Opinion
2:03-CV-0364
February 5, 2004
REPORT AND RECOMMENDATION TO DISMISS SOME CLAIMS
Plaintiff DERRICK DWAYNE RICHARDSON, 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 states that he suffered a use of force on May 15, 2000, which resulted in an eye injury to his left eye. Plaintiff says that, despite being taken from his cell several times for weight checks, blood pressure checks, and urine tests, and despite Ms. Paul noticing drainage from his right eye sometime in 2001, he was not referred to optometry until 2001, at which time he was only told he had glaucoma and was not informed of the additional formation of debris in his eye. Plaintiff further states he was seen with the facial injuries which resulted from the use of force by PAMIO staff and 10 building personnel, but no documentation was made of plaintiff's injuries.
Plaintiff says his medical records do not show he had glaucoma in April 1992 when he arrived in TDCJ or in April, 2000 when he entered the PAMIO program.
Plaintiff requests an award of $10,000.00 from each defendant "and declaratory and injunctive relief in the amount of 100,00.00 [sic] dollar [sic]."
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 Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff's allegation against two non-juridical entities, the PAMIO CLINIC STAFF and 10 BUILDING MEDICAL PERSONNEL is that he was seen by members of these groups while he had injuries and that his medical records do not reflect his injuries.This allegation completely fails to state a claim of any sort.
CONCLUSION
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 Claims against defendants the PAMIO CLINIC STAFF and 10 BUILDING MEDICAL PERSONNEL BE DISMISSED 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 any attorney of record, utilizing the inmate correspondence reply card or certified mail, return receipt requested, as appropriate. 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.