United States District Court, N.D. Texas, Amarillo Division
MICHAEL McGRAW, PRO SE, TDCJ-CID, No. 662807, Plaintiff,
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
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.
OF THE CASE
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
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
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.
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
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.
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.
AND REQUESTS FOR RELIEF
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.
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.
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.
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).
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 ...