Decker v. Dunbar (633 F. Supp. 2d 317, 2008)

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

DAVID FOLSOM, District Judge.

The Plaintiff Kurby Decker, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

Decker raised numerous complaints, including allegations of retaliation, denial of access to the law library and legal materials, and cruel and unusual punishment. The Magistrate Judge ordered him to file an amended complaint setting out his claims with more factual specificity, and Decker complied with this order. The Magistrate Judge also ordered the Defendants to answer Decker’s lawsuit.

On October 1, 2007, the Defendants filed a motion for summary judgment, along with summary judgment evidence. Decker filed a response to this motion, along with summary judgment evidence of his own; he also requested that his pleadings be considered as summary judgment evidence.

After carefully reviewing all of the pleadings and the summary judgment evidence of the parties, the Magistrate Judge issued a Report on August 22, 2008, recommending that the Defendants’ motion for summary judgment be granted and that the lawsuit be dismissed. Decker sought and received an extension of time in which to object, but no objections have been filed; accordingly, he is barred from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unob-jected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc).

The Court has carefully reviewed the pleadings and documents in this case, as well as the Report of the Magistrate Judge. Upon such review, the Court has concluded that the Report of the Magistrate Judge is correct. It is accordingly

ORDERED that the Report of the Magistrate Judge (docket no. 168) is hereby ADOPTED as the opinion of the District Court. It is further

ORDERED that the Defendants’ motion for summary judgment (docket no. 98) is GRANTED and that the above-styled civil action be and hereby is DISMISSED with prejudice. It is further

ORDERED that any and all other motions which may be pending in this action are hereby DENIED.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

CAROLINE M. CRAVEN, United States Magistrate Judge.

The Plaintiff Kurby Decker, an inmate of the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged denials of his constitutional rights. Decker sues numerous TDCJ officials, including law librarian Chequita Dunbar, property officer Nita Burgess, classification manager Latoya Sanders, access to courts administrator Vickie Barrow, Warden David Hudson, Captain Dennis Martin, Sgt. Jordan Smith, Lt. Norris Jordan, officer Kelly Roseberry, law library officer Tammy Sharp, officer Eugene Allen, officer Donald Gibson, assistant classification and records director Pamela Allen, officer Colt Morton, Lt. Herbert Barron, and officer Eric Howell. These Defendants have answered the lawsuit and have filed a motion for summary judgment, which is the subject of this Report.

Decker’s original complaint was laden with legal conclusions, but short on specific facts. The Court ordered him to file an amended complaint setting forth his claims with more factual specificity, and Decker did file his amended complaint.

In this amended complaint, Decker says first that the defendants Dunbar, Gibson, Sharp, Barrow, Roseberry, Jordan, Rose-berry, and Sanders conspired to deprive him of meaningful access to the law library. Between September 14, 2004, and July 16, 2005, Decker says, he was only allowed seven hours per week in the law library, and between November 30, 2005, and June 23, 2006, he was only allowed one hour per week of law library access. He says that “the lack of daily access to the prison law library resulted in inability to file prepare briefs and subsequent dismissals.” He says that there is a “mandatory statute” requiring 15 hours per week of law library access and complains that there were pages torn out of a book in the law library, which caused dismissal of one of his lawsuits, apparently by the Texas Supreme Court, on November 17, 2005. Decker also points to a lawsuit which was dismissed by the Second Judicial District Court of Appeals, another one by the 102nd Judicial District Court of Bowie County, and one by the Sixth Judicial District Court of Appeals. Decker says that his lawsuits were “non-frivolous” but does not indicate the basis upon which they were dismissed, nor show that the alleged denial of access to the law library resulted in these dismissals.

Next, Decker says that Dunbar, Burgess, Sharp, Smith, and Jordan conspired to deny him an extra legal storage box. He says that this caused the U.S. Supreme Court to rule against him in his criminal case.

On July 7, 2005, Decker says that Dunbar, Sharp, Gibson, Barrow, Jordan, and Smith denied him restroom privileges for three hours, causing him to urinate on himself. He was then placed in an “outside cage” in “extreme heat” and without water, which caused injury; Decker indicates that he suffered a “ruptured bladder.” Following this incident, the defendants Dunbar, Sharp, Barrow, Hudson, Sanders, and Williams retaliated against him by scheduling him for law library sessions with inmates classified in safe-keeping. He says that this caused him to be identified as a homosexual, resulting in his being assaulted on May 12, 2006.

Decker states that Dunbar, Hudson, Martin, Smith, Jordan, Roseberry, Morton, Allen, and Gibson all conspired to deprive him of rights and privileges under the 14th Amendment. He says that they wrote “fourteen bogus disciplinary cases” between January 6, 2004, and September 16, 2006, for “non-posted, non-written disciplinary infractions.”

Next, Decker says that Dunbar, Sharp, Burgess, Hudson, Martin, Jordan, and Barrow are violating his rights under the Americans with Disabilities Act by denying him an extra legal storage box due to his disability, and giving him a choice of life or property. He says that he was subjected to retaliation for his writ-writing activities which “shocked the conscience.”

Decker further asserts that he was subjected to violations of due process and equal protection which caused him harm in reputation. He again refers to “bogus disciplinary cases” and says that the Defendants are maintaining fraudulent agency records. Decker points to a disciplinary case which he says was written for requesting a grievance form and for asking to use the restroom; he states that this case was given to him for exercising his First Amendment rights.

Decker’s Attachments to his Amended Complaint

Decker includes various attachments to his amended complaint. These include an affidavit, signed by four inmates, saying that on September 14 and September 16, 2006, Morton did an “improper cell search,” scattering Decker’s legal property into liquid on the floor, leaving his commissary unsecured, and leaving the cell door open. On September 16, 2006, Morton left Decker’s cell with a large bag of property, and would not issue Decker confiscation papers. The affidavit goes on to say that Roseberry has a “repugnant reputation” for provoking and harassing inmates for no reason, and that Lt. Jordan makes “fake excuses” and allows malfeasances to continue.

Decker next attaches a Step One grievance, no. 2007006359, dated September 9, 2006, in he says that he and other inmates are being made late in arriving at the law library, causing them to be short some 30 minutes of law library time each day. He says that Roseberry has “widespread animosity” toward writ-writers, and says that Roseberry denied him extra time in the law library because the “pass was written in red ink.” He states that on September 7, he, Decker, arrived at the law library at 3:40 p.m. when he was scheduled for 3:45 p.m. Roseberry was verbally abusive and told him that Dunbar “would not tell him nothing” and that he should come back in 20 minutes. He says that Roseberry and Jordan threatened to write him a case if he wrote a complaint against them, and that inmates from other buildings were allowed to sign in at 12:45. The response to this grievance was that Dunbar and Roseberry deny conspiring together, that Roseberry follows the building schedule as outlined, and that inmates are allowed 15 minutes to get from their housing assignment to the law library.

In his Step Two grievance, Decker refers to the actions of Roseberry and Dunbar as a “choreographed scam” and says that the prison officials have a duty to ensure that prisoners arrive at the law library at the scheduled time. He says that Roseberry held the inmates up past the 15 minute grace period, and then Dunbar, Sharp, and Roseberry blamed each other, although it was a “common conspiracy.” Decker says that Lt. Jordan told him that if he filed a complaint, Jordan would write him a case, and then Morton “tore his cell apart” and left the door open. Decker says that when he returned to his cell, $25.00 worth of commissary was missing, although he concedes that he does not know if it was taken by Morton or by other inmates in the area. Decker states that his cellmate’s property was not touched, although his cellmate had “a jar of bleach.” Decker had a shoe string tied around his radio headphones, and instead of removing the string, Morton wrote him a case, for which he was found guilty. He says that the disciplinary case was “bogus” and was written in retaliation. The response to this grievance was that the Huntsville Access to Courts Office investigated the complaint concerning the law library, and found that on September 7, 2006, Decker signed in at 1:03 p.m. and signed out at 3:00 p.m. He did not request extra time, although he would have qualified for it. The allegations of staff misconduct were adequately addressed in the Step One grievance, and the new allegations, presented for the first time in the Step Two appeal, concerning a cell search and the loss of property would not be addressed.

On September 16, 2006, Decker filed a Step One grievance again complaining that Roseberry caused inmates to arrive late for law library sessions. He says that Jordan continues to harass him and that his cell has been shaken down twice in a week. He complains about the cell search by Morton in which his legal property was scattered, ascribing this search to retaliation. The response to this grievance says that the staff members deny retaliation, that Decker’s cell was randomly chosen for search and not picked out, and the property taken from his cell and been altered and would not be returned to him.

In his Step Two appeal, Decker says that Roseberry and Jordan both told him that he would be sorry if he wrote them up. He refers to Morton as a “hit man” who destroyed legal work, took his soap, cleaner, and toilet paper, and fabricated a disciplinary case against Decker because Decker had a shoe string on his headphones, like all of the other inmates do. He says that he has been through six shakedowns and his headphones were never taken, and that Morton could simply have taken the shoe string off. He says that shoe strings are sold in the commissary and cannot endanger security, and contends that his cellmate had a jar of bleach but that Morton told him that “we are after your cellmate not you.” Decker says that none of his cellmate’s property was scattered about, and again says that this was retaliatory. The response to this grievance was that the property was confiscated per policy and would not be returned. Inmates and their living areas may be searched at any time. No evidence was found to support the allegations of harassment or retaliation for use of the grievance procedures.

Decker’s Amended Supplemental Pleading

In an attached “amended supplemental pleading,” Decker says that he was scheduled for the law library from 9:45 to 12:00 p.m., thus forcing him to choose between eating lunch and going to the law library. He says that this caused him to lose pending court actions and prevented him from filing meaningful responses to challenge his conviction and the conditions of his confinement. He cites five cases, including two cases from the 102nd Judicial District Court of Bowie County, two cases from the Second Judicial District Court of Appeals, and one case from the Sixth Judicial District Court of Appeals, saying that these were dismissed for unspecified “procedural errors.” He also cites an appeal to the U.S. Supreme Court, in which he states that the confiscation of documents caused an adverse ruling.

Decker says that Dunbar, Sharp, and Martin are “non-Caucasians” and that they only allowed him one hour per week from November 30, 2005 through June 23, 2006, while allowing members of their race four law library sessions per day. He also complains that they limited his sessions to the “time he could hold his bladder” by denying him restroom privileges.

After again complaining that he had received 14 fabricated disciplinary cases, Decker says that Dunbar, Sanders, and Williams placed a “false gang validation” in his classification file. On January 25, 2005, Decker received notice of a five-year parole set-off; he says that the false validation amounts to “libel and slander” and shows a “reckless disregard for the truth.” He also complains about denials of parole, arguing that this violates a constitutionally protected liberty interest. Decker states that he was denied his right to petition for redress of grievances, to be free from unreasonable searches and seizures, to be free from cruel and unusual punishment, and his rights under the Ninth Amendment. He again refers to the incident of July 7, 2005, in which he says that he was forced to urinate on himself and then was taken outside and placed in a cage without water; Decker says that other inmates with heat restrictions are allowed to remain inside 10 Building, which he says is air-conditioned.

Decker says that these occurrences are “a chronology of events from which retaliation may plausibly be inferred,” pointing to the “temporal proximity” of his filing grievances with the allegedly retaliatory acts. He says that he filed a grievance on June 23, 2005, and received a disciplinary case on June 25, he filed a grievance on August 2 and received a disciplinary case on August 11, he filed a grievance on December 29 and received a disciplinary case on January 3, 2006, and he filed a grievance on September 7, 2006, and received a disciplinary case on September 16, 2006. He says that these were some of the 14 bogus disciplinary cases which he received, pointing specifically to case no. 20060001122, in which he says that he was given an order not to ask for a grievance form concerning use of the restroom; Decker concedes that he was found not guilty on this case.

Next, Decker says that Dunbar, Sharp, Barrow, and Hudson are violating the Americans with Disabilities Act. He says that they are denying him an extra legal storage box, and says that until he receives a knee replacement, he cannot qualify for an extra box; however, Decker says, the ADA preempts the state laws and prison regulations. He points to a disciplinary case, no. 20040174418, which he says violates the ADA, and asserts that he cannot leave the unit for “life sustaining cancer treatment” without losing his property or his legal materials.

After he filed a grievance concerning the July 7 incident, Decker says that Dunbar, Sharp, Barrow, Hudson, and Roseberry intentionally scheduled him to go to the law library with inmates in safekeeping, so as to create a false impression that Decker is homosexual. He indicates that this caused him to be physically assaulted on May 12, 2006, some ten months after the incident in question. In addition, after this grievance was filed, Decker says that he was subjected to a “retaliatory cell search” in which some legal work was destroyed and he was deprived of hygienic and cleaning supplies, which resulted in his suffering a bacterial infection.

Decker says that Administrative Directive 03.72, limiting storage space to 1.75 cubic feet, is in conflict with a TDCJ commissary rule, which he says allows eight cubic feet. He says that it is a violation of the Hobbs Act, 18 U.S.C. § 1951, which prohibits the defendants from “entrapping” inmates by punishing them for acts which are permissible under TDCJ rules. He also asserts that this is a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961.

Decker asserts various claims against Rissi Owens and Jose Aliseda, members of the Texas Board of Pardons and Paroles, which claims have been previously dismissed. He says that he has received disciplinary cases for permissible actions such as going to the chow hall or possessing items which he purchased at the commissary, and that his disciplinary case for requesting to use the restroom violates the Americans with Disabilities Act.

For relief, Decker asks for a declaration that the Defendants are violating his rights under the Constitution, that all of the disciplinary cases are void, that he is not a gang member, and that prison officials cannot punish inmates for exercising constitutional rights, for injunctive relief in that all false entries in his classification file should be removed, all of the disciplinary cases expunged, that the Parole Board be returned to independent status and give individualized attention to all inmates, that parole hearings be held as provided by law and that TDCJ classification records have no role in parole decisions, that all state laws which discriminate against the handicapped be declared void, including TDCJ rules requiring a choice between life and property, that he be issued an extra legal storage locker, and that prison officials be prohibited from using “normal body functions” to deny access to court or from drafting “impossible stipulations” so as to deny access to court. He also asks for declaratory judgments that the defendants violated his constitutional rights in various ways, and for punitive damages in the supplemental complaint, although making no mention of monetary damages in the amended supplemental complaint. In his original complaint, Decker says that he seeks monetary damages for bad faith, fraud, and retaliation.

Decker’s Exhibits and Summary Judgment Evidence

Decker attached a number of exhibits to his original complaint. The first of these is a letter from the TDCJ Office of the Ombudsman to a person named Jackie Ull-rich. This letter refers to a search of Decker’s property occurring prior to June 26, 2003; while the letter is not entirely clear, it appears to say that no legal property was confiscated during that search, but only envelopes and folders. A grievance response dated September 17, 2003, referring to this search, says that no legal material was taken and that Decker was given the opportunity to separate the property he wanted which would fit into the storage space. Next is a property confiscation form, referring to a search on March 3, 2004, which says that the property confiscated includes 22 soups, six beef stews, a tortilla cup, three packs of mints, a lock, three packs of peanuts, three chilis, 10 peanut butters, 10 coffees, two packs of hot sauce, three Cokes, a bag and a half of chips, one “spread,” one pastry, soap, half a bag of beans, 27 “cool offs,” a watch, a pack of cheese, and two items described as “candy.” The reasons given for the confiscation were “excessive amounts” and “improperly stored.”

The next exhibit is a set of pages from Decker’s medical records. The first page, dated March 19, 2004, says that Decker was seen on March 11 at an orthopedics clinic for right knee pain. No surgery on his knee was to be done until physical therapy was completed, but Decker was refusing physical therapy. The nurse gave him a knee brace for six weeks. The next page, dated January 29, 2002, also refers to Decker’s knee problems.

An entry in the medical records dated July 11, 2005, says that Decker was seen in the clinic with a complaint that he was in the law library and was not allowed to use the restroom, and wet himself after three hours. Since that time, he said, he was having difficulty starting a urine stream. Large amounts of blood were found in his urine, and the nurse stated that she would refer him to a provider for evaluation.

The next entry submitted by Decker is dated November 15, 2005. At this time, Decker wanted a referral to the telemed (video) clinic for urology, but the nurse noted that an IVP (intravenous pyelogram, an X-ray examination of the kidneys, ureter, and bladder) was to be done before such a referral would be done. Decker would not accept a video appointment for a right thigh melanoma. Decker told the nurse that “his legal problems are to be solved first before traveling to HG [the hospital in Galveston] for referrals and X-rays.” He asked for a renewal of Naproxen for bladder pain, but this was denied because he was on another medication called Zantac. An examination of his right thigh and groin showed no evidence that the melanoma had recurred or of regional metastasis, and a follow-up was ordered on his complaint of hematuria (blood in the urine).

The next medical records page submitted by Decker is dated May 15, 2006. Decker told medical personnel that he had been “jumped last Friday.” On May 26, he had a follow-up appointment complaining of back pain.

The final medical records page is dated July 7, 2005. Decker walked into the clinic complaining of dehydration, saying that he had to sit in the cage for a couple of hours [the number “3” is handwritten in above the word “couple”] before he got moved into a housing area, and now he is lightheaded. The nurse noted no problems with Decker’s ambulation and that his respiration was even and unlabored, and he was instructed to lay down when he felt light-headed, and that he should submit a sick call for non-emergency medical needs.

Next, Decker submits a disciplinary case, but the nature of the charge is not legible on the copy. The case was a minor one, and the only punishment which Decker received was a reprimand. Decker then submits a letter from the Board of Pardons and Paroles, telling him that his parole was denied because the record indicates that he has repeatedly committed criminal episodes or has a pattern of criminal offenses, indicating that he has a predisposition to commit criminal acts upon release; or the record indicates that he is a leader or active participant in gang or organized criminal activity; the record indicates that he committed one or more violent criminal acts indicating a conscious disregard for the lives, safety, or property of others; the instant offense or pattern of criminal activity has elements of brutality, violence, or conscious selection of a victim’s vulnerability such that the offender poses a continuing threat to public safety; and the record indicates use of a weapon.

Decker then attaches an affidavit, dated April 8, 2006, listing the hours he was able to attend the law library. Between December 6, 2005, and April 8, 2006, Decker says that he was able to go for a total of 20 hours, an average of one hour per week. He states that Dunbar changed his regular 12:45 session because it was “too convenient” and he was getting 13 to 15 hours per week. After the change, he says, he has to choose between going to the law library and going to meals, the necessities department, or the pill window. In addition, he says, there is a policy that inmates cannot use the restroom during count, and Dunbar only allows non-Caucasian inmates to sign in late.

Grievances Filed by Decker

Decker submits grievance no. 2006083154, dated January 14, 2006, saying that he received three disciplinary cases for asking to use the restroom and then was placed in an outside cage (referring to the July 5, 2005 incident), that Dunbar has now intentionally scheduled him for the 4:00 p.m. law library session knowing that he cannot urinate until he gets his medication and he cannot attend the law library with a full bladder, and as a result, he has had only six hours of law library time in the past seven weeks. He complains of other inmates receiving preferential treatment and being allowed to attend four law library sessions a day. The response was that Decker had raised numerous issues in the grievance and only one would be addressed. Dunbar denied writing any false cases against Decker in retaliation for use of the grievance process, and asserted that all cases written by her were true and correct. Decker furnished no evidence or witnesses to support his claims, the response said, and so no further action was warranted.

Decker filed a Step Two appeal saying that the First Amendment was absolute and that Dunbar and Sharp were “legislating their own rules.” He says that he was charged with possession of zip-lock bags, which are issued with medications through the medical department, and so Dunbar’s disciplinary case constituted perjury. He also said that his legal property was not stored in an unauthorized manner, but that he was found guilty of both of these disciplinary cases because of a “social agenda” between Dunbar and Lt. Traylor, apparently the hearing officer. He says that he received disciplinary cases for talking, which violates his rights under the First Amendment, and that his legal work was confiscated although Dunbar falsified a response saying that it had not been taken. Decker complains that Dunbar sets the clock six minutes fast and so apparently allows Decker only nine minutes for a grace period and that she is supposed to call the building and make sure it is not his fault if he is late. He says that this is the second week of a lockdown and indicates that he is being denied access to law books, although he has “eight active cases.” The response was that Dunbar denied writing false disciplinary cases in retaliation for grievances and that Decker had the right to appeal any disciplinary cases which he received. The response says that Decker raised numerous issues in his grievance and should limit himself to one issue per grievance.

On January 23, 2006, Decker filed grievance no. 2006086575, complaining about a disciplinary case which he received, which he says was the result of conspiracy and retaliation. The response was that the case was reviewed and no procedural errors were noted, and that the claims of conspiracy and retaliation by Dunbar and Captain Martin could not be substantiated. In his Step Two grievance appeal, Decker says that there was a procedural error in that Sgt. Brantly falsified the investigation form by failing to investigate; no one talked to Lt. Taulbert or Capt. Kroll to verify that Decker had permission to be in the necessities line; Decker was the only inmate who received a disciplinary case; and that case and the other cases which he received showed a pattern of retaliation. The response was that the case had been reviewed and found to be without merit, there was insufficient evidence to show that Decker had received the case as a result of retaliation, and there were no apparent due process errors.

Next, Decker submits grievance no. 2006077181, which he filed on January 9, 2006, complaining of being allowed insufficient law library time in retaliation for grievances previously filed. He complains of being forced to choose between being allowed to urinate and getting access to the law library and asks that he be allowed 15 hours per week in the law library. The response was that Decker received lay-ins for law library sessions on January 3, 4, 5, and 7, and that he made no request for January 6; he attended sessions on January 3, 5, and 7, and none of these sessions were terminated. In his Step Two appeal, Decker says that he should be given a choice between law library sessions and certain activities, but that he has been scheduled during morning and afternoon pill window sessions, chow, and necessities. When his session concludes at 6:00 p.m., the pill window and the chow hall are closed, and so he has to argue with officials to get a peanut butter sandwich, while all other inmates receive a hot, nutritious meal. He complains of going to the law library with inmates in safekeeping and says that only non-Caucasian inmates are allowed to sign in late; these inmates also get four sessions a day, but he only gets one. The response was that the Step One grievance response had addressed his complaint and that the issue had been previously addressed in three other grievances.

On December 26, 2005, Decker filed a grievance complaining that Dunbar is retaliating against him for filing grievances. He again refers to the July 7, 2005 incident, and largely repeats complaints made in other grievances about other inmates being allowed to sign in late, being placed in an outside cage, and having to choose between law library sessions and meals. The response to this grievance was that Decker had received lay-ins, at his request, for December 20, 21, 22, and 23, and attended sessions on December 20, 21, and 23, and that Dunbar stated that he is not being retaliated against. In his Step Two appeal, Decker says that the U.S. Constitution is the supreme law of the land, preempting all of Dunbar’s stipulations, that Dunbar has falsified state documents, and that he had bogus disciplinary cases fabricated against him. The response was that the Step One grievance response had addressed his complaint, law library time was scheduled in accordance with policy, and no further action is warranted.

On June 30, 2005, Decker filed a Step One grievance complaining about a disciplinary case in which he was charged with possession of contraband, in the form of a rubber grip. Decker says that these are allowed at the Hughes Unit and that the item had not been altered. He states that when he arrived at the unit, officers Gibson and Long began harassing him. All of the other inmates had a retractable pen, steel casings, a rubber grip, legal folders with tape on them, which were altered from their original state, and one inmate had a “stolen typewriter,” but Gibson did not confiscate it; instead, Decker was written a case for having a rubber grip, and no confiscation papers were provided. He asked Gibson why he didn’t write cases on the inmates having the altered legal folders with stolen State tape, and Gibson replied that the other inmates did not write grievances. He says that Gibson verbally abuses him and ■ that an officer named Long tells him to shut up while all of the other inmates are talking and he had not said a word. Long would send him back, apparently from the law library, if he is one minute late, while other inmates are allowed to be late, and he is denied extra time. The response to this grievance was that the disciplinary case had been reviewed and no procedural errors were noted, sufficient evidence existed to support the finding of guilt, and the punishment imposed was within established guidelines.

In his Step Two appeal, Decker says that Gibson has a vendetta against him, he was singled out for “disparate treatment,” and the case was written to stop him from filing grievances. The response was that all unit commissaries sell the same basic items, and that a pen with a rubber grip is not sold in the commissary. No evidence was found to support the allegations of retaliation. Decker was found to be in possession of contraband and so a disciplinary case was written in accordance with policy.

On August 19, 2005, Decker filed a grievance complaining that he has only been getting seven hours per week in the law library, and then issued a written stipulation that if an inmate uses the restroom, he forfeits extra time. He says that the Access to Courts Department “corrected” Dunbar in grievance no. 2005148136 and 2005152311, and so on July 19, 2005, Dunbar began giving him extra time. However, on August 10 and August 12, 2005, Decker says that he gave requests to Officer Long, who became verbally abusive and told him to “shut up.” He asked her to check the pass written by her supervisor, and she became belligerent, and then had Officer Gibson “incite more harassment.” He says that Long is Gibson’s wife, which creates a conflict of interest, and that Gibson falsely accused him of creating a disturbance. He repeats various complaints about inadequate storage space, how he cannot leave the unit for emergency medical care, he cannot get books while on lockdown, he cannot get a trust fund print-out, he cannot get legal visits, the books have pages missing, he is subjected to constant retaliation, and he has been abused for requesting what the rules allow. The response to the grievance was that Decker had presented numerous issues, of which only one would be addressed. Dunbar stated that inmates needing to use the restroom while attending the law library had to sign out and return to their housing assignments, and that August 10, 11, and 12, Decker received two hours of access to the law library each day.

In his Step Two grievance appeal, Decker says that if an inmate has medical problems, he still must forfeit law library time if he needs to use the restroom. He says that only ordinary circumstances, there is no justification to deny general population inmate extra time in the law library, which is a “mandatory statute” apparently conferring a liberty interest. Decker again says that non-Caucasian inmates are allowed to sign in late and that Dunbar is falsifying records, as shown by the “nine bogus disciplinary cases” which she has written him. The response to this grievance appeal was that law library attendance is voluntary, he can terminate the session at his convenience, inmates cannot return to the law library without first obtaining permission, and that if he needs an accommodation, he must present the law library staff with justification.

On July 22, 2005, Decker filed a grievance complaining that he was only allowed fourteen hours of law library access for a two-week period, but he is supposed to get 10 hours per week or more. He says that on July 5, Dr. Stanley received information from UTMB about Decker’s melanoma, and called Decker to the clinic. Decker had a law library session from 12:15 to 2:30 p.m., but he stayed in the clinic until 1:13. After he got to the law library, he was ordered to leave at 2:20 by an officer identified as “Ms. Shari;” he asked if he could have two hours, but she became abusive and told him to get out. Decker states that other inmates were allowed to stay until 3:30, but does not say when these inmates arrived. On July 8 and 9, he says, Officer Long sent an officer named Neddleton to confiscate Decker’s lay-in passes on the ground that Long had cancelled his sessions. He says that another officer, Martin, confirmed that Decker had given 1-60 requests each day to Long, but Long stated that if Decker used the restroom, he could not get extra time. On July 13, Decker says that he did not get a lay-in and was told that Long had cancelled the session, and he was unable to sign up for the next session.

Decker states that Dunbar had a “new scam,” in that she would call for the law library session at five minutes before 6:00 a.m., and when Decker got to the front desk, it would be count time. Dunbar would then refuse him a lay-in pass and tell the warden that Decker had failed to show up for extra time. The response to this grievance was that numerous issues were raised in the grievance, but only one would be addressed. Decker was laid in to attend a law library session on July 9, 2005, but did not attend, and that law library sessions are scheduled in accordance with policy.

On May 16, 2006, Decker filed a grievance complaining that he was being subjected to a “gradual repudiation” of his right of access to court in retaliation for his filing of grievances. He talks about the incident in July of 2005 and complains about being sent back from the law library when he is late. On May 12, 2006, he says, he placed prison officials on notice that he was being “sexually harassed,” and says that he was assaulted by 4 Building gang members. He says that Sanders conspired with Dunbar in some way with regard to this assault. Decker also complains that he cannot leave the unit for cancer treatment and that a “hit” had been placed on him. He acknowledges that Dunbar now allows a restroom break after two hours, but says that black inmates can come to the law library at 12:45 and stay until 6:00 p.m. The response to this grievance was that Decker had requested and received law library lay-ins on May 23, 24, 25, 26, and 27, but only attended the May 27 session.

In his Step Two appeal, Decker says that Dunbar scheduled him with inmates in safekeeping for the sole reason of having him assaulted and defamed, and now he has to file a life endangerment complaint. He says that he has missed over eight court deadlines and says that Dunbar is showing favoritism to members of her own race. He contends that Dunbar is forcing him to choose between daily law library sessions and physical assault. The response to this grievance was that the Step One response had addressed his complaint, and that Decker had been scheduled for law library sessions on May 23, 24, 25, 26, and 27, but chose to attend only on May 26; law library attendance is scheduled according to policy and no further action is warranted.

In a Step One grievance filed in May of 2004, Decker says that Dr. Stanley had ordered that he receive an extra storage box because he is waiting for knee replacement surgery; he explains that in order to access his bunk locker, he has to kneel on his injured knee. However, he says, he received a disciplinary case for requesting an extra storage locker. Sgt. Smith told him that it was not a safety issue and directed profanity at him. The response to the grievance was that inmates could get extra storage space for medical reasons, and that Decker had received a pass for an extra storage container, which was canceled on May 27, 2004.

In his Step Two appeal, Decker says, obliquely, that his legal work was confiscated and he was subjected to harassment and retaliation. He says that he was told that “contraband baggies” were found in his storage box, but that medical staff has verified that they issued the baggies. He complains that this was done in retaliation for his filing complaints. The response was that the Step One grievance addressed his complaint and that this issue had been addressed in a prior grievance.

On February 17, 2004, Decker filed a grievance saying that on January 23, Officer Clements [Dunbar] was overheard telling Lt. Martin to “lean on” Decker because he is a trouble maker. He says that Dunbar falsified a response saying that no legal work had been confiscated in March of 2003. Martin began denying Decker access to the chow hall, while allowing other inmates to eat. On the date of the grievance, Decker says, Dunbar ordered him out of his cell while she searched and read his legal work. He says that rules require that he be present while his legal materials are searched, and that she took away his locker in retaliation. The response was that on February 17, 2004, a 90-day review was done to verify the continued need for an extra storage box. No legal material was read, but during the search, four ziplock bags were removed from empty writ envelopes. The storage of unauthorized items resulted in the confiscation of the legal storage container. In addition, there was no request from Decker to use the law library on February 18. He did have a lay-in on February 17, but did not show up.

In a Step One grievance filed on March 29, 2004, Decker complains of the taking of his storage box, linking this to false disciplinary cases which he had received from Dunbar. He says that the locker box was taken in retaliation for his grievances, and says that he is handicapped and waiting on knee replacement surgery. Decker says that because he was removed from the cell, he does not know if Dunbar took the baggies out of another locker and placed them in his legal box. The response was that subsequent storage (i.e. the extra locker box) is issued in accordance with access to court policies, but shall not be maintained to conceal contraband.

In a Step One grievance filed July 10, 2005, Decker states that he was scheduled for a law library session from 12:15 to 2:30 p.m. At 2:20, he asked to use the restroom, which according to Dunbar’s rule, means that the inmate must sign out and terminate his session. Count was called at that time, and Long told him that he would have to wait until count was verified. Sharp, Gibson, and an officer named Washington were talking. Long said that she did not care if “you urinate your pants and die.” At 2:50, after urinating in his pants (Decker describes this as “almost three hours wait”), Gibson finally took him to the restroom. He says that he did not bring this to Gibson’s attention until he left the law library, to reduce his humiliation.

Afterwards, Decker says, Gibson took him and another inmate, Gilbert, to the 12 Building chain pen, a holding area. He was placed in the pen closest to the wall, with no air circulation from 2:50 until 4:15 p.m. During this time, Decker says, he sat in soiled urine, with no water, no restroom breaks, and no way to cool off, although the temperature was 95 degrees. He says that both he and Gilbert have heat restrictions due to medications which they are taking, but that they were left in the heat with no water for about an hour and a half. Decker contends that by law, inmates locked in cages must have access to water and restroom breaks once an hour. The response to this grievance was that Decker’s complaint of harassment, being denied a proper restroom break, and being placed in a holding cage for over an hour in the heat, could not be substantiated.

In a Step Two grievance appeal, Decker says that as a result of the incident, he is now being treated for a bladder rupture with a medication called oxybutynin, an anti-cholinergic (i.e. it relaxes the bladder muscles). He says that Dunbar continues to deny him access to the restroom, and on August 30, 2005, she ordered him not to ask for another restroom break, and then wrote him a disciplinary case when he did so. Decker also repeats previous complaints about taking away his locker box, not providing him with sufficient law library time, discriminating in favor of non-Caucasian inmates, and retaliation. The response to this grievance was that Decker was attempting to leave the law library during count, and as soon as count was completed for the law library, he was taken to the restroom. He was placed in the holding area for about 10 minutes until the building count was completed, and there was no evidence that staff acted inappropriately. On the grievance response form, Decker circled the “10 minutes” and wrote “fraud, it was 90 min, documented in log.”

The Defendants’ Motion for Summary Judgment

The Defendants have filed a motion for summary judgment, accompanied by numerous exhibits as summary judgment evidence. This motion begins by arguing that Decker fails to meet the redressability element of standing with regard to his request for prospective injunctive relief, that the Defendants are entitled to qualified immunity, and that the claims against Sanders, Hudson, Martin, Barrow, and Williams fail because of a lack of showing of personal involvement by these officials, who all have supervisory roles.

Turning to the issue of access to courts, the Defendants note that Decker alleges that he has been denied access to the law library, resulting in a denial of access to court. However, they state, as the grievance responses show, Decker often does not attend sessions for which a pass is issued. They state that between June 1, 2006 and August 15, 2007, a period of 440 days, Decker attended 382 law library sessions. They note that if he needed additional time, he could have simply asked for it, and such time is normally granted as a matter of course.

Furthermore, the Defendants state, even if Decker was denied access to the law library, he has not shown that he suffered any harm. While Decker lists several different lawsuits which were allegedly prejudiced, the Defendants state that John Patrick, a program specialist for the Access to Courts Division, investigated Decker’s claims and found no evidence that Decker missed any court deadlines, and Decker offers no competent summary judgment evidence showing that any such deadlines were missed.

Although Decker complains that he was denied law library books while the unit was on lockdown, the Defendants state that according to law library records, law books were delivered to Decker 20 separate times while the unit was on lockdown.

Decker also complains about the confiscation of his legal storage box, which the Defendants acknowledge was done on February 17, 2004. However, this box was confiscated because a cell search found contraband stored in it. They state that extra storage is a privilege, which can be revoked. The Defendants further state that Decker had the opportunity to reapply for the storage box, but did not do so, and that a check of pending court cases did not show that Decker had suffered harm in any such case as a result of the confiscation.

Decker states that he is forced to choose between eating and going to the law library. He says that he was scheduled for the law library between 9:45 and 12:00 p.m.; the Defendants state that lunch is served from 9:30 to 12:30 p.m., giving Decker ample time to eat even if he stays for the full session. They note that the Supreme Court has stated that inmates are not guaranteed the wherewithal to “transform themselves into litigating engines,” and that Decker has had ample opportunity to avail himself of the law library; the fact that he simply believes himself entitled to yet more time.is not sufficient to sustain a cause of action.

Turning to the issue of retaliation, the Defendants aver that Decker has offered no evidence that he would not have received disciplinary cases but for the purported retaliatory motive. They note that Decker was afforded a hearing on each of these cases, evidence was offered, and the cases were upheld on appeal, and state that Decker simply makes conclusory allegations that he was retaliated against, which allegations are not sufficient to support Section 1983 liability.

As to the cases themselves, the Defendants contend that any claims for damages based on the disciplinary eases themselves are barred by the doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), in which the Supreme Court held that claims for relief based on due process violations in prison disciplinary proceedings which necessarily imply the invalidity of the punishment imposed are not cognizable under Section 1983, but must be vindicated through habeas corpus.

Decker also claims retaliation through the scheduling of law library sessions. The Defendants argue that Decker has failed to show that but for the alleged retaliatory motive, the incidents complained of would not have occurred. They state that law library sessions were scheduled based on availability, inasmuch as all inmates requesting law library time must be taken into account when scheduling is done. Factors such as work schedules, medical visits, and educational opportunities also had to be taken into account. The Defendants say that when all of these factors were considered, the best time for Decker was 9:45 to 12:00; thus, they state, Decker has failed to show that but for the alleged retaliatory motive, this would not have been done.

The next issue to which the Defendants turn is that of deliberate indifference to Decker’s medical needs. Decker asserts that he suffered a ruptured bladder as a result of denial of a restroom for three hours on July 7, 2005; however, the Defendants state that Decker’s medical records show no evidence that her has suffered a ruptured bladder at all. While he does have urological problems, the Defendants assert that none of these would be caused or exacerbated by denial of restroom privileges for a few hours. They state that according to Decker’s medical records, he has no medical conditions which would require a rigid restroom schedule, and reiterate that his condition was not exacerbated by a short denial of restroom facilities.

Similarly, Decker complains that he was placed in a hot holding cell for an extended period of time. While the Defendants acknowledge that Decker has a work restriction preventing him from being assigned to work in areas with temperature extremes, they contend that this refers to assigning him to a work detail, not his daily life at the unit. The Defendants further state that after spending time in the holding cell, he went to the medical department, where he complained of dehydration but medical personnel found no outward signs of any medical issues. Decker had no problem with ambulation, his blood pressure was normal, and his breathing was unlabored. Dr. Reginald Stanley says in an affidavit that sitting in a hot cell for a short period of time would not adversely affect Decker’s medical condition, and holding cells are a normal part of life at the prison and inmates can expect to be placed in such a cell for a few hours from time to time.

Decker complains that the Defendants have put him to a choice between his medical treatment and his legal property. However, the Defendants state that if Decker chooses to leave the unit to receive medical care, his property will be stored until his return or sent to his new unit of assignment, as per TDCJ regulations, although any contraband or excessive property would be confiscated.

The Defendants point out that they are not medical providers and have no control over the treatment which Decker receives. They state that he has been offered the opportunity to receive treatment at the hospital in Galveston, but he has consistently refused. They say that medical personnel have stated that they cannot understand Decker’s paranoia over his legal materials, but speculate that because he has been diagnosed with a major depressive disorder with psychotic features, this condition may contribute to his paranoia over his legal property. The Defendants reiterate that if Decker chooses to avail himself of medical treatment off of the unit, his property will be stored according to TDCJ regulations, and so Decker has not shown that they were deliberately indifferent to his medical needs.

Decker also complains that the Defendants were deliberately indifferent to his safety with regard to an alleged assault on May 12, 2006. He says that this assault came about because other inmates believed that he was homosexual because he was scheduled for law library time with inmates in safekeeping. They state that prison records contain no mention of an assault, although Decker did report to the medical facility on May 15 with a bruise under his left eye. The Defendants further assert that Decker did not place them on notice of the assault; while he did file grievances saying that he was in danger because other inmates believed that he was homosexual, he offered no specific facts, but only vague assertions, which gave the prison officials nothing to work with.

Decker contends that he has been erroneously labeled as a gang member, which has damaged his chances for parole. The Defendants state that Decker has never been classified as a gang member, and speculate that he may have inferred that he has from the letter notifying him of denial of parole. This letter, as noted above, gives one basis for the denial of parole that “the record indicates that the offender repeatedly committed criminal episodes or has a pattern of similar offenses that indicate a pattern to commit criminal acts upon release; or the record indicates that the offender is a leader or active participant in a gang ... ”. One or more of the factors mentioned in the letter could be a reason why Decker was denied parole; the Defendants say that because Decker has never been classified as a gang member, this subsection obviously did not apply to him.

Decker also cites the Americans with Disabilities Act, which provides in pertinent part that “... no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. According to the Defendants, Decker’s allegations concerning receipt of disciplinary cases and denial of an extra legal storage do not show violations of the ADA because he has not shown the denial of access to a program because of his disability. Decker’s legal storage box was confiscated in February of 2004 because he had contraband stored in it. He was advised how to reapply to get another one, but never placed such a request. The Defendants state that Decker’s storage box was confiscated because he was violating TDCJ rules, not because of his disability.

The Defendants assert that Decker’s conspiracy claims must fail because all of the Defendants are members of the same collective entity and so the alleged conspiracy does not involve “two or more people.” In addition, they state that Decker’s conspiracy claims are wholly conclusory and lack any specific facts, and that Decker has not shown the actual deprivation of any constitutional rights, which showing is required to sustain a conspiracy claim.

The Defendants’ Summary Judgment Evidence Decker’s Medical Records

As noted above, Decker’s medical records show that on July 7, 2005, he walked into the clinic complaining of dehydration, saying that he had to sit in a cage for a couple of hours and now he is light-headed. No problem was seen with ambulation, his vital signs were checked, his respiration was even and unlabored, and he was educated on lying down when he felt lightheaded and told to submit a sick call request for all non-emergency problems.

On August 2, 2005, Decker came into the clinic saying that he feels depressed and he has a nocturnal cough. Dr. Stanley noted that Decker signed a refusal of treatment form for surgery at Galveston, although the doctor told him that this surgery was needed for the melanoma on his leg. After the melanoma was diagnosed. In June of 2005, the medical records contain the following entry by Dr. Stanley: “Extensive discussion of the case with the patient. He needs to go to HG [Hospital Galveston] for further surgery possibly including skin graft, groin dissection, etc. To my surprise patient refuses to go until his legal problems are solved-this could take from weeks to months. Patient not willing to change his mind anytime now. ROT [refusal of treatment] signed by the patient. RTC [return to clinic] RS [reschedule] in two weeks. Uncooperative and unreasonable offender.”

Dr. Stanley’s affidavit says that a ruptured bladder is an extremely serious condition, representing a urological emergency, and without surgical intervention, the patient is likely to die. Decker never received any such surgery. While Decker does have urological conditions such as benign enlargement of the prostate, hema-turia (blood in the mine) and frequency of urination, none of these conditions would be caused by denial of the restroom for a few hours.

Decker’s Disciplinary Cases

The Defendants’ summary judgment evidence includes a number of disciplinary cases which Decker received and upon which he was found guilty. In case no. 20070016941, a minor case dated September 16, 2006, Decker was charged with possession of altered headphones, in that a place was created wherein contraband could be concealed. Decker stated that “I had a shoe string tied on them.” He was found guilty of the charge and given 15 days of cell restrictions.

In case no. 2006122714, a minor case dated January 3, 2006, Decker was charged with being out of place, in that he had been called out for the pill window line but was in the necessities line. His statement indicated that he was in the necessities line. He was found guilty of the charge and given 30 days of recreation restriction.

In case no. 20050343862, a minor case dated August 11, 2005, Decker was charged with creating a disturbance, in that he yelled and refused to stop while in the law library. Gibson said that he told Decker that his extra time would soon be up and that he would have to wrap up his legal work for the day, and Decker yelled “you better check my pass.” Gibson told Decker to stop yelling but Decker continued to do so, and so Gibson ordered Decker to stop yelling, put up his books, and exit the law library. Decker did put up his books but kept yelling until he left. Decker was found guilty of the charge and given 30 days of recreation restriction and 15 hours of extra duty.

In case no. 20050295508, a minor case dated June 25, 2005, Decker was charged with possession of contraband, in that he had a pen with a writing grip made of rubber placed on it, which is an item not allowed or assigned to inmates and not bought for his use in the commissary. Decker’s statement said that he got the rubber grip, which was allowed on another unit, on a pen there, but acknowledged that he had taken it off of the pen it came with and put it on another pen. An officer quoted Decker as saying that the grip was for “craft shop items.” He was found guilty of the charge and given a verbal reprimand.

In case no. 20050055433, a minor case dated April 20, 2004, Decker was charged with failing to obey an order, which was Dunbar’s order for him to stop talking. Decker’s statement says that he was trying to resolve an issue that the supervisor was imposing over the use of toilet facilities during law library sessions. Decker was found guilty of the charge and was given 15 days of recreation restriction and 15 days of cell restriction. Decker was quoted as saying that he had permission from Officer Sharp to talk, but Sharp gave a statement saying that she had not given him permission to do so.

In case no. 20040282502, a minor case dated June 6, 2004, Decker was charged with being out of place, in that he was in the no. 4 chow hall at the Three Row table when he had no authorization to be there. The statement of the charging officer, E. Allen, said that Decker had beén sitting at the Two Row table, got up, and moved to the Three Row table without permission. As punishment, Decker received a verbal reprimand, 15 days of cell restriction, and 15 days of commissary restriction.

In case no. 20040174418, a minor case dated February 17, 2004, Decker was charged with possession of contraband in the form of four ziplock bags, and having legal property stored in an unauthorized manner. Decker’s statement said that the bags were issued by the medical department. He was found guilty of the charge and given 30 days of commissary restriction and 20 hours of extra duty.

In case no. 20040132851, a minor ease dated January 6, 2004, Decker was charged with being out of place, in that he was in line for the comm