Opinion
2:01-CV-0311
February 18, 2004
REPORT AND RECOMMENDATION
Plaintiff JOSE GARCIA MORALES, 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 that, on December 29, 2000, all the defendants conspired to "construe" false disciplinary charges against plaintiff knowing the disciplinary case was going to be expunged but that plaintiff would have suffered punishment by then. Plaintiff claims defendants violated prison regulations and policies to bring and pursue the case against plaintiff. Plaintiff alleges he was denied various procedural rights and that defendant COLE failed to take appropriate disciplinary action against the remaining defendants. Plaintiff also complains that defendant SUTTON instigated the charges to show his authority. Plaintiff says SUTTON and LAVATO had plaintiff locked up in the unit infirmary observation room, and LAVATO allowed SUTTON to leave with the key, resulting in plaintiff's confinement for twenty minutes while handcuffed and without any access to bathroom accommodations.
Plaintiff requests monetary relief and that TDCJ-ID be ordered to follow its own rules and regulations.
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, B ooker 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 original Complaint, as well as his April 23, 2003, response to the Court's questionnaire, and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Reading plaintiffs April 23, 2002, response to question no. 8 of the Court's Questionnaire, it appears plaintiff received a disciplinary charge for building a snowman or "other Christmas holidays structures." Plaintiff states that such activity was sometimes "instigated by staff) (and was priorly [sic] allowed by staff/security/wardens), however, because Mr. SUTTON wanted to make a big issue out of something he thought was serious to him, even after PONDER instructed [the inmates] just to tear it down, PONDER took unappropriate [sic] actions at handling the case, then he wrote a statement of the kind that supported the false charges to be written." From this, the Court infers plaintiffs allegation to be that SUTTON, the unit health administrator, was not satisfied when PONDER ordered the inmates to tear it down and told security to "do something else," resulting in the disciplinary case against plaintiff.When the disciplinary case was processed, plaintiff was determined to be guilty; however, on step 1 appeal, the warden, defendant COLE, instructed that the case be reduced to a minor disciplinary charge and re-run. Plaintiff was again found guilty; but, on Step 2 of the appeal, the case was reversed and expunged from his records. Plaintiffs own allegations make clear that making the snowman was a violation of prison regulations, although one that had been countenanced at some time in the past by unidentified officials; however, plaintiff does not state that SUTTON, PONDER, or any of the other defendants had authorized or encouraged the building of one on that particular occasion. It is clear that the disciplinary case written against plaintiff was arguably valid; and, despite his conclusory allegations, plaintiff alleges no fact to show that any of the defendants had actual knowledge that the case was false or would be reversed on administrative appeal. Further, although expressly required to do so by question no. 8 of the Court's Questionnaire, plaintiff alleges no material fact to support his claim of conspiracy by the defendants. Conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990), and by his allegation of conspiracy, plaintiff has failed to state a claim on which relief can be granted.
Plaintiff argues that various failures by the defendants to follow prison regulations in the handling of his case violated his civil rights; however, in the wake of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), plaintiff has no "created liberty interest in the regulations of Texas Department of Criminal Justice-Institutional Division." The failure of an officer to follow agency procedural regulations or even the relevant state law is not, without more, a constitutional violation, because the relevant constitutional minima may nevertheless have been satisfied. 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, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979).
When Warden Cole reversed plaintiffs case and instructed that it be downgraded to a minor case and reprocessed, plaintiff no longer had any federally protected due process rights with regard to his case, as he no longer stood in jeopardy of losing any goodtime. 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," and these will normally consist of deprivations which clearly impinge on the duration of confinement. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2294, 132 L.Ed.2d 418 (1995)). A minor disciplinary case does not carry a potential punishment of loss of goodtime and, therefore, does not impinge on the duration of the inmate's confinement. Consequently, plaintiff's claims that he was not afforded due process lack an arguable basis in law and are frivolous.
The Sandin Court expressly recognized the unusual deprivations in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to a mental hospital), and Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (forcible administration of psychotropic drugs), also involved a liberty interest.
Plaintiff also alleges defendant MERIDA acted to retaliate against plaintiff for being an inmate, for being a writ writer, and because plaintiff "voiced his opinion . . . on how [officials] were proceeding with this [disciplinary] case. . . ." Plaintiff has alleged no fact to support his claim of retaliatory intent. Conclusory allegations lacking reference to material facts are not sufficient to support claims of malice. Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995). Consequently, plaintiff has failed to state a retaliation claim against defendant MERIDA on which relief can be granted.
Defendant SUTTON is the unit health administrator, and plaintiff complains that a freeworld employee like SUTTON should not have such influence on the writing of a disciplinary case. Plaintiff further complains defendant LAVATO let SUTTON order plaintiff be confined in the infirmary observation room instead of being taken immediately to a prehearing detention physical. Plaintiff says he remained in the observation room for twenty minutes without bathroom accommodations and while in handcuffs; however, plaintiff does not allege he was harmed by this. Again, while uncomfortable, enduring these conditions for twenty minutes did not constitute `"unnecessary and wanton infliction of pain,'" Talib v. Gilley, 138 F.3d 211, 214 (5th Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976)( Estelle quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)); or deprivation of the "minimal civilized measure of life's necessities." See, Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991). By these allegations, plaintiff has utterly failed to state a claim against defendants SUTTON and LAVATO.
As to defendant Counsel Substitute SNODGRASS, a counsel substitute representing an inmate in prison disciplinary proceedings does not act under color of state law for purposes of claims brought under Title 42, United States Code, section 1983. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). Consequently, plaintiff is unable to show one of the two essential elements necessary to state a civil rights claim. Adickes v. Kress, 398 U.S. 144, 149, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) (two elements are necessary for recovery in this type of suit: (1) the plaintiff must show the defendant deprived him of a right secured by the Constitution and laws of the United States; (2) the plaintiff must show the deprivation was committed under color of law, usually by a state official or a private individual in conspiracy with such an official). Plaintiffs claim against defendant SNODGRASS 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
For the reasons set forth above and 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 JOSE GARCIA MORALES be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. 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. 1996)( en banc).
IT IS SO RECOMMENDED.