Opinion
3:03-CV-0735-R.
June 30, 2003.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently confined at the Middleton Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Abilene, Texas. He was incarcerated at the Dallas County Jail at the time he filed this action. Defendants are Dallas Police Officer Michael Bryan, Sheriff Jim Bowles, Chief of Police Terrell Bolton, and Dallas County Commissioners Jim Jackson, Mike Cantrell, John Wiley Price, and Kenneth A. Mayfield. The Court has not issued process in this case. However, on April 15, 2003, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on May 7, 2003.
Statement of Case: The complaint alleges Police Officer Bryan used excessive force during Plaintiff's arrest, and following their arrival at the video room in the Dallas Sheriff's Office. The complaint further alleges denial of medical care during Plaintiff's incarceration at the Dallas County Jail. Plaintiff requests monetary damages for his pain and suffering.
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff seeks to sue Chief of Police Bolton for the excessive force incidents, and Sheriff Bowles and the Dallas County Commissioners for the denial of medical care at the Dallas County Jail. (Complaint at 3-4).
To be liable under § 1983, an individual must be personally involved in the acts causing the deprivation of a person's constitutional rights. See Lozano v. Smith, 718 F.2d 756 (5th Cir. 1983). It is settled that supervisory officials cannot be held vicariously liable for their subordinates' actions under § 1983. See Monell, 436 U.S. at 691-95; Bigford v. Tavlor, 834 F.2d 1213, 1220 (5th Cir. 1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). Supervisory officials may be held liable only if they (i) affirmatively participate in acts that cause constitutional deprivations, or (ii) implement unconstitutional policies that causally result in plaintiff's injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985).
The complaint, as supplemented by the answers to the questionnaire, fails to state any facts showing that the Chief of Police, the Dallas County Sheriff, or any of the Dallas County Commissioners were "personally involved" in either the excessive force incidents or the alleged denial of medical care. (Answer to Questions 10,15, and 18). Plaintiff concedes that he is suing the above defendants simply by virtue of their job title. (Id.).
Accepting as true Plaintiff's allegations as to the force used by officer Bryan, the Magistrate Judge concludes that Plaintiff has arguably raised a claim for excessive use of force in violation of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989) ("all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard"). Plaintiff's allegations that Bryan "body slammed" Plaintiff to the ground when he refused to sit on the wet grass, tightly handcuffed him causing abrasions in both wrists, and choked him by forcing his head and neck against the window of the squad car until the Dallas Sheriff's Office (see answer to question 4) raise claims that the force used may have been excessive to the need and objectively unreasonable. See Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) (setting out the elements of an excessive force claim). That Bryan again forced Plaintiff to the ground in the Dallas Sheriffs Office video room and applied pressure behind his ear, because Plaintiff repeatedly asked to use the restroom, also arguably raise actionable claims. Therefore, Plaintiff's claims against Police Officer Bryan are not subject to dismissal at the screening stage.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss Plaintiff's claims with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b) and 1915(e)(2), except for his claims of excessive use of force against Police Officer Michael Bryan, #7230.
It is further recommended that the District Court enter an order dismissing with prejudice Chief of Police Terrell Bolton, Sheriff Jim Bowles, and Dalla County Commissioners Jim Jackson, Mike Cantrell, John Wiley Price, and Kenneth A. Mayfield. See 28 U.S.C. § 1915A(b) and 1915(e)(2).
The Clerk will mail a copy of this recommendation to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.