Lueck v. Wathen
| Decision Date | 19 May 2003 |
| Docket Number | No. 7-02-CV-147-BD.,7-02-CV-147-BD. |
| Citation | 262 F.Supp.2d 690 |
| Parties | Earnest LUECK Plaintiff, v. Richard WATHEN, et al. Defendants. |
| Court | U.S. District Court — Northern District of Texas |
Earnest Lueck, Iowa Park, TX, Pro se.
Harold J. Liller, Assistant Attorney General, Austin, TX, for Defendants.
Defendants Richard Wathen, James D. Mooneyham, Mark Canedo, and Michael D. Seigler have filed a motion for summary judgment in this pro se prisoner civil rights case. For the reasons stated herein, the motion is granted in part and denied in part.
Plaintiff Earnest Lueck is serving concurrent 10-year and 30-year sentences for kidnapping his ex-wife and murdering her boyfriend at the Desperado Club in Trinity, Texas. (Def.App., Exh. B). He is presently incarcerated at the James V. Allred Unit of the TDCJ-ID. After his convictions were affirmed on direct appeal, plaintiff enlisted the help of another inmate, Pierre Smith, to prepare an application for writ of habeas corpus on grounds of ineffective assistance of counsel. Plaintiff gave Smith copies of his state court records, appellate briefs, trial notes, and other documents he needed to complete the writ. (Plf. Compl. at 3; Plf.App., Exhs. P-6A & P-8A). Among these materials was the affidavit of Tom Brisco, a witness to the shooting. According to plaintiff, Brisco would have supported his self-defense theory by testifying that plaintiff did not bring a gun into the Desperado Club. Despite the importance of this testimony, Brisco was not interviewed by defense counsel or called as witness at trial. (Plf.App., Exh. P-6B & P-8B).
On or about November 5, 2001, the Allred Unit went on lockdown status. Plaintiff was escorted to a private office where his property was searched and he was interrogated by Assistant Warden James Mooneyham. Also present were Officers Mark Canedo and Michael Seigler. (Plf. Compl. at 4-5; Plf.App., Exh. P-8A). Mooneyham asked plaintiff if anyone was helping him with his state writ. Plaintiff said that Smith was assisting him and had all of his state court papers. Upon receipt of this information, Mooneyham ordered Canedo and Seigler to confiscate plaintiffs documents from Smith. (Plf.App., Exh. P-8A).1 Plaintiff assumed that his legal materials would be searched for contraband and returned to him in accordance with prison policy. However, on November 26, 2001, plaintiff received a letter from Smith advising that none of the materials had been returned. (Id.).
On December 8, 2001, plaintiff confronted Canedo about his legal documents. Canedo responded, "You don't understand Lueck, I returned your property and I can make it hard if you keep pursuing the matter." (Id.; see also Plf.App., Exh. 7). Plaintiff then filed a grievance and wrote a letter to the senior warden. (Plf. Compl, Exhs. 1 & 2). Mooneyham answered the grievance by telling plaintiff, "I talked w/ Officer Canedo who states the transcripts were returned to you." (Id., Exh. B). After plaintiff filed a second grievance, Mooneyham recanted his earlier statement and told plaintiff that Canedo and Seigler could not find his legal documents. (Plf.App., Exh. P-8A). Without these materials, plaintiff cannot complete his state writ.
Plaintiff now sues Mooneyham, Canedo, Seigler, and Assistant Warden Richard Wathen for civil rights violations under 42 U.S.C. § 1983.2 More particularly, plaintiff contends that defendants have prevented him from challenging his conviction on collateral review by confiscating his legal documents, which in turn deprives him of his constitutional right of access to the courts. Defendants move for summary judgment as to this claim and on their immunity defenses. The motion has been fully briefed by the parties and the motion is ripe for determination.
As grounds for their motion, defendants contend that: (1) plaintiff cannot establish an "actual injury" or show that his underlying habeas claims are not frivolous; (2) there is no evidence that Wathen and Mooneyham were personally involved in the events giving rise to the alleged constitutional violation; and (3) plaintiffs access claim is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The court will address each argument in turn.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. Crv. P. 56(c); Celotex v. Catrett, All U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 506 U.S. 845, 113 S.Ct. 136, 121 L.Ed.2d 89 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277,1281 (5th Cir.1991).
A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). A pro se plaintiffs verified complaint and sworn interrogatory answers can be considered as summary judgment evidence to the extent that such pleadings comport with the requirements of Rule 56(e).3 See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir.1993). However, conclusory statements, hearsay, and testimony based on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
Prisoners have a fundamental constitutional right to "adequate, effective, and meaningful" access to the courts. Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.), cert. denied, 522 U.S. 995, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997). However, the right of access is not unlimited. "[I]t encompasses only `a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.'" Johnson, 110 F.3d at 310-11, quoting Lewis v. Casey, 518 U.S. 343, 356, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606 (1996). In order to establish a claim for denial of access to the courts,' a prisoner must demonstrate that he suffered "actual injury." This, in turn, requires proof that the denial of access "hindered his efforts to pursue a legal claim." Lewis, 116 S.Ct. at 2180. See also Mc-Donald v. Steward 132 F.3d 225, 231 (5th Cir.1998).
Defendants contend that plaintiff cannot establish an "actual injury" because he has failed to explain why he could not file a state or federal writ without a copy of his trial transcript. This narrow argument misconstrues the factual basis of plaintiffs claim. According to plaintiff, defendants not only confiscated a copy of his trial transcript, but also the affidavit of a key witness, Tim Brisco. Plaintiff alleges that Brisco would have supported his selfdefense theory and contradicted the testimony of his ex-wife by testifying that plaintiff did not bring a gun into the club on the night of the shooting. Despite the importance of this testimony, Brisco was not interviewed by defense counsel. Plaintiff and his legal advisor, Pierre Smith, were in the process of preparing a state writ challenging his murder conviction on grounds of ineffective assistance of counsel when his legal papers were confiscated by defendants. Without this affidavit, plaintiff cannot establish the materiality of the missing testimony which is necessary to prove his ineffective assistance of counsel claim. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994) (). Moreover, plaintiff is unable to contact Brisco to obtain another affidavit. This evidence, viewed in the light most favorable to plaintiff, is sufficient to demonstrate "actual injury."4
Defendants further argue that plaintiff cannot show that his underlying habeas claims are not frivolous. In support of their position, defendants point out that the state appellate court summarily affirmed plaintiffs convictions and found "no arguable grounds to support the appeal." See Lueck v. State, 2001 WL 306125 (Tex.App.—Houston [14th Dist.], Mar.29, 2001, pet. ref'd). This is true. However, while plaintiff raised an ineffective assistance of counsel claim on direct appeal, the claim was not based on counsel's failure to interview Tim Brisco. This ground for relief would have been raised for the first time on collateral review had defendants not confiscated Brisco's affidavit. The court cannot say that plaintiffs ineffective assistance of counsel claim, which is based on the failure of his attorney to interview a key witness, is frivolous as a matter of law.
Next, Wathen and Mooneyham contend that there is no evidence they were personally involved in the events giving rise to the alleged constitutional violation. Personal involvement is an essential element in a civil rights action under 42 U.S.C. § 1983. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 464 U.S. 897, 104 S.Ct. 248, 78 L.Ed.2d 236 (1983). In order to satisfy this...
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