November 29, 2021 IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JAMESRICHARDBREWER, CIN #026401, § § Plaintiff, § § v. § CIVILACTIONNO.H-21-3717 § SHERIFFTROYGUIDRY, § § Defendant. § MEMORANDUMOPINIONANDORDER Waller County pretrial detainee James Richard Brewer, CIN #026401, filed this section1983lawsuitagainstWallerCountySheriffTroyGuidryfortheallegedviolationof hisFirstAmendment right toaccess the courts. He proceeds prose and informapauperis. Having screened the complaint pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B), the Court DISMISSES this lawsuit for the reasons explained below. Background and Claims Plaintiff is in custody of the Waller County Sheriff’s Office pending disposition of felonychargesforburglaryofabuildingandfailuretoidentify. Hecomplainsthatdefendant Guidry is denying him access to a law library at the Waller County Jail. He states that he needs access to legal resources in order to represent his pro se interests in a family probate proceeding and to protect his legal rights in his pending criminal prosecutions. Plaintiff reports that jail employees told him there is no law library at the Waller County Jail. He seeksasjudicialrelief$5millionformentaldistressand$5millionaspunitivedamagesfor the violation of his constitutional right to access the courts.

Legal Standards Because plaintiff is a pretrial detainee who has been permitted to proceed in forma pauperis,theCourtmustscreenhiscomplaintundertheapplicableprovisionsof 28U.S.C. §§ 1915A and 1915(e)(2)(B). Section 1915A(a) requires a district court to review a

complaintfromaprisonerseekingrelieffromagovernmentalentity,officer,oremployeeas soon as possible after docketing. Because plaintiff is proceeding in forma pauperis, his complaint is also subject to screening under section 1915(e)(2). Both of these federal statutory provisions allow the court, sua sponte, to dismiss the complaint or any portion

thereof,ifitisfrivolous,malicious,failstostateclaimuponwhichreliefmaybegranted,or seeks monetaryrelief from a defendant who is immune from such relief. See

(e)(2)(B), 1915A(b). A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzkev.Williams,490U.S.319,325(1989).Aclaimlacksanarguablebasisinlawwhen

itisbasedonanindisputablymeritlesslegaltheory. Davisv.Scott,157F.3d1003,1005(5th Cir. 1998). A claim has no arguable basis in fact if “after providing the plaintiff the opportunitytopresentadditionalfactswhennecessary,thefactsallegedareclearlybaseless.” Talib v. Gilley,

(5th Cir. 1998). A complaint fails to state a claim upon

whichreliefmaybegrantedwhenitfailstoplead“enoughfactstostateaclaimtoreliefthat 2 is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007); see also Ashcroftv.Iqbal,556U.S.662, 678 (2009). To avoid dismissal for failure tostateaclaim,

plaintiffsmustallegefactssufficientto“raisetherighttoreliefabovethespeculativelevel.” Twombly,

. Legal labels and conclusions, or “a formulaic recitation of the elements of a cause of action,” do not suffice to state a claim upon which relief may be granted.

Analysis Mental Distress Inhisrequestforrelief fromthisCourt,plaintiffseeks$5millionformentaldistress allegedlycausedbyhislackofaccesstoalawlibrary. Hisclaimisforeclosedby42U.S.C.

§ 1997e(e), which restricts a prisoner’s abilityto recover compensatorydamages without a showingofphysicalinjury: “NoFederalcivilactionmaybebroughtbyaprisonerconfined ina jail, prison, or other correctional facility, for mental or emotionalinjurysuffered while incustodywithoutapriorshowingofphysicalinjury....” 42U.S.C.§1997e(e). TheFifth CircuitrecognizesthatthisprovisionappliestoclaimsbroughtundertheFirstAmendment.

Geiger v. Jowers,

(5th Cir. 2005). PlaintiffhasnotallegedaphysicalinjuryastohisFirstAmendmentclaimforlackof access to the courts. Thus, his claims for mental distress damages are barred by section 1997e(e) and are DISMISSED WITHOUT PREJUDICE.

3 Punitive Damages Plaintiff’sclaimsforpunitivedamages,however,arenotbarredbysection1997e(e).

SeeHutchinsv.McDaniels,512F.3d193,198(5thCir. 2007). Nevertheless,plaintiffisnot entitledtopunitivedamagesbecausehehasnotpleadedaviableFirstAmendmentclaimfor purposes of seeking punitive damages, as shown below. Access to Courts

Prisonershaveaconstitutionallyprotectedrightofaccesstothecourts. SeeLewisv. Casey,518U.S.343,360(1996);Boundsv.Smith,430U.S.817,821(1977). Therightdoes not guarantee any “particular methodology but rather the conferral of a capability – the capability of bringing contemplated challenges to sentences or conditions of confinement

beforethecourts.” Lewis, 518 U.S.at 356 (emphasisadded). SeealsoJonesv.Greninger, 188 F.3d322, 325 (5th Cir. 1999) (holding that the right provides a reasonable opportunity to file non-frivolous legal claims challenging convictions or conditions of confinement). “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Lewis, 518 U.S. at 355.

Thus, plaintiff has no constitutional right to access the courts for purposes of pursuing pro se probate litigation. Further, the right of access is not a freestanding right. To state a cognizable First Amendmentclaim,aprisonermustdemonstrateactualinjuryresultingfromanallegeddenial

of accesstothecourts. Lewis,518U.S.at351;Chriceolv.Phillips,169F.3d313,317(5th 4 Cir. 1999). Thus, to properly state a claim for denial of access to the courts, a plaintiff must demonstrate that his position as a litigant was prejudiced by the defendant’s actions. Eason

v. Thaler,

(Sth Cir. 1996). Absent an actual injury, a plaintiff lacks standing to pursue a claim of denial of access to the courts. Lewis, 518 U.S. at 349. To the extent plaintiff here asserts violation of his right to access the courts as to his pending criminal charges, he has not identified any non-frivolous claim that he was prevented from timely pursuing due of lack of access to a law library. Plaintiffs claims for lack of access to a law library are DENIED WITHOUT PREJUDICE. Conclusion This lawsuit is DISMISSED WITHOUT PREJUDICE for failure to state a viable claim for which relief can be granted under section 1983. Any and all pending motions are DENIED AS MOOT. This dismissal constitutes a “strike” for purposes of section 1915(g).

Signed at Houston, Texas, on November 29_, 202 / ay H. MiNer Senior istrict Judge