Opinion
3:03-CV-0235-N.
July 1, 2003.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Dawson State Jail of the Texas Department of Criminal Justice (TDCJ), State Jail Division, in Dallas, Texas. Defendants are the Dawson State Jail and Warden Keeton. The court has not issued process in this case. However, on April 1, 2003, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on April 10, 2003.
Statement of Case: The amended complaint, as supplemented by the answers to the questionnaire, alleges the mail room at the Dawson State Jail was closed the day before and the day after Thanksgiving, and the day before Christmas, thus denying Plaintiff's access to his mail. (Amended Complaint at 4 and Answer to Question 3). Plaintiff does not know whether he would have received any legal mail related to his direct appeal on the days the mail room was closed. (Answer to Question 3). He states, however, that he was waiting on "last minute mail from family and loved ones for the holidays." (Answer to Question 5). Plaintiff seeks monetary damages. (Answer to Question 4). Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
According to the amended complaint, the mail room may have been closed an additional day around the Thanksgiving holiday. (See Amended Complaint at 4).
Contemporaneously with the filing of the amended complaint, Plaintiff filed a pleading listing eight individuals who wanted to join in this action. Plaintiff, a pro se litigant, cannot represent these eight additional plaintiffs.See Fed.R.Civ.P. 11.
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Section 1915A provides for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Although Plaintiff has not exhausted his administrative remedies (see Amended Complaint at 3 and answer to question 2), the District Court may dismiss a case as frivolous without first requiring exhaustion of administrative remedies. See 42 U.S.C. § 1997e(c)(2) ("In the event that a claim is, on its face, 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, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies).
The closure of the mail room on the four occasions in question, and the resulting delay in the delivery of mail, is insufficient to state a claim of constitutional dimension. Such a temporary inconvenience is not the type of deprivation sufficient to raise a constitutional claim. Moreover, this is not a case where either Defendant intentionally withheld mail to damage Plaintiff's legal position. Further, the delay in receiving correspondence from loved ones, alleges — at most — an emotional injury which is not a cognizable basis for relief under § 1983. See 42 U.S.C. § 1997e(e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.").
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous. 28 U.S.C. § 1915A and 1915(e). A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.