Opinion
No. 3-04-CV-0991-P.
June 22, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil rights action brought by Plaintiff Milton Phillips, an inmate at the Hutchins State Jail, against Dr. Paul Mills, the unit physician. On May 10, 2004, plaintiff tendered a pro se complaint to the district clerk and filed an application to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to obtain additional information about the factual basis of this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers with the district clerk on June 9, 2004. The court now determines that this action is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
II.
Plaintiff accuses Dr. Mills of canceling a prescription for prostate medication in retaliation for filing a grievance against the doctor. By this suit, plaintiff seeks unspecified money damages for the pain and suffering he experienced during the 27 days he was without his medication.A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Prison officials may not retaliate against an inmate for exercising his right of access to the courts or using the grievance system. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995), cert. denied, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 106 S.Ct. 1975 (1986). In order to prove retaliation, the inmate must: (1) allege the violation of a specific constitutional right; and (2) establish that the incident would not have occurred but for a retaliatory motive. Johnson v. Rodriguez, 110 F.3d 299, 313 (5th Cir.), cert. denied, 118 S.Ct. 559 (1997); Woods, 60 F.3d at 1166. Mere conclusory allegations are insufficient. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166, quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988).
On December 10, 2003, plaintiff filed a grievance asking Dr. Mills for permission to keep Doxazosin, a prostate drug, on his person. ( Spears Quest., Attch.). Nine days later, Dr. Mills granted the request. ( Id.). Then, on January 23, 2004, Dr. Mills abruptly canceled plaintiff's prescription for Doxazosin, despite the fact that this medication was authorized by another physician through June 24, 2004. ( Id.). Although plaintiff alleges that this action was taken in retaliation for filing an earlier grievance, he offers no facts to support this conclusory assertion. Plaintiff's subjective belief that he was the victim of retaliation does not give rise to a cause of action under 42 U.S.C. § 1983. See Qadir v. Eason, 2003 WL 22433910 at *9 (N.D. Tex. Aug. 12, 2003), citing Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999).
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).