Opinion
No. 2:04-CV-0266.
April 13, 2005
REPORT AND RECOMMENDATION TO DISMISS CLAIMS AGAINST DEFENDANT WARD
Plaintiff VICTOR L. BROWN, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions 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.
By his original complaint and his December 6, 2004 supplemental complaint, plaintiff claims defendants NUNN and HASKINS failed to protect him from attack by other inmates in violation of his constitutionally protected rights. Plaintiff also claims his Step 2 grievance concerning the May 10, 2004 denial of his request for protection was denied by defendant WARD on June 23, 2004.
Plaintiff requests declaratory relief, compensatory damages of $20,000.00 against each defendant and punitive damages of $40,000.00 against each defendant.
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).The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint and at the October 14, 2004 Spears hearing to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff's claim against defendant WARD is for failing to investigate or resolve plaintiff's complaint satisfactorily. The narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Inasmuch as the result of this grievance has 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).
Plaintiff's claim against defendant WARD 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 defendant KELLI WARD 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 by first class mail.
IT IS SO RECOMMENDED.