Opinion
No. 7:01-CR-114-R
October 10, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
By Order of Reference dated July 17, 2001, Plaintiffs petition for writ of mandamus was referred to the United States Magistrate Judge. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner, Thomas Bail, filed a petition for writ of mandamus.
II. PARTIES
Petitioner, Thomas Bail, is in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), in the Allred Unit at Iowa ark, Texas. Respondents are Janie Cockrell, Allred Prison Unit Officials, and the Classification and Administration Committee. Process has not been issued.
III. STATEMENT OF FACTS
Petitioner, Thomas Bail, is currently incarcerated in the Allred Unit of TDCJ-ID. He filed a Petition for Writ of Mandamus. He seeks a preliminary and permanent injunction to cause the officials at the Allred Unit to place him in protective custody and transfer him to the Goree Unit of TDCJ-ID. On September 28, 2001, the Court held a hearing by video teleconference to permit Petitioner to explain his claims. See Spears v. McCouer, 766 F.2d 179, 180 (5th Cir. 1985), overruled on other grounds, Neitzke v. Williams, 490 U.S. 319, 324 (1989). For purposes of judicial screening, the Court accepts as true the following allegations:
On June 29, 2001 Petitioner's ceilmate, Miguel Fernandez, arranged for Petitioner, an African-American male, to correspond with an Hispanic female. Then the letters from Petitioner's pen pal stopped, and Petitioner received threatening letters from Hispanic inmates at the Allred Unit. Petitioner did not notify the prison authorities at that time; rather, he notified other African-American inmates.
Petitioner's cellmate was released. The threats started to escalate, and Petitioner reported them to prison officials. Petitioner filed his petition for writ of mandamus in this court on July 2, 2001, and on July 12, 2001, he supplemented his petition. At that time, the prison was on lock-down status, and Petitioner feared he would be killed when the prison returned to normal operations. Prison officials held a classification hearing on August 6, 2001. According to Petitioner, the officials told him he was capable of defending himself because he weighs 200 pounds. On August 10, 2001, Petitioner made another report to classification regarding continuing threats. Prison officials failed to intervene, but Petitioner was able to resolve the matter himself with the inmates.
Petitioner claims officials improperly relied upon records that showed Petitioner had assaulted a guard in 1994, records that he claims should have been expunged.
Petitioner is no longer receiving threats and is not in danger. Petitioner contends he should not have had to resolve the matter himself, and believes he is still entitled to mandamus relief because he might be threatened in the future.
IV. JUDICIAL SCREENING
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiff's complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998), cert. denied, 119 S.Ct. 2405 (1999). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal, if the Court finds the complaint "frivolous" or if it "fails to state a claim upon which relief may be granted." A claim is frivolous, if it "lacks an arguable basis either in law or in fact" Neitzke, 490 U.S. at 325. A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (St Cir. 1986).
V. ANALYSIS
Under Article III of the Constitution this Court may only adjudicate actual, ongoing controversies. Nebraska Press Assn v. Stuart, 427 U.S. 539, 546 (1976); Preiser v. Newkirk, 422 U.S. 395, 401 (1975). The fact that the dispute between the parties was very much alive when suit was filed cannot substitute for the actual case or controversy required for a court to exercise jurisdiction. Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974); Roe v. Wade, 410 U.S. 113, 125 (1973). A case is deemed moot when there is no longer a case or controversy. DeFunis v. Odegard, 416 U.S. 312, 316 (1974). The United States Supreme Court has carved a limited exception that makes a case amenable to federal adjudication even though it might otherwise be considered moot if it presents a question that is "capable of repetition, yet evading review." See Southern Pacfic Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); Roe v. Wade, 410 U.S. 113, 125 (1973).
Petitioner no longer has an Hispanic cellmate and is not likely to correspond with another Hispanic female pen pal who has over-protective friends in the Allred Unit. The question is certainly not "capable of repetition" unless some other unexpected altercation were to arise between Petitioner and the Hispanic or other inmates. It would be pure speculation to assume that if other threats were to arise, prison officials would not handle them properly at the administrative level. Additionally, Petitioner would be required to exhaust his administrative remedies with respect to any future claims. Moreover, just because this particular case did not reach the Court until Petitioner had resolved the issue himself does not mean that any future claims would evade review. If the officials at Allred are not properly investigating and handling gang-related threats, the Court has no reason to believe that a subsequent case attacking Allred's procedures would not come to this Court with relative speed. Additionally, transfers between prison units are not uncommon in TDCJ-ID, and Petitioner could be transferred to another unit irrespective of what happens here. Petitioner has failed to show that this case presents the exceptional situation in which the Southern Pacific Terminal doctrine might permit a departure from the usual rule in federal cases that an actual controversy must exist at every stage, and not simply at the date the action is initiated. Roe v. Wade, supra, at 125; United States v. Munsingwear, Inc., 340 U.S. 36 (1950). The speculative contingency Petitioner suggests, that he might receive future threats of bodily harm from which prison officials would fail to protect him, affords no basis for the Court's passing on the substantive issues that were pled in this case. Hall v. Beals, 396 U.S. 45, 49 (1969). He has not convinced the Court that future threats are immediate and real. Golden v. Zwickler, 394 U.S. 103, 109 (1969); Maryland Casualty Co. v. Pacific Coal Oil Co., 312 U.S. 270, 273 (1941). Although Petitioner is dissatisfied with the way prison officials handled the matter, an injunction should not issue merely to punish past misconduct. See Mitchell v. Bowers, 157 F. Supp. 344 (W.D.S.C. 1958). The issues before the Court are moot because Petitioner is no longer in danger.
RECOMMENDATION
The Court recommends that the District Court summarily dismiss the petition for writ of mandamus as moot.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by Certified Mail, Return Receipt Requested. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto, Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (enbanc).