Opinion
2:02-CV-0089
May 21, 2002
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff KENNETH BERNARD WHITE, 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 defendant and has been granted permission to proceed in forma pauperis.
Plaintiff states that, on December 8, 2001, defendant REDDIC wrongfully hit him on the right hand with a bean slot tool and wrote him a false disciplinary case the next day "to cover up the assault, brutality and excessive use of force." Plaintiff claims to have suffered bruises as a result.
Plaintiff requests an award of "$100.00 per day for punishment for filing meaningful grievance on defendant REDDIC," $5,000.00 for mental anguish, $5,000.00 in punitive damages, that the disciplinary conviction be reversed and expunged from his records, and that the punishments be rescinded, lost privileges be restored, and status be recalculated.
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 plaintiffs pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Concerning plaintiffs request of a monetary award "for filing meaningful grievance on defendant REDDIC," there is no recovery for being able to file a grievance, even a "meaningful" grievance, against an officer. Instead, plaintiffs remedy must be for the violation of his civil rights.
Further, plaintiffs request that his allegedly false disciplinary case be reversed and expunged from his records, and that the punishments be rescinded, lost privileges be restored, and status be recalculated depends upon plaintiffs ability to allege a favorable termination of the disciplinary case. To bring a section 1983 claim based simply on the filing of a false disciplinary charge, absent an allegation of retaliatory interference with the exercise of a constitutional right, a prisoner must show favorable termination prior to bringing suit. Woods v. Smith, 60 F.3d 1161, 1165 n. 16 (5th Cir. 1995) (citing Ordaz v. Martin, 5 F.3d 529 (5th Cir. 1993) (unpublished)). The same standard would apply if plaintiff had lost goodtime as a result of the disciplinary case, which does not appear to be the case here. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994); Johnson v. MeElveen, 101 F.3d 423, 424 (5th Cir. 1996). The relief requested by plaintiff demonstrates he has not obtained a favorable termination of his disciplinary case, and there is no allegation of retaliatory interference with the exercise of a constitutional right. Therefore, plaintiff has failed to state a claim on which relief can be granted.
Lastly, the Prison Litigation Reform Act of 1995 (PLRA) requires a showing of injury which, while it need not be significant, must be more than merely de minimis. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Plaintiff has alleged mere bruises as a result of being hit with the bean slot tool. Further, the Court finds no allegation of fact showing a repugnant use of force is evident here. Compare, Olson v. Coleman, 804 F. Supp. 148, 150 (D.Kan. 1992) (finding a single blow to the head causing a contusion to be de minimis and not repugnant) andCandelaria v. Coughlin, 787 F. Supp. 368, 374 (S.D.N.Y. 1992) (allegation of single incident of guard using force to choke inmate distinguished from injuries alleged in Hudson), both cited with approval in Jackson v. Culbertson, 984 F.2d 699, 670 (5th Cir. 1993) (spraying inmate with fire extinguisher found to be de minimis and not repugnant to conscience of mankind); see, also Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992) (interrogatory in civil rights suit requiring jury to determine whether arrestee suffered "injury" as result of alleged use of excessive force before considering issue of damages found reasonable and not plain error). The force of which plaintiff complains is clearly de minimis, outside the scope of the Eighth Amendment, and produced no injury meeting the physical injury requirement. Accord, Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Plaintiff's claim does not fulfill the "physical injury" requirement of the Prison Litigation Reform Act (PLRA) and cannot support the requested award for emotional or mental suffering. Id. Consequently, plaintiff's claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
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 HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff KENNETH BERNARD WHITE is DISMISSED AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to Claire Laric at the U.S. District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.