United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE ON DEFENDANTS HOLMAN,
WHITFIELD, BERGER, AND BELL
Clark, United States District Judge
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.
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.
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.
The Report of the Magistrate Judge and the Plaintiff's
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.
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.
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.
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.
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).
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).
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 ...