Opinion
3:03-CV-824-N
October 8, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Nature of the Case:
Plaintiff brings this complaint pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding in forma pauperis.
II. Parties;
Plaintiff is confined in the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"). Defendants are Sheriff Jim Bowles, former TDCJ Director Gary Johnson, former TDCJ Director Wayne Scott, Management and Training Corporation of Utah and Unknown Dallas County Sheriffs Department employees and TDCJ employees.
III. Statement of the Case;
Plaintiff alleges that on January 13, 1998, he was unlawfully transferred from Dallas County Jail to the TDCJ after he was convicted of criminal charges. Plaintiff states he should have been allowed to remain in the custody of the Dallas County Jail pending his appeal. He states that on or about July, 1999, he was returned to the custody of the Dallas County Jail and about 30 days later he was again unlawfully transferred into TDCJ custody. He argues that the rules and regulations of the TDCJ were more restrictive than those of the Dallas County Jail.
Plaintiff also claims Defendants have violated his civil rights by allowing female guards to monitor toilet and shower areas. He also states Defendants violated his Thirteenth Amendment rights by requiring him to perform work without pay while incarcerated at TDCJ.
IV. Preliminary Screening
Plaintiffs complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous if it "lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court finds Plaintiffs claims should be dismissed as frivolous. V. DISCUSSION
1. Transfers to the TDCJ
Plaintiff argues he was unlawfully transferred from the Dallas County Jail to the TDCJ on January 13, 1998, and on or about August, 1999. Plaintiff states that as a result of these unlawful transfers, he was subjected to greater restrictions than he would have been subjected to at the Dallas County Jail. He also argues that because the transfer was unlawful, his continued incarceration is unlawful. Plaintiff cites the Texas Code of Criminal Procedure article 42.09, section 4, to support this claim. That article states:
If a defendant is convicted of a felony and his sentence is a term of ten years or less and gives notice of appeal, he shall be transferred to the institutional division of the Texas Department of Criminal Justice on a commitment pending a mandate from the court of appeals or the Court of Criminal Appeals upon request in open court or upon written request to the sentencing court. . . .
Plaintiff argues he made no request to be transferred to TDCJ, so his transfer was unlawful.
To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States; and (2) a deprivation of that right by a defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). Plaintiffs claims that Defendants violated article 42.09 of the Texas Code of Criminal Procedure fail to allege a deprivation of a right secured by the Constitution and laws of the United States. These claims should therefore be dismissed as frivolous.
Further, Plaintiffs claims are barred by limitations. A civil rights action under 42 U.S.C. § 1983 is governed by a two-year statute of limitations. See Owens v. Okure, 488 U.S. 235, 250 (1989) (stating federal court should look to general personal injury limitations period of forum state); AH v. Higgs, 892 F.2d 438, 439 (5th Cir. 1990) (finding limitations period in Texas is two years). Plaintiff states Defendants violated his civil rights when they transferred him to TDCJ on January 13, 1998, and on or about August, 1999. ( See Compl. p. 4). Plaintiff did not file this complaint until April 16, 2003. These claims are therefore barred by limitations.
2. Surveillance
Plaintiff argues Defendants violated his civil rights by allowing female guards to observe shower and toilet areas. The Fifth Circuit has held, however, that cross-sex surveillance of prisoners at shower and/or toilet facilities does not violate a prisoner's right to privacy, nor does it violate a prisoner's right to equal protection. See Oliver v. Scott, 276 F.3d 736, 746 (5th Cir. 2002). Plaintiffs claims should be dismissed as frivolous.
3. Involuntary Servitude
Plaintiff claims that TDCJ required him to perform work without pay. Plaintiff argues this requirement violated his Thirteenth Amendment rights to be free from involuntary servitude. The Thirteenth Amendment states:
Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall be duly convicted shall exist within the United States, or any place subject to their jurisdiction.
U.S. CONSTITUTION, Thirteenth Amendment, § 1 (emphasis added). Because Plaintiff was duly convicted of a crime, the TDCJ work requirement does not violate the Thirteenth Amendment. Further, the Fifth Circuit has held that requiring prisoners to work without pay does not violate a prisoner's constitutional rights. See Ali v. Johnson, 259 F.3d 317, 318 (5th Cir. 2001); see also, Wendt v. Lynaugh, 841 F.2d 619, 621 (5th Cir. 1988). Plaintiffs claims should be dismissed as frivolous.
RECOMMENDATION
The Court recommends that Plaintiffs claims pursuant to 42 U.S.C. § 1983 be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b).