IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION JAMES ROBINSON #2265167 § § V. § A-20-CV-424-LY § TRAVIS STATE JAIL MAIL ROOM § SUPERVISOR MRS. WINN § 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

(b) and Rule 1(f) of Appendix C of the Local Court Rules. Before the Court is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave to proceed in forma pauperis. STATEMENT OF THE CASE At the time he filed his complaint pursuant to

, Plaintiff was confined in the Dominguez Unit of the Texas Department of Criminal Justice - Correctional Institutions Division. Plaintiff’s complaint relates to his previous confinement in the Travis State Jail. According to Plaintiff, Travis State Jail Mail Room Supervisor, Mrs. Winn, opened his legal mail outside of his presence. Specifically, Plaintiff complains Mrs. Winn opened mail from the Texas Supreme Court addressed to him. Plaintiff asserts Mrs. Winn called him to the mail room and told him it was an accident. Plaintiff refused to sign a form provided by Mrs. Winn. Plaintiff denies the opening of the mail was an accident and claims his legal mail has previously been opened outside of his presence on two other occasions. He requests the Court to “[g]et to the bottom of this situation & file a lawsuit.” DISCUSSION AND ANALYSIS A. Standard Under

(e)

According to 28 U.S.C. § 1915A(b)(1), this Court is required to screen any civil complaint in which a prisoner seeks relief against a government entity, officer, or employee and dismiss the complaint if the court determines it is frivolous, malicious, or fails to state a claim on which relief may be granted. See also

(e)(2)(B) (directing court to dismiss case filed in forma pauperis at any time if it is determined that action is (i) frivolous or malicious, or (ii) fails to state claim on which relief may be granted). An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke

v. Williams,

(1989). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges a violation of a legal interest which clearly does not exist.” Harper v. Showers,

(5th Cir. 1999) (internal quotation and citation omitted). A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional scenarios’ or the legal theory upon which a complaint relies is ‘indisputably meritless.’” Eason v. Thaler,

(5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327–28). In evaluating whether

a complaint states a claim under sections 1915A(b)(1) and 1915(e)(2)(B), this Court applies the same standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain,

(5th Cir. 2011); see also FED. R. CIV. P. 12(b)(6). To avoid dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is 2 plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

, 555–56, 570 (2007)); see FED. R. CIV. P. 12(b)(6). These factual allegations need not be detailed but “must be enough to raise a right to relief above the speculative level.” Twombly,

. A conclusory complaint—one that fails to state material facts or merely

recites the elements of a cause of action—may be dismissed for failure to state a claim. See

at 555–56. B. Legal Mail In order for Plaintiff’s claim to rise to the level of a constitutional violation of his right to access to the courts under the First Amendment, he must allege that his position as a litigant was prejudiced. Walker v. Navarro County Jail,

(5th Cir. 1993). Because Plaintiff only asserts that his mail was opened outside of his presence and without his consent, he fails to state a

cognizable constitutional claim for denial of his right to access to the courts or right to free speech. See

(holding inmate failed to state cognizable constitutional claim for denial of his right to access the courts because inmate only asserted his legal mail was opened and read outside his presence and without his consent); Brewer v. Wilkinson,

(5th Cir. 1993), cert. denied,

(1994) (holding inmates failed to state cognizable constitutional claim either for denial of access to courts or denial of right to free speech by alleging incoming legal mail was opened and inspected for contraband outside their presence). RECOMMENDATION

It is therefore recommended that Plaintiff’s complaint be dismissed as frivolous pursuant to

(e).

3 It is further recommended that the Court include within its judgment a provision expressly and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in (a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff

from filing any lawsuits in this Court without first obtaining the permission from a District Judge of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some combination of these sanctions. It is further recommended that Plaintiff should be warned that for causes of action which accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate while the inmate was in the custody of the Department or confined in county jail awaiting transfer

to the Department following conviction of a felony or revocation of community supervision, parole, or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good conduct time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued good conduct time, if the Department has previously received two final orders; or (3) 180 days of an inmate’s accrued good conduct time, if the Department has previously received three or more final orders. See, TEX. GOV’T CODE ANN. § 498.0045 (Vernon 1998). It is further recommended that Plaintiff be warned, if Plaintiff files more than three actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure to state

a claim on which relief may be granted, he will be prohibited from bringing any other actions in forma pauperis nless he is in imminent danger of serious physical injury. See

(g).

4 In the event this Report and Recommendation is accepted, adopted or approved, it is recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the TDCJ

- Office of the General Counsel and the keeper of the three-strikes list. OBJECTIONS Within 14 days after receipt of the magistrate judge’s report, any party may serve and file written objections to the findings and recommendations of the magistrate judge.

(b)(1)(c). Failure to file written objections to the proposed findings and recommendations contained within this report within 14 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Douglass v. United Servs. Auto. Assoc.,

(Sth Cir. 1996) (en banc); Thomas v. Arn,

(1985); Rodriguez v. Bowen,

(Sth Cir. 1988). SIGNED this 14" day of May, 2020.

ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE