Opinion
2:03-CV-0307
January 6, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff MARCELLUS KELVIN TARTT, SR., 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 complains that, on June 23, 2003, defendant REYNOLDS slammed him in a metal door and refused his request for medical care, giving plaintiff a disciplinary case for failure to obey an order. He states that she also threatened him a few minutes later. He further claims that, on July 8, 2003, he received a disciplinary case for cursing defendant REYNOLDS and on another date, received a case for disobeying her.
Plaintiff claims that, on July 18, 2003, he received a disciplinary case for threatening defendant REYNOLDS and was later found guilty. He states that, on July 19th, defendant RAINES threatened plaintiff with harm if REYNOLDS lost her job.
Plaintiff complains that defendant MOORE didn't give him a life-endangerment form or follow the proper standard of proof in a disciplinary hearing.
Plaintiff claims defendant MERDIA failed to give him a fair and impartial hearing, and defendant PACHECO did not provide proper representation for plaintiff at his disciplinary hearings.
Plaintiff further, claims that defendant Dr. UY, didn't allow treatment to be given plaintiff for his injuries resulting from the June 23, 2003, incident with defendant REYNOLDS.
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, Demon 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 complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
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 indicated he had exhausted administrative remedies and attached copies of the grievances he had submitted; however, review of these grievances demonstrates plaintiff did not utilize the grievance procedure concerning the majority of his claims.
Plaintiff has submitted the step 1 and step 2 for two grievances, nos. 2003202321 and 2003210021. By his step 1 and 2 grievance no. 2003210021, plaintiff complained of threats from defendants REYNOLDS and RAINES on July 18th and 19th. He also' mentioned being refused a life endangerment form but gave no indication who refused it, the date of the refusal, or the circumstances surrounding it, and this does not appear to be the focus of his grievance. Plaintiff also mentions that REYNOLDS has written him "5 major cases which are all a lie."
By his step 1 and 2 grievance no. 2003202321, the only claim plaintiff grieved was being given a case on July 9, 2003, for calling defendant REYNOLDS a vulgar name. He also mentions that REYNOLDS has written him five major cases which he says were lies and that he hasn't been given a life endangerment form, but does not indicate defendant MOORE, or any of the other named defendants, was involved. Thus, it appears plaintiff filed the instant suit without first exhausting administrative remedies on all his claims except those of threats by REYNOLDS and RAINES and the receipt of five false disciplinary cases.
Of course, mere allegations of verbal abuse do not present an actionable section 1983 claim. Bender v. Brumley, 1 F.3d 271, 274 (5th Cir. 1993). Further, mere threatening language and gestures of a custodial officer do not amount to a constitutional violation. McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.); cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983) (quoting Coyle v. Hughs, 436 F. Supp. 591, 593 (W.D.Okla. 1977)). Consequently, the remarks plaintiff attributes to defendants REYNOLDS and RAINES will not support a claim of violation of plaintiff s constitutional rights.
As to plaintiff's claim that his five major disciplinary cases were false, plaintiff's request that the challenged disciplinary cases be expunged from his record leads the Court to conclude that these cases have never been reversed on appeal or called into question by a successful habeas action. To bring a section 1983 claim based simply on the filing of a false disciplinary charge, absent an allegation of retaliatory interference with the exercise of a constitutional right, a prisoner must show favorable termination prior to bringing suit. Woods v. Smith, 60 F.3d 1161, 1165 n. 16 (5th Cir. 1995) (citing Ordaz v. Martin, 5 F.3d 529 (5th Cir. 1993)(unpublished)). Plaintiff's pleadings demonstrate he cannot do so. It follows that he has not stated a claim on which relief can be granted.
As to all of plaintiff's remaining claims, 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).
CONCLUSION
Plaintiff's allegations fail to state a claim on which relief can be granted and his claims lack an arguable basis in law and are frivolous, as well as barred by plaintiff's failure to comply with the section 1997e exhaustion of administrative remedies requirement before filing the instant suit challenging prison conditions.
IT IS HEREBY ORDERED:
The referral of the instant cause to the United States Magistrate Judge is hereby withdrawn.
This Civil Rights Complaint is DISMISSED FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED, 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.
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