Opinion
No. 3:05-CV-2188-M.
January 17, 2006
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 are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is an action brought pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is an inmate presently confined at the Stiles Unit of the Texas Department of Criminal Justice — Correctional Institution Division in Beaumont, Texas. Defendants are Chief of Police Rosenberry, Lt. William Cole, Sgt. Billy Rascoe, and Officer Nathan Baker. The Court did not issue process in this case pending preliminary screening. Statement of the Case: The complaint seeks monetary relief for perjury, slander, and "terroristic threats."
On November 28, 2005, the Court issued a questionnaire to afford Plaintiff the opportunity to present sufficient facts to demonstrate the existence of a federal claim. The Fifth Circuit Court of Appeals has approved the use of questionnaires as a proper method to develop the factual basis of a pro se complaint. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal under § 1915 is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaires as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). As of the date of this recommendation, Plaintiff has failed timely to respond to the Magistrate Judge's questionnaire.
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 (1989).
Plaintiff seeks to sue Rosenberry merely because he is the Chief of Police for the City of Greenville, and in that capacity he was allegedly responsible for the acts of his subordinates. (Complaint at 4). 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). 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 (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).
In his complaint, Plaintiff fails to allege that Chief Rosenberry was personally involved in any constitutional deprivation. Accordingly, Plaintiff's claims against Chief Rosenberry lack an arguable basis in law and should be dismissed with prejudice as frivolous.
Next Plaintiff seeks to sue Lt. Cole and Sgt. Rascoe for aggravated perjury, "terroristic threats towards the Plaintiff" and slander. (Complaint at 4). Plaintiff cannot raise a constitutional violation for defamation or slander of his character on the basis of Lt. Cole and Sgt. Rascoe's statements. Allegation of an injury solely to a plaintiff's reputation is insufficient to establish liability for civil rights violation under § 1983. See, e.g., Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (interest in reputation alone does not implicate a "liberty" or "property" interest sufficient to invoke due process protection under § 1983); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (same); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990) (same); see also Mowbray v. Cameron County, Tex., 274 F.3d 269, 277 (5th Cir. 2001).
Moreover, Plaintiff cannot establish the necessary physical injury to sustain a claim for monetary damages for his claims against Lt. Cole and Sgt. Rascoe. See Harper v. Showers, 174 F.3d 716, 719 n. 5 (5th Cir. 1999); see also Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). The only injury which Plaintiff could have suffered as a consequence of the perjury, threats, and defamatory or slanderous statements was mental pain and suffering. As a result, § 1997e(e) bars his request for monetary damages. See Harper, 174 F.3d at 719; see also Alexander v. Tippah County, 351 F.3d 626, 631 (5th Cir. 2003) (prisoners could not recover for mental or emotional damages absent more than de minimis physical injury).
42 U.S.C. § 1997e(e) states: "No federal civil action may be brought by a prisoner. . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury."
Lastly Plaintiff contends that Officer Baker testified falsely at his examining trial. (Complaint at 4). Absolute immunity shields this Defendant from liability for such action. InBriscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), the Supreme Court held that all witnesses — police officers as well as lay witnesses — are absolutely immune from civil liability under § 1983, including those who give allegedly perjured testimony during adversarial criminal proceedings. Id. at 334, 103 S.Ct. at 111. See also Moore v. McDonald, 30 F.3d 616 (5th Cir. 1994) (deputy sheriff's testimony in adversarial pretrial suppression hearing was absolutely immune from arrestee's § 1983 claim). RECOMMENDATION:
Moreover, Plaintiff cannot bring an action based upon Officer Baker's testimony at the examining trial unless the requirements of Heck v. Humphrey, 512 U.S. 477 (1994), are satisfied.
For the foregoing reasons, it is recommended that the complaint be dismissed with prejudice as frivolous. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
A copy of this recommendation will be mailed to Plaintiff.