Opinion
2:01-CV-0114
September 28, 2001
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff LOUIS BENSON, 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 given permission to proceed in accordance with Title 28, United States Code, section 1915(b).
In brief, plaintiff alleges that, on August 17, 2000, just after midnight and about three hours after he had finished his work shift, he was ordered to report to work but that he "clarified the dilemma." Plaintiff states he was later ordered from his cell, threatened and intimidated by officers, and strip-searched. Afterwards, he was left for an unspecified amount of time in the holding cell without access to a bathroom and his requests were denied. He received a foodloaf for breakfast at about 6:30 a.m., which he refused, and officers refused to answer his questions, respond to his letter, or properly investigate his grievance. Plaintiff alleges he and two other inmates received disciplinary cases for refusing to report to 12 Building; however, the cases of the other two inmates were dismissed, while plaintiff's case went to a hearing and he received punishment of thirty days lost commissary and recreation privileges and thirty hours of extra duty.
Plaintiff concludes that he has suffered "abuse, dehumanization, indignation, sever [sic] disappointment handled as inappropriately" and states that TDCJ "still feel[s] and dissiminate[s] that Negro's [sic] are to be: held, owned kept forever; violations of the 8th, 5th, 14th amendments if the law is just."
Plaintiff requests $1,000.00 in "punitive sanctions" from each defendant and $1,000.00 from each defendant "for personal lucre to [plaintiff]."
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, AH 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 District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by the defendants.
THE LAW AND ANALYSIS
The focus of plaintiff s complaint appears to be the intimidating and sometimes, arguably, unprofessional treatment he received from the defendants. After he "clarified the dilemma" concerning the order that he report to work in 12 Building, plaintiff was ordered from his cell, then escorted to the recreation yard where he was handcuffed. Plaintiff feels the handcuffs were in violation of TDCJ procedure and was intimidated by this and the fact that he had been ordered to the recreation yard for the handcuffing. Then the sidewalks were ordered cleared to 12 Building, and plaintiff was taken to the 12 Building living area where he was ordered on his knees. There were many officers present, as well as two other inmates, each of whom was attended by two officers. One inmate began to struggle, and plaintiff alleges the inmate's arm was broken while he was being subdued. Plaintiff alleges he and the two inmates were then transferred to guards from the high security section of the unit. They were escorted to the transport section of high security and again ordered on their knees where they were subjected to threats by defendant Hamilton, such as being sprayed with pepper spray until they "burned and died like roaches."
The three inmates were then escorted to holding cells and subjected to a strip search. When plaintiff objected to part of the body cavity search, he was threatened with a use of force. While the assembled use-of-force team waited for the arrival of a supervisor to approve the use of force, plaintiff was subjected to lewd remarks as he stood naked in the holding cell. After plaintiff relented and complied with the body cavity search, more vulgar remarks followed as the use-of-force team left the area.
Certainly, some of the treatment recounted above was intimidating and other portions of it may have been unprofessional. Nevertheless, none of the treatment received by plaintiff violated the Eighth Amendment's prohibition against cruel and unusual punishment. It is clearly established that mere allegations of verbal abuse do not present an actionable section 1983 claim. Bender v. Brumley. 1 F.3d 271, 274 (5th Cir. 1993). 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. Hughes; 436 F. Supp. 591, 593 (W.D.Okla. 1977)). Consequently, the threats and vulgar remarks plaintiff alleges he endured will not support a claim of violation of plaintiff's constitutional rights.
Plaintiff also claims he was denied the use of toilet facilities for an undisclosed amount of time; however, plaintiff does not allege this caused him any pain, discomfort, or embarrassment. In fact, plaintiff's pleading contains no further mention of the fact and does not specify the defendant(s) who denied his requests. Plaintiff has utterly failed to state a claim on which relief can be granted.
Plaintiff's claim that he was denied breakfast is refuted by his own allegations; he was given a foodloaf. In its prohibition of "cruel and unusual punishments," the Eighth Amendment imposes certain duties on prison officials, who must ensure that inmates receive, among other things, adequate food. Farmer v. Brennan. 511 US. 825, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer. 468 U.S. 517, 526-527, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)). See, also. Newman v. Alabama. 559 F.2d 283, 286 (5th Cir. 1977) (state must furnish its prisoners with reasonably adequate food). The meals must be well-balanced and contain nutritional value to preserve health. Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977). A prison system is not, however, required to provide inmates with three meals a day, Green v. Ferrell. 801 F.2d 765, 770 (5th Cir. 1986); and the fact that food occasionally contains a foreign object or is cold does not amount to a constitutional violation. Hamm v. DeKalb County, 774F.2d 1567, 1575 (5th Cir. 1985). Plaintiff does not allege he suffered any harm, such as a nutritional deficit, from the one-time serving of a foodloaf. Consequently, plaintiff has failed to state an Eighth Amendment claim on which relief can be granted.
Plaintiff complains that two officers refused to give him information while he was in the holding cell, that Warden PRICE failed to respond to his letter of complaint, and that Warden WALKER failed to adequately investigate or resolve his grievance. Plaintiff has no federally-protected right which would require the guards to give him information upon demand or for Warden PRICE to answer his letter of complaint. Further, inasmuch as the result of his grievance had no bearing on the duration of his confinement, the plaintiff cannot show the existence of a state-created liberty interest in an inmate grievance procedure. See. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995).
Likewise, plaintiff's remaining due process claims concerning his disciplinary case and the hearing lack an arguable basis in law because plaintiff has no federally-protected due process rights in that connection. Again, in the wake of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), a prisoner has a liberty interest only in "freedom[s] from restraint . . . imposing] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," and these will normally consist of deprivations which clearly impinge on the duration of confinement. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2294, 132L.Ed.2d418 (1995)). Thus, plaintiff's due process 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).
The Sandin Court expressly recognized the unusual deprivations inVitek v. Jones. 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552(1980) (transfer to a mental hospital), and Washington v. Harper, 494 U.S. 210, 110S.Ct. 1028, 108L.Ed.2d 178 (1990) (forcible administration of psychotropic drugs), also involved a liberty interest.
Plaintiff's complaint that he received a determination of guilt and punishment in his disciplinary case while two other inmates given the same disciplinary charge had their cases dismissed does not state a claim of any sort. To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class or due to an irrational or arbitrary state classification unrelated to a legitimate state objective. Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051-52, 48 L.Ed.2d 597 (1976); Stem v. Tarrant County Hospital District. 778 F.2d 1052 (5th Cir. 1985), cert. denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986). Although plaintiff may be attempting to assert an Equal Protection claim, he does not allege that the different results were due to a difference in their racial, religious, or ethnic backgrounds, or, in fact, to any other specific classification. There in nothing in his allegations from which the Court can infer that there was any difference between the three inmates except that plaintiff appears to have been more uncooperative than the other two. Thus, plaintiff has failed to assert any Equal Protection claim.
Plaintiff's conclusory claims of conspiracy and racial animus lack any supporting factual allegations. In the context of actions arising under Title 42, United States Code, section 1983, a plaintiff is required to state specific facts rather than conclusory allegations in his complaint. O'Quinn v. Manuel, 773 F.2d 605 (5th Cir. 1985). Conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied. 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990); or to support claims of malice,Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995).
CONCLUSION
IT IS HEREBY ORDERED:
The referral of the instant cause to the United States Magistrate Judge is hereby withdrawn.
Pursuant to Title 28, United States Code, section 1915(e)(2), this Civil Rights Complaint is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FORFAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
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 Claire Laric, at the United States District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.