Opinion
2:04-CV-0028.
July 20, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff THOMAS SAWYER, acting pro se and while incarcerated in the Texas Department of Criminal Justice, Institutional Division, filed this suit pursuant to Title 42, United States Code, section 1983 complaining against the above-named defendants. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
By his May 24, 2004, Amended Complaint, plaintiff alleges that he was shipped to the Clements Unit on March 8, 2000 and, upon his March 8th arrival, his hands were restrained behind his back, dislocating his already-injured shoulder, by defendant MAYFIELD, despite his medical pass and his pleas to an unknown officer and defendant McCANCE. Subsequently, plaintiff's requests to go the infirmary were denied or ignored by defendants SPIERS, RODRIGUEZ, RICHARDS, and an unknown nurse. His requests for grievances were ignored by SPIERS, RODRIGUEZ, and MAYFIELD. Plaintiff further states that, on March 14, 2000, defendant GARCIA confiscated his medical pass to be handcuffed in front and, on March 27, 2000, defendant Nurse SHERWOOD refused to help plaintiff.
Plaintiff appears to plead that RODRIGUEZ is also known as RICHARDS, or has given that name to plaintiff.
Plaintiff alleges that, in September of 2000, defendant Nurse BAKER instructed an officer to handcuff plaintiff behind his back and changed plaintiff's medical records. Plaintiff says that, when defendant Dr. REVELL learned of plaintiff's grievances and lawsuit, or his intention of filing such, he retaliated against plaintiff by jerking his arm, hurting his shoulder, cancelling his current treatments, and refusing to treat plaintiff. Plaintiff states that, on October 18, 2000, while he was at the Montford Unit awaiting physical therapy, he asked defendant RASBERRY to renew his pass allowing him to be handcuffed in front but, after calling defendant REVELL, RASBERRY instructed officers that plaintiff was always to be handcuffed in back. Plaintiff says he could not leave his cell to go to physical therapy because he would have been handcuffed behind his back.
Plaintiff further alleges that in June of 2002, defendant REVELL was treating him for a matter unrelated to his shoulder when he used a dirty needle to take a blood sample, infecting plaintiff with hepatitis and subsequently failing to test plaintiff for the disease or allow him to be tested.
Plaintiff requests costs, compensatory and punitive damages, interest, and injunctive relief.
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 in his amended complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendant.
THE LAW AND ANALYSIS
Exhaustion of Administrative Remedies
The Civil Rights of Institutionalized Persons Act, Title 42, United States Code, section 1997e(a), provides that "[n]o action shall be brought with respect to prison conditions under [Title 42, United States Code, section 1983,] or any other Federal Law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
On his complaint, plaintiff indicates he has exhausted administrative remedies and states his grievances were submitted with cause W-00-108 and 2:03-CV-0143. Concerning cause no. W-00-108, plaintiff discloses the dismissal of that cause in the year 2000 to allow him to pursue his claims in state court. Since the cause was dismissed in 2000, it is clear the grievances relating to plaintiff's hepatitis claims stemming from the June 2002 use of a dirty needle by REVELL and subsequent failure to provide a hepatitis test could not have been submitted to the Court in that cause. Further, as the Court noted in its June 14, 2004, Notice of Deficiency, review of cause no. 2:03-CV-0143 reveals no submission of any grievance concerning plaintiff's allegations that, in June 2002, defendant REVELL used a dirty needle to take a blood sample or subsequently failed to provide plaintiff a hepatitis test.
See page 2B of plainktiff's May 24, 2004, Amended Complaint.
By the June Notice of Deficiency, plaintiff was given fourteen days in which to submit a copy of the step 2 grievances relevant to these claims. The response period has expired, and plaintiff has submitted no pleading or correspondence addressing the deficiency.
It appears plaintiff has failed to exhaust administrative remedies concerning his claims that REVELL used a dirty needle in June 2002, infecting plaintiff with hepatitis, and that he was subsequently refused a hepatitis test.
By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Consequently, these claims 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).
Statute of Limitations
There is no federal statute of limitations for civil rights actions; therefore, the two-year Texas general personal injury limitations period is applied. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). The most favorable filing date possible for this cause is the date plaintiff lists as his signature date on his original complaint, i.e., January 15, 2004. With the exception of his claims concerning infection with hepatitis and a failure to administer the hepatitis test, all of plaintiff's remaining claims appear to have occurred in the year 2000, a period well beyond the applicable statute of limitations. Limitations has clearly expired, and any claims from the year 2000 have expired with it. Consequently, these claims 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).
CONCLUSION
Plaintiff's claims are barred by his failure to comply with the section 1997e exhaustion of administrative remedies requirement before filing the instant suit challenging prison conditions. Further, plaintiff's claims are barred by limitations and are frivolous.IT IS HEREBY ORDERED:
The Civil Rights Claims concerning hepatitis infection by use of a dirty needle and subsequent failure to provide hepatitis test are DISMISSED WITH PREJUDICE FOR PURPOSES OF PROCEEDING IN AN IN FORMA PAUPERIS PROCEEDING PURSUANT TO TITLE 28, UNITED STATES CODE, SECTION 1915(b). Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); 42 U.S.C. § 1997e(a). Plaintiff's remaining Civil Rights Claims are DISMISSED WITH PREJUDICE AS FRIVOLOUS.
The Court declines to exercise pendent jurisdiction over any alleged state tort claims.
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.