United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
Douglas Collins, an inmate in the Texas Department of
Criminal Justice- Correctional Institutions Division
(“TDCJ”), proceeds pro se and in
forma pauperis. Because the plaintiff is incarcerated,
this case is governed by the Prison Litigation Reform Act
(the “PLRA”), 28 U.S.C. § 1915, which
requires the Court to dismiss the complaint if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915A(b); 28 U.S.C.
§ 1915(e)(2)(B). After reviewing all of the pleadings as
required, the Court concludes that this case must be
DISMISSED for reasons that follow.
is incarcerated at the Wallace Pack Unit. He brings suit
against Deborah Schubert, the kitchen captain at the Pack
Unit, for violation of his Fourteenth Amendment right to
equal protection of the laws. Collins states that on June 11,
2019, Schubert “put on the schedule” that fried
chicken would be served to inmates on June 12, 2019 (Dkt. 1,
at 4). However, he alleges that on June 12, “only staff
got to eat” the fried chicken. He states that Schubert
told him that the fried chicken would be “moved to the
next holiday, ” which was June 19, 2019 (id.
at 4, 7).
alleges that on June 19, “we were locked down for
shake-down and the staff [e]njoyed fried chicken and we got
chicken patties” (id. at 7). He claims that as
of the date he signed his complaint, October 8, 2019, no
inmate at the Pack Unit had received fried chicken
(id. at 4, 7, 9). He also alleges that “all
the other inmates in TDCJ got fried chicken” and that
his equal protection rights were violated (id. at
7). He references the Juneteenth holiday. See id. at
9 (“I have a right to what the other inmates got on the
only black holiday in Texas. It took two and a half years for
blacks in Texas to learn they were free and we on Wallace
Pack still are waiting to get our meal”).
claims that the “government and taxpayers” gave
TDCJ funds to feed inmates, not staff (id. at 4),
and that TDCJ policy requires staff to eat what inmates eat
(id. at 7). He appears to allege that someone is
selling the food to the staff. See id. (“The
government and taxpayer[s] pa[i]d for the food for us, that
is being re-sold to staff and we can only dream about our
food”). Finally, he alleges generally that officers at
the Pack Unit are not truthful. See id. at 4
(“Judge Keith P. Ellison has just about impeached all
the staff on this unit because they lie”). This
statement apparently refers to Cole v. Collier,
Civil Action No. 4:14-cv-1698, a separate lawsuit before
Judge Ellison in which plaintiffs from the Pack Unit brought
claims about excessive heat.
submits his administrative grievances against Schubert
regarding the events relevant to his claim. At Step One of
the process, prison officials denied his grievance on June
28, 2019, stating that the menu changed on June 12 because
the chicken had been thawed out on and had to be cooked:
Your grievance has been received and investigated. Per Food
Service on 6/12/19 the [officers' dining room] was served
fried chicken due [to the fact that] it was already thawed
out and had to be cooked. The general population menu was
changed to chicken patties so that fried chicken could be
served for the holiday meal on 6/19/19. No further action
warranted at this time.
(id. at 13). Collins then submitted a Step Two
grievance, protesting that “Schubert lied” and
that the inmates had not received fried chicken on June 19
“because we were locked- down for shake-down and we got
chicken on  6/28/2019 for the June 19 black holiday but it
was not fried” (id. at 10). He claimed the
right to be treated like other prisoners in TDCJ
(id.). Prison officials denied the Step Two
grievance (id. at 11).
PLRA AND PRO SE PLEADINGS
brings his claims under 42 U.S.C. § 1983. The Court is
required by the PLRA to scrutinize the claims and dismiss the
complaint if it is frivolous, malicious, or fails to state a
claim upon which relief may be granted. 28 U.S.C. §
1915A(b); 28 U.S.C. § 1915(e)(2)(B)); see 42
U.S.C. § 1997e(c)(1).
reviewing the pleadings and litigation history, 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)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation
omitted). 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.
is frivolous if it lacks any arguable basis in law or fact.
Samford v. Dretke, 562 F.3d 674, 678 (5th Cir.
2009). It lacks an arguable basis in law “if it is
based on an indisputably meritless legal theory.”
Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir.
2013) (internal quotation marks and citation omitted). It
lacks an arguable basis in fact “if, after providing
the plaintiff the opportunity to present additional facts
when necessary, the facts alleged are clearly
baseless.” Id. (internal quotation marks and
dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim is governed by the same standard
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Rogers, 709 F.3d at 407. When considering
whether the plaintiff has adequately stated a claim upon
which relief can be granted, the court examines whether the
complaint contains “sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its
face.” Id. Under this standard, the Court
“construes the complaint liberally in favor of the
plaintiff, ” “takes all facts pleaded in the
complaint as true, ” and considers whether “with
every doubt resolved on [the plaintiff's] ...