Opinion
2:02-CV-0161
November 19, 2002
REPORT AND RECOMMENDATION
Plaintiff WILLIE JAMES WILLIAMS, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants. Based upon plaintiffs claim that he feared for his life, plaintiff was granted permission to proceed in forma pauperis in accordance with the exception set forth in Title 28, United States Code, section 1915(g).
By his October 21, 2002, Amended Complaint, plaintiff complains that, on an unspecified date, defendant UTTER came to plaintiffs cell and threatened to kill plaintiff and his cellmate if they wrote a grievance on him. Plaintiff further complains his grievance to the warden, defendant PRICE, and his I-60 to defendant POLMINER produced no remedial action. Although plaintiff originally asked requested injunctive relief, by his Amended Complaint, plaintiff only asks for $7,500.00 from each defendant.
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 with 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 US. 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 Amended Complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994); Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985).
THE LAW AND ANALYSIS
The Prison Litigation Reform Act requires a physical injury before a prisoner can recover for psychological damages. 42 U.S.C.S. 1997e(e) ("No federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury."). Relying on Eighth Amendment jurisprudence, the Fifth Circuit has determined that the "physical injury" required by section 1997e(e) "must be more than de minimus [sic], but need not be significant." Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Plaintiff alleges absolutely no physical injury of any sort and his request for monetary relief from each of the defendants appears to be barred. Plaintiffs claims for monetary relief, therefore, 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).
Further, with respect to any possible injunctive relief, the Court notes plaintiff has since been transferred to the Montford Unit and is no longer around defendant UTTER, whom plaintiff states works at the Clements Unit. Consequently, any request for injunctive relief is MOOT. Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988).
CONCLUSION
For the reasons set forth above, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff WILLIE JAMES WILLIAMS be DISMISSED AS FRIVOLOUS AND AS MOOT.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. 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).