Opinion
No. 3:03-CV-2884-D.
May 17, 2004
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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Nature of the Case:
Plaintiff filed this complaint pursuant to 42 U.S.C. § 1983 for violation of his civil rights. Plaintiff is currently confined in the Texas Department of Criminal Justice — Correctional Institutions Division. Defendants are Warden John Rupart, Captain Bolden Polk, Officer Robinson and Court Clerk Ms. Scott.
II. Factual Background:
Plaintiff states that his prison disciplinary hearing was unfair. He alleges he was not allowed to call over twenty-five witnesses and that these witnesses were not interviewed. He also states that Officer Robinson failed to adequately investigate the facts of the incident. Plaintiff requests "a proper and fair disciplinary hearing," that his witnesses be interviewed and that his good time be restored.
IV. Preliminary Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
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 suit.28 U.S.C. § 1915A(b) and (b); see also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds 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 fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court finds Plaintiff's claims should be dismissed as frivolous.
V. Discussion
Plaintiff's claims that his disciplinary hearing was unfair fail to state a claim upon which relief may be granted. An inmate does not have a constitutional entitlement to an adequate grievance procedure. See Jenkins v. Henslee, 2002 WL 432948, *2 (N.D. Tex. Mar. 15, 2002) No. 3:01-CV-1996-R (finding effectiveness or altogether absence of administrative grievance procedures do not give rise to constitutional claim); Whiting v. Alvarado, No. 2:03-CV-0053, 2003 U.S. Dist. WL 21501961 (N.D. Tex. June 27, 2003) (finding no constitutional claim arises from failure to properly investigate prisoner grievance); Kimble v. Smith, No. 2:00-CV-352, 2003 U.S. Dist. WL 21350339 (N.D. Tex. June 9, 2003) (same). Plaintiff's claims lack an arguable basis in law and should be dismissed as frivolous.
RECOMMENDATION
The Court recommends that Plaintiff's claims pursuant to 42 U.S.C. § 1983 be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b).