Johnson v. Texas Dept. of Criminal Justice

Decision Date01 December 1995
Docket NumberCiv. A. No. A-85-CA-094.
Citation910 F. Supp. 1208
PartiesDaniel JOHNSON, Plaintiff, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al., Defendants.
CourtU.S. District Court — Western District of Texas

Douglas M. Becker (Court appointed), Gray & Becker, Austin, Texas, for Plaintiff.

Adrian Young, Assistant Attorney General, Daniel E. Maeso, Assistant Attorney General (both of the Law Enforcement Defense Division of the Texas Attorney General, Dan Morales. Jorge Vega, First Assistant Atty. Gen., Drew T. Durham, Deputy Atty. Gen., Criminal Justice, and Ann Kraatz, Chief of the Law Enforcement Defense Division.), Attorney General's Office, Austin, Texas, for Defendants.

AMENDED MEMORANDUM OPINION1

CAPELLE, United States Magistrate Judge.

Based upon the pleadings, the evidence presented, and the parties' arguments, this memorandum opinion is hereby entered granting relief to the class of all inmates of the Texas Department of Criminal JusticeInstitutional Division ("TDCJ-ID"), having Daniel Johnson as its class representative, against Defendants,2 being the members of the Texas Board of Pardons and Paroles and the members of the Texas Board of Criminal Justice, all having been sued in their official capacities, on the issues of the Texas Board of Pardons and Paroles' ("Board")3 receipt and consideration of inmates' writ-writing activities and the Board's receipt of protest letters when making parole determinations. Relief is hereby denied to the Plaintiff class on its claim against the Texas Board of Pardons and Paroles' consideration of an inmate's furlough history when making parole determinations. The parties consented to this Court's jurisdiction under 28 U.S.C. § 636(c).

I. PROCEDURAL HISTORY

Plaintiff, Daniel Johnson, an inmate of the TDCJ-ID, submitted this pro se civil rights action on February 19, 1985, which was filed on February 26, 1985 after leave to proceed in forma pauperis was granted. On July 6, 1986, a prior United States Magistrate Judge issued a report and recommendation, which the District Court adopted, dismissing the Plaintiff's claims for failure to state a claim and for failure to exhaust state remedies. On July 17, 1987, the Fifth Circuit Court of Appeals reversed this dismissal and remanded the cause for further proceedings. Johnson v. Pfeiffer, 821 F.2d 1120 (5th Cir.1987) ("Johnson I").

On June 20, 1988, counsel was appointed to represent the Plaintiff. Plaintiff's Fourth Amended Complaint was filed on September 7, 1988. Defendants filed their Amended Answer on October 14, 1988. Daniel Johnson originally asserted five (5) causes of action based on violations of constitutional rights under both the United States and Texas Constitutions and rights protected by 42 U.S.C. § 1983. On November 26, 1991, the parties consented to this Court's jurisdiction under 28 U.S.C. § 636(c) to enter final orders and judgment in the case.

Defendants filed a Motion to Dismiss or, in the Alternative for Summary Judgment on March 10, 1989, and a second such motion on March 13, 1989. On December 18, 1991, this Court entered an order granting Defendants' motions for summary judgment as to Plaintiff's claims that a Texas sentencing statute (requiring that more of a sentence be served for certain aggravated offenses or offenses involving a deadly weapon) had been routinely applied in an ex post facto manner and that Defendants had failed to set a tentative parole month and to propose a program of measurable institutional progress for Plaintiff and other inmates. The Court denied Defendants' motions for summary judgment as to Plaintiff's three remaining claims, which included causes of action based on violations of constitutional rights under both the United States and Texas Constitutions, and rights protected by 42 U.S.C. § 1983, being: 1) Defendants retaliate against inmates who file habeas corpus actions, civil rights actions, and other litigation by subjecting such inmates to harsher treatment in parole considerations; 2) Defendants consider "protest" letters received from trial officials, victims, and citizens when making parole decisions; and 3) Defendants invidiously discriminate against inmates who are not Texas residents by considering the prior award of furloughs as a factor favoring parole when out-of-state residents are, as a practical matter, precluded from being awarded such furloughs.

On January 28-31, 1992, the Court heard Plaintiff's Amended Motion for Class Certification. The testimony and exhibits admitted at that hearing have been incorporated into the record of the trial on the merits. The Court entered an order certifying this litigation as a class action pursuant to Rule 23, Federal Rules of Civil Procedure, on February 11, 1992. The class of all present and future inmates of the TDCJ-ID was certified for prospective, injunctive relief. That order was amended on March 25, 1992 to reflect that the class was certified under Fed. R.Civ.P. 23(b)(1) and (b)(2).

On April 22, 1992, Plaintiff filed his Motion for Partial Summary Judgment and Brief in Support seeking judgment on two of the three remaining issues: that Defendants retaliate against writ-writing inmates and that Defendants invidiously discriminate against non-resident inmates who are not "eligible" for furloughs, and thus have not completed one, by considering a furlough completion as a positive factor favoring parole.

On May 11, 1992, Defendants filed their Supplemental Motion to Dismiss, or Alternatively, for Summary Judgment with Supporting Brief and Response to Plaintiff's Motion for Summary Judgment. On June 5, 1992, this Court ordered that, after consideration of the pending motions, evidence should be submitted on the issues presented, and held the motions in abeyance pending the outcome of the trial of this cause. Trial before the Court proceeded on June 9-12 and June 23-26, 1992, and July 16, 1992, at which time testimony concluded. Approximately sixty-three witnesses testified and more than two hundred exhibits were introduced.

Plaintiff filed a Post-Trial Brief on July 24, 1992. Defendants filed a Post-Trial Brief under Seal and Amended Post-Trial Brief under Seal on August 12, 1992 and August 17, 1992, respectively. Plaintiff filed a Reply to Defendants' Amended Post-Trial Brief on August 20, 1992, and submitted a proposed memorandum opinion. Defendants filed Proposed Findings of Fact and Conclusions of Law on July 8, 1994. Both parties submitted several letter briefs.

II. WRIT WRITERS
A. Plaintiff's Argument

Plaintiff and the Plaintiff class allege that inmates who have initiated and prosecuted civil rights and habeas corpus actions against the Texas Department of Criminal Justice and other state officials, on their own behalf or on behalf of other inmates, have been discriminated against during parole consideration. There is alleged to be a retaliatory and customary practice of the Defendants to deny parole to "writ writers."

B. Defendants' Argument

In response, Defendants assert that the evidence fails to demonstrate retaliation against any inmate in the parole review process because of that inmate's legal activities.4 They claim that, although some inmates have expressed a belief that they are retaliated against in the parole review process because of their legal activities,5 the evidence demonstrates that the only effect an inmate's legal activities may have on his parole is favorable in that it is considered to advance an inmate's educational development and to be an industrious use of the inmate's time while in prison.6 Defendants claim that the absence of a specific written Board rule prohibiting the negative consideration of an inmate's legal activities is neither factually nor legally relevant,7 but in fact, a TDCJ Administrative Directive prohibits retaliation against inmates for legal activities.8 Additionally, the absence of a formal written Board policy concerning writ-writing has not "chilled" inmates' use of the courts or the TDCJ's grievance system to express their legal complaints.9 Even assuming any chilling effect, federal decisional law does not establish a constitutional deprivation without an actual intentional act of retaliation for an inmate's legal activity, for which Defendants cite Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986). As a final argument, Defendants claim that the parole officials do not know nor care if inmates are writ writers, given that Board members review and vote on over 70,000 cases annually,10 making retaliation a practical impossibility.11

C. Analysis

Despite the Defendants' arguments, historically there has been a bias against inmates considered to be writ writers by the employees of the Texas Department of Corrections (TDC), now the Texas Department of Criminal Justice—Institutional Division (TDCJ-ID).12 This Court determines that there should be a Board rule which definitely prohibits the consideration of an inmate's legal activities when the Board determines that inmate's candidacy for parole. To do anything less restricts, at least as a practical matter, an inmate's access to the courts. Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Finding a right of access by prisoners to the federal courts, the Supreme Court held:

The state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus. Whether a writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine.

Hull, 312 U.S. at 549, 61 S.Ct. at 642.

Nor may Texas prohibit inmates from assisting each other in preparing writs and other legal documents. Johnson v. Avery, 393 U.S. 483, 484, 487, 89 S.Ct. 747, 748-50, 21 L.Ed.2d 718 (1969) (prohibiting inmates from assisting other prisoners, as a practical matter, prevents illiterate prisoners from having their claims heard). The right of access to the courts, by...

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