Opinion
No. 3:03-CV-2166-R.
September 28, 2004
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Plaintiff, a former inmate of the Dallas County Jail (DCJ) who is currently incarcerated in the Texas prison system, commenced this action in September 2003 when he filed a civil complaint against the Dallas County Sheriff's Department and the City of Dallas. ( See Compl. at 1.) On March 2, 2004, the Court received plaintiff's Answers to Magistrate Judge's Questionnaire wherein plaintiff dropped the aforementioned defendants and added Sheriff Jim Bowles and the University of Texas Medical Branch as defendants in this action. ( See Answer to Question 13 of Magistrate Judge's Questionnaire (MJQ).) On June 2, 2004, the Court received plaintiff's Answers to Second MJQ wherein plaintiff set forth various policies and customs which he claims violated his civil rights while incarcerated in the DCJ. ( See Answers to Questions 1 through 5 of Second MJQ.) On June 21, 2004, the Court received an amended complaint wherein plaintiff names Jim Bowles, the City of Dallas, and Southwestern Bell Communications (SBC) as defendants in this action. ( See Am. Compl.) On August 26, 2004, the Court received plaintiff's Answers to Second MJQ wherein he provides facts related to his conspiracy claim. ( See Answer to Question 1 of 8/26/04 Answers.)
Plaintiff's answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
The document has the same title as the document filed on June 2, 2004: "Answers to Second Magistrate Judge's Questionnaire." To avoid confusion, the Court will refer to the August 26, 2004 document as plaintiff's 8/26/04 Answers.
In his amended complaint, plaintiff claims that defendant Bowles and SBC have engaged in a conspiracy to allow unfair communication practices. (Am. Compl. at 4.) He further claims that defendant Bowles has allowed price gauging at the commissary and allowed the deprivation of (1) basic hygiene needs, such as face towels, dental floss, and for inmates in solitary confinement, standard toothbrushes; (2) Tylenol, milk, and juice; and (3) access to courts. ( Id. at 4-5.) He asserts that defendant City of Dallas has promoted and/or condoned the actions of Sheriff Bowles because the City is the overseer of the affairs of the City of Dallas. ( Id. at 3-4.) By this lawsuit, plaintiff seeks monetary and injunctive relief. ( Id. at 5.)
II. PRELIMINARY SCREENING
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiff's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Because he is proceeding in forma pauperis, plaintiff's complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. See id.
A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp. 2d 768, 769 (N.D. Tex. 2000). The standard for determining whether a complaint states a claim upon which relief may be granted is the same whether under § 1915(e)(2)(B), § 1915A(b), or Fed.R.Civ.P. 12(b)(6) or (c). See Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312-13 n. 8 (5th Cir. 2002) (noting that the standards under Rules 12 (b) (6) and 12 (c) are the same); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir.) (recognizing the standards are the same under 28 U.S.C. § 1915(e)(2)(B) and Rule 12(b)(6)), cert. denied, 537 U.S. 1049 (2002); Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999) (same); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (recognizing that the standards are the same under §§ 1915(e)(2)(B)(ii) and 1915A; Rule 12 (b) (6); and 42 U.S.C. § 1997e(c)).
Although plaintiff has filed an amended complaint in this action, the Court will consider the prior filings of plaintiff to the extent they relate to the claims asserted in his amended complaint.
III. SECTION 1983 RELIEF
Plaintiff seeks monetary and injunctive relief under 42 U.S.C. § 1983 against a county sheriff and the City of Dallas for alleged denial of access to the courts and deprivation of dental hygiene products, face towels, milk and juice, and Tylenol while housed in DCJ. He also seeks relief against the sheriff, the City, and a private telephone company for an alleged conspiracy between Sheriff Bowles and SBC to allow unfair communication practices. Section 1983 provides a federal cause of action and affords redress for the "deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a claim under § 1983, plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999).Plaintiffs request for injunctive relief is intended to correct the policies and practices of Dallas County Jail. Plaintiff, however, has not been housed there since at least January 2004. "Therefore, any claims for injunctive relief to correct procedures and practices at that facility are moot." See Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000). If his claims have merit, plaintiff may only pursue monetary relief.
IV. ACCESS-TO-COURT CLAIM
Plaintiff alleges that he was denied access to the law library and its materials. (Am. Compl. at 5; Answer to Question 8 of MJQ.) He alleges that he has been harmed by the alleged denial of access to the law library because a civil action in this Court (Cause No. 3:03-CV-2092-G) was dismissed, and he was unable to properly address a criminal case in state court. ( See Answer to Question 9 of MJQ.) With respect to his criminal case, he concedes he was represented by counsel. ( See Answer to Question 10 of MJQ.)
It is well established that inmates have a constitutionally recognized right to access the courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977). However, such right is limited and simply requires "prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828. The right does not guarantee any "particular methodology but rather the conferral of a capability — the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis v. Casey, 518 U.S. 343, 356 (1996).
To succeed on a claimed denial of access to courts, plaintiff must show that he lost an actionable claim or was prevented from presenting such a claim because of the alleged denial. See id.; Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996) (holding that, to state a sufficient claim of denial of access to the courts, plaintiff must demonstrate that his position as a litigant was prejudiced as a direct result of the denial of access). The "injury requirement is not satisfied by just any type of frustrated legal claim." Lewis, 518 U.S. at 353. Rather, plaintiff must demonstrate that the lack of access has prevented him from filing or caused him to lose a pending case that attacks either his conviction or seeks "to vindicate `basic constitutional rights'" in a civil rights action under 42 U.S.C. § 1983. Id. at 353-54 (quoting Wolff v. McDonnell, 418 U.S. 539, 579 (1974)). "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355. As the right of access to the courts is not a "freestanding right," it is necessary that plaintiff demonstrate actual injury resulting from the alleged denial of access. Id. at 351. Without a showing of an actual injury, plaintiffs lack standing to pursue claims of denial of access to courts. Id. at 349.
In this instance, plaintiff has made no showing of an actual injury. Plaintiff clearly had sufficient access to the law library to file his civil action, which this Court dismissed as frivolous. See Reed v. Gaines, No. 3:03-2092-G (N.D. Tex.) (findings of Magistrate Judge which were accepted by District Court). Having a frivolous action dismissed does not show the requisite harm for an alleged denial of access to courts. As to his criminal case, plaintiff was not actually injured by the alleged denial because he was represented by counsel. See Walters v. Edgar, 973 F. Supp. 793, 799 (N.D. Ill. 1997) (holding that "[t]he fact that counsel represented [plaintiff on the relevant matters] . . . satisfies the requirements of Bounds"). Because plaintiff has shown no actual injury, he has no standing to proceed with his access-to-courts claims.
V. DENIAL OF HYGIENE PRODUCTS
Plaintiff also alleges that he was denied basic necessities of hygiene while at DCJ. (See Am. Compl. at 5-6.) Specifically, he alleges a general deprivation of dental floss and face towels, and for inmates in solitary confinement, a deprivation of toothbrushes. ( Id.)
As a pretrial detainee at the time of the alleged deprivations, plaintiff's constitutional rights arise from the due process guarantees of the Fourteenth Amendment. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc). Nevertheless, there is no significant legal distinction between pre-trial detainees and convicted prisoners when addressing complaints "concerning basic human needs." See Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001). "[P]rison authorities may not withhold from prisoners the basic necessities of life, which includes reasonably adequate sanitation." Sanford v. Brookshire, 879 F. Supp. 691, 693 (W.D. Tex. 1994). The United States Constitution "forbids deprivation of the basic elements of hygiene." Daigre v. Maggio, 719 F.2d 1310, 1312 (5th Cir. 1983) ( Eighth Amendment claim).
Courts apply different tests when "analyzing constitutional challenges by pretrial detainees" depending upon whether the challenge is classified "as an attack on a `condition of confinement' or as an `episodic act or omission.'" Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) ( en banc) (quoting Hare, 74 F.3d at 644). A challenge constitutes an attack on conditions of confinement when the detainee attacks "general conditions, practices, rules, or restrictions of pretrial confinement." Id. (quoting Hare, 74 F.3d at 644). Challenges to general conditions of confinement require application of "the reasonable relationship test of Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)." Id. Under that test, "a constitutional violation exists only if [the court finds] that the condition of confinement is not reasonably related to a legitimate, non-punitive governmental objective." Id. In addition, to succeed on a deprivation-of-hygiene claim, plaintiff must show an "extreme deprivation" of sanitation. See Hudson v. McMillian, 503 U.S. 1, 9 (1992).
Despite the practice of differentiating between these two tests, "the reasonable-relationship test employed in conditions cases is `functionally equivalent to' the deliberate indifference standard employed in episodic cases." Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997) ( en banc).
In this instance, plaintiff attacks the general conditions, practices, rules, or restrictions of pretrial confinement. He claims a general deprivation of dental floss that caused gingivitis and bad breath. ( See Answers to Questions 1 and 2 of MJQ.) He also alleges that he was denied face towels while at DCJ. (Am. Compl. at 5.) He asserts that, because he was unable to properly wash with only a thin bar of soap, he developed a fungus. ( See Answer to Question 7 of MJQ.) He further claims that he was denied a tooth brush for two months while he was in solitary confinement. ( See Answer to Question 5 of MJQ.) He contends that while in solitary confinement he was merely provided a "thimble-like device with bristles which basically is inoperable." (Original Compl. at 2.)
Plaintiff originally also claimed a general deprivation of mouthwash, see Answer to Question 1 of MJQ, but abandoned such claim by not including it in his amended complaint. The Court notes that such deprivation does not state a viable constitutional claim because it does not rise to the level of an excessive risk to inmate health or safety. In addition, because many mouthwashes contain alcohol, the DCJ has a legitimate, non-punitive governmental objective in maintaining safety and order by depriving inmates of access to alcohol in whatever form.
The alleged deprivations do not amount to a violation of a constitutional right. Plaintiff has shown no extreme deprivation of hygiene products or basic needs of sanitation. He has alleged no deprivation of soap or toothpaste. At all times he had access to some form of toothbrush, including the alternative thimble-like device available to inmates in solitary confinement. When adequate alternate hygiene products are available, there is no extreme deprivation.
Furthermore, in response to plaintiff's prison grievance regarding the denial of dental floss while incarcerated and the denial of a standard tooth brush while in solitary confinement, the DCJ informed plaintiff that safety precautions necessitate such denials. ( See Ex. A to Compl.) Maintaining necessary safety precautions is a legitimate, non-punitive governmental objective. As already mentioned, plaintiff concedes that he was given a substitute for the standard toothbrush while in solitary confinement. Because DCJ has a legitimate, non-punitive reason for depriving all inmates of dental floss, and depriving inmates in solitary confinement of standard toothbrushes, such alleged deprivations amount to no constitutional violation.
For the foregoing reasons, plaintiff has failed to state a viable claim based upon deprivation of hygiene products.
VI. DENIAL OF OTHER PRODUCTS
Plaintiff further alleges that he was denied milk, juice, and Tylenol while at DCJ. (Am. Compl. at 5.) To show an injury from the alleged deprivation of milk, he states that, without calcium intake, one's bones will begin to weaken. ( See Answer to Question 6 of MJQ.) He further states that he has "suffered pain in [his] wrist, ankle, knee and hip joints." ( Id.) Although the Court specifically asked him to provide all facts to support his claim that he has been deprived of Tylenol and to specify the physical injury that resulted from such deprivation, plaintiff merely stated that DCJ took away free Tylenol to ease its budgetary woes. ( See Answer to Question 7 of MJQ.)
Pursuant to 42 U.S.C. § 1997e(e), there must be a physical injury in order for a prisoner to assert a claim upon which monetary damages can be granted under § 1983 for conditions of confinement. See Jones v. Greninger, 188 F.3d 322, 326 n. 3 (5th Cir. 1999). Plaintiff has alleged no physical injury with respect to the alleged deprivation of milk, juice, or Tylenol products. He merely asserts that he has suffered "pain in [his] wrist, ankle, knee and hip joints." ( See Answer to Question 6 of MJQ.) Other than sheer speculation, plaintiff has not linked such pain to the alleged deprivations of milk, juice, or Tylenol. In addition, plaintiff has made no allegation that he was deprived of other pain medication when medically necessary. There is no constitutional right to a specific form of pain medication.
Furthermore, if an inmate insists on a particular form of medication when offered a different form, he merely has a disagreement with medical treatment which is not actionable under 42 U.S.C. § 1983. See Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001).
Because plaintiff has alleged no physical injury from the alleged deprivation of milk, juice, and Tylenol, such alleged deprivations entitle him to no relief in this case. See 42 U.S.C. § 1997e(e).
VII. PRICE GAUGING
Plaintiff also claims that defendant Bowles has allowed price gauging at the commissary. (Am. Compl. at 4.) Specifically, he claims that the commissary charges $0.60 or $0.65 for "Ramen Noodle Soups" that can be obtained outside the prison for "8 for $1 or 8 for $2." ( Id.) However, overcharging for commissary items does not independently violate any constitutional right and thus fails to state a claim under 42 U.S.C. § 1983. See Starks v. Powers, No. 03-1962, 2004 WL 1380530, at *1 (7th Cir. June 17, 2004) (noting that district court had dismissed a claim of commissary overpricing as frivolous). Although such a claim perhaps could be viable in the context of an alleged deprivation of the necessities of life, plaintiff makes no claim that he was deprived of food in general during his stay in DCJ. That he could not purchase "Ramen Noodle Soups" at a price he finds acceptable does not state a constitutional violation.
VIII. CONSPIRACY REGARDING TELEPHONES
Lastly, plaintiff seeks relief against the sheriff, the City, and a private telephone company for an alleged conspiracy between Sheriff Bowles and SBC to allow unfair communication practices. (Am. Compl. at 4.) He identifies the unfair communication practices as "having and/or agreeing to having specialized computer chips inserted into the county telephones for inmates that are designed to disconnect phone conversations between an inmate and the accepting party if a three-way call is attempted or call waiting is used." ( Id.) He asserts that "these measures serve no security purpose but is [sic] intended to have the inmate place as many individual phone calls as possible to gross more profit." ( Id.) He further asserts that "callers and/or the accepting party have the right to use both call waiting and three-way calling as long as nothing illegal is taking place." (Answer to Question 1 of Third MJQ.)
A. Constitutional Right
For plaintiff's alleged conspiracy regarding telephone restrictions to rise to a viable claim under 42 U.S.C. § 1983, the conspiracy must involve some constitutional right. Although the Fifth Circuit Court of Appeals has held that inmates have "no right to unlimited telephone use", Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982), it has not specifically stated that prisoners have a constitutional right to use the telephone. However, the Lopez holding at least implies that there is some constitutional right to telephone access. Such interpretation is consistent with other courts which have specifically held that inmates have a First Amendment right to reasonable access to the telephone so that they can contact their family and friends. See Washington v. Reno, 35 F.3d 1093, 1099-1100 (6th Cir. 1994); Johnson v. Galli, 596 F. Supp. 135, 138 (D. Nev. 1984). This Court assumes (without deciding) for purposes of screening that there is a constitutional right to some telephone access. See Arney v. Simmons, 26 F. Supp. 2d 1288, 1293 (D. Kan. 1998) (recognizing an unpublished opinion of the Tenth Circuit, Martinez v. Mesa County Sheriff, 69 F.3d 548, 1995 WL 640302 (10th Cir. 1995) which held that prisoners have "no constitutional right to make personal telephone calls").
In this case, plaintiff does not allege that he was denied telephone access while in DCJ. He instead complains about the disconnection of telephone calls when a party attempts to make the two-person telephone communication into a three-person conference call or attempts to switch to an incoming telephone call using call waiting. No court has specifically held that prisoners or those out-siders whom they communicate with via telephone have any constitutional right to utilize additional telephone services, such as three-way calling or call waiting. This Court declines to consider reasonable telephone access as including access to such additional telephone services. Consequently, plaintiff has stated no conspiracy to interfere with his constitutional rights, and his conspiracy claim thus fails to state a claim under 42 U.S.C. § 1983.
B. Permissible Restrictions on Constitutional Rights
Even assuming the existence of a constitutional right to reasonable telephone access which includes services such as three-way calls or call waiting, DCJ restrictions on such right are constitutionally permissible. It is well-established that lawful incarceration results in the necessary limitation of many privileges and rights of the ordinary citizen. See Pell v. Procunier, 417 U.S. 817, 822 (1974). Supreme Court precedent makes clear that the "prison walls do not form a barrier separating prison inmates from the protections of the Constitution . . . nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the inside." Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (citations and internal quotation marks omitted). Nevertheless, such constitutional rights "must be exercised with due regard for the `inordinately difficult undertaking' that is modern prison administration." Id. The Courts must remain "sensitive to the delicate balance that prison administrators must strike between the order and security of the internal prison environment and the legitimate demands of those on the `outside' who seek to enter that environment." Id. The Supreme Court explained:
Many categories of noninmates seek access to prisons. Access is essential to lawyers and legal assistants representing prisoner clients, to journalists seeking information about prison conditions, and to families and friends of prisoners who seek to sustain relationships with them. All these claims to prison access undoubtedly are legitimate; yet prison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison. Acknowledging the expertise of these officials and that the judiciary is `ill equipped' to deal with the difficult and delicate problems of prison management, this Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world.Id. at 407-08.
As already mentioned, the Fifth Circuit has found that inmates have "no right to unlimited telephone use." Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982), accord Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994); Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989). The Fifth Circuit has also held that prisons can regulate telephone usage without violating the Constitution so long as such regulation does not cause an inability to communicate with the courts, counsel, family, or friends. See Hill v. Estelle, 537 F.2d 214, 215 (5th Cir. 1976). "The First Amendment right to telephone access is `subject to rational limitations in the face of legitimate security interests of the penal institution.'" Washington, 35 F.3d at 1100 (quoting Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)). Thus, although the prison walls do not remove all constitutional rights, prison officials may validly enact and enforce regulations and procedures which infringe upon constitutional rights of inmates or outsiders if such regulations or procedures are "reasonably related to legitimate penological interests." Thornburgh, 490 U.S. at 413. "The exact nature of telephone service to be provided to inmates is generally to be determined by prison administrators, subject to court scrutiny for unreasonable restrictions." Id. (citation omitted).
In determining the "reasonableness" of a prison restriction, the courts consider whether (1) a valid, rational connection exists between the restriction and a legitimate governmental interest, including whether the restriction operates "in a neutral fashion, without regard to the content of the expression"; (2) an alternative means of exercising the right exists; (3) accommodating the constitutional right will have a "significant" negative impact "on guards and other inmates, and on the allocation of prison resources generally"; and (4) obvious, easy alternatives to the restriction exist thus showing the restriction to be an exaggerated response to prison concerns. See Turner v. Safley, 482 U.S. 78, 89-90 (1987).
In this instance, plaintiff complains about "computer chips" which automatically disconnect telephone calls when a party attempts to utilize three-way calling or call waiting. Preventing these types of services reasonably relate to legitimate penological interests in monitoring and/or restricting communication to known outsiders, and lessening the opportunity for multiple-party communications that are more conducive to insidious planning. Furthermore, the restriction on three-way calls and call waiting operates in a neutral fashion without regard to the content of the communication. Inmates also have viable alternatives to telephone communication with outsiders, namely personal visitation and mail. The use of computer chips to automatically accomplish the restriction on three-way calls and call waiting efficiently serves the purpose of limiting calls to the known outsider. To compel the DCJ to eliminate the computer chips that automatically block these additional telephone services would require additional prison oversight of phone calls. Such elimination would negatively impact the general allocation of prison resources.
For all of these reasons, the Court finds that the telephone restrictions at DCJ do not violate plaintiff's constitutional rights. His claimed conspiracy thus fails to state a claim upon which relief can be granted under 42 U.S.C. § 1983.
IX. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiff's complaint with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Such dismissal will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).
Section 1915(g), which is commonly known as the "three-strikes" provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.