Opinion
No. 3:02-CV-1404-D.
July 10, 2003
SUPPLEMENTAL FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The supplemental findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Nature of the Case:
Plaintiff brings this complaint pursuant to 42 U.S.C. § 1983. He also raises state law claims. Plaintiff is proceeding in forma pauperis. II. Parties:
Plaintiff is currently confined in the Big Spring Federal Correctional Institution. At the time the events in his complaint occurred, he was confined in the Hutchins State Jail. Defendants are Hutchins State Jail employees Officer Aranda and an unknown agent.
On March 11, 2003, this Court entered findings, conclusions and a recommendation to dismiss this case as frivolous. On March 27, 2003, Plaintiff filed objections. On March 28, 2003, the District Court re-referred this case for a supplemental recommendation in light of Plaintiff's objections. The Court now finds that Plaintiff's complaint should be dismissed.
III. Statement of the Case:
Plaintiff states that on July 22, 2000, Officer Aranda told him to stand with his hands behind his head. He states Officer Aranda then pulled his pants down to his knees as punishment because the pants were sagging. He states he told Officer Aranda that his pants were sagging because they had a defective waistband. Plaintiff alleges that Officer Aranda made him stand outside with his pants at his knees for approximately half an hour. Plaintiff states it was hot, sunny and mosquitos were out during that time.
Plaintiff also claims that an unknown agent at Hutchins State Jail violated his civil rights. Plaintiff states that he filed a grievance against Officer Aranda, but that an unknown agent who works in the Grievance Section of the Texas Department of Criminal Justice denied his grievance. Plaintiff claims the unknown officer violated his civil rights by accepting Officer Aranda's version of the facts and by not forwarding a copy of the decision to him when he was transferred out of Hutchins State Jail. Plaintiff seeks compensatory and punitive damages from this unknown agent.
IV. Preliminary Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous if it "lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court finds Plaintiff's claims should be dismissed as frivolous.
V. Discussion
To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States; and (2) a deprivation of that right by a defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). Furthermore, under 42 U.S.C. § 1983 1997e(e), "[n]o federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."
Plaintiff's complaint states that as a result of Officer Aranda's actions, he suffered personal indignity, mental anguish, humiliation, embarrassment, fear and aggravation. On March 11, 2003, the Court found that Plaintiff failed to allege a physical injury. The Court therefore recommended that the complaint be dismissed. On March 27, 2003, Plaintiff filed objections stating that he did suffer a physical injury as the result of Officer Aranda's actions. Plaintiff states that during the approximate half hour that he was made to stand outside: (1) he became dehydrated and was refused permission to drink water; (2) he became nauseous and developed a migraine headache; (3) he was bitten by several mosquitos and his skin at the bite area became inflamed and irritated; and (4) later that evening he developed a fever caused by the mosquito bites, but he felt better the next day.
Plaintiff, however, must establish that his injury is more than de minimis. See Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997) (holding that a sore, bruised ear which caused pain for three days is a de minimis injury which would not support a constitutional claim); Dale v. Bridges, No. 3:06-CV-3088-AH, 1997 U.S. Dist. WL 810033, at *3 (N.D. Tex. Dec. 22, 1997) (holding that an allegation of a "swollen black eye which lasts only a few days" is insufficient to satisfy the "some injury" requirement); Rader v. Lubbock County, Texas, No. 5:01-CV-258-C, 2003 U.S. Dist. WL 21145788, at *12 (N.D. Tex. April 25, 2003) (finding that causing plaintiff to strike his head, resulting in a headache, is de minimis); Olson v. Coleman, 804 F. Supp. 148, 150 (Kan. 1992) (finding a single blow to the head causing a contusion to be de minimis) and Candelaria v. Coughlin, 787 F. Supp. 368, 374 (S.D.N.Y. 1992) (finding allegation of single incident of a guard using force to choke an inmate is de minimis), both cited with approval in Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1992) (spraying inmate with fire extinguisher found to be de minimis). Plaintiff has failed to show he suffered more than a de minimis injury. His claims against Officer Aranda should therefore be dismissed with prejudice as frivolous.
Plaintiff's claims against the unknown agent who denied his grievance should likewise be dismissed as frivolous. Plaintiff claims the unknown agent denied his grievance, failed to properly investigate the grievance and failed to mail the denial letter to Plaintiff. In the Court's March 11, 2003, Findings, the Court recommended that these claims be dismissed as frivolous for failure to allege a constitutional violation. In Plaintiff's March 27, 2003, objections, he alleges that the unknown agent's actions violated his constitutional rights. Plaintiff's claims, however, fail to raise constitutional claims.
An inmate does not have a constitutional entitlement to an adequate grievance procedure. See Jenkins v. Henslee, 2002 WL 432948, *2 (N.D. Tex. Mar. 15, 2002) No. 3:01-CV-1996-R (finding effectiveness or altogether absence of administrative grievance procedures do not give rise to constitutional claim); Whiting v. Alvarado, No. 2:03-CV-0053, 2003 U.S. Dist. WL 21501961 (N.D. Tex. June 27, 2003) (finding no constitutional claim arises from failure to properly investigate prisoner grievance); Kimble v. Smith, No. 2:00-CV-352, 2003 U.S. Dist. WL 21350339 (N.D. Tex. June 9, 2003) (same). Plaintiff's claims against the unknown agent lack an arguable basis in law and should be dismissed as frivolous.
Finally, Plaintiff also alleges that Defendants actions violated various state laws. Because the Court recommends that Plaintiff's federal claims be dismissed, it also recommends that the Court dismiss Plaintiff's state claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) ("pendant jurisdiction is a doctrine of discretion. . . . Certainly, if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.").
RECOMMENDATION
The Court recommends that Plaintiff's claims pursuant to 42 U.S.C. § 1983 be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b). The Court also recommends that Plaintiff's state law claims be dismissed without prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).