Decker v. Dunbar

• Decision Date: 29 September 2008
• Docket Number: Civil Action No. 5:06cv210.
• Citation: 633 F.Supp.2d 317
• Parties: Kurby DECKER v. Chequita DUNBAR, et al.
• Court: U.S. District Court — Eastern District of Texas

633 F.Supp.2d 317

Kurby DECKER v. Chequita DUNBAR, et al.

Civil Action No. 5:06cv210.

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

September 29, 2008.

COPYRIGHT MATERIAL OMITTED

Kurby Decker, Tennessee Colony, TX, pro se.

Julia Hamill Murray, Texas Attorney General, Austin, TX, for Chequita Dunbar, Nita Burgess, Latooya Sanders, David L. Hudson, Dennis Martin, Jordan Smith, Jr., Norris Jordan, Kelly Roseberry, Tammy Sharp, V. Barrow, Eugene Allen, Donald Gibson, Pamela Williams, Colt Morton, Herbert Barron, Eric Howell, and Office of the Attorney General of Texas.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

DAVID FOLSOM, District Judge.

The Plaintiff Kurby Decker, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

Decker raised numerous complaints, including allegations of retaliation, denial of access to the law library and legal materials, and cruel and unusual punishment. The Magistrate Judge ordered him to file an amended complaint setting out his claims with more factual specificity, and Decker complied with this order. The Magistrate Judge also ordered the Defendants to answer Decker's lawsuit.

On October 1, 2007, the Defendants filed a motion for summary judgment, along with summary judgment evidence. Decker filed a response to this motion, along with summary judgment evidence of his own; he also requested that his pleadings be considered as summary judgment evidence.

After carefully reviewing all of the pleadings and the summary judgment evidence of the parties, the Magistrate Judge issued a Report on August 22, 2008, recommending that the Defendants' motion for summary judgment be granted and that the lawsuit be dismissed. Decker sought and received an extension of time in which to object, but no objections have been filed; accordingly, he is barred from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc).

The Court has carefully reviewed the pleadings and documents in this case, as well as the Report of the Magistrate Judge. Upon such review, the Court has concluded that the Report of the Magistrate Judge is correct. It is accordingly

ORDERED that the Report of the Magistrate Judge (docket no. 168) is hereby ADOPTED as the opinion of the District Court. It is further

ORDERED that the Defendants' motion for summary judgment (docket no. 98) is GRANTED and that the above-styled civil action be and hereby is DISMISSED with prejudice. It is further

ORDERED that any and all other motions which may be pending in this action are hereby DENIED.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

CAROLINE M. CRAVEN, United States Magistrate Judge.

The Plaintiff Kurby Decker, an inmate of the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged denials of his constitutional rights. Decker sues numerous TDCJ officials, including law librarian Chequita Dunbar, property officer Nita Burgess, classification manager Latoya Sanders, access to courts administrator Vickie Barrow, Warden David Hudson, Captain Dennis Martin, Sgt. Jordan Smith, Lt. Norris Jordan, officer Kelly Roseberry, law library officer Tammy Sharp, officer Eugene Allen, officer Donald Gibson, assistant classification and records director Pamela Allen, officer Colt Morton, Lt. Herbert Barron, and officer Eric Howell. These Defendants have answered the lawsuit and have filed a motion for summary judgment, which is the subject of this Report.

Decker's original complaint was laden with legal conclusions, but short on specific facts. The Court ordered him to file an amended complaint setting forth his claims with more factual specificity, and Decker did file his amended complaint.

In this amended complaint, Decker says first that the defendants Dunbar, Gibson, Sharp, Barrow, Roseberry, Jordan, Roseberry, and Sanders conspired to deprive him of meaningful access to the law library. Between September 14, 2004, and July 16, 2005, Decker says, he was only allowed seven hours per week in the law library, and between November 30, 2005, and June 23, 2006, he was only allowed one hour per week of law library access. He says that "the lack of daily access to the prison law library resulted in inability to file prepare briefs and subsequent dismissals." He says that there is a "mandatory statute" requiring 15 hours per week of law library access and complains that there were pages torn out of a book in the law library, which caused dismissal of one of his lawsuits, apparently by the Texas Supreme Court, on November 17, 2005. Decker also points to a lawsuit which was dismissed by the Second Judicial District Court of Appeals, another one by the 102nd Judicial District Court of Bowie County, and one by the Sixth Judicial District Court of Appeals. Decker says that his lawsuits were "non-frivolous" but does not indicate the basis upon which they were dismissed, nor show that the alleged denial of access to the law library resulted in these dismissals.

Next, Decker says that Dunbar, Burgess, Sharp, Smith, and Jordan conspired to deny him an extra legal storage box. He says that this caused the U.S. Supreme Court to rule against him in his criminal case.

On July 7, 2005, Decker says that Dunbar, Sharp, Gibson, Barrow, Jordan, and Smith denied him restroom privileges for three hours, causing him to urinate on himself. He was then placed in an "outside cage" in "extreme heat" and without water, which caused injury; Decker indicates that he suffered a "ruptured bladder." Following this incident, the defendants Dunbar, Sharp, Barrow, Hudson, Sanders, and Williams retaliated against him by scheduling him for law library sessions with inmates classified in safe-keeping. He says that this caused him to be identified as a homosexual, resulting in his being assaulted on May 12, 2006.

Decker states that Dunbar, Hudson, Martin, Smith, Jordan, Roseberry, Morton, Allen, and Gibson all conspired to deprive him of rights and privileges under the 14th Amendment. He says that they wrote "fourteen bogus disciplinary cases" between January 6, 2004, and September 16, 2006, for "non-posted, non-written disciplinary infractions."

Next, Decker says that Dunbar, Sharp, Burgess, Hudson, Martin, Jordan, and Barrow are violating his rights under the Americans with Disabilities Act by denying him an extra legal storage box due to his disability, and giving him a choice of life or property. He says that he was subjected to retaliation for his writ-writing activities which "shocked the conscience."

Decker further asserts that he was subjected to violations of due process and equal protection which caused him harm in reputation. He again refers to "bogus disciplinary cases" and says that the Defendants are maintaining fraudulent agency records. Decker points to a disciplinary case which he says was written for requesting a grievance form and for asking to use the restroom; he states that this case was given to him for exercising his First Amendment rights.

Decker's Attachments to his Amended Complaint

Decker includes various attachments to his amended complaint. These include an affidavit, signed by four inmates, saying that on September 14 and September 16, 2006, Morton did an "improper cell search," scattering Decker's legal property into liquid on the floor, leaving his commissary unsecured, and leaving the cell door open. On September 16, 2006, Morton left Decker's cell with a large bag of property, and would not issue Decker confiscation papers. The affidavit goes on to say that Roseberry has a "repugnant reputation" for provoking and harassing inmates for no reason, and that Lt. Jordan makes "fake excuses" and allows malfeasances to continue.

Decker next attaches a Step One grievance, no. 2007006359, dated September 9, 2006, in he says that he and other inmates are being made late in arriving at the law library, causing them to be short some 30 minutes of law library time each day. He says that Roseberry has "widespread animosity" toward writ-writers, and says that Roseberry denied him extra time in the law library because the "pass was written in red ink." He states that on September 7, he, Decker, arrived at the law library at 3:40 p.m. when he was scheduled for 3:45 p.m. Roseberry was verbally abusive and told him that Dunbar "would not tell him nothing" and that he should come back in 20 minutes. He says that Roseberry and Jordan threatened to write him a case if he wrote a complaint against them, and that inmates from other buildings were allowed to sign in at 12:45. The response to this grievance was that Dunbar and Roseberry deny conspiring together, that Roseberry follows the building schedule as outlined, and that inmates are allowed 15 minutes to get from their housing assignment to the law library.

In his Step Two grievance, Decker refers to the actions of Roseberry and Dunbar as a "choreographed scam" and says that the prison officials have a duty to ensure that prisoners arrive at the law library at the scheduled time. He says that Roseberry held the inmates up past the 15 minute grace period, and then Dunbar, Sharp, and Roseberry blamed each other, although it was a ...