Opinion
No. 2:02-CV-0109.
October 1, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff APPARAJAN GANESAN, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
By his July 26, 2002 Amended Complaint, plaintiff complains the defendants have prevented him from practicing his religion, Hinduism. Specifically, plaintiff alleges that, on December 23, 2001, defendant WEBB told plaintiff to shut up while he was chanting mantras in the dayroom at 7:20 on a Sunday morning. Plaintiff states he was chanting in what he thought was a subdued manner when an inmate turned his lights on and off in his cell to get the guard's attention and complained that plaintiff's chanting was disturbing him. Plaintiff says he moved to the center of the dayroom and continued until defendant WEBB came up to plaintiff's table and told him to shut up. Plaintiff complains defendant Warden UPSHAW did nothing to correct the problem. Plaintiff also says defendant WEBB told plaintiff to remember that any grievance had to come to him. Plaintiff claims that was an indication he would suffer retaliation if he grieved WEBB's command to shut up.
Plaintiff complains he suffered physical harm and further complains that defendant COCKRELL has implemented a policy of discrimination preventing plaintiff from practicing his religion for over three years at the Holliday, Goodman, Byrd, Estelle, and Roach Units. Plaintiff claims defendant Warden UPSHAW has withheld his approval of plaintiff's prayersheets even though other inmates are allowed to carry Bibles.
Plaintiff requests injunctive relief in the form of access to a prayer room, the ability to store books, cassettes, DVDs, and VCR tapes of religious material with the chaplain for his own use, access to a calendar showing Hindu religious dates; the ability to carry prayer sheets on his person, the ability to find addresses and contact religious groups, a religious diet, transfer to a unit with offenders of the same faith where possible, and monetary compensation for his inability to practice his religion for three years and physical injuries suffered as a consequence.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may 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. 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 District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by the defendants.
THE LAW AND ANALYSIS
In his December 9, 2002, response to Question no. 1 of the Court's Questionnaire, plaintiff states that he was "praying in a very soft subdued manner that would have been inaudible to anybody other than somebody sitting at the same table as him[self]." He says the inmate who complained was fifty to seventy-five feet away in his cell with the door closed, was Islamic, didn't like Hindus, and later told plaintiff he had not really been able to hear him but had made the complaint anyway.
Thus, by plaintiff's own account, in both his amended complaint and as supplemented by his Questionnaire response, an inmate had complained from his cell about the sound of plaintiff's prayer in the dayroom. Plaintiff states WEBB did not tell Christians or Muslims to be quiet and only ordered plaintiff to be quiet because he was prejudiced against plaintiff's religion; however, plaintiff's allegations plainly show the complaint was made about his noise, not that of some other inmates. Plaintiff has not alleged any fact showing defendant WEBB knew the complaint was not made in good faith or that his order to plaintiff to shut up was issued for any reason other than to maintain discipline and security.
Inmates do not forfeit all of the constitutional rights upon entering the prison system. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). Nevertheless, an inmate retains only those First Amendment rights which "are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974).
Although plaintiff attempts to argue an equal protection claim in support of his contention that WEBB was prejudiced against him, plaintiff has alleged the inmate's complaint was directed specifically at his noise, not that of anyone else. Thus, he does not allege he was in a position substantially similar to any other inmates. Further, plaintiff does not allege any fact which can defeat WEBB's entitlement to a defense of qualified immunity, that is, that the order was issued in a reasonable attempt to prevent a conflict from arising between two inmates. By his allegations against defendant WEBB, plaintiff has failed to state a claim on which relief can be granted.
Moreover, although plaintiff alleges in his Questionnaire response that UPSHAW has "indirectly induced" WEBB to "turn the screws on" plaintiff, denying him equitable treatment, plaintiff alleges no fact to support these allegations. Although plaintiff hints of possible retaliation for grieving against defendant WEBB, he does not speak of any adverse consequence he suffered specifically stemming from the grievance which he has shown he submitted. Mere conclusory allegations without reference to material fact are to support claims of malice, Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995); or retaliation, Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Plaintiff's claims of retaliation lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff's claim against defendant UPSHAW based on his failure to take action to correct WEBB's ordering plaintiff to be quiet fails in the absence of facts which would support a determination that the order was wrongful and violative of plaintiff's constitutional rights. Therefore, plaintiff's claim against UPSHAW in connection with this incident also 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).
The Court notes an inmate must be afforded "reasonable opportunities . . . to exercise the religious freedom guaranteed by the First and Fourteenth Amendments." Pedraza v. Meyer, 919 F.2d 317, 329 (5th Cir. 1990) (quoting Cruz v. Beto, 405 U.S. 319, 322, n. 2, 92 S.Ct. 1079, 1081 n. 2, 31 L.Ed.2d 263 (1972).
Plaintiff attempts to pursue additional claims against UPSHAW, COCKRELL, and, presumably, the ROACH UNIT, based on an alleged denial of the right to practice his religion as other inmates are allowed to practice their own religions.
Of course, the ROACH UNIT is merely a unit within a subdivision of the Texas Department of Criminal Justice. 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 and its subdivision, defendant ROACH UNIT, 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). Plaintiff's claim against the ROACH UNIT is barred by sovereign immunity, 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).
With respect to plaintiff's remaining claims against UPSHAW and COCKRELL, they are barred by his failure to exhaust administrative remedies before filing suit. Title 42, United States Code, section 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
To his amended complaint, plaintiff attached only Step 1 and Step 2 of grievance no. 2002069000, complaining of defendant WEBB's order to him to shut up, in order to show exhaustion of administrative remedies.
By his December 9, 2002, response to the Court's instruction to present copies of any other grievances which he feels constitute exhaustion of administrative remedies for his claims, plaintiff submitted a list of thirty items including references to eight separate grievances, some of them only Step 1 grievances, some of them both levels. Review of this list reveals that, aside from grievance no. 2002069000, complaining of defendant WEBB's order to him to shut up, none of the items referenced a grievance exhausted before filing this suit and which concerned the subject(s) or incident(s) underlying plaintiff's claims.
The Court is considering Step 1 and Step 2 to be various levels of the same grievance.
Plaintiff signed and, presumably, mailed his original complaint on April 8, 2002; and, by operation of the Mailbox Rule, that is considered to be the date of filing. Reviewing plaintiff's list of items, only item number 1, the grievance concerning WEBB's order to shut up, appears to be a relevant grievance which was exhausted before filing the instant lawsuit.
Other documents itemized, but not submitted, include document number 23, referencing a Step 1 grievance filed February 25, 2002 concerning an attack on plaintiff by an inmate Hattfield; however, there is no indication that grievance was ever exhausted by submission of a step 2. Further, document number 28 references a March 15, 2002 Step 1 and March 23, 2002 step 2 grievance, but there is no indication the response from prison officials was received before filing the instant suit. In any event, plaintiff states the grievance (no. 2002119071) concerned "denial of access to housing." Thus, it does not appear to constitute exhaustion of any claim plaintiff is presently asserting.
The Court also acknowledges that, in his December 9, 2002, response, plaintiff states he is having copies of these and other documents prepared by a friend for forwarding to the Court. On December 10, 2002, the Court received a one-page letter and eight pages of documents from the individual identified by plaintiff as acting on his behalf. A copy of the letter and the enclosures is attached to this Memorandum Opinion and Order of Dismissal as Exhibit A. The Court has reviewed the letter and the documents accompanying it and finds nothing therein to indicate plaintiff exhausted administrative remedies on any other claims before filing suit. Indeed, except with respect to WEBB's order, everything plaintiff has submitted to the Court indicates exhaustion was abandoned after Step 1, as, for instance, with respect to the attack by inmate Hattfield, or was accomplished only after filing this suit.
The only claims for which plaintiff exhausted administrative remedies before filing suit is his claim that defendant WEBB told him to shut up while he was chanting mantras in the dayroom and defendant UPSHAW failed to remedy WEBB's order.
Plaintiff's remaining claims are barred by Title 42, United States Code, section 1997(e)(a). By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Therefore, plaintiff's remaining claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
Pursuant to Title 42, United States Code, section 1997e(c)(1),
IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff APPARAJAN GANESAN be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The United States District Clerk shall mail a copy of this Order to plaintiff and to each attorney of record by certified mail, return receipt requested.
IT IS SO ORDERED.