying as moot 17 MOTION to Strike 16 Order, dismissing with prejudice 1 Complaint. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Gonzales v. Gross et al Doc. 19 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ANDREW GONZALES, TDCJ #1289340, Plaintiff, MATT GROSS, et al., David J. Bradley, Clerk § § § § § § v. June 27, 2018 CIVIL ACTION NO. H-17-3190 § § § Defendants. MEMORANDUM OPINION AND ORDER The plaintiff, Andrew Gonzales (TDCJ #1289340), has filed a Verified Complaint for Declaratory and Injunctive Relief under 42 U.S.C. § 1983 ("Complaint") (Docket Entry No. 4), concerning the conditions of his confinement in the Texas Department of Criminal Justice Correctional Institutions Division ( "TDCJ") . At the court's request, Gonzales has provided Plaintiff's More Definite Statement of his claims (Docket Entry No. 9) i and the State Attorney General's Office has submitted a report under Martinez v. Aaron, 570 F.2d 317 (lOth Cir. 1987) ("Martinez Report") (Docket Entry No. 13), as well as a Supplement to that report, which has been filed under seal (Docket Entry No. 14) . 1 After considering all of the pleadings, the court concludes that the Complaint should be dismissed for the reasons explained below. 1 Gonzales has filed a "Motion to Strike or Suspend" the court's Order placing the Supplement under seal (Docket Entry No. 17). Because Gonzales subsequently filed a "Notice" stating that he wishes to withdraw that request (Docket Entry No. 18, p. 2), this motion will be denied as moot. Dockets.Justia.com I. The Complaint in Background this case sterns from proceeding that occurred at the Estelle Unit, currently incarcerated. 2 employed by TDCJ proceeding, Major R. Townsend, Classification disciplinary where Gonzales is Gonzales sues several prison officials in connection with including: a the consequences of that Assistant Regional Director Matt Gross, Chief Coordinator of Classification John Doe, and Debbie Assistant Ballard, Warden Christopher Lacox. 3 Gonzales alleges that on September 7, 2014, he was involved in an altercation with an officer who is not a party to this lawsuit (Officer Lenderman) was charged 20150010578. 5 with 4 As a result of this altercation, Gonzales a disciplinary violation in Case Number Records provided by the Attorney General's Office show that Gonzales and three other offenders were charged in that case with participating in an altercation that included assaults on multiple officers. 6 Gonzales was charged with participating in a riot with the other offenders that "resulted in a major use of Cornplaint, Docket Entry No. 4, p. 2. For purposes of identification, all page numbers refer to the pagination at the top assigned to each docket entry by the court's electronic filing system, CM/ECF. 2 3 Id. at 2-3. 5 Plaintiff's More Definite Statement, Docket Entry No. 9, p. 3. 6 TDCJ Disciplinary Report and Hearing Record, No. 13-1, p. 58. -2- Docket Entry force and injuries to officers." 7 The accusing officer stated that Gonzales "struck [him] in the face with a closed fist" during the altercation. 8 A disciplinary hearing officer found Gonzales guilty as charged of participating in a assaulting an officer (Offense riot Code (Offense Code in 03.3) that 08.0) and case. 9 As punishment, Gonzales lost commissary and recreation privileges for 45 days and he also forfeited 349 days of previously earned good- credit. 10 time Gonzales filed grievances to challenge the conviction, but his appeal was unsuccessful. 11 Gonzales, Population, segregation, who G4 12 was subsequently medium claims that custody the transferred status" defendants to from "General administrative wrongfully imposed a Security Precaution Designator ("SPD") Code on his classification as a result of his disciplinary conviction in Case No. 20150010578. 13 The SPD Code was imposed based on evidence from the disciplinary 7 0ffense Report, Docket Entry No. 13-1, p. 59. 8 TDCJ Preliminary Investigation Report, Docket Entry No. 13-1, p. 62. 9 Complaint, Docket Entry No. 4, p. 5; TDCJ Disciplinary Report and Hearing Record, Docket Entry No. 13-1, p. 58. 10 TDCJ Disciplinary Report and Hearing Record, No. 13-1, p. 58. 11 Plaintiff' s pp. 4-5. 12 More Definite Statement, Docket Entry Docket Entry No. 9, Id. at 4. 13 Complaint, Docket Entry No. 4, p. 5; Plaintiff's Definite Statement, Docket Entry No. 9, pp. 5-6. -3- More case showing that Gonzales assaulted Officer Lenderman during the altercation that occurred on September 7, 2014. 14 Gonzales notes that an SPD Code is a "punitive classification code signifying to all TDCJ employees that [he] assaulted an employee causing him/her serious injuries." 15 Because of the SPD Code, Gonzales explains that he will be subject to a custodial classification with "heightened security" for at least 10 years. 16 Arguing that no officer was hurt during the incident that formed the basis for his disciplinary conviction, Gonzales contends that the SPD code was placed on his classification in retaliation for the grievances that he filed to challenge his conviction in Case No. 20150010578 and an unrelated disciplinary conviction that was entered against him on July 25, 2014, in Case No. 20140335050, for filing a fraudulent Commercial Code ( "UCC") financing 17 statement under the Uniform Gonzales also alleges that the SPD code was imposed arbitrarily based on false information in violation of due process. 18 14 Gonzales seeks declaratory and injunctive relief in Plaintiff's More Definite Statement, Docket Entry No. 9, pp. 2-3. 15 Complaint, Docket Entry No. 4, p. 5. 16 Id. at 6. 17 Complaint, Docket Entry No. 4, pp. 5-7 i TDCJ Disciplinary Report and Hearing Record, Docket Entry No. 13-1, p. 10i Offense Report, Docket Entry No. 13-1, p. 11i Inter-Office Communication dated July 21, 2014, from Sergeant Y. Beltran, Docket Entry No. 13-1, p. 13. 18 Complaint, Docket Entry No. 4, p. 8. -4- the form of a court order directing the defendants to remove the SPD code from his classification. 19 II. Standard of Review Because Gonzales is an inmate who proceeds in forma pauperis, the court is required to scrutinize the claims and dismiss the Complaint, in whole or in part, if it determines that the Complaint "is frivolous, malicious, or fails to state a claim on which relief may be granted" or "seeks monetary relief from a defendant who is 2 8 U.S. c. immune from such relief." §§ 1915 (e) ( 2) (B) , 1915A (b) . An administrative report submitted by state officials pursuant to Martinez v. Aaron, 570 F.2d 317 (lOth Cir. 1978) (a "Martinez report"), is a tool to assist courts in making a determination of frivolity under 28 U.S.C. § 1915. See Norton v. Dimazana, 122 F.3d 286, 292-93 (5th Cir. 1997); see also Cay v. Estelle, 789 F.2d 318, 323 & n.4 (5th Cir. 1986) (discussing the utility of a Martinez report) . The court pro se in litigant's is mindful of this case. Courts contentions, construction. Haines 92 S. pro se 19 that plaintiff proceeds required inartfully to give pleaded, a a pro se liberal See Erickson v. Pardus, 127 S. Ct. 1081, 2200 (2007) Gamble, allegations fact are however (citing Estelle v. v. the Kerner, in a 97 S. Ct. Ct. 594, complaint Id. at 8-9. -5- 285, 595-96 are 292 (1976)); see also (1972) held to (noting less that stringent standards than formal pleadings drafted by lawyers) . "[t] hreadbare recitals of the elements of a Nevertheless, cause of action, supported by mere conclusory statements, do not suffice" and are inadequate to state a viable claim. 1937, 1949 (2009) (citation omitted). III. A. Ashcroft v. Iqbal, 129 S. Ct. Discussion The Rule in Heck v. Humphrey To the extent that his allegations may call into question the validity of his disciplinary conviction for assaulting an officer in Case No. 20150010578, which has not been overturned, Gonzales cannot maintain an action under 42 U.S.C. § 1983 under the rule announced in Heck v. Humphrey, 114 S. Ct. 2364 (1994). Under this rule a claim that bears a relationship to a conviction or sentence that has not been invalidated, federal habeas review, either by a state tribunal or on is not cognizable under 42 U.S.C. § 1983. Id. at 2372. Although Heck involved a claim for damages, the Fifth Circuit held has that the rule also applies to claims for injunctive or declaratory relief that implicate the validity of a conviction that has not already been set aside. See Mann v. Denton County Texas, 364 F. App'x 881, 883 (5th Cir. 2010) (citing Kutzner v. Montgomery County, 303 F. 3d 339, 340-41 (5th Cir. 2002); and Shaw v. Harris, 116 F. App'x 499 (5th Cir. 2004)). A "conviction" includes a prison disciplinary conviction that results in the loss of good-time credit. -6- See Edwards v. Balisok, 117 S. Ct. 1584, 1589 (1997). Gonzales does not otherwise state a valid claim for relief for the reasons discussed below. B. Due Process Gonzales contends that an SPD Code was placed on his classification arbitrarily based on false information in violation of his right to due process. 20 He argues in particular that the SPD Code was improperly imposed because no officer was injured as the result of the disciplinary altercation conviction for that formed assaulting the an basis officer for his in Case No. 20150010578. 21 To maintain a due process challenge in this context Gonzales must demonstrate that the challenged classification decision "deprived him of a liberty interest protected by the Fourteenth Amendment." 2008) Hernandez v. Velasquez, 522 F.3d 445, 562 (5th Cir. (citing Meachum v. Fano, 96 S. Ct. 2532, 2538 (1976)). As a general matter, however, a prison inmate has no protected liberty interest in his custodial classification. See id.; see also Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988) S. Ct. at 2538). '[p]rison (citing Meachum, 96 The Fifth Circuit "has repeatedly affirmed that officials should be accorded the widest possible deference' in classifying prisoners' custodial status as necessary 2 °Complaint, Docket Entry No. 4, pp. 7-8. 21 Plaintiff' s pp. 8-9. More Definite Statement, -7- Docket Entry No. 9, 'to maintain security and preserve internal order. '" Hernandez, 522 F.3d at 562 (quoting McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990); Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2003)). A prisoner may maintain a due process challenge to a change in his custodial classification "extraordinary circumstances." only when Hernandez, he demonstrates 522 F.3d at 562. The Supreme Court has limited those circumstances to those that impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." S . Ct . 2 2 9 3, 2300 such circumstance. (2005) ( 19 9 5) . Sandin v. Conner, 115 Transfer to a supermax prison is one See Wilkinson v. Austin, 125 S. Ct. 2384, 2395 (finding that prisoners have a liberty interest in avoiding assignment supermax to the prison) . harsh conditions Transfer from of confinement medium custody found to in a maximum security, however, is not considered an exceptional circumstance. Meachum, 96 S. Ct. at 2538. administrative segregation, Thus, an inmate's confinement in without more, does not constitute a deprivation of a constitutionally cognizable liberty interest. Luken v. Scott, 71 F. 3d 192, 193 (5th Cir. 1995) See (per curiam) The Attorney General's Office has provided Gonzales's relevant grievance records, which reflect that he has remained in administrative segregation since the incident that formed the basis of his disciplinary conviction in Case No. 22 20150010578. 22 These Grievance Records for Offender Andrew Gonzales, Docket Entry No. 14-1, pp. 2-139. -8- records reflect that Gonzales has challenged his classification, arguing that the SPD Code was imposed in error because no officer sustained an injury. 23 SPD Code was Classification officials determined that the appropriate because the officer whom Gonzales assaulted required medical care beyond first aid as a result of the altercation. 24 Although Gonzales complains that this determination is based on false information, he does not allege that there has been a denial of a procedure for demonstrating the falsity of this information. Under these circumstances, Gonzales has not demon- strated his that classification implicates a constitutionally protected liberty interest or that a due process violation has occurred. See Luken, 71 F.3d at 193. Accordingly, Gonzales's due process allegation will be dismissed for failure to state a claim for which relief may be granted. C. Retaliation Gonzales contends that the SPD Code was placed on his classification improperly in retaliation for grievances that he filed to challenge his conviction in Case No. 20150010578 for participating in a riot and assaulting an officer on September 7, 2014, and an unrelated disciplinary conviction that was entered against him on July 25, 2014, in Case No. 20140335050, for filing 23 Step 1 pp. 103-04. 24 Grievance #2017090343, Id. at 104, 107. -9- Docket Entry No. 14-1, a fraudulent financing statement under the UCC, which is a felony offense under state law. 25 imposed because of Gonzales believes that the SPD Code was the grievances he filed to challenge these convictions because "Major Doe" reportedly told him not to file any grievances while he was investigating the disciplinary case filed against him in Case No. 20150010578. 26 "To prevail on a claim of retaliation, establish (1} a specific constitutional right, a prisoner must (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, ( 3) a retaliatory adverse act, McDonald v. Steward, 132 F. 3d 225, 231 and ( 4) (5th Cir. 1998); see also Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). requires the a showing complained of (internal that but for incident quotation marks retaliatory would not and causation." have citations omit ted) . "Causation motive the occurred. " The Fifth Circuit has emphasized that prison officials must be given "wide latitude" in the management of inmates and has cautioned district courts to "carefully scrutinize" retaliation claims: The prospect of endless claims of retaliation on the part of inmates would disrupt prison officials in the discharge of their most basic duties. Claims of 25 Complaint, Docket Entry No. 4, pp. 5-7; TDCJ Disciplinary Report and Hearing Record, Docket Entry No. 13-1, p. 10; Offense Report, Docket Entry No. 13-1, p. 11; Inter-Office Communication dated July 21, 2014, from Sergeant Y. Beltran, Docket Entry No. 13-1, p. 13. 26 Plaintiff's More Definite Statement, Docket Entry No. 9, p. 6. -10- retaliation must therefore be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)). (quoting Adams An inmate must allege more than his personal belief that he is the victim of retaliation. See Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) Johnson v. demonstrate Rodriguez, that a 110 F. 3d 299, 310 (5th Cir. defendant acted with intent (citing 1997)). To to retaliate a prisoner must produce "direct evidence of motivation" or, at the very least, he must "allege a chronology of events retaliation may plausibly be inferred." from which Woods, 60 F.3d at 1166. By Gonzales's own admission, the SPD Code was imposed on his classification after he was convicted of participating in a riot and No. assaulting an 20150010578. 27 officer on September 7, 2014, in Case Records provided by the Attorney General's Office confirm that the SPD Code has been upheld based on evidence developed in connection with that disciplinary case, showing that the officer whom Gonzales assaulted required more than first aid. 28 suffered an injury that Under these circumstances Gonzales does not satisfy the element of causation for purposes of stating a retaliation claim because he does not allege facts showing that, but for any grievance that he filed, the SPD Code would not have 27 Complaint, Docket Entry No. 4, pp. 5-6. 28 Step 1 Grievance #2017090343, Docket Entry No. 14-1, pp. 104, 107. -11- been placed on his classification. Nor has he alleged a chronology of events from which retaliation may plausibly be inferred. Woods, 60 F.3d at 1166. Gonzales's retaliation claim See will therefore be dismissed for failure to state a claim upon which relief my be granted. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follow: 1. This action is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted. 2. Plaintiff's Motion to Strike or Suspend Court Order Granting 'Motion to Seal Supplement to the Attorney General's Martinez Report and Exhibit' (Docket Entry No. 17) is DENIED AS MOOT. 3. The dismissal will count as a "strike" for purposes of 28 u.s.c. § 1915(g). The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. copy (1) by regular mail, facsimile The Clerk will also provide a transmission, the TDCJ - Office of the General Counsel, or P.O. e-mail to: Box 13084, Austin, Texas 78711, Fax Number 512-936-2159; and (2) the Manager of the Three-Strikes List for the Southern District of Texas at Three_Strikes®txs.uscourts.gov. SIGNED at Houston, Texas, on this the 26th day of June, 2018. UNITED STATES DISTRICT JUDGE -12-
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