Gill v. Neaves

• Decision Date: 10 March 1987
• Docket Number: SA-86-CA-991 and SA-86-CA-998.,No. SA-82-CA-582,SA-82-CA-582
• Citation: 657 F. Supp. 1394
• Parties: Robert Lee GILL, Jr., Plaintiff, v. Joe NEAVES, et al., Defendants. Robert Lee GILL, Jr., Plaintiff, v. Judge Phil CHAVARRIA, Defendant (Two Cases).
• Court: U.S. District Court — Western District of Texas

657 F. Supp. 1394

Robert Lee GILL, Jr., Plaintiff, v. Joe NEAVES, et al., Defendants.

Robert Lee GILL, Jr., Plaintiff, v. Judge Phil CHAVARRIA, Defendant (Two Cases).

Nos. SA-82-CA-582, SA-86-CA-991 and SA-86-CA-998.

United States District Court, W.D. Texas, San Antonio Division.

March 10, 1987.

COPYRIGHT MATERIAL OMITTED

Robert Lee Gill, Jr., pro se.

Barry Hitchings, Asst. Crim. Dist. Atty., San Antonio, Tex., for defendants.

ORDER

SESSIONS, Chief Judge.

ON THIS DATE came on to be considered the disposition of the above-styled and numbered causes. Also under consideration is the Plaintiff's abuse of the judicial process. Initially, the Court points out that it has not consolidated the three above-styled and numbered causes; it has simply disposed of all of these causes in the same Order for the convenience of the Court.

I. CAUSE NO. SA-82-CA-582

IA. HISTORY OF THE CASE

Plaintiff, an inmate at the Bexar County Jail, San Antonio, Texas, brought his complaint in Cause No. SA-82-CA-582, alleging that Bexar County Sheriff Neaves, Deputy Sheriff Jones, and Deputy Commander Arcos conducted an illegal search of his property without probable cause. Plaintiff complained that on August 17, 1982, Defendant Jones, without probable cause, illegally searched the Plaintiff and "roughed" his "legal works as well." Plaintiff brought suit against Defendant Jones as the person who conducted the alleged illegal search, against Defendant Neaves as the person who was legally responsible for the jail and its policies and procedures, and against Defendant Arcos as the administrator of the jail and the person responsible for the other Defendants' actions. In subsequent correspondence with the Court, Plaintiff again stated that his complaint concerned a single incident involving a search of Plaintiff and other inmates' legal materials and some destruction of his writs. See Plaintiff's Answer to the Court's Questionnaire filed January 3, 1984.

This complaint was received by the Clerk's office on August 24, 1982, and on that same date this matter was referred to the Honorable Robert B. O'Connor, United States Magistrate, for his review and recommendation. On October 8, 1982, the Magistrate ordered his complaint filed, granted his request for leave to proceed in forma pauperis, and issued summonses. The Defendants all filed motions to dismiss for failure to state a cause of action and for failure to prosecute. Thereafter, on October 13, 1983, the Magistrate entered his findings and recommendation that Plaintiff's complaint be dismissed with prejudice for failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. On December 14, 1983, this Court entered its Order rejecting the Magistrate's findings and recommendation and referred the case back for further proceedings.

After nearly two years, a second set of findings and recommendation was submitted on January 10, 1984. This time, the recommendation was that Plaintiff's complaint be dismissed for failure to state a cause of action for which relief may be granted under 42 U.S.C. § 1983. Again, this Court rejected the findings and recommendation of the Magistrate and remanded the case for further consideration in light Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); and Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

After analyzing Plaintiff's complaint as directed by this Court, the Magistrate entered a third set of findings and recommendation on January 23, 1986, again recommending dismissal for failure to state a cause of action under § 1983. On August 5, 1986, this Court entered a third Order. This time this Court adopted the Magistrate's third set of findings and recommendation.

First, the Court rejected Plaintiff's argument that there was a violation or deprivation of a constitutional right secured to him because Defendants' actions allegedly violated a consent decree entered into by the Sheriff and Bexar County Jail officials and a class representing all prisoners in the Bexar County Jail. See Devonish v. Garza, Cause No. SA-73-CA-79. This Court found Plaintiff's argument to be without merit because "the mere approval by this Court of a consent decree by parties to a civil action does not raise the status of that decree to the status of `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Court's Order filed August 5, 1986 at 4 (citations omitted). Second, this Court rejected Plaintiff's argument that the single search of his person and his legal materials violated his Fourth Amendment rights against unreasonable search and seizures. This Court found that Plaintiff's Fourth Amendment contention failed to state a claim because "a prisoner has no Fourth Amendment right to privacy largely because of justifiable institutional concerns of safety and security (of) prisoners," thus requiring dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Court's Order filed August 5, 1986 at 8 (relying upon Hudson v. Palmer, supra, and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).

This Court's inquiry, however, did not end with its finding that Plaintiff had failed to state a claim for a Fourth Amendment violation. Despite the fact that Plaintiff had alleged only a single search of his legal materials on August 17, 1982, this Court stated that Plaintiff may have a cause of action under § 1983 if he could prove that Defendants engaged in frequent searches, seizures and destruction of his legal materials. See Court's Order filed August 5, 1986 at 9-11. This Court stated that "a constant practice of searching and destroying a prisoner's legal materials might constitute a violation of the right of access to the courts." Id. at 10 (citing Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). Accordingly, this Court remanded this case to the Magistrate for "the very limited purpose of determining whether Petitioner can state a cause of action" under Bounds, supra. This Court emphasized that the Magistrate's inquiry was "a very limited one, and should focus solely on whether the alleged violations are so pervasive as to rise to a level of a violation of Petitioner's right of access to the courts." See Court's Order filed August 5, 1986 at 10-11 (emphasis added).

Therefore, on August 26, 1986, the Magistrate entered an Order setting an evidentiary hearing for Thursday, September 11, 1986 "for the limited purpose of determining whether Plaintiff can state a cause of action pursuant to 42 U.S.C. § 1983 for a violation of his Fourteenth Amendment right to access to the courts ..." To aid the Magistrate at this hearing, an Order was entered that a writ of habeas corpus ad testificandum issue to the Sheriff of Bexar County, directing him to deliver Plaintiff to the custody of the United States Marshal for the purpose of giving his testimony at the hearing. Additionally, Plaintiff's application to subpoena witnesses was granted and the proper forms were issued to Plaintiff and the United States Marshal with order to serve the executed subpoenas upon the respective witnesses. Two other writs of habeas corpus ad testificandum were also issued for Sterling Haines and Will Roy Bratcher, both of whom are incarcerated in the Bexar County Jail. The Court also granted Plaintiff's application to subpoena additional witnesses and issued the subpoena forms for execution by Plaintiff.

On Thursday, September 11, 1986, the hearing was convened at 9:45 a.m. After announcements by the parties and about 10 minutes of preliminary matters, Plaintiff took the witness stand. At that time, he requested that the District Clerk's file pertaining to the case be produced for his review. The Magistrate granted the request and recessed the hearing for approximately 30 minutes while Plaintiff reviewed the file. At the end of 30 minutes, Plaintiff protested that he needed additional time. The Magistrate then recessed the hearing until the next morning, allowing Plaintiff to remain in the courtroom and examine the file to his satisfaction. Further, Defendants' counsel was ordered to search the files at the Bexar County Jail for any grievances which may have been filed by Plaintiff against Defendant Jones concerning his seizure or destruction of Plaintiff's legal materials during the time period of June through November, 1982.

At 7:50 a.m. on Friday, September 12, 1986, the Marshals Service reported that Plaintiff was present. At 8:10 a.m. the security guard at the front door was instructed to admit Rose Gill, Plaintiff's mother, with his personal papers. Mrs. Gill arrived at 8:18 a.m. The Marshals Service escorted Plaintiff to the courtroom at 8:24 a.m., at which time he was handed his personal papers by Mrs. Gill. At that time, the Magistrate advised Plaintiff that he would be given forty-five (45) minutes to examine the documents and then the hearing would begin. The hearing was reconvened at 9:10 a.m.

As a result of the evidentiary hearing, the Magistrate made 49 findings of fact and 11 conclusions of law. It was the Magistrate's recommendation that Plaintiff's claim of denial of access to the courts be dismissed with prejudice for failure to state a claim for which relief can be granted under 42 U.S.C. § 1983 as to all of the Defendants because the Plaintiff had shown at the most, only a factual issue as to whether there was a single search of his legal materials on August 17, 1982.

IB. PENDING MOTIONS

Before this Court considers the Magistrate's findings of fact and conclusions of law, a number of pending motions need to be resolved. First, however, the Court will point out that Plaintiff called the Court's law clerk and stated that he thought there had been a filing problem with some of his motions. Plaintiff called chambers on October 31, 1986, and indicated that he...