Opinion
CIVIL ACTION NO. 1:01-CV-020-C
June 18, 2003
ORDER
Plaintiff, Larry Neal Bates, acting pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 and was allowed to proceed in forma pauperis. He named C. Raines, Assistant Warden of the Texas Department of Criminal Justice, Institutional Division (`TDCJ-ID") Middleton Unit; Captain Jones of the Middleton Unit; Lieutenant J. Wise of the Middleton Unit; and John Doe, a member of the Unit Classification Committee at the Middleton Unit, as Defendants and stated that he is suing each defendant in his individual capacity only. Plaintiff requests relief in the form of compensatory and punitive damages and an injunction to prevent TDCJ-ID from assigning him to work duties that are beyond his physical capabilities or that will cause him pain. The complaint was referred to the United States Magistrate Judge for judicial screening pursuant to 28 U.S.C. § 1915 and 1915 A, The Magistrate Judge conducted a Spears evidentiary hearing on July 10, 2001, to determine whether service of process should issue. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Pursuant to the Order Setting Evidentiary Hearing, TDCJ-ID provided copies of Plaintiffs prison grievance records, classification records, medical records, and disciplinary records. See Martinez v. Aron, 570 F.3d 317 (10th Cir. 1978) (approving the use of relevant prison records to evaluate § 1983 complaints by prison inmates). The Plaintiff appeared in person and testified under oath. See Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996) (holding that testimony from a Spears hearing becomes part of the complaint). Although Plaintiff consented to have the Magistrate Judge hear his complaint, the Magistrate Judge allowed Plaintiff to withdraw his consent, and by Order dated August 9, 2001, the complaint was returned to the docket of the United States District Judge.
BACKGROUND
Plaintiff filed his original complaint and a brief in support on February 2, 2001, but he filed an Amended Complaint on March 28, 2001. The facts stated by Plaintiff in his Amended Complaint and his testimony at the Spears Hearing are assumed to be true for purposes of this order.
Plaintiff alleges that on March 10, 2000, while incarcerated in the TDC J-ID Middleton Unit, he was sent to breakfast at 4:00 a.m. and allowed only four minutes to eat. After eating, but before leaving the cafeteria, Plaintiff concealed a package of dry cereal and approximately 1 cup of raisins in his clothing. At the door to the cafeteria, Plaintiff was stopped by Officer Elliott and ordered to dispose of the raisins. Plaintiff put the raisins in the trash but made an abusive comment regarding the short amount of time allowed for breakfast. Officer Elliott then searched Plaintiff, found the package of cereal, and ordered Plaintiff to strip so that he could be searched again. Although Plaintiff complied with this order, Officer Elliott became verbally abusive and the two exchanged remarks.
Sergeant Black and Lieutenants Fisher and Franklin witnessed the verbal exchange between Officer Elliott and Plaintiff, Sergeant Black stepped in, became verbally abusive, and threatened Plaintiff with bodily injury. Sergeant Black then ordered two other officers to search Plaintiffs cell. Following the search of his cell, Plaintiff was charged with possession of contraband and destruction of state property in disciplinary case no. 20000208923.
The disciplinary hearing in case no. 20000208923 was held on March 13, 2000. The disciplinary hearing officer was Lt. I Wise. Plaintiff was provided notice of the charges in advance of the hearing; he testified at the hearing; and he asked to submit a written response, but he did not present any witnesses or ask to present witnesses. The disciplinary hearing officer subsequently found Plaintiff guilty of the charges and assessed punishment at a thirty-day restriction of commissary and recreation privileges and twenty hours of extra work duty. Plaintiff did not appeal the finding through the TDC J-ID administrative grievance procedures and disciplinary proceeding no, 20000208923 has not been overturned or expunged from his record.
Plaintiff informed Lt. Wise at the end of the disciplinary proceeding that he could not complete the twenty hours of extra duty on the janitor squad because of his medical restrictions. He then met with Captain Jones on March 14, 2000, and explained his problems with the job assignment to janitor duty. Captain Jones gave Plaintiff a list of individuals and told Plaintiff that if Plaintiff could find a job with any of them, he would change Plaintiffs work assignment when he returned from vacation. Captain Jones then left for a two-week vacation.
Although Plaintiff worked as a janitor on March 28 and 29, he wrote another letter to Captain Jones on March 28, 2000, and Captain Jones changed his work assignment Plaintiff argued at the Spears hearing that prior to the disciplinary hearing on March 13, 2000, he was not assigned to work as a janitor and was classified as "medically unassigned." He was given extra duty as a janitor by Lt. Wise even though he was not assigned to work as a janitor and his medical restrictions prohibited such assignment. Plaintiff contends that Lt, Wise assigned the extra work hours in retaliation for Plaintiff filing a grievance against Sgt Black. Although assigned twenty hours of extra duty, Plaintiff only performed twelve hours of the extra duty work and was given credit for the other eight hours by several officers who recognized that he could not perform the work.
On March 10, 2003 Plaintiff filed a step-one grievance regarding Sgt. Black's verbal abuse and threats on that day. The grievance was rejected and returned on March 11, 2000, because of procedural errors. Plaintiff filed a second step one grievance on March 11, 2000, but it was also rejected and returned because of procedural errors. On March 14, 2000, Plaintiff filed a third step one grievance complaining about Sgt, Black's verbal abuse and threats.
This grievance was not attached to Plaintiffs complaint nor was it located in the grievance records provided by TDCJ-ID.
On April 10, 2000, Plaintiff filed a step one grievance (# 2000097248) complaining about the threats and abuse by Sgt. Black; the search of his cell on March 10, 2000; the two grievances that were returned for procedural flaws; the disciplinary proceedings on March 13, 2000; his job assignment; the failure of the Unit Classification Committee to acknowledge that janitor duty required work beyond his medical restrictions; and the retaliation by rank. He requested that TDCJ-ID change his classification, stop the retaliation, and transfer him to another unit The grievance was denied on April 20, 2000, but his complaint was referred to Internal Affairs for an investigation of the complaint about retaliation. Plaintiff subsequently filed a step two grievance on April 24, 2000, to appeal from the denial of his step one; the appeal, however, was denied on May 12, 2000.
Plaintiff argues that the extra duty work aggravated his back and shoulder problems. When asked what injuries he suffered as a result of die extra duty, he stated that he did not know because he had not been examined by a physician or a specialist since his transfer to the TDCJ-ID McConnell Unit on June 5, 2000. At the Spears hearing, he advised the Magistrate Judge that he wanted compensatory and punitive damages and injunctive relief.
Plaintiff was not able to identify Defendant John Doe but stated that he was the member of the Unit Classification Committee at the Middleton Unit who returned Plaintiffs 1-60 complaint about the extra hours of work and assignment to janitor duty and advised him to contact medical to have his medical restrictions changed.
Plaintiff alleges that Defendants Wise, Jones, John Doe, Elliott, and Black conspired to retaliate against him for filing grievances against Defendant Black; Defendant Wise compelled him to perform work beyond his medical restrictions; and Defendant Wise denied him due process at the disciplinary hearing. Although he appears to raise claims about inadequate medical treatment in his Amended Complaint, Plaintiff stated at the Spears Hearing on July 10, 2001, that he was not complaining about his medical treatment in this civil action. He also requested that C, Rallies be dismissed as a defendant because he had not filed any grievances against Raines and he believed that his complaints were not actionable under the doctrine of respondeat superior in a § 1983 civil rights action.
STANDARD OF REVIEW
When a prisoner seeks to proceed in forma pauperis,"[notwithstanding] any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines" that the complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief 28 U.S.C.A. § 1915(e)(2)(B) (West 1994 and Supp. 2000). See 28 U.S.C.A. § 1915A (West 1994 and Supp. 2000) (staling that when a prisoner seeks redress from a governmental entity or one of its employees. the court shall review the complaint as soon as practicable and dismiss it if the court finds the complaint frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief); 42 U.S.CA. § 1997c(c) (West 1994 and Supp. 2000) (providing that a district court shall on its own motion or the motion of any party dismiss a complaint by a prisoner regarding prison conditions if the court is satisfied the complaint is frivolous, 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. Nietzke 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) (quotation omitted), 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).
District courts should construe in forma pauperis complaints liberally, particularly in the context of dismissals under § 1915(e)(2)(B), but are given broad discretion in determining when such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A district court is bound by the allegations in a plaintiff's complaint, however, and is "not free to speculate that the plaintiff `might' be able to state a claim if given yet another opportunity to add more facts to the complaint." Id. A complaint may not be dismissed under § 1915(e)(2)(B) "simply because the court finds the plaintiffs allegations unlikely." Jolly v. Klein, 923 F. Supp. 931, 942-43 (S.D. Tex. 1996). A plaintiff must support his claim(s) with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). See Wesson v. Ogleby, 910 F.2d 278, 281 (5th Cir. 1990)("An IFP complaint that recites bare legal conclusions, with no suggestion of supporting facts, or that postulates facts of an entirely fanciful nature, is a prime candidate for dismissal under [§ 1915(e)(2)(B)].
DISCUSSION
The Defendants have not been served, but after reviewing the pleadings, the video recording of the Spears hearing, and the TDCJ-ID prison records, the Court finds that Plaintiffs civil rights complaint should be dismissed as frivolous and for failure to state a claim.
Plaintiff filed his original complaint on February 12, 2001, and on March 28, 2001, he filed an Amended Complaint with permission from the United States Magistrate Judge. The Amended Complaint is therefore the complaint before the Court.
1. Conspiracy
Plaintiff alleges that Defendants Jones, Wise, Black, Elliott, and John Doe conspired to retaliate against him for filing a grievance against Sgt. Black.
To establish a conspiracy claim cognizable under § 1983, a prisoner must demonstrate (1) an agreement between persons acting under color of law to commit an illegal act, and (2) an actual deprivation of the prisoner's constitutional rights in furtherance of the conspiracy. Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). Conclusory allegations of conspiracy will not support a claim under § 1983. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). Plaintiff has failed to support his allegations of conspiracy with any facts demonstrating an agreement between the defendants to retaliate againsthim for filing grievances or to violate any of his constitutional rights. See Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1992) (holding that a civil rights claim of conspiracy must include allegations of specific operative facts).
Accordingly, the Court finds that his claims of a conspiracy are conclusory and not cognizable under § 1983.
2. Work Classification
Plaintiff alleges that when he was transferred to the Middleton Unit on November 22, 1999, he was classified as medically unassigned and he never had to report to work because of his back and shoulder problems. This assignment was changed on March 13, 2000, at the disciplinary hearing when Lt Wise ordered him to complete 20 hours of extra janitor duty. Plaintiff argues that Lt Wise assigned him the extra work duty despite being advised of Plaintiffs medical restrictions and in retaliation for his filing a grievance against Sgt. Black. Capt Jones further compounded his health problems when he changed his work assignment on March 28, 2000, to 3rd shift dorm janitor and refused to change it until he filed numerous complaints and was unable to perform the work. Finally, Plaintiff contends that John Doe of the Unit Classification Committee failed to act on his complaints requesting that he be removed from janitor duty.
Plaintiff contends that he aggravated his back injury on March 29, 2000, when attempting to perform his janitorial duties. When asked at the Spears hearing what injuries he had suffered as a consequence of being assigned to work as a janitor, Plaintiff replied that he really did not know what injuries he had suffered because he had been transferred to the TDCJ-ID McConnell Unit on June 5, 2000, and no physician had examined his back or shoulder in the year that he had been on that unit.
"All TDCJ inmates, unless specially classified, arc required to work." Mikeska v. Collins, 928 F.2d 126 (5th Cir. 1992) (reinstating 900 F.2d 833, 836-37). "An inmate has neither a protectable property nor liberty interest in his custodial classification, and a work assignment alone does not rise to a constitutional violation." Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988) (internal citations omitted). An inmate's disagreement with his medical classification is also insufficient to establish a constitutional violation. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Nevertheless, if an inmate is compelled to perform physical work which is beyond his strength, endangers his life, or causes undue pain, he may be able to state a claim for cruel and unusual punishment in violation of the Eighth Amendment Jackson v, Cain, 864 F.2d 1235, 1246 (5th Cir. 1989) (citing Ray v. Mabry, 556 F.2d 881 (8th Cir. 1977)). See Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) C'[W]hen the restrictions of confinement rise to a level that results in physical torture, it can result in pain without penological purpose constituting cruel and unusual punishment under the Eighth Amendment.91). To establish such a constitutional violation, an inmate must show that prison officials knowingly or intentionally assigned the inmate to a work detail that they knew would aggravate the inmate's serious physical ailment. Jackson v. Cain, 864 F.2d at 1246. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that an inmate must demonstrate prison officials were deliberately indifferent to the inmate's health or safety to show a violation of the Eighth Amendment). Thus, `the constitutionality of a particular working condition must be evaluated in light of the particular medical conditions of the complaining prisoner." Id.
Plaintiffs prison records show that on November 30, 1999, after he was transferred to the Middleton Unit, he was not immediately assigned to a job. His Health Summary Classification ("HSM-18") dated November 30, 1999, states that he was "U/A Processing." It also lists his medical restrictions as follows: IIA, special housing (housing with patient with like medical condition); II.B.2, lower bunk only; IIC.2. ground floor only; III.7. limited standing; III.8. no walking farther than 800 yards; III.9. no lifting greater than 20 pounds; III. 12. no climbing; III 14. no reaching over shoulder, III.15. no food service; III. 17. no walking on wet uneven surfaces; and III.18. do not assign to medical. The HSM-18 was signed by R.N, Caldwell, and Plaintiff testified at the Spears hearing that Nurse Caldwell should have given more medical restrictions at his initial screening on the Middleton Unit The next HSM-18 in Plaintiffs prison records is dated April 12, 2000, is signed by Dr. Ferrell, and lists Plaintiffs work assignment as "Janitor C Bldg Dorm 3rd." The medical restrictions are the same as noted on the HSM-18 dated November 30, 1999, with one exception — paragraph III3. restricts Plaintiff to sedentary work for 90 days. Plaintiff, however, does not complain about being compelled to work as a janitor after March 30, 2000. Moreover, the HSM-18s in Plaintiffs file before his transfer to the Middleton Unit indicate that on October 1, 1999, and October 14, 1999, Plaintiff was assigned at the Formby Unit to "JC Fl Dorm Janitor, 1st," and there are three HSM-18s in the records dated after his transfer off the Middleton Unit which list his work assignments as "Folder Laundry" and "Sewing Machine Operator Garment Factory."
The Clinic Notes from the Middleton Unit indicate that Plaintiff complained on January 29, 2000, that he was suffering from severe back pain and having difficulty sleeping. Plaintiff complained again on February 4 and 8, 2000, about his back and shoulder pain, On March 10, 2000, Plaintiff was seen in the infirmary for complaints about chest pain resulting from having to eat too fast. There are no further complaints in the Clinic Notes about back or shoulder pain until March 31 and April 1, 2000, when Plaintiff filed sick call requests complaining about increased back pain due to his assignment to janitor work, There are no further complaints until April 12, 2000, when he complained about back and shoulder pain and being assigned to janitor duty. The Clinic Notes state that Plaintiff complains that he has a pain in his right back and side which started "yesterday after making his bed." On April 12, 2000, Plaintiff was examined by a physician; a 90-day restriction for sedentary work was added to his HSM-18; and the physician ordered daily heat treatments to his back for five days. Although the Clinic Notes show that Plaintiff continued to complain about back and shoulder pain after April 12, 2000, there are no further complaints about his work assignment in the prison records.
Plaintiff has offered no evidence that Defendants Wise, Jones, and John Doe ignored his medical restrictions when assigning him to work as a janitor. Indeed, the prison records indicate that Plaintiff had previously been assigned to work janitor duty on the Formby Unit, and as Plaintiff conceded, John Doe advised him on March 30, 2000, when he complained about the assignment, that his "current medical restrictions [did] not prevent [him] from doing any of the functions [he] listed. The only one close is `no lifting over 20 Ibs.' Write medical for additional restrictions if needed/' Plaintiff further acknowledged that he then contacted medical; he was in fact examined by a physician on April 12, 2000; and his medical restrictions and job assignment were changed.
The Court finds no reason to doubt Plaintiffs allegations that he suffered back and shoulder pain, but other than his conclusory allegations, Plaintiff has failed to demonstrate that Defendant Wise assigned him extra work duty as a janitor and Defendant Jones changed his work assignment with the intent or knowledge that Plaintiffs back and shoulder problems would be aggravated or that either officer acted with deliberate indifference to his physical problems. Hence, the Court finds that Plaintiff has failed to state a claim for cruel and unusual punishment resulting from his assignment to extra work hours and janitor work under the Eighth Amendment,
3. Retaliation
Plaintiff next complains that he was given the work assignment of janitor in retaliation for filing a grievance against Sgt. Black regarding the verbal abuse and threats on March 10, 2000. He also argues that Sgt, Black ordered his cell searched on March 10, 2000; Officer Elliott charged him with a disciplinary case on March 10, 2000; and Lt. Wise found him guilty of the disciplinary charges on March 13, 2000, because of the grievance he filed against Sgt. Black.
To state a claim for retaliation under § 1983, a prisoner must demonstrate (1) the invocation of a constitutional right; (2) a defendant's intent to retaliate against the prisoner for his exercise of that right; (3) a retaliatory adverse act; and (4) causation; i.e., but for the retaliatory motive, the complained-of incident would not have occurred Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir 1997). The prisoner must "produce direct evidence of motivation or, the more probable scenario, `allege a chronology of events from which retaliation may plausibly be inferred'" Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988), Thus, a prisoner must demonstrate more than his "mere personal belief that he was the victim of retaliation. Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). Furthermore, trial courts should carefully scrutinize claims of disciplinary charges filed in retaliation "[t]o assure that prisoners do not inappropriately insulate themselves from disciplinary actions by drawing the shield of retaliation around them." Woods v. Smith. 60 F.3d at 1166.
Plaintiff has offered no direct evidence to show that the defendants acted with a retaliatory motive when they ordered his cell searched, charged him with a disciplinary case, found him guilty of the disciplinary infraction, assigned the extra work duty, or assigned him to work as a janitor. In fact, when asked at the Spears hearing why he believed he was the victim of retaliation, Plaintiff replied that he `just feels like" the defendants retaliated against him. See Johnson v. Rodriguez, 110 F.3d at 310 (holding that a prisoner must show more than his "personal belief' that he is a victim of retaliation).
Nevertheless, Plaintiff argues that a retaliatory motive can be plausibly inferred from the following chronology of events:
(1) Plaintiff has verbal altercation with Officer Elliott and Sgt Black; Plaintiffs cell is searched; and disciplinary charges (case no, 20000208923) filed on March 10, 2000
(2) First step one grievance regarding Sgt. Black's threats filed on March 10, 2000
(3) Step one grievance dated March 10, 2000, returned for procedural flaws and second step one grievance regarding Sgt, Black's threats filed on March 11, 2000
(4) Step one grievance dated March 11, 2000, returned for procedural flaws but no date provided
(5) Disciplinary hearing in case no. 20000208923 held on March 13, 2000; Plaintiff acknowledges he was given notice of the charges and the hearing, he made a statement, and he did not call any witnesses or ask to call any witnesses; Lt. Wise found Plaintiff guilty and sentenced him to a 30-day restriction of commissary and recreation privileges and 20 hours of extra work duty
(6) Step one grievance regarding Sgt. Black's threats filed on March 14, 2000; Plaintiff does not provide a copy of this grievance or its answer
(7) Work assignment changed by Capt Jones on March 28, 2000
(8) 1*60 complaint regarding work assignment submitted to medical on March 29, 2000; medical immediately replied to contact the Unit Classification Committee
(9) 1-60 complaint regarding work assignment submitted to classification on March 30, 2000; classification immediately replied that Plaintiff was approved to do the work
(10) On April 3 or 4, 2000, an officer told Plaintiff his punishment was severe because he had irritated rank
(11) Step one grievance (#2000097248) regarding Sgt. Black's threats, the changed work assignment, the disciplinary proceedings, and retaliation dated April 10, 2000 (attached to Plaintiffs original complaint)
(12) Answer to grievance # 200097248 from administration dated April 20, 2000, advised Plaintiff that his `medical restrictions did not preclude [him] from being a dorm porter until [his] restrictions changed on April 12." The answer also noted that he was assigned to Inside Medical Squad #9 on April 13, 2000, and there was no evidence that Capt Jones acted inappropriately or failed to follow procedures. The complaint was referred to Internal Affairs because of his allegation of retaliation but there was no indication that Plaintiff needed to be transferred to another unit.
(13) Step two grievance dated April 24, 2000, appealed the decision in grievance #200097248
(14) Answer to step two grievance dated April 24, 2000, advised Plaintiff on May 12, 2000, that appropriate action had been taken in denying the step one and further action was unwarranted
The Court has carefully examined this chronology of events and finds that it does not reasonably indicate that any of the defendants acted with a retaliatory or malicious motive. Plaintiff acknowledged at the Spears hearing that he had not filed any grievances against Sgt. Black prior to March 10, 2000. The mere facts that Plaintiffs first two grievances were returned for procedural reasons and his grievance dated April 14, 2000, was denied, simply do not lead to a plausible inference that `but for' the filing of his grievances he would not have been given the disciplinary case and assigned the extra work hours. See Whittington v, Lynaugh, 842 F.2d 818, 819 (5th Cir. 1988) ("It is a virtual truism that any prisoner who is the subject of an administrative decision that he does not like feels that he is being discriminated against for one reason or another, such as the past filing of a grievance. . . ."). Furthermore, the TDCJ-ID records show that Plaintiff received disciplinary case no, 20000198657 on February 29, 2000, for possession of contraband and destroying or damaging state property. He had a hearing on March 1, 2000; he pleaded guilty to the charges; and he was given a verbal reprimand and lost seven days of commissary and recreation privileges. The simple fact that Plaintiff committed the same offense less than two weeks later on March 10, 2000, leads only to the reasonable conclusion that Plaintiff did not take his conviction and sentence for possession of contraband in case no. 2000198657 seriously and therefore his sentence for the second possession of contraband in case no. 20000208923 had to be more punitive. Finally, the records also show that Plaintiff was assigned to work as a dorm janitor on his prior unit, thereby indicating that his assignment to janitor duty was not wholly unreasonable, "Unless the complained-of action[, that is, the disciplinary case, the work assignment, and the extra work duty as a janitor,] would not have taken place `but for' the retaliatory animus, then [a] retaliation claim has not been made out." Johnson v. Rodriguez, 110 F.3d at 313n, 19. Plaintiffs chronology of events simply does not lead to the reasonable conclusion that but for a retaliatory animus he would not have received the disciplinary case, the sentence to extra work duty, and his work assignment to dorm janitor
For these reasons, the Court finds that Plaintiff has failed to state a claim for retaliation cognizable under § 1983,
4. Disciplinary Case
A prisoner may not collaterally attack a prison disciplinary proceeding in a civil rights action filed pursuant to 42 U.S.C. § 1983 until he demonstrates that he has challenged those proceedings in a writ of habeas corpus and the disciplinary charge has been invalidated, reversed, expunged, or otherwise impugned, Edwards v. Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff has conceded that he neither filed grievances challenging disciplinary action no. 20000208923 nor has the case been overturned or expunged from his record by a writ of habeas corpus. Accordingly, Plaintiff's complaint regarding his disciplinary proceeding is frivolous.
5. Miscellaneous Claims
To the extent that Plaintiff is complaining about verbal abuse and threats by Defendants Elliott and Black on March 10, 2000, he has failed to state a claim upon which relief may be granted under 42 U.S.C. § 1983. `To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). The "mere threatening language and gestures of a custodial office[r] do not, even if true, amount to constitutional violations." Robertson v. Piano City of Texas, 70 F.3d 21, 24 (5th Cir. 1995). See Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993) (holding that claims of verbal abuse and harassment are not actionable under § 1983).
CONCLUSION
For the reasons stated above, it is ORDERED that Plaintiffs complaint and all claims alleged therein are DISMISSED with prejudice as frivolous and for failure to state a claim upon which relief can be granted.
Judgment shall be entered accordingly.
All pending motions are hereby denied.
This dismissal shall count as a qualifying dismissal under 28 U.S.G § 1915 and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996), and this dismissal does not release Plaintiff Bates from the filing fee obligations previously imposed.
Plaintiff is advised that if he appeals this Order, he shall be required to pay the appeal fee of $105,00 pursuant to the Prison Litigation Reform Act and he must submit an application to proceed informa pauperis and a certified copy of his 6-month Certificate of Inmate Trust Account along with his notice of appeal.
A copy of this Order shall be mailed to the Office of General Counsel, TDCJ-ID Litigation Support, P.O. Box 13084, Austin, Texas, 78711, and to TDCJ Local Funds Division, P.O. Box 629, Huntsville, Texas 77342-0629.
JUDGMENT
For the reasons stated in the Court's Order of even date,IT IS ORDERED, ADJUDGED, AND DECREED mat Plaintiffs complaint and all claims alleged therein are dismissed with prejudice.