Duenes v. Wainwright

• Decision Date: 07 December 2017
• Docket Number: A-17-CV-0726 -LY
• Parties: JUAN DUENES #1865465 v. DALE WAINWRIGHT, et al.
• Court: U.S. District Court — Western District of Texas

JUAN DUENES #1865465 v. DALE WAINWRIGHT, et al.

A-17-CV-0726 -LY

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

December 7, 2017

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas. Duenes is pro se and was granted leave to proceed in forma pauperis. Before the Court is Duenes's Complaint (Docket Entry "DE" 1).

STATEMENT OF THE CASE

At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Juan Duenes was confined in the Boyd Unit of the Texas Department of Criminal Justice ("TDCJ"). Named as Defendants are Dale Wainwright, as Chairman of the Texas Board of Criminal Justice; Bryan Collier, TDCJ Executive Director; Debbie Liles, Director of TDCJ's Administrative Review & Risk Management Divison; Cynthia Tilley, Senior Warden of the Boyd Unit; and "any successors in office." Duenes alleges that Defendants, "acting under color of law either in their official capacities and or individual capacities," have engaged in a civil conspiracy to violate Duenes's federal constitutional rights. Duenes alleges his First Amendment rights and his right to access the courts have been violated by unconstitutional procedures and policies, and he is subjected to unconstitutional conditions of confinement in violation of his Eighth Amendment rights. Duenes further alleges he has been retaliated against for asserting the deprivation of his constitutional rights. He seeks declaratory and injunctive relief for his claims against Defendants in their official capacities and an award of punitive damages and attorneys' fees.

DISCUSSION AND ANALYSIS

A. Review under 28 U.S.C. §§ 1915 & 1915A

Duenes's claims must be screened pursuant to 28 U.S.C. § 1915A. Under § 1915A, if a complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief, the Court must dismiss the complaint, or any portion of the complaint,. Martin v. Scott, 156 F.3d 578 (5th Cir. 1998). When reviewing the complaint under § 1915A, a court must construe the allegations liberally. Haines v. Kerner, 404 U.S. 519 (1972). However, a plaintiff's pro se status does not offer him "an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation and abuse already overloaded court dockets." Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).

B. Duenes's claims¹

1. Civil conspiracy

Duenes asserts Defendants participated in a civil conspiracy to violate his constitutional rights, acting under color of law "either in their official capacities and or individual capacities." (DE 1 at 4). Construed broadly, Duenes's first claim for relief alleges Defendants conspired to deny him the constitutional rights delineated in his other claims for relief. To support a federal civil rightsconspiracy claim, a plaintiff must allege facts that suggest an agreement between government actors to commit an illegal act and an actual deprivation of the plaintiff's constitutional rights. Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999); Cinel v, Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). "Mere conclusory allegations of conspiracy cannot, absent reference to material facts, constitute grounds" for relief. Dayse v. Schuldt, 894 F.2d 170, 173 (5th Cir. 1990). See also Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987) (recognizing that "[b]ald allegations that a conspiracy existed are insufficient" to state a claim for relief).

Section 1983 suits may be instituted to sue a state employee using or abusing power possessed by virtue of state law, to violate a person's constitutional rights. Monroe v. Pape, 365 U.S. 167, 184 (1961); Brown v. Miller, 631 F.2d 408, 410-11 (5th Cir. 1980). A § 1983 plaintiff must show an abuse of government power that rises to a constitutional level in order to state a cognizable claim. Love v. King, 784 F.2d 708, 712 (5th Cir. 1986); Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980). Endorsing improper acts of others does not make an individual liable for violating a person's constitutional rights. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).

None of Duenes's claims for relief assert the denial of a federal constitutional right by Defendants acting in concert or otherwise. Duenes's Complaint only makes conclusory allegations of a conspiracy, which are insufficient to state a claim for civil conspiracy. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). The conspiracy claim is therefore frivolous and should be dismissed.

2. First Amendment

Duenes asserts that, beginning in April of 2016, Defendants published and began to enforce a systemwide procedure prohibiting inmates from maintaining active social media accounts for thepurposes of soliciting, updating, or engaging others, through a third party or otherwise. (DE 1 at 5). Duenes argues "all inmates have a federal constitutional right to legitimate free speech through direct or third party social media accounts." Id. Duenes asserts he has a right to participate in social media for the purpose of seeking employment and housing upon his release from prison, to communicate with family members and friends, to conduct legal research, to communicate with organizations established to promote prison reform, and to expose the fraudulent expenditure of taxpayer moneys or abuses of state executive branch power "giving rise to unconstitutional conditions of confinement." Id. Duenes contends there is no legitimate state purpose for the prohibition on social media, because the prohibition "interferes with actual and meaningful rehabilitation and reduction of recidivism." (DE 1 at 6). Duenes further argues he has a "constitutional right" to possess a laptop computer with an unlimited Internet service connection, for the purpose of accessing websites containing state and federal case law. Duenes argues such access would allow him to pursue a career and would "deter recidivism," and further asserts "at least one or more TDCJ inmates have already acquired laptop computers for legal research with internet/program connectivity in their personal possession in-cell housing areas." (DE 1 at 10).

In Stauffer v. Gearhart, the Fifth Circuit explained the impact of imprisonment on one's civil rights:

Prisoners do not lose all constitutional rights once they pass beyond prison walls, but they retain only those First Amendment rights which are not inconsistent with their status as prisoners or with the legitimate penological objectives of the prison system. See Turner v. Safley, 482 U.S. 78, 84 (1987); see also Hudson v. Palmer, 468 U.S. 517, 523 (1984). Because courts are "'ill equipped' to deal with the difficult and delicate problems of prison management, [the Supreme Court] has afforded considerable deference to the determinations of prison administrators." Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1988). "[P]rison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations." Id.at 409 (quoting Turner, 482 U.S. at 89). Furthermore, "prison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison." Id. at 407. Based on these considerations, the Supreme Court has rejected a "heightened" scrutiny standard for regulations that are "centrally concerned with the maintenance of order and security within prisons" and instead applies a reasonableness standard. Id. at 409-10. A prison regulation that "impinges on inmates' constitutional rights . . . is valid if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 88.

741 F.3d 574, 584 (5th Cir. 2014).

The federal courts that have considered the issue of a right to use a computer have reasoned that, because prisoners have no federal constitutional right to possess a typewriter, they logically do not have a constitutional right to a computer. Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994); Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989); American Inmate Paralegal Assoc. v. Cline, 859 F.2d 59, 61 (8th Cir. 1988) ("Prison inmates have no constitutional right of access to a typewriter."); Lehn v. Hartwig, 13 F. App'x 389, 392 (7th Cir. 2001) (holding, in a section 1983 action, "If prisoners have no constitutional right to a typewriter, they certainly do not have one to a computer"). See also Robinson v. Joya, 2010 WL 1779885, at *3 (E.D. Cal. 2010) (stating, in a section 1983 action, "No court has found that prisoners have a constitutional right to possess personal computers, or items that are similar to personal computers, in their cells."). State inmates do not have a federal constitutional right to possess computers or to access the Internet.²

Duenes's claim that he must be allowed to possess a computer to further his rehabilitation is also unavailing—the United States Constitution does not afford prison inmates a protected right to educational or rehabilitative programs or services. Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988); Stewart v. Winter, 669 F.2d 328, 336 n.19 (5 th Cir. 1982). Cf. Bulger v. United States Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995) (finding no federal constitutional right to participate in an education or rehabilitative program while incarcerated).

Duenes therefore fails to state a claim that his constitutional rights were violated by the enactment and implementation of a policy that prohibits his possession of a computer and access to social media.

3. Access to ...