Opinion
No. 3-04-CV-0728-D.
September 13, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been re-referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and an order of reference dated August 19, 2004. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil rights action brought by Plaintiff Mark A. White, a former inmate at the Hutchins State Jail, against the warden and various prison employees. On April 7, 2004, plaintiff filed a pro se complaint and an application to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories then were sent to plaintiff in order to obtain additional information about the factual basis of this suit. On April 30, 2004, plaintiff filed his interrogatory answers with the district clerk. He also amended his complaint to assert additional claims. On initial screening, the magistrate judge determined that plaintiff failed to state a claim against defendants, all of whom were sued in their supervisory capacities. White v. Simpson, 2004 WL 1196125 (N.D. Tex. Jun. 1, 2004). Plaintiff timely objected to this recommendation and attempted to cure some of the defects identified by the magistrate judge. After considering plaintiff's objections, the district judge re-referred the case to the magistrate judge for further screening and recommendation. See ORDER, 8/19/04.
Plaintiff is currently incarcerated at the Dawson State Jail where he is serving a three-year sentence for possession of a controlled substance.
On September 10, 2004, the magistrate judge held a Spears hearing to investigate the factual basis of this suit in more detail. Plaintiff appeared at the hearing pursuant to a writ of habeas corpus ad testificandum and testified under oath regarding the claims alleged in his complaint. The court now determines that this case should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
II.
Plaintiff asserts a myriad of claims arising out of his confinement at the Hutchins State Jail. Succinctly stated, plaintiff alleges that: (1) inmates were routinely denied adequate medical and dental care; (2) the food was nutritionally deficient; (3) the prison lacked adequate recreation facilities; (4) he was placed in administrative segregation for five or six days for no apparent reason; (5) corrections officers verbally abused inmates and exacerbated racial tensions among the prisoners; (6) his prison identification card contained incorrect information; (7) the bathrooms at the prison were unsanitary; (8) he was denied toiletries and other necessities; and (9) he was not allowed to attend religious services.
A.
A district court may summarily dismiss a complaint filed in forma pauperis if it concludes that the action:
(1) is frivolous or malicious;
(2) fails to state a claim upon which relief can be granted; or
(3) seeks money relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to state a claim "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
B.
The court initially observes that plaintiff attempts to litigate a number of claims on behalf of other inmates. Specifically, plaintiff alleges that: (1) prisoners were routinely deprived of their prescription medications; (2) inmates were forced to wait up to 30 days for tooth extractions; (3) the medical staff ignored prescriptions issued and diagnoses made by "free world" doctors; and (4) numerous prisoners contracted staph infections. At the Spears hearing, plaintiff testified that he did not suffer any of these alleged constitutional deprivations himself. Consequently, plaintiff lacks standing to assert these claims. See Beene v. Hammer, 2003 WL 21673456 at *3 (N.D. Jul. 15, 2003), citing Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977) (plaintiff may bring section 1983 action only for deprivations he himself has suffered); Green v. State, 2001 WL 548899 at *1 (N.D. Tex. May 21, 2001) (same).
C.
Plaintiff also testified that he did not present some of his claims to prison officials before filing suit in federal court. Under the Prison Litigation Reform Act (" PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002); see also Alexander v. Tippah County, Mississippi, 351 F.3d 626, 630 (5th Cir. 2003), cert. denied, 124 S.Ct. 2071 (2004); Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998). The Texas prison system has developed a two-step grievance process. A Step 1 grievance, which is handled at the prison level, must be filed within 15 days after the incident occurs. If the prisoner receives an adverse decision at Step 1, he has 10 days to file a Step 2 grievance at the state level. A prisoner must pursue his grievance at both the Step 1 and Step 2 levels in order to exhaust his administrative remedies. See Johnson v. Johnson, ___ F.3d ___, 2004 WL 1985441 at *4 (5th Cir. Sept. 8, 2004), citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
At the Spears hearing, petitioner acknowledged that he did not file any grievances with respect to his claims that: (1) he was denied Tylenol on several occasions; (2) he was not x-rayed for tuberculosis; (3) corrections officers verbally abused inmates and exacerbated racial tensions among the prisoners; (4) his prison identification card contained incorrect information; and (5) he was denied the right to attend religious services. Because plaintiff failed to present these claims to prison and state authorities in a Step 1 and Step 2 grievance, they must be dismissed.
Plaintiff testified that he did not file grievances with respect to these claims because other complaints were ignored and prior grievances went unanswered. Even if this were true, plaintiff still must attempt to present his claims to prison authorities before filing suit in federal court. See Johnson, 2004 WL 1985441 at *9 (grievance must alert prison administrators to a problem and give them an opportunity to address it).
D.
Plaintiff asserts a number of other claims that were presented in grievances and are properly exhausted. In his complaint and interrogatory answers, plaintiff alleges that: (1) he was denied immediate medical treatment for the flu; (2) the prison lacked adequate food and recreation facilities; (3) he was placed in administrative segregation for no apparent reason; (4) the bathrooms are unsanitary; and (5) he was denied toiletries and other necessities. The treatment of prisoners and the conditions of their confinement are subject to scrutiny under the Eighth Amendment to the United States Constitution. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994), citing Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22 (1993). Among the constitutional duties imposed on prison officials are to ensure that inmates receive adequate food, clothing, shelter, sanitation, and medical care. Id., 114 S.Ct. at 1976, citing Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). In order to establish a constitutional violation, plaintiff must show that prison officials were subjectively aware of a substantial risk of serious harm and failed to take reasonable measures to abate that risk. Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996), citing Farmer, 114 S.Ct. at 1984.1.
In February 2004, plaintiff asked to see a doctor after coming down with flu-like symptoms. Three days later, he was escorted to sick-call, but no one treated him at that time. Plaintiff waited four or five more days before he finally saw a doctor who prescribed medication to alleviate his symptoms. Although plaintiff no doubt was uncomfortable while awaiting medical treatment for the flu, this one-week delay does not rise to the level of a constitutional violation. See, e.g. Estes v. Bowers, 2002 WL 628755 at *2 (N.D. Tex. Apr. 17, 2002), aff'd, 73 Fed.Appx. 747 (5th Cir. 2003) (brief delay in receiving medical care not deliberate indifference); Schwartz v. Jones, 2000 WL 1859012 at *3 (E.D. La. Dec. 18, 2000), citing Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir. 1980) (failure to prescribe medicine for flu-like symptoms not actionable under 42 U.S.C. § 1983).
2.
Plaintiff further complains that the Hutchins Unit lacked adequate food and recreation facilities. Prison officials are required to furnish inmates with "well-balanced meal[s], containing sufficient nutritional value to preserve health." Green v. Ferrell, 801 F.2d 765, 770 (5th Cir. 1986); see also Eason v. Thaler, 73 F.3d 1322, 1327 (5th Cir. 1996). According to plaintiff, he and other inmates were given two pieces of bread, a boiled egg, cereal with no milk, and cold food at least two or three times a week. The kitchen often served leftovers and sometimes ran out of certain food items. Plaintiff alleges that his inadequate diet caused him to lose five to seven pounds during the four months he was incarcerated. Even if these allegations are true, plaintiff's small weight loss does not establish that his diet was constitutionally inadequate. See Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998) (questioning whether loss of 15 pounds over five months is actionable under 42 U.S.C. § 1983).
Nor has plaintiff established that he was denied adequate recreation. During the first six weeks of his incarceration at the Hutchins State Jail, plaintiff alleges that he was denied access to the recreation yard. Thereafter, plaintiff received only 15 to 30 minutes of recreation per day instead of two hours as mandated by TDCJ policy. At the Spears hearing, plaintiff admitted that he was not denied all recreation and was permitted to exercise in his cell. Moreover, plaintiff did not suffer any physical injury due to the lack of recreation. Under these circumstances, there is no constitutional violation. Farmer, 114 S.Ct at 1977; see also Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (extreme deprivations are required to show that conditions of confinement violate Eighth Amendment); Waddell v. Jones, No. 3-98-CV-1679-D, op. at 9-10 (N.D. Tex. Dec. 8, 1998) (prisoner failed to state a claim for relief where recreation was offered on Saturday and Sunday mornings and occasionally on Wednesday evenings).
3.
Plaintiff also protests that he was placed in administrative segregation for five or six days for no reason. The Fifth Circuit has held that "segregation, without more, simply does not constitute a deprivation of a constitutionally cognizable liberty interest." Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996), citing Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 116 S.Ct. 1690 (1996). Rather, it is part of the "ordinary incidents of prison life." Id. at 613, citing Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Without evidence that plaintiff was harmed by his placement in administrative segregation, he cannot maintain a cause of action under 42 U.S.C. § 1983.
4.
Finally, plaintiff alleges that the bathrooms at the Hutchins State Jail were unsanitary and infested with bugs. Mold grew in the showers, the urinals were broken and frequently overflowed, and water leaked from the sinks. Plaintiff also complains that he did not receive enough toilet paper, soap, towels, clothes, and other personal necessities from the prison staff. Instead, he was told to purchase those items from the commissary. Assuming that these conditions were severe enough to deprive plaintiff of a "basic human need," this claim still must be dismissed because plaintiff suffered no physical harm.
The PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The injury required by this statute "must be more than de minimus [sic], but need not be significant." Alexander, 351 F.3d at 631. At the Spears hearing, plaintiff speculated that the unsanitary conditions at the prison may have made him vulnerable to the flu. However, other than flu-like symptoms, plaintiff conceded that he suffered no physical injury. This is fatal to his claim under 42 U.S.C. § 1983. See id. (nausea and vomiting allegedly caused by raw sewage on floor was de minimis injury).
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).