Opinion
No. 3-04-CV-0728-D.
February 22, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This pro se prisoner civil rights action has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and by an order of re-reference dated February 17, 2005. The findings and recommendation of the magistrate judge are as follow:
I.
On April 7, 2004, Plaintiff Mark A. White sued Warden T. Simpson and various prison employees for civil rights violations arising out of his confinement at the Hutchins State Jail. Thereafter, plaintiff amended his complaint and answered written interrogatories propounded by the magistrate judge. In his amended complaint and interrogatory answers, plaintiff alleged that: (1) inmates were routinely denied adequate medical and dental care; (2) the food was nutritionally deficient; (3) the prison lacked adequate recreation facilities; (4) he was placed in administrative segregation for no apparent reason; (5) corrections officers verbally abused inmates and exacerbated racial tensions among the prisoners; (6) his prison identification card contained incorrect information; (7) the bathrooms at the prison were unsanitary; (8) he was denied toiletries and other necessities; and (9) he was not allowed to attend religious services. The magistrate judge screened the complaint and determined that plaintiff failed to state a claim against defendants, all of whom were sued in their supervisory capacities. White v. Simpson, 2004 WL 1196125 (N.D. Tex. Jun. 1, 2004). Plaintiff timely objected to this recommendation and attempted to cure some of the defects identified by the magistrate judge. After considering plaintiff's objections, the district judge re-referred the case to the magistrate judge for further screening and recommendation. See ORDER, 8/19/04.
Plaintiff is currently incarcerated at the O.L. Luther Unit of the TDCJ-ID.
On September 10, 2004, the magistrate judge held a Spears hearing to investigate the factual basis of this suit in more detail. At the conclusion of the hearing, the magistrate judge recommended the summary dismissal of those claims brought by plaintiff on behalf of other inmates and those claims that were not presented to prison and state authorities in Step 1 and Step 2 grievances. The magistrate judge determined that the other claims asserted by plaintiff should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2). White v. Simpson, 2004 WL 2049306 (N.D. Tex. Sept. 13, 2004). After obtaining multiple extensions of time, plaintiff filed objections to this recommendation and sought leave to amend his complaint. The district judge granted leave to amend and re-referred this case to the magistrate judge for further screening in light of plaintiff's amended complaint and objections. See ORDER, 2/17/05.
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
Plaintiff did not formally seek leave to amend. Instead, he tendered an amended complaint as part of his objections to the magistrate judge's recommendation. The district judge construed the pleading as a motion for leave to amend and granted the motion. See ORDER, 2/17/05 at 2.
II.
The magistrate judge initially observes that plaintiff does not object to the summary dismissal of the following claims asserted on behalf of other inmates: (1) prisoners were routinely deprived of their prescription medications; (2) inmates were forced to wait up to 30 days for tooth extractions; (3) the medical staff ignored prescriptions issued and diagnoses made by "free world" doctors; and (4) numerous prisoners contracted staph infections. White, 2004 WL 2049306 at *2. Nor does plaintiff object to the dismissal of the following claims that were not presented to state and prison authorities in Step 1 and Step 2 grievances: (1) he was denied Tylenol on several occasions; (2) he was not x-rayed for tuberculosis; (3) corrections officers verbally abused inmates and exacerbated racial tensions among the prisoners; (4) his prison identification card contained incorrect information; and (5) he was denied the right to attend religious services. Id. at *3.
In his amended complaint and objections, plaintiff presents additional facts to support his claims that: (1) he was placed in administrative segregation for no apparent reason; (2) he was denied adequate recreation and exercise opportunities; (3) he was not given clean clothes or toilet paper; (4) the food was inadequately prepared and did not meet caloric intake standards; (5) he was denied prompt medical treatment for a flu-like illness; and (6) the bathrooms were unsanitary and infested with insects. The court will analyze these claims in light of the new allegations made by plaintiff and the standards for dismissal set forth in 28 U.S.C. § 1915(e)(2).
A.
A district court may summarily dismiss a complaint filed in forma pauperis if it concludes that the action:
(1) is frivolous or malicious;
(2) fails to state a claim upon which relief can be granted; or
(3) seeks money relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 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, 1831-32, 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 fails to state a claim "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
B.
Plaintiff alleges that he was placed in administrative segregation "without an explanation, without a disciplinary hearing, and without cause" upon his arrival at the Hutchins State Jail on January 27, 2004. (Plf. Am. Compl. Obj. at 9, ¶ 1). According to plaintiff, he remained segregated from the general prison population for almost a week, during which time virtually all of his liberties were taken away. ( Id.).The magistrate judge adheres to his prior recommendation that this claim should be dismissed. The Fifth Circuit has held that "segregation, without more, simply does not constitute a deprivation of a constitutionally cognizable liberty interest." Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996), citing Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 116 S.Ct. 1690 (1996). Rather, it is part of the "ordinary incidents of prison life." Id. at 613, citing Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Even if plaintiff was placed in administrative segregation for no reason, he cannot maintain a cause of action under 42 U.S.C. § 1983.
C.
Plaintiff further contends that he was denied adequate recreation and exercise opportunities for approximately six weeks when he arrived at the Hutchins State Jail. ( See Plf. Am Compl. Obj. at 12-13, ¶ 5). Thereafter, outdoor recreation was permitted only twice a week for 20-30 minutes at a time. ( Id.). Although plaintiff testified at the Spears hearing that he was permitted to exercise in his cell, he now alleges that unnamed prison officials threatened disciplinary action if he did pushups and sit-ups in the dormitory. ( Id.). Plaintiff also believes that outdoor exercise was essential "so that heat related illness does not occur, or a fight breaking out due to the living space of inmates as well." ( Id.).
The new facts alleged by plaintiff do not salvage this claim. Despite his conclusory and self-serving assertion that "[o]utdoor exercise is essential to preserve health," plaintiff did not suffer any physical injury due to the lack of recreation. Under these circumstances, there is no constitutional violation. See Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (extreme deprivations are required to show that conditions of confinement violate Eighth Amendment); Waddell v. Jones, No. 3-98-CV-1679-D, op. at 9-10 (N.D. Tex. Dec. 8, 1998) (prisoner failed to state a claim for relief where recreation was offered on Saturday and Sunday mornings and occasionally on Wednesday evenings).
Plaintiff does state that he was "medically ill twice, requiring a doctor to prescribe antibiotics due to the fact that he wasn't allowed the opportunity to do exercise which caused illness." (Plf. Am. Compl. Obj. at 12-13, ¶ 5). However, no facts are alleged to support plaintiff's subjective belief that he became ill due to the lack of exercise.
D.
Next, plaintiff alleges that he was denied clean clothes and toilet paper on multiple occasions in February, March, and April 2004. The magistrate judge recommended the summary dismissal of this claim because plaintiff suffered no physical harm. White, 2004 WL 2049306 at *4, citing 42 U.S.C. § 1997e(e). In his amended complaint and objections, plaintiff states only that his inability to obtain these items created "a substantial risk of serious danger from a fight breakout. Inmates were stealing toilet paper from one another due to the shortage." (Plf. Am. Compl. Obj. at 11, ¶ 4). Significantly, plaintiff does not allege that any fights actually occurred or that he was injured in any such altercation. To the contrary, plaintiff conceded at the Spears hearing that he suffered no physical injury. Plaintiff also acknowledged that he could purchase toilet paper and other personal necessities from the commissary. This is fatal to his claim under 42 U.S.C. § 1983.E.
Finally, plaintiff alleges that: (1) the food was inadequately prepared and did not meet caloric intake standards; (2) he was denied prompt medical treatment for a flu-like illness; and (3) the bathrooms were unsanitary and infested with insects. ( See id. at 9-10, ¶ 2, 10-11, ¶ 3 12-14, ¶¶ 6-7). Without suggesting a view on the merits of these claims or whether dismissal would be proper in another procedural context, such as a motion for summary judgment, the magistrate judge determines that plaintiff has alleged sufficient facts in his amended complaint and objections to survive initial screening.
RECOMMENDATION
Plaintiff should be permitted to prosecute: (1) his food preparation claim against Warden T. Simpson and Captain King, (2) his medical care claim against Lieutenant Towry and Dr. Holbrook, and (3) his sanitation claim against Warden Simpson and Mr. Stroughters. All other claims are frivolous and should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).