Opinion
2:01-CV-0233
September 16, 2002
ORDER OF DISMISSAL
Plaintiff IRVING ELLIOT, acting pro se and proceeding in forma pauperis while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendant. On September 3, 2002, a Report and Recommendation was filed by the United States Magistrate Judge analyzing plaintiff's claims under Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(a), and recommending plaintiff's claims be dismissed as frivolous and 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 filed his Objections on September 12, 2002.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation, as well as the objections filed by the plaintiff.
By his Objections, plaintiff presents the representation that he "with other plaintiffs named have "exhausted" the standard for grievance procedure on correspondence . . ." As set forth in the Report and Recommendation, careful examination of the copies of plaintiff's appeals to the Director's Review Committee does not support this fact, and plaintiff has utterly failed to plead such exhaustion with specificity. Instead, plaintiff attempts to utilize the grievances of other inmates and argues he is attempting to pursue a class-action lawsuit. No motion to certify the class has been filed in this cause, and none has been granted. Further, the general rule is that class injuries attributable to class members but not sustained by the named class representative cannot be remedied in a class action lawsuit. Johnson v. Rodriguez, 110 F.3d 299, 310-311 (5th Cir. 1997). Even if a motion to certify had been filed, the first factor to be reviewed would be whether plaintiff had suffered the injuries of which he complains and whether he had exhausted administrative remedies with respect to his claims before filing suit in federal court. Consequently, the grievances of other inmates cannot satisfy the exhaustion requirement for plaintiff's claims.
The Director's Review Committee is the alternate grievance process established by TDCJ-ID for appeal of correspondence rule decisions as applied to inmate mail.
Plaintiff also argues that "[p]risoners have a legal right to give legal assistance where legal assistance is limited in the prison institution . . . and the only legal assistance that offenders staff counsel give is to the offender's criminal convictions." The precise constitutional right referenced in this argument is the right of adequate, effective and meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977); however, this right is not unlimited, but encompasses only a prisoner's reasonably adequate opportunity to file nonfrivolous legal claims challenging his conviction(s) or his conditions of confinement, Johnson v. Rodriguez, 110 F.3d 299, 310-311 (5th Cir. 1997) (citing Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606 (1996). From this right flows the requirement that "prison authorities . . . assist inmates in the preparation and filing of meaningful legal papers by providing . . . adequate law libraries or adequate assistance from persons trained in the law." Id. There is no requirement that prisoners be afforded free legal advice as well as access to the law libraries.
Bounds is generally grounded in the Fourteenth Amendment or in the federal statutory right to present a habeas corpus action in federal court. Bounds v. Smith, 420 U.S. 817, 827-828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). Bounds buttressed its holding that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance by citations both to Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718 (1969) (grounded in 28 U.S.C. § 2241-2255) and to Wolff v. McDonnell, 418 U.S. 539, 577-580, 94 S.Ct. 2963, 2985-88, 41 L.Ed.2d 935 (1974) (grounded in 14th Amendment Due Process rights). It is interesting to note that, in his dissent to the Bounds majority opinion, then Justice Rehnquist, joined by Chief Justice Burger, accused the Court of fashioning the fundamental right of access to the courts out of wholecloth without reference to the Constitution from which is was supposed to be derived. Bounds v. Smith, 420 U.S. at 840, 97 S.Ct. 1504. "[A] `fundamental constitutional right of access to the courts, '. . . is found nowhere in the Constitution's."Id., 430 U.S. at 839, 97 S.Ct. at 1504 (Rehnquist, J., dissenting).
Moreover, the relevant constitutional protection accrues to the benefit of the prisoner in whose name the lawsuit is filed, not those who assist in the preparation of the lawsuit. Id. Therefore, a prisoner has no constitutionally protected right to act as inmate counsel; and inmates have no right to a particular prisoner's help in legal matters as long as the putative recipient's constitutional right to access to the courts is not infringed. Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996). Consequently, it is clear plaintiff's claim in this respect 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).
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court, as supplemented herein.
This Court, therefore, does OVERRULE plaintiff's objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge, as supplemented herein.
IT IS THEREFORE ORDERED that, pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(a), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff IRVING ELLIOT IS DISMISSED AS FRIVOLOUS AND 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).
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any motions still pending are hereby 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 of this Order to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, Texas 78711, and to Claire Laric at the United States District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.