Opinion
Civil Action No. 5:01-CV-282-C
February 20, 2002
ORDER
Plaintiff Edward LaFontaine, acting pro se, filed a complaint pursuant to 42 U.S.C. § 1983, complaining about contaminated food, inadequate food service, and inadequate medical treatment for food poisoning. He names Gary Johnson, Director of the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), FNU Stevens, Warden of the TDCJ-ID Montford Unit, the TDCJ-ID "Food Service," and "Texas Tech University Medical" as defendants. Plaintiff requests relief in the form of monetary damages ("4.3 million dollars") and an injunction requiring that food be served "per state and federal guidelines." Plaintiff filed answers to the Court's questionnaire on January 31, 2002. See Watson v. Ault, 525 F.3d 886, 892 (5th Cir. 1976) (holding that a questionnaire may be used to develop the factual basis of a prisoner complaint).
Plaintiff has been granted permission to proceed in forma pauperis. The Defendants have not answered.
When a prisoner seeks to proceed in forma pauperis, "[n]otwithstanding 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) (stating 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.C.A. § 1997e(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 must 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 complaint may not be dismissed under § 1915(d)(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 civil rights 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(d)(2)(B)]."). Nevertheless, a district court is bound by the allegations in a plaintiffs complaint 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." Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d at 97.
Plaintiff first complains that Defendants Johnson and Stevens served contaminated foods and failed to serve wholesome foods, but he has failed to provide specific dates when contaminated foods were served; he has not described how or why the foods were "unwholesome"; and he states that his only injuries have been "degradation, stomach cramps, and diarrah [sic]." When given the opportunity to elaborate on his complaints about the food, Plaintiff has failed to provide any specific information regarding when, where, or what contaminated or "unwholesome" food was served. When asked to specifically provide a date and time when he was served contaminated or "unwholesome" food, Plaintiff merely responds that it is a "matter of record." Although he attached copies of several prison grievances to his complaint, the Court has reviewed the grievances and finds that Plaintiff did not elaborate on his complaints even in the prison administrative procedures. In the grievances, he complains that the food has high levels of cholesterol as demonstrated by his elevated cholesterol levels; the food was spoiled and unwholesome; the portions were too small; the food servers did not wear hair nets or gloves; and food is not being served at the proper temperatures: he does not state specifically when or where he was served spoiled or "unwholesome" food. Moreover, although his complaint implies that he is complaining about the food served at the TDCJ-ID Montford Unit, one of the grievances attached to his complaint raises identical complaints about the food served at the TDCJ-ID Clements Unit in Amarillo, Texas.
"The Eighth Amendment requires that [prisons] provide inmates with `well-balanced meal[s], containing sufficient nutritional value to preserve health.'" Green v. Ferrell, 801 F.2d 765, 770 (5th Cir. 1986) (quoting Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977)). The Fifth Circuit has determined that
[i]f prisoners regularly and frequently suffer from food poisoning with truly serious medical complications as a result of particular, known unsanitary practices which are customarily followed by the prison food service organization, and the authorities without arguable justification refuse to attempt remedial measures, the requisite deliberate indifference might well be manifested or inferred. But such deliberate indifference is certainly not even suggested by a single incident. . . .George v. King, 837 F.2d 705, 707 (5th Cir. 1988) (emphasis added). Plaintiff has failed to describe any truly serious medical complications resulting from "particular, known unsanitary practices which are customarily followed" by the TDCJ-ID. Although given the opportunity to explain and further elaborate on his complaints in the Court's questionnaire, he has failed to provide anything more than conclusory allegations regarding the food served by the TDCJ-ID Montford Unit. See Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995) (holding that prisoner's claim resting on his personal belief, in the absence of allegations of specific acts or proof of intent, is insufficient to support a claim under § 1983); Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988) (noting that a civil rights plaintiff should state "specific facts, not merely conclusory allegations" in support of his claim).
Furthermore, Plaintiff has named Defendants Johnson and Stevens as responsible for the contaminated and unwholesome food being served to inmates, but he has failed to demonstrate that either defendant was personally involved in preparing and serving contaminated or unwholesome food and he has not described specific acts by either defendant "causally connecting said defendants to the constitutional violation[s] alleged." Woods v. Edwards, 51 F.3d at 583. Theories of vicarious liability, such as respondeat superior, will not support a claim under § 1983. Eason v. Thaler, 73 F.3d 1322, 1327 (5th Cir. 1996).
Plaintiff next complains that Defendants Johnson and the TDCJ-ID Food Service failed to properly train the food service workers, but when asked to describe how the TDCJ-ID failed to train the workers, he responded only that "food service was never seen present by me other than at Lynaugh Unit with its workers." When asked to explain how Defendant Johnson failed to train the workers, Plaintiff responded with conclusory references to food service at the Lynaugh and Estelle Units and never mentioned the training of food service workers at the Montford Unit. Plaintiff did not attach any grievances to his complaint regarding the training of food service workers and only generally complains that they do not wear the proper head coverings or gloves when serving and preparing food. He does not explain how the failure to wear gloves or hair coverings contaminated the food. He further alleges in his answers to the Court's questionnaire that he could not attach the grievances because they are "unavailable at this time — legal material missing." Plaintiff's conclusory allegations regarding the failure to train food service employees are insufficient to state a claim under § 1983.
To the extent that Plaintiff complains about any failures to comply with TDCJ-ID policy or regulations or state laws, his claim is wholly frivolous. The mere failure of prison authorities to follow prison rules and regulations does not, without more, give rise to a constitutional violation. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). Likewise, the mere violation of a state law or regulation does not alone give rise to a constitutional violation cognizable under § 1983. Williams v. Treen, 671 F.2d 892, 900 (5th Cir. 1982).
Plaintiff next complains that Texas Tech Medical failed to diagnose his food poisoning "continually in excess of 30 times." He does not provide any information regarding which food caused the food poisoning, if and when he was examined by Texas Tech Medical, and what symptoms were ignored by Texas Tech Medical. He states that he has not received any medical treatment for this problem but he has suffered from "degradation, humiliation, [and] slander" and his right to medical treatment has been violated.
Deliberate indifference to serious medical needs maybe manifested by prison doctors in their response to a prisoner's needs or by prison guards in intentionally denying or delaying access to medical care. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). "[F]acts underlying a claim of deliberate indifference must clearly evince the medical need in question and the alleged official dereliction." Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (citing Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981)). "The legal conclusion of deliberate indifference, therefore, must rest on facts clearly evincing wanton actions on the part of the defendants." Id. at 1238. Similarly, a showing of deliberate indifference requires both knowledge and disregard of a significant risk of harm. Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001). Other than his conclusory allegations of deliberate indifference, Plaintiff offers no facts to support his claim that Texas Tech Medical was deliberately indifferent to his complaints of food poisoning. Thus, Plaintiff has failed to state a claim upon which relief can be granted.
To the extent that Plaintiff has sued Defendants Johnson and Stevens in their official capacities as employees of the TDCJ-ID, the Court finds that Plaintiff is suing an agency of the State of Texas and the "real, substantial party in interest" is therefore the State of Texas. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). Plaintiffs suits against the TDCJ-ID Food Service and Texas Tech Medical are also suits against agencies of the State of Texas. Because Plaintiff has demonstrated neither that the State of Texas has waived its immunity in this case or that Congress has abrogated it, Plaintiff's suit for damages against Defendants Johnson and Stevens in their official capacities, the TDCJ-ID Food Service, and Texas Tech Medical, is barred by the doctrine of sovereign immunity and should be dismissed with prejudice as frivolous.
It is, therefore, ORDERED that Plaintiff's claims are dismissed with prejudice for failure to state a claim upon which relief can be granted and as frivolous.
Judgment shall be entered accordingly.
All pending motions are hereby denied.
This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915 and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
The dismissal of Plaintiff's complaint does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed.
Plaintiff is advised that if he appeals this Order, he will be required to pay the appeal fee of $105.00 pursuant to the PLRA, and he must submit an application to proceed in forma pauperis and a 6-month Certificate of Inmate Trust Account at the same his notice of appeal.