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Wagner v. Texas Department of Criminal Justice

United States District Court, N.D. Texas, Abilene Division

May 3, 2018

MITCHELL WAGNER, TDCJ ID #01543049, Plaintiff,
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al, Defendants.

          SECOND OPINION AND ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. SS L9L5A(B) AND UNDER 28 U.S.C. SS L9L5(E)(2)(B) [1]

          E. SCOTT FROST UNITED STATES MAGISTRATE JUDGE

         This case remains before the Court for review of prose plaintiff Mitchell W. Wagner's case under the screening provisions of 28 U.S.C. §§ 1915A and 1915(e)(2)(B). The Court previously issued an Opinion and Order of Partial Dismissal and Rule 54(b) Judgment dismissing come claims and several defendants. (Docs. 26, 27.) After conducting a Spears hearing, the Court now finds that several additional defendants and claims must also be dismissed for failure to state a claim upon which relief may be granted, and Wagner will be authorized to obtain service of process of the remaining claims on some defendants, as permitted by a separate Order.

         I. BACKGROUND

         Mitchell W. Wagner, an inmate at the Texas Department of Criminal Justice's French Robertson Unit, filed a civil-rights complaint seeking relief under 42 U.S.C. § 1983.[2] Wagner named twenty-one defendants, consisting of three organizations and numerous individual defendants. Compl, at 3-5 (doc. 1.) After initial review of the complaint, the Court directed Wagner to file a more definite statement of his claims with responsive answers to the Court's questions, and Wagner filed a more definite statement (MDS). (Doc. 22).

         The focus of the complaint and more definite statement is Wagner's claim that he has been denied the right to practice his version of Christian music ministry at the Robertson Unit, in violation of his rights under the First Amendment, in violation of the Religious Land Use and Institutionalized Person's Act (RLUIP A), in violation of the Texas Religious Freedom Restoration Act (TRFRA), and in violation of the "Inmate Welfare Section of the Texas Government Code. Compl., at 7 (doc. 1). He also alleges that he has been the victim of racial discrimination in violation of the Fourteenth Amendment's equal protection clause. Id. at 12. He also seeks relief under the Rehabilitation Act of 1973. Id. at 6.

         Plaintiff previously filed a lawsuit in this division arising from very similar facts against three individual defendants, reciting allegations that he was denied access to play a piano and sing, even though other religious groups were not excluded from use of the instruments. Wagner v. Campuzano, et al., No. 1:12-CV-205-C. In that case, after this Court initially dismissed his claims under the First Amendment and RLUIPA as frivolous, the United States Court of Appeals for the Fifth Circuit vacated and remanded that holding, writing that Wagner had stated claims under the First Amendment and under RLUIPA. See Wagner v. Campuzano, No.13-11024 (5th Cir. April 15, 2014). Onremand, this Court dismissed those claims on other grounds, namely that they were barred by the applicable statute of limitations. Wagner v. Campuzano, No. l:12-CV-205-C(Order and Judgment entered March 3, 2015).

         In this latest suit, Plaintiffs claims arise from the time after January 3, 2014, when Plaintiff alleges he was initially granted the authorization to "use the piano to minister with on Sunday mornings during 4-Building congregational Christian services." Compl, at 8 (doc. 1). In the balance of his complaint, Wagner then alleges in detailed single-spaced type, multiple claims of how different TDCJ officials interfered with that initial authorization for him to "minister with piano music" in numerous different ways over the course of 2014 and 2015. Compl, at 8-11 (doc. 1).

         II. PRELIMINARY SCREENING

         Plaintiff is an inmate who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § l9l5A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.

         A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A claim that falls under the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994), "is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question." Hamilton v. Lyons, 14 F.3d 99, 102 (5th Cir. 1996). A complaint fails to state a claim upon which relief may be granted when it fails to plead "enough facts to state a claim to relief that is plausible on its face." BellAtl Corp. v. Twombty, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To avoid dismissal for failure to state a claim, plaintiffs must allege facts sufficient to "raise the right to relief above the speculative level." Twombty, 550 U.S. at 555. Mere "labels and conclusions" nor "a formulaic recitation of the elements of a cause of action" suffice to state a claim upon which relief may be granted. Id.

         As noted, after dismissing some claims and defendants, the Court scheduled an evidentiary hearing pursuant to Spears v. McCotter, 7 66 F.2d 179, 181-82 (5th Cir. l985), and28U.S.C. § 1915. After now conducting further review of the complaint and more definite statement, and considering the testimony provided by plaintiff Mitchell Wagner at the Spears hearing, the Court finds and determines that several other claims and defendants must be dismissed under authority of 28 U.S.C. §§ 1915A and 1915(e)(2)(B).

         III. ANALYSIS

         A. Failure to State a Claim Upon Which Relief May be Granted

         (I.) No Respondeat Superior-No Claim Arising from the Resolution of Grievances (Defendants Guerrero, Nelson, Hunter, Fox, and Gonzales)

         The events in this suit begin after January 3, 2014, when Wagner recites that he was authorized by Bill Pierce, a Deputy Director of Chaplaincy Programs, and former Warden Edward Wheeler, to play the piano at regular Sunday morning chapel services held for the 4-building A-side of the prison every other Sunday ...


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