Opinion
2:00-CV-0063.
May 14, 2001.
REPORT AND RECOMMENDATION
Plaintiff JOHN ALBERT ESTRADA, SR., 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.
The instant cause is an excellent example of the fluid and protean nature of pro se prisoner claims during the various stages of litigation. Sometimes the changes in an inmate's claims are the result of a sharpening of the litigant's focus on the legal issues at hand; however, at other times, the changes are a result of the inmate's attempts to avoid the legitimate effects of statutorily-mandated screening by the Court. In either event, there must come a point at which the claims alleged are fixed and the Court can proceed to screen them in accordance with the Prison Litigation Reform Act of 1995. We have reached that point.
By his original complaint, plaintiff explicitly claimed a violation by defendant DWYER of the Eighth Amendment prohibition against cruel and unusual punishment and alluded to a "brush test." Plaintiff claimed defendant FINNEY assisted DWYER in the wanton and unnecessary infliction of pain. Plaintiff also explicitly claimed an Eighth Amendment violation by defendant DELAROSA, alleged DELAROSA was responsible for plaintiff's safety, and challenged the policy allowing prison officials to "refer [sic] to medical authority explanations as correct and binding." Plaintiff made the same claim against defendant SCOTT. Lastly, plaintiff alleged a Fourth Amendment violation and a breach of contract claim against defendant LONG. Thus, the only prison policies plaintiff referenced in his original complaint were a policy allowing prison officials "to refer [sic] to medical authority explanations as correct and binding" and a policy, if any, which established the "brush test."
A common response by prison authorities to step 1 inmate grievances where there is a disagreement with the medical care provided is that prison authorities defer to the judgment of the medical professionals. Responses to step 2 grievances are typically drafted by a medical professional.
When asked to identify the specific policy he challenged and inform the Court what that policy states, plaintiff responded, in his answers to question nos. 1 and 2 of the Court's Questionnaire, that he could not identify the precise policy but that there was a policy requiring the crime of conviction to be listed in the medical records, creating the possibility of bias against an inmate based on his crime, and that there was a policy requiring inmates be taught proper dental hygiene and be required to pass a "brush test."
On March 28, 2001, the Court issued a Report and Recommendation to dismiss plaintiff's claims against defendant LONG with prejudice to being asserted again until theHeck conditions are met and to dismiss plaintiff's claims against defendants DELAROSA and SCOTT as frivolous and for failure to state a claim on which relief can be granted. The Court also issued an Order to Answer to defendants DWYER and FINNEY. Plaintiff responded by filing his April 13, 2001, Objections to the March 28, 2001, Report and Recommendation. In these objections, plaintiff challenged the brush test, the policy allowing prison officials to defer to the judgment of medical professionals in medical matters, the policy requiring an inmate's record of conviction be listed in his medical file, and alleged a criminal conspiracy by defendant LONG based on plaintiff's present allegedly wrongful incarceration.
Heck v. Huphrey, 512 U.S. 477, 114 S.Ct. 2364,2372, 129 L.Ed.2d 383 (1994).
Upon receipt of plaintiff's April 11th and April 12th pleadings, the Court determined clearly unrelated claims which were not properly joined in a single suit needed to be severed to facilitate processing of plaintiff's claims. Therefore, the Court severed plaintiff's against defendant LONG.
When faced with the Court's April 20, 2001, Order to Sever, by which all claims against defendant LONG were severed into a separate suit, plaintiff filed his May 7, 2001, "Objections to `Order to Sever' Claim against Defendant LONG and DALLAS COUNTY." By this pleading, plaintiff unequivocally states that,in this lawsuit, he "is seeking Consequential Damages, of a breach of Contract for this specific incident." Plaintiff states he submitted this "consequential Damages Claim to this incident with the premises that the `Breach of Contract' which caused this incarceration is not an arguable question under the law." Plaintiff says he is "requesting this Court view, in this cause, and rule on the consequential damages of a Breach of Contract, if an actual eight Amendment violation occurred in this "Dental claim" incident. To view the "Breach of Contract" claim as Texas law views anything done in violation of the Constitution." Plaintiff further contends he never intended the Court to view the "breach of contract" and the dental care incident as separate issues. This Court will not pretend to fully understand all of the above, and plaintiff's frequent use of incomplete sentences ending with an ellipsis is not an effective style of pleading.
In his objections to the severance order, plaintiff argues no severance should occur and, in fact, argues this cause should be consolidated with another lawsuit, 2:00-CV-0064, which, he says, is based on the same "breach of contract" claim. Plaintiff concludes that, if the Court insists on severing these causes for consequential damages and punitive damages against Defendant LONG and Dallas County, he requests that the Court, "on its own motion," "dismiss the complaint of the consequential damages/breach of contract in this cause. And or take what ever action is thinks fair in this cause."
In other pleadings, plaintiff has asserted this Court "split" his two lawsuits, i. e., cause nos. 2:00-CV-0063 and 2:00-CV-0064; however, plaintiff submitted two separate complaint forms and paid two separate filing fees for these lawsuits. The Court took no action whatsoever to produce this separation.
From the above, it is clear plaintiff is seeking to prosecute a lawsuit for which no cause of action exists. Despite earnest and energetic attempts to "view [plaintiff's pro se pleadings] with an understanding eye," the Court failed to perceive what plaintiff has now explained, i. e., that all of plaintiff's claims in this division are simply claims for consequential damages flowing from a single alleged breach of contract claim relating to his probation contract with the State of Texas. The plaintiff is the master of his own pleadings, and even a pro se litigant has the right to plead himself out of court, just as an attorney may do. The fact that the Court does not perceive how the claims constitute consequential damages flowing from the alleged breach of contract or how such consequential damages claims can be separately maintained will not prevent the Court from accommodating plaintiff's clear intent. Proximate causation is an issue which need not be reached at this stage of this case. Plaintiff s present argument, made despite and in the face of the Court's March 28, 2001, Report and Recommendation explaining the operation ofHeck, is that his lawsuit is one for breach of contract; and plaintiff's explicit and repeated request that the Court construe this suit as such is unequivocal. The Court will accept plaintiff's characterization of his own lawsuit and will proceed accordingly.
plaintiff's May 7, 2001, Objections at page 2.
Therefore, the Court will now consider all of his claims, including those alleged against defendant LONG, on the breach of contract basis he presents. Cause no. 2:01-CV-0161 has been dismissed without prejudice and without payment of the filing fee or qualification for pauper status by plaintiff. Plaintiff has suffered no detriment by its dismissal.
Plaintiff is now arguing that the breach of contract caused by an alleged defect in his probation violation hearing resulted in his current allegedly illegal incarceration and that anything detrimental or unconstitutional that occurs during this incarceration is a "consequential damage" flowing from the breach of contract. Plaintiff's pleading makes it clear that the breach of contract occurred in Dallas County and, therefore, a suit to remedy that breach should be brought in that venue. Since plaintiff says he has filed a habeas action to remedy the alleged breach of contract, and since any legitimate section 1983 lawsuit would be barred until plaintiff receives a favorable ruling on that habeas action, it appears transfer is neither warranted nor appropriate.
Lastly, when the Court accedes to plaintiff's request that it view all of the complained-of incidents as predicated upon the alleged breach of contract and as consequential damages flowing from such breach, plaintiff's relief cannot be granted until the Court examines whether the alleged breach of contract occurred. Of course, such an examination is barred by Heck, as explained in the March 28, 2001, Report and Recommendation.
CONCLUSION
For the reasons set forth above, 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 JOHN ALBERT ESTRADA, SR., BE DISMISSED AS FRIVOLOUS AND WITH PREJUDICE TO BEING ASSERTED AGAIN UNTIL THE HECK CONDITIONS ARE 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.