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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL LEVIEGE, ID # 714330, §

§

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-2142-L(BH)

§

JIM HAMLIN, §

§

Defendant. § Pretrial Management

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Standing Order of Reference, filed August 24, 2005, this case

has been referred to the undersigned U.S. Magistrate Judge for pretrial management, including the

determination of non-dispositive motions, and findings and recommendations on dispositive

motions. The following pleadings are before the Court:

(1) Defendant’s Motion for Summary Judgment, Memorandum Brief in Support of

Defendant’s Motion for Summary Judgment (“MSJ Br.”), and Appendix to

Defendant’s Motion for Summary Judgment (“MSJ App.”), all filed on May 23,

2006;

(2) Memorandum of Law in Support of the Plaintiff’s Civil Rights Complaint (“MSJ

Response”), filed June 9, 2006;

(3) Defendant’s Reply (“MSJ Reply”), filed June 22, 2006;

(4) Defendant’s Motion to Abate Pretrial Deadlines and Brief in Support, filed

September 11, 2006; and

(5) Plaintiff’s Motion for Bench Warrant, filed September 25, 2006.

After consideration of the pleadings and the applicable law, the Court recommends that Defendant’s

Motion for Summary Judgment be GRANTED. Based on this recommendation, Defendant’s

 

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Motion to Abate Pretrial Deadlines and Brief in Support and Plaintiff’s Motion for Bench Warrant

are hereby DENIED as moot.

I. BACKGROUND

Michael Leviege (“Plaintiff”) is an inmate currently in the custody of the Texas Department

of Criminal Justice (“TDCJ”). On November 14, 1994, pursuant to a plea agreement, Plaintiff pled

nolo contendere to aggravated sexual assault of a child under 14 years old, enhanced by a prior

conviction for burglary of a habitation. (MSJ App. at 32-36, 145-46.) Plaintiff received a deferred

adjudication with eight years’ community supervision. Id. at 37-39. On May 26, 1995, Plaintiff’s

guilt was adjudicated and he was sentenced to fifty years confinement. Id. at 42-44, 134-37.

Plaintiff appealed his conviction and the appeal was dismissed on May 29, 1997. Id. at 45.

Plaintiff’s appeal was denied because his notice of appeal did not comply with TEX. R. APP. P.

40(b)(1), in that it did not state that he had obtained the trial court’s permission to appeal or that he

was appealing matters raised before the trial court. Id. at 136-37. Plaintiff’s conviction became final

thirty days after May 29, 1997, when the time for filing a petition for discretionary review expired.

See TEX. R. APP. P. 202(b) (1997), now TEX. R. APP. P. 68.2(a). Plaintiff filed a state application

for writ of habeas corpus on May 28, 1998, and the Texas Court of Criminal Appeals denied it on

September 23, 1998. Ex Parte Leviege, No. 38,822-01 (Tex. Crim. App. Sept. 23, 1998). On

December 7, 1998, Plaintiff filed a federal petition for writ of habeas corpus. That petition was

denied on May 3, 1999, as barred by the statute of limitations. Leviege v. Johnson, 3:98-CV-2859-G

(N.D. Tex. May 3, 1999).

On September 5, 2000, Plaintiff filed a Motion for Reproduction of Records in the state

court. (MSJ App. at 63-68.) Therein, Plaintiff requested that the court order the district clerk to

 

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provide him with a copy of the state court records to facilitate an application for writ of habeas

corpus. Id. In a letter dated September 15, 2000, the court coordinator for the state court judge

informed Plaintiff that the court would not order that the Dallas County District Clerk provide

Plaintiff a free copy of his records. Id. at 61-62. However, the letter advised Plaintiff that he could

obtain copies of the records by writing to the Dallas County District Clerk’s Office and paying the

cost of copying. Id. On March 22, 2004, Plaintiff filed a motion in state court specifically

requesting that Defendant provided his state court records on a sixty-day loan. Id. at 52.

On October 1, 2004, Plaintiff filed this § 1983 action against Dallas County District Clerk

Jim Hamlin (“Defendant”). Plaintiff, who is proceeding in forma pauperis, alleges that Defendant

has refused to make Plaintiff’s criminal trial transcripts available to him, either at no charge or for

a fee. (See Resp. to Mag. Quest. at 1.) This alleged refusal, Plaintiff argues, has caused him

prejudice in seeking review of his conviction. Id. The Court construes Plaintiff’s complaint as a

claim of denial of his constitutional right of access to the courts. By this action, Plaintiff seeks to

compel Defendant to provide Plaintiff with his transcripts, trial records, medical records, and

psychiatric evaluations. (Resp. to Mag. Quest. at 8.) Defendant now moves for summary judgment

alleging that Plaintiff has failed to establish an actionable claim, that Defendant is entitled to

qualified immunity, and that Plaintiff has failed to exhaust his administrative remedies. (MSJ Br.)

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when the pleadings and evidence on file show that no genuine

issue exists as to any material fact and that the moving party is entitled to judgment as a matter of

law. FED. R. CIV. P. 56(c). “[T]he substantive law will identify which facts are material.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists

“if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id.

 

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The movant makes a showing that there is no genuine issue of material fact by informing the court

of the basis of its motion and by identifying the portions of the record which reveal there are no

genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The pleadings,

depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material

fact exists. FED. R. CIV. P. 56(c).

Once the movant makes this showing, the non-movant must then direct the court’s attention

to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.

Celotex, 477 U.S. at 323-24. To carry this burden, the “opponent must do more than simply show

. . . some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-movant must show that the evidence is

sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.

While all of the evidence must be viewed in a light most favorable to the motion’s opponent,

Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)),

neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant’s summary

judgment burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Topalian

v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment

in favor of the movant is proper if, after adequate time for discovery, the motion’s opponent fails

to establish the existence of an element essential to his case and as to which he will bear the burden

of proof at trial. Celotex, 477 U.S. at 322-23.

Generally, the pleadings of a plaintiff who is proceeding pro se must be liberally construed

in his favor. See Hurd v. Doe, 2003 WL 21640569, *3 (N.D. Tex. July 10, 2003). However, under

Rule 56 of the Federal Rules of Civil Procedure, the court does not have an obligation to ‘“sift

through the record in search of evidence’ to support the nonmovant’s opposition to the motion for

 

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As an alternative argument to his claim that Plaintiff cannot establish a claim for denial of access to the

courts, Defendant asserts the defense of qualified immunity. (MSJ Br. at 3.) Although the issue of qualified

immunity is usually considered before reaching the merits, immunity defenses do not pertain to the Court’s

jurisdiction and, accordingly, are not required to be considered first. See Nevada v. Hicks, 533 U.S. 353, 373 (2001). 

Here, Defendant presented qualified immunity as an alternate argument and clearly sought summary judgment

primarily on the merits of the case. Because addressing the merits appears to be the most expedient way of resolving

the motion for summary judgment, the Court need not reach Defendant’s alternative immunity argument, and its

consideration of the merits of this case in no way suggests a finding on Defendant’s entitlement to that defense.

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summary judgment.” Crane v. Bowles, 2004 WL 1057771, at *1 (N.D. Tex. May 6, 2004) (quoting

Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994)). Instead, “the party opposing summary

judgment is required to identify specific evidence in the record and to articulate the precise manner

in which that evidence supports his claim.” Id. (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d

455, 458 (5th Cir. 1998)).

III. ANALYSIS

Defendant asserts that Plaintiff’s complaint fails to establish an actionable claim for denial

of judicial access. (MSJ Br. at 1.)1

“The right of access to the courts is basic to our system of government, and it is well

established today that it is one of the fundamental rights protected by the Constitution.” Ryland v.

Shapiro, 708 F.2d 967, 971 (5th Cir. 1983). Constitutional bases for right of access to the courts lie

in Article Four of the Constitution, the Fourteenth Amendment, the First Amendment, and the Due

Process Clause. Id. The right of access to the courts extends to prisoners. Chriceol v. Phillips, 169

F.3d 313, 317 (5th Cir. 1999) (citing Lewis v. Casey, 518 U.S. 343, 350 (1996)). “Interference with

a prisoner’s right to access to the courts, such as a delay, may result in a constitutional deprivation.”

Id. (citing Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986)). The Fifth Circuit has found

prisoners’ right of access to the courts to be implicated where prisoners are denied the right to file

a lawsuit, are denied access to legal materials, or when prison officials fail to forward legal

 

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documents. Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). 

However, before a prisoner can prevail on a claim that his constitutional right of access to

the courts was violated, he must prove “that his position as a litigant was prejudiced by his denial

of access to the courts.” McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998). If a prisoner

does not prove an actual injury, he cannot prevail on an access to the courts claim. Ruiz v. United

States, 160 F.3d 273, 275 (5th Cir. 1998). To prove he was injured by being shut out of court, a

plaintiff must identify a “nonfrivolous,” “arguable” underlying claim. Christopher v. Harbury, 536

U.S. 403, 415 (2002). “[T]he underlying cause of action, whether anticipated or lost, is an element

that must be described in the complaint, just as much as allegations must describe the official acts

frustrating the litigation.” Id. The underlying claim must “be described well enough to apply the

‘nonfrivolous’ test and to show that the ‘arguable’ nature of the underlying claim is more than

hope.” Id. at 416. A complaint is frivolous when it “lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is

“based on an indisputably meritless legal theory.” Id. at 327. Thus, before the Court addresses the

merits of Plaintiff’s claim of denial of access to the courts, it must first consider whether Plaintiff

has shown an actual injury by identifying a nonfrivolous underlying claim. See Carrio v. Texas

Dept. of Criminal Justice, 2006 WL 2460882, * 1 (5th Cir. Aug. 23, 2006) (finding a prisoner’s

denial of access claim to lack merit because he did not show how his position as a litigant had been

prejudiced); Diaz v. Turner, 160 Fed. Appx. 360, 362 (5th Cir. 2005) (same).

A. Actual Injury

Plaintiff contends that Defendant’s failure to provide him with his state court records

prejudiced Plaintiff in the direct appeal of his conviction, his Petition for Discretionary Review, and

in his federal habeas corpus petition. (Resp. to Mag. Quest. at 1.) Plaintiff’s response to the motion

 

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for summary judgment does not describe what evidence is to be found in the state court records nor

how that evidence would have changed the outcome of his appeal or habeas corpus petitions.

Although he claims the record will show that he did not confess, he does not specify what evidence

can be found in the record to support his assertion. 

On the other hand, there is summary judgment evidence showing that Plaintiff signed a plea

of true to the offense set forth in the indictment. (MSJ App. at 130, 132.) Furthermore, Plaintiff’s

guilt was adjudicated on May 26, 1995. (MSJ App. at 42-44; 134-37.) Plaintiff’s appeal of his

conviction was dismissed on May 29, 1997, because his notice of appeal did not comply with state

appellate rules. Id. at 45. Because Plaintiff’s appeal was procedurally barred, he can not meet his

burden to demonstrate that he was likely to succeed on the merits of his appeal had he been given

access to his records. Although there is no evidence in the record indicating why Plaintiff’s state

application for writ of habeas corpus was denied on May 28, 1998, Plaintiff has not pointed the

Court to any evidence in the record showing that access to his trial records would have changed the

outcome of that application. Plaintiff’s federal petition for writ of habeas corpus was denied on May

3, 1999, as procedurally barred. Leviege v. Johnson, 3:98-CV-2859-G (N.D. Tex. May 3, 1999).

Accordingly, any denial of access to his state court records did not injure him in pursuit of his

federal habeas corpus claim. Lastly, the Court notes that the first evidence in the record showing

a request by Plaintiff for his records, albeit from the state court judge rather than from Defendant,

was a motion dated September 5, 2000. (MSJ App. at 63-68.) This request was made after Plaintiff

was denied appellate and habeas corpus relief. 

Plaintiff has pointed to no evidence in the record on the issue of whether the failure to

provide him with his state court records prejudiced him in the direct appeal of his conviction, his

Petition for Discretionary Review, and in his federal habeas corpus petition. Accordingly, there is

 

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no competent summary judgment evidence indicating a genuine issue of material fact regarding an

actual injury to Plaintiff resulting from Defendant’s alleged conduct. 

B. Denial of Access

Even were the Court to find Plaintiff demonstrated actual injury, he still has not met his

summary judgment burden to provide evidence demonstrating that Defendant did not respond to his

requests for his records, an element of his case upon which Plaintiff would have the burden of proof

at trial. Although Plaintiff alleges that he requested a copy of his state court records immediately

after his conviction, he has pointed the Court to no summary judgment evidence in support of his

contention. Although Plaintiff asserts that his attorney made an official request for the records in

April 1995, and offered payment (Resp. to Mag. Quest. at 2), he points to no evidence in the record

before the Court showing any requests to Defendant by Plaintiff or his attorney in 1995. Plaintiff

claims he has “affidavits and writs of mandamus with dates and times to substantiate [his] claim,”

but he did not provide such evidence to the Court. (MSJ Resp. at 3.) The only evidence Plaintiff

provides in support of his claim is the affidavit of his sister, Cornelia Johnson. (Ans. to Mag. Quest.

at 10.) In her affidavit, Ms. Johnson states

My brother numerous times has requested that I go to Lew Sternet [sic] Justice

Center (Dallas County Jail) and get what trial records and medical records that were

there. I have made numerous trips plus phone calls trying to obtain these records.

I’ve been shuttled from one department to the other with no success. The last time

I talked to these people I was informed that the medical records must have followed

my brother to the Texas Department of Criminal Justice - Institutional Division.

This information was furnished to me in February, 2002.

Id. Notably, Ms. Johnson’s affidavit states that she attempted to obtain Plaintiff’s records from the

Dallas County Jail, not from Defendant. Additionally, Ms. Johnson’s affidavit provides no specifics

as to the dates she requested the records, in what form she requested them, and from whom. Ms.

Johnson’s affidavit is wholly insufficient to create a material issue of fact as to whether Defendant

 

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refused to provide Plaintiff with his state court records.

IV. RECOMMENDATION

For the foregoing reasons, the Court concludes that no genuine issue of material fact exists

with respect to Plaintiff’s claim of denial of access to the courts, and that summary judgment is

appropriate in this case. Accordingly, the Court RECOMMENDS that Defendant’s Motion for

Summary Judgment, filed May 23, 2006, be GRANTED.

Based on this recommendation, Defendant’s Motion to Abate Pretrial Deadlines and Brief

in Support, filed September 11, 2006, and Plaintiff’s Motion for Bench Warrant, filed September

25, 2006, are hereby DENIED as moot.

SO RECOMMENDED on this 20th day of October, 2006.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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