Summary
finding no constitutional claim arises from failure to properly investigate prisoner grievance
Summary of this case from Tamfu v. Two Unknown Agents of TDCJOpinion
2:03-CV-0053.
June 26, 2003.
REPORT AND RECOMMENDATION
Plaintiff MICHAEL C. WHITING, acting pro se and while a prisoner incarcerated 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 14, 2002, he was wrongfully given a disciplinary case by defendant ALVARADO after he threatened to expose illegal activities by ALVARADO. Plaintiff says ALVARADO then falsely charged plaintiff with threatening her. Plaintiff alleges defendant PIERCE conspired with ALVARADO to write a statement bolstering the false charge against plaintiff. Plaintiff claims defendants HOWARD, ROWLAND, and MOORE failed to properly investigate the incident. Plaintiff states he was held over six days before receiving his disciplinary hearing and was held five days before being served with his disciplinary case, receiving his disciplinary charge of threatening to inflict harm on an officer on March 19, 2002.
Plaintiff states he had been removed from his prison job assignment at the behest of ALVARADO's inmate boyfriend and was going to expose ALVARADO's affair and her contraband smuggling.
Plaintiff claims defendant PACHECHO, his counsel substitute at the hearing, had made no preparation for the case; and defendant HENDRICK, the disciplinary hearing officer, violated his due process rights by not letting plaintiff read his full statement laying out his defense in detail; not calling or requiring any and all witnesses to attend the hearing; allowing defendant ALVARADO to testify by telephone even though she was on unit and nearby; refusing to call officers Garcia and defendant PIERCE, who had written supporting statements; refusing to allow the written statements of Garcia and PIERCE into the record; assisting defendant ALVARADO during her testimony by asking leading questions; finding plaintiff guilty despite inconsistencies or contradictions in ALVARADO's testimony; and turning the tape recorder off twice during the hearing. Plaintiff says HENDRICK found him guilty and imposed the following punishment: demotion from State Approved Trusty III to Line Class I and forty-five days property, cell, commissary, and recreation restrictions. Plaintiff says he suffered collateral harm as a result, such as the loss of the accumulation of ten days goodtime per month due to his class demotion, being taken off the aerobics participation list, etc.
Plaintiff claims defendant POHLMEIER "blindly approv[ed] the charging, `jailing', disciplinary hearing, and punishment of plaintiff in contrast to agency guidelines" showing deliberate indifference and contributing to the violation of plaintiff's First and Fourteenth Amendment rights.
Plaintiff alleges the disciplinary hearing tape was first damaged and then destroyed, despite a prison regulation that it be preserved for at least two years. Plaintiff complains defendant WESTON denied his step 1 appeal; defendant WARREN sent plaintiff an out of time notification of extension to process his step 2 appeal; and defendant WARD denied plaintiff's step 2 appeal. Plaintiff claims defendants COCKRELL and LILES have ignored his letters, failing to investigate and resolve his complaints.
Plaintiff states defendant ALVARADO was later found to be having an affair with the inmate identified by plaintiff and was fired. Plaintiff's disciplinary case was then overturned at the regional level; however, prison officials have not restored plaintiff to his previous status and indicate this will not occur.
Plaintiff requests declaratory relief and injunctive relief requiring TDCJ-ID to expunge the disciplinary case from his records, restore him to State Approved Trusty III, credit him with all the goodtime he would have accumulated had he been at that level since the time of the disciplinary hearing, return all other privileges plaintiff lost, and immediately review plaintiff for State Approved Trusty II status. Plaintiff also requests an award of compensatory and punitive damages.
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, Denton 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 and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff's factual account makes clear he did not suffer confiscation of any accumulated goodtime credits as a result of the disciplinary case. Since plaintiff did not lose any goodtime, he has no federally protected liberty interest connected with this disciplinary case and, therefore, no federally protected due process rights. A prisoner has a liberty interest only in "freedom[s] from restraint . . . impos[ing] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," and these will normally consist of deprivations which clearly impinge on the duration of confinement. Orellana v. Kyle, 65 F.3d 29,31-32 (5th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2294, 132 L.Ed.2d 418 (1995)). Moreover, the effect on the duration of his sentence that a reduction in class has upon an inmate's ability to earn good-time credits is too speculative and too attenuated to invoke the procedural guarantees of the Due Process Clause. Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (citing Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). Consequently, plaintiff's claims of a violation of his Fourteenth Amendment due process rights 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).
The Sandin Court expressly recognized the unusual deprivations in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to a mental hospital), and Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (forcible administration of psychotropic drugs), also involved a liberty interest.
Further, plaintiff's claims against defendants HOWARD, ROWLAND, MOORE, POHLMEIER, WESTON, WARREN, WARD, COCKRELL, and LILES for failing to property investigate and satisfactorily resolve his letters of complaint or his administrative appeals assert a constitutional 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 complaints and grievances investigated and resolved. Inasmuch as the result of these complaints and grievances have no bearing on the duration of his confinement, the plaintiff cannot show the existence of a state-created liberty interest in their investigation or resolution. See, Orellana v. Kyle, 65 F.3d 29,31-32 (5th Cir. 1995). Consequently, plaintiff's claims against defendants HOWARD, ROWLAND, MOORE, POHLMEIER, WESTON, WARREN, WARD, COCKRELL, and LILES 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).
Lastly, concerning plaintiff's claims against defendant PACHECHO, the Court notes a counsel substitute representing an inmate in prison disciplinary proceedings does not act under color of state law for purposes of claims brought under Title 42, United States Code, section 1983. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). Consequently, with respect to this defendant, plaintiff is unable to show one of the two essential elements necessary to state a civil rights claim. Adickes v. Kress, 398 U.S. 144, 149,90 S.Ct. 1598, 1604,26 L.Ed.2d 142 (1970) (two elements are necessary for recovery in this type of suit: (1) the plaintiff must show the defendant deprived him of a right secured by the Constitution and laws of the United States; (2) the plaintiff must show the deprivation was committed under color of law, usually by a state official or a private individual in conspiracy with such an official). Plaintiff's claim against defendant PACHECHO 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).
The "color of law" inquiry centers on whether a person who is affiliated with a state government or its political subdivision has used his position to deprive another of his constitutional rights. "[T]he nature of the act performed, not the clothing of the actor or even the status of [the party] . . ., determines whether the officer has acted under color of law." Colon v. Lomelo, 575 F. Supp. 664, 667 (S.D.Fla. 1983) (quoting Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D. Pa. 1968)). Action taken "under color of" state law is not limited only to that action taken by state officials pursuant to state law. Monroe v. Pape, 365 U.S. 167, 185, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). It encompasses "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. . . ." Id. at 184, 81 S.Ct. at 482.
CONCLUSION
Pursuant to 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 Claims pursuant to Title 42, United States Code, section 1983, by plaintiff MICHAEL C. WHITING, of violations of his Fourteenth Amendment rights by all defendants be DISMISSED WITH PREJUDICE AS FRIVOLOUS.
This Report and Recommendation does not address plaintiff's First Amendment retaliation claims against defendants ALVARADO and PIERCE.
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.