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Owens v. Kelly

United States District Court, E.D. Texas, Tyler Division

July 17, 2017

DEMETRIOUS OWENS
v.
JAMES KELLY, ET AL.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON DEFENDANTS HOLMAN, WHITFIELD, BERGER, AND BELL

          Ron Clark, United States District Judge

         The Plaintiff Demetrious Owens, a prisoner 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. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. The named Defendants are Oliver Bell, Chairman of the Texas Board of Criminal Justice; Michael Unit Warden Larry Berger; Captain Christopher Holman; Lt. James Kelly; Lt. Amy Westbrook; and counsel substitute Sabrina Whitfield.

         I. Background

         Owens complains that Kelly and Westbrook used excessive force on him on April 5, 2015. He subsequently received a disciplinary case for assaulting an officer. When Whitfield came to talk to him, Owens told her that he had not assaulted anyone and he had been in handcuffs at the time, but Whitfield told him to stop lying.

         Owens was not allowed to attend the disciplinary hearing. Warden Berger told him that Captain Holman had been the hearing officer and Whitfield was the counsel substitute, but he, Berger, did not know why Owens was not allowed to attend. Documents attached to Owens' complaint show that the disciplinary case was later overturned.

         II. The Report of the Magistrate Judge and the Plaintiff's Objections

         After review of the pleadings, the Magistrate Judge issued a Report recommending that Owens' claims against Kelly and Westbrook be allowed to go forward, but that the claims against Whitfield, Holman, Berger, and Bell be dismissed.

         In his objections, Owens states that he agrees in large part with the Magistrate Judge's Report but with one exception. He contends that Whitfield and Holman retaliated against him, using their official positions, to make sure that he received the harshest of punishments and to ensure he would be convicted in the disciplinary case because he would not be able to present his side of the story at the hearing.

         Owens acknowledges that the disciplinary case was overturned, but asserts that “the mere fact that these two state officials acted in this manner to violate Plaintiff's rights and due process is still a clear retaliation claim against these two officials.” He argues that Whitfield cannot use her position to retaliate against him or to act in a retaliatory manner that is clearly not to his benefit. Owens concedes that he does not know until discovery takes place whether Holman actually knew this was taking place, but Whitfield did, and those two officials acted together in the hearing of the case.

         III. Discussion

         Owens' retaliation claim is raised for the first time in his objections to the Magistrate Judge's Report. The Fifth Circuit has stated that issues raised for the first time in objections to the Report of the Magistrate Judge are not properly before the District Court. Finley v. Johnson, 243 F.3d 215, 218 n.3 (5th Cir. 2001). Owens' contention that Whitfield and Holman retaliated against him is not properly before the Court.

         Even if this claim were before the Court, Owens has failed to set out a viable retaliation claim. The Fifth Circuit has held that the elements of a claim under a theory of retaliation are the invocation of a specific constitutional right, the defendant's intent to retaliate against the plaintiff for his exercise of that right, a retaliatory adverse act, and causation, which is a showing that but for the retaliatory motive, the action complained of would not have occurred. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). This requirement places a heavy burden upon inmates, because mere conclusionary allegations will not suffice; instead, the inmate must produce direct evidence of retaliation or, the more probable scenario, a chronology of events from which retaliation may plausibly be inferred. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). The relevant showing must be more than the prisoner's personal belief that he is the victim of retaliation. Johnson, 110 F.3d at 310, citing Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995).

         In Jones v. Greninger, 188 F.3d 322 (5th Cir. 1999), the plaintiff complained that he was retaliated against for filing grievances, and the retaliation took the form of limiting his right of access to court. This limitation involved a transfer to work in food service, so his legal research time would be limited to five hours per week. The Fifth Circuit held that there was no constitutional violation inherent in a limitation of law library access time to five hours per week; consequently, the Court said, because Jones had failed to show that the Defendants had engaged in conduct that will result in a violation of his right of access to court, his retaliation claim fails. Jones, 188 F.3d at 326; accord, Tighe v. Wall, 100 F.3d 41, 43 (5th Cir. 1996) (fact that prisoner was removed from a job assignment as “inmate counsel substitute, ” allegedly in retaliation, did not show a constitutional violation, rendering the retaliation claim without merit).

         Although Owens contends that Whitfield's and Holman's alleged actions violated his rights regardless of the fact that the disciplinary case was later overturned, this argument lacks merit. In Crumbly v. Helem, 485 F.App'x 1, 2012 U.S. App. LEXIS 5979, 2012 WL 975022 (5th Cir., March 22, 2012), the plaintiff argued that three prison officials conspired to have him convicted of a disciplinary offense based on fabricated evidence, in violation of his rights under the First and Fourteenth Amendments. The Fifth Circuit stated that the plaintiff “has not shown that he was denied any constitutional rights in ...


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