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Summers v. Davis

United States District Court, S.D. Texas, Galveston Division

June 22, 2018

ANTHONY SUMMERS, TDCJ # 02151376, Plaintiff,
v.
LORIE DAVIS, Defendant.

          MEMORANDUM OPINION AND ORDER

          George C. Hanks Jr. United States District Judge

         Plaintiff Anthony Summers, a state inmate at the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ”), filed this lawsuit in the 412th District Court for Brazoria County, and Defendant removed to this Court (Dkt. 1). Plaintiff complains about TDCJ personnel's handling of inmate grievances, among other issues. Because Summers is a prisoner, the Court is required by the Prison Litigation Reform Act (“PLRA”) to scrutinize the pleadings. The Court must 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. § 1915A(b). After reviewing all of the pleadings and the applicable law, the Court concludes that this case must be DISMISSED for the reasons that follow.

         I. BACKGROUND

         On March 8, 2018, Plaintiff filed suit in the 412th District Court of Brazoria County, Texas, Cause No. 95839-I. At the time, Plaintiff was incarcerated at the Michael Unit in Anderson County.

         Plaintiff's state court pleading is headed “‘Complaint' and ‘Grievance' Under U.S.C.A. 1, 5, 6, 7, 8, 14 Amendments” (Dkt. 1-3). The pleading does not carry a customary caption, and Plaintiff does not identify a defendant. Plaintiff alleges in his pleadings that TDCJ personnel do not adequately investigate or reply to grievances:

[W]hen I write a state prison grievance you State of Texas “Grievance Officers” and or “Staff” will reply not a grievable issue[], or inappropriate, and then you say grievable time period has expired. The fact all you will not do investigation for no inmate and will not use surveil[l]ance videotapes to protect this “old man” or any inmate from []officers and or staff, “attack to an inmate”!

(Id. at 3). When docketing the case, the state court listed one defendant: the director of TDCJ's Correctional Institutions Division.[1] Plaintiff states in his pleadings that an unidentified person, addressed as “you, ” accused Plaintiff of lying on a grievance dated March 28, 2018, that the grievance was never investigated, and that “your so called counsel substitute sign[ed] for me before ever coming to my cell” (Dkt. 1-3, at 5). Plaintiff listed nineteen grievances by number, but did not provide their dates or any detail about what issues were grieved or how TDCJ responded to the grievances. As relief, he requested that the court “‘fire all officers' and or ‘staff' now and transfer me” (id. at 4).[2]

         On May 4, 2018, Judge Edwin Denman of the 412th District Court in Brazoria County construed Plaintiff's pleadings as an application for a temporary restraining order (“TRO”) and held a hearing (Dkt. 1-3, at 23-25). Plaintiff was brought to the court by a bench warrant. Defendant had not been served but, because the Court had notified the Attorney General of the date and time of the hearing, counsel from the Attorney General's office was present in the courtroom (id. at 23).

         After hearing testimony from Plaintiff, Judge Denman entered a TRO. Judge Denman found that Plaintiff would be irreparably harmed if relevant information regarding Plaintiff's grievances was not preserved, and entered a TRO restraining TDCJ, its officers, directors, employees, and agents from altering, amending, destroying, or recording over “any of the surveillance cameras in units in which Plaintiff resided at the time of the alleged grievances, ” as well as “any of the records of TDCJ that pertain to the alleged grievances, ” until further order of the court (id. at 23-24). The order listed fourteen grievances identified by the Plaintiff. The TRO also restrained TDCJ from altering, amending, destroying “all shift rosters, reports or documents that relate or pertain to the allegations in any of the [g]rievances” until further order of the court (id. at 24). In addition, Judge Denman ordered TDCJ to comply with its existing policies and procedures regarding provision of Plaintiff with postage, envelopes, and writing materials necessary for litigation, and to allow Plaintiff to obtain a copy of his trust fund account statement (id. at 25).[3] The TRO order identifies the Terrell Unit, in Brazoria County, as the TDCJ unit relevant to this lawsuit. Plaintiff's pleadings had not mentioned the Terrell Unit, and instead appeared to complain of events at the Michael Unit in Anderson County.

         Judge Denman set a hearing for May 16, 2018, to consider whether to enter a temporary injunction (id.). On May 15, 2018, Defendant removed the action to this Court and paid the $400 filing fee.

         II. STANDARD OF REVIEW

         The Court screens this case to determine whether 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. See 28 U.S.C. § 1915A. In reviewing the pleadings, the Court is mindful of the fact that Plaintiff 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 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)); see Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). “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 omitted). Additionally, regardless of how well-pleaded the factual allegations may be, they must demonstrate that the plaintiff is entitled to relief under a valid legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).

         III. DISCUSSION

         As a preliminary matter, removal jurisdiction is proper in this Court because Plaintiff filed this suit in the District Court for Brazoria County, see 28 U.S.C. § 1441(a), and appears timely based on the Attorney General's representation that the removal was filed within thirty days of its receipt of Plaintiff's pleadings. See 28 U.S.C. § 1446(b)(2)(B). Because the TRO identifies the Terrell Unit in Brazoria County as the site of the events alleged by Plaintiff (Dkt. 1-3, at 23), venue appears appropriate in this Court.

         Plaintiff alleges in his pleading that TDCJ officials violated his constitutional rights, listing the First, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments to the Constitution (Dkt. 1-3, at 3).[4] Section 1983, 42 U.S.C. § 1983, provides a vehicle for a claim against a person “acting under color of state law, ” such as a state prison official, for a constitutional violation. See Pratt v. Harris Cnty., Tex., 822 F.3d 174, 180 (5th Cir. 2016) (internal quotation marks and citation omitted); Townsend v. Moya, 291 F.3d 859, ...


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