Opinion
2:99-CV-0318
July 26, 2002
REPORT AND RECOMMENDATION
Plaintiff GEORGE KEITH YOUNG, 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 paupens.
Plaintiff claims his First Amendment right to petition for redress of grievances, and his Fourteenth Amendment Due Process rights, as well as the Eighth Amendment prohibition against cruel and unusual punishment and state laws concerning assault and battery, were violated by the defendants on or about June 15, 1999, when defendant BRIDGEWATER executed an allegedly unnecessary and excessive use of force on plaintiff, resulting in cuts and a broken and chipped tooth, while defendant COX watched. Plaintiffclaims COX later assisted BRTDGE WATER in concealing the incident. Plaintiffclaims BRIDGE WATER did this in retahation for plaintiffs complaints about him to the F.B.I, and filing administrative grievances against him.
By his August 23, 2000, response to the Court's Briefing Order Questionnaire, plaintiff informed the Court that his disciplinary case resulted the loss of 15 days of recreation and commissary, a 15 day cell restriction, and the determination that he should remain Line 3. Plaintiff further stated the determination of guilt was never overturned on appeal.
Plaintiff requests compensatory damages in the amount of $20,000.00 from defendant BRIDGE WATER and $15,000.00 from defendant COX, as well as punitive damages of$ 10,000.00 from each defendant.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or from an 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 anyjail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(l). A Spears hearing need not be conducted for every pro Z 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. Hemandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf. Green v. MeKaskle 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 distnct 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 plaintiffs original and his amended complaints, as well as his response to the Court's August 7, 2000, Briefing Order, to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Initially, the Court notes plaintiff has not specified whether he is suing defendants in their official or individual capacities; however, the only relief he has requested is an award of monetary damages.
A suit against an official in his official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 1125 Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). The Eleventh Amendment bars suit against a state or a state official unless the State has waived its immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). An exception to this general principle was created in ExparteYoung, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in which the Supreme Court held that a suit for prospective injunctive relief, challenging the constitutionality of a state official's action in enforcing state law, is not one against the State. Id., at 159-160, 28 S.Ct., at 453-54. See, also, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (the Eleventh Amendment grants the States an immunity from retroactive monetary relief, but state officers are not immune from prospective injunctive relief). However, the relief requested in this cause is purely monetary and, thus, the Young exception does not apply. Consequently, plaintiffs claims against defendants in their official capacity 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, plaintiff bases his Fourteenth Amendment claim(s) on the failure of defendants to follow agency regulations in connection with the use of force and in connection with writing a false disciplinary case against him; however, in the wake of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), plaintiff has no state-created liberty interest of the regulations of Texas Department of Criminal Justice-Institutional Division. Moreover, plaintiff cannot maintain a separate cause of action against the defendants based upon the Fourteenth Amendment due process clause because that claim is subsumed by his Eighth Amendment claim of cruel and unusual punishment, Murphy v. Dowd, 975 F.2d 435, 436 (8th Cir. 1992), cert. denied, 507 U.S. 930, 113 S.Ct. 1310, 122L.Ed.2d698 (1993); Clemmons v. Bohannon, 918 F.2d 858, 869 (10th Cir. 1990), vacated on other grounds, 956 F.2d 1523 (10th Cir. 1992) (en banc), and by his retahation claim for exercise of his First Amendment rights. Consequently, plaintiffs Due Process 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).
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 the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Claims against defendants in their official capacity and the Fourteenth Amendment Due Process claims filed pursuant to Title 42, United States Code, Section 1983, by plaintiff GEORGE KEITH YOUNG be DISMISSED WITH PREJUDICE AS FRIVOLOUS.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to any attorney of record, utilizing the inmate correspondence reply card or certified mail, return receipt requested, as appropriate. 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)(l) 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).
IT IS SO RECOMMENDED.
This Report and Recommendation does not affect plaintiffs claim of retahation for the exercise of First Amendment rights, his Eighth Amendment excessive force claim, or his pendent state claims, all as asserted against defendants in their individual capacity.