Opinion
3:01-CV-182-X.
May 8, 2001
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 court in implementation thereof, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Michael Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. He was incarcerated at the Venus Unit, a private prison operated by Corrections Corporation of America (CCA), during the events at issue in the complaint. Defendants are TDCJ Director Wayne Scott, Venus Unit Warden Shaw, Venus Unit Assistant Warden Phillips, and CCA President John Ferguson. The court has not issued process in this case. However, on March 27, 2001, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on April 16, 2001.
Statement of Case: The complaint, supplemented by the answers to the magistrate judge's questionnaire, alleges that the Venus Unit and the TDCJ-ID have violated Plaintiff's First Amendment right to freedom of religion as well as his rights under the "Religious Land Use and Institutionalized Persons Act of 2000." (Handwritten attachment to complaint at 1). Plaintiff requests that the Venus Unit and the TDCJ-ID provide him with Kosher food at least once a day, permit him to grow a one-fourth inch beard, allow him to wear a Yarmulke at all times, permit him to light Sabbat candles during Sabbat services and holidays. (Complaint ¶ VI).
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
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 such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.").
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that 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 in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
Plaintiff is no longer incarcerated at the Venus Unit. His transfer to the Michael Unit, (see Notice of Address Change filed on February 13, 2001), renders his claim for prospective injunctive relief against Warden Shaw, Assistant Warden Phillips, and CCA President Ferguson moot. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (inmate's transfer from the ECDC to the Dixon Correctional Institute, rendered his claim for declaratory and injunctive relief moot); Cooper v. Sheriff. Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991) (inmate's transfer to another prison rendered moot his claims for equitable relief in connection with allegedly unconstitutional deprivation of food at former prison); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988) (prisoners who were no longer in Retrieve Unit could not seek injunctive relief against conditions of confinement there). Any suggestion of relief based on the possibility of Plaintiff's transfer back to the Venus Unit is too speculative to warrant relief. Herman, 238 F.3d at 665. Therefore, Plaintiff's request for injunctive relief against Shaw, Phillips, and Ferguson should be dismissed as moot.
In answer to the magistrate judge's questionnaire, Plaintiff alleges that Defendant Scott is responsible for implementing "all the policies dealing with the religious issues raised in this suit." (Answer to Questions 4-8 of the magistrate judge's questionnaire). He further alleges that he is experiencing practically the same religious deprivations at the Michael Unit, a Jewish host unit, that he was experiencing at the Venus Unit. (Answer to Questions 2 and 9). Since Plaintiff is presently incarcerated at the Michael Unit, the events giving rise to his religion freedom claim now arise out of events that have occurred and are presently occurring in Anderson County, which lies within the Eastern District of Texas, Tyler Division. Therefore, the court should transfer any religion freedom claims relating to Defendant Scott to the Eastern District of Texas, Tyler Division.
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of questionnaire.See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal under § 1915(d) is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). Plaintiff's request for injunctive relief against Defendants Shaw, Phillips, and Ferguson is now moot. As a result any claims against these Defendants should be dismissed with prejudice as frivolous.See 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i). Plaintiff's claims against Defendant Scott, should be transferred to the Eastern District of Texas, Tyler Division.
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's request for injunctive relief against Warden Shaw, Assistant Warden Phillips, and CCA President Ferguson be dismissed with prejudice as frivolous. See 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i).
It is further recommended that Plaintiff's claims against Defendant Scott be transferred to the Eastern District of Texas, Tyler Division.
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.