Opinion
3:04-CV-1719-N.
January 7, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is currently residing in Fort Worth, Texas. He was incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at the time of filing this action. Defendants are TDCJ Executive Director Gary Johnson, and Executive Assistant Director of Classification and Records Pamela Wilson. The court has not issued process in this case. However, on August 17, 2004, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on August 30, 2004. Statement of Case: The complaint alleges TDCJ-CID erroneously held Plaintiff for an additional 94 days, beyond his parole or mandatory release date due to inaccurate and untimely record keeping. He requests monetary damages of $94,000 for delaying his release until October 10, 2002.
It is unclear whether Plaintiff seeks to sue Defendants in their individual and/or official capacities.
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by the defendant acting under color of state law.West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988).
In answer to the magistrate judge's questionnaire, Plaintiff concedes that the delay in his parole or mandatory supervised release was caused at most by negligence (see Answer to Question 4). It is well established that negligent conduct is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986); see also Marsh v. Jones, 53 F.3d 707, 712 (5th Cir. 1995). Because Plaintiff alleges only negligence on the part of the named Defendants, he cannot raise a claim cognizable under § 1983.
Moreover, it is clear that neither Defendant sued in his individual capacity was personally involved in the 94-day delay in Plaintiff's release from custody. To be liable under § 1983, an individual must be personally involved in the acts causing the deprivation of a person's constitutional rights. See Lozano v. Smith, 718 F.2d 756 (5th Cir. 1983). It is well settled that supervisory officials cannot be held vicariously liable for their subordinates' actions under § 1983. See Monell v. Dep't of Social Servs., 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). Supervisory officials may be held liable only if they (i) affirmatively participate in acts that cause constitutional deprivation, or (ii) implement unconstitutional policies that causally result in plaintiff's injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985).
The answers to the magistrate judge's questionnaire reflect that Plaintiff cannot meet either of the above standards. As a matter of fact, he concedes suing both Defendants because of their job titles. (Answer to Questions 5 and 9). Therefore, Plaintiff's claims against Defendants Johnson and Williams in their individual capacity lack an arguable basis in law and should be dismissed with prejudice as frivolous.
Insofar as Plaintiff seeks to sue Defendants in their official capacity, the complaint is considered to be a suit against the official's office — i.e, TDCJ-CID. As a result, the complaint would be barred by sovereign immunity as a suit against the state itself. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989);see also Aguilar v. Texas Dep't of Crim. Justice, 160 F.3d 1052, 1054 (5th Cir. 1998) (the Eleventh Amendment cloaks State instrumentalities such as the Texas Department of Criminal Justice with immunity from suits for damages).
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of questionnaire.See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal under § 1915(d) is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). Because he has failed to allege any cognizable claim for relief against the named Defendants under § 1983, the complaint should be dismissed with prejudice as frivolous pursuant to §§ 1915A(b)(1) and 1915(e)(2)(B)(i). RECOMMENDATION:
For the forgoing reasons, it is recommended that the District Court dismiss Plaintiff's complaint with prejudice as frivolous.See 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i).
A copy of this recommendation will be mailed to Plaintiff Michael F. Phillips, 3300 Canberra Court, Fort Worth, Texas 76105.