Opinion
Civil Action H-23-0300
05-11-2023
ANDREW BURKE, Inmate #00242515, Plaintiff, v. LT. SCOTT SOLAND, Defendant.
MEMORANDUM OPINION ORDER
SIM LAKE, SENIOR UNITED STATES DISTRICT JUDGE
The plaintiff, Andrew Burke (Inmate #00242515), has filed a Prisoner's Civil Rights Complaint under 42 U.S.C. § 1983 ("Complaint")(Docket Entry No. 1), concerning an incident that occurred during his confinement at the Fort Bend County Jail in Richmond, Texas. Because Burke is a prisoner who proceeds in forma pauperis, the court is required by the Prison Litigation Reform Act ("PLRA") to scrutinize the claims and dismiss the Complaint, in whole or in part, if it determines that the Complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2) (B). After considering all of the pleadings, the court concludes that this case must be dismissed for the reasons explained below.
I. Background
Burke is currently confined at the Fort Bend County Jail as a pretrial detainee. Public records from the Fort Bend County District Clerk's Office confirm that he has been charged with indictments for several serious felonies, including: (1) aggravated assault with a deadly weapon in Case No. 21-DCR-097693; (2) assault on a public servant in Case No. 21-DCR-097923; and (3) solicitation of capital murder for remuneration in Case No. 22-DCR-099866. He was also charged recently with misdemeanor assault causing bodily injury in Case No. 23-CCR-231922.
Complaint, Docket Entry No. 1, p. 3. For purposes of identification, all page numbers refer to the pagination imprinted by the court's electronic filing system, CM/ECF.
See Fort Bend County District Clerk's Office, available at: https://www.tylerpaw.co.fort-bend.tx.us (last visited May 9, 2023).
See id.
Burke has filed this lawsuit against Lieutenant Scott Soland, who works at the Jail. Burke alleges that Lieutenant Soland was escorting him to see a "treatment team" when Soland displayed a "C. I.A. badge as a form of intimidation." Burke contends that Soland threatened to go to court for purposes of forcibly medicating Burke with anti-psychotic medication (Haldol) . Burke claims that Soland then "grabbed [Burke's] behind" and threatened to rape him in the future. Burke alleges that Soland also threatened to kill him if he did not cooperate.
Complaint, Docket Entry No. 1, p. 3.
Id. at 4.
Id. The court takes judicial notice of "Mental Health Sick Calls" submitted in another lawsuit filed by Burke, which disclose that he has a mental health disorder and has repeatedly refused medication. See Exhibits in Burke v. Mundin, Civil No. H-22-4364 (S.D. Tex.) (Docket Entry No. 12, pp. 3, 5-6).
Complaint, Docket Entry No. 1, p. 4.
Id.
Exhibits attached to the Complaint show that Burke filed three grievances against Lieutenant Soland, accusing him of sexual abuse in connection with this incident, which reportedly occurred on January 2, 2023. The grievances were assigned to a "PREA Investigator" (referring to the Prison Rape Elimination Act), who determined that Burke's allegation of sexual abuse was "Unfounded" after interviewing witnesses and viewing surveillance footage.
Inmate Grievances attached to Complaint, Docket Entry No. 1, pp. 7-9.
Fort Bend County Sheriff's Office, Detention Bureau Investigations Unit Memorandum dated January 9, 2023, attached to Complaint, Docket Entry No. 1, p. 6 (emphasis in original).
Invoking 42 U.S.C. § 1983, Burke accuses Lieutenant Soland of "aggravated sexual assault" as well as making "death threats" against him. Burke seeks immediate release from custody and $50,000,000.00 in damages. The court concludes, however, that the Complaint must be dismissed because Burke fails to articulate a claim upon which relief may be granted under 42 U.S.C. § 1983.
Complaint, Docket Entry No. 1, p. 3.
Id.
II. Standard of Review
Federal district courts are required by the Prison Litigation Reform Act ("PLRA") to screen prisoner complaints to identify cognizable claims or dismiss the complaint if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. See Crawford-El v. Britton, 118 S.Ct. 1584, 1596 (1998) (summarizing provisions found in the PLRA, including the requirement that district courts screen prisoners' complaints and summarily dismiss frivolous, malicious, or meritless actions); see also Coleman v. Tollefson, 135 S.Ct. 1759, 1761-62 (2015) (discussing the screening provision found in the federal in forma pauperis statute, 28 U.S.C. § 1915(e)(2), and reforms enacted by the PLRA that were "'designed to filter out the bad claims [filed by prisoners] and facilitate consideration of the good'") (quoting Jones v. Bock, 127 S.Ct. 910, 914 (2007)) (alteration in original).
A complaint is frivolous if it "'lacks an arguable basis either in law or in fact.'" Denton v. Hernandez, 112 S.Ct. 1728, 1733 (1992) (quoting Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989)). "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist." Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (citations and internal quotation marks omitted). "A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998)(citation omitted).
To avoid dismissal for failure to state a claim, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level[.]" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (citation omitted). If the complaint has not set forth "enough facts to state a claim to relief that is plausible on its face," it must be dismissed. Id. at 1974. A reviewing court must "accept all well-pleaded facts as true and construe the complaint in the light most favorable to the plaintiff." Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020) (citation omitted). But it need not accept as true any "conclusory allegations, unwarranted factual inferences, or legal conclusions." Id. (internal quotation marks and citations omitted); see also White v. U.S. Corrections, LLC, 996 F.3d 302, 307 (5th Cir. 2021) (same). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Igbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 127 S.Ct. at 1965).
III. Discussion
A. Request for Re1ease From Confinement
Burke asks the court to grant him release on his own recognizance. Alternatively, Burke appears to ask the court to issue a writ of habeas corpus to release him from the Fort Bend County Jail. These claims are not actionable in a lawsuit under 42 u.s.c. § 1983. The writ of habeas corpus provides the remedy for prisoners who challenge the "fact or duration" of their confinement and seek "immediate release or a speedier release from that imprisonment." Preiser v. Rodriguez, 93 S.Ct. 1827, 1841 (1973). Therefore, his request for release from confinement will be dismissed for failure to state a claim upon which relief may be granted.
Complaint, Docket Entry No. 1, p. 4.
Id.
The court notes that Burke has filed several habeas corpus petitions seeking his release on bond, which have been dismissed for failure to exhaust available state court remedies. See Burke v. Fagan, Civil No. H-22-4407 (S.D. Tex. Dec. 28, 2022)(Docket Entry No. 5); Burke v. Fagan, Civil No. H-23-104 (S.D. Tex. Feb. 8, 2023)(Docket Entry No. 3); Burke v. Fagan, Civil No. H-23-993 (S.D. Tex. April 17, 2023)(Docket Entry No. 8).
B. Verba1 Threats
"To state a claim under§ 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Sanchez v. Oliver, 995 F.3d 461, 466 (5th Cir. 2021) (citation omitted). Burke alleges that Lieutenant Soland violated his rights by verbally threatening to harm him in the future.
Complaint, Docket Entry No. 1, p. 4.
The Fifth Circuit has repeatedly held that verbal threats against an inmate by a detention officer or guard do not amount to a constitutional violation and are not actionable under 42 U.S.C. § 1983. See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002); see also Larson v. Westbrook, 799 Fed.Appx. 263, 264 (5th Cir. 2020) (per curiam) (holding that "verbal threats and threatening gestures, standing alone, do not amount to a constitutional violation") (citations omitted). Accordingly, this allegation will be dismissed for failure to state a claim upon which relief may be granted.
C. Unwanted Touching
Burke also alleges that Lieutenant Soland sexually assaulted him by grabbing his "behind" while escorting him to receive treatment. It is well established that not every unwanted malevolent touch by a prison guard gives rise to a federal cause of action. See Hudson v. McMillian, 112 S.Ct. 995, 1000 (1992) (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.")). The Constitution excludes from recognition de minimis uses of physical force, provided that the use of force is not of a sort "' repugnant to the conscience of mankind.'" Hudson, 112 S.Ct. at 1000 (citation and quotation omitted).
Id.
Courts have concluded that a prison official's sexual abuse of an inmate may reach constitutional dimensions and give rise to a claim under 42 U.S.C. § 1983 if the allegations are sufficiently serious. See, e.q., Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir. 1997) (affirming the dismissal of an inmate's allegations that he was "verbally harassed, touched, and pressed against without his consent" as not "objectively, sufficiently serious" to state a constitutional violation). Although Burke has characterized the incident involving Lieutenant Soland as a sexual assault, his allegations are more accurately characterized as a brief, isolated instance of unwanted touching that did not result in any physical injury. Assuming that his allegations are true for purposes of reviewing the Complaint under the PLRA, 28 U.S.C. § 1915A(b), his allegations are insufficient to state a claim.
The PLRA precludes an action by a prisoner for compensatory damages "for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18)." 42 U.S.C. § 1997e(e). The plaintiff does not allege that he suffered a physical injury. Nor does he describe a sexual act as that term is defined in 18 U.S.C. § 2246(2). As a result, the PLRA precludes any claim for compensatory damages based on mental or emotional distress. See Alexander v. Tippah County, Miss., 351 F.3d 626, 631 (5th Cir. 2003) (per curiam).
The Fifth Circuit has held in a series of unpublished opinions that "[w]hile violent sexual assaults involving more than de minimis force are actionable under the Eighth Amendment, . . . isolated, unwanted touchings by prison employees, though 'despicable and, if true, they may potentially be the basis of state tort actions . . . they do not involve a harm of federal constitutional proportions as defined by the Supreme Court.'" Copeland v. Nunan, 250 F.3d 743, 2001 WL 274738, at *3 (5th Cir. 2001) (per curiam) (quoting Boddie, 105 F.3d at 860-61); see also Allen v. Johnson, 66 Fed.Appx. 525, 2003 WL 21017401, at *1 (5th Cir. 2003) (per curiam) (affirming the district court's dismissal of a case as frivolous where a prisoner alleged that the guard touched him in a sexual manner during routine pat-down searches); Pryer v. Walker, 385 Fed.Appx. 417, 418, 2010 WL 2836160, at *1 (5th Cir. 2010) (per curiam) (concluding that a prisoner's claim of sexual abuse against a female prison guard, who rubbed his chest and made comments about his hair and chest during an electrocardiogram, were properly dismissed as frivolous).
Several district courts within the Fifth Circuit have also concluded that incidents involving a single, brief encounter that did not result in physical injury do not violate the Constitution. See Felan v. Fernandez, Civ. A. No. SA-17-CV-880-XR, 2019 WL 3781443, at *4 (W.D. Tex. Aug. 12, 2019) (dismissing a prisoner's claim that an officer grabbed his buttocks as "isolated, unwanted touching" rather than "repugnant contact of a sexual nature that offends modern standards of decency"); Ben v. Brinks, No. EP-13-CV-00023-KC-ATB, 2014 WL 931796, at *2 (W.D. Tex. Feb. 13, 2014) rec. adopted, 2014 WL 931432 (W.D. Tex. Mar. 10, 2014) (dismissing for failure to state a claim the plaintiff's allegation that he was awakened one night by a guard rubbing and touching his inner thighs and buttocks); Brown v. Sloan, No. 1:09-CV-01066, 2010 WL 476720, at *2 (W.D. La. Feb. 10, 2010) (holding that a single incident of physical touching or fondling during a shakedown was not "the kind of 'severe and repetitive' abuse or wanton and sadistic infliction of pain that rises to the level of an Eighth Amendment violation"); Wright v. Thompson, No. 3:09-CV-1544, 2010 WL 3282955, at *4-5 (W.D. La. June 30, 2010), rec. adopted, 2010 WL 3282957 (W.D. La. Aug. 17, 2010) (dismissing claims of sexual abuse by an officer who allegedly touched the plaintiff's penis on one occasion as a "single, brief physical contact" which, even when coupled with verbal harassment, was "not sufficiently serious and pervasive to permit redress under the Eighth Amendment").
Because Burke's allegations are insufficient to establish a constitutional violation or an actionable claim under 42 U.S.C. § 1983, his Complaint will be dismissed for failure to state a claim upon which relief may be granted.
IV. Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1. The Prisoner Civil Rights Complaint under 42 U.S.C. § 1983 filed by Andrew Burke (Docket Entry No. 1) is DISMISSED WITH PREJUDICE.
2. The dismissal will count as a strike for purposes of 28 U.S.C. § 1915(g).
The C1erk is directed to provide a copy of this Memorandum Opinion and Order to the p1aintiff. The C1erk wi11 a1so send a copy of this Order to the Manager of Three Strikes List at ThreeStrikes@txs.uscourts.gov.
SIGNED.