Opinion
CIVIL ACTION NO. 5:02-CV-048-C.
April 27, 2002
ORDER
Plaintiff, Steve McNeal, acting pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on March 25, 2002. Although he did not request permission to proceed as the representative of a class action, Plaintiff named seven other inmates as co-plaintiffs and alleged that there were common questions of law and fact and that joinder was necessary. Plaintiff is the only party to sign the complaint and he is the only party that filed an Application to Proceed In Forma Pauperis and a certified copy of his certificate of inmate trust account. In the complaint, Plaintiff McNeal alleges that employees of the Lubbock County Jail wrongfully removed the plaintiffs' television on May 8, 2001, after an unidentified inmate yelled an obscenity; conducted a strip search of the inmates in harassment and retaliation; conducted a shakedown of the cells and confiscated personal property; and acted in conspiracy to perform these unconstitutional acts. Plaintiff McNeal requests relief in the form of a declaratory judgment, compensatory and punitive damages, reimbursement for the confiscated personal property, attorney's fees, and modification of the Lubbock County Jail rules. The Defendants have not been served.
1. Class Action
"[T]he class action device exists primarily, if not solely, to achieve a measure of judicial economy, which benefits the parties as well as the entire judicial system. It preserves the resources of both the courts and the parties by permitting issues affecting all class members to be litigated in an efficient, expedited, and manageable fashion." Allison v. Citgo Petroleum Corp., 151 F.3d 402, 410 (5th Cir. 1998). The decision to certify a proceeding as a "class action" lies within the broad discretion of the district court, but the court "must conduct a rigorous analysis of the Rule 23[, Federal Rules of Civil Procedure,] prerequisites before certifying a class." Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996). See Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 471 (5th Cir. 1986) (holding that certification requires proof of both subsections (a) and (b) of Rule 23).
"Rule 23(a) provides that one or more members of a class may sue on behalf of all if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Shipes v. Trinity Industries, 987 F.2d 311, 316 n. 3 (5th Cir. 1993); Fed.R.Civ.P. 23(a). These requirements are more commonly referred to as "numerosity, commonality, typicality, and adequacy of representation." Rule 23(b) provides that an action may be certified as a class action if the requirements of subsection (a) are satisfied and, in addition, the court finds that separate lawsuits would result in inconsistent adjudications or adjudications that would substantially impair the interests of parties not in the class, final injunctive relief or declaratory relief would be appropriate for the class as a whole, or questions of law or fact predominate over any questions affecting the individual members of the class and the class action is the "superior" method for handling the class. Fed.R.Civ.P. 23(b). The parties seeking certification bear the burden of proving compliance with Rule 23. Castano v. American Tobacco Co., 84 F.3d at 740.
Although Plaintiff McNeal alleges that these requirements are satisfied for the eight named plaintiffs, seven of the plaintiffs have not signed the complaint, filed sworn affidavits, filed applications to proceed in forma pauperis, or indicated in any way that Plaintiff McNeal has permission to represent their interests in this civil action. Moreover, McNeal has failed to demonstrate that he is competent to represent the class, as demonstrated by the following discussion of the merits of his complaint. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (holding that a prison inmate unassisted by counsel was not competent to represent a class of fellow inmates). See also McGrew v. Texas Rd. of Pardons and Paroles, 47 F.3d 158, 162 (5th Cir. 1995) (finding it dubious that an inmate whose own complaint failed to state a cause of action could adequately serve as a class representative).
Finally, the Court notes that Plaintiff McNeal has completely failed to demonstrate that the complaint complies with Rule 23(b). See McGrew v. Texas Rd. of Pardons and Paroles, 47 F.3d at 162 (denying class certification where an inmate alleged numerous other inmates had an interest but he did not address any other requirements of Rule 23). The Court has thoroughly reviewed the complaint and finds that no argument can be made that "inconsistent or varying adjudications" of each individual Plaintiffs claims will establish incompatible standards of conduct for the Lubbock County Jail sufficient to justify certification under Rule 23(b)(1).
Construing the complaint liberally, the complaint might be certified under Rule 23(b)(2) because McNeal alleges harm to a large group and is seeking broad equitable relief. See Allison v. Citgo Petroleum Corp., 151 F.3d at 414 ("Actions for class-wide injunctive or declaratory relief are intended for (b)(2) certification precisely because they involve uniform group remedies."). In addition to the request for equitable relief, however, Plaintiff McNeal requests both compensatory and punitive damages. Although the Fifth Circuit has determined that monetary damages may be obtained in a (b)(2) class action, the Fifth Circuit has also determined that the injunctive or declaratory relief must predominate; that is, the monetary damages must only be incidental to the injunctive and declaratory relief. Id. at 411. Cf. Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) (questioning whether monetary damages may be sought in a class action under Rule 23(b)(2)). "[I]ncidental damages should be only those to which class members automatically would be entitled once liability to the class . . . as a whole is established" and should not require additional hearings to resolve the merits of each individual's case. Allison v. Citgo Petroleum Corp., 151 F.3d at 415. The Fifth Circuit has determined that compensatory and punitive damages, the damages requested by the Plaintiffs, are not class-wide remedies and therefore not incidental to requests for equitable relief. Id. at 416. Thus, Plaintiff McNeal cannot demonstrate that this civil action should be allowed certification as a class under Rule 23(b)(2).
Accordingly, the Court finds that Plaintiffs Rickey Smith, Andy Gonzalez, Lupe Guitron, Condarco, Brad Williams, Joe Valdez, and Thomas Vasquez and their claims should be dismissed without prejudice to their right to file individual complaints and applications to proceed in forma pauperis.
2. McNeal's Complaint
When a prisoner seeks to proceed in forma pauperis, the Court shall evaluate the complaint and dismiss it without service of process if the Court finds the complaint 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. See 28 U.S.C. § 1915 (e)(2)(B) (providing that a court shall review an in forma pauperis complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant); 28 U.S.C.A. § 1915A (West 1994 and Supp. 2000) (stating that when a prisoner seeks redress from a governmental entity or one of its employees, the court shall review the complaint as soon as practicable and dismiss it if the court finds the complaint frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief); and 42 U.S.C.A. § 1997e(c) (West 1994 and Supp. 2000) (providing that a district court shall on its own motion or the motion of any party dismiss a complaint by a prisoner regarding prison conditions if the court is satisfied the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant).
A claim is frivolous if it has no arguable basis in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989) A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, "such as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quotation omitted). A claim has no arguable basis in fact if "after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
District courts must construe in forma pauperis complaints liberally, particularly in the context of dismissals under § 1915(e)(2)(B), but are given broad discretion in determining when such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A complaint may not be dismissed under § 1915(d)(2)(B) "simply because the court finds the plaintiffs allegations unlikely." Jolly v. Klein, 923 F. Supp. 931, 942-43 (S.D. Tex. 1996). A civil rights plaintiff must support his claim(s) with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). Nevertheless, a district court is bound by the allegations in a plaintiffs complaint and is "not free to speculate that the plaintiff `might' be able to state a claim if given yet another opportunity to add more facts to the complaint." Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d at 97.
The constitutional rights of a pretrial detainee are guaranteed by both the procedural and substantive due process guarantees of the Fourteenth Amendment, while the constitutional rights of a convicted state inmate are guaranteed by the Eighth Amendment. Hare v. City of Corinth, MS, 74 F.3d 633, 639 (5th Cir. 1996). Nevertheless, "[to] state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
McNeal alleges that on May 8, 2001, when he was incarcerated in the Lubbock County Jail, "someone" yelled an obscenity at Lubbock County jailers Alvarado and Coy. Both jailers replied "You lost your TV." and left the area. Within ten to fifteen minutes, Alvarado and Coy returned to the section with Corporal Welborn. The officers removed the television set from the area at about 10:30 p.m.
At about 2:30 or 3:00 am., Alvarado, Coy, Welborn, Sgt. Rodriguez, and an unidentified officer returned to the section where McNeal was incarcerated, woke each inmate, ordered the inmates out of their cells, and strip searched each inmate one at a time in the dayroom. McNeal contends that this search was done in retaliation and harassment for the obscenity that was shouted earlier in the evening. Following the individual searches, the officers conducted a shakedown of each cell and confiscated both personal and county-issued property.
McNeal states that he is suing Defendants Alvarado and Coy because they confiscated his personal property, arbitrarily took away the television, harassed him, and acted in retaliation. He states that he is suing Defendants Welborn and Rodriguez because they confiscated personal property and violated his rights to equal protection and due process. Finally, McNeal states that he is suing Lt. Stinson and Sgt. Barnes because they "enforced, facilitated, and condoned" the rules leading to the unlawful seizures.
McNeal does not allege that he was physically injured during the strip search or the shakedown of his cell; rather, he contends that he is entitled to a declaratory judgment and monetary damages for the anxiety, mental anguish, and emotional injury that the Defendants caused him to suffer.
When an inmate alleges the negligent or even intentional loss of property and the state provides an adequate remedy, an inmate may not bring a claim under 42 U.S.C. § 1983 to recover damages for his loss. Parratt v. Taylor, 451 U.S. 527, 544 (1981). Texas has a state remedy that satisfies the requirements of due process. Hudson v. Palmer, 468 U.S. 517, 543 (1984); Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). Accordingly, the Court finds that McNeal's complaint about the confiscation of personal or county-issued property fails to state a claim which has any legal basis and should be dismissed with prejudice as frivolous.
To the extent that McNeal is complaining that the strip searches and the cell searches were unconstitutional, he has failed to provide any facts to demonstrate that the searches were unreasonable. The government needs neither a warrant nor probable cause to conduct a search or seizure in the prison or jail context because of the inmates' decreased expectations of privacy and the exigencies inherent in the prison or jail environment. United States v. Lilly, 576 F.2d 1240, 1244 (5th Cir. 1978). The Fourth Amendment requires only that the searches or seizures be reasonable under all the facts and circumstances. Elliott v. Lynn, 38 F.3d 188, 191 (5th Cir. 1994). The burden of proving reasonableness is a light burden because an administrator's decisions and actions in the prison or jail context are entitled to great deference. Id. McNeal does not allege that he was singled out for a shakedown or strip search and he clearly states that the strip searches were conducted "one at a time" in the day room.
As for McNeal's complaint about the removal of the television and television privileges, the claim should also be dismissed as frivolous because it does not pertain to a federal constitutional right. See Montana v. Commissioners Court, 659 F.2d 19, 23 (5th Cir. 1981) (finding that civil rights complaint about restrictions on the use of radio and television in county jail was properly dismissed as frivolous because it did not pertain to federal constitutional right). See Newman v. State of Alabama, 559 F.2d 283, 291 (5th Cir. 1977) ("The Constitution does not require that prisoners, as individuals or as a group, be provided with any and every amenity which some person may think is needed to avoid mental, physical, and emotional deteroriation.").
McNeal's complaint about harassment is also frivolous and should be dismissed. See Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993) (holding that claims of verbal abuse and harassment are not actionable under § 1983).
As for McNeal's allegations against Defendants Stinson and Barnes, he does not allege that the officers were personally involved in any of the "violations" of his rights or that either officer implemented the rules which led to the alleged violations. A supervisory official maybe held liable under § 1983 only if a complainant demonstrates the official affirmatively participated in the act or acts that caused the constitutional deprivation, or the official implemented unconstitutional policies that caused the complainant's injury. Mouille v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992). See Pierce v. Texas Dep't of Criminal Justice, Inst. Div., 37 F.3d 1146, 1150 (5th Cir. 1994) (holding that theories of vicarious liability do not apply to § 1983 claims) and Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1994) (holding that personal involvement is an essential element of a civil rights cause of action). Thus, the claims against Defendants Stinson and Barnes should be dismissed with prejudice.
Although McNeal complains about conditions at the Lubbock County Jail, he is no longer incarcerated there and has been transferred to the Texas Department of Criminal Justice, Institutional Division, French Robertson Unit. Thus, McNeal's requests for equitable relief are moot. Cooper v. Sheriff Lubbock County, Texas, 929 F.2d 1078, 1084 (5th Cir. 1991).
McNeal also raises claims about conspiracy and retaliation, but he offers nothing to support his claims other than his own conclusory allegations. See Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992) (holding that conclusory allegations of conspiracy under § 1983 are subject to dismissal as frivolous); Whittington v. Lynaugh, 842 F.2d 818, 819 (5th Cir. 1988) and Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (both holding that a prisoner must show more than his "personal belief' that he is a victim of retaliation).
Finally, the Court notes that under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), an inmate "may not recover for emotional or mental damages without a showing of a specific physical injury." Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001). See Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) ("The Prison Litigation Reform Act requires a physical injury before a prisoner can recover for psychological damages."). Plaintiff has failed to make any showing of a physical injury and specifically states that he is claiming only mental and emotional injuries; thus, his request for monetary damages is barred by § 1997e(e).
It is, therefore, ORDERED that:
1. Plaintiff Steve McNeal's request to proceed as a class action is denied in all things.
2. The Plaintiffs Rickey Smith, Andy Gonzalez, Lupe Guitron, Javier Condarco, Brad Williams, Joe Vladez, and Thomas Vasquez and all claims alleged by these plaintiffs are dismissed without prejudice.
3. Plaintiff Steve McNeal's complaint and all claims alleged therein are dismissed with prejudice as frivolous and for failure to state a claim.
4. This dismissal shall count as a qualifying dismissal under the Prison Litigation Reform Act and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
5. Plaintiff shall pay the full filing fee of $150.00 in monthly installments pursuant to the Prison Litigation Reform Act and the agency having custody of Plaintiff shall deduct 20% of each deposit made to Plaintiff's inmate trust account and forward the payments to the Court on a regular basis provided the account exceeds $10.00. Plaintiff shall immediately execute all consents and other documents required by the agency having custody of Plaintiff to authorize the necessary withdrawals from Plaintiffs inmate trust account.
6. Plaintiff is advised that if he appeals this Order, he shall be required to pay the appeal fee of $105.00 pursuant to the Prison Litigation Reform Act, and he must submit an application to proceed in forma pauperis and a certified copy of his 6-month Certificate of Inmate Trust Account along with his notice of appeal.
7. All pending motions are hereby denied.
Judgment shall be entered accordingly.