Opinion
2:00-CV-0236.
June 9, 2003.
REPORT AND RECOMMENDATION
Plaintiff DONNELL HOOPER, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
Plaintiff complains that, on or about March 26, 1998, defendant Nurse RICHARDSON withdrew his medical restrictions for playing in a basketball tournament, an activity contrary to plaintiff's asserted conditions, when, in fact, plaintiff was only sitting on the sidelines helping with the score-keeping. As a result, plaintiff s job duties were changed, and he was placed on the hoe squad on field duty. On or about July 13, 1998, while working in the hoe squad, plaintiff corrected or contradicted defendant JERRY JOHNSON and was threatened with a disciplinary case by defendant WHEELER. When plaintiff continued to explain his view of the situation, defendant WHEELER ordered him to turn around, handcuffed him, and rode off. Subsequently, defendant HONEA released plaintiff but, after talking with defendants JOHNSON, SMITH, and VAUGHN, HONEA called plaintiff back and handcuffed him again. Plaintiff couldn't understand an order defendant JOHNSON shouted at him but he went and sat on the tailgate of an idling truck. He says that, when JOHNSON saw this, he shouted at plaintiff to sit on the ground under the tailgate. Plaintiff did so, but feared for his life because the truck was parked on an incline. Nevertheless, after an unspecified amount of time, plaintiff was released and allowed to resume his place with the rest of the prisoners to eat lunch and finish the day.
Plaintiff further alleges that, on the drive back to the prison unit, he was injured when the bus fishtailed, throwing plaintiff to his right and injuring his back, neck, and right knee. Plaintiff claims a far-reaching conspiracy to conceal the fact that a collision had actually occurred. As a result, he contends, when they got back to the unit, he and the other inmates were denied permission to go to the infirmary. Plaintiff alleges officials tried to intimidate the inmates into signing forms refusing medical care, but says he and others refused to sign such a form, requesting again to be allowed to go to the infirmary. When plaintiff spoke with defendant Lieutenant WARD, he was told he would have to go to the infirmary on his own and would be responsible for the $3.00 co-pay. Plaintiff states he then went to the infirmary but was turned away by defendant Nurse RICHARDSON saying he had been informed no such wreck had occurred. Nevertheless, plaintiff was given a medical lay-in to return the next day and see St. Paul, the chronic clinic nurse, who examined plaintiff and arranged for an examination by Defendant Dr. RIDGE. In response to plaintiff's complaints of pain, Dr. RIDGE prescribed methocarbamol for seven days and instructed plaintiff to return the next day to pick up a lay-in pass and changed plaintiff's medical restrictions. When plaintiff came back the next day, he was met by defendant Nurse RICHARDSON who said he had informed Dr. Ridge that no wreck had occurred and that the passes and medical restrictions had been revoked.
Plaintiff states the bus fishtailed after being hit in the rear by a van but says prison officials maintain there was no impact and that the bus swerved to avoid collision.
Although plaintiff's says Nurse "Richard," he has later informed the Court it was Nurse RICHARDSON.
See plaintiff's July 17, 1998, Step One Grievance Unit Number 98182822 received July 21, 1998, and responded to by Major Duffy on August 24, 1998, attached to plaintiff's July 12, 2000 complaint.
Plaintiff wrote complaints to various officials which were investigated by defendant HENDRICK. Plaintiff complains that defendant HENDRICK did not make the officers present in the field and at the accident take a polygraph. HENDRICK told plaintiff that she found no evidence to support his complaints.
On July 23, 1998, plaintiff was admitted to the unit infirmary for kidney stone problems and his property was packed up to be stored in the property room at that time. Plaintiff alleges some of his legal material was taken and destroyed at that time, causing him to lose his criminal case on appeal. A radio, a hot pot, shoes, and some commissary items also were not returned to plaintiff. In addition, plaintiff's typewriter, although returned, was damaged.
Plaintiff alleges that, on July 27th, Dr. RIDGE visited plaintiff to ask whether he had passed his kidney stone yet. Plaintiff states that, when he showed his "swollen right knee" and complained of knee and back pain, RIDGE said he could draw the fluid off plaintiff's knee and prescribe medication for pain and inflammation. However, plaintiff says, RIDGE left the room without a word when plaintiff stated he got the injuries in the wreck. The Court notes plaintiff's allegation in this respect conflicts with his account recorded in his Step 1 grievance dated July 27, 1998, Unit Number 98195519, with a response date of September 3, 1998, which plaintiff attached to his July 12, 2000, complaint. In that grievance, plaintiff states that, when Dr. RIDGE came in to check plaintiff's kidney stone problem, plaintiff told him he believed he had passed the stones but that his back and neck had been giving him problems since the seven-day prescription of methocarbamol had expired. Plaintiff says that after he told Dr. RIDGE about his back pain and neck pain Dr. RIDGE "simply walked out of the room without responding." Conspicuously absent from this account, written on the day of the event described, is any mention of swelling on the knee or an offer by Dr. RIDGE to drain fluid off the knee. Instead, there is simply plaintiff's complaint of pain in the back and neck, with an implicit request for another prescription of pain killer, and Dr. RIDGE's denial by not acknowledging plaintiff's complaints and leaving the room.
Credibility assessments are within the sound discretion of a district court making a determination of frivolousness, but that discretion is limited to factors necessary to determine whether a suit is frivolous. Cay v. Estelle, 789 F.2d 318, 326 (5th Cir. 1986). In a section 1915(d) credibility assessment, the most important considerations are based upon objective factors such as a complainant's change of position or major internal inconsistencies. Cay v. Estelle, 789 F.2d at 327. Given that plaintiff's step 1 grievance was written on the day of the event while his complaint was written approximately two years after the event and with an eye to litigation, the Court finds plaintiff's account in his step 1 grievance is more credible and his account in the complaint is not.
Plaintiff states that, at a later, unspecified, date, he was examined by a Physician Assistant Corberley who prescribed a knee brace, a back brace, and amitriptyline for back pain; however, upon plaintiff's transfer to the Robertson Unit, the pain medication was discontinued. Further, plaintiff says he showed Ms. Corberley evidence that he had not violated his medical restrictions at the basketball tournament in March 1998 and the restrictions that defendant Nurse RICHARDSON had removed were reinstated by Corberly.
Plaintiff says his mother and cousins have filed citizens complaints, receiving falsified reports in response from the ombudsman's office. Further, his mother was interviewed by a television news station and wrote then Governor Bush requesting his intervention in August of 1998. Plaintiff says he "filed criminal charges for the violations of Texas Penal Code Traffic Laws, Robbery and Theft." As a result, he says, he suffered a series of retaliatory cell searches on July 14, August 7, 8, 25, 29, September 11, 15, 21, and 29 of 1998.
On September 1st, plaintiff was interviewed by defendant Lieutenant WILSON of Internal Affairs concerning the wreck and plaintiff's complaint of life endangerment. Plaintiff claims WILSON falsified his results because he did not find in accordance with plaintiff's version of the events.
Plaintiff further complains on September 2nd, he spoke to defendant Warden RODEEN about the alleged cover-up of the wreck and reckless endangerment of plaintiff s life and that defendant RODEEN said officials agreed with plaintiff's account of the accident except that they maintained no collision had occurred and, in fact, that the bus had swerved in order to avoid collision. RODEEN said he had six officers, five of whom were at the scene of the incident, who said that was what happened. Plaintiff says he refused to agree and views this conversation as evidence of RODEEN's participation in the cover-up of the incident.
Plaintiff was also subsequently talked to by various officials from the Neal Unit concerning the incident, but faults them for failing to perform a more thorough investigation of the incident and not requiring him and various officers to take polygraph tests.
Plaintiff further complains that the Islamic community scheduled a program for the Clements Unit for December and sent invitations to all ranking officials on the unit. Plaintiff says "the titled [sic] of the program was the many kinds of men and the sub-title was (self-help-awareness and confronting corruption). Plaintiff alleges that, on November 30, 1998, gang officer Sergeant CORREA confiscated a blue folder from plaintiff which contained invitations to the school teachers of the unit and a list of mayors he wished to invite, as well as then Governor Bush's name. Plaintiff alleges defendant CORREA then "defamed the program making it impossible to promote the self-help-awareness-rehabilitation-program as well as [prisoners'] efforts to confront corruption on both sides, officers and prisoners!"
Plaintiff also complains that, on February 17, 1999, he was informed his radio, which had been confiscated eight months earlier, had been found during a search of another inmate's cell. Plaintiff says that, at the time of the confiscation, he was told the radio had been destroyed because it was a safety hazard. Plaintiff alleges the safety papers signed by Safety Officer Dixon, Warden Smith, and CO III Widner were falsified. Plaintiff alleges this shows the confiscation of the radio, as well as destruction of some "legal materials" and damage to a typewriter was in retaliation for his grievances and criminal charges filed on the defendants for the July 13, 1998, incident. Plaintiff states he learned his radio had been sold by a trusty working in 1 Building for $150.00. He says defendant ELLINBURG told him he "got the money" and made sure this time that the radio was actually destroyed. ELLINBURG arranged for plaintiff to receive some commissary goods and, later, a return of plaintiff's hot pot, which he had also been told was destroyed. Plaintiff complains there has been no repair to his typewriter nor return of his legal material, which he claims was destroyed. Plaintiff complains that the criminal charges he submitted have never been filed and accuses the district attorney of racism; however, she is not named as a defendant in this lawsuit.
See plaintiff's typewritten statement of facts at page 16, lines 498 through 504.
See plaintiff's typewritten statement of facts at page 16, lines 505-506.
Plaintiff's typewritten statement of facts at page 16, lines 506-508.
Plaintiff's typewritten statement of facts at page 16, lines 508-516.
Plaintiff's typewritten statement of facts at page 18, line 596-599.
Plaintiff's typewritten statement of facts at pages 18-19, lines 599-603.
Plaintiff requests compensatory damages of $150,000.00 or $5,000.00 from each defendant, as well as $2,500,000.00 punitive damages, and that he be allowed to implement his S.H.A.R.P. (self-help-awareness-rehabilitation program) throughout all of TDCJ-ID.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may 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. 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, Denmon 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 Magistrate Judge has reviewed plaintiff's pleadings to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
There is no federal statute of limitations for civil rights actions; therefore, the two-year Texas general personal injury limitations period is applied. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). Plaintiff signed, and presumably mailed, the original complaint in this cause on July 8, 2000. Consequently, a claim based on the March 26, 1998, removal of plaintiff's medical restrictions by defendant RICHARDSON is beyond the statute of limitations and is barred. Further, the removal of plaintiff's limitations based on his participation in a basketball tournament appears to be reasonable and, therefore, even if it was mistaken, this provides a basis for RICHARDSON to claim qualified immunity to plaintiff's claim.
Plaintiff's claims he feared for his life when JOHNSON required him to sit under the tailgate of the idling truck parked on an incline. Plaintiff does not state how long he was required to stay there but, in any event, he does not allege he suffered any harm as a result. Consequently, plaintiff has failed to state a claim against defendant JERRY JOHNSON on which relief can be granted:
Moreover, the mere failure of an official to follow a state regulation or even state law, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47,99 S.Ct. 2689, 2695-2696,61 L.Ed.2d 433 (1979). Plaintiff s claim that officials, while admitting that the bus swerved, were covering up the fact of a collision does not state a claim of constitutional dimension because it is founded on a constitutional right which does not exist. Thus, plaintiff's claim on this basis 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).
Plaintiff claims officials did not allow him to go to the infirmary that day when the bus returned to the unit; however, he later alleges he did go to the infirmary that very day. When he got there, plaintiff says, he was turned away by nurse RICHARDSON, who had been informed there had been no accident. When asked how he was harmed by not receiving medical care that day, plaintiff responded simply that he suffered knee, neck and back pain. Plaintiff has failed to allege how this one-day delay in receipt of medical care aggravated his condition or harmed him. A delay in medical care to a prisoner can constitute an Eighth Amendment violation only if there has been deliberate indifference, which results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Deliberate indifference to a prisoner's serious medical needs constitutes an Eighth Amendment violation and states a cause of action under Title 42, United States Codes section 1983. Estelle v. Gamble, 429 U.S. 97, 105-07, 97 S.Ct. 285, 291-93, 50 L.Ed.2d 251 (1976). Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). Based on defendant RICHARDSON's belief that no accident had occurred, it appears there is no fact showing defendant RICHARDSON had knowledge of a substantial risk of serious harm to plaintiff's health. Thus, plaintiff has not alleged facts showing deliberate indifference by defendant RICHARDSON.
Moreover, plaintiff's claim that defendant Dr. RIDGE was deliberately indifferent to his serious medical needs is contradicted by the facts plaintiff has alleged. When plaintiff first saw Dr. RIDGE he received a seven-day prescription of methocarbamol. Later, plaintiff indicates Dr. RIDGE treated plaintiff for kidney stones but didn't continue treatment for plaintiff s complaints of back and neck pain; however, plaintiff presents no facts which indicate RIDGE was deliberately indifferent to his serious medical need instead of operating on the determination that plaintiff needed no more care. In any event, plaintiff has failed to allege facts showing RIDGE knew of a substantial risk of serious harm to plaintiff's health or safety and took no steps to alleviate such risk. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). The fact that a Physician's Assistant, Nurse Corberly, at an unspecified later date, felt plaintiff should be prescribed more pain killer and braces does not show that defendant RIDGE was deliberately indifferent to plaintiff's serious medical needs; instead, it shows that there may have been a disagreement concerning the need for more treatment. A disagreement with a doctor over the method and result of medical treatment does not require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). Plaintiff clearly received treatment from defendant RIDGE, and his feeling that the treatment was insufficient or ineffectual does not constitute a valid section 1983 claim. Plaintiff's claim against defendant RIDGE lacks an arguable basis in law or in fact and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff's claims against defendants HENDRICK, WILSON, RODEEN, JONES, HOOTEN, and ROBERTS are based on a failure to adequately investigate his complaints and administer polygraph tests to officers and inmates involved and assert a right which does not exist. The narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances or other complaints investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689,2695-2696,61 L.Ed.2d 433 (1979). Plaintiff's claims against defendants HENDRICK, WILSON, RODEEN, JONES, HOOTEN, and ROBERTS lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff does not appear to have exhausted administrative remedies with respect to his claim against defendant CORREA. Although instructed to attach a copy of each step 2 grievance showing exhaustion and being required to sign a complaint form acknowledging the requirement that he exhaust available administrative remedies prior to filing suit, plaintiff has neither submitted a step 2 grievance on this issue nor has he plead exhaustion with specificity. Thus, it appears this claim is barred by the exhaustion requirement of Title 42, United States Code, 1997e(a). Moreover, plaintiff's determination that his S.H.A.R.P. program contained no gang material and should be presented to various prison officials and local leaders does not defeat the determination by prison officials that there was gang material in the program, as plaintiff has alleged. Plaintiff has presented no allegation of fact to show that his constitutional rights were in any way violated by the evaluation and denial of his program by prison officials.
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."
Plaintiff contends that various property was wrongfully confiscated when he was admitted to the infirmary for his kidney stones. Review of plaintiff's own grievances reveals the hot plate and radio had been broken and repaired, thus altering them from their original state. Moreover, plaintiff indicates there was a mistake on his property slip for his shoes. Nevertheless, to the extent that this property was wrongfully confiscated in violation of prison policies, section 1983 will not support a cause of action if a person's property is taken by random and unauthorized conduct of a state actor and the state provides an adequate post-deprivation remedy. Cathey v. Guenther, 47 F.3d 162 (5th Cir. 1995). A prisoner's due process rights are not violated by the confiscation of property without regard to prison policy requiring notice and the opportunity to be heard, where the tort of conversion provides adequate post-deprivation remedies under Texas law. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994).
Moreover, plaintiff has alleged no fact to show that his typewriter was intentionally damaged while stored. To the extent the facts alleged support a claim of negligence, section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986).
Plaintiff claims he lost his appeal of his criminal action because of the loss of legal material destroyed when his property was stored while he was treated for kidney stones; however, plaintiff's December 29, 2000, response to the Court's Questionnaire, at question no. 24, shows plaintiff was simply filing a motion for extension of time to file petition for writ of certiorari to the United States Supreme Court after the Court of Appeals for the Fifth Circuit had already denied his request for a certificate of appealability and his motion for rehearing of his motion for certificate of appealability was denied by an en banc panel of the Court of Appeals for the Fifth Circuit. Further, plaintiff's motion to the United States Supreme Court for an extension in which to file his petition for writ of certiorari is attached to plaintiff's December 2000 Questionnaire response and review of that pleading does not show any way in which plaintiff's position as a litigant was harmed at that stage of the proceedings. If a litigant's position is not prejudiced by the claimed violation, his claim of denial of access to the courts is not valid. Henthorn v. Swinson, 955 F.2d 351,354 (5th Cir.), cert. denied, 504 U.S. 988, 112 S.Ct. 2974, 119 L.Ed.2d 593 (1992). Plaintiff's conclusory allegation that he "lost his appeal of his criminal action" is not sufficient to show the necessary prejudice; he must be specific and show exactly how he was harmed by the loss of that specific material. By his allegations in this respect, plaintiff has failed to state a claim of denial of access to courts.
Lastly, plaintiff claims all the complained-of acts were part of a conspiracy to deprive him of his constitutional rights and were in retaliation for his filing of grievances and complaints about the events of July 13, 1998. Conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990); or to support claims of malice, Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995); or retaliation, Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Plaintiff has alleged no material facts to support these claims and has, therefore, failed to state a claim on which relief can be granted.
CONCLUSION
For the reasons set forth above and 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 the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff DONNELL HOOPER be DISMISSED WITH PREJUDICE AS FRIVOLOUS, FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED, AND AS BARRED BY TITLE 42, UNITED STATES CODE, 1997e(a).
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved 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. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.