Opinion
No. 2:03-CV-0290.
July 6, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff DONALD MOODY, 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 given permission to proceed in accordance with Title 28, United States Code, section 1915(b).
Plaintiff complains he can't get a job reassignment to the kitchen. He claims defendant BAKER controls the job and housing assignment and has overlooked his I-60 requests. Plaintiff claims defendant COLE grades cases to determine whether they are minor or major. Plaintiff claims defendant AGURRYE is "over disciplinary cases" and told plaintiff he would stay in the broom squad. Plaintiff claims he has suffered "mental re-lasp [sic] and sleeping problems." By his plea for relief, plaintiff asks ". . . why can't be move food services? Are will Investigate if have mental pain's in head's or threat to public then put me sleep so-want have try prove my problems hasn't change; if be interview for new parole next year 2004?"
Plaintiff's pleadings are nearly-incoherent; however, it appears he has also mentioned, in global and conclusory terms, an unidentified disciplinary case, deductions from his inmate trust fund account, and parole set-offs.
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 District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendant.
THE LAW AND ANALYSIS
Plaintiff seems to feel an I-60 request for a job change imposes a duty on prison officials to grant the request. Plaintiff is mistaken. Plaintiff has no due process right to have his wishes considered when job assignments are made. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (a prisoner has a liberty interest only in "freedom[s] from restraint . . . impos[ing] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life"); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (Prison administrative decisions resulting in confinement in a particular prison, the loss of a prison job, or the loss of the opportunity to earn good-time credits because of custodial status, do not create constitutionally protected liberty interests because they might have speculative, collateral consequences on parole). Plaintiff's 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).
Although plaintiff's pleadings are difficult to understand, he also mentions, in vague and global terms, an unidentified disciplinary case, deductions from his inmate trust fund account, and parole set-offs. Plaintiff has not indicated he has exhausted administrative remedies concerning these claims and they are barred from being asserted federal court. 42 U.S.C. § 1997e(a). Further, plaintiff has not stated sufficient facts to state a claim of any sort with respect to these matters.
CONCLUSION
For the reasons set forth above, plaintiff's claims under Title 42, United States Code, section 1983 lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
IT IS HEREBY ORDERED:
The referral of the instant cause to the United States Magistrate Judge is hereby withdrawn.
Pursuant to Title 28, United States Code, section 1915(e)(2), this Civil Rights Complaint is DISMISSED WITH PREJUDICE AS FRIVOLOUS, FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED, AND AS BARRED BY PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are 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 to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711 and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.