Opinion
No. 2:04-CV-0268.
April 13, 2005
REPORT AND RECOMMENDATION
Plaintiff PERRY LEE HAMMONDS, acting pro se and while a prisoner confined 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.
Plaintiff complains that the defendant has denied him his First Amendment right of access to courts by not giving him various materials during three periods during which plaintiff was indigent: September 9, 2002 through January, 2003; February 2003 through May, 2003; and November 2003 through April 2004.
Plaintiff requests declaratory and injunctive relief and punitive damages in an unspecified amount.
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).
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 Magistrate Judge has reviewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
An inmate alleging denial of access to the courts must demonstrate an actual injury stemming from the defendants' unconstitutional conduct. Lewis v. Casey, 518 U.S. 343, 351-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998) (without proving actual injury, the prisoner/plaintiff cannot prevail on an access-to-courts claim); Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999). A civil rights claim cannot be based on "minor and short-lived impediments to access" in the absence of actual prejudice. Chandler v. Baird, 926 F.2d 1057, 1063 (5th Cir. 1991). If a litigant's position is not prejudiced by the claimed violation, his claim of denial of access to the courts is not valid. Henthorn v. Swinson, 955 F.2d 351, 354 (5th Cir.), cert. denied, 504 U.S. 988, 112 S.Ct. 2974, 119 L.Ed.2d 593 (1992).
The only reference in plaintiff's complaint is contained in his Step 2 grievance no. 2003118977. The impact in that cause was that plaintiff had to file a motion for extension, which was granted the same day.
Review of plaintiff's litigation history in the U.S. Party/Case Index reveals that, aside from the instant cause, plaintiff has filed only two cases since 1997. Both were filed in 2003. One was a civil rights case which was filed in the U.S. District Court for the Western District of Texas, transferred to the U.S. District Court for the Northern District of Texas, and dismissed on February 7, 2003 at plaintiff's request. The other was a habeas action originally filed in the U.S. District Court for the Northern District of Texas and transferred to the U.S. District Court for the Western District of Texas. In that cause, plaintiff requested an extension on March 28, 2003 which was granted that same day. Plaintiff filed his response within the time limit and also filed objections to the subsequent Report and Recommendation. That habeas action was later dismissed based on plaintiff's failure to exhaust administrative remedies in state court.
Plaintiff has alleged no fact showing his position as a litigant was prejudiced in any way in any case. Consequently, plaintiff has failed to state a claim on which relief can be granted.
CONCLUSION
For the reasons set forth above and 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 Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff PERRY LEE HAMMONDS be DISMISSED WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.IT IS SO RECOMMENDED.