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Moreno v. McGuffin

United States District Court, S.D. Texas, Corpus Christi Division

February 15, 2018

DIONISIO BALDERAS MORENO, Plaintiff,
v.
MCGUFFIN, et al, Defendants.

          ORDER AMENDED [1] MEMORANDUM AND RECOMMENDATION TO DISMISS CASE WITH PREJUDICE

          Jason B. Libby United States Magistrate Judge

         Plaintiff Dionisio Balderas Moreno is a Texas inmate appearing pro se who filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges his rights were violated when he was subjected to a routine pat down search in which he was patted down over his prison clothes. He further disputes the subsequent prison discipline he received for resisting the search. Under the Prison Litigation Reform Act any prisoner action brought under federal law must be dismissed if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. See 42 U.S.C. § 1997e(c); 28 U.S.C. §§ 1915(e)(2), 1915A. Plaintiff's action is subject to screening regardless of whether he prepays the entire filing fee or proceeds as a pauper. Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998) (per curiam); Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998) (per curiam), cert. denied, 527 U.S. 1041 (1999). Plaintiff's pro se complaint must be read indulgently, Haines v. Kerner, 404 U.S. 519, 520 (1972), and his allegations must be accepted as true, unless they are clearly irrational or wholly incredible, Denton v. Hernandez, 504 U.S. 25, 33 (1992).

         Applying these standards, it is respectfully recommended that Plaintiff's claims be dismissed with prejudice for failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) and that the Court enter final judgment. It is further recommended that the dismissal be counted as a “strike” for purposes of 28 U.S.C. § 1915(g).

         I. JURISDICTION

         The Court has federal question jurisdiction over this civil rights action pursuant to 28 U.S.C. § 1331. This case has been referred to the undersigned United States Magistrate Judge for pretrial management and furnishing the District Court with a memorandum and recommendation on all dispositive motions pursuant to 28 U.S.C. § 636 and Special Order C-2015-1.

         II. PROCEDURAL BACKGROUND

         On January 28, 2016, the Plaintiff filed the instant civil rights action naming the following TDCJ employees as defendants: (1) Officer McGuffin; (2) Captain J. Gonzalez; (3) Officer Michell Galvan; (4) Ms. Saenz; and (5) Officer Michael E. Alsobrook. (D.E. 1, p. 3).[2] On February 8, 2016, the undersigned granted Plaintiff's motion to proceed in forma pauperis and entered a collection order for Plaintiff to pay the $350 filing fee. (D.E. 6). The collection order advised Plaintiff of the screening process and that his case may be dismissed if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. (D.E. 6, p. 4). A Spears[3] hearing was conducted on February 24, 2016. During the Spears hearing the Plaintiff was again advised of his having to pay the $350.00 filing fee even if his case was dismissed upon screening. Plaintiff was further advised of the necessity to successfully challenge the prison disciplinary case before raising those claims in a civil rights action.[4]Plaintiff indicated a desire to dismiss his case without prejudice to avoid paying the $350 filing fee at this stage. The undersigned granted Plaintiff's oral motion to voluntarily dismiss his case without prejudice and vacated the collection order. (D.E. 9).

         On March 9, 2016, the Court received the Defendant's “Objection to Magistrate's Decision and Motion For Leave to Amend” wherein Plaintiff requested that his case not be dismissed. (D.E. 10). The undersigned vacated the voluntary dismissal of Plaintiff's action, re-instated his case and the collection order, and granted Plaintiff leave to file an amended complaint on or before April 8, 2016. (D.E. 11). Plaintiff subsequently filed a separate action raising the same claims. See Moreno v. McGuffin, No. 2:16-cv-86 (S.D. Tex. filed Mar. 9, 2016).[5] Both cases have been consolidated in the instant action. (D.E. 13). Plaintiff has not filed an amended complaint. However, he has filed a memorandum in support of his complaint. (D.E. 18).

         III. FACTS AND PLAINTIFF'S ALLEGATIONS

         The following allegations were made in Plaintiff's complaint (D.E. 1), in his memorandum in support (D.E. 18), or at the Spears hearing. In September 2015, Plaintiff was housed at the TDCJ McConnell Unit in Beeville, Texas. On September 24, 2015, at approximately 12:30 p.m., Plaintiff was going from his housing area to the recreation area as part of a routine movement of inmates. The movement included each inmate being subject to a pat-down search before entering the recreation yard. The pat-down searches were conducted in the open and in view of other inmates and prison staff. Prior to entering the recreation area, Plaintiff was searched by Officer McGuffin. This search was a limited pat down of Plaintiff's body over Plaintiff's prison clothing. Plaintiff states that Officer McGuffin felt Plaintiff's buttocks. Plaintiff testified that officers would not usually feel his buttocks during a pat down and that he was offended by the touching, which he considered a sexual assault. Plaintiff alleges other inmates were subjected to the same type of search. Plaintiff attempted to cover his “private parts, ” pulled away, and there was a “clash of hands.” Officer Galvan was reportedly in charge of recreation on the day of the incident. Plaintiff alleges he sought Officer Galvan's assistance in filing a grievance against Officer McGuffin; however, Officer Galvan did not assist Plaintiff as requested.

         Plaintiff was then charged with a prison disciplinary case for assaulting Officer McGuffin. On October 8, 2015, a disciplinary hearing was held in Disciplinary No. 20160032523. Plaintiff had the assistance of counsel substitute Ms. Saenz.[6] Captain Gonzalez presided as the disciplinary hearing officer (DHO) and reportedly told Plaintiff that correctional officers have the authority to touch offenders' genitals during a search. Captain Gonzalez found Plaintiff guilty as charged. Plaintiff was assessed a loss of 180 days good time, loss of visitation, and a reduction of his line class. Plaintiff filed a Step 1 appeal of his disciplinary conviction and it was affirmed by Warden Furr on November 3, 2015. It is unclear if Plaintiff filed a Step 2 appeal.

         In the instant action, Plaintiff alleges Officer McGuffin sexually assaulted him by touching his buttocks during the pat-down search. Plaintiff alleges disciplinary hearing officer Gonzalez violated Plaintiff's rights when Officer Gonzales determined that TDCJ correctional officers have the authorization to touch inmate genitals during routine pat-down searches. He alleges Officer Galvan did not assist Plaintiff with his efforts to file a grievance against Officer McGuffin. Plaintiff alleges counsel substitute Ms. Saenz met with him prior to the disciplinary hearing, but did not attend the hearing and therefore provided ineffective assistance of counsel.[7] Finally, Plaintiff alleges Major Alsobrook participated in a Unit Classification Committee and that Major Alsobrook “took away” his good time-earning line classification as a result of the disciplinary case.

         IV. LEGAL STANDARD

         A prisoner complaint filed in forma pauperis that lacks an arguable basis in law should be dismissed under 28 U.S.C. § 1915. Neitzke v. Williams, 490 U.S. 319, 328 (1989). Under 28 U.S.C. § 1915(e)(2)(B), a district court retains broad discretion in determining at any time whether an in forma pauperis claim should be dismissed. Adepegba v. Hammons,103 F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990) (discussing authority to dismiss at any time under prior § 1915(d)). Furthermore, as a part of the PLRA, Congress enacted 28 U.S.C. § 1915A, which requires the Court to review a complaint from a prisoner seeking relief from a governmental entity or governmental officer or employee as soon as possible after docketing. See 28 U.S.C. § 1915A(a). Consistent with § 1915A is prior case law recognizing that a district court is not required to await a responsive pleading ...


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