Opinion
CIVIL ACTION NO. 1:02-CV-072-C
October 29, 2002
ORDER
Plaintiff Robert Mitchell Alexander, acting pro se, filed suit pursuant to 42 U.S.C. § 1983, and was allowed to proceed in forma pauperis. In his complaint and the accompanying memorandum of law, Plaintiff alleges that Defendants Cook and Slitter, employees of the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), French Robertson Unit filed a false disciplinary charge against him, wrongfully punished him for exercising his First Amendment right to speak freely, failed to follow the TDCJ-ID rules and policies, and punished him for violating a disciplinary rule in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Plaintiff requests monetary damages in the amount of $8,000.00 from Defendant Cook and $4,000.00 from Defendant Slitter. The Defendants have not been served.
When a party seeks to proceed in forma pauperis, the Court shall dismiss the complaint at any time if the court determines that the complaint is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See 28 U.S.C. § 1915A (providing that a court shall review a prisoner complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989). A claim has no 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 v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quotation omitted). A claim has no arguable basis in fact if "after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). A questionnaire or evidentiary hearing may be used to assist the court in determining whether cases should be dismissed under 28 U.S.C. § 1915. See Watson v. Ault, 525 F.2d 886, 892 (1976) (holding that a questionnaire may be used to develop the factual basis of a prisoner complaint); Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) (holding that an evidentiary hearing maybe used to develop the factual basis of a prisoner complaint).
The Supreme Court of the United States has determined that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, [footnote omitted] a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Thus, a prison inmate may not collaterally attack a prison disciplinary case in a civil rights action filed pursuant to 42 U.S.C. § 1983 until he demonstrates that he has challenged those proceedings in a writ of habeas corpus and the disciplinary charge has been invalidated, reversed, expunged, or otherwise impugned. Edwards v. Balisok, 520 U.S. 641 (1997); Clarke v. Stalder, 121 F.3d 222, 226 (5th Cir. 1997). Plaintiff acknowledges that he appealed his disciplinary case through the TDCJ-ID administrative grievance process, but concedes that both his Step 1 and Step 2 Grievances were denied. In his answers to the Court's Questionnaire filed on June 21, 2002, Plaintiff clearly states that he has not challenged his prison disciplinary proceeding in either a federal or state habeas corpus proceeding. Accordingly, his complaints regarding the filing of a false disciplinary charge should be dismissed without prejudice to his right to challenge the disciplinary case in a petition for writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475 (1973) (holding that inmates seeking the restoration of good time credits lost as a result of prison disciplinary proceedings are challenging the very fact or duration of their confinement and their sole federal remedy is a writ of habeas corpus). See also Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (holding that any plaintiff "seeking damages pursuant to § 1983 for unconstitutional imprisonment [who] has not satisfied the favorable termination requirement of Heck" is "barred from any recovery and fails to state a claim upon which relief may be granted"); Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995) (holding that a § 1983 claim does not accrue until the Heck conditions have been satisfied).
Plaintiff next complains that his First Amendment right to freely express himself has been unconstitutionally abridged because he was ordered not to speak in the hallway by Defendant Cook.
"The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125 (1977). "In the First Amendment context, . . . some rights are simply inconsistent with the status of a prisoner or `with the legitimate penological objectives of the corrections system.'" Shaw v. Murphy, 532 U.S. 223, 229 (2001). Thus, a prison inmate does not have an unlimited right to speak when and where he might so desire or to speak about any topic. The Supreme Court has "adopted a unitary, deferential standard for reviewing prisoners' constitutional claims: `[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'" Id. at 229 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987).
First, the Court notes that the records attached to Plaintiff's pleading show that at the disciplinary hearing, Plaintiff pleaded guilty to refusing or failing to obey an order and was punished only by the removal of thirty days' commissary and recreation privileges. The record does not indicate that Plaintiff was punished merely for speaking in the hallway or for the content of his speech; rather, he was punished for refusing to obey an officer's order. Second, Plaintiff does not allege that a TDCJ-ID policy is unconstitutional or that TDCJ-ID inmates are routinely punished for talking in the hallways or inquiring about the time. In fact, Plaintiff cites the TDCJ Offender Orientation Handbook stating that offenders may not talk loudly in the hallway. Offender Orientation Handbook, Texas Dep't of Criminal Justice, § III.I. 5 (August 1997).
Plaintiff argues that he was not speaking loudly and that he was punished simply because of the content of his speech and because he was trying to ask a question. Nevertheless, § III. N.17 of the Offender Orientation Handbook clearly states that
[i]t is the intent of TDCJ to have all offenders immediately comply with lawful instructions or orders. Offenders will obey officers' and staff members' orders at all times as long as that order does not place you or those around you in physical danger or would cause you to violate a TDCJ written rule or policy. In such cases, the written policy almost always would supersede the direct order.Id. (emphasis in original). Plaintiff has failed to demonstrate that the Defendants' order not to talk in the hallway on December 21, 2001, placed him in physical danger or caused him to violate a written rule or policy. Although he argues that the officer's order not to talk violated the written rule that permitted inmates to talk in the halls, he fails to acknowledge that the rule is permissive and does not mandate that inmates be allowed to talk in the hallways at all times.
There is obviously a rational correlation between TDCJ's goal of maintaining internal security and discipline and the TDCJ regulations which require inmates to follow orders. "The `normal activity' to which a prison is committed — the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence — necessarily requires that considerable attention be devoted to the maintenance of security." Pell v. Procunier, 417 U.S. 817, 826-27 (1974). If prison authorities allow an inmate to be exempt from following orders for any period of time, internal discipline could be disrupted and security for both guards and other inmates could be threatened. "The need for inmates to comply with orders, as opposed to defying them, is essential for the security of the prison." Collins v. Scott, 961 F. Supp. 1009, 1015 (E.D. Tex. 1997)
Because Plaintiff has failed to demonstrate that he was punished for the content of his speech or that a TDCJ-ID rule or regulation interfered with his constitutional right to express himself, this Court finds that the Defendants' order not to speak and subsequent punishment for failure to obey the order was part of an officer's everyday attempt to maintain order and did not violate Plaintiff's First Amendment rights.
Plaintiff contends also that the Defendants failed to follow a TDCJ-ID rule and therefore he is entitled to monetary damages. Although this Court fails to discern a violation of TDCJ-ID rules or regulation by Defendants, the mere failure of prison authorities to follow prison rules and regulations does not, without more, give rise to a constitutional violation. Myer v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996); Williams v. Treen, 671 F.2d 892, 900 (5th Cir. 1982).
Finally, Plaintiff complains that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment for merely trying to ask about the time of day. He argues that Defendants should not have been allowed to charge him with violating a disciplinary rule or remove his commissary and recreation privileges. This complaint is both factually and legally frivolous.
For these reasons, the Court finds that Plaintiff's civil rights complaint about a prison disciplinary case lacks an arguable basis in the law and should be dismissed as frivolous with prejudice to its being asserted again until the Heck conditions are met and the First and Eighth Amendment complaints should be dismissed with prejudice as frivolous.
SO ORDERED.
Judgment shall be entered accordingly.
The dismissal of Plaintiff's complaint does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed.
All pending motions are hereby denied.
Plaintiff is advised that if he appeals this Order, he shall be required to pay the appeal fee of $105.00 pursuant to the Prison Litigation Reform Act, and he must submit an application to proceed in forma pauperis and a certified copy of his 6-month Certificate of Inmate Trust Account along with his notice of appeal.
A copy of this Order shall be mailed to the Office of General Counsel, TDCJ-ID Litigation Support, P.O. Box 13084, Austin, Texas, 78711, and to TDCJ Local Funds Division, P.O. Box 629, Huntsville, Texas 77342-0629.