Opinion
2:03-CV-0385
February 2, 2004
REPORT AND RECOMMENDATION TO DISMISS SOME CLAIMS
Plaintiff CURTIS MARVIN McKINNEY, 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 states that he received spinal surgery to his neck and carpal tunnel surgery to his right hand on August 16, 1002, and was released into general population on August 30, 2002, with instructions not to be involved in any kind of aggressive or physical activity. Plaintiff was transferred from his temporary housing assignment that same day. During the transfer, plaintiff alleges he was subjected to excessive force by defendants ROBINSON and NELSON. Plaintiff says he suffered shooting pains, aching and throbbing pain, and numbness as a result. After reaching his housing assignment, plaintiff went to the infirmary and then to the line control building where he submitted a four-page complaint concerning the incident. Plaintiff alleges this resulted in a retaliatory disciplinary case against him because of his complaint.
ROBINSON "hooked her fingers into [plaintiffs shirt pocket] and snatched [him] forward which snapped [his] weak neck. . . .
NELSON grabbed plaintiffs hands and forced them behind his back despite plaintiffs cries of pain and protests that his recent surgeries left him unable to put his hands behind his back.
Plaintiff states he was summoned to defendant PONDER's office the next day and subjected to intimidation and harassment under the guise of an investigation of the previous day's incident. He says he saw ROBINSON entering PONDER's officer as he left and was then required to return to make a response to the disciplinary case ROBINSON had just submitted. Plaintiff states that when he responded to verbal harassment, PONDER ordered the other officers to lock plaintiff up in pre-hearing detention. Plaintiff says defendant BROWN videotaped while defendants HINKLE and HARRINGTON twisted plaintiffs hands behind his back knowing it would cause him extreme pain because he had written of the pain inflicted on him by NELSON the day before, In addition, plaintiff alleges HINKLE and HARRINGTON pulled up on his cuffs causing him further unnecessary pain.
Disciplinary case #20030000530.
Plaintiff claims the pain caused him to become dizzy and experience chest pains. He says when he plead with officers and a nurse to handcuff him in front, a doctor examined him and only ordered officers to loosen the cuff on his right hand, where the carpal tunnel surgery had been performed. Plaintiff says he was then confined to pre-hearing detention whether he was not given his blood pressure medication for six days and was not given any pain medication for three days. Plaintiff also received another disciplinary case, # 20030000534.
Plaintiffs narrative then skips to September 25, 2002, when he says, he was harassed by Officer Ivie, whom he has not named as a defendant, who then summoned other officers and accused plaintiff of refusing to obey an order. Plaintiff says they threatened to use force on plaintiff and leave him crippled, and defendant HINKLE told Officer Ivie to "write [plaintiff] up for everything that she could think of and he would make sure that [plaintiff] was put on medium custody where [he] belonged." Officer Ivie wrote disciplinary case no. 20030028005, and plaintiff was eventually placed on medium custody.
Plaintiff also alleges that, as he left the chow hall on October 17, 2002, defendant MAY began to harass him because he wasn't wearing his neck brace. Plaintiff responded that he would wear it according to his doctor's orders. He states MAY then ordered him against the wall, kneeing him in the back of his legs and saying he would make sure plaintiff wore it. Plaintiff says that, after a cursory pat-search, MAY hit plaintiff in the neck on his incision site with the palm of his hand. Plaintiff states THOMSON and HINKLE watched and encouraged MAY. He says he then suffered "migraine headache-like pain and went to the infirmary on November 25, 2002, for treatment of that pain.
Plaintiff alleges that, on December 27, 2002, defendant HOWARD took the portable handicap shower chair that doctors had ordered and wouldn't let plaintiff have it in time to shower. Plaintiff says he showered without it and fell, injuring his lower back. Plaintiff states he is currently awaiting surgery to his lower back.
Plaintiff also alleges that, on April 17, 2003, defendant GRADY kicked him in his left ankle for no reason and when he reported it, defendant HARRELL said he didn't believe plaintiff and refused to write a report and send plaintiff to the infirmary. Plaintiff says he finally got to the infirmary about 8:00 p.m. where the swelling and bruising were noted and he was treated with an ice pack. Plaintiff says he filed a grievance and life endangerment report on GRADY, HARRELL, and another officer about the matter. Plaintiff further states GRADY threatened him on the recreation yard on July 7, 2003, and, when plaintiff twice requested a supervisor, GRADY called Lt. HARRELL and accused plaintiff of threatening him. Plaintiff says he got another disciplinary case as a result.
Plaintiff also complains that defendants JOHNSON, COLE, and MUNSELLE did not properly investigate or satisfactorily resolve his complaints to him and that defendant BAKER, after examining plaintiff disciplinary cases, did not conclude that they were retaliatory.
Plaintiff sues all defendants in their official and individual capacities. He requests restoration of his class and goodtime lost to the retaliatory disciplinary cases, an award of $250,000.00 from each defendant, and that TDCJ-ID be "liable" for all of plaintiff's related medical problems in the future.
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, Alt 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 plaintiffs complaint and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff does not state any of the challenged disciplinary cases have been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Wells v. Banner, 45 F.3d 90, 94 (5th Cir. 1995) (quoting Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). Further, the relief he requests indicates they have not. A claim for good-time credits is foreclosed by Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and plaintiff must seek such relief through habeas. Wolff v. McDonnell, 418 U.S. 538, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1973).
Moreover, any claim for monetary relief against defendants in their official capacities is barred by the Eleventh Amendment. A suit against an official in his or her official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). The Eleventh Amendment bars suit against a state or a state official unless the State has waived its immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). Consequently, plaintiffs claim for monetary relief against defendants in their official capacities is barred by the Eleventh Amendment and, thus, 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).
An exception to this general principle was created in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in which the Supreme Court held that a suit for prospective injunctive relief, challenging the constitutionality of a state official's action in enforcing state law, is not one against the State. Id., at 159-160, 28 S.Ct., at 453-54. See, also, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (the Eleventh Amendment grants the States an immunity from retroactive monetary relief, but state officers are not immune from prospective injunctive relief). However, as defendants point out, the relief requested in this cause is purely monetary and, thus, the Young exception does not apply.
Plaintiffs claims against defendants JOHNSON, COLE, and MUNSELLE are based, in whole or in part, upon the supervisory capacities of these defendants and their failure to correct the alleged wrong; however, the acts of subordinates trigger no individual section 1983 liability for supervisory officers. Champagne v. Jefferson Parish Sheriffs Office, 188 F.3d 312, 314 (5th Cir. 1999). A supervisory official may be held liable only when he is either personally involved in the acts causing the deprivation of a person's constitutional rights, or there is a sufficient causal connection between the official's act and the constitutional violation sought to be redressed. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987); Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981) ( per curiam). Plaintiff has alleged no fact demonstrating personal involvement by these officials and has alleged no fact showing any causal connection between their acts or omissions and the alleged constitutional violation. Consequently, plaintiffs allegations against these defendants fail to state a claim on which relief can be granted.
To the extent plaintiff sues JOHNSON, COLE, MUNSELLE, and BAKER because they did not investigate and resolve his complaints to his satisfaction, plaintiff has no federally-protected due process right to the investigation and resolution of his complaints or of grievances. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). If plaintiff has any rights in that regard, they are grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 443 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Thus, this claim 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).
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 Claims against defendants JOHNSON, COLE, MUNSELLE, and BAKER be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED. It is the further RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Claims against all defendants in their official capacities be DISMISSED WITH PREJUDICE AS FRIVOLOUS.
Lastly, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that plaintiffs claims sounding in habeas be DISMISSED WITHOUT PREJUDICE TO BEING PURSUED IN HABEAS.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to any attorney of record, utilizing the inmate correspondence reply card or certified mail, return receipt requested, as appropriate. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 996)( en bane.
IT IS SO RECOMMENDED.