1

 See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TOMMY LEE HARDEMON §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-1646-B

§ 

HUNT COUNTY SHERIFF'S §

DEPARTMENT, ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. §

636(b) and a standing order of reference from the district court. The findings and recommendation

of the magistrate judge are as follow:

I.

This is a pro se civil rights action brought by Plaintiff Tommy Lee Hardemon, an inmate in

the Hunt County Jail, against the Hunt County Sheriff's Department and various jail employees. On

August 29, 2005, plaintiff tendered a complaint to the district clerk and filed an application to

proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit

indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed

in forma pauperis and allowed the complaint to be filed. A Spears1

 questionnaire was then sent to

plaintiff in order to obtain additional information about the factual basis of his suit. Plaintiff

answered the questionnaire on September 21, 2005. The court now determines that this action

should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).

 

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 II.

Plaintiff accuses a Hunt County jailer, M. James, of tampering with correspondence from

the Texas Commission on Jail Standards. When plaintiff attempted to report this incident to the

proper authorities, he alleges that two other jailers, Corporal K. Dixon and Sergeant Brunner,

intercepted his grievance. As a result, James was never disciplined for opening plaintiff's mail.

Plaintiff also complains that he has been denied access to the law library and cannot obtain a copy

of his inmate trust account statement. By this suit, plaintiff seeks unspecified damages.

A.

A district court may summarily dismiss a complaint filed in forma pauperis if it concludes

that the action:

(1) is frivolous or malicious;

(2) fails to state a claim upon which relief can be granted; or

(3) seeks money relief against a defendant who is immune from

such relief. 

28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); HensonEl v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to

state a claim "if it is clear that no relief could be granted under any set of facts that could be proved

consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232,

81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164,

113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most

 

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sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the

present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).

B.

Plaintiff alleges that jail officials have tampered with his mail and denied him access to the

law library and legal materials. Both claims must be analyzed under the more general right of access

to the courts. See Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977);

Guajardo v. Estelle, 580 F.2d 748, 756-57 (5th Cir. 1978) (prisoner has no constitutional interest

in non-legal correspondence). Such a right "is founded on the Due Process Clause and assures that

no person will be denied the opportunity to present to the judiciary allegations concerning violations

of fundamental constitutional rights." Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986,

41 L. Ed.2d 935 (1974). The right of access to the courts is also recognized as one aspect of the

First Amendment right to petition the government for grievances. See California Motor Transport

Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed. 2d 642 (1972); Taylor

v. Sterrett, 532 F.2d 462, 470-72 (5th Cir. 1976). However, no court has ever extended this right

beyond the ability to prepare and transmit necessary legal documents. See Wolff, 94 S. Ct. at 2984;

Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993), cert. denied, 114 S.Ct. 1081 (1994).

Plaintiff concedes that jail officials have not interfered with his access to the courts by

opening his mail. (See Spears Quest. #1). Nor has plaintiff shown that his constitutional rights were

violated by restricted access to the law library and legal materials. In support of this claim, plaintiff

alleges that he needs "names of people in the legal field that I did need to confide into [sic] for

information and some research, legal cards and papers in my property, addresses for some

investigative reporters, Dept. of Human Services personal [sic] and people of legal aid." (Spears

Quest. #3). When asked to explain how he was harmed as a result of his inability to obtain this

 

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 2

 Although plaintiff is in the process of appealing a parole revocation, he does not specify any legal materials

he needs from the law library in order to prosecute that appeal. (See Spears Quest. #4). 

information from the law library, plaintiff responded only that he was harmed by "unfair treatment."

(Id.). Such a conclusory assertion is wholly insufficient to state a constitutional violation. See

Swaissi v. Cotten, No. 3-01-CV-1607-D, 2002 WL 492905 at *3 (N.D. Tex. Mar. 28, 2002) (Kaplan,

J.), citing See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996)

(inmate must demonstrate that inadequate law library hindered efforts to pursue an actual legal

claim).2

C.

Plaintiff also complains that jail officials interfered with his right to file a grievance and have

refused to give him a copy of his inmate trust account statement. Both claims are without merit.

There is no constitutional entitlement to an adequate grievance procedure. See Hines v. Graham,

320 F.Supp.2d 511, 520 (N.D. Tex. 2004), citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.

1996) ("[A] state's inmate grievance procedures do not give rise to a liberty interest protected by the

Due Process Clause."). Although jail authorities may not have given plaintiff a certified copy of his

inmate trust account statement, they did provide a document entitled "Inmate Cash Accounting"

showing a zero balance in his account. That document was filed with the court on September 13,

2005. Because plaintiff subsequently was granted leave to proceed in forma pauperis, he has not

been harmed by the inability to obtain a certified copy of his inmate trust account statement.

RECOMMENDATION

Plaintiff's complaint should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

 

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being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: September 23, 2005.

 

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