United States District Court, N.D. Texas, Abilene Division
SECOND OPINION AND ORDER OF PARTIAL DISMISSAL UNDER
28 U.S.C. SS L9L5A(B) AND UNDER 28 U.S.C. SS
SCOTT FROST UNITED STATES MAGISTRATE JUDGE
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
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. 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).
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.
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).
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).
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.
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.
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).
Failure to State a Claim Upon Which Relief May be
No Respondeat Superior-No Claim Arising from the
Resolution of Grievances (Defendants Guerrero, Nelson,
Hunter, Fox, and Gonzales)
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 ...