Summary
Pouring of water on inmate's head and back a de minimis use of force
Summary of this case from Fackler v. DillardOpinion
2:04-CV-0036.
July 6, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff EKPIN UDOM EKPIN, acting pro se and while incarcerated in the Texas Department of Criminal Justice, Institutional Division, filed this suit pursuant to Title 42, United States Code, section 1983 complaining against the above-named defendants and has been granted permission to proceed in forma pauperis.
Plaintiff alleges that, on September 9, 2003, at the Jordan Unit chow hall, defendant DAY approached him as he was eating dinner, poured water into his food tray from a pitcher on the table, and then poured water from her drinking bottle on plaintiff's head and back, all in violation of his right to be free from cruel and unusual punishment. Plaintiff contends defendant DAY's act was in retaliation for his grievances and complaints against her and was racially motivated.
Plaintiff alleges defendant THOMAS witnessed the incident but did not intervene. Plaintiff further claims defendants PARKS and KIDD attempted to conceal the incident when they instructed plaintiff to wait three days before filing a grievance or making any other complaint on the incident, until they got back to work and had a chance to finish the investigation. Plaintiff argues it would have been too late for him to file a grievance had he waited.
Plaintiff alleges, in conclusory terms, that he received abuse, retaliation, and harsh treatment after filing the grievance; and that a letter he wrote to defendant McCLEARY complaining of the incident was returned to him with the response that the matter was being handled administratively.
Plaintiff claims defendant BELL failed to supervise and train his officer and failed to correct the matter; defendant McCLEARY failed to correct the matter; defendant PARKS was grossly negligent in supervising his officer and, along with KIDD, conspired to cover-up the incident; and that defendant THOMAS failed in intervene and stop defendant DAY from assaulting plaintiff and retaliating against him.
Plaintiff requests an award of $250,000.00 compensatory damages, $250,000.00 punitive damages, future medical expenses, a transfer to another unit, corrective action, and interest and attorneys' fees.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is 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; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his amended complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendant.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Civil Rights of Institutionalized Persons Act, Title 42, United States Code, section 1997e(a), provides that "[n]o action shall be brought with respect to prison conditions under [Title 42, United States Code, section 1983,] or any other Federal Law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
On his complaint, plaintiff indicates he has exhausted administrative remedies and has submitted copies of the grievances he feels constituted such exhaustion.
Review of the grievances reveals Step 1 grievance #2004008381 and Step 2 grievance #2004008381. By his Step 1 grievance, plaintiff complained that defendant DAY poured water on him; defendant THOMAS did nothing to intervene; and defendants PARK and KIDD instructed plaintiff to wait until they returned to work on Sunday to they could continue with more investigation. Plaintiff states he felt they were merely trying to cover-up the incident and, therefore, that he filed a grievance the very next day.
This grievance contains no mention of any retaliatory intent or racist motivation by defendant DAY. Further, it contains no complaint about subsequent retaliatory treatment by any defendant or a failure to supervise and remedy the situation by defendants BELL and McCLEARY. Consequently, plaintiff has not grieved concerning those claims and has failed suit on these claims without first exhausting administrative remedies.
By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Consequently, these claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
As to plaintiff's Eighth Amendment claim against defendant DAY of cruel and unusual punishment, the malicious and sadistic use of force to cause harm violates contemporary standards of decency; however, not every malevolent touch, push, or shove by a prison guard gives rise to a federal cause of action. Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992). A use of force which is not "repugnant to the conscience of mankind," Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986), is excluded from the Eighth Amendment's prohibition of cruel and unusual punishment and is considered to be de minimis.
In the instant case, accepting plaintiff's allegations as true, plaintiff has not alleged he suffered any injury at all. Further, the Court finds no repugnant use of force is evident here. Compare, Olson v. Coleman, 804 F. Supp. 148, 150 (D.Kan. 1992) (finding a single blow to the head causing a contusion to be de minimis and not repugnant) and Candelaria v. Coughlin, 787 F. Supp. 368, 374 (S.D.N.Y. 1992) (allegation of single incident of guard using force to choke inmate distinguished from injuries alleged in Hudson), both cited with approval in Jackson v. Culbertson, 984 F.2d 699, 670 (5th Cir. 1993) (spraying inmate with fire extinguisher found to be de minimis and not repugnant to conscience of mankind); see, also, Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992) (interrogatory in civil rights suit requiring jury to determine whether arrestee suffered "injury" as result of alleged use of excessive force before considering issue of damages found reasonable and not plain error). The force exercised by defendant DAY in pouring water on plaintiff is clearly de minimis and outside the scope of the Eighth Amendment. Therefore, plaintiff's excessive force claim against defendant DAY lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
As to plaintiff's claim that PARKS and KIDD attempted a cover-up of the incident, the facts plaintiff has alleged do not support his claim of wrongful motivation. The Court notes AD-03.82(rev.3) establishes a deadline of 15 days from the incident date for submission of the step 1 grievance. Consequently, despite plaintiff's assumption, a four or five day delay to allow for investigation by KIDD, who had the investigate the grievance, would not have prejudiced his right to file a grievance on the incident and does not support a claim of attempted cover-up by these defendants. Consequently, in this respect, plaintiff has failed to state a claim on which relief can be granted.
CONCLUSION
Plaintiff's claims are barred by plaintiff's failure to comply with the section 1997e exhaustion of administrative remedies requirement before filing the instant suit challenging prison conditions. Further, plaintiff's claims are frivolous and fail to state a claim on which relief can be granted.
IT IS HEREBY ORDERED:
The Civil Rights Claims against defendants BELL and McCLEARY, as well as the claims of retaliation and racism against all defendants, are DISMISSED WITH PREJUDICE FOR PURPOSES OF PROCEEDING IN AN IN FORMA PAUPERIS PROCEEDING PURSUANT TO TITLE 28, UNITED STATES CODE, SECTION 1915(b). Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); 42 U.S.C. § 1997e(a). Plaintiff's remaining claims are DISMISSED AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711 and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.