Summary
In Jones, this court sustained the constitutionality of the statute conferring upon owners of water powers, authority to exercise the right of eminent domain.
Summary of this case from Benton v. Ga. Marble Co.Opinion
No. 2:04-CV-0239.
November 2, 2004
REPORT AND RECOMMENDATION
Plaintiff GREGORY DARNELL JONES, 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.
Plaintiff complains the defendants have repeatedly accessed his computerized records and changed his work restrictions in order to inflict pain and aggravate his medical conditions. Plaintiff says he suffers from high blood pressure and is a non-insulin-dependent diabetic being treated with pills. Plaintiff claims that, on June 11, 2004, the defendants assigned him to the Dalhart Unit Field Force Hoe Squad #6 in violation of his work restrictions. He states his medically-determined work restrictions are: (1) no lifting greater than 50 lbs.; (2) limited sitting; (3) no walking on wet uneven surfaces; (4) no work in direct sunlight; (5) no work with chemical irritants; (6) no work requiring safety boots; and (7) no work around machines with moving parts. Plaintiff claims his restrictions were determined by: (1) Dr. J. O'Hare; (2) Dr. Nygun; (3) "Dr. Talley And [sic] Moran's"; and (4) Dr. Largent.
Plaintiff requests $10,000.00 in compensatory damages from each defendant.
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 plaintiff's pleadings and the testimony received at the October 14, 2004 Spears hearing to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
"[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment." Such indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). The appropriate definition of "deliberate indifference" under the Eighth Amendment is "subjective recklessness as used in the criminal law." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994); Reeves v. Collins, 27 F.3d. 174 (5th Cir. 1994).Spears Hearing
On October 14, 2004, an evidentiary hearing was conducted by the United States Magistrate Judge in the above-referenced cause pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to determine the substance of plaintiff's claim and whether service of process should issue.
At the hearing, plaintiff was sworn and testified under oath that this suit, the other eight lawsuits presently pending in this Court, and three more which had not been received by the time of the hearing, allege the same claim with respect to different job assignments and sets of defendants: that plaintiff's work restrictions against work in direct sunlight and against work requiring safety boots, i.e., steel-toed shoes, had been violated.
As of October 14, 2004, at the time of the hearing, plaintiff had pending the following nine cause numbers: 2:04-CV-0096; 2:04-CV-0097; 2:04-CV-0176; 2:04-CV-0197; 2:04-CV-0207; 2:04-CV-0233; 2:04-CV-0239; 2:04-CV-0250; and 2:04-CV-0263. In the afternoon of October 14, 2004, two additional lawsuits from plaintiff was received by the Clerk and filed of record as cause nos. 2:04-CV-0274 and 2:04-CV-0275.
Plaintiff testified he had arrived at the Dalhart Unit on September 11, 2003. He alleges that, on June 11, 2004, he was placed in the Dalhart Unit Field Force Hoe Squad #6. Upon inquiry by the Court, plaintiff testified he had worn steel-toed boots on only two days since his arrival at Dalhart: January 22, 2004 and April 24, 2004. Plaintiff stated the January 22nd date was covered in cause no. 2:04-CV-0096 and the April 24th date was covered in his cause no. 2:04-CV-0176. He said that, in both instances, when his grievances concerning being assigned to a job in violation of his work restrictions were received by prison officials, he was no longer required to work. Instead, he said, he would turn out for work and be instructed to return to his cell or housing pod.
Thus, plaintiff's testimony makes clear that, whatever his job assignment for the period covered by the instant lawsuit, he was not actually required to work at all, and his medically determined work restrictions were not violated. In addition, during the hearing, plaintiff agreed that the restriction against work in direct sunlight was not part of his current HSM-18. In fact, review of plaintiff's HSM-18s contained in his classification records produced for the Spears hearing revealed a single HSM-18 restricting work in direct sunlight, that of March 4, 1999. All of plaintiff's earlier and all of his later HSM-18s omit this restriction. The sunlight restriction was removed at least by the time of plaintiff's November 18, 1999 HSM-18, issued while plaintiff was still at the Jester III Unit and still under the care of the physician who had imposed it in March of 1999. Plaintiff did not challenge the accuracy of these records and has alleged no fact to support a claim that defendants had this restriction removed while he was still at the Jester III Unit or stated why they would do so.
Based on the above, it is clear plaintiff's claims lack an arguable basis in fact and are frivolous.
CONCLUSION
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 GREGORY DARNELL JONES be DISMISSED WITH PREJUDICE AS FRIVOLOUS.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to any attorney of record by certified mail, return receipt requested.
IT IS SO RECOMMENDED.