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Leslie Morgan #677163 v. Major Craig Fisher

October 5, 2012

LESLIE MORGAN #677163
v.
MAJOR CRAIG FISHER, ET AL.



MEMORANDUM OPINION AND ORDER OF DISMISSAL

The Plaintiff Leslie Morgan, an inmate of the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. The lawsuit is assigned by consent to the docket of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(c). As Defendants, Morgan named Major Craig Fisher, Captain Blake Lamb, Sgt. Obadiah Lopez, grievance investigator Floyd Hicks, and correctional officers Cherise Bevel, Serena Goad, Delra Wagoner, Neil Turner, Natrenio Hicks, and Dennis Taylor.

An evidentiary hearing was conducted on August 23, 2012, pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). At this hearing, Morgan testified that his complaint encompassed two issues. In the first of these, Morgan stated that on January 13, 2010, he received a disciplinary case from Officer Bevel for refusing to obey an order. Morgan explained that he was sitting in his cell wearing earplugs because it was extremely noisy. An officer came to his cell and asked if his name was Moore, or so he thought, and he said no. Morgan did not know the officer but recognized her face.

The next day, he received a disciplinary case, written by Officer Bevel, for refusing an order to move. He stated that he would never had said no to a move off of D Line, but would have jumped at the chance. Morgan told his counsel substitute what had happened and also wrote a letter to Major Fisher, saying that no one had asked him to move; however, no one came to see him or investigate the case.

Later, Morgan said, he received a notice of the result of the disciplinary hearing, which showed that Captain Lamb had found him guilty. As punishment, he received 45 days of restrictions, reduction to Line Class III, which is the lowest classification level, and the loss of 20 days of good time credits. The disciplinary case also caused him to have to stay another six months in G-4 (medium custody) and in the field force.

A few weeks later, Morgan heard another inmate calling for Officer Bevel. He had wanted to talk to her about the disciplinary case. A small-framed officer walked by, but Morgan did not recognize her as the officer who had come to his cell door on January 13. His neighbor told him that this was Bevel, and he saw the name on her name tag. Morgan says that he later learned that it was Officer Tamika Houston who had come to his cell on that date.

On January 25, the day after he learned that Bevel had not been the officer at his cell door, Morgan filed a grievance, which also complained that the case had not been investigated. This grievance was denied and Morgan filed a Step Two grievance on February 18, 2010. However, this grievance was "withheld" and not officially filed until February 22, 2010, a day late, which resulted in the grievance not being investigated at the regional level.

Morgan reiterates that he thought Officer Houston was asking him his name for mail call. As the facts surfaced, he says, there is "no question" that Bevel was "asked or ordered" to write him a fraudulent disciplinary case. He says that Fisher then graded the case as major and told Lamb to not allow Morgan to attend the hearing, and that all of this was done in retaliation for Morgan's having filed federal lawsuits no. 9:09cv58 and 9:10cv4.

In his second claim, Morgan says that on May 17, 2011, he was sitting in his cubicle in 8 Dorm when Sgt. Lopez told him to step out. When he did so, he was handcuffed, taken to the infirmary, and then moved to D Line. Lopez told him that he was being locked up due to a disciplinary case which had just been written. The cell in which Morgan was placed was filthy and had nothing but a pile of wet sheets in it; there was no mattress, no blanket, no clean sheets, no toilet paper, and the light did not work. He received some ragged sheets from Officer Wagoner on the third day, but nothing else was done. He remained in that cell for six days.

On May 27, 2011, a "disciplinary classification review board" was held. The committee members included Fisher and Lamb, who voted to demote him back to G-4 medium custody. These officers served on the classification committee even though Fisher was involved with the investigation and grading of the disciplinary case and Lamb was the disciplinary hearing officer, which Morgan stated was a violation of TDCJ rules and regulations.

On June 8, 2011, Morgan filed a grievance. After waiting 40 days for a response, he wrote to the grievance investigator at the Eastham Unit, Floyd Hicks, who told him that no grievance had been filed. Morgan stated that he believed that Officer Goad, who is a grievance officer and Captain Lamb's sister, removed the grievance, although he conceded that he could not prove this and that it was only a "very strong speculation."

A week before he was taken out of his cubicle by Lopez, Morgan that Fisher and Lamb went through his living area, taking such items as paper clips and rubber bands, but they did not find anything for which they could write him a case. Instead, they got Officer Stowe to write the disciplinary case falsely charging Morgan with trying to spit on her. Morgan stated that the officer investigating the case refused to interview inmate witnesses.

Finally, Morgan referred to a third claim, involving Turner, Natrenio Hicks, and Taylor, but testified at the evidentiary hearing that he wanted to dismiss this claim.

The TDCJ Records

The certified TDCJ records, offered into evidence at the evidentiary hearing, show that on January 13, 2010, Officer Bevel wrote Morgan a disciplinary case for refusing to move to J Line. The preliminary investigation report reflects that Morgan said that he wasn't going to J Line because "they stay locked down too much." The counsel substitute's investigation worksheet shows that ...


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