Robledo v. Leal, 040512 TXNDC, 1:11-CV-077-BL

Docket Nº1:11-CV-077-BL
Opinion JudgeE. SCOTT FROST, Magistrate Judge.
Party NameDOMINGO ROBLEDO, Institutional ID No. 561997, Plaintiff, v. RICHARD G. LEAL, et al., Defendants.
Case DateApril 05, 2012
CourtUnited States District Courts, 5th Circuit, Northern District of Texas

DOMINGO ROBLEDO, Institutional ID No. 561997, Plaintiff,

v.

RICHARD G. LEAL, et al., Defendants.

No. 1:11-CV-077-BL

United States District Court, N.D. Texas, Abilene Division.

April 5, 2012

MEMORANDUM OPINION AND ORDER

E. SCOTT FROST, Magistrate Judge.

Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on April 18, 2011 (Doc. 1). He alleges that his rights under the United States Constitution and under federal and state law were violated by staff members at the French Robertson Unit ("Robertson Unit") of the Texas Department of Criminal Justice - Institutional Division ("TDCJ") and by various TDCJ officials, who subjected him to a visual body cavity search, retaliated against him, and violated his right to free exercise of religion under Federal and State law. The Defendants in this case include Richard G. Leal, Richard D. Daniel, Timothy Hooper, Charles S. Hendrix, Susan Wilburn, and Edward L. Wheeler.

This matter was reassigned to the United States Magistrate Judge on April 27, 2011 (Doc. 5). The court entered an Order Setting Evidentiary Hearing on July 29, 2011 (Doc. 12), setting an evidentiary hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) and 28 U.S.C. § 1915. The court also entered an order on May 24, 2011 (Doc. 10) requiring TDCJ officials to provide authenticated copies of Plaintiff's records relevant to the claims in Plaintiff's complaint. Plaintiff consented to having the United States Magistrate Judge conduct all proceedings in this case pursuant to 28 U.S.C. § 636(c) in his complaint.

Pursuant to 28 U.S.C. § 1915A, the court has conducted a review of Plaintiff's complaint as supplemented by his testimony at the evidentiary hearing in this case, as well as Plaintiff's various additional written documents and makes the following report and recommendation to the United States District Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

In his complaint, as developed by his testimony, Plaintiff claims that:

1. Plaintiff has been confined to the Robertson Unit during all times relevant to the claims in his complaint.

2. Plaintiff is a Christian. He believes that he should never be unclothed except before his wife. He attends various worship services in the unit chapel.

3. On December 13, 2009, Richard D. Daniel, Timothy Hooper, and Linda H. Strength told approximately 25 inmates that the number of inmates permitted to attend chapel was limited.

4. A week later, chairs were removed from the chapel, thereby subsequently limiting the number of inmates who would attend chapel services.

5. On December 19, 2009, in the 4D-wing 1 section dayroom, the male Defendants subjected Plaintiff and the other inmates present to a visual cavity strip search. These inmates had attended chapel service.

6. On December 20, 2009, Plaintiff and 50 other inmates were subjected to visual cavity searches upon exiting a service in the chapel. Two female officers, also Defendants, were present. In addition, women and children entering the visiting room may have been able to observe the inmates getting dressed as they left the chapel.

7. Plaintiff filed a grievances on December 24, 2009 and on February 1, 2010, regarding the strip searches on December 19 and 20, 2009. His grievances were denied by Leal and Wilborn.

Plaintiff is seeking declaratory and injunctive relief and an award of damages.

II. ANALYSIS

In both proceedings in forma pauperis and civil actions brought by a prisoner against a governmental entity, officer, or employee, the court is required under 28 U.S.C. §§ 1915-1915A to dismiss the complaint or any portion of the complaint if the complaint is frivolous or malicious or fails to state a claim on which relief may be granted. These provisions thus apply to this in forma pauperis prisoner civil rights action. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). "An [ in forma pauperis ] complaint may be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) if it has no arguable basis in law or in fact." Ruiz v. United States, 160 F.3d 273, 274-75 (5th Cir. 1998). A claim has no arguable basis in law or fact if it is based on an indisputably meritless legal theory or if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless. Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). The court is authorized sua sponte to test whether the proceeding is frivolous or malicious even before the service of process or before an answer is required to be filed. Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990); see also 42 U.S.C. § 1997e(c)(1). A questionnaire or evidentiary hearing may be used to assist the court in determining whether the case should be dismissed under these provisions. See Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976) (use of questionnaire to develop the factual basis of the plaintiff's complaint); Spears, 766 F.2d 179 (use of an evidentiary hearing).

The court has reviewed Plaintiff's arguments and claims in his complaint and testimony to determine whether Plaintiff's claims present grounds for dismissal...

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