Mendez v. Johnson et al, No. 4:2014cv02507 - Document 5 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER. This case is DISMISSED with prejudice. The Inmate Trust Fund is ORDERED to deduct twenty per cent of each deposit made to theinmate trust account of Jesus Mendez.(Signed by Judge Sim Lake) Parties notified.(amwilliams, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JESUS MENDEZ, TDCJ # 1684153, § § § § § § § § § § Plaintiff, v. CAPTAIN JOHNSON, et al., Defendants. CIVIL ACTION NO. H-14-2507 MEMORANDUM OPINION AND ORDER State inmate Jesus Mendez (TDCJ # 1684153) filed this lawsuit under 42 U.S.C. § 1983, alleging violations of his civil rights while he was incarcerated at the Pam Lychner State Jail Unit of the Texas Department of Criminal Justice - Correctional Institutions Division (TDCJ) near Humble, officials as defendants. Texas. He names nineteen TDCJ After reviewing the complaint, the court has determined that this action should be dismissed. I. Allegations and Claims Mendez's principal complaint is based on his allegation that he was wrongly charged with and fined for destruction of state property in violation of TDCJ rules (Docket Entry No.1, p. 8). He claims that the disciplinary action was imposed in furtherance of the campaign of harassment and intimidation against him due to his ethnici ty and nationality (Docket Entry No.1, p. 5).1 He It is apparent from Mendez's pleadings that his primary language is not English. A part of them are written in Spanish. complains that he was discriminated against because he is Mexican and an illegal immigrant. Lychner branded him as a He also alleges homosexual that officials at and verbally harassed him because he has money in his inmate account. rd. at 5-6. Mendez claims that, as a result of their prejudice against him and their desire to prohibit him from using the unit law library, the defendants fabricated a case accusing him of destroying state property (Docket Entry No.1, p. 1). The disciplinary charge specifically alleged that he destroyed two books by writing in them. rd. at 34. Mendez was provided written notice of the charge and attended the hearing in person. rd. testified access that other inmates had He denied the charges and to the books. The disciplinary hearing officer found Mendez guilty of the charges and assessed the following punishments: loss of recreation for 40 days; loss of commissary privileges for 40 days; visits for 30 days; one day in assessment of $300.34 in damages. suspension of contact solitary rd. confinement; and an No good time was forfeited. Although a large portion of Mendez's complaint is rational, his claim for relief does not appear to be sensible (Docket Entry No.1, p. 8). "What some technology experiments He states that he wants the Court to investigate, people can do to anybody with nowdays [sic] new and pitting[sic] on anybody objects, just to make some bring up the injustice President Obama everyday speeches." -2- to justice as a (Docket Entry No.1, remedy, p. 8) This incomprehensible request must be considered in context with Mendez's bizarre allegations that government officials put a "nanotechnology devise [sic]" in his head while he was hospitalized in 1996. Id. at 6, 10. Mendez's belief stems from an article he read in "Muy Interesante," a Spanish language magazine dedicated to subjects such as the origin of the universe, time travel. Id. at 6, 36-38. human cloning, and After reading the article, Mendez concluded that the prison guards knew what he was thinking and were able to control his thought processes through their radios because of the transmitter planted in his head. Id. He acknowledges that his allegations are hard to believe, but he insists that they are true, and he demands that this injustice be fought. II. This § civil action is Id. Analysis subject to review under 28 U.S.C. 1915 (e) (2) (B), which applies to all litigants proceeding in forma pauperis. Under this statute, a district court "shall dismiss" any in pauperis forma action under determines that the complaint is: § 1915 (e) (2) (B) if the court (1) frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. In conducting this analysis, "[ a] document filed pro se is 'to be liberally construed,' . . . and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" -3- Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2207), quoting Estelle v. Gamble, 97 S.Ct. 285, 292 (1976). A § court may 1915(e) (2) (B) dismiss a complaint as frivolous under "if it lacks an arguable basis in law or fact." Geiger v Jowers, 404 F.3d 371, 373 (5th Cir. 2005). "A complaint lacks an arguable basis in law if it is based on an indisputably meri tless legal theory, violation of legal a such interest Samford v. Dretke, Hightower, 112 F.3d 191, civil rights as if which 562 F.3d 674, 193 complaint is the 678 clearly does (5th Cir. (5th Cir. based complaint on alleges not the exist." 2009); Siglar v. 1997). When a prisoner's fantastic or delusional allegations or it asserts an indisputably meritless theory, it is subject to dismissal on the basis that it is frivolous. Samford v. Dretke, Harris v. Regardless of Hegmann, 562 198 F.3d 674, 678 (5th 156 (5th F.3d 153, Cir. Cir. 2009) (citing 1999)). Mendez's beliefs about what has been implanted in his head or how his thought processes may have been monitored or manipulated, his complaint and requests for relief are baseless. Mendez asserts that his rights were violated under 42 U.S.C. § 1983. This statute provides a private right of action for damages to individuals who are deprived of "any rights, privileges, or immunities" protected by the Constitution or federal law by any person acting under the color of state law. Breen v. Texas A&M Univ., 485 F.3d 325, 332 -4- 42 U.S.C. § 1983; (5th Cir. 2007). To establish liability under establish two elements: § 1983, a civil rights plaintiff must (1) state action, i.e., that the conduct complained of was committed under color of state law, and (2) a resulting violation of federal law, i.e., that the conduct deprived the plaintiff of rights secured by the Constitution or laws of the United States. See Collins v. City of Harker Heights, 102 S.Ct. 1061, 1066 (1992); Baker v. McCollan, 99 S.Ct. 2689, 2693 (1979); see also Doe ex rel. Magee v. Covington County School Dist. ex rel. Keys, 675 F.3d 849, 854 -855 (5th Cir.2012) 42 U.S.C. § 1983, "a plaintiff must (1) (To state a claim under allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law."), citing James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008)). A. Disciplinary Hearing - Due Process Claim Mendez complains that he was disciplined for something he did not do. Unless the disciplinary proceeding has adversely affected the amount of time that Mendez must serve or inflicts some unusual punishment, he fails to assert an actionable claim because a prisoner's challenges to an administrative disciplinary proceeding are not actionable unless the disciplinary measures taken against the prisoner inflict deprivations that are atypical and significant in relation to the ordinary incidents of prison life. Conner, 115 S.Ct. 2293, 2300 (1995). -5- Sandin v. Given the difficulties in maintaining order in a prison, wi th the affairs. ("[AJ prison courts are hesitant to interfere administration's handling of its disciplinary See Rhodes v. Chapman, 101 S.Ct. 2392, 2400 n.14 (1981) prison's internal security is peculiarly a matter normally left to the discretion of prison administrators."). Mendez's temporary loss of recreation and commissary privileges and a brief one-day stay in solitary confinement do not implicate due process concerns. 114 (5th Cir. 2010), Evans v. Thaler, 396 F. App'x 113, citing Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Guajardo v. Bayda, 344 F. App'x 922, 924 (5th Cir. 2009). His loss of visitation privileges is not actionable. Berry v. Brady, 192 F.3d 504 (5th Cir. 1999); see also Kentucky Dep't of Corrections v. Thompson, 109 S.Ct. 1904, 1909 (1989) (denial of visitation is a customary element of a prison sentence). Mendez's allegation that he was charged with something that he did not do does not support an actionable claim. App'x 929, 930 248, 253-54 B. Harris v. Smith, (5th Cir. 2012), citing Collins v. King, 482 F. 743 F.2d (5th Cir. 1984)). Loss of Property - No Denial of Due Process Mendez contends that his due process rights were violated when money was property taken after proceeding that from his it had inmate been trust account determined in he was guilty of damaging it. to pay the for disciplinary This claim concerns an alleged wrongful taking of Mendez's personal property. -6- the See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996); Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994). An unauthorized taking of an inmate's property is not actionable in a rights action where the state provides a remedy. prisoner civil Hudson v. Palmer, 104 S.Ct. 3194 (1984); Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009); Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988). Mendez's constitutional due process rights have not been violated because the Texas tort of conversion provides an adequate state remedy. Brewster, 587 F.3d at 768, citing Murphy v. Collins, 26 F.3d 541, 543 F.3d 162, 164 remedy for assert a (5th Cir. 1994). (5th Cir. See also Cathey v. 1995) (Texas 1983 claim regarding 47 law provides an adequate unauthorized taking of property). § Guenther, the Mendez monetary fails sanction to and withdrawal from his account because he has not demonstrated that there is no state remedy available to him. Gee v. Pacheco, 627 F.3d 1178, 1194 (10th Cir. 2010). C. No Claim for Verbal Harassment Mendez complains that the defendants harassed assert an actionable claim because he has not 1997e(e); Geiger, 404 F.3d at 374. Pursuant to shown suffered actual physical harm from the alleged acts. § by He fails subj ecting him to verbal abuse and name calling. him that he 42 U.S.C. to the Prison Litigation Reform Act (PLRA) , a prisoner cannot recover damages for emotional or mental harm if he has not suffered a physical injury. -7- Id.; Jones v. Greninger, 188 F.3d 322,326 (5th Cir. 1999) 42 u.s.c. threats § 1997e(e)). (citing Mere verbal abuse, even if accompanied by of physical harm, does not amount violation if there is no physical injury. to a constitutional Jackson v. Harris, 446 F. App'x 668, 670 (C.A.5 (5th Cir. 2011), citing Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir.1993). A guard's use of racial slurs, no matter how crude, indefensible or unprofessional, is not actionable alone in a civil rights proceeding. No. 9:12cv0083; 2013 WL 5503317, *6 Gillard v. Rovelli, (N.D.N.Y. 2013), citing Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y. 1998). Having reviewed Mendez's claims and allegations, the Court concludes that his complaint is based on an indisputably meritless legal theory and has no basis in law. F.3d 1059, 1061 (5th Cir. 1997). dismissed as legally frivolous. McCormick v. Stadler, 105 Therefore, this action shall be 28 U.S.C. § 1915 (e) (2) (B). III.CONCLUSION The Court ORDERS the following: 1. Officials at the TDCJ Inmate Trust Fund are ORDERED to deduct twenty per cent (20%) of each deposit made to the inmate trust account of Jesus Mendez (TDCJ # 1684153) and forward the funds to the Clerk on a regular basis, in compliance with the provisions of 28 U.S.C. § 1915(b), until the entire filing fee ($350.00) has been paid. 2. The prisoner civil rights complaint (Docket Entry No.1), filed by Jesus Mendez (TDCJ No. 1684153) is DISMISSED with prejudice under 28 U.S.C. § 1915 (e) (2) (B) as frivolous. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties; the TDCJ - Office of the -8- General Counsel, P.O. Box 13084, Austin, Texas 78711, Fax Number (512) 936-2159; the TDCJ-CID Inmate Trust Fund, P.O. Box 60, Huntsville, Texas 77342-0060; and the Pro Se Clerk's Office for the United States District Court, Eastern District of Texas, Tyler Division, 211 West Ferguson, Tyler, Texas 75702. SIGNED at Houston, Texas, on this ~3J day of September, 2014. UNITED -9- LAKE DISTRICT JUDGE
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