United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. § 636(b) and
Rule 1(f) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of
Texas. Duenes is pro se and was granted leave to proceed
in forma pauperis. Before the Court is Duenes's
Complaint (Docket Entry “DE” 1).
OF THE CASE
time he filed his complaint pursuant to 42 U.S.C. §
1983, Juan Duenes was confined in the Boyd Unit of the Texas
Department of Criminal Justice (“TDCJ”). Named as
Defendants are Dale Wainwright, as Chairman of the Texas
Board of Criminal Justice; Bryan Collier, TDCJ Executive
Director; Debbie Liles, Director of TDCJ's Administrative
Review & Risk Management Divison; Cynthia Tilley, Senior
Warden of the Boyd Unit; and “any successors in
office.” Duenes alleges that Defendants, “acting
under color of law either in their official capacities and or
individual capacities, ” have engaged in a civil
conspiracy to violate Duenes's federal constitutional
rights. Duenes alleges his First Amendment rights and his
right to access the courts have been violated by
unconstitutional procedures and policies, and he is subjected
to unconstitutional conditions of confinement in violation of
his Eighth Amendment rights. Duenes further alleges he has
been retaliated against for asserting the deprivation of his
constitutional rights. He seeks declaratory and injunctive
relief for his claims against Defendants in their official
capacities and an award of punitive damages and
Review under 28 U.S.C. §§ 1915 & 1915A
claims must be screened pursuant to 28 U.S.C. § 1915A.
Under § 1915A, if a complaint is frivolous, malicious,
or fails to state a claim upon which relief may be granted or
seeks monetary relief from a defendant who is immune from
such relief, the Court must dismiss the complaint, or any
portion of the complaint, . Martin v. Scott, 156
F.3d 578 (5th Cir. 1998). When reviewing the complaint under
§ 1915A, a court must construe the allegations
liberally. Haines v. Kerner, 404 U.S. 519 (1972).
However, a plaintiff's pro se status does not offer him
“an impenetrable shield, for one acting pro se has no
license to harass others, clog the judicial machinery with
meritless litigation and abuse already overloaded court
dockets.” Farguson v. MBank Houston, N.A., 808
F.2d 358, 359 (5th Cir. 1986).
asserts Defendants participated in a civil conspiracy to
violate his constitutional rights, acting under color of law
“either in their official capacities and or individual
capacities.” (DE 1 at 4). Construed broadly,
Duenes's first claim for relief alleges Defendants
conspired to deny him the constitutional rights delineated in
his other claims for relief. To support a federal civil
rights conspiracy claim, a plaintiff must allege facts that
suggest an agreement between government actors to commit an
illegal act and an actual deprivation of the plaintiff's
constitutional rights. Kerr v. Lyford, 171 F.3d 330,
340 (5th Cir. 1999); Cinel v, Connick, 15 F.3d 1338,
1343 (5th Cir. 1994). “Mere conclusory allegations of
conspiracy cannot, absent reference to material facts,
constitute grounds” for relief. Dayse v.
Schuldt, 894 F.2d 170, 173 (5th Cir. 1990). See also
Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987)
(recognizing that “[b]ald allegations that a conspiracy
existed are insufficient” to state a claim for relief).
1983 suits may be instituted to sue a state employee using or
abusing power possessed by virtue of state law, to violate a
person's constitutional rights. Monroe v. Pape,
365 U.S. 167, 184 (1961); Brown v. Miller, 631 F.2d
408, 410-11 (5th Cir. 1980). A § 1983 plaintiff must
show an abuse of government power that rises to a
constitutional level in order to state a cognizable claim.
Love v. King, 784 F.2d 708, 712 (5th Cir. 1986);
Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.
1980). Endorsing improper acts of others does not make an
individual liable for violating a person's constitutional
rights. Thompson v. Steele, 709 F.2d 381, 382 (5th
Duenes's claims for relief assert the denial of a federal
constitutional right by Defendants acting in concert or
otherwise. Duenes's Complaint only makes conclusory
allegations of a conspiracy, which are insufficient to state
a claim for civil conspiracy. See, e.g., Ashcroft v.
Iqbal, 556 U.S. 662, 677-79 (2009); Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007). The conspiracy claim
is therefore frivolous and should be dismissed.
asserts that, beginning in April of 2016, Defendants
published and began to enforce a systemwide procedure
prohibiting inmates from maintaining active social media
accounts for the purposes of soliciting, updating, or
engaging others, through a third party or otherwise. (DE 1 at
5). Duenes argues “all inmates have a federal
constitutional right to legitimate free speech through direct
or third party social media accounts.” Id.
Duenes asserts he has a right to participate in social media
for the purpose of seeking employment and housing upon his
release from prison, to communicate with family members and
friends, to conduct legal research, to communicate with
organizations established to promote prison reform, and to
expose the fraudulent expenditure of taxpayer moneys or
abuses of state executive branch power “giving rise to
unconstitutional conditions of confinement.”
Id. Duenes contends there is no legitimate state
purpose for the prohibition on social media, because the
prohibition “interferes with actual and meaningful
rehabilitation and reduction of recidivism.” (DE 1 at
6). Duenes further argues he has a “constitutional
right” to possess a laptop computer with an unlimited
Internet service connection, for the purpose of accessing
websites containing state and federal case law. Duenes argues
such access would allow him to pursue a career and would
“deter recidivism, ” and further asserts
“at least one or more TDCJ inmates have already
acquired laptop computers for legal research with
internet/program connectivity in their personal possession
in-cell housing areas.” (DE 1 at 10).
Stauffer v. Gearhart, the Fifth Circuit explained
the impact of imprisonment on one's civil rights:
Prisoners do not lose all constitutional rights once they
pass beyond prison walls, but they retain only those First
Amendment rights which are not inconsistent with their status
as prisoners or with the legitimate penological objectives of
the prison system. See Turner v. Safley, 482 U.S.
78, 84 (1987); see also Hudson v. Palmer, 468 U.S.
517, 523 (1984). Because courts are “‘ill
equipped' to deal with the difficult and delicate
problems of prison management, [the Supreme Court] has
afforded considerable deference to the determinations of
prison administrators.” Thornburgh v. Abbott,
490 U.S. 401, 407-08 (1988). “[P]rison administrators .
. ., and not the courts, [are] to make the difficult
judgments concerning institutional operations.”
Id. at 409 (quoting Turner, 482 U.S. at
89). Furthermore, “prison officials may well conclude
that certain proposed interactions, though seemingly
innocuous to laymen, have potentially significant
implications for the order and security of the prison.”
Id. at 407. Based on these considerations, the
Supreme Court has rejected a “heightened”
scrutiny standard for regulations that are “centrally
concerned with the maintenance of order and security within
prisons” and instead applies a reasonableness standard.
Id. at 409-10. A prison regulation that
“impinges on inmates' constitutional rights . . .
is valid if it is reasonably related to legitimate
penological interests.” Turner, 482 U.S. at
741 F.3d 574, 584 (5th Cir. 2014).
federal courts that have considered the issue of a right to
use a computer have reasoned that, because prisoners have no
federal constitutional right to possess a typewriter, they
logically do not have a constitutional right to a computer.
Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994);
Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989);
American Inmate Paralegal Assoc. v. Cline, 859 F.2d
59, 61 (8th Cir. 1988) (“Prison inmates have no
constitutional right of access to a typewriter.”);
Lehn v. Hartwig, 13 F. App'x 389, 392 (7th Cir.
2001) (holding, in a section 1983 action, “If prisoners
have no constitutional right to a typewriter, they certainly
do not have one to a computer”). See also Robinson
v. Joya, 2010 WL 1779885, at *3 (E.D. Cal. 2010)
(stating, in a section 1983 action, “No court has found
that prisoners have a constitutional right to possess
personal computers, or items that are similar to personal
computers, in their cells.”). State inmates do not have
a federal constitutional right to possess computers or to
access the Internet.
claim that he must be allowed to possess a computer to
further his rehabilitation is also unavailing-the United
States Constitution does not afford prison inmates a
protected right to educational or rehabilitative programs or
services. Beck v. Lynaugh, 842 F.2d 759, 762 (5th
Cir. 1988); Stewart v. Winter, 669 F.2d 328, 336
n.19 (5th Cir. 1982). Cf. Bulger v. United States Bureau
of Prisons, 65 F.3d 48, 49 (5th Cir. 1995) (finding no
federal constitutional right to participate in an education
or rehabilitative program while incarcerated).
therefore fails to state a claim that his constitutional
rights were violated by the enactment and implementation of a
policy that prohibits his possession of a computer and access
to social media.
Access to the courts
alleges: “In 2013 then-chairman Oliver Bell issued an
order with then-TDCJ executive director Debbie Liles (or her
predecessor)” to “begin the gradual permanent
removal of the most vital state and federal law books and
legal research materials from all prison law libraries”
with “the intent to interfere with inmate attempts to
timely file challenges to [the] legality of [their]
and or conditions of [their] confinement in state or federal
courts.” (DE 1 at 6). Duenes further alleges:
“Defendant Wainwright, including defendants Collier and
Liles and Tilley, ” have and continue to wilfully and
wrongfully participate to prevent access to relevant federal
case citations, “of which the defendants have the power
to rescind or overturn as unconstitutional, but will
not.” Id. Specifically, Duenes asserts
1. encourage prison law librarians and inmate staff to
“use discretion in destroying valid I-60 requests to
visit a law library;”
2. arbitrarily limit inmates from access to more than three
state or federal citations per day- Duenes alleges that,
prior to March 2013, inmates had “virtually unlimited
access” to case citations and did not have to ...