Opinion
Civil Action No. 1:04-CV-195-C.
August 27, 2004
ORDER
On May 28, 2003, Plaintiff, Timothy Randolph Wallace, filed a "Motion for Leave to File Civil Action" in the United States District Court for the Northern District of Texas, Dallas Division. Plaintiff submitted his proposed complaint under 42 U.S.C. § 1983, along with his motion for leave. Plaintiff acknowledged that he was barred from filing a new civil action without permission from the Court because of a previous sanction. A miscellaneous case was opened and his motion was assigned Miscellaneous Action No. 3:03-MC-060-M.
Plaintiff also submitted an Application to Proceed In Forma Pauperis; however, although his application was received by the Dallas Clerk on May 28, 2004, it was not filed. The original application dated May 23, 2004, was discovered in the Court's copy file upon transfer of the case to this Court.
Plaintiff's proposed complaint named the following Defendants: (1) Janie Cockrell, Director, TDCJ-ID; (2) Leon Guinn, Director, Internal Affairs; (3) Allan Polunski, Chairman, Texas Criminal Justice Policy Council; and (4) William Gonzalez, M.D., Medical Director, Texas Tech University Health Science Center.
Miscellaneous Civil Action No. 3:03-MC-060-M listed only one Defendant — Janie Cockrell, Director, TDCJ-ID.
It is unknown by this Court why the other three Defendants were not listed on the docket sheet.
On June 9, 2004, the Clerk received and filed an application to proceed in forma pauperis which was dated May 29, 2003. Plaintiff filed a Motion for Leave to File an Amended Complaint on June 24, 2003.
The miscellaneous case was referred to a United States Magistrate Judge, who entered Findings, Conclusions and Recommendation on July 3, 2003, recommending that Plaintiff's motion to proceed in forma pauperis be denied. It was found that Plaintiff was barred under the three-strikes provisions of 28 U.S.C. § 1915(g) from proceeding in forma pauperis unless he could show that he was in imminent danger of serious physical injury. Plaintiff alleged that he was in imminent danger of serious physical injury because he had been placed in integrated cells with black inmates; however, it was found that he had previously raised the same claim in a prior lawsuit filed in 2002. Plaintiff also claimed that he was in imminent danger of serious bodily injury because he had cut his wrists; however, the Magistrate Judge found that this claim had also been previously raised.
Further, the Magistrate Judge found that Plaintiff's claims of being fed a food loaf and meatless food tray, not being allowed to see a specialist, being taken off certain medications, and lack of treatment for his thyroid condition were all insufficient to establish that he was in imminent danger of serious bodily injury.
The District Court adopted the findings on August 5, 2003, Plaintiff's motion to proceed in forma pauperis was denied, and Plaintiff was ordered to pay the filing fee if he desired to pursue his claims.
Plaintiff paid the filing fee on September 3, 2003. By Order entered on November 10, 2003, Miscellaneous Action No. 3:03-MC-060-M was converted to a civil case and assigned Civil Action No. 3:03-CV-2739-M. Plaintiff was ordered to serve the "Defendant." "Janie Cockrell" was the only Defendant named in the caption of the Order. On November 13 a docket entry terminates Janie Cockrell as the Defendant and Douglas Dretke, Director, TDCJ-CID was substituted as the Defendant. Summons forms were mailed to Plaintiff by the Clerk's office.
Plaintiff's proposed civil rights complaint dated May 23, 2003, was never filed. Thereafter, on December 15, 2003, a civil rights complaint was filed. This complaint is dated December 10, 2003, and names the following as Defendants: (1) Doug Dretke, Director, TDCJ-ID; (2) Leon Guinn, Director, Internal Affairs; (3) Allan Polunski, Chairman, Texas Criminal Justice Policy Council; and (4) William Gonzalez, M.D., Medical Director, Texas Tech University Health Science Center. The allegations in the December 10, 2003 complaint are the same as those in the May 23, 2003 complaint; however, the complaint filed by the Clerk on December 15 has an additional page attached to the complaint titled "Amended Complaint [and] Jury Trial Demanded." Attached to the May 23 proposed complaint, which was never filed, were three TDCJ grievance forms. These forms were not attached to the complaint dated December 10 and filed on December 15. In addition, the "Amended Complaint" attached to the civil rights complaint filed on December 15 did not contain the three exhibits which were attached to the original proposed amended complaint which was submitted with the June 24 motion for leave to file. Again, Defendants Guinn, Polunski, and Gonzalez were not added to the docket sheet.
The original and one copy of the proposed complaint were discovered in the Court's copy file when this case was transferred to this Court.
The best this Court can determine, which is gleaned from Plaintiff's objections filed on April 13, 2004, on or about December 10, 2003, he mailed five copies of the complaint dated December 10, with attached amended complaint, to the Clerk, along with a different summons form for each of the four Defendants. The additional copy was for the Court. Apparently, the Court's copy was filed as Plaintiff's civil rights complaint on December 15, 2003. On December 16, 2003, the following docket entry appears: "issued four summons and mailed with his four copies of his amended Complaint to Timothy Wallace."
Again, the original of the proposed Amended Complaint, with exhibits, was discovered in the Court's copy file upon transfer to this Court.
On December 18, 2003, an Order was entered granting Plaintiff's motion for leave to file a civil action and motion for leave to file an amended complaint. The proposed original and amended complaints were not filed.
On March 22, 2004, the Magistrate Judge recommended that Plaintiff's civil action be dismissed without prejudice because Plaintiff had failed to effect service on the "Defendants." On April 13, 2004, the District Court, noting that no objections had been filed, accepted the Magistrate Judge's findings and the complaint was dismissed without prejudice. Plaintiff had filed objections on April 12, 2004. The judgment entered on April 13 was vacated, Plaintiff was ordered to serve "Defendants," and the Clerk was ordered to send summons forms to Plaintiff. Although there is no entry on the docket sheet noting that the Clerk mailed summons forms to Plaintiff, Defendant Douglas Dretke filed an Answer on July 23, 2004; however, no answer has been filed by Defendants Guinn, Polunski, and Gonzalez, and this Court is unable to determine if the Clerk mailed summons forms to Plaintiff for these three Defendants.
On July 30, 2004, Civil Action No. 3:03-CV-2739-M was transferred to this Court and assigned Civil Action No. 1:04-CV-195-C.
Although Plaintiff paid the filing fee of $150, his complaint is subject to judicial screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579 (5th Cir. 1998) (The judicial screening requirement of § 1915A "applies to any suit by a prisoner against certain government officials or entities regardless of whether that prisoner is or is not proceeding IFP.") Section 1915A provides in pertinent part:
The court shall review . . . 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 is immune from such relief.
A court may sua sponte dismiss the complaint if the court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." See 42 U.S.C. § 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 complaint is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
This Court has reviewed the Plaintiff's complaint, amended complaint, exhibits attached to the proposed original and amended complaints, and numerous "unsworn declarations" filed by Plaintiff in this civil action.
The original exhibits are being delivered to the Clerk, simultaneously herewith, to be filed in this civil action as "Plaintiff's exhibits to his original and amended complaints."
A plaintiff in a § 1983 action must plead 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). A district court is bound by the allegations in a plaintiff's 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 94, 97 (5th Cir. 1994).
Plaintiff alleges:
(1) Defendant Dretke is "responsible for security within the Texas prison [and] ultimately responsible for the treatment and supervision of Texas prison inmates."
(2) Defendant Gonzalez is "ultimately responsible for the medical staffs (sic) treatment of Texas prison inmates (psychiatric treatment being a serious medical need).
(3) Defendant Guinn is "responsible for immediately investigating criminal activity within TDCJ-ID . . . [and] he is ultimately responsible in whatever investigations are conducted by his subordinates into matters referred to him concerning staff misconduct within Texas prisons."
(4) Defendant Polunski is "responsible for policy-making within TDCJ-ID."
Plaintiff seeks declaratory and injunctive relief and monetary damages against each Defendant in "a respondeat superior theory analogy." No personal involvement is alleged as to Defendants Dretke, Guinn, or Polunski. The only personal involvement alleged against Defendant Gonzalez is that Gonzalez had personal knowledge of Plaintiff's "physical injuries to his back and neck" because Plaintiff wrote him a personal letter, to which Gonzalez responded that Plaintiff was being treated properly. Plaintiff alleges that he has been denied his right to be free of cruel and unusual punishment because the Defendants have failed "to curb the actions of their subordinates or act in their official capacities in the matters stated, and which will continue to be a pattern that violates plaintiff's rights under the current policies and procedures in any future investigation into staff misconduct that is conducted."
Plaintiff alleged that
(1) he was forced into integrated cells with black inmates in September 2000 which resulted in a "use of force and [his] being hit and kicked in the head while handcuffed";
(2) officers ran into his cell in September 2001 with night sticks and threw an unknown substance in his face;
(3) he was involved in a use of force in October 2, 2002, resulting in injuries and a false disciplinary case being filed against him for assault on an officer;
(4) he was taken off psychiatric medication when he was transferred to the Robertson Unit;
(5) he was put on food loaf at the Robertson Unit, which caused him to cut his wrist;
(6) he was denied psychiatric treatment;
(7) he lost two pounds from May 7, 2003, to May 14, 2003, and he was refused a "weight-gain" diet;
In paragraph 11 of his complaint, Plaintiff says he weighed 162 pounds on May 7 and 160 pounds on May 14; however, in paragraph 12 he says he weighed 178 pounds on May 24, 2003.
(8) he was gassed while he was in a "strip cell" without warning;
(9) he was denied the opportunity to see a specialist;
(10) he was placed in administrative segregation in September 2000 after a false disciplinary case was filed against him "during a forced integrated cell move, and in retaliation for [his] religious beliefs"; and
(11) he has a thyroid condition that is not being treated because his thyroid has tested normal.
None of the Defendants is alleged to have been personally involved in any of the alleged acts stated in paragraphs (1)-(11) above.
The Eleventh Amendment bars Plaintiff's suit seeking money damages against Defendants in their official capacities. Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) ("As an instrumentality of the state, the TDCJ-ID is immune from a suit for money damages under the Eleventh Amendment."). "The Eleventh Amendment also bars a suit against a state official when `the state is a real, substantial party in interest.'" Id. (quoting Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 101-102 (1984) (citations omitted)). Thus, "[s]tate officers sued for damages in their official capacity are not `persons' for purposes of the [§ 1983] suit because they assume the identity of the government that employs them." Hafer v. Melo, 502 U.S. 21, 27 (1991).
"Supervisory officials may be held liable only if they (1) affirmatively participate in acts that cause constitutional deprivations; or (ii) implement unconstitutional policies that causally result in plaintiff's injury." Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992); Breaux v. City of Garland, 205 F.3d 150, 161 (5th Cir. 2000) (supervisor's conduct must directly cause a constitutional violation or the supervision must be deliberately indifferent to a violation of a constitutional right).
"Vicarious liability does not apply to § 1983 claims." Pierce v. Texas Dept. of Crim. Justice, Inst. Div., 37 F.3d 1146, 1150 (5th Cir. 1994). The acts of a subordinate "trigger no individual § 1983 liability." Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314 (5th Cir. 1999). A supervisory official cannot be held liable under 42 U.S.C. § 1983 on any theory of vicarious liability or respondeat superior. Thompson v. Belt, 828 F.2d 1146, 1150 (5th Cir. 1987).
Plaintiff must show that a particular individual defendant was personally involved in the alleged constitutional violation in order to prevail against such defendant. Id.; Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) ("Personal involvement is an essential element of a civil rights cause of action.").
To demonstrate deliberate indifference to his medical needs, an inmate must show that a defendant official refused to treat him, ignored his complaints, intentionally treated the inmate incorrectly, or "engaged in any similar conduct that would evince a wanton disregard for any serious medical need." Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
Plaintiff has not demonstrated that any of the Defendants implemented unconstitutional policies or that any of them "affirmatively participated in acts that caused constitutional deprivation." See Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) ("In order to state a cause of action under § 1983, the plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged."); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986) ("There is no supervisory liability without primary liability.").
The Court finds that Plaintiff's complaint and all claims alleged therein should be dismissed as frivolous and for failure to state a claim.
It is, therefore, ORDERED:
(1) The Clerk shall add the following as Defendants in this civil action: (1) Leon Guinn, Director, Internal Affairs; (2) Allan Polunski, Chairman, Texas Criminal Justice Policy Council; and (3) William Gonzalez, M.D., Medical Director, Texas Tech University Health Science Center.
(2) The Clerk shall file the original exhibits delivered herewith as Plaintiff's exhibits to his original and amended complaints.
(3) Plaintiff's complaint and all claims alleged therein are dismissed as frivolous and for failure to state a claim.
(4) This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915A and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
(5) A copy of this Order shall be mailed to the Office of General Counsel, TDCJ-ID Litigation Support, P.O. Box 13084, Austin, Texas 78711.
(6) Any pending motions are denied.
Judgment shall be entered accordingly.