Opinion
No. 3-02-CV-1263-D
January 28, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Kevin Reid Althouse, appearing pro se, has sued various Dallas County elected officials and employees for civil rights violations under 42 U.S.C. § 1983. For the reasons stated herein, the case should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915 (e)(2).
I.
This lawsuit arises out of another case brought by plaintiff alleging that he received inadequate medical care for a bipolar disorder while incarcerated in the Dallas County Jail. That case was dismissed on summary judgment. Althouse v. Dallas County Jail Medical Dep't, 2002 WL 1398555 (N.D. Tex. Jun. 26, 2002), appeal dism'd, No. 02-11125 (5th Cir. Nov. 12, 2002). Plaintiff now contends that he was prematurely transferred to the TDCJ-ID in retaliation for filing grievances and that some of his records were altered or destroyed during the course of discovery in the prior action. By this suit, plaintiff seeks $300,000 in damages and declaratory relief for the violation of his civil rights.
On June 20, 2002, the magistrate judge recommended that all of plaintiff's claims be summarily dismissed as either time-barred or frivolous under 28 U.S.C. § 1915 (e)(2). Plaintiff objected to this recommendation. The district judge agreed that plaintiff had failed to timely state a due process claim based on the destruction of his jail records or the district attorney's refusal to investigate his complaints, but was "not persuaded that plaintiffs claims for retaliation and alteration of his medical records are so clearly time-barred that they should be dismissed as frivolous at the screening stage." Althouse v. Hill, 2002 WL 1750794 at *1 (N.D. Tex. Jul. 25, 2002). The case was re-referred to the magistrate judge for recommendation as to whom summonses should issue. In his order of re-reference, the district judge specifically authorized the magistrate judge to "issue interrogatories or convene a Spears-type hearing" if necessary to make this recommendation. Id.
Consistent with these instructions, the magistrate judge sent a Spears questionnaire to plaintiff on August 15, 2002. Plaintiff was asked to provide additional information regarding the identity and personal involvement of each defendant allegedly responsible for his premature transfer to the TDCJ-ID and the alteration of his medical records. After numerous extensions and other delays, plaintiff finally answered the questionnaire on December 12, 2002. The magistrate judge now determines that plaintiff has failed to state a cognizable claim against any defendant and this case should be dismissed with prejudice.
By letter dated August 17, 2002, plaintiff objected to the Spears questionnaire as "coercive" and "intimidating." The magistrate judge overruled this objection on August 23, 2002. Plaintiff appealed to the district judge, who affirmed the magistrate judge's order on September 6, 2002. Due to the pendency of this appeal, the magistrate judge sua sponte extended the deadline to answer the Spears questionnaire until September 27, 2002. ORDER, 9/13/02. This time, plaintiff was admonished that the failure to provide full and complete answers by that date would result in a recommendation "that this case be dismissed with prejudice." Id. On September 18, 2002, plaintiff appealed the interlocutory order overruling his objection to the Fifth Circuit. The appeal was eventually dismissed. Althouse v. Hill, No. 02-11087 (5th Cir. Dec. 6, 2002). When plaintiff failed to answer the Spears questionnaire by October 9, 2002, the magistrate judge recommended that this case be dismissed for want of prosecution. The district judge declined to adopt this recommendation after plaintiff promised to answer the questionnaire. See ORDER, 10/03/02. Finally, after two additional extensions of time, plaintiff answered the Spears questionnaire on December 12, 2002.
II.
In its Spears questionnaire, the court asked plaintiff to identify each defendant allegedly responsible for his premature transfer to the TDCJ-ID and the alteration of his medical records. Plaintiff lists 13 potential defendants in his answer: (1) the Dallas County Sheriffs Department; (2) the Dallas County District Attorney's Office; (3) the Dallas County Jail Medical Department; (4) the Dallas County Department of Health and Human Services; (5) Sheriff Jim Bowles; (6) District Attorney Bill Hill; (7) Supervisor Deputy John/Jane Doe; (8) Assistant District Attorney John/Jane Doe; (9) Deputy M.G. Gibson; (10) Deputy J.M. Jameson; (11) Deputy Danny Chandler; (12) Nurse Mary Boyd; and (13) Assistant District Attorney Michael Lang. The court will consider the claims against each defendant in turn.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915 (e)(2). 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, 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 is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
The court initially observes that plaintiff cannot sue the Dallas County Sheriffs Department, the Dallas County District Attorney's Office, the Dallas County Jail Medical Department, and the Dallas County Department of Health and Human Services. It is well-settled that a governmental department cannot engage in litigation "unless the true political entity has taken explicit steps to grant the servient agency with jural authority." Darby v. Pasadena Police Department, 939 F.2d 311, 313-14 (5th Cir. 1991). Governmental offices and departments do not have a separate legal existence. See, e.g., Magnett v. Dallas County Sheriff's Department, 1998 WL 51355 at *1 (N.D. Tex. Jan. 20, 1998) (Kaplan, M.J.) (Dallas County Sheriffs Department not a legal entity); Prenosil v. Dallas County Jail, No. 3-93-CV-1130-D, op. at 2 (N.D. Tex. Jan. 2, 1995) (Fitzwater, J.) (Dallas County Health Department not a proper defendant with jural existence). None of these defendants are separate legal entities and thus are not subject to suit. Accordingly, the claims against the Dallas County Sheriffs Department, the Dallas County District Attorney's Office, the Dallas County Jail Medical Department, and the Dallas County Department of Health and Human Services should be dismissed.
C.
Nor has plaintiff stated a cognizable claim against Sheriff Jim Bowles or District Attorney Bill Hill. Personal involvement is an essential element in a civil rights action under 42 U.S.C. § 1983. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 104 S.Ct. 248 (1983); Payne v. Collins, 986 F. Supp. 1036, 1054 n. 39 (E.D. Tex. 1997). In order to satisfy this requirement, a plaintiff must establish either that the defendant "was personally involved in the acts causing the deprivation of his constitutional rights or that a causal connection exists between the act of the [defendant] and the alleged constitutional violation." Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981).
In support of his claim against Sheriff Bowles, plaintiff states only that he sent a letter to the sheriff complaining that his transfer request had been altered. (Plf. Compl. at 3-C, ¶ 16). Similarly, plaintiff alleges that he sent a letter to District Attorney Hill regarding missing and altered documents. ( Id. at 3-F, ¶ 28). No other allegations are made against the sheriff or district attorney. The one letter sent by plaintiff to these supervisory officials does not establish the level of personal involvement necessary to give rise to liability under 42 U.S.C. § 1983. See Vollmer v. Bowles, No. 3-96-CV-0081-D, FR at 4 (N.D. Tex. Dec. 11, 1996) (Kaplan, M.J.), rec. adopted, 1997 WL 102476 at *1 (N.D. Tex. Feb. 28, 1997) (Fitzwater, J.).
D.
Plaintiff also names "Supervisor Deputy John/Jane Doe" and "Assistant District Attorney John/Jane Doe" as defendants in this case. ( Spears Quest. #1). Neither the Federal Rules of Civil Procedure nor 42 U.S.C. § 1983 provides authority for the joinder of fictitious defendants. Vollmer, 1997 WL 102476 at *2, citing Taylor v. Federal Home Loan Bank Bd., 661 F. Supp. 1341, 1350 (N.D. Tex. 1986). The rules make no provision for naming "John or Jane Does" and later substituting the real person's name. Id., citing Sigurdson v. Del Guercio, 241 F.2d 480, 482 (9th Cir. 1956). As the Ninth Circuit stated in Sigurdson:
These John Doe complaints are dangerous at any time. It is inviting disaster to allow them to be filed and to allow fictitious persons to remain defendants if the complaint is still of record . . . Although the fact that the Rules of Civil Procedure, 28 U.S.C.A., contain no express prohibition upon the subject, there is no authority of which we are aware for the joining of fictitious defendants in an action under a federal statute.Sigurdson, 241 F.2d at 482. See also Williams v. Kaufman County Jail, 2002 WL 31360393 at *3 (N.D. Tex. Oct. 5, 2002); Lindley v. Bowles, 2002 WL 1315466 at *2 (N.D. Tex. Jun. 12, 2002); Vollmer, 1997 WL 102476 at *2; Taylor, 661 F. Supp. at 1350. The claims against these unnamed defendants should be dismissed.
E.
Plaintiff also sues Deputy M.G. Gibson and Deputy J.M. Jameson. More particularly, plaintiff alleges:
Plaintiff did not name Gibson or Jameson as defendants in his pro se complaint. Instead, their names appear for the first time in plaintiffs answers to the Spears questionnaire.
On 12/1/99 Deputy M.G. Gibson #134 and Deputy J.M. Jameson #527 submitted information regarding grievance No. 994796 dated 11/23/99 but marked as filed on 12/15/98 to Supervisor John or Jane Doe of the Dallas County Sheriff's Office. Supervisory Deputy John or Jane Doe then obtained the medical file on inmate Kevin Reid Althouse, B.N.O. #99093823 from Mary Boyd, R.N., Records Custodian at the Dallas County Jail Medical Department. After viewing the medical file and the allegations contained in grievance No. 994796, Supervisor Deputy John or Jane Doe contacted John or Jane Doe — Asst. District Attorney of the Dallas County District Attorney's office and after making him or her aware of the issue by showing him or her the grievance and the medical file, John or Jane Doe — Asst. District Attorney . . . the Texas Department of Criminal Justice — Institutional Division and requested that agency to expedite the return of Kevin Reid Althouse to the penitentiary from the bench warrant.
( Spears Quest. #1(b)) (blank space in original).
Plaintiff has failed to show how Gibson or Jameson were directly involved in the alteration of his medical records or his transfer to the TDCJ-ID. At most, these defendants merely provided unspecified information regarding plaintiff's grievance to an unknown supervisor in the Dallas County Sheriff's Department. The unknown supervisor then allegedly conspired with an unknown district attorney to expedite plaintiffs transfer to the TDCJ-ID. Such vague and conclusory assertions do not give rise to liability under 42 U.S.C. § 1983.
F.
Plaintiff further alleges that Deputy Danny Chandler and Nurse Mary Boyd altered or destroyed his medical records to remove any reference to his mental illness in retaliation for filing grievances related to the prior lawsuit. ( Spears Quest. #1). Jail officials may not retaliate against an inmate for exercising his right of access to the courts or using the grievance system. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995), cert. denied, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 106 S.Ct. 1975 (1986). In order to prove retaliation, the inmate must: (1) allege the violation of a specific constitutional right; and (2) establish that the incident would not have occurred but for a retaliatory motive. Johnson v. Rodriguez, 110 F.3d 299, 313 (5th Cir.), cert. denied, 118 S.Ct. 559 (1997); Woods, 60 F.3d at 1166. Mere conclusory allegations are insufficient. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166, quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988).
Plaintiff alleges that Boyd participated in the destruction of his psychiatric treatment records and prepared paperwork for his transfer to the TDCJ-ID with "personal knowledge that the scheduled return of inmate Althouse to TDC was a form of retaliation for his filing of grievance #994796." ( Spears Quest. #1). Additionally, plaintiff claims that Boyd and Chandler signed false affidavits authenticating his records in the prior lawsuit "with the knowledge that the psychiatric treatment records had been deliberately removed and destroyed from the medical file and the grievance #994796 had been deliberately removed from the jail file and destroyed." ( Id.). These allegations, even if proved, fail to establish any retaliatory motive on the part of Boyd or Chandler. Plaintiffs own belief that he was the victim of retaliation is insufficient to give rise to a cause of action under 42 U.S.C. § 1983. See Woods, 60 F.3d at 1166.
G.
Finally, plaintiff contends that Assistant District Attorney Michael Lang altered certain records that were produced during discovery in the prior lawsuit. At issue are two transfer request forms that were used to move plaintiff to a closed behavioral unit for closer observation. ( Spears Quest. #2(b)). As a result of this conduct, plaintiff claims that his due process rights were violated.
Plaintiff alleges that one of the transfer forms "had a location marked as `4-W-4' and the other form had a location marked as `3-P-7'." Upon closer inspection, plaintiff noticed "a piece of the number `4' was still behind the number `7' and that the document had been altered." ( Spears Quest. #2(b)).
The claim against Lang fails for two reasons. First, the magistrate judge previously recommended that plaintiff's claims involving the destruction or alternation of his jail records, including the transfer request forms dated December 15, 1998, be dismissed. Althouse v. Hill, No. 3-02-CV-1263-D, FR at 3-4 (N.D. Tex. Jun. 20, 2002). The district judge adopted this part of the magistrate judge's recommendation. Althouse, 2002 WL 1750794 at *1. Only plaintiff's claims for retaliation and the alteration of his medical records were re-referred for further consideration. Id. Plaintiff does not allege that Lang retaliated against him or altered his medical records. Consequently, plaintiff has filed to state a cognizable claim against this defendant.
Second, plaintiff has failed to state a due process violation. The due process rights of prisoners must be analyzed under the more general right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977). Sucharight "is founded on the due process clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights." Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974). However, at least in the Fifth Circuit, this right is not broad enough to encompass a right to be free from discovery abuses and fraudulent tactics employed by government officials during a lawsuit. See Foster v. City of Lake Jackson, 28 F.3d 425, 430-31 (5th Cir. 1994). Rather, due process is implicated only "where the ability to file suit was delayed or blocked altogether." Id. at 430.
The Seventh Circuit has held that the right of access to the courts can be violated by governmental action even after a lawsuit suit has been filed. See Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984); Nielson v. Basit, 1994 WL 30980 (N.D. Ill. Feb. 1, 1994). However, the Fifth Circuit expressly disagreed with this holding in Foster. See Foster, 28 F.3d at 430, n. 7.
According to plaintiff, Lang altered records during the discovery phase of a prior lawsuit which may have affected the outcome of that case. However, this did not prevent plaintiff from filing suit. Moreover, plaintiff discovered the alleged alterations while the prior case was still pending. The proper course of action under such circumstances would have been to file a motion for sanctions in that case. See, e.g., Hinds v. Dallas Independent School Dist., 188 F. Supp.2d 664, 674 (N.D. Tex. 2002); Labarbara v. Angel, 95 F. Supp.2d 656, 665 (E.D. Tex. 2000). Regardless of whether Lang altered documents, plaintiff cannot sue him for civil rights violations under 42 U.S.C. § 1983. See LaBarbara, 95 F. Supp.2d at 665 ("The right of access, as defined in Foster, is not the right to win nor proceed without discovery abuses.").
RECOMMENDATION
Plaintiffs claims should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915 (e)(2).