Opinion
7:01-CV-254-R
August 11, 2002
ORDER OF DISMISSAL
Came on to be considered the papers and pleadings filed in this action and the Court ends and orders as follows:
This is an action filed pursuant to 42 U.S.C. § 1983 by an inmate currently confined in the Dolph Briscoe Unit of the Texas Department of Criminal Justice ("TDCJ") in Dilley, Texas. The complaint was originally filed in the U.S. District Court for the Western District of Texas, Austin Division. Upon preliminary review, process was issued and an answer was filed in the Western District. Defendants then moved to transfer the case to the Northern District of Texas, Wichita Falls Division. The motion was granted. On August 26, 2002, this Court noted that there had been no inquiry into Plaintiff's factual allegations as permitted bylaw as part of the judicial screening process for civil actions filed by inmates. That day, the Court issued a questionnaire in an effort to flesh out the facts underlying Plaintiff's claims. Plaintiff filed his answers to the Court's questions on September 17, 2002.
See 28 U.S.C. § 1915A(a); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiffs complaint).
In his complaint, Tweedy presents twenty seven different claims related to his continued imprisonment and the conditions of his confinement. See Statement of Claims, attached to Complaint. Re seeks monetary damages and injunctive relief. See Statement of Relief, attached to Complaint. In his first five claims, Plaintiff raises allegations of unlawful confinement. He alleges that Texas Attorney General John Cornyn has violated the Texas Government Code section 552.029 by refusing to release information related to Plaintiffs continued incarceration. Plaintiff's Answer to the Court's Question No. 1. Tweedy seeks redress against Defendant Gerald Garrett) Chairman of the Board of Pardons and Paroles, for failing to provide him with copies of his prison records and for transferring him to the Robertson Unit when Garrett allegedly knew that the TDCJ computer showed Plaintiff's sentence under a prior TDCJ-ID number as discharged. Plaintiffs Answer to the Court's Question No. 2. Finally, Tweedy seeks to hold Janie Cockrell, Director of the Texas Department of Criminal Justice, Institutional Division, liable under the Civil Rights Act for incarcerating him past his mandatory discharge date. Plaintiff's Answer to the Court's Question No. 3. Plaintiff states specifically that he has advised all three Defendants that he has fully discharged his sentence and that he is not receiving proper time credits. Id.
When a successful civil rights action would necessarily imply the invalidity of a plaintiffs incarceration the complaint must be dismissed unless the plaintiff demonstrates that the decision resulting in his confinement has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994). Plaintiff has failed to demonstrate that the decision resulting in his current confinement has been reversed, expunged or otherwise invalidated. Accordingly, his civil tights claims related to his continued confinement are subject to dismissal as no cause of action has accrued under § 1983.
Where a § 1983 plaintiffs claims attack the fact or duration of his confinement and such claims ate dismissed under Heck v. Humphrey, the dismissal should be "with prejudice." Boyd v. Riggers, 31 F.3d 279, 284 (5th Cir. 1994); Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994).
In addition to his allegations that Defendants have refused to provide him with documentation relating to his confinement, Tweedy claims that Cornyn has failed to investigate and provide information involving alleged unlawful H.I.V. testing, that Cornyn has failed to investigate Plaintiff's claim that he is unlawfully incarcerated and that he has failed to investigate nepotism in the state prison system, all in violation of state law. Plaintiff's Answer to the Court's Question No. 1.
Tweedy's claims against Defendants for their alleged violation of the Texas Government Code in failing to provide him with copies of documents and for failing to initiate investigations upon demand do not state a claim under the Civil Rights Act. Where a violation of state law results in a constitutional violation, a plaintiff may have a cause of action under the Civil Rights Act. Doe v. Taylor Independent School Dist., 15 F.3d 443, 464 (5th Cir.) (citing Miller v. Carson, 563 F.2d 757, 760 n. 7 (5th Cir. 1977) and Sims v. Adams, 537 F.2d 829, 831-32 (5th Cir. 1976)), cert. denied, 513 U.S. 815, 115 S.Ct. 70 (1994). However, if no constitutional deprivation is established there can be no liability under § 1983. Allegations of violations of state law, without more, are insufficient to maintain a constitutional claim. See e.g., Daniels v. Williams, 474 U.S. 327, 332-33, 106 S.Ct. 662, 666 (1986) (noting that violations of state law do not become constitutional violations just because the defendant is a state official); Taylor v. Sterrett, 600 F.2d 1135 (5th Cir. 1979) (requiring district court that had intervened on basis of state law violation to discontinue exercise of its jurisdiction and dismiss the cause); Diamond v. Thompson, 364 F. Supp. 659, 662 (M.D. Ala. 1973) (stating that federal courts "will intervene in the administration of the prison system only where it is necessary to preserve constitutional rights."), aff'd, 523 F.2d 1201 (5th Cir. 1975). Assuming the truth of Plaintiff's allegations, his claims of state law violations simply do not rise to the level of constitutional violations. Moreover, Tweedy has no constitutional right for Defendants to initiate investigations upon his demand.
Plaintiff's remaining claims involve allegations of adverse conditions of confinement and a conspiracy by Defendants to unlawfully incarcerate him under adverse conditions in an effort to collect state and federal taxes. Statement of Facts, attached to Complaint; Plaintiff's Answer to the Court's Question No. 4.
In a cause of action under § 1983, it is necessary to specify the personal involvement of each defendant. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 464 U.S. 897, 104 S.Ct 248 (1983). A plaintiff cannot make generalized allegations. Howard v. Fortenberry, 723 F.2d 1206, 1209 (5th Cir.), vacated in part on denial of rehearing, 728 F.2d 712 (5th Cir. 1984). There must be an affirmative link between the deprivation and some act by the defendant. Rizzo v. Goode, 423 U.S. 362, 375-77, 96 S.Ct. 598, 606-07 (1976). The Court has the power to pierce the veil of a pro se plaintiff's allegations and dismiss those claims whose factual contentions are clearly baseless. Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir.), cert. denied, 513 U.S. 883, 115 S.Ct. 220 (1994). Although in forma pauperis complaints are to be construed liberally, the Court is bound by the allegations of the complaint and is not free to speculate that a plaintiff might be able to state a claim if given yet another opportunity to add more facts. Id.
Tweedy was given the opportunity to expound on the factual allegations of his complaint by way of questionnaire. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal as frivolous is proper). Although given the opportunity, he failed to articulate facts which would demonstrate a constitutional deprivation with regard to his conditions of confinement by any Defendant named in this action. See Plaintiff's Answers to the Court's Questions No. 1-4. To the extent, if any, that Plaintiff's claims against Cornyn, Garrett and Cockrell are grounded in negligence, he cannot succeed. Allegations of negligence do not present a cognizable basis for relief under the Civil Rights Act. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986) (holding that negligence is not actionable under § 1983); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986) (same).
Similarly, Plaintiff's claim of a conspiracy among Defendants to deprive him of his constitutional rights must fail. Tweedy offers no detailed, concrete operative facts upon which to base his claims that these Defendants were involved in a conspiracy. See Plaintiff's Answer to the Court's Question No. 4. Assertions of a conspiracy, without facts to support such allegations are insufficient to state a colorable claim under § 1983. Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991). Tweedy's conclusory allegations are, therefore, insufficient to maintain this action. See Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."). Accordingly, his claim of conspiracy is subject to dismissal. See e.g., Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (affirming the dismissal as frivolous a plaintiff's global allegations of a conspiracy between a state district judge and a prosecuting attorney); Pete v. Metcalfe, 8 F.3d 214, 216-17 (5th Cir. 1993) (affirming dismissal of § 1983 complaint against private defendants where the plaintiff failed to allege facts sufficient to demonstrate that the defendants were "willful participant[s] in joint action with the State or its agents"); Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992) (upholding dismissal of conclusory allegations of conspiracy as frivolous); Turner v. Upton County, Tex., 967 F.2d 181, 186 (5th Cir. 1992), (holding that global allegations of conspiracy, unsubstantiated with any supporting evidence, were insufficient to support an inference that a county official had conspired with a private party to plant evidence and maliciously prosecute the plaintiff).
To the extent, if any, that Plaintiff seeks redress against Defendants because of their supervisory positions, he has failed to state a claim. It is well settled that there is no respondeat superior liability under § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978). Cornyn, Garrett and Cockrell cannot be held liable under § 1983 simply because they head state agencies. Absent a claim that Defendants have deprived him of some right secured by the United States Constitution or laws, Tweedy's civil rights complaint must fail. Thomas v. Torres, 717 F.2d 248, 249 (5th Cir. 1983), cert. denied, 465 U.S. 1010, 104 S.Ct. 1008 (1984).
A district court may dismiss a complaint filed in forma pauperis if it determines that the action is frivolous 28 U.S.C. § 1915 (e)(2)(B)(i). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is "based on indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar present no arguable basis for recovery under federal law.
IT IS THEREFORE ORDERED that Plaintiff's civil rights claims regarding conditions of confinement are hereby dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).
IT IS FURTHER ORDERED that Plaintiff's civil rights claims attacking the validity of his confinement are hereby dismissed as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) with prejudice to their being asserted again until the conditions set forth in Heck v. Humphrey are met
IT IS FURTHER ORDERED that, to the extent Plaintiff's complaint presents claims cognizable in a habeas proceeding, such claims are hereby dismissed without prejudice to his right to seek federal habeas relief alter exhausting state habeas remedies.
See Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982) (requiring exhaustion of available state court habeas corpus remedies before a. federal court should consider the merits of a state prisoner's claims).
A copy of this order shall be transmitted to Plaintiff.
SO ORDERED.