Clewis v. Hirsch, CIVIL ACTION NO. H-13-2308
| Decision Date | 30 March 2016 |
| Docket Number | CIVIL ACTION NO. H-13-2308 |
| Parties | BORIS TWAIN CLEWIS, TDCJ #694570, Plaintiff, v. BILLY D HIRSCH, et al, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Plaintiff Boris Twain Clewis ("Clewis"), a state inmate currently incarcerated by the Texas Department of Criminal Justice-Correctional Institutions Division ("TDCJ"), filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, for various events which allegedly occurred over the course of about two years and involved numerous defendants. Clewis's principal complaints appear to involve the management, confiscation, and eventual disposal of some of his legal property by various officials at TDCJ's Wynne Unit.
Before the Court is defendants' Motion for Summary Judgment (Docket Entry No. 35). After reviewing the motion, the responses, the record, and the applicable law, the Court concludes that the motion should be granted and that all claims should be dismissed.
Clewis presents a long narrative detailing various events and incidents which occurred at the Wynne Unit. He names the following individuals as defendants who were TDCJ employees at the Wynne Unit at the time the alleged incidents took place: Warden Billy Hirsch ("Warden Hirsch"), Assistant Warden Kevin Mayfield ("Warden Mayfield"), Property Officer Lawanda M. Hightower ("Officer Hightower"), Property Officer Ineequa A. Fisher ("Officer Fisher"), Access to Courts Supervisor and Law Librarian Robert H. Quada, Jr. ("Quada"), Captain Gregory Vaughn ("Captain Vaughn"),1 Correctional Officer Courtney N. Scott ("Officer Scott"), Captain of Correction and Disciplinary Hearing Officer Bruce D. Baggett ("Captain Baggett"), Correctional Officer Garland R. Goodrum ("Officer Goodrum"), John and Jane Does, Major Robert J. Jenkins, Jr. ("Major Jenkins"), Captain Kendric Demyers ("Captain Demyers"), Sergeant Terrilyn H. Merchant ("Sergeant Merchant"),2 Lieutenant J.G. Burleyson ("Lieutenant Burleyson"), Lieutenant B.D. Rigsby ("Lieutenant Rigsby"), Assistant Warden Tony Selman ("Warden Selman"), and Assistant Program Administrator for the Access to Courts Program Vickie Barrow ("Barrow").3
Plaintiff's claims stem from a series of periodic, routine cell searches called shakedowns.4 In particular, the Complaint takes issue with shakedowns that occurred on August 10, 2011, November 29, 2011, April 5, 2012, and October 18, 2012.5 These shakedowns, which culminated in the confiscation and destruction of Clewis's excess personal and legal property, are chronicled below.
According to Clewis's Complaint, on August 10, 2011, all inmates were ordered to move their possessions to the first floor for inspection for the semi-annual shakedown.6 In response to being told to bring his property to the shakedown area, Clewis allegedly asked the field officer for the names of the persons in charge of the shakedown, and the officer indicated that Captain Demyers and Lieutenant Bolten were in charge.7 Clewis allegedly asked to talk to a supervisor about getting a cart or having help from another inmate because his back was bad that day.8 An officer allegedly radioed for a cart but later notified Clewis that he had to bring his property down to the first floor because no cart could come up to the second floor.9 Field officers allegedly yelled to the inmates that if the inmates did not come out with their property, they were going to lockup.10 Clewis claims he picked up two bags and set them outside his cell but complained to the field officers that he had asked to talk to a supervisor.11 Officer Scott allegedly advised him not to leave at that point.12 When Captain Vaughn and other field officers came to his cell, Captain Vaughn allegedly yelled at Clewis: "Get your bitch ass down stairs."13 Clewis informed Captain Vaughn that Vaughn did not have to call him a "bitch," to which the field officers with Captain Vaughn allegedly responded by handcuffing Clewis and telling himnot to talk to the Captain Vaughn in that manner.14 Officer Scott allegedly kicked the two bags Clewis had carried out of his cell from the second floor to the first floor, which Clewis claims damaged his typewriter, radio, and other property.15 Clewis filed two grievances regarding the shakedown, one complaining about Captain Vaughn, Officer Scott, and any other officers that were at the scene at his cell (Grievance No. 2011215851), and one regarding property room procedure with respect to his damaged typewriter (Grievance No. 20112211502).16 Prison officials handling the grievances found no evidence or other basis for either of these grievances, which had proceeded through both steps of the grievance process.17
According to Clewis, on November 29, 2011 the Wynne Unit conducted another shakedown where the inmates were instructed to bring their property to the gym for inspection, and Clewis complied.18 Even so, he filed another grievance (Grievance No. 2012064924) to complain that the prison had violated the ADA because he had asked to talk to a supervisor again and that Sergeant Pineiro allegedly appeared at his door yelling at him and asking what the problem was.19 Clewis alleges he told Sergeant Pineiro that he had a back injury and other medical problems and could not pack his property. Sergeant Pineiro allegedly informed Clewis that if he did not pack up his property it would be confiscated.20 Captain Vaughn, LieutenantBurleyson, and Lieutenant Rigsby allegedly told Clewis to break his property down into smaller amounts, so Clewis dragged his property to the gym, which Clewis claims took him 1 ½ hours and several trips.21 Lieutenant Rigsby allegedly walked behind Clewis and taunted him by saying that Clewis was "walking the Green Mile get right with Jesus, etc."22 Clewis requested in his grievance that he be allowed assistance, including carts, to move his property to the shake-down area.23
The response to Clewis's November 29, 2011 grievance stated that anyone with a verifiable medical condition may have assistance to move their possessions, and that the officers accommodated Clewis by allowing him to make as many trips as needed in order for him to move his property within his 25-pound weight restriction.24 It is undisputed that no property was confiscated during the November 29, 2011 shakedown.
On April 5, 2012, the prison conducted another shakedown.25 Clewis alleges that he complied with the order to pack up his property for the shakedown, but that he was written up for a disciplinary case (Disciplinary Case No. 20120217073).26 Clewis was charged with the following offense: "Clewis . . . did refuse to pack his property and take it to C-gym which resulted in a significant disruption of operations in that such act caused the annual shakedown to be stopped/interrupted, and was ordered by Sgt. Merchant to pack his property and said offenderfailed to obey the order."27 Clewis was found guilty of the offense, lost commissary privileges and was restricted to his cell for forty-five days, and was put in solitary confinement for fifteen days.28
For his hearing, Clewis submitted unsworn declaration in order to contest the disciplinary case.29 In that declaration, incorporated into his pleadings, Clewis alleges the following facts:
Clewis had packed up almost all of his property, except his "fan, hot pot, multi-outlet plug (7 plugs), etc.," but when the officers came for him to get his property and go to the gym, Clewis could not comply right away because he had to use the bathroom.30 Sergeant Merchant yelled at him to finish up and to take down the sheet blocking her view.31 Clewis complied, and then Sergeant Merchant told him to bring his property to the gym in one trip.32 Clewis objected, stating that he had a medical issue and that he needed a cart.33 At that point, Officer Butler explained that it was not possible to bring a cart to the third floor.34 Sergeant Merchant then asked Clewis if he had a pass for a cart, and Clewis told her "no."35 Sergeant Merchant again told Clewis to move his property down to the gym.36 Clewis then asked to talk to a supervisor, andSergeant Merchant informed him that she was the supervisor.37 At that, Clewis picked up the two lightest bags and headed to the gym, but by that time the cell block door was locked.38 Sergeant Merchant again told him to get the rest of his property, and he allegedly came back to his cell and decided that he needed to change his shoes, which again delayed the process of moving his property.39 At that point, Sergeant Merchant told him he was moving too slowly and that he was going to lockup.40 Clewis alleges that he told Sergeant Merchant that he hurt his back, and Sergeant Merchant and Officer Brumley took him to the infirmary.41 His property was confiscated.42
On April 26, 2012, Clewis allegedly went to the property room to get the property that had been confiscated on April 5, 2012.43 He alleges that he refused to sign off on receiving his property because he wanted to inspect all of it first to make sure nothing was damaged or missing.44 Officer Hightower, the officer in the property room at the time, allegedly became angry at Clewis's refusal to sign for his own property (on a form called a "PROP-05" form) and stated that she would keep all of Clewis's property because he had a property claim pending.45She asked him again to sign the PROP-05 form, and again he refused.46 Officer Hightower released most of his property to him at that point, except some of his magazines for which she needed proof of ownership.47
When Clewis received his property back from the property room, Sergeant Merchant allegedly told him that she was going to write him up every day until he came into compliance with the rules and that he...
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