Michael DeMarco, Jr. v. Lorie Davis, Director, et
Michael DeMarco, Jr. v. Lorie Davis, Director, et
Opinion
Michael DeMarco, Jr., an inmate at the James V. Allred Unit of the Texas Department of Criminal Justice ("TDCJ"), brought suit under
I.
Bynum allegedly confiscated certain personal property from DeMarco's cell. At a disciplinary proceeding, DeMarco was found guilty of threatening Bynum and was placed in solitary confinement. DeMarco sued, claiming that the seizure of his legal and religious materials had occurred without due process of law, had deprived him of access to the courts, and had burdened his free exercise of religion. He further alleged that Bynum had confiscated his property and instituted the disciplinary action in retaliation for exercising First Amendment rights. Moreover, DeMarco insisted that Stephens and Boyle were deliberately indifferent to those constitutional violations. Finally, DeMarco claimed that Boyle had denied him due process at the disciplinary hearing by tampering with evidence and prohibiting him from calling his own witnesses. The district court severed DeMarco's challenge to the validity of the disciplinary hearing and dismissed the remainder of the complaint for failure to state a claim.
See
II.
This court reviews dismissals under § 1915A(b)(1)
de novo
, using the standard applied under Federal Rule of Civil Procedure 12(b)(6).
Legate v. Livingston
,
A.
DeMarco avers that he was denied due process at the disciplinary proceeding because Boyle tampered with the witness statements and prevented him from calling witnesses. The district court severed those claims because they were potentially cognizable under
B.
DeMarco claims that his personal property was seized without due process. Nevertheless, "a deprivation of a constitutionally protected property interest caused by a state employee's random, unauthorized conduct does not give rise to a § 1983 procedural due process claim, unless the State fails to provide an adequate postdeprivation remedy."
Allen v. Thomas
,
DeMarco has not alleged that the state delegated to Bynum the authority to confiscate his personal property. Instead, DeMarco contends that his property was seized in violation of TDCJ policy. Additionally, Texas's tort of conversion provides an adequate post-deprivation remedy for prisoners claiming loss of property without due process.
Murphy v. Collins
,
C.
The district court correctly dismissed DeMarco's claim that he was denied access to the courts. Prisoners have "a constitutionally protected right of access to the courts" that is rooted in the Petition Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.
See
Brewer v. Wilkinson
,
DeMarco maintains that the confiscation of his legal materials prevented him from filing a timely petition for writ of certiorari. But he has not identified any actionable claim that he would have raised. Consequently, he has failed to establish the actual harm necessary to support his denial-of-access claim. 6
D.
The district court properly dismissed DeMarco's retaliation claim. Under the First Amendment, a prison official may not harass or retaliate against an inmate "for exercising the right of access to the courts, or for complaining to a supervisor about a guard's misconduct."
Woods v. Smith
,
DeMarco maintains that Bynum retaliated against him by confiscating his personal property and filing a false disciplinary action. In his brief, DeMarco states that the retaliation was motivated by the submission of an earlier grievance on June 10, 2013. But in his answers to the district court's questionnaire, DeMarco maintained that he had filed the relevant grievance on May 27, 2013. He also alleged that the retaliation occurred because he had offered to serve as a witness against Bynum in 2012. This changing tale is conclusional at best. Because DeMarco has not demonstrated retaliatory intent through direct evidence or a clear chronology of events, he has failed to establish the second and fourth elements of his retaliation claim. See McDonald , 132 F.3d at 231.
E.
DeMarco posits that Bynum burdened the free exercise of religion by confiscating his religious materials. To fall within the purview of the Free Exercise Clause, a claimant must possess a sincere religious belief.
8
An inmate retains his
right to the free exercise of religion, subject to reasonable restrictions stemming from legitimate penological concerns.
See
O'Lone v. Estate of Shabazz
,
A plaintiff bears the burden of proving that a prison policy, as applied, is not reasonably related to legitimate penological objectives.
10
Moreover, prison officials are entitled to "substantial deference" in the exercise of their professional judgment.
See
Overton
, 539 U.S. at 132,
In dismissing DeMarco's claim, the district court explained that he had failed to name any religious belief or practice that was negatively impacted. The court suggested that because DeMarco had not requested the return of his religious materials, his professed faith was likely a sham. We disagree. Though DeMarco did not specify that he was a Christian, he averred that Bynum had confiscated copies of the Bible and religious books by Max Lucado, Charles Swindoll, and Joel Osteen. Moreover, DeMarco asserted that the taking of those books had placed a substantial burden on his practice of reading religious literature. His decision to seek damages-rather than the return of
his books-does not indicate that his religious belief is disingenuous. Indeed, his books were allegedly destroyed, leaving damages as his only recourse. Hence, with the benefit of liberal construction, DeMarco's
pro se
pleadings establish that the seizure of his books burdened a sincere religious practice.
See
Woodfox v. Cain
,
Furthermore, the defendants have not "put forward" any legitimate government interest justifying the alleged seizure of DeMarco's religious materials.
Turner
,
Nevertheless, the district court properly dismissed DeMarco's free exercise claim against Boyle and Stephens. "[T]o state a cause of action under section 1983, the plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged." 14 DeMarco does not aver that Boyle or Stephens personally confiscated his religious materials. Instead, he claims that they caused the violation by failing to train their subordinates and by ignoring previous complaints about Bynum. But DeMarco does not specify any other examples of comparable violations. Nor does he explain how better training might have prevented the alleged violation. Such conclusional allegations are insufficient to show that the alleged violation resulted from Boyle and Stephens' actions. DeMarco has thus failed to state a claim against them.
The judgment of dismissal is AFFIRMED in part and REVERSED in part and REMANDED. We place no limitation on the matters that the district court can address on remand, and we do not mean to indicate how the court should rule on any issue.
Ashcroft v. Iqbal
,
Gentilello v. Rege
,
See
Heck v. Humphrey
,
Johnson v. Rodriguez
,
See
Lewis
,
The district court held that despite the seizure of his legal materials, DeMarco suffered no harm because he was represented by counsel. We may nonetheless affirm on any basis supported by the record.
LLEH, Inc. v. Wichita Cty.
,
Morris v. Powell
,
See
Wisconsin v. Yoder
,
Turner v. Safley
,
See
Prison Legal News v. Livingston
,
See
Turner v. Cain
,
Prison Legal News
,
DeMarco's claim against Bynum in his official capacity is barred by sovereign immunity.
See
Kentucky v. Graham
,
Woods v. Edwards
,
Reference
- Full Case Name
- Michael Joseph DEMARCO, Jr., Plaintiff-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division ; Jeremy J. Bynum, Officer; Joseph C. Boyle, Disciplinary Captain, Defendants-Appellees.
- Cited By
- 87 cases
- Status
- Published