Opinion
2:04-CV-0161.
October 13, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff JAMES THOMAS WRIGHT, JR., 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 defendants and has been granted permission to proceed in forma pauperis.
Plaintiff complains that defendant UY, a doctor at the Clements Unit, cleared him for field duty without physically evaluating his condition and while he was awaiting surgery. He states that, as a result, he received a disciplinary case and, when he informed UY of the case, UY responded that was the consequence of his having complained about his medical care. Plaintiff says defendant UY returned him to medically unassigned status.
Plaintiff asks for $50,000.00 for pain and suffering and $50,000.00 in punitive damages.
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 plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
In response to question no. III of the complaint form inquiring whether the plaintiff has exhausted both steps of the grievance procedure, plaintiff has marked "Yes" and has submitted both step 1 and step 2 of grievance no. 004154436.
Review of the grievance does not reveal any allegation against defendant UY of retaliation, failure to properly treat plaintiff's medical needs, or any other grievance. Indeed, the only mention of Dr. UY is that, upon being informed by plaintiff on April 27, 2004 of the change in his work status, Dr. UY redesignated plaintiff as medically unassigned, correcting the problem.
It is clear plaintiff has not exhausted administrative remedies before filing suit in federal court and, therefore, his claims are barred by Title 42, United States Code, section 1997e(a).
By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Consequently, plaintiff's claims 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).
In addition, the Court notes plaintiff's grievances demonstrate he never turned out for work during the short period involved in his complaint. Instead, he showed officers his papers designating him as medically unassigned, told them he was awaiting surgery, and was told to return to his cell. Thus, plaintiff cannot contend he sustained any resulting physical injury and his pain and suffering, for which he wishes recompense, would appear to be mental or psychological.
The Prison Litigation Reform Act requires a physical injury before a prisoner can recover for psychological damages. 42 U.S.C. § 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."). 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 has alleged no injury to support the requested monetary award and, therefore, has failed to state a claim on which relief can be granted.
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 JAMES THOMAS WRIGHT, JR., is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The Clerk shall send a copy of this order to plaintiff by first class mail. The Clerk shall also mail copies of this order to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
Any pending motions are DENIED.
IT IS SO ORDERED.