Opinion
7:00-CV-223-R.
December 4, 2001.
ORDER OF DISMISSAL
Came on to be considered the papers and pleadings filed in this action and the Court finds and orders as follows:
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate confined in the James V. Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Plaintiff has filed suit against nineteen officers employed at the Allred Unit. Complaint pp. 3-3B. In support of his quest for monetary damages, Plaintiff alleges the following constitutional violations:
1. Denial of food and showers;
2. Retaliation for filing grievances;
3. False disciplinary action;
4. Deprivation of property without due process, and;
5. Harassment and threats of physical injury.
Complaint pp. 3C-3H.
To satisfy constitutional requirements in the area of food service, a state must furnish its prison inmates with reasonably adequate food. George v. King, 837 F.2d 705, 707 (5th Cir. 1988) (holding one incident of food poisoning insufficient to state a claim under § 1983). The deprivation of food constitutes cruel and unusual punishment in violation of the Eighth Amendment if it denies an inmate the "minimal civilized measure of life's necessities." Wilson v. Seiter, 501 U.S. 294,298, 111 S.Ct. 2321, 2324 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399)). In determining whether a deprivation of food falls below this threshold, the Court looks to the amount and duration of the deprivation. Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998).
In the case at bar, Plaintiff complains that he missed numerous meals. Complaint pp. 3C-3H. However, careful review of the facts set forth by Plaintiff reveals that the 25 meals he claims to have missed were spread over a period of time beginning in May of 2000 and ending in August of 2001. See Plaintiff's Answer to the Court's Question No. 1. The most meals that Plaintiff missed in any one-month period of time was six meals during the month of September, 2000. Id. While the Court does not condone the withholding of meals from an inmate, the Court finds that, in considering the amount and duration of Plaintiff's alleged missed meals, such a deprivation does not rise to the level of a constitutional violation. See Talib v. Gilley, 138 F.3d at 214 n. 3 (expressing doubt as to any constitutional violation where the plaintiff claimed that he missed "about fifty meals in five months and lost about fifteen pounds."). Moreover, Howard has failed to allege any injury resulting from the alleged missed meals. He does not claimed to have lost weight and does not claim that his health was, in any way, put at risk. See Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (finding no Eighth Amendment violation where the plaintiff made no claim that he suffered adverse effects from missing meals). Plaintiff expressly makes no claim that Defendants fail to provide him with a nutritionally adequate diet. Plaintiff's Answer to the Court's Question No. 5. Considering the circumstances of this case, Howard's remedy with regard to missed meals, if any, lies not with the federal courts but with the prison grievance system and/or the Texas Commission on Jail Standards. See Tex. Gov. Code Ann. § 511.0071 (Vernon Supp. 1999); Valles v. Texas Comm'n on Jail Standards, 845 S.W.2d 284, 290 (Tex.App.-Austin 1992, writ denied); Starks v. Bowles, 682 F. Supp. 891, 893 (N.D. Tex.), aff'd, 851 F.2d 1419 (5th Cir. 1988); Taylor v. Sterrett, 600 F.2d 1135, 1141-45 (5th Cir. 1979).
Plaintiff claims that he was unlawfully denied showers at the Allred Unit. Complaint pp. 3C-3H. Under the Eighth Amendment, prisoners are entitled to the "minimal civilized measure of life's necessities." Wilson v. Seiter, 501 U.S. at 298, 111 S.Ct. at 2324. This includes the basic elements of hygiene. Gates v. Collier, 501 F.2d 1291, 1302 (5th Cir. 1974). Plaintiff claims that, from May 2000 through December of 2000, he was denied 15 showers. Plaintiff's Answer to the Court's Question No. 8. The most showers missed by Plaintiff in a given month was during September of 2000 when Plaintiff claims to have been denied a shower six times. Id. The Court finds that the number of showers allegedly denied by Defendants, if true, does not rise to the level of a constitutional violation. Missing six showers in one month does not constitute a deprivation of the basic elements of hygiene. Especially in light of the fact that Plaintiff had running water, a sink and soap in his cell with which to wash. See Plaintiff's Answer to the Court's Question No. 10.
Next, Plaintiff claims that he was denied showers, meals and privileges for purposes of retaliation against him by Defendants because he filed prison grievances. Complaint pp. 3D-3G, Plaintiff's Answers to the Court's Questions No. 6, 11 15. Prison officials may not retaliate against an inmate for the exercise of a constitutionally protected right. Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975 (1986). In order to show retaliation an inmate must (1) allege the violation of a specific constitutional right, and (2) establish that the incident would not have occurred but for a retaliatory motive. Johnson v. Rodriguez, 110 F.3d 299, 313 (5th Cir.), cert. denied, 522 U.S. 995, 118 S.Ct. 559 (1997); Woods, 60 F.3d at 1166. This places a significant burden on the inmate. Mere conclusory allegations are insufficient to state a claim. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)).
In the case at bar, Plaintiff has failed to allege any facts which would support a claim of retaliation. He states that Defendants retaliated against him because of racism, hatred and because they can get away with it. Plaintiff's Answers to the Court's Questions No. 7, 12 16. These allegations are conclusory in nature and, as such, fail to state a claim. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."); Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988) (requiring specific facts and noting that conclusory allegations are insufficient to maintain a claim under § 1983). Howard has failed to allege any facts which, taken as true, would show that the incidents would not have occurred but for a retaliatory motive. Furthermore, he has failed to allege a chronology of events from which one could infer retaliation. Therefore, these claims must fail.
Howard next complains of false disciplinary action taken against him by certain Defendants. Complaint pp. 3D 3G. This claim, if true, would necessarily imply the invalidity of the disciplinary action and is, therefore, currently barred under the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). See Edwards v. Balisok, 520 U.S. 641, 646-48, 117 S.Ct. 1584, 1588-89 (1997) (holding that a claim based on allegations that would necessarily imply the invalidity of a disciplinary hearing is not cognizable in a civil rights action unless the disciplinary action has been reversed, expunged or otherwise invalidated). Furthermore, Plaintiff does not claim that he lost any good-time credits as a result of the disciplinary action. Plaintiff's Answer to the Court's Question No. 13. Therefore, it does not appear that any constitutionally protected liberty interest was implicated by the alleged wrongful disciplinary action. See Madison v. Parker, 104 F.3d 765, 769 (5th Cir. 1997). Accordingly, this claim must fail.
Howard claims that certain Defendants deprived him of property without due process of law. Complaint p. 3D. To the extent that Plaintiff seeks redress for lost, stolen or damages property, he has failed to state a claim. The United States Supreme Court has held that the "unauthorized, intentional deprivation of property" does not constitute a civil rights violation if there exists a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204 (1984); accord Nickens v. Melton, 38 F.3d 183, 184-85 (5th Cir. 1994), cert. denied, 514 U.S. 1025, 115 S.Ct. 1376 (1995); Holloway v. Walker, 790 F.2d 1170, 1174 (5th Cir.) (finding no breach of federally guaranteed constitutional rights, even where a high level state employee intentionally engages in tortious conduct, as long as the state system as a whole provides due process of law), cert denied, 479 U.S. 984, 107 S.Ct. 571 (1986).
Howard has the state common-law action of conversion available to remedy his alleged loss of property. Myers v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs when there is an unauthorized and unlawful exercise of dominion and control over the personal property of another which is inconsistent with the rights of the owner. Beam v. Voss, 568 S.W.2d 413, 420-21 (Tex.Civ.App.-San Antonio 1978, no writ). If Defendants exercised unauthorized control over Howard's personal property, he has a factual basis to allege a cause of action in conversion. Such a common-law action in state court would be sufficient to meet constitutional due process requirements. Groves v. Cox, 559 F. Supp. 772, 773 (E.D. Va. 1983).
To the extent that Plaintiff seeks redress for the loss of property on a theory of negligence, he has failed to state a colorable claim under § 1983. Where mere negligence is involved in causing a deprivation of property, no procedure for compensation is constitutionally required. The unintentional loss of property does not state a cause of action under § 1983. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663 (1986); Davidson v. Cannon, 474 U.S. 344, 347 106 S.Ct. 668, 670 (1986).
Finally, Plaintiff claims that Defendants have harassed him and threatened him with physical injury and death. Complaint pp. 3C-3H. Unfortunately, threats, harassment and verbal abuse are not actionable under § 1983. Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993) (noting that verbal abuse is insufficient to serve as the legal basis of a civil rights action.); United States v. Bigham, 812 F.2d 943,949 (5th Cir. 1987) (holding that technical batteries, angry words, or passing thumps do not rise to the level of constitutional abuses). Therefore, these claims must be dismissed.
The Court notes that Plaintiff does not present a claim that Defendants used excessive force against him. Plaintiff's Answer to the Court's Question No. 21.
Plaintiff was given an opportunity to expound on the factual allegations underlying his complaint. See e.g., Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint); Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming the use of a questionnaire as a useful and proper means for the court to develop the factual basis of a pro se plaintiff's complaint). However, he failed to state facts which would show that his civil rights have been violated.
In a cause of action under § 1983, it is necessary to specify the personal involvement of each defendant. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 464 U.S. 897, 104 S.Ct. 248 (1983). A plaintiff cannot make generalized allegations. Howard v. Fortenberry, 723 F.2d 1206, 1209 (5th Cir.), vacated in part on denial of rehearing, 728 F.2d 712 (5th Cir. 1984). There must be an affirmative link between the deprivation and some act by the defendant. Rizzo v. Goode, 423 U.S. 362, 375-77, 96 S.Ct. 598, 606-07 (1976). In the case at bar, Plaintiff has failed to show any such link or deprivation.
A district court may dismiss claims filed by a prisoner proceeding in forma pauperis if it determines that the claims are frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). Claims are frivolous if they lack an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). A claim is without an arguable basis in law if it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar have no arguable basis under federal law.
IT IS THEREFORE ORDERED that Plaintiff's civil rights claims related to the prison disciplinary action are hereby dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and with prejudice to their being asserted again unless Plaintiff can demonstrate that the conditions set forth in Heck v. Humphrey have been satisfied.
Where a § 1983 plaintiff's claims attack the fact or duration of his confinement and such claims are dismissed under Heck v. Humphrey, the dismissal should be "with prejudice." Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994); Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994).
IT IS FURTHER ORDERED that, to the extent Plaintiff's complaint presents claims cognizable in a habeas proceeding, such claims are hereby dismissed without prejudice to his right to seek federal habeas relief after fully exhausting state remedies.
See Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982) (requiring exhaustion of available state remedies before a federal court should consider the merits of a state prisoner's claims).
IT IS FURTHER ORDERED that the remainder of Plaintiff's civil rights claims are hereby dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
SO ORDERED