United States District Court, N.D. Texas, Dallas Division
ELBERT MULDROW (TDCJ No. 2069724), Plaintiff,
PANDORA CAULEY, ET AL., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
pro se civil rights action has been referred to the
undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and a standing order
of reference from United States District Judge Ed Kinkeade.
The undersigned enters these findings of fact, conclusions of
law, and recommendation that the Court should summarily
dismiss this action.
Elbert Muldrow,  a Texas prisoner, brings claims against
mail room and law library employees (as well as the warden)
at the Texas Department of Criminal Justice's
(“TDCJ”) Hutchins State Jail related to one
employee allegedly opening his legal mail and then placing
that mail into another envelope, an envelope containing the
repackaged legal mail that Muldrow later received.
See Dkt. No. 3. As against this employee, Muldrow
seeks “to press federal charges, ” and he seeks
compensation ($1.2 million) “for the mental distress
and physical harm this has caused [him] for violating [his]
civil right to legal mail privacy.” Id. at 4.
Standards and Analysis
district court is required to screen a civil action filed
in forma pauperis (“IFP”) and may
summarily dismiss that action if, for example, it
“fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The same
requirement applies to a civil action filed by a prisoner
seeking “redress from a governmental entity or officer
or employee of a governmental entity” regardless
whether the prisoner is proceeding IFP. See 28
U.S.C. § 1915A(b)(1); see Martin v. Scott, 156
F.3d 578, 580 (5th Cir. 1998) (“a suit by a prisoner
against state agencies and officers ... is clearly within the
ambit of section 1915A” and requires screening
“even when a prisoner has paid the required filing
for failure to state a claim “turns on the sufficiency
of the ‘factual allegations' in the
complaint, ” Smith v. Bank of Am., N.A., 615
F. App'x 830, 833 (5th Cir. 2015) (per curiam) (quoting
Johnson v. City of Shelby, Miss., 574 U.S.___, 135
S.Ct. 346, 347 (2014) (per curiam); emphasis added by
Smith), and the Federal Rules of Civil Procedure
“do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted, ” Johnson, 135 S.Ct. at 346. Indeed,
to survive dismissal under the framework of Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009), a plaintiff need
only “plead facts sufficient to show” that the
claims asserted have “substantive plausibility”
by stating “simply, concisely, and directly
events” that he contends entitle him to relief.
Johnson, 135 S.Ct. at 347 (citing Fed.R.Civ.P.
8(a)(2)-(3), (d)(1), (e)); see Harold H. Huggins Realty,
Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011)
(“A claim for relief is implausible on its face when
‘the well-pleaded facts do not permit the court to
infer more than the mere possibility of
misconduct.'” (quoting Iqbal, 556 U.S. at
rationale that factual plausibility (as opposed to legal
labeling) controls the failure-to-state-a-claim analysis has
even more force in this case, as the Court “must
construe the pleadings of pro se litigants
liberally.” Andrade v. Gonzales, 459 F.3d 538,
543 (5th Cir. 2006).
only basis for recovery under Section 1983 here is how his
mail was handled under state agency rules or regulations -
mail that Muldrow admits he received. See Dkt. No. 3
at 4; cf. Perez v. Tanner, No. 3:17-cv-2846-N-BN,
2017 WL 7000283, at *3 (N.D. Tex. Dec. 22, 2017) (“To
allege an access-to-courts claim that is ‘more than
mere hope, ' it must ‘be pled in a manner that
satisfies Fed.R.Civ.P. 8(a).' And that claim may be
‘arguable' - not merely hopeful - when it is based
on the alleged seizure or destruction of legal
materials.” (citations omitted)), rec.
accepted, 2018 WL 501601 (N.D. Tex. Jan. 19, 2018). But,
“absent some showing that the defendants violated [a
plaintiff's] federal constitutional rights,
complaints about the violation of state statutes, state
procedural or evidentiary rules, or state agency regulations
are insufficient as a matter of law to support a claim for
relief under Section 1983.” Rodarte v. Beneficial
Tex. Inc., No. SA-16-CA-71-RP, 2016 WL 1312637, at *8
(W.D. Tex. Apr. 4, 2016) (collecting cases, emphasis in
original, and concluding that where a plaintiff
“alleges merely that any of the defendants failed to
comply with ... state procedures for handling prisoner mail
... those allegations, standing alone, do not provide even an
arguable basis for recovery or for a finding that [a
plaintiff] is entitled to any relief under Section
1983”); see, e.g., Henderson v. Hutchins State
Jail, No. 3:17-cv-3204-M-BN, 2017 WL 6466894 (N.D. Tex.
Nov. 27, 2017) (summarily dismissing similar mail-handling
claims brought under Section 1983), rec. accepted,
2017 WL 6447236 (N.D. Tex. Dec. 18, 2017).
prisoner generally may not proceed IFP if, while incarcerated
or detained in any facility, he has filed three or more civil
actions or appeals in federal court that were dismissed as
frivolous or malicious or for failure to state a claim.
See 28 U.S.C. § 1915(g). Should the Court
accept the undersigned's recommendation that this action
be dismissed for failure to state a claim, that dismissal
will counts as Muldrow's third strike. See Muldrow v.
Berthot, No. 6:12cv460, 2012 WL 3991366 (E.D. Tex. Sept.
11, 2012); Muldrew v. Burger, No. 3:17-cv-3378-M,
2017 WL 6880130 (N.D. Tex. Dec. 15, 2017), rec.
accepted, 2018 WL 318471 (N.D. Tex. Jan. 8, 2018).
Court should summarily dismiss this action.
of these findings, conclusions, and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of these findings, conclusions,
and recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to
be specific, an objection must identify the specific finding
or recommendation to which objection is made, state the basis
for the objection, and specify the place in the magistrate
judge's findings, conclusions, and recommendation where
the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific. Failure to file
specific written objections will bar the aggrieved party from
appealing the factual ...