Opinion
2:03-CV-0397.
March 11, 2005
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff DANNY WAYNE FRY, JR., acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against DOUGLAS DRETKE and eight employees of the prison system. Plaintiff has been granted permission to proceed in forma pauperis
Plaintiff claims an August 8, 2003, use of excessive force by defendants PORTER, WILLIAMS, ABSHIRE, WHITE, ELLIS, and BARRON. Plaintiff claims the use of force also constituted the tort of assault and battery under state law. Lastly, plaintiff claims defendant BELL's failure to curb the abusive conduct of the other defendants constituted deliberate indifference and contributed to and caused the excessive use of force committed by the other defendants. Plaintiff sues defendant McCLEARY in her individual capacity because she is responsible for inmate complaints and grievances at the Jordan Unit, and against defendant DRETKE in his individual and official capacities because he is "responsible for the operations and conduct of all wardens, assistant wardens, officers, etc. who work thereof [sic]." Lastly, plaintiff claims retaliation and harassment by defendants PORTER, WILLIAMS, and ABSHIRE.
Plaintiff requests monetary damages in an unspecified amount.
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 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 to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
FACTUAL ALLEGATIONS
Plaintiff alleges that a June 22, 2003 grievance against defendants WILLIAMS and ABSHIRE for denying him a meal, triggered a remark from defendant PORTER that he wasn't interested in hearing any crying and, "if [plaintiff] didn't like it for [him] to write it up." Plaintiff states that, on June 27, 2003, WILLIAMS and ABSHIRE denied plaintiff his laundry exchange and plaintiff's complaints to Sgt. Richardson failed to produce a satisfactory resolution.
Plaintiff alleges defendants WILLIAMS and ABSHIRE continued to harass him, despite his letters to the Janie Cockrell, the unit warden, the Internal Affairs Division, and various grievances against them and other officers. Plaintiff says he also sent an I-60 to the assistant warden and was interviewed by Lt. Maxey and wrote a letter to the Attorney General about "the mistreatment of inmates and the misconduct of the officers" on the unit. Plaintiff states that, on an unspecified date, he was "informed by these officers that if he didn't stop with the paper work that things would only get worse for him."
Plaintiff further alleges that, on August 8, 2003, he was stopped from going to the shower by an Officer Lane. Plaintiff says he responded the showers didn't close for another half hour, that he was having problems with defendant Officer ABSHIRE, and that ABSHIRE was trying to involve Officer Lane. Defendants PORTER, WHITE, ELLIS, WILLIAMS, and BARRON were called and responded. WILLIAMS placed handcuffs on plaintiff and laughed when plaintiff complained they were too tight, telling plaintiff to "shut up." Plaintiff was escorted to the line building where he was placed against the wall. The camera was pointed away, and defendant PORTER "slamed [sic] his arm into the back of [plaintiff's] neck and forced his face into the wall. Then PORTER, WHITE, and WILLIAMS slapped and hit plaintiff on the head while BARRON and ELLIS did nothing to stop it. PORTER then asked plaintiff if he was going to have any more trouble with him and, when plaintiff replied no, PORTER told him to return to his cell and file on whatever rights he felt were violated, saying it would do no good because plaintiff had no proof.
Plaintiff says that he told defendant McCLEARY about the incident on August 9, 2003 and showed her bruises on his head and face and marks on his wrist from the handcuffs. Nevertheless, she denied plaintiff's grievance and said "if there was no proof then there wasn't anything she could do." Plaintiff says defendant WILLIAMS has continued to harass him.
THE LAW AND ANALYSIS
The malicious and sadistic use of force to cause harm violates contemporary standards of decency; however, not every malevolent touch, push, or shove by a prison guard gives rise to a federal cause of action. Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992). A use of force which is not "repugnant to the conscience of mankind," Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986), is excluded from the Eighth Amendment's prohibition of cruel and unusual punishment and is considered to be de minimis.
The force of which plaintiff complains is clearly de minimis and outside the scope of the Eighth Amendment. An examination of the injury plaintiff claims to have suffered from the August 8th incident reinforces this conclusion. In the instant case, accepting plaintiffs allegations as true, the only injuries plaintiff has alleged are "marks" on his wrists and bruises on his head. Further, the Court finds no repugnant use of force is evident here. Compare, Olson v. Coleman, 804 F.Supp. 148, 150 (D.Kan. 1992) (finding a single blow to the head causing a contusion to be de minimis and not repugnant) and Candelaria v. Coughlin, 787 F.Supp. 368, 374 (S.D.N.Y. 1992) (allegation of single incident of guard using force to choke inmate distinguished from injuries alleged in Hudson), both cited with approval in Jackson v. Culbertson, 984 F.2d 699, 670 (5th Cir. 1993) (spraying inmate with fire extinguisher found to be de minimis and not repugnant to conscience of mankind). Plaintiff's allegations support a claim, at most, of de minimis force. Consequently, plaintiff's claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
To the extent plaintiff complains about being called names and subjected to profanity, it is clearly established that mere allegations of verbal abuse do not present an actionable section 1983 claim. Bender v. Brumley, 1 F.3d 271, 274 (5th Cir. 1993). Further, mere threatening language and gestures of a custodial officer do not amount to a constitutional violation. McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.); cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983) (quoting Coyle v. Hughs, 436 F.Supp. 591, 593 (W.D.Okla. 1977)). Consequently, these allegations fail to state a claim on which relief can be granted.
Plaintiff also claims defendants have retaliated against him. To claim retaliation, prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation. McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Plaintiff implies the alleged retaliation was triggered by his complaints and grievances. See, Carson v. Denby, No. 94-40322 (5th Cir. July 19, 1994) (unpublished) (finding retaliation claim may be founded on prisoners' protected liberty interest in grievance procedures as extension of the right to access the courts). See also Gartrell v. Gaylor, 981 F.2d 254, 259 (5th Cir. 1993); Jackson v. Cain, 864 F.2d 1235, 1248-49 (5th Cir. 1989).
The right of access to the courts is not unlimited, but encompasses only a prisoner's reasonably adequate opportunity to file nonfrivolous legal claims challenging his conviction(s) or his conditions of confinement. Johnson v. Rodriguez, 110 F.3d 299, 310-311 (5th Cir. 1997) (citing Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606 (1996). "[N]either any frivolous filings nor secondary litigation activity . . . may comprise the basis of a retaliation claim." Id. At 311. Plaintiff's factual accounts of the incidents he grieved fail to show that any incident would provide the basis for a non-frivolous filing. Therefore, plaintiff cannot allege a constitutional right which caused the alleged retaliatory conduct of the defendants. Plaintiff's retaliation claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Although plaintiff does not define the nature of his claim against defendant McCLEARY, he alleges he showed her his bruises but she did not satisfactorily resolve his complaint, because he had no proof, and later denied his grievance. Plaintiff sues McCLEARY in her individual capacity, but has alleged no fact to show any personal involvement by defendant McCLEARY or that any act or omission by her caused the incidents forming the basis of this lawsuit. To the extent plaintiff claims defendant McCLEARY should have favorably resolved his grievance, inasmuch as the result of this grievance has no bearing on the duration of his confinement, plaintiff cannot show the existence of a state-created liberty interest in an inmate grievance procedure. See, Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). Plaintiff's claim against defendant McCLEARY lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Lastly, plaintiff sues defendant DRETKE in his individual and official capacities because he is "responsible for the operations and conduct of all wardens, assistant wardens, officers, etc. who work thereof [sic]." The acts of subordinates trigger no individual section 1983 liability for supervisory officers. Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314(5th Cir. 1999). A supervisory official may be held liable only when he is either personally involved in the acts causing the deprivation of a person's constitutional rights, or there is a sufficient causal connection between the official's act and the constitutional violation sought to be redressed. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987); Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981) ( per curiam). Plaintiff has alleged no fact demonstrating personal involvement or any causal connection between DRETKE's acts or omissions and the alleged constitutional violation. Consequently, plaintiff has failed to state a claim against defendant DRETKE 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 DANNY WAYNE FRY, JR., is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
Plaintiff's state law claims of assault and battery are DISMISSED WITHOUT PREJUDICE. McClelland v. Gronwalt, 155 F.3d 507, 519 (5th Cir. 1998) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)) (general practice is to decline to exercise jurisdiction over pendent state-law claims when all federal claims are dismissed or otherwise eliminated from a case prior to trial).
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal 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.
All pending motions are DENIED.
IT IS SO ORDERED.