United States District Court, S.D. Texas, Corpus Christi Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
LEAVE TO FILE AN AMENDED COMPLAINT
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE.
Romarcus Deon Marshall is a Texas inmate appearing pro
se and in forma pauperis. In this
prisoner civil rights action, Plaintiff claims that certain
personal property was taken from him in violation of his due
process rights and that he was denied access to the courts.
Pending before the Court is Plaintiff's Motion for Leave
to File An Amended Complaint. (D.E. 23).
is a prisoner in the Texas Department of Criminal Justice,
Criminal Institutions Division. Plaintiff's allegations
in this case arise in connection with his current assignment
to the McConnell Unit in Beeville, Texas.
filed his original complaint on February 12, 2018, naming
McConnell Unit Property Officer Rafael Menchaca and the TDCJ
as defendants. (D.E. 1, pp. 3, 7). The undersigned construed
Plaintiff's original complaint as suing Officer Menchaca
in his individual and official capacity. Plaintiff claimed
that certain personal property was improperly taken from him
and destroyed, in violation of his due process rights.
Plaintiff sought injunctive and monetary relief.
March 30, 2018, the undersigned issued a Memorandum and
Recommendation (March 30, 2018 M&R), recommending that
(1) Plaintiff's due process claim against the TDCJ be
dismissed with prejudice for failure to state a claim; (2)
Plaintiff's due process claim for money damages against
Officer Menchaca in his official capacity be dismissed with
prejudice as barred by the Eleventh Amendment; (3)
Plaintiff's due process claim against Officer Menchaca be
dismissed with prejudice for failure to state a claim and/or
as frivolous; and (4) the dismissal of this case count as a
“strike” for purposes of 28 U.S.C. §
1915(g). (D.E. 11).
in addition to filing objections to the March 30, 2018
M&R (D.E. 13), Plaintiff moved for leave to file an
amended complaint and has attached a proposed amended
complaint. (D.E. 15). Plaintiff further sought
reconsideration of the March 30, 2018 M&R so that his
proposed amended complaint could be evaluated. (D.E. 14). In
his proposed amended complaint, Plaintiff sought to add
additional parties and claims and clarified the relief sought
in this lawsuit. (D.E. 15-1, pp. 3-7).
April 30, 2018, the undersigned issued an order withdrawing
the March 30, 2018 M&R, granting Plaintiff's motion
to amend, directing the Clerk of Court to docket
Plaintiff's amended complaint, and granting
Plaintiff's motion for reconsideration insofar as
Plaintiff's amended complaint will be screened to
determine whether any claims should be retained. (D.E. 16).
In his amended complaint, Plaintiff sued the following
defendants in their individual and official capacities: (1)
Property Officer Menchaca; (2) McConnell Unit Assistant
Warden C. Furr; (3) Assistant Regional Director P. Chapa; and
(4) Grievance Officer M. Blalock. (D.E. 17, p. 3).
restated in his amended complaint his due process claim as
well as asserted a First Amendment claim of denial of access
to the courts. Specifically, Plaintiff claimed that: (1)
Officer Menchaca improperly confiscated and destroyed certain
personal property, consisting of legal materials, an electric
razor, family pictures, and other papers; (2) Defendants
Furr, Blalock, and Chapa improperly rejected Plaintiff's
various grievances on this matter which prevented Plaintiff
from receiving appropriate compensation for his confiscated
and/or destroyed personal property; and (3) the actions
undertaken by Defendants in handling his personal property
complaints and grievances denied him access to the courts in
that the state court ultimately dismissed his conversion
action as untimely. Plaintiff sought declaratory relief,
injunctive relief against Defendants in their official
capacities, and monetary relief against Defendants in their
individual capacities. (D.E. 17, p. 4).
3, 2018, the undersigned issued a Memorandum and
Recommendation (May 3, 2018 M&R), recommending that: (1)
Plaintiff's due process and First Amendment claims
against Defendants be dismissed with prejudice for failure to
state a claim and/or as frivolous; (2) the TDCJ be dismissed
without prejudice because Plaintiff did not list this
defendant in his amended complaint; (3) the dismissal of this
case count as a “strike” for purposes of 28
U.S.C. § 1915(g). (D.E. 18). Plaintiff has filed
objections to the May 3, 2018 M&R (D.E. 21), and his
objections are presently pending before District Judge Hilda
PLAINTIFF'S MOTION TO AMEND
11, 2018, Plaintiff filed his Motion for Leave to File an
Amended Complaint, which would be his second amended
complaint. (D.E. 23). Plaintiff attached his proposed second
amended complaint to his motion. (D.E. 23-1). Therein,
Plaintiff clarifies that Defendant Blalock is the Assistant
Regional Director of Region IV. (D.E. 23-1, p. 3). Plaintiff
further restates his constitutional claims against Defendants
and attempts to clarify the relief sought by him in this
action. (D.E. 23, p. 1; D.E. 23-1, p. 4).
Fifth Circuit Court of Appeals has held that a plaintiff
generally should be granted leave to amend his complaint
prior to dismissal. Brewster v. Dretke, 587 F.3d
764, 767-68 (5th Cir. 2009) (per curiam) (“[A] pro
se litigant should be offered an opportunity to amend
his complaint before it is dismissed.”). Plaintiff has
filed his motion seeking leave to amend after the undersigned
issued the May 3, 2018 M&R and before Judge Tagle has
reviewed both the May 3, 2018 M&R and Plaintiff's
objections. Because this action ...