Opinion
2:01-CV-0421
April 8, 2004
REPORT AND RECOMMENDATION
Plaintiff DANNY LYNN ATCHLEY, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff complains that, on August 6, 2001, defendants HERD and MARTINEZ broke up a fight between two white inmates and one black inmate, handcuffed them, and placed them in "Deep-space." Defendant HERD then ordered the picket officer to open all the doors to the cells on one and two rows and continued to let inmates out for work. HERD found a weapon lying on the floor and removed it to "Deep-space." Several black inmates then attacked several other white inmates. As a result, plaintiff says, he suffered a concussion and facial lacerations which required off-unit medical treatment.
Plaintiff complains HERD and MARTINEZ failed to place the inmates back in their cells after the weapon was found and before the second attack. Plaintiff also complains defendant UPSHAW let the white inmates be placed in closed custody and shipped although the black inmates remained in medium custody and were not transferred. Plaintiff received a case for fighting, white inmates against black inmates.
Plaintiff requests his disciplinary case be overturned, "all privileges be granted," a $5,000.00 monetary award for mental anguish, and that the officers be retrained and a written reprimand be placed in their personnel files.
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, Denton 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 Magistrate Judge has reviewed plaintiff's original Complaint, as well as his March 28, 2002, response to the Court's questionnaire, and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
By his March 28, 2002, response to the Court's Questionnaire, plaintiff informs the Court he is attacking disciplinary case no. 20010334700 and the consequent loss of 735 days of accumulated goodtime credits, as well as classification demotion and the loss of various privileges. A claim for good-time credits is foreclosed by Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and plaintiff must seek such relief through habeas. Wolff v. McDonnell, 418 U.S. 538, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1973).Plaintiff's allegations against defendants HERD and MARTINEZ resemble tort claims for negligence; however, section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986).
By his complaint that defendant UPSHAW did not prevent the reclassification and transfer of the white inmates, plaintiff seeks to attack the disciplinary case outcome, in which he argued he was only defending himself from attack, not participating in a riot. To grant any of the relief plaintiff requests, the Court would have to determine the challenged disciplinary charge or the subsequent hearing was invalid. In the wake of Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 1589, 137 L.Ed.2d 906 (1997), the Heck doctrine is now applied to the prison disciplinary setting. For this reason, plaintiff's claim is not cognizable under section 1983 without a prior showing of favorable termination, that is, that the results of the disciplinary hearing have already been overturned, either on administrative appeal, through habeas, or by some other means. See, also, 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 pleading affirmatively demonstrates that his disciplinary case has not been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). Consequently, plaintiff's claims in this respect lack an arguable basis in law and are frivolous until the Heck conditions have been met. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994).
To bring a section 1983 claim based simply on the filing of a false or invalid 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)). Drawing an analogy with malicious prosecution, the Fifth Circuit reasoned that absent proof of favorable termination there was no arguable basis for finding the violation of a federally protected right. Id. Plaintiff is clearly attacking the results of the hearing on the disciplinary charge which he asserts was invalid. The Court cannot grant the relief plaintiff requests without first finding the disciplinary charge or the subsequent hearing on that charge to have been invalid. Plaintiff's claim clearly falls within the scope of those discussed by the Woods court. Consequently, plaintiff must demonstrate a favorable termination of the challenged disciplinary charge before he can assert a section 1983 claim on the basis that the charge was invalid.
CONCLUSION
For the reasons set forth above and pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff DANNY LYNN ATCHLEY, be DISMISSED FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED and as FRIVOLOUS UNTIL THE HECK CONDITIONS HAVE BEEN MET. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)( en banc).
IT IS SO RECOMMENDED.