Opinion
2:00-CV-0244
February 7, 2001
ORDER OF DISMISSAL
Plaintiff GARY NORMAN KETZEL, acting pro se and proceeding in forma pauperis 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-named defendants. On January 22, 2001, a Report and Recommendation was filed by the United States Magistrate Judge analyzing plaintiff's claims under Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), and recommending dismissal with prejudice as frivolous.
Plaintiff filed his Objections on February 2, 2001, and filed a motion to amend his original complaint on February 5, 2001. The motion was granted by separate order.
Plaintiff amends his complaint to more accurately identify defendant TREVINO and increases the amount of monetary damages requested.
By his Objections, plaintiff alleges, in relevant part, that he learned, during his May 3, 2000, counseling session that the counselor had never received his written request and was ordered by TREVINO to enter a "drop" on plaintiff's behalf. Further, plaintiff alleges, the counselors had attempted to persuade TREVINO not to dismiss plaintiff and had entered an "incomplete" on plaintiff's transcript, instead of a "withdrawal" as TREVINO wanted, to protect plaintiff's grade point average.
At most, plaintiff has alleged facts showing that one or more counselors disagreed with defendant TREVINO's interpretation of plaintiff's 1-60 as a request to drop a class, resulting in a drop for the class and a temporary suspension from school, rather than a request for counseling on the advantages and disadvantages of dropping the class while maintaining all options in that regard. Plaintiff's due process claim has been adequately addressed by the Magistrate Judge's Report and Recommendation.
Plaintiff has not alleged facts supporting a claim that TREVINO's decision to drop him from the class was made based on any class-based discrimination against plaintiff and, in fact, plaintiff has not alleged facts showing the drop was based on any animosity or ill-feeling toward him.
Plaintiff has not alleged facts which would defeat a claim of qualified immunity by defendant TREVINO and, at most, has alleged facts showing an unfortunate bureaucratic foul-up for which the United States Constitution does not provide relief. If there is a remedy for plaintiff's complaints, it must be found through the prison grievance system, not in the federal courts.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation, as well as the objections filed by the plaintiff.
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court, as supplemented herein.
This Court, therefore, does OVERRULE plaintiff's objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge, as supplemented herein.
IT IS THEREFORE ORDERED that, 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), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff GARY NORMAN KETZEL IS DISMISSED WITH PREJUDICE AS FRIVOLOUS.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any motions still pending are hereby DENIED.
The Clerk will mail a copy of this Order to the plaintiff and to any attorney of record by first class mail. The Clerk will also mail a copy of this Order to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, Texas 78711, and to Claire Laric at the United States District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.