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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`TYLER DIVISION
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`HERSCHEL HURD #1566322
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`v.
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`KAREN BARNETTE, ET AL.
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`§
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`§
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`§
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`CIVIL ACTION NO. 6:15cv734
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`MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
`OF THE UNITED STATES MAGISTRATE JUDGE
`AND ENTERING FINAL JUDGMENT
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`The Plaintiff Herschel Hurd, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
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`§1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case
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`be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the
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`Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States
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`Magistrate Judges. The named Defendants are Officers Karen Barnette, Johnathan Campbell, and
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`Tawanna Monroe.
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`I. The Plaintiff’s Claims
`The operative pleading in the lawsuit is Hurd’s more definite statement of complaint (docket
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`no. 23). In his complaint, Hurd stated that on October 1, 2014, Barnette came to his cell at 5 a.m.
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`for a scheduled commissary purchase. She took his ID card. Because Hurd was in administrative
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`segregation, his purchase was supposed to be delivered to him.
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`At 4 p.m., Hurd was escorted to the shower. Barnette arrived on the pod to deliver the
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`commissary purchases, along with the inmate commissary workers. She went to the cells on the
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`ground floor to get the signatures and thumbprints of the prisoners who had made purchases, while
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`one of the inmate workers went to the second floor to do the same. Hurd was not in his cell because
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`he was in the shower, so the inmate worker left.
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`1
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`At 5:12 p.m., Hurd was escorted back from the shower. He found his ID card on the floor
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`at the door of his cell, and his commissary purchase was not there. Hurd was told that Barnette had
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`already left for the day and that he should let her know what had happened the next day. The pod
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`officer also told him to file a grievance, which he did.
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`On October 3, 2014, around 12:42 p.m., Sgt. Campbell arrived at Hurd’s cell to conduct a
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`search. He told Hurd he needed to search the cell to see if Hurd had received his $58.55 worth of
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`commissary or not.
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`Barnette arrived to help Campbell with the search, which was completed at 1:22 p.m. The
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`items purchased by Hurd were not found. Barnette left and Campbell took Hurd back to his cell.
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`Campbell told him that Barnette should bring him his commissary goods or refund his money since
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`the items purchased were not found in his cell.
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`Campbell returned at 1:35 p.m. to conduct a second search. During this search, he
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`confiscated items which had nothing to do with Hurd’s commissary purchase, including shoes, a hot
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`pot, and a radio. Campbell stated that he needed all of Hurd’s purchases as well as his receipts and
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`property papers, but the property would be returned in a couple of hours. Campbell also took Hurd’s
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`ID card. Hurd filed another grievance because his property was not returned in a few hours and he
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`did not get his commissary purchases or his ID card. As a result of not having his ID card, Hurd
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`contended that he was denied a number of meals over a period exceeding 30 days.
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`On October 30, 2014, Hurd stated that Monroe came to his cell to return the confiscated
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`property. She told him that he did not have to file a grievance and for that, she was not giving him
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`his radio back. Hurd received back his shoes, his hot pot, and everything else besides his radio,
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`receipts, and property papers. Monroe told him she was keeping the radio and his property papers.
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`She smiled at him and said that he should file another grievance, which he did.
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`For the next two months, Hurd went without an ID card. In February of 2015, he wrote to
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`Monroe asking why he had not been approved to buy another radio after making requests in
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`2
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`November and December. She told him his request had not been approved. Hurd also learned that
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`there were no property papers on file for the property taken on October 3.
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`Hurd argued that Barnette committed theft by stealing $58.55 out of his account. She did
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`not provide him with a hearing before taking the money. He claimed that the October 3 cell search
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`and the confiscation of his property was done in retaliation for the fact that he had filed a grievance.
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`He further asserted that the taking of his property and his ID card violated the Fourth Amendment
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`and the Eighth Amendment, and that the officers knew ID cards are required in order to obtain
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`meals.
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`Hurd maintained that Monroe retaliated against him when she refused to return his
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`radio, although he acknowledged he received the return of his shoes, his hot pot, and everything else
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`besides his radio and property papers. Hurd further alleged that the fact that confiscation papers
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`were not on file was a violation of the Freedom of Information Act. For relief, Hurd asked for
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`compensatory and punitive damages in an amount over $1,000,000.00, stating that he suffered
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`mental and emotional pain, physical pain from going without food, embarrassment, discomfort, and
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`inconvenience.
`II. The Motion to Dismiss
`The Defendants filed a motion to dismiss arguing that Hurd’s claims for compensatory
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`damages is barred because he did not demonstrate any physical injury and his claim for punitive
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`damages lacks merit because he did not allege facts sufficient to justify an award of punitive
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`damages. The Defendants asserted that Hurd did not allege how many meals he missed nor did he
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`claim to have sought medical attention.
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`The Defendants maintained that by Hurd’s own account, the taking of his property was a
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`random and unauthorized deprivation, rendering pre-deprivation process impossible. They asserted
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`that his retaliation claims are conclusory and that Hurd failed to show his free speech rights were
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`curtailed; on the contrary, he routinely filed grievances and letters to prison officials. The
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`Defendants maintained that Hurd’s Eighth Amendment claims are conclusory and he failed to show
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`3
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`deliberate indifference, that Hurd’s Fourth Amendment claim is frivolous, and they are entitled to
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`qualified and Eleventh Amendment immunity.
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`In response, Hurd argued that the pain he suffered from going without food is a qualifying
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`physical injury and the multiple cell searches prove he was the victim of retaliation. He contended
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`that prisoners have a limited privacy interest in their cells and that the refusal to return his radio also
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`proves retaliation. Hurd further asserted that the policies and procedures for the deduction of money
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`from his account was the pre-deprivation process to which he was entitled and that he has shown
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`such conduct as to justify punitive damages.
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`III. The Report of the Magistrate Judge
`The Magistrate Judge stated that a random and unauthorized deprivation of a property or
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`liberty interest does not violate due process if the State furnishes an adequate post-deprivation
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`remedy. Hurd alleged that Barnette stole his money and that his radio was confiscated in retaliation
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`for his having filed grievances, both of which are random and unauthorized deprivations. Because
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`the State furnishes an adequate post-deprivation remedy, the Magistrate Judge determined that
`Hurd’s claims in this regard lacked merit in federal court under the Paired/Hudson Doctrine, as set
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`out in Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994).
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`The Magistrate Judge determined that Hurd had not shown a qualifying physical injury under
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`42 U.S.C. §1997e(e) for purposes of obtaining damages for mental or emotional injury and that
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`Hurd’s allegations did not rise to the level of entitlement to punitive damages. The Magistrate Judge
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`further stated that Hurd’s claims of retaliation amounted to little more than his personal belief that
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`he had been the victim of retaliation and that in any event, the allegedly retaliatory conduct was de
`minimis.
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`The Magistrate Judge concluded that Hurd’s allegations failed to set out a valid claim of
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`cruel and unusual punishment, Hurd did not have a protected liberty interest in his cell, and his claim
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`under the Freedom of Information Act lacked merit. The Magistrate Judge further stated that the
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`Defendants were entitled to qualified and Eleventh Amendment immunity.
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`4
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`IV. Hurd’s Objections to the Report and his Amended Complaints
`After stating that the two cell searches complained of took place on October 3, Hurd asserts
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`that he was strip searched by Campbell during the course of the cell search, which he claims was
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`done for harassment. He states that his exhibit C (docket no. 23, p. 10), consisting of what appeared
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`to be a blank disposition of property form, in fact is not blank, but contains very faint writing by
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`Campbell. According to Hurd, Campbell wrote on this form as justification for the confiscation of
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`Hurd’s property that “offender stating never received commissary 10/1/14.” Close examination of
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`Exhibit C does not reveal any writing on the form; however, the Court will assume that Hurd is
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`correct in stating that the form is too faint to read and in what he says was written on it. In
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`recounting Hurd’s claims, the Magistrate Judge acknowledged that according to Hurd, Campbell had
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`written this on the confiscation paper.
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`After stating that the sentence in the Magistrate Judge’s Report reading “there is no such pro
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`8 on file to match this discipline” should read “there is no such pro 8 on file to match this
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`description,” Hurd asserts that the Paired/Hudson Doctrine should not apply in this case. He cites
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`Patterson v. Coughlin, 761 F.2d 886 (2nd Cir. 1985), cert. denied, 106 S.Ct. 879 (1986) as holding
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`that official conduct could violate a due process liberty interest and whether or not conduct of a state
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`official was random and authorized must be viewed from the position of one who possesses the
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`state-delegated authority to grant a hearing when circumstances and the Constitution so require.
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`Hurd argues that it should not be permissible for prisoners to handle the funds and commissary
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`goods purchased by another.
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`Hurd next states that he did not know that he was required to state specific facts and asks
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`permission to amend his complaint. He points out that in Johnson v. Pfeiffer, 821 F.2d 1120 (5th
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`Cir. 1987), the Fifth Circuit remanded the case and ordered that the plaintiff be allowed to amend
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`his complaint to clarify the factual and legal bases of his claims and an attorney was appointed to
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`assist the plaintiff in doing so. Hurd asserts that he is simply asking for the same treatment in his
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`case.
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`5
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`Hurd argues that he has set out a viable retaliation claim because if he had not filed a
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`grievance about money being taken from his account, Campbell and Barnett would not have
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`searched his cell twice in less than an hour or confiscated his property and his ID card. If he had not
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`filed a grievance about Campbell taking his property, Monroe would not have kept his radio or
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`destroyed the confiscation papers instead of filing them.
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`Hurd also asserts that his property which was kept for 27 days, the strip search by Campbell,
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`the cell searches, the loss of his radio and the taking of his ID card should not be considered de
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`minimis. He states that 27 days of cell and commissary restrictions given as a disciplinary
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`punishment is not considered de minimis, citing Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003).
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`Hurd further alleges that his Fourth Amendment claim is meritorious, stating that Texas
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`prison policies only allow for one cell search every 72 hours but his cell was searched twice in less
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`than 24 hours, violating policy. He states that if it is true that the Freedom of Information Act
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`applies only to federal agencies, he wishes to change his claim to one of state law, which he refers
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`to as the “Open Act.” Hurd goes on to contend that he has overcome the Defendants’ entitlement
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`to qualified immunity, he should be entitled to compensatory and punitive damages as well as
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`nominal damages, and that he has stated a claim upon which relief may be granted.
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`In an attached motion for leave to file his third amended complaint, Hurd provides a list of
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`dates upon which he was allegedly denied food, comprising 24 meals in 32 days. When he
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`complained about pain from not eating, officers laughed at him. Lt. Kelly told Hurd he would get
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`him a temporary ID card but did not. The officers refused to report that he needed medical care even
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`though he suffered blackouts from going without food. He wishes to add discrimination claims
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`against Campbell and Barnett for causing him to go without food and against Monroe for not
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`allowing him to re-purchase a radio.
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`Hurd also attaches a supplemental complaint asserting that in November of 2015, Monroe
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`retrieved his hot pot because Hurd had asked to purchase a new one and had to turn in his old one.
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`Although she gave him the papers for it, she did not document this, because records show that he
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`6
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`still has that hot pot. This makes him unable to purchase a new one. He asserts that this states a
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`claim for falsifying documents and discrimination.
`V. Discussion
`There is no dispute that according to Hurd, both searches of his cell took place on the same
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`day, October 3, nor that according to Hurd, Campbell stated as justification for searching his cell
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`that Hurd claimed not to have received his commissary purchases.
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`Hurd complains that in the course of removing him from his cell during a search for the
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`commissary items, Campbell strip searched him for purposes of harassment. He offers no facts in
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`support of his allegation that this search was conducted for purposes of harassment rather than as
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`part of an effort to locate missing property. The TDCJ search policy, Administrative Directive
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`03.22, provides that it may be necessary at times to strip search offenders to ensure staff safety and
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`offender safety and to detect the presence of contraband. See Grant v. Wisener, civil action no.
`6:11cv372, 2013 U.S. Dist. LEXIS 40765, 2013 WL 1196299 (E.D.Tex., March 22, 2013), Report
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`adopted at 2913 U.S. Dist. LEXIS 73021, 2013 WL 1196090 (E.D.Tex., May 23, 2013), aff’d 594
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`F.App’x 278, 2015 U.S. App. LEXIS 3085 (5th Cir., February 27, 2015). Other than a conclusory
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`allegation of “harassment,” Hurd has offered nothing to show that the search was unreasonable or
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`that it was conducted for improper purposes rather than in an attempt to locate missing property.
`Moore v. Carwell, 168 F.3d 234, 237 (5th Cir. 1999); Waddleton v. Jackson, 445 F.App’x 808, 2011
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`U.S. App. LEXIS 214595, 2011 WL 5025248 (5th Cir., October 21, 2011). This objection is
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`without merit.
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`Hurd cites the Second Circuit’s decision in Patterson v. Coughlin as stating that whether a
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`state official’s conduct is random or unauthorized must be viewed from the position of one who
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`possesses the state-delegated authority to grant a hearing, and since the officials with the power to
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`give the plaintiff a hearing had failed to do so, the Second Circuit held the Paired/Hudson Doctrine
`inapplicable. However, the Fifth Circuit has specifically disagreed with Patterson. In Holloway v.
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`Walker, 790 F.2d 1170, 1172-73 (5th Cir. 1986), the Fifth Circuit observed that the Supreme Court
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`7
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`had rejected an argument similar to that accepted by the Second Circuit in Patterson. The Fifth
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`Circuit explained that “the ability of the individual state employee to provide pre-deprivation
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`process does not determine whether a due process violation has taken place. When state procedures
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`provide due process and are violated by a random or unauthorized act of a state employee, even a
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`high-ranking state employee, Parratt/Hudson established that no federal constitutional due process
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`violation has occurred.” Because Hurd is complaining of a random and unauthorized deprivation
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`of property, his claim is foreclosed by the existence of adequate state post-deprivation remedies.
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`Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994); Gardner v. Hudson, civil action no.
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`5:09cv189, 2010 U.S. Dist. LEXIS 8556, 2010 WL 446562 (E.D.Tex., February 2, 2010), appeal
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`dismissed as frivolous 409 F.App’x 791, 2011 U.S. App. LEXIS 2252, 2011 WL 396474 (5th Cir.,
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`February 3, 2011). This objection is without merit.
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`In his proposed third amended complaint, Hurd asserts that he was denied food on 24
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`occasions over a period of 32 days because he did not have an ID card. He claims he had to have
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`an ID card in order to get meals, but he does not allege that he missed all of the meals; on the
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`contrary, 32 days of three meals apiece comprise 96 meals, indicating that during this period of time,
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`Hurd was able to access 72 meals despite not having an ID card.
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`There is no constitutional right to three meals a day. Green v. Ferrell, 801 F.2d 765, 770-71
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`(5th Cir. 1986); Flores v. TDCJ Transitorial Planning Department, civil action no. 2:14cv283, 2015
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`U.S. Dist. LEXIS 176727, 2015 WL 10436114 (S.D.Tex., November 17, 2015), Report adopted at
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`2016 U.S. Dist. LEXIS 29718, 2016 WL 879831 (S.D.Tex., March 7, 2016, appeal dismissed). The
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`Fifth Circuit has held it is doubtful that prisoners missing 50 meals in five months were denied
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`anything close to a minimal measure of life’s necessities. Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th
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`Cir. 1998).
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`Furthermore, Hurd’s exhibits show the response to the grievance in which he mentions his
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`ID card states that according to Mrs. Cannon, the commissary supervisor, Hurd’s ID card was
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`deactivated because Hurd claimed his account had been compromised. Cannon is not named as a
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`8
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`defendant in the lawsuit and Hurd does not allege that any of the named defendants deactivated his
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`card or had authority to do so.1 Hurd’s objection on this point is without merit.
`The Johnson v. Pfeiffer case, cited by Hurd, challenged the policies and procedures used by
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`the Texas Board of Pardons and Paroles. The Fifth Circuit determined that the district court had
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`misconstrued the plaintiff’s claims by incorrectly ascertaining that these claims sounded only in
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`habeas corpus and remanded the action to the district court. Hurd has not shown any similarities
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`between his case and Johnson. His objection on this point is without merit.
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`Hurd argues that if he had not filed a grievance about money being taken from his account,
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`Campbell and Barnett would not have searched his cell twice in less than an hour or confiscated his
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`property and his ID card, and that if he had not filed a grievance about Campbell taking his property,
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`Monroe would not have kept his radio or destroyed the confiscation papers instead of filing them.
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`He offers nothing to show that but for his grievances, the actions by the officers would not have
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`occurred beyond his bare assertion that it is so. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
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`1995); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (relevant showing must be more
`than the prisoner's personal belief that he is the victim of retaliation), citing Woods v. Edwards, 51
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`F.3d 577, 580 (5th Cir. 1995).
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`Hurd also asserts that the allegedly retaliatory actions were not de minimis. The alleged
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`deprivation of 24 meals in a 32 day period is not de minimis; however, Hurd has not shown this was
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`the result of retaliation. As noted above, the grievance which he filed indicates that his ID card was
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`deactivated because Hurd reported that his account had been compromised, and he does not show
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`that any of the named defendants were responsible for deactivating it or had the authority to do so.
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`1None of the grievances attached by Hurd to his original complaint or his more definite
`statement say anything about missing any meals. In the grievance which refers to his ID, Hurd states
`that if his card is deactivated, he will not be able to make any commissary purchases for a few
`months but does not mention not being able to eat. While exhaustion of administrative remedies was
`not raised as a defense nor discussed by the Magistrate Judge and the Court makes no express
`findings on this issue, Hurd’s claims concerning denial of meals does not appear to have been
`exhausted.
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`9
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`He offers nothing beyond speculation to suggest that but for the grievances he filed, his ID card
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`would not have been deactivated. The loss of his radio and the temporary deprivation of other
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`property was de minimis. Ali v. Jones, civil action no. 4:07cv337, 2007 U.S. Dist. LEXIS 52901,
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`2007 WL 2141381 (S.D.Tex., July 19, 2007) (destruction by officer of personal property including
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`four books, ten magazines, vitamins, pencil sharpeners, ink pens, and drawing pencils was de
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`minimis for purposes of a retaliation claim; Scott v. Haney, civil action no. 12-0439, 2012 U.S. Dist.
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`LEXIS 178826, 2012 WL 6569308 (M.D.La., November 9, 2012), Report adopted at 2012 U.S.
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`Dist. LEXIS 177868, 2012 WL 6569295 (M.D.La., December 17, 2012) (destruction of some of the
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`plaintiff’s legal work was de minimis).
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`Although Hurd cites Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003), that case held that
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`27 days of cell and commissary restrictions was not de minimis. In reaching this conclusion, Hart
`cited Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) as stating that “action comparable
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`to transfer to administrative segregation would certainly be adverse.” While 27 days of cell
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`restriction may be comparable to a transfer to administrative segregation, the temporary deprivation
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`of property does not fall into the same category, as stated in Ali and Scott. Hurd’s objection on this
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`point is without merit.
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`Although Hurd claims that prisoner cells may be searched only once every 72 hours, no such
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`policy exists. The TDCJ Offender Orientation Handbook (April 2016), p. 25, provides that
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`“offenders and their living areas may be searched by staff at any time.” Even if such a policy did
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`exist, Hurd has not shown that a violation of this policy amounts to a constitutional deprivation. See
`Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).
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`Hurd states that if the Freedom of Information Act applies only to federal agencies, he wants
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`to change the basis of his claim to what he calls the “Open Act,” apparently referring to the Texas
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`Open Records Act, Tex. Gov. Code §552.001 et seq. However, this act is purely a creation of state
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`law, and any violations of this Act do not implicate the Constitution or laws of the United States.
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`The Northern District of Texas has explained that “since the Texas Open Records Act neither
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`10
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`implicates provisions of the United States Constitution nor federal statutes, this court is without
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`jurisdiction over any claim brought pursuant to Tex. Gov. Code §552.001-.353.” Huckeba v.
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`Greenville Police Department, civil action no. 3:05cv437, 2005 WL 1502063 (N.D.Tex., June 24,
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`2005), Report modified in part on other grounds and adopted at 2005 WL 1837028 (N.D.Tex., July
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`29, 2005); see also Johnson v. Dallas Independent School District, 38 F.3d 198, 199 (5th Cir. 1994)
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`(civil rights lawsuit under 42 U.S.C. §1983 requires the showing of a deprivation of a right secured
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`by the Constitution or laws of the United States). Hurd’s objection on this point is without merit.
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`In his motion for leave to file his third amended complaint, Hurd contends that unnamed
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`officers laughed at him and that Lt. Kelly told him he would get Hurd a new ID card but he did not.
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`He states that the officers would not get him medical attention, although he does not indicate that
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`he was unable to file sick call requests himself. These allegations appear to be providing
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`background information for Hurd’s claims against Campbell, Barnette, and Monroe rather than an
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`attempt to add new claims and defendants to the lawsuit; Hurd does not ask that Kelly or the
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`unknown officers be added as defendants nor does he state that he has exhausted his administrative
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`remedies with regard to these allegations.
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`Instead, Hurd states that he wishes to add deliberate indifference and discrimination claims
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`against Campbell, Barnette, and Monroe. The Supreme Court has explained that
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`[A] prison official cannot be held liable under the Eighth Amendment for denying
`an inmate humane conditions of confinement unless the official knows of and
`disregards an excessive risk to inmate health or safety; the official must both be
`aware of facts from which the inference could be drawn that a substantial risk of
`serious harm exists, and he must also draw the inference. ...
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`But an official's failure to alleviate a significant risk which he should have perceived,
`but did not, while no cause for commendation, cannot under our cases be condemned
`as the infliction of punishment.
`Farmer v. Brennan, 511 U.S. 825, 837-38, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Hurd has failed
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`to show that the Defendants knew of and disregarded an excessive risk to his health or safety, given
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`that he has not shown any of the named Defendants deactivated his ID card or had authority to do
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`so. When Hurd filed a grievance about his ID card, he stated that he would not be able to make any
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`11
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`commissary purchases without one, but said nothing about not being able to eat. In the interest of
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`justice, any new claims in the Plaintiff’s proposed third amended complaint should be dismissed
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`without prejudice, with the statute of limitations suspended for a period of 60 days following the
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`date of entry of final judgment.
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`Nor has Hurd pleaded a viable discrimination claim. He has not shown that he is a member
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`of a protected class and faced discrimination on that basis, nor any other facts demonstrating
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`discrimination. He has identified no one similarly situated to him who received different treatment
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`or pointed to facts showing that any such different treatment had no rational basis. See, e.g., Bell
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`v. Woods, 382 F.App’x 391, 2010 WL 2545421 (5th Cir., June 18, 2010), citing Pedraza v. Meyer,
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`919 F.2d 317, 318 n.1 (5th Cir. 1990); accord, Adkins v. Kaspar, 393 F.3d 559, 566 (5th Cir. 2004)
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`(rejecting discrimination claim based on “bald, unsupported, conclusional allegations”). Hurd’s
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`objection on this basis is without merit.
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`In his proposed supplemental complaint, Hurd contends that Monroe retrieved his hot pot
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`because Hurd had asked to purchase a new one and therefore was required to turn in his old one.
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`He acknowledges that Monroe gave him papers to document this but alleges that she apparently
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`failed to file these papers, because records show that he still has that same hot pot. This makes him
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`unable to purchase a new one. Hurd asserts that this states a claim for falsifying documents and
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`discrimination.
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`Hurd’s contention that Monroe “falsified” paperwork pertaining to his hot pot does not state
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`a claim of constitutional dimensions. See generally Spellmon v. Price, 100 F.3d 953, 1996 U.S.
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`App. LEXIS 29314, 1996 WL 625422 (5th Cir., October 10, 1996) (no liberty interest in not having
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`false statements or evidence presented at a disciplinary hearing); Crumbley v. Dawson, civil action
`no. 9:09cv14, 2010 U.S. Dist. LEXIS 52720, 2010 WL 2209189 (E.D.Tex., May 28, 2010), aff'd 485
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`F.App’x 1, 2012 U.S. App. LEXIS 5979, 2012 WL 975022 (5th Cir.2012) (citing Briscoe v. LaHue,
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`460 U.S. 325, 330–31, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) in holding that there was no cause of
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`action against an officer who changed his testimony so as to testify falsely in a prison disciplinary
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`Case 6:15-cv-00734-RC-JDL Document 41 Filed 03/06/17 Page 13 of 13 PageID #: 204
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`proceeding). Nor has Hurd shown any basis for a claim of discrimination in that he has pointed to
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`no one similarly situated to him who received different treatment nor to any facts showing that any
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`such different treatment had no rational basis. This claim lacks merit; however, in the interest of
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`justice, it should be dismissed without prejudice.
`VI. Conclusion
`The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
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`proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
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`(district judge shall “make a de novo determination of those portions of the report or specified
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`proposed findings or recommendations to which objection is made.”) Upon such de novo review,
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`the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s
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`objections are without merit. It is accordingly
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`ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
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`Judge (docket no. 36) is ADOPTED as the opinion of the District Court. It is further
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`ORDERED that the Defendants’ motion to dismiss (docket no. 31) is GRANTED and the
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`above-styled civil action is DISMISSED WITH PREJUDICE for failure to state a claim upon
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`which relief may be granted. It is further
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`ORDERED that the dismissal of any new claims raised in the Plaintiff’s third amended
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`complaint (docket no. 39) and supplemental complaint (docket no. 40) is without prejudice, with
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`the statute of limitations on these claims being suspended for a period of 60 days following the date
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`of entry of final judgment. Finally, it is
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`ORDERED that any and all motions which may be pending in this civil action are hereby
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`DENIED.
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