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McGraw v. Heaton

United States District Court, N.D. Texas, Amarillo Division

March 9, 2017

MICHAEL McGRAW, PRO SE, TDCJ-CID, No. 662807, Plaintiff,
v.
JASON HEATON, Region V. Director, TDCJ, Defendant.

          REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND DENY PLAINTIFF'S MOTION TO REMAND

          CLINTON E. AVERITTE, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant's Motion to Dismiss Pursuant to 12(b)(1) and for Failure to State a Claim under 12(b)(6) filed July 18, 2016. On August 1, 2016, plaintiff requested leave to amend his complaint [D.E. 10] and on August 5, 2016 he filed a response to the motion to dismiss [D.E. 12] and subsequently a Motion to Remand [D.E. 13]. The Court has reviewed the arguments of the parties and the information attached to plaintiffs filings.

         OVERVIEW OF THE CASE

         On May 5, 2015, plaintiff received a misconduct report from Correctional Officer ("CO") Laseanda Wright. Plaintiff alleges the misconduct report contained false information. Plaintiff alleges Correctional Officer Destiny McDonald investigated the misconduct report and then CO Wright falsified an official document and changed the case against him.[1]

         On May 8, 2015, plaintiff states he was notified of the charge by his counsel substitute and he was served with a disciplinary case. On May 12, 2015, the disciplinary case was conducted by TDCJ Captain Wilbur Kemph. Plaintiff alleges he was refused the right to call or present witnesses, interview alibi witnesses, and challenge the false statements of the investigating officer. Plaintiff alleges Kemph then notified the craftshop supervisor to remove him from the craftshop program.

         On May 20, 2015, plaintiff filed his Step 1 grievance and admits he received a response on June 5, 2015 upholding the guilty finding of the disciplinary hearing, which was signed by Warden Barry Martin. On June 14, 2015, plaintiff submitted a Step 2 disciplinary appeal and also sent a letter to the Regional Director, HEATON, requesting an investigation. On June 25, 2015, plaintiff received a response to his Step 2 grievance stating "records indicate that at NO time did you request witnesses." It appears this grievance was also approved by Warden Martin. On July 8, 2015, plaintiff submitted a request to Warden Barry Martin requesting an interview to present evidence, but Martin told plaintiff to file a grievance to address his remedies.

         On June 26, 2015, Assistant Regional Director Mark Roth responded to plaintiffs letter stating "you have exhausted all remedies available to you on the unit, all policies and procedures were and will be followed during disciplinary process."

         Plaintiff alleges a loss of his craftshop privileges resulted from his disciplinary case and he had $3000.00 in supplies and materials which were lost as a result of his lost privileges. Plaintiff additionally claims he has lost $5000.00 a year in income as a result of the wrongful disciplinary case. He was also denied recreation for 45 days and denied commissary privileges for 45 days and he was demoted a position in a line-class, which he alleges affected his ability to earn good time credits for the year.

         By his Complaint, plaintiff alleges he was denied due process by defendant HEATON when his Step 1 and Step 2 grievances were denied by TDCJ without following proper procedure. Additionally, plaintiff alleges his property and earning income were affected by HEATON's actions.

         CLAIMS AND REQUESTS FOR RELIEF

         Plaintiff MICHAEL MCGRAW, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, filed a civil lawsuit complaining against defendant HEATON. This lawsuit was filed in the Texas Justice of the Peace Court. Defendant HEATON removed the case to federal court. Plaintiff has a pending motion to amend his complaint and a pending motion to remand to the justice court. Plaintiffs request to amend his complaint does not comport with Local Rule 15(a) of the Local Rules of this Court, which requires that a copy of the proposed amended or supplemental complaint be attached to the motion for leave to amend or supplement because plaintiff has failed to attach a proposed amended complaint. However, plaintiff argues he did not seek to file a § 1983 civil rights action. Plaintiff requests his case be remanded to the justice of the peace court so that he can remove all due process claims from his complaint. However, because of plaintiff s factual allegations and claims, and his requests for relief, it is not possible for him to amend this complaint to remove the due process claims and still have a claim at all. The alleged harm plaintiff claims is the loss of his craftshop materials and privileges, along with loss of personal property and loss of his position in a line-class to earn good time credit for the year as a result of a TDCJ disciplinary case. Plaintiff alleges he was denied due process by defendant HEATON when his grievances (and the appeal of those grievances to the Regional Director's Office) of the disciplinary case were denied.

         Plaintiff also claims defendant HEATON violated plaintiffs due process rights by failing to adequately and properly train and oversee TDCJ staff in the execution of disciplinary proceedings at the Clements Unit. Plaintiff states he suffered loss of his property, workshop privileges, earning capacity, and line-class position for earning good time credit as a result of HEATON's actions.

         The Court has also reviewed plaintiffs "amended complaint" and "attachments to amended complaint" where plaintiff proposes to add as defendants TDCJ officers WRIGHT, MCDONALD, and KEMPH. Plaintiff claims WRIGHT initiated false charges against him that resulted in his ultimate loss of craftshop property as a result of unspecified "retaliation." Plaintiff alleges MCDONALD investigated the false charges. Plaintiff asserts KEMPH denied him due process in his disciplinary hearing by not allowing plaintiff to present witnesses and KEMPH lied about plaintiffs request to produce witnesses at the hearing.

         STANDARD OF REVIEW

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal without the burdens of discovery when a plaintiff fails to state a claim upon which relief can be granted. In ruling on a 12(b)(6) motion, the "court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted). To move past a 12(b)(6) motion the plaintiff "must plead enough facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556).

         Rule 12(b)(6) dismissals are powerful tools in the protection of immunities granted to official actors and these dismissals are effective in expediting the judicial process in cases where there are no cognizable claims, but these dismissals are disfavored motions that are rarely granted. Clark v. Amoco Production Co.,794 F.2d 967, 970 (5th Cir. 1986). However, when a plaintiff fails to plead any facts articulating a ...


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