Opinion
2:01-CV-0203
February 19, 2004
REPORT AND RECOMMENDATION OF PARTIAL DISMISSAL
Plaintiff OLLIE BROWN, 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 claims defendants NINO, OTTS, and NEWKIRK exercised excessive and unnecessary force against him on February 26, 2001, injuring his head and leaving him with headaches and vision problems. Plaintiff also alleges defendants NINO and OTTS refused to feed him his lunch and dinner meals on the date of the use of force.
Plaintiff requests a unit transfer, and for relief for his mental anguish, as well as costs.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or from an 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 and his amended complaints, as well as his response to the Court's August 7, 2000, Briefing Order, to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Initially, the Court notes plaintiff has not specified whether he is suing defendants in their official or individual capacities; however, he appears to request is an award of monetary damages.
A suit against an official in his official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). The Eleventh Amendment bars suit against a state or a state official unless the State has waived its immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). An exception to this general principle was created in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in which the Supreme Court held that a suit for prospective injunctive relief, challenging the constitutionality of a state official's action in enforcing state law, is not one against the State. Id., at 159-160, 28 S.Ct., at 453-54. See, also, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (the Eleventh Amendment grants the States an immunity from retroactive monetary relief, but state officers are not immune from prospective injunctive relief). To the extent plaintiff requests monetary relief from defendants NINO, NEWKIRK, and OTTS in their official capacities, plaintiff's claims lack an arguable basis in law and are frivolous.
Further, the eligibility of the Texas Department of Criminal Justice for Eleventh Amendment immunity is settled law in this circuit. Harris v, Angelina County, 31 F.3d 331, 338 n. 7 (5th Cir. 1994); see, Loya v. Texas Department of Corrections, 878 F.2d 860, 861 (5th Cir. 1989). Therefore, the Texas Department of Criminal Justice is not a "person" within the meaning of section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). Plaintiffs claim against the Texas Department of Criminal Justice for monetary damages is barred by sovereign immunity and, thus, lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
To the extent the Ex parte Young exception might apply, it is with respect to plaintiffs request for a transfer; however, plaintiff has sued TDCJ-ID, not an official of that entity. To meet the Ex parte Young exception to Eleventh Amendment immunity, a plaintiffs suit must be brought against individual persons in their official capacities as agents of the state, and the relief sought must be declaratory or injunctive in nature and prospective in effect. Aguilar v. Texas Department of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). As an instrumentality of the state, TDCJ enjoys immunity from plaintiffs suit on Eleventh Amendment grounds. Thus, plaintiffs claim against TDCJ lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
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 Claims against TDCJ and the Civil Rights Claims for monetary damages against defendants NINO, NEWKIRK, and OTTS in their official capacities filed pursuant to Title 42, United States Code, Section 1983, by plaintiff OLLIE BROWN be DISMISSED WITH PREJUDICE AS FRIVOLOUS.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to any attorney of record, utilizing the inmate correspondence reply card or certified mail, return receipt requested, as appropriate. 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.
This Report and Recommendation does not affect plaintiffs Eighth Amendment claims for monetary relief against defendants NINO, NEWKIRK, and OTTS in their individual capacities.