United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
Isaias L. Palacios (TDCJ #1709341) has filed a civil rights
complaint under 42 U.S.C. § 1983, concerning an incident
that occurred while he was incarcerated in the Texas
Department of Criminal Justice - Correctional Institutions
Division (“TDCJ”). He has also filed a memorandum
in support of his complaint (Dkt. 2). Palacios is pro
se and he proceeds in forma pauperis (Dkt. 10).
The Court is required to scrutinize every complaint filed by
a plaintiff proceeding in forma pauperis and dismiss
the case, in whole or in part, if it determines that the
action is frivolous, malicious, fails to state a claim upon
which relief may be granted, or “seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). After reviewing all of the
pleadings and the applicable law, the Court concludes that
this case must be DISMISSED for the reasons
is currently confined by TDCJ at the Dalhart Unit (Dkt. 11 at
p. 1). The incident that forms the basis of his complaint,
however, occurred at the Terrell Unit in Rosharon, where
Palacios was previously assigned (Dkt. 1 at p. 3). Palacios
sues the following defendants who were employed by TDCJ at
the Terrell Unit when the incident occurred: Warden Michael
Butcher, Assistant Warden Robert G. Beard, Lieutenant
Christopher Robertson, and Officer Marie Brache
(Id.). Palacios also sues C. Martinez, who is
identified as a grievance coordinator employed by TDCJ at a
regional office (Id.).
explains that on January 12, 2016, he received permission for
a “special visit” from family members who
traveled from Midland, Texas, to see him for two separate
days (Dkt. 2 at p. 2). This “split visit” was to
occur on February 6 and 7, 2016 (Id.).
Palacios's family flew into Houston's Hobby Airport
on February 5, 2016, and stayed at a local hotel
(Id.). They visited with Palacios at the Terrell
Unit in nearby Rosharon on February 6, as previously approved
by Warden Butcher and Assistant Warden Beard (Id.).
The following day, however, Palacios was told by Officer
Brache and Lieutenant Robertson that the second visit
scheduled for February 7 was “not approved”
(Id.). As a result, he did not see his family as
planned on that date (Id.).
contends that no valid reason was given for denying the
second visit that was scheduled for February 7, 2016
(Id. at p. 3). Arguing that he had received
permission for the two-day visit in advance, Palacios
maintains that he was denied a second visit on February 7 in
violation of prison policy as well as the Eighth and Ninth
Amendments to the United States Constitution (Dkt. 1 at p. 4;
Dkt. 2 at p. 1). Palacios filed grievances about the
incident, but he claims that Martinez denied relief and
condoned the violation of his rights without conducting an
adequate investigation (Dkt. 1 at pp. 3, 4; Dkt. 2-1 at pp.
1-4). Palacios now seeks compensatory and punitive damages
under 42 U.S.C. §1983 for the mental pain and suffering
that he experienced as the result of being denied a second
visit with his family on February 7, 2016 (Dkt. 2 at p.
STANDARD OF REVIEW
reviewing the pleadings, the Court is mindful of the fact
that the plaintiff in this case proceeds pro se.
Complaints filed by pro se litigants are entitled to
a liberal construction and, “however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks
and citation omitted). Even under this lenient standard,
however, a pro se plaintiff must allege more than
“labels and conclusions' or a ‘formulaic
recitation of the elements of a cause of action[.]”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678 (citation
initial matter, the Prison Litigation Reform Act
(“PLRA”), codified as amended at 42 U.S.C. §
1997e(e), precludes an action for compensatory damages
“for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the
commission of a sexual act (as defined in section 2246 of
Title 18).” Because Palacios did not suffer any
physical injury in this case, his claim for compensatory
damages is barred by the PLRA.
does not otherwise state a valid claim for relief. To the
extent that Palacios contends that officials violated prison
rules by denying him a previously approved second visit with
his family on February 7, 2016, this allegation, standing
alone, is not sufficient to demonstrate a constitutional
violation. See Jackson v Cain, 864 F.2d 1235,
1251-52 (5th Cir. 1989) (noting that a state's failure to
follow its own rules or regulations, alone, does not
establish a constitutional violation); Hernandez v.
Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) (per
curiam) (rejecting an inmate's claim that TDCJ's mere
failure to follow an administrative rule violated his
constitutional rights). Palacios does not demonstrate that a
constitutional violation occurred in connection with his
support of his claim that he was denied visitation privileges
in violation of his rights, Palacios relies primarily on the
Eighth Amendment, which prohibits “cruel and unusual
punishment” and is reserved only for claims involving
the “unnecessary and wanton infliction of
pain[.]” Hudson v. McMillian, 503 U.S. 1, 5
(1992). It applies principally when prison officials have
deliberately ignored an objectively serious risk to an
inmate's health or safety. See, e.g, Farmer v.
Brennan, 511 U.S. 825, 832 (1994); Helling v.
McKinney, 509 U.S. 25, 32 (1993). The denial of
visitation privileges does not violate the Eighth Amendment
because it does not rise to the level of cruel and unusual
punishment. See, e.g., McCray v. Sullivan, 509 F.2d
1332, 1334 (5th Cir. 1975) (“[V]isitation privileges
are a matter subject to the discretion of prison officials
and are not a constitutional right.”); Zamora v.
Thaler, 407 Fed.Appx. 802, 2011 WL 72180, *1 (5th Cir.
2011) (unpublished) (restrictions on visitation are not the
sort of extreme deprivation that rise to the level of cruel
and unusual punishment). Convicted prisoners do not otherwise
have a constitutional right to visitation privileges. See
Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999).
Accordingly, restrictions placed upon or loss of an
inmate's visitation privileges “provide no basis
for a claim of the denial of constitutional rights.”
Palmisano v. Bureau of Prisons, 258 Fed.Appx. 646,
648 (5th Cir. Dec. 11, 2007) (citations omitted).
also invokes the Ninth Amendment, which provides that
“[t]he enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others
retained by the people.” U.S. Const. amend. IX.
Palacios cannot state a claim for relief under the Ninth
Amendment because it “does not confer substantive
rights upon which civil rights claims may be based.”
Johnson v. Texas Bd. of Criminal Justice, 281
Fed.Appx. 319, 320, 2008 WL 2337324, *1 (5th Cir. 2008)
(unpublished) (citing Froehlich v. Wisconsin Dep't of
Corr., 196 F.3d 800, 801 (7th Cir. 1999)).
although Palacios contends that Martinez violated his rights
by failing to conduct an adequate investigation of his
grievances, this allegation also fails to state a claim
because it is well established that a prison inmate has no
constitutionally protected interest “in having
grievances resolved to his satisfaction.” Geiger v.
Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Therefore,
Palacios does not state a valid claim for relief against
Martinez or any ...