Kendrick v. Jackson, 062110 TXEDC, 9:09CV211

• Docket Nº: Civil Action 9:09CV211.
• Opinion Judge: JUDITH K. GUTHRIE, Magistrate Judge.
• Party Name: JOHN WESLEY KENDRICK, #792063, v. DOMINIQUE JACKSON, ET AL.
• Case Date: June 21, 2010
• Court: United States District Courts, 5th Circuit, Eastern District of Texas

JOHN WESLEY KENDRICK, #792063,

v.

DOMINIQUE JACKSON, ET AL.

Civil Action No. 9:09CV211.

United States District Court, E.D. Texas, Lufkin Division.

June 21, 2010

MEMORANDUM OPINION AND ORDER OF DISMISSAL

JUDITH K. GUTHRIE, Magistrate Judge.

Plaintiff John Wesley Kendrick ("Kendrick" or "Plaintiff"), an inmate confined in the Polunsky Unit of the Texas prison system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit under 42 U.S.C. § 1983. The complaint was transferred to the undersigned with the consent of the parties pursuant to 28 U.S.C. § 636(c).

The original complaint was filed on December 21, 2009. In it, Plaintiff claims that Correctional Officers Dominique Jackson and LaDonya Jackson conspired to retaliate against him for writing grievances. See Complaint at 2 (asserting that each Defendant acted under a "conspiracy to retaliate"), 3 ("the defendant writing Plaintiff Kendrick a bogus disciplinary case was motivated by a conspiracy to retaliate against him for exercising his First Amendment right to grievance redress.").

On June 17, 2010, the Court conducted an evidentiary hearing, in accordance with Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to consider the Plaintiff's claims. The hearing was conducted "to dig beneath the conclusional allegations; to reduce the level of abstraction upon which the claims rest; to ascertain exactly what scenario the prisoner claims occurred, as well as the legal basis for the claim." Id. at 180. The Plaintiff testified as to the factual basis of his claims. Regional Grievance Supervisor Ginger Lively and Assistant Warden Timothy Lester testified under oath about prison policies and information contained in the Plaintiff's prison records.

Plaintiff testified that on September 5, 2009, he was at the door of his cell watching a football game when Correctional Officer Dominique Jackson approached his cell and asked him how many were in the cell and he responded, "One." She proceeded down the line and returned to Plaintiff's cell, accused him of masturbating and wrote him up for a disciplinary infraction. Plaintiff testified that Officer Jackson told him that "I knew sooner or later we'd get your writ writing ass." He also testified that he accused Officer Jackson of retaliating against him for having written a grievance the month prior against Correctional Officer LaDonya Jackson. He asserted that the two were "kin to each other" because someone had told him so. He stated that if the two Jacksons were "kinfolk," then they "may have shared information" between them. Therefore, he claimed, they conspired to write him up with a "bogus" disciplinary case so as to get him downgraded in his prison population classification and move him from minimum to medium custody. However, Plaintiff also testified that "I think [Officer Dominique Jackson] thought I was masturbating." Nonetheless, he continued to assert that she wrote him up out of retaliation. He testified that he was found guilty of the disciplinary case for masturbating in public and was moved to medium security.

Plaintiff also testified that being moved to medium security did not...