Opinion
CIVIL ACTION NO. 1:01-CV-095-BG
May 16, 2002
ORDER DISMISSING CASE WITH PREJUDICE
Plaintiff Ray Soliz, Jr., proceeding pro se and informapauperis, has filed a claim pursuant to 42 U.S.C. § 1983. Soliz brings this suit against Defendants Warden Cary J. Cook, Warden Robert Eason, Captain Ronald Williams, Lieutenant Brian Davis, Lieutenant Santos Garcia, and Sergeant Richard Daniels of the French Robertson Unit of the Texas Department of Justice — Institutional Division.
Soliz has consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). An evidentiary hearing was held on November 14, 2001, before the United States Magistrate in Lubbock, Texas, pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). After reviewing Soliz's complaint, the testimony given under oath, the authenticated records, and the relevant case law, the court is of the opinion that the case should be dismissed with prejudice.
I. STATEMENT OF THE CASE
Soliz stated in his complaint that on March 9, 2001, he observed an inmate being slammed to the ground and immediately afterwards riot gas was shot. Soliz panicked and started running. While running, he was shot with a gas riot gun by an unknown officer. He further alleges that he was attacked on the floor by an unknown officer. He claims that Lieutenant David, Lieutenant Garcia, Sergeant Daniels, and Captain Williams did nothing to stop this attack. Soliz claims that before this incident he had complained of harassment by officers. Seven days after the incident, Soliz was denied a shower, a change of dotes, and property, he was placed in administrative segregation, and he was identified as a member of the Mexican Mafia. Soliz claims that he is not a member of this gang, but instead that he has been threatened by the Mexican Mafia. He claims it is policy to lock-up any Hispanic from San Antonio and Austin. He is afraid his life has been put in danger, and the administration is not heeding his complaints of past attempts on his life.
Soliz testified that he arrived on the French Robertson Unit in February of 1999 and continues to be housed on this unit. His claims against Wardens Cook and Eason stem from their alleged failure to investigate the incident and failure to answer his grievances. His claims against Defendants Garcia, Daniels, and Davis stem from their failure to supervise other officers and stop officers who were verbally aggressive.
Soliz testified that he received a bruise and burn marks from the gas canister shot. He also alleges that his small finger was injured. He did not disagree with medical records tat showed he had a physical on March 22, 2001, and at that time he voiced no complaints. He also conceded that he never received treatment for his alleged injuries; however, he claims that he requested treatment in the weeks and months that followed through I-60's and verbal requests to passing officers.
Soliz agreed with records that showed he was charged with assaulting staff and rioting on March 12, 2001; however, he does not agree with the reports filed by officers that state he and nine other Hispanic offenders were involved in an altercation wit 12 correctional officers. He agreed that he was present at the riot; however, states that he was not involved and did not strike officers. Soliz has appealed his disciplinary conviction, but the case has not been overturned or expunged.
Soliz agreed with records tat showed he was placed in administrative segregation on April 14, 2001, and that he continues to be housed in administrative segregation. He is escorted to and from his cell by guards. He filed a life endangerment form and went before the Unit Classification Committee, which denied his request for a transfer. Soliz stated tat he has never been attacked by gang members. He stated that he has received verbal threats from staff. He agreed wit records that showed after he filed a grievance his property was returned; however, he believes not all of his property was returned.
Soliz claims tat he has suffered emotionally from these incidents. He asks for monetary damages to compensate him for everything he has had to put up with.
II. LEGAL STANDARD
Under 28 U.S.C. § 1915 (e), the court is required to dismiss the complaint or any portion of the complaint if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. A claim may be dismissed as frivolous if the claim lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). An evidentiary hearing may be used to assist the court in determining whether the cases should be dismissed. Spears, 766 F.2d at 179. Dismissals can be based on authenticated prison records. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).
Section 1915(e) of Title 28, United States Code, accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of complainant's factual allegations and dismiss those claims in which the factual contentions are clearly baseless. See Denton v. Hernandez, 504 U.S. 25, 21-32 (1992); Neitzke, 490 U.S. at 327; Schulter v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
III. DISCUSSION
A. Excessive Force
Soliz claims that Defendants used excessive force against him. Whenever a prison official stands accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley v. Albers, 475 U.S. 312 (1992): "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992) (quoting Whitley, 475 U.S. at 321)). Under the Whitley approach, the extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation, "or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321. In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7. "The absence of serious injury is therefore relevant to the Eighth Amendment inquiry but does not end it." Id.
The Fifth Circuit Court of Appeals has expressed the factors a court must look to in determining whether an Eighth Amendment excessive force claim has been stated, including:
1. The extent of the injury suffered;
2. The need for application of force;
3. The relationship between the need and the amount of force used;
4. The threat reasonably perceived by the responsible officials; and
5. Any efforts made to temper the severity of a forceful response.Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992) (on remand).
In the wake of the Hudson decision, the Fifth Circuit Court of Appeals has held that some physical injury is an indispensable element of an Eighth Amendment excessive force claim. Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992) (holding that the Hudson decision does not affect the rule that requires proof of injury, albeit significant or insignificant, "injury" properly defined as physical injury); Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) ("Because he suffered no injury . . . [there] was a de minimis use of physical force . . . not repugnant to the conscience of mankind.").
In the case at hand, Soliz admits that he was present at the scene of a riot and attack on guards. In the attempt to restore institutional security, Soliz claims he was injured by gas cans shot by officers. Soliz testified that he received a bruise and burn marks from the gas canister shot. He also alleges that his small finger was injured. Following the incident, Soliz failed to complain of any injury, although he acknowledged that he was examined by medical staff for signs of injury. Soliz stated that he was seen by medical staff after the incident and received shots at some point; however, he agreed with treatment notes that showed he was not treated for any injury arising from this incident. The complained-of use of force here is not of a sort "repugnant to the conscience of mankind." Compare Siglar v. Higluower, 112 F.3d 191, 193 (5th Cir. 1997) (sore and bruised ear lasting for three days was de minimis injury), with Gomez v. Chandler 163 F.3d 921, 924 (5th Cir. 1999) (where court found as a matter of law that Plaintiffs injuries, caused by being knocked down and repeatedly punched in the face and head by officers, were not de minimis). Soliz has not raised a valid Eighth Amendment claim for excessive use of force nor does he have the requisite physical injury to support a claim for emotional or mental suffering.
B. Deprivation of Property
Deprivation of personal property caused by the misconduct of a state official does not violate constitutional due process, provided that adequate state post-deprivation remedies exist. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Myers v. Klevenhagen, 97 F.3d 94-96 (5th Cir. 1996). Texas provides plaintiffs with the tort claim of conversion, which is an adequate post-deprivation remedy for the loss of or confiscation of the personal property of prisoners. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). Therefore, a claim based on deprivation of personal property is not actionable under § 1983. Id. at 543-44. For this reason, Soliz's claim that not all of his property was returned is not sufficient to state a claim of constitutional violation.
C. Failure to Protect
Soliz alleges that Captain Williams failed to intervene and use his influence to stop the unknown guards from attacking him. Soliz argues that prison officials wrongly denied his requests to be reclassified for protective custody, safekeeping status, or for a unit transfer, all in disregard for his safety. To establish a failure-to-protect claim under § 1983, Soliz must show that he is incarcerated under conditions posing a substantial risk of serious harm and that prison officials were deliberately indifferent to his need for protection. Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). In order to act with deliberate indifference, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Soliz has alleged only vague threats and testified that he has never been physically injured.
Further, under Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992), a prison imnate does not have a protectable liberty or property interest in his custodial classification, and an inmate's disagreement with a classification is insufficient to establish a constitutional violation. See Neals, 59 F.3d at 533. For this reason, Soliz's claim must fail.
D. Disciplinary Case
Soliz is not entitled to have damages awarded based on the loss of good time and line class when he has failed to exhaust his administrative remedies on this issue. Soliz cannot collaterally attack his disciplinary case in a civil rights action filed pursuant to 42 U.S.C. § 1983 until he can demonstrate that the disciplinary case has been overturned, reversed, expunged, invalidated, or called into question by a state or federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 487 (1994); Edwards v. Balisok, 520 U.S. 641 (1997). Soliz cannot circumvent these procedural requirements by alleging a conclusory excessive force claim. Further, mere conclusory allegations are insufficient to state a retaliation claim. Woods v. Smith, 60 F.3d at 1166. The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Id.; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The relevant showing in such cases must be more than the prisoner's "personal belief that he is the victim of retaliation." Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Trial courts are required to carefully scrutinize civil rights actions based on claims of retaliation as those claims "must be regarded with skepticism." Woods v. Smith, 60 F.3d at 1166.
E. Supervisor Liability
To state a cause of action under § 1983, the plaintiff must allege facts reflecting the defendant's participation in the alleged wrong, specifying the personal involvement of each defendant. Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986). The doctrine of respondeat superior does not apply to § 1983 cases. Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990); see also Bush v. Viterna, 795 F.2d 1203, 1206 (5th Cir. 1986). Under § 1983, supervisory officials cannot be held liable for the actions of subordinates under any theory of vicarious liability. Monell v. Dep'l of Social Sen's., 436 U.S. 658, 691-95 (1978); Thompkins v. Bel4 828 F.2d 298, 303 (5th Cir. 1987); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985).
In this case, Defendants Davis, Garcia, Daniels, and Williams were named solely because of their positions of authority. As the doctrine of respondeat superior does not apply to § 1983 actions, and no other basis of liability for these Defendants is mentioned, the case against these Defendants should be dismissed with prejudice because the claims against them have no arguable basis in law. See Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989).
For these reasons, Soliz has failed to state a claim of constitutional violation, and therefore, his claims against these Defendants should be dismissed with prejudice.
IV. CONCLUSION
It is, therefore,
ORDERED that this claim be DISMISSED with prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i). This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915 (g) and Adepegha v. Hammons, 103 F.3d 383 (5th Cir. 1996). Dismissal of this action does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997) (citing In re Tyler, 110 F.3d 528, 529-30) (8th Cir. 1997)). It is further
ORDERED that all pending motions not previously considered by the court are DENIED as moot.
This is a consent case assigned to the undersigned United States Magistrate pursuant to 28 U.S.C. § 636 (c) with authority to enter Judgment. Any appeal shall be to the Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C. § 636 (c)(3).
A copy of this Order shall be mailed to all parties appearing pro se, to each attorney of record, to the Office of General Counsel, TDCJ-ID, Litigation Support, P.O. Box 13084, Austin, Texas 78711, and to TDCJ Local Funds Division, P.O. Box 629, Huntsville, Texas 77342-0629 by first class mail.