Garrett v. Montez et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RODNEY JOE GARRETT,
Plaintiff,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:26-CV-00159
EMILIO MONTEZ, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
TO DISMISS CASE
Plaintiff Rodney Joe Garrett, a Texas inmate appearing pro se and in forma
pauperis, has filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s
case is subject to screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. §
1997e(c); 28 U.S.C. §§ 1915(e)(2), 1915A.
For purposes of screening, the undersigned recommends: (1) all Plaintiff’s claims
against Defendants be DISMISSED with prejudice for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1); (2) Plaintiff not be granted leave to amend;
and (3) the dismissal of this case count as a “strike” for purposes of 28 U.S.C. § 1915(g).1
1 Plaintiff is WARNED that if he accumulates three strikes, he will not be allowed to proceed in forma pauperis in
any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger
of serious injury. See 28 U.S.C. § 1915(g).
United States District Court
Southern District of Texas
ENTERED
July 20, 2026
Nathan Ochsner, Clerk
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I. JURISDICTION
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case
has been referred to the undersigned Magistrate Judge for case management and making
recommendations on dispositive motions pursuant to 28 U.S.C. § 636.
II. BACKGROUND AND PLAINTIFF’S ALLEGATIONS
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Division (TDCJ-CID) and is currently assigned to the Stevenson Unit in Cuero,
Texas. Plaintiff’s allegations and claims arise in connection with his prior housing
assignment to the Garza West Unit in Beeville, Texas. Plaintiff was convicted in Bexar
County of three counts and: (1) on May 7, 2015, was sentenced to 34 years in prison for
aggravated assault against a public servant; (2) on June 12, 2015, was sentenced to six
years in prison for possession of a firearm by a felon; and (3) on June 12, 2015, was
sentenced to six years in prison for evading arrest.
This Court received Plaintiff’s complaint on June 5, 2026. (D.E. 1). On July 7, 2026,
Plaintiff appeared by video at a Spears2 hearing where he was given an opportunity to
explain his claims. (D.E. 13). On July 16, 2026, the Court received Plaintiff’s supplement
to his complaint. (D.E. 12). The summary of Plaintiff’s allegations below is taken from
2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). The purpose of a Spears hearing is to determine whether a prisoner
alleging a constitutional deprivation should be permitted to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(d).
Spears, 766 F.2d at 181–82. The evidentiary hearing is “in the nature of a motion for more definite statement.” Id.
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Plaintiff’s complaint, his supplement, and his Spears hearing testimony, all of which have
been considered in making this recommendation.
In his complaint, Plaintiff names as defendants: (1) correctional officer Emilio
Montez (“Montez”); and (2) correctional officer Marcos Perez (“Perez”). (D.E. 1, pp. 1,
3). Plaintiff sues Defendants in their individual capacities. Id. at 8. Plaintiff generally
claims Defendants committed malicious prosecution and acted in retaliation by bringing
false disciplinary cases against Plaintiff for his filing grievances about his inmate work
schedule. Id. at 3-4, 7-8. Plaintiff seeks nominal, compensatory and punitive damages.
Id. at 4.
Plaintiff was assigned to the Garza West Unit in Beeville, Texas from approximately
March 18, 2025 to June 10, 2026. While at the Garza West Unit, Plaintiff was assigned to
work as an inmate field minister. Plaintiff explained this position was similar to a pastor
or minister’s assistant, and he counseled or ministered to inmates who were having
personal or mental health problems. A frequent assignment was to assist in observing,
talking to and spending time with inmates who were on suicide watch.
Plaintiff worked with two other inmate field ministers at the Garza West Unit,
identified as “Sterling” and “Jimmy.” Their assignments varied, but the inmate field
ministers often worked on an on-call basis and responded to inmates in need of assistance
at the direction of the correctional staff. Plaintiff and his two co-workers divided the 24-
hour day into three shifts. However, a problem developed with this shift schedule. Plaintiff
testified his coworkers were not accepting assignments during their shifts, and they would
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frequently refuse to report for work. According to Plaintiff, his coworkers’ refusal to work
their assigned shifts resulted in Plaintiff unfairly having to work extra shifts.
On September 2, 2025, Plaintiff filed a grievance in which he complained about
having to work extra shifts. Plaintiff alleges he obtained some of the relief he requested in
the grievance when Garza West Unit Warden Nunez limited the shifts of inmate field
ministers to four hours.3 Despite prevailing on the grievance and having Warden Nunez
limit the duration of his shifts, Plaintiff continued to have problems with being required to
work extra shifts. More specifically, Plaintiff alleges on November 27, 2025, he was called
to work extra shifts, once in the morning and again later in the evening. On both instances,
Plaintiff explained to Officer Perez that he was not required to work the extra shifts in
accordance with his September 2, 2025 grievance decision. During one of these occasions,
Plaintiff asked Officer Perez for his name so Plaintiff could file an additional grievance.
Plaintiff alleges Officer Perez retaliated against Plaintiff by bringing false disciplinary
cases against him.
The first disciplinary case alleged Plaintiff cursed Officer Perez and refused to
return to his housing assignment as ordered on the morning of November 27, 2025. The
second disciplinary case alleged Plaintiff refused his work assignment on the evening of
November 27, 2025. The next day, on November 28, 2025, Plaintiff encountered Officer
Montez who confronted Plaintiff about “cussing at his officers” and not reporting to work.
3Plaintiff explained there was some confusion among the correctional staff as to the exact meaning of Warden Nunez’s
decision as to Plaintiff’s grievance and it somewhat complicated because the inmates had arranged their own work
schedule which had not been sanctioned by Unit personnel. However, it was understood inmate field ministers should
not work double shifts or more than 4 hours per shift. (D.E. 12, p . 4; D.E. 13, pp. 17-19).
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Plaintiff alleges Officer Nunez told Plaintiff he would work as directed, the relief Plaintiff
received on his grievance meant nothing, and Plaintiff would work as directed. Plaintiff
further alleges Officer Montez threatened to bring additional disciplinary cases if Plaintiff
did not report to work as directed. Plaintiff alleges during this interaction, Officer Montez
was very confrontational, and Plaintiff feared he would be assaulted, although no assault
occurred. Plaintiff testified he was not served with a disciplinary case from Officer Montez
arising out of the November 28, 2025 interaction, but he has reason to believe Officer
Montez prepared a disciplinary case against Plaintiff, but another officer “pulled” the case
or refused to process the case.
Plaintiff was found guilty at a disciplinary hearing of the two disciplinary cases filed
by Officer Perez. Plaintiff was sanctioned with 30 days of commissary and recreation
restrictions in each case, served consecutively. Plaintiff appealed and prevailed in having
the cases set aside or reversed. Plaintiff never received a disciplinary hearing or conviction
from the events arising on November 28, 2025.
Plaintiff testified at the Spears hearing that he and his civilian chaplain supervisor
had issues which resulted in Plaintiff losing, or being removed from, his position as an
inmate field minister. Plaintiff was later transferred from the Garza West Unit in June
2026.
Plaintiff has parsed his allegations into six claims. Id. at 7-8. In Claims 1 and 2,
Plaintiff asserts Officer Perez maliciously prosecuted him and engaged in retaliation arising
out of the incidents on the morning of November 27, 2025. In Claims 3 and 4, Plaintiff
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asserts that Officer Perez maliciously prosecuted him and engaged in retaliation arising out
of the events during the evening hours of November 27, 2025. In Claims 5 and 6, Plaintiff
asserts Officer Montez engaged in retaliation based on the events of November 28, 2025.
III. LEGAL STANDARD
When a prisoner seeks to proceed in forma pauperis the Court shall evaluate the
complaint and dismiss it without service of process if the Court finds the complaint
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
See 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis
complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief from an immune
defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an
indisputably meritless legal theory, “such as if the complaint alleges the violation of a legal
interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
A claim has no arguable basis in fact if “after providing the plaintiff the opportunity to
present additional facts when necessary, the facts alleged are clearly baseless.” Talib v.
Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
“In analyzing the complaint, [the Court] will accept all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999). “The issue is not whether the plaintiff will ultimately prevail, but
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whether he is entitled to offer evidence to support his claim. Thus, the Court should not
dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts
or any possible theory that he could prove consistent with the allegations in the complaint.”
Id. (citations omitted). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plaintiff must allege sufficient facts in support of its legal conclusions that give
rise to a reasonable inference that Defendant is liable. Id.; Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007). The factual allegations must raise Plaintiff’s claim for relief
above the level of mere speculation. Twombly, 550 U.S. at 555. As long as the complaint,
taken as a whole, gives rise to a plausible inference of actionable conduct, Plaintiff’s claim
should not be dismissed. Id.
Pleadings filed by pro se litigants like Plaintiff are construed using a less stringent
standard of review. Documents filed by pro se litigants are to be liberally construed, and
pro se complaints, however inartfully drafted they might be, are held to less stringent
standards than formal pleadings drafted by lawyers. See Oliver v. Scott, 276 F.3d 736, 740
(5th Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Estelle v.
Gamble, 429 U.S. 97, 106 (1976). A plaintiff’s well-pleaded factual allegations in the
complaint are to be taken as true for purposes of screening, but such deference does not
extend to conclusory allegations, unwarranted factual inferences, or legal conclusions.
DeMarco v. Davis, 914 F.3d 383, 386-87 (5th Cir. 2019).
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Section 1983 provides a vehicle for redressing the violation of federal law by those
acting under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To prevail
on a § 1983 claim, the plaintiff must prove that a person acting under the color of state law
deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C.
§ 1983; West v. Atkins, 487 U.S. 42, 48 (1988).
IV. DISCUSSION
A. Retaliation
“An action motivated by retaliation for the exercise of a constitutionally protected
right is actionable, even if the act, when taken for a different reason, might have been
legitimate.” Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995). The purpose of allowing
retaliation claims under § 1983 is to protect against retaliatory actions that may chill an
individual’s exercise of constitutional rights. Perry v. Sinderman, 408 U.S. 593, 597
(1972). However, “[r]etaliation against a prisoner is actionable only if it is capable of
deterring a person of ordinary firmness from further exercising his constitutional rights.”
Morris v. Powell, 449 F.3d 682, 685 (5th Cir. 2006).
The Fifth Circuit has recognized the “prospect of endless claims of retaliation on
the part of inmates would disrupt prison officials in the discharge of their most basic
duties.” Woods, 60 F.3d at 1166. Claims of retaliation “must therefore be viewed with
skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in
state penal institutions.” Id. Thus, prisoners’ claims of retaliation are “carefully
scrutinized by the courts.” Toson v. Freeman, No. 1:22-cv-00085, 2023 WL 4998063, at
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*5 (N.D. Tex. July 24, 2023) (quoting Adeleke v. Fleckenstein, 385 F. App’x 386, 387 (5th
Cir. 2010)).
To state a claim for retaliation, a prisoner must allege “(1) a specific constitutional
right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of
that right, (3) a retaliatory adverse act, and (4) causation,” a showing that but for the
retaliatory motive, the complained-of action would not have occurred. McDonald v.
Steward, 132 F.3d 225, 231 (5th Cir. 1998). With regard to the first element of a retaliation
claim, an actual exercise of a constitutional right is required. The filing of a grievance or
a lawsuit constitutes constitutionally protected activity. See Gonzales v. Gross, 779 F.
App’x 227, 230 (5th Cir. 2019) (per curiam); see also Schorsch v. Miller, No. 2:19-CV-
323, 2020 WL 5803255 (S.D. Tex. Aug. 11, 2020), adopted, 2020 WL 5802909 (S.D. Tex.
Sep. 29, 2020) (recognizing that “prison officials may not retaliate against a prisoner for
exercising the right to file lawsuits and administrative grievances”).
The second element of a retaliation claim requires a plaintiff to plausibly allege the
defendant’s intent to retaliate against the prisoner for his or her exercise of a constitutional
right. A plaintiff’s own statement that he believes he was the subject of retaliation is
insufficient to plausibly allege an actionable claim. See McDonald, 132 F.3d at 231.
A retaliation plaintiff must also plausibly allege a retaliatory adverse act by that
defendant. To do so, a plaintiff must assert something “more than de minimis retaliation.”
Morris, 449 F.3d 682, 684-85. “Retaliation against a prisoner is actionable only if it is
capable of deterring a person of ordinary firmness from further exercising his constitutional
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rights.” Id. at 686. To satisfy the de minimis test, “a prisoner must allege adverse facts that
rise ‘to the level of that which would deter the exercise of a constitutional right.’” Mitchell
v. Denton Cty., No. 4:18-CV-399-ALM-KPJ, 2022 WL 989392, at *7 (E.D. Tex. Feb. 28,
2022), adopted, 2022 WL 9897819 (E.D. Tex. Mar. 31, 2022) (quoting Morris, 449 F.3d
at 686). In Mitchell, the court found that because the plaintiff’s placement in an isolation
cell and his non-punitive segregation after he filed suit against defendants did not deter the
plaintiff “from further exercising his constitutional rights[,]” he did not satisfy the de
minimis test. Id.
Finally, a retaliation plaintiff must plausibly allege causation. As applicable here,
Plaintiff must plausibly allege a factual basis connecting his protected conduct and the
alleged retaliatory conduct. For example, the “mere existence of past grievances and a
subsequent negative event alone are not sufficient to state a claim for retaliation.” Landry
v. Townsend, No. 6:23cv057, 2023 WL 3369151, at *5 (E.D. Tex. Mar. 21, 2023), adopted,
2023 WL 3352138 (E.D. Tex. May 10, 2023). Indeed, temporal proximity alone is
insufficient to state “but for” causation in a retaliation claim. Reese, 322 F. App’x at 383;
see also Varner v. Cerliano, No. 6:13cv636, 2014 WL 2159739, at *7 (E.D. Tex. Apr. 17,
2014), adopted, 2014 WL 2159767 (E.D. Tex. May 22, 2014) (“The mere fact that Varner
was placed in segregation one day after helping other inmates file grievances does not itself
show a chronology from which retaliation may plausibly be inferred; temporal proximity
alone is insufficient to show ‘but for’ causation.”)
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The theory for Plaintiff’s retaliation claims is that the defendants resented the fact
Plaintiff had filed grievances and had prevailed at least once. Plaintiff’s supplement
clarifies this, “Officers do not like inmates grieving. They do not like inmates getting relief
on their grievances. They do not like their names being used for grieving even if the
grievance is not against them.” (D.E. 12, p. 3). While not stated by Plaintiff in this exact
way, the undersigned understands Plaintiff’s pleading to allege that in a custodial
environment, when an inmate prevails on a grievance the result is a slight tilt in the balance
of power away from the correctional officers and toward the inmate. The shift in the
balance of power or authority is viewed with displeasure by correctional officers.
The defendants in this case, according to Plaintiff, resented the fact Plaintiff
prevailed on his grievance, and thus they were going to make Plaintiff pay for the exercise
of his lawful and constitutionally protected grievance activity. According to Plaintiff,
Defendants retaliated by bringing false disciplinary cases against him. Plaintiff alleges
Officer Perez lied about Plaintiff cursing and failing to obey orders. Plaintiff alleges the
nature of the charges in the disciplinary case brought by Montez are unclear because he
never received that case. However, Plaintiff alleges the charges would have been
illegitimate because Plaintiff had done nothing wrong. (D.E. 12, p. 1). Plaintiff explains
the practice of writing false disciplinary cases, in inmate parlance, is called, “casing up an
inmate”. (D.E. 12, p. 3). Plaintiff alleges the bringing of false disciplinary cases against
him and the threats to do so were in retaliation for his filing and prevailing on the grievance
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to limit his work hours. He alleges the false disciplinary cases and the grievances were
brought with the purpose of chilling his First Amendment right to present grievances.
Regarding the first element of a retaliation claim, Plaintiff has a recognized First
Amendment right to file and pursue inmate grievances. Morris v. Powell, 449 F.3d 682,
684 (5th Cir. 2006) (“A prison official may not retaliate against or harass an inmate for
complaining through proper channels about a guard’s misconduct.”). Additionally,
regarding the third element, a retaliatory adverse act, the undersigned accepts that the
bringing of a false inmate may be sufficient to satisfy this element. Courts recognize that
the filing of a false disciplinary charge constitutes an adverse act. Cf. Giese v. Jackson, No.
3:19-CV-00081, 2020 WL 3493078, at *5-6 (S.D. Tex. May 27, 2020), adopted, 2020 WL
3490219 (S.D. Tex. Jun. 6, 2020) (indicating that the initiation of a disciplinary case may
be sufficient to constitute an adverse act of retaliation) (citing Walker v. Savers, 658 F.
App’x 720, 728 (5th Cir. 2016)); Sheedy v. Thompson, No. H-22-2853, 2025 WL 777081,
at *10 (S.D. Tex. Mar. 11, 2025) (recognizing implicitly that the writing of false
disciplinary cases can constitute an “adverse act” but dismissing the claim due to a lack of
causation); However, Plaintiff’s retaliation claims fail and are not actionable because his
pleading and testimony are lacking in regard to the remaining elements, as discussed below.
Regarding the second element, whether the defendants had the intent to retaliate
against Plaintiff because of Plaintiff’s exercise of a protected right, Plaintiff’s pleading is
deficient. Just because the disciplinary claims arose after Plaintiff utilized the grievance
system does not mean the disciplinary cases must have been retaliatory. See Castaneda v.
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Collier, No. 2:22-cv-021, 2024 WL 1121000, at *6 (N.D. Tex. Feb. 14, 2024), adopted
Castaneda v. Evans, No. 2:22-CV-21, 2024 WL 1123032 (N.D. Tex. Mar. 14, 2024)
(Dismissing for failure to state a claim inmate’s 1983 retaliation claim where disciplinary
cases followed inmate grievance, even where disciplinary cases were subsequently
dismissed). The facts of this case, as alleged by Plaintiff, indicate the Garza West Unit had
staffing shortages during the relevant time. Plaintiff and two other inmates had been trained
to provide assistance and observation of other inmates experiencing mental health
difficulties. These difficulties included frequently having inmates on suicide watch.
Plaintiff alleges his two co-workers refused to cover their shifts and this resulted in a
shortage of qualified personnel to observe, counsel and assist suicidal inmates. The facts
indicate the officers’ intent was to compel Plaintiff to report to work as ordered, not an
intent to retaliate. The facts alleged by Plaintiff do not support a retaliatory intent by the
defendants.
The fourth element is causation or whether there was a connection between Plaintiff
filing a grievance and the officers writing Plaintiff a disciplinary case. Plaintiff’s testimony
indicates a staffing shortage existed at the Garza West Unit and the work schedule for
inmate field ministers such as Plaintiff was not running smoothly. The facts alleged by
Plaintiff further indicate there was a need for inmate counselors to assist with other inmates
who were at risk for committing suicide. Each of the inmate field ministers, including
Plaintiff, complained about or resisted having to work for various reasons. Some of those
reasons may have been valid, such as Plaintiff not wanting to work an extra shift. However,
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there is no evidence or any plausible suggestion the defendants in this case retaliated
against Plaintiff for filing grievances relating to limiting his work hours. Plaintiff’s
allegations in this regard are unsupported conclusions. There is little doubt that had
Plaintiff followed the directives of the defendants and reported to work without complaint,
there would have been no disciplinary cases brought against him or threats of disciplinary
cases. Plaintiff’s testimony and complaint establish correctional officers did not retaliate
against Plaintiff but for filing a grievance, rather, they were attempting to deal with a
staffing shortage and prevent other inmates from committing suicide. To find otherwise is
not supported by Plaintiff’s pleadings. Plaintiff has failed to allege sufficient facts to raise
a plausible claim that but for the retaliatory motive of the defendants, the complained-of
disciplinary case would not have been brought or threatened. McDonald v. Steward, 132
F.3d 225, 231 (5th Cir. 1998). Thus, Plaintif’s retaliation claims also fail for lack of
causation.
Additionally, it is not lost on the undersigned that Plaintiff prevailed in his grievance
and Warden Nunez had limited Plaintiff’s work hours. Plaintiff was justifiably unhappy
he was being compelled to work an extra shift. However, the facts at best indicate
Defendants disregarded the Warden’s directive, not that they were acting with a retaliatory
purpose. Plaintiff’s allegations indicate Defendants required Plaintiff to report for
additional hours because of a staffing shortage, not because Plaintiff filed a grievance.
Courts should not micromanage the routine correctional decisions encountered by
correctional officers in managing an inmate population. The situational difficulties in this
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instance included having suicidal inmates in need of observation by Plaintiff and his co-
workers who complained, refused, or resisted in performing their assigned jobs.
Defendants were dealing with serious situations and inmates such as Plaintiff who were
noncompliant or at least resisting their directives. In these situations, it is not unexpected
that correctional officers would write, or threatened to write, disciplinary cases against
noncompliant inmates or inmates who were being difficult. Fair arguments can be made
that Defendants could have handled Plaintiff’s situation better; however, whether they
could have resolved this problem differently is not the issue presented in this case. The
present case is of the type the Fifth Circuit has cautioned about. That is, this is the type of
case that if it were to survive judicial screening would present the “prospect of endless
claims of retaliation on the part of inmates [and] would disrupt prison officials in the
discharge of their most basic duties.” Woods, 60 F.3d at 1166. Plaintiff’s retaliation claim
“must therefore be viewed with skepticism, lest federal courts embroil themselves in every
disciplinary act that occurs in state penal institutions.” Id. Therefore, the undersigned
recommends Plaintiff’s retaliation claims be dismissed.
B. Malicious Prosecution
Plaintiff seeks to raise claims against Perez for malicious prosecution in connection
with the disciplinary cases discussed above. “[I]n 2003, the Fifth Circuit reexamined the
body of law regarding malicious prosecution claims in federal civil rights actions and held
that there is no ‘freestanding constitutional right to be free from malicious prosecution.’”
Jackson v. Mizell, No. 09-3003, 2009 WL 1792774, at *5 (E.D. La. June 23, 2009), adopted
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No. 09-3003, 2009 WL 2176113 (E.D. La. July 20, 2009), aff’d sub nom. Jackson v.
Mizzel, 361 Fed. App’x 622 (5th Cir. 2010) (citing Castellano v. Fragozo, 352 F.3d 939,
945 (5th Cir. 2003)).
However, in 2022, the Supreme Court held that “litigants may bring a Fourth
Amendment malicious prosecution claim under § 1983.” Armstrong, 60 F.4th at 278
(citing Thompson v. Clark, 596 U.S. 36, 39 (2022)). Based on the Supreme Court’s “clear
recognition of the constitutional tort of malicious prosecution,” the Fifth Circuit “implicitly
overruled its precedent to the contrary.” Tarno v. Noseff, No. 4:25-CV-109, 2026 WL
788827, at *14 (E.D. Tex. Mar. 20, 2026) (citing Armstrong, 60 F.4th at 279 and Espinal
v. City of Houston, 96 F.4th 741, 748 (5th Cir. 2024)). Following Armstrong, the Fifth
Circuit “reinstated [its] prior six-element malicious prosecution claim” stated above.
Wallace v. Taylor, No. 22-20342, 2023 WL 2964418, at *6 (5th Cir. Apr. 14, 2023)
(unpublished).
Thus, “[t]o prevail on a § 1983 malicious-prosecution claim, a plaintiff must prove
six elements: (1) the commencement or continuance of an original criminal proceeding; (2)
its legal causation by the present defendant against plaintiff who was defendant in the
original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the
absence of probable cause for such proceeding; (5) malice; and (6) damages.” Davis v.
Warren, 173 F.4th 566, 572 (5th Cir. 2026) (citing Armstrong v. Ashley, 60 F.4th 262, 279
(5th Cir. 2023)). A prisoner’s claim he was falsely accused of a disciplinary infraction “is
indistinguishable from a malicious prosecution claim.” Ordaz v. Martin, No. 93–4170,
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1993 WL 373830, at *6 (5th Cir. Sept. 15, 1993). Courts, therefore, have recognized, or
at least addressed, Texas inmates’ malicious prosecution claims in the context of inmate
disciplinary proceedings. See Hutchins v. Gibson, No. 9:22CV109, 2025 WL 2496384, at
*3 (E.D. Tex. July 11, 2025), adopted No. 9:22-CV-109, 2025 WL 2496158 (E.D. Tex.
Aug. 28, 2025).
Here, assuming Plaintiff’s malicious prosecution claims are viable in this context,
such claims fail for the same reasons as his retaliation claims. Specifically, the element of
malice by Defendants is conclusory and is not supported by the facts. Defendants’ actions
of directing an inmate to report to work and writing the inmate a disciplinary case when he
complained or resisted the officers instructions were not such to raise a constitutional
claim.
To the extent Plaintiff is attempting to raise a Fourteenth Amendment Due Process
claim in connection with his disciplinary cases, Plaintiff has also failed to state a claim.
“Procedural protections in the context of prison discipline are not the same as due process
in the criminal law context because ‘[p]rison discipline proceedings are not a part of a
criminal prosecution, and the full panoply of rights due a criminal defendant does not
apply.’” Kaizer v. Spivey, No. CV H-17-2358, 2017 WL 5953418, at *1 (S.D. Tex. Nov.
28, 2017) (citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). Generally, only sanctions
that result in a loss of good conduct time credits for inmates who are eligible for release on
mandatory supervision will impose upon a liberty interest. Teague v. Quarterman, 482
F.3d 769, 776 (5th Cir. 2007); Malchi v. Thaler, 211 F.3d 953, 985 (5th Cir. 2000).
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Plaintiff’s assessed punishment of 30 days restriction of commissary, recreation, or
visitation is not the type of sanction to raise a constitutionally protected liberty interest and
is thus frivolous. Kaizer, 2017 WL 5953418, at *2 (citing Madison v. Parker, 104 F.3d
765, 768 (5th Cir. 1997)). Therefore, the undersigned respectfully recommends Plaintiff’s
malicious prosecution claims be dismissed as frivolous and for failing to state a claim.
C. Other Claims Not Specifically Addressed in this Memorandum
To ensure justice and access to the courts, courts interpret pleadings of pro se
litigants liberally. See United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996) (citing
United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983)). Pro se actions will not be
dismissed based on technical pleading defects and should be construed to ensure such
claims are given fair and meaningful consideration despite the unrepresented litigant’s
unfamiliarity with the law. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); See also
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Pro se parties are normally accorded more
leniency in the construction of their pleadings).
The undersigned has attempted to articulate and analyze Plaintiff’s claims in an
impartial manner consistent with providing appropriate leniency to pro se litigants while at
the same time requiring compliance with applicable pleading and screening standards. To
the extent Plaintiff is attempting to raise a claim not specifically addressed by the
undersigned in this Memorandum and Recommendation, Plaintiff has failed to state such
claim with sufficient factual detail or clarity to allow the claim to be identified, understood,
or analyzed by the Court.
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As stated previously, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Again,
Plaintiff must allege sufficient facts in support of its legal conclusions that give rise to a
reasonable inference that Defendant is liable. Id.; Twombly, 550 U.S. at 556. Further, the
factual allegations must raise Plaintiff’s claim for relief above the level of mere
speculation. Twombly, 550 U.S. at 555.
Plaintiff is further advised that any claim not addressed in this Memorandum and
Recommendation is not currently before this Court because Plaintiff has failed to allege
sufficient facts or state such claims clearly.
V. CONCLUSION
For the reasons stated above, the undersigned recommends:
• All Plaintiff’s claims against Defendants be DISMISSED with prejudice
for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1);
• Plaintiff not be granted leave to amend because he testified at a Spears
hearing where he was given full opportunity to explain his claims, Plaintiff
thereafter filed a supplement to his complaint which has been considered,
and because further amendment would be futile; and.
• The dismissal of this case count as a “strike” for purposes of 28 U.S.C. §
1915(g).
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Respectfully submitted on July 20, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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