Opinion
No. 7:03-CV-085-R.
August 31, 2004
ORDER OF DISMISSAL
ON THIS DATE, came on to be considered the papers and pleadings filed in this action, and the Court finds and orders as follows:
This is a complaint filed pursuant to 42 U.S.C. § 1983 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Plaintiff claims that Defendants have threatened him, harassed him and retaliated against him, that false disciplinary action has been taken against him and that Defendants have taken and destroyed his personal property. Complaint ¶ V. He seeks injunctive relief. Id at ¶ VI.
The Court initially observes that threats, harassment and verbal abuse are not actionable under § 1983. Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993) (noting that verbal abuse is insufficient to serve as the legal basis of a civil rights action.); United States v. Bigham, 812 F.2d 943, 949 (5th Cir. 1987) (holding that technical batteries, angry words or passing thumps do not rise to the level of constitutional abuses). Therefore, Plaintiff cannot prevail on these claims.
Similarly, with regard to his allegations of property theft and destruction, Hughes has failed to state a cognizable claim. The United States Supreme Court has held that the "unauthorized, intentional deprivation of property" does not constitute a civil rights violation if there exists a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204 (1984); accord Nickens v. Melton, 38 F.3d 183, 184-85 (5th Cir. 1994), cert. denied, 514 U.S. 1025, 115 S.Ct. 1376 (1995); Holloway v. Walker, 790 F.2d 1170, 1174 (5th Cir.) (finding no breach of federally guaranteed constitutional rights, even where a high level state employee intentionally engages in tortious conduct, as long as the state system as a whole provides due process of law), cert denied, 479 U.S. 984, 107 S.Ct. 571 (1986).
Hughes has the state common-law action of conversion available to remedy his alleged loss of property. Myers v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs when there is an unauthorized and unlawful exercise of dominion and control over the personal property of another which is inconsistent with the rights of the owner. Beam v. Voss, 568 S.W.2d 413, 420-21 (Tex.Civ.App.-San Antonio 1978, no writ). If Defendants exercised unauthorized control over Hughes' personal property, he has a factual basis to allege a cause of action in conversion. Such a common-law action in state court would be sufficient to meet constitutional due process requirements. Groves v. Cox, 559 F. Supp. 772, 773 (E.D. Va. 1983).
Next, Hughes alleges that false disciplinary actions have been taken against him. Complaint ¶ V. Assuming, arguendo, that he lost previously earned good time credits and that he is entitled to mandatory supervised release such that a constitutionally protected liberty interest is at stake, Hughes has not shown that the results of the disciplinary proceeding have been reversed, invalidated or otherwise called into question. Thus, his civil rights claims are currently barred under the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). See Edwards v. Balisok, 520 U.S. 641, 646-48, 117 S.Ct. 1584, 1588-89 (1997) (holding that a claim based on allegations that would necessarily imply the invalidity of a disciplinary hearing is not cognizable in a civil rights action unless the disciplinary action has been reversed, expunged or otherwise invalidated).
Finally, Hughes claims that Defendants have retaliated against him. Complaint ¶ V. Prison officials may not retaliate against an inmate for the exercise of a constitutionally protected right. Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975 (1986). In order to show retaliation an inmate "must establish (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation." McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Causation requires a showing that "but for the retaliatory motive the complained of incident . . . would not have occurred." Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.) (quoting Woods, 60 F.3d at 1166), cert. denied, 522 U.S. 995, 118 S.Ct. 559 (1997). This places a significant burden on the inmate. Mere conclusory allegations are insufficient to state a claim. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)).
In an effort to show that Defendants have retaliated against him, Plaintiff claims that Defendants forced him to snitch on other inmates involved in gang activity, that false disciplinary action was brought against him, that his personal property was taken, that he was denied protective custody, that he was placed in a cell with no mattress for 90 days and that he was refused a pork free diet. See Plaintiff's Answers to the Court's Questions. Assuming the truth of his allegations, Hughes has failed to demonstrate that he was engaged in any constitutionally protected activity or that, but for a retaliatory motive, Defendants would not have taken the actions alleged. Thus, he cannot prevail on this claim.
To the extent that Hughes challenges the validity of the disciplinary actions taken against him, he has failed to state an actionable claim under § 1983. An inmate who is entitled to mandatory supervised release may have a constitutionally protected liberty interest in earned good time credits such that due process attaches to any proceeding in which such credits are revoked. Madison v. Parker, 104 F.3d 765, 769 (5th Cir. 1997). However, where a favorable determination in a civil rights action would automatically entitle a prisoner to accelerated release, he must obtain a favorable habeas judgment prior to seeking monetary damages under § 1983. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998), cert. denied, 525 U.S. 1151, 119 S.Ct. 1052 (1999); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 516 U.S. 1059, 116 S.Ct. 736 (1996); see also, Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827 (1973) (holding that the proper avenue to seek restoration of lost good-time credits is a habeas corpus proceeding rather than a civil rights action). Assuming, arguendo, that Hughes is entitled to mandatory supervised release, he has not shown that the results of the disciplinary proceedings have been reversed, invalidated or otherwise called into question. Thus, his civil rights claims are currently barred under the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). See Edwards v. Balisok, 520 U.S. 641, 646-48, 117 S.Ct. 1584, 1588-89 (1997) (holding that a claim based on allegations that would necessarily imply the invalidity of a disciplinary hearing is not cognizable in a civil rights action unless the disciplinary action has been reversed, expunged or otherwise invalidated).
A district court may dismiss a complaint filed in forma pauperis if it determines that the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). 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 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar have no arguable basis under federal law.
IT IS THEREFORE ORDERED that Plaintiff's civil rights claims relating to stolen property are hereby dismissed without prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
IT IS FURTHER ORDERED that Plaintiff's remaining claims are hereby dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
A copy of this order shall be transmitted to Plaintiff.
SO ORDERED.