Opinion
NO. 01-1584 SECTION "K" (2)
January 11, 2002
REPORT AND RECOMMENDATION
Plaintiff, Walter Georgetown, is a convicted prisoner currently incarcerated in the Washington Correctional Institute ("WCI") in Angie, Louisiana. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against WCI employees Dr. Quyen Tran, Kathleen McGinnis, Warden Ed C. Day and Barbara Jo Miley. He asserts claims of improper classification, violation of his rights under the Americans with Disabilities Act ("ADA") and retaliation. In his demand for relief, Georgetown seeks a transfer to another correctional facility that would offer better conditions for his health and compensatory damages. Record Doc. No. 1, Complaint at ¶ V.
On August 23, 2001, I conducted a telephone conference in this matter. Participating were plaintiff, proceeding pro se, and Rebecca Clausen, representing defendants. Plaintiff was sworn and testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and its progeny.
I. THE RECORD
Georgetown testified that he was arrested for violating his parole and that his parole was revoked in April or May 2000. He said he was transferred from Hunt Correctional Center to WCI on June 19, 2000. He stated that he is currently serving a sentence of two years for a conviction of unauthorized entry of a business, for which he was sentenced on July 12, 2001.
Plaintiff confirmed that his original claim in this case relates to his work status classification. During the telephone conference, he also raised claims that his rights under the ADA were violated and that WCI officers retaliated against him for filing this lawsuit.
Georgetown stated that he had received a copy of his verified medical records from WCI, which are filed in the court's record. Record Doc. No. 11. He said that he had reviewed the records and they are accurate.
Concerning his work classification, Georgetown testified that Dr. Trait gave him a work status classification that was erroneous in light of his medical condition. He stated that he is infected with HIV (Human Immunodeficiency Virus) and hepatitis C. He said that when he arrived at WCI, the intake personnel there already knew about his medical conditions because they were listed in his medical records from Hunt.
Plaintiff testified that Dr. Tran placed him on regular duty status when he arrived at WCI in June 2000. He said that regular duty required him to work in the field in the hot sun and to walk more than one mile per day. He stated that he complained repeatedly to Dr. Tran about his duty status. However, he testified that Dr. Trait said Georgetown was just trying to get out of work and would not change his classification. Plaintiff testified that he has a very poor T-cell count because of his HIV, that his liver is "being eaten up" by his hepatitis, and that he should not be working outdoors.
Plaintiff testified that Dr. Trait examined him and placed him on regular, unrestricted duty status on June 20, 2000. Georgetown testified that he told Dr. Tran he was not taking any medications for HIV or hepatitis. The medical records reflect that Georgetown's work duty status on June 20, 2000 was "regular with restrictions, compound." He testified that regular duty without any restrictions involved working in the field, swinging blades, digging with shovels, chopping with a hoe and carrying a 50-pound water bucket with another inmate. Plaintiff stated, and the medical records confirm, that his only restrictions when he was on regular duty were that he could not work in the kitchen, could not engage in contact sports and could not lift weights.
Plaintiff testified, in accordance with the medical records, that he next saw Dr. Tran on July 25, 2000. He said that he told Dr. Tran it was too hot for him to work in the field without any restrictions. He said Dr. Tran told him that there was nothing wrong with him and that he was just trying to get out of working.
Georgetown confirmed that he was sent to the C-100 clinic (the HIV clinic) at Charity Hospital (the Medical Center of Louisiana at New Orleans) on August 7, 2000. He testified that he thought the doctor at Charity had restricted him to indoor duty status at that visit. However, the medical records reveal that no restrictions were assigned to him by Charity personnel on August 7, 2000.
Georgetown agreed with the medical records establishing that he next went to Charity Hospital on September 20, 2000. The medical records reveal that the Charity doctor restricted him to "indoor duty status out of sunlight" on that date. Plaintiff testified that the doctor told him that WCI should follow the doctor's instructions. He stated that the doctor did not believe he should start medication yet for his HIV but that he should take multivitamins. Georgetown testified that when he told the doctor he was working in the field, the doctor could not believe it and told him that he should have indoor or compound duty status because working in the field could speed up his condition and cause him to die sooner. Plaintiff said that Dr. Trait saw the indoor duty restriction from Charity when he returned to WCI on September 20, 2000, but Dr. Tran sent him to work outdoors anyway.
The medical records show that WCI evaluated plaintiffs duty status approximately every month and continued to place him on "regular duty with restrictions, compound" (no kitchen work, no contact sports and no weight lifting) until November 29, 2000. A WCI Request for Medical Treatment form dated September 20, 2000 states that plaintiff had returned from Charity Hospital in good condition and notes that the doctor at Charity had recommended "indoor duty status out of sunlight." There is a notation in another handwriting, presumably Dr. Tran's, next to that recommendation, which states "cont[inue] present [duty status]."
The medical records show that Georgetown was continued in the same duty status on November 11, 2000, and that he asked to see the doctor on November 26, 2000 about changing his duty status to inside the fence or indoors. The records reflect that, following a physical examination and evaluation on November 29, 2000, Dr. Tran added "inside fence" to Georgetown's duty restrictions. That duty status was continued on December 20, 2000; February 12, 2001; and thereafter.
Plaintiff stated that when he worked in the field he would get dizzy, sometimes would vomit and would have back and kidney pain. He said that he still experiences rectal bleeding, headaches and constant kidney and back pain, which he believes are the result of working in the field. He testified that his back hurts if he walks for more than eight minutes and he gets cramps in his side and legs. He testified that he could have caught a cold on cold days while working in the field, his T-cell count could have gone down and it could have killed him.
Georgetown testified that his duty status changed around February 2001 after he talked to Dr. Tran. He stated that Dr. Tran again said that plaintiff had nothing wrong with him and he was just trying to get out of work. He alleged that, about two to three weeks later, Dr. Tran told him he would give him a lighter duty status if he would drop the administrative remedy procedure Georgetown had instituted. Plaintiff testified that Dr. Tran changed his duty status after this conversation. He also said that Dr. Tran apologized to him after he filed this lawsuit and asked him to drop the suit, but he refused.
Georgetown stated that when his duty status changed to compound duty inside the fence, he did not go outside the gate to work. He said this duty means that he has a physical impairment and cannot work in the field. He testified that he believed compound duty inside the fence was the correct duty status for him and that he should have been assigned that status when he arrived at WCI in June 2000. However, he testified that this duty status still required him to work in sunlight and to push non-motorized lawnmowers in the hot sun, which he said was worse than being in the field, except that it lessened the amount of walking he had to do.
Plaintiff confirmed that he was taken to Charity Hospital for regular checkups once a month. He stated that his T-cell count went down during the period when he was on regular duty status and that it is still low. He testified that he is not complaining in this lawsuit that he received inadequate medical care.
Georgetown stated that he sued McGinnis because she is a nurse who signed the duty status assignments and she knew about his condition. He said that she responded in writing to his complaints and told him she would only do what Dr. Trait told her. He said that he sued Warden Day because he is the head warden and is responsible for the doctors and nurses, although Warden Day is not a doctor and made no medical decisions. Plaintiff said he wrote to Warden Day and asked to be transferred to Hunt or East Baton Rouge Parish Prison so that he could be closer to his family in case he dies, but Warden Day never responded.
Plaintiff testified that Miley is also a nurse who approved his duty status although she was aware of his medical condition. He said Miley wrote to him in response to his administrative remedy complaint that there was nothing she could do about his duty status.
Defendants' attorney advised the court during the hearing that Miley is not a nurse, but works as an office coordinator at WCI.
Georgetown testified that he believed the treatment he received concerning his work status also violated the ADA because he has a physical impairment that prevented him from working on regular duty.
Although he did not name a specific defendant, Georgetown testified that he had been subjected to "constant" harassment and retaliation since he filed his lawsuit. He said that he had just come out of extended lockdown because he had complained about his cellmate and asked to be moved for his own protection. He stated that when his request was denied, he refused to go back in the cell and was written up for his refusal.
II. ANALYSIS
A. Standards of Review
This court is obligated to screen pro se and in forum pauperis complaints filed by prisoners like Georgetown, "as soon as practicable after docketing," to determine if they should be dismissed as frivolous or malicious or for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(2), 1915(e)(2).
"A federal court may dismiss a claim in forma pauperis `if satisfied that the action is frivolous or malicious.'" Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (quoting former 28 U.S.C. § 1915 (d), now incorporated in 28 U.S.C. § 1915 (e), as amended). A complaint is frivolous "if it lacks an arguable basis in law or fact." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). The law "`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 the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.'" Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
The purpose of a Spears hearing is to dig beneath the conclusional allegations of a pro se complaint, to ascertain exactly what the prisoner alleges occurred and the legal basis of the claims. Spears, 766 F.2d at 180. "[T]he Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners." Davis, 157 F.3d at 1005. The information elicited at such an evidentiary hearing is in the nature of an amended complaint or a more definite statement under Fed.R.Civ.P. 12(e). Wilson v. Barrientos, 926 F.2d 480, 481 (5th Cir. 1991); Adams v. Hansen, 906 F.2d 192, 194 (5th Cir. 1990). "Upon development of the actual nature of the complaint, it may also appear that no justiciable basis for a federal claim exists." Spears, 766 F.2d at 182.
The court may make only limited credibility determinations in a Spears hearing, Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (citingCay v. Estelle, 789 F.2d 318, 326-27 (5th Cir. 1986), overruled on other grounds by Denton v. Hernandez, 504 U.S. 25 (1992)), and may consider and rely upon documents as additional evidence, as long as they are properly identified, authentic and reliable. "The Court should allow proper cross-examination and should require that the parties properly identify and authenticate documents. A defendant may not use medical records to refute a plaintiff's testimony at a Spears hearing." Id. (citing Wilson, 926 F.2d at 482-83; Williams v. Luna, 909 F.2d 121, 124 (5th Cir. 1990)).
After a Spears hearing, the complaint may be dismissed as legally frivolous if it lacks an arguable basis in law, Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992), or "as factually frivolous only if the facts alleged are `clearly baseless,' . . . [or] when the facts alleged rise to the level of the irrational or wholly incredible." Id. at 270.
"`A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.'" Davis, 157 F.3d at 1005 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). "When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under the section 1915(d) standard is not." Moore, 976 F.2d at 269. A prisoner's in forma paupers complaint that fails to state a claim may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
In this case, all of the claims asserted in plaintiff's complaint and his testimony must be dismissed under 28 U.S.C. § 1915 (e) and 42 U.S.C. § 1997e(c)(1), either as frivolous because they lack an arguable basis in law or under Rule 12(b)(6) in light of his testimony explaining the factual basis of his claims.
B. Plaintiff's Improper Classification Claim
Georgetown asserts that defendants improperly placed him in regular duty status for several months despite their awareness of his diagnosed HIV and hepatitis C, and despite the recommendation of the Charity doctor on September 20, 2000 that he be placed on restricted duty status indoors without exposure to sunlight.
Plaintiff testified that he believed his duty status had changed to inside the fence in February 2001. However, the medical records indicate that his duty status changed to inside the fence on November 29, 2000. Georgetown testified that the medical records were "very accurate." There is also a Medical Record Transfer Summary dated July 12, 2000, stating that plaintiff was on limited duty status "indoors in dorm," possibly because of a knee brace on his right knee. It is not clear how long this restriction lasted. Thus, it appears that plaintiff was on regular duty status for approximately five months from June 20 to November 29, 2000.
Plaintiff has no constitutional right to a particular status or classification within any prison. The classification of inmates is an administrative function of the prison. Jones v. Diamond, 636 F.2d 1364, 1376 (5th Cir. 1981) (en banc). Courts accord great deference to prison officials' administrative decisions and will not interfere with legitimate administration without a constitutional violation. Bell v. Wolfish, 441 U.S. 520, 547-48 (1979); Smith v. Bingham, 914 F.2d 740, 742 (5th Cir. 1990). "Inmates have a federal right to due process at prison classification . . . only if state law contains `substantive predicates' limiting the prison administrators' discretion to classify, assign, and punish inmates." Ricker v. Leapley, 25 F.3d 1406, 1409 (8th Cir. 1994);accord Canterino v. Wilson, 869 F.2d 948, 953 (6th Cir. 1989) (citingHewitt v. Helms, 459 U.S. 460, 472 (1983)). "Classification of inmates in Louisiana is a duty of the Louisiana Department of Corrections and an inmate has no right to a particular classification under state law."Woods v. Edwards, 51 F.3d 577, 581-82 (5th Cir. 1995) (citation omitted).
Overruled on other grounds by International Woodworkers of Am. v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir. 1986), aff'd sub. nom. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987).
Thus, "[i]nmates have no protectable property or liberty interest in custodial classification. The classification of prisoners is a matter within the discretion of prison officials. Absent an abuse of discretion, federal courts are loathe to interfere with custodial classifications established by prison officials." Whitley v. Hunt, 158 F.3d 882, 889 (5th Cir. 1998) (citations omitted), abrogated on other grounds by Booth v. Churner, 121 S.Ct. 1819, 1822 (2001).
Further, prison officials can require an imitate who has a medical condition to work, provided that the officials do not act with deliberate indifference to the inmate's health or safety. Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001); Lewis v. Lynn, 236 F.3d 766, 767-68 (5th Cir. 2001).
In this case, Dr. Trait exercised his medical judgment that plaintiff's medical condition did not preclude him from being on regular duty status until November 29, 2000, when he was placed on restricted duty inside the fence. Plaintiff testified that Dr. Trait repeatedly told him that there was nothing wrong with him that would prevent him from working in the field. Plaintiff's testimony and the medical records establish that Dr. Tran evaluated plaintiffs condition and duty status approximately once a month. No doctor placed any restrictions on Georgetown's work status until the Charity doctor recommended on September 20, 2000 that he be given indoor duty. Dr. Tran's decision not to follow that recommendation reflects a disagreement in medical judgment between physicians. Prison doctors are not required to follow the recommendations of non-prison doctors for treating inmates. Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999); Tanner v. Garner, 978 F.2d 1268, 1998 WL 314964, at *2 (10th Cir. 1998) (citing McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977)); Holt v. Meng, No. 94-3380-JWL, 1998 WL 928391, at *4 (D. Kan. Sept. 22, 1998); Burrell v. Griffith, 158 F.R.D. 104, 106 (E.D. Tex. 1994). Even if this court were to assume, as plaintiff appears to allege, that Dr. Tran's decision to continue plaintiffs regular duty status for five months after he arrived at WCI and for two months after the Charity doctor's recommendation may have been medically erroneous, such an allegation amounts at most to negligence, which is not a violation of constitutional rights actionable under Section 1983.Stewart, 174 F.3d at 536.
Plaintiff's complaint concerning improper classification is not an abuse of the discretion the law assigns to prison officials and with which this court should not interfere. No violation of Georgetown's constitutional rights occurred under the circumstances concerning his work status classification described in his testimony.
C. No Individual Liability Under the ADA
The Supreme Court in Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 209-10 (1998), recognized for the first time that state prisoners may bring claims against their jailors for disability discrimination under Title II of the ADA, which prohibits discrimination by public entities. Thus, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
The term "public entity" in Title II does not include individuals. Thus, individual defendants cannot be held liable for violations of Tide II of the ADA. Washington v. Davis, No. 01-1863, 2001 WL 1287125, at *3 (E.D. La. Oct. 23, 2001) (Barbier, J.); Sims v. Tester, No. 3:00CV0863d 2001 WL 627600, at *1 (N.D. Tex. Feb. 13, 2001); Berthelot v. Stadler, No. 99-2009, 2000 WL 1568224, at *1 (E.D. La. Oct. 19, 2000) (McNamara, C.J.) (citing Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999) (en banc) (additional citations omitted).
Georgetown did not state in his complaint or his testimony whether he is suing the defendants in their individual or official capacities. To the extent they are sued in their individual capacities, his ADA claims against them must be dismissed.
D. Plaintiff's ADA Claim
As to any other kind of claim plaintiff may be asserting under the ADA, the statute defines disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [a qualified] individual; (B) a record of such an impairment; or (C) being regarded as having such impairment." Id. § 12102(2). Major life activities "include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998) (quotations omitted).
Georgetown apparently alleges that his HIV and hepatitis C are disabilities. Although these medical needs may constitute physical impairments, id. at 642, they are disabilities for ADA purposes only if they substantially limit a major life activity. The determination whether such a limitation exists must be made on an individualized, case-by-case basis. Id. at 637-41; Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 860 (5th Cir. 1999); Deas v. River West, L.P., 152 F.3d 471, 478 n. 15 (5th Cir. 1998).
Generally, a plaintiff proceeding under Title II must "show that: (1) he or she is a `qualified individual with a disability'; (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) the entity which provides the service, program or activity is a public entity." Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL 33458, at *7 (S.D.N Y Jan. 26, 1999) (emphasis in original) (quotation and citation omitted); accord Moore v. Prison Health Servs., Inc., 24 F. Supp.2d 1164, 1167 (D. Kan. 1998) (citing Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998)), aff'd, No. 98-33 10, 1999 WL 1079848 (10th Cir. Dec. 1, 1999); King v. Edgar, No. 96 C 4137, 1996 WL 705256, at *5 (N.D. Ill. Dec. 4, 1996). Title II "afford[s] disabled persons legal rights regarding access to programs and activities enjoyed by all, not a general federal cause of action for challenging the medical treatment of their underlying disabilities." Moore v. Prison Health Servs., Inc., No. 98-3310, 1999 WL 1079848, at *1 (10th Cir. Dec. 1, 1999) (unpubl. opin.) (emphasis added). Title II does not require a prison to make reasonable accommodations for inmates with disabilities,Owens v. O'Dea, 149 F.3d 1184, 1998 WL 344063, at *3 (6th Cir. 1998), or create a right for an inmate to be housed at a specific prison. Garrett v. Angelone, 940 F. Supp. 933, 942 (W.D. Va. 1996), aff'd, 107 F.3d 865 (4th Cir. 1997).
In the instant case, Georgetown's written submissions, as expanded upon in his Spears testimony, do not establish that he is substantially limited in a major life activity by his medical conditions for ADA purposes. On the contrary, his testimony established only that he sometimes experienced dizziness, vomiting, rectal bleeding, headaches, back and kidney pain and leg cramps, which he (but no doctor in the record) attributed to his diseases. He speculated that he might have caught a cold, might have suffered a decrease in his T-cell count and might have died, none of which actually occurred. He did not testify to any substantial limitations in any of the major life activities described in Bragdon or in any other such major life activity in connection with his HIV-positive and/or hepatitis C-positive status.
Even if Georgetown could be considered to be limited in the major life activities of walking or working by his medical conditions and is a qualified individual with a disability for ADA purposes, the record reveals that he has not been denied the opportunity to participate in or to obtain the benefits of services, programs or activities offered by the jail because of his condition. He did not identify any jailhouse activities in which he has been denied participation. "[S]uch a denial is an essential element of an ADA claim." Durham v. Roberts, 103 F.3d 138, 1996 WL 713463, at *2 (9th Cir. 1996).
Georgetown does not allege, and there is no indication in the record, that he was denied access to any programs or facilities because of his disability. Rather, he alleges that he was treated just like all the other inmates who had no medical conditions similar to his when he was placed on regular duty status. "No discrimination is alleged; [plaintiff] was not treated worse because he was disabled. His complaint is that he was not given special accommodation." Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996); see also Owens, 1998 WL 344063, at *3 (no evidence that plaintiff was denied medical care because of his HIV-positive diagnosis);Durham, 1996 WL 713463, at *3 (two plaintiffs with post-traumatic stress disorder and loss of use of one hand, respectively, failed to show that access to law library was hindered by their disabilities); Burgess, 1999 WL 33458, at *7 (plaintiff who walked with a cane following multiple knee surgeries was not prevented from using recreation yard or attending religious services merely because he experienced some difficulty in accessing these areas); Devivo v. Butler, No. 97 CIV 7919 (HB), 1998 WL 788787, at *4 (S.D.N.Y. Nov. 10, 1998) (legally blind plaintiff who was ordered to work by prison official failed to allege he was denied benefit of any hearing, program or service because of his blindness); Longo v. Barbo, No. 94-3919, 1996 WL 453570, at *4 (D.N.J. Aug. 9, 1996) (no ADA violation when plaintiff "was not denied a single cell based upon his alleged asthmatic and allergic conditions. Nor does he allege that he was denied the benefits of any other service, program or activity provided to inmates by [the] . . . Prison based on his `disabilities.'") (emphasis added).
Because plaintiff has not identified any substantial impairment in any major life activity in connection with his medical condition, or any program or service from which he was barred at the prison because of his diagnosed diseases, he has failed to state a claim under the ADA.Bryant, 84 F.3d at 248; Moore, 24 F. Supp.2d at 1167.
E. Retaliation
Georgetown alleges that he has been subjected to harassment and retaliation since he filed this lawsuit. Specifically, he testified that he had only recently been released from extended lockdown. He was a convicted prisoner at the time of this incident.
The law in the Fifth Circuit concerning prisoner retaliation claims has undergone substantial evolution in recent years. It is based on the following general principles:
It is well established that prisoners enjoy a constitutional right of access to the courts. It is equally well established that prison officials may not retaliate against a prisoner for exercising this right. The elements of a retaliation claim are the invocation of a specific constitutional right, the defendants' intent to retaliate against the plaintiff for his or her exercise of that right, a retaliatory adverse act, and causation, i.e., but for the retaliatory motive the complained of incident . . . would not have occurred. With respect to the last element, we [have] emphasized that an action motivated by retaliation for the exercise of a constitutionally protected right is actionable even if the act, when taken for a different reason, may have been legitimate.Clarke v. Stalder, 121 F.3d 222, 231 (5th Cir. 1997) (emphasis added) (quotations and citations omitted).
In Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995), the Fifth Circuit, applying the general First Amendment principles addressed above, affirmed the district court's denial of defendants' motion for summary judgment, which had sought dismissal of a prisoner s retaliation claim. The Fifth Circuit agreed that the inmate's retaliation claim should be permitted to proceed, but in doing so it expressed the following caution: "The prospect of endless claims of retaliation on the part of inmates would disrupt prison officials in the discharge of their most basic duties. Claims of retaliation must therefore be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions." Id. at 1166 (citation and quotation omitted). The Fifth Circuit warned that trial courts must "carefully scrutinize these claims." Id.
To state a claim of retaliation an inmate must allege the violation of a specific constitutional right and be prepared to establish that but for the retaliatory motive the complained of incident . . . would not have occurred. This places a significant burden on the inmate. . . . The inmate must produce direct evidence of motivation or, the more probable scenario. "allege a chronology of events from which retaliation may plausibly be inferred."Id. (citations omitted) (emphasis added).
A year later, the United States Supreme Court reexamined the scope of prisoners First Amendment right of access to the courts in Lewis, 518 U.S. at 343. As previously noted, the Court made clear in Lewis that an inmate must establish actual injury to state a claim for denial of his right of access to the courts. The Court stated that the First Amendment right of prisoners to access to the courts is the right to "have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement." Id. at 356 (emphasis added).
A year after Lewis, the Fifth Circuit reviewed another retaliation claim by inmates in Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997). In Johnson, a magistrate judge concluded that certain aspects of the Texas parole system that permitted parole board members to consider prisoners' participation in inmate litigation in connection with their parole determinations violated the inmates' First Amendment right of access to the courts. The Fifth Circuit reversed and remanded this portion of the magistrate judge's findings. Id. at 310-14. The court again noted the long recognized rule that prisoners generally enjoy a constitutional right of access to the courts. Id. at 310. Quoting the Supreme Court's decision in Lewis, however, the Fifth Circuit held that "[t]his right of access for prisoners is not unlimited . . .; rather it encompasses only "a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement."Id. (emphasis added). Significantly for present purposes, the Fifth Circuit concluded: "Thus, neither any frivolous filings nor secondary litigation activity, i.e., legal research and writing . . ., may comprise the basis of a retaliation claim." Id. (emphasis added).
This lawsuit was filed on May 31, 2001. Georgetown testified on August 23, 2001 that he had just come out of extended lockdown because he had complained about his cellmate and had asked to be moved for his own protection. He stated that when his request was denied, he refused to go back in the cell and was written up for his refusal. His testimony concerning these actions "adequately allege[s] a chronology of events from which retaliation may plausibly be inferred," as required in Woods, 60 F.3d at 1166.
However, the recent decisions of the Supreme Court and the Fifth Circuit discussed above establish that more is required to state a retaliation claim. Applying the foregoing standards, Georgetown's retaliation allegations in this case are deficient.
No violation of a specific constitutional right occurred as a result of the allegedly retaliatory act. In Sandin v. Connor, 515 U.S. 472, 481-83 (1995), the Supreme Court held that analysis of a prisoner's due process claims relating to prison disciplinary action begins with determining whether a constitutionally protected liberty interest exists. "Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466 (1983). In Sandin, the Supreme Court recognized that although the States may create liberty interests, "these interests will generally be limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484 (citations omitted). Thus, in Sandin, when a prisoner was placed in disciplinary segregation for 30 days and the discipline did not inevitably affect the duration of his sentence, the Court held that due process does not require that the prisoner be afforded the procedural mechanisms previously prescribed in Wolff v. McDonnell, 418 U.S. 539 (1974), and Hewitt, 459 U.S. at 460.
"[T]he Due Process Clause does not protect every change in conditions of confinement which has a substantial adverse effect upon a prisoner."Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). The Madison court held that a prisoner's 30-day commissary and cell restrictions imposed as punishment for disciplinary violations were "merely changes in the conditions of his confinement and do not implicate due process concerns."Id. at 768; accord Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000) (citing Preiser v. Rodriguez, 411 U.S. 475, 493 (1973)). The court further held that such restrictions are "penalties, which do not represent the type of atypical, significant deprivation in which a state might create a liberty interest." Madison, 104 F.3d at 768. Examples of disciplinary hardships that would qualify as so atypical and significant as to implicate due process considerations include unwanted administration of psychotropic drugs, involuntary commitment to a mental hospital or extension of the prisoner's sentence for his underlying criminal conviction. Sandin, 515 U.S. at 484.
The punishment of which plaintiff complains is extended lockdown because of his refusal to obey an order to enter his cell. As to this type of punishment, Georgetown was entitled to no particular process under Sandin. This punishment does not constitute such an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" that particular forms of process were required. Sandin, 515 U.S. at 484.
To the extent Georgetown may be claiming that prison officials are asserting false disciplinary charges against him, the case law is clear that an allegation that false disciplinary charges were asserted against an inmate by a prison official fails to state a claim under Section 1983 when the prisoner is afforded due process protection through a subsequent hearing. Collins v. King, 743 F.2d 248, 253-54 (5th Cir. 1984); Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984); Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986). In this case, Georgetown did not testify that he was denied a disciplinary hearing. Thus, he fails to state a claim that his due process rights were violated in relation to his disciplinary proceedings.
No actual prejudice to Georgetown's position as litigant of the type required by Lewis has been alleged. The instant lawsuit was filed and is being actively evaluated. Thus, Georgetown has suffered no actual prejudice to his position as litigant in the instant case or any other litigation as a result of defendants' allegedly retaliatory action, and his retaliation claim must be dismissed.
In addition, the decision of the Fifth Circuit in Johnson establishes that Georgetown fails to state a retaliation claim on another ground. As discussed above, all claims asserted in his complaint and his testimony are legally frivolous and fail to state a claim for which relief can be granted under Section 1983. Under Johnson, such claims may not comprise the basis for a retaliation claim. There can be no retaliation actionable under Section 1983 where the action allegedly constituting the retaliation has been taken in response to the filing of a complaint containing only frivolous claims. Thus, Georgetown's retaliation claim must also be dismissed for that reason.
F. Request for a Transfer
Georgetown also seeks a transfer to another correctional facility that would offer better conditions for his health. However, it is clear that a prisoner has no right of any kind springing from the Constitution itself to be housed in any particular facility or to be transferred or not transferred from one prison facility to another, even if life in one prison may be much more disagreeable than in another. Olim v. Wakinekona, 461 U.S. 238, 24546 (1983); Meachum v. Fano, 427 U.S. 215, 224-225 (1976); Montanye v. Haymes, 427 U.S. 236, 242 (1976); Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996); Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995); Jackson v. Cain, 864 F.2d 1235, 1250 (5th Cir. 1989);Maddox v. Thomas, 671 F.2d 949, 950 (5th Cir. 1982). Georgetown has no right to be transferred just because another correctional facility might offer "better conditions." This claim is legally frivolous.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that plaintiff's complaint be DISMISSED WITH PREJUDICE as legally frivolous and/or for failure to state a claim under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).