Opinion
3:01-CV-210-L.
August 7, 2001
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, 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. While Plaintiff brings this action pursuant to 42 U.S.C. § 1983, such section is inapplicable to defendants federal employees. See Resident Council of Allen Parkway Village v. HUD, 980 F.2d 1043, 1053 (5th Cir. 1993), cert. denied, 510 U.S. 820 (1993) (holding that federal officials act under color of federal law, rather than state law, and as such are not subject to suit under § 1983); Lyons v. Sheetz, 834 F.2d 493, 495 (5th Cir. 1987) (federal employees do not act under color of state law and, therefore, § 1983 is inapplicable).
Parties: Plaintiff currently resides in San Antonio, Texas, where he is serving a four-year term of supervised release. He was incarcerated at the Federal Correction Institution (FCI) in Seagoville, Texas, at the time of the occurrences at issue in this case.
Defendants are Warden Sam Pratt, Jail Administrator P. Childs, Unit Manager Anderson, Unit Five Case Manager D. Crowe, Unit Five Counselor Price, Special Investigator Farley, and Disciplinary Hearing Officer William Mobley. All Defendants, except for Officer Mobley, are employees of FCI Seagoville.
The court has not issued process in this case. However, on May 14, 2001, the magistrate judge issued a questionnaire to Plaintiff who filed his answers on June 14, 2001. Statement of Case: The complaint challenges a disciplinary sanction, which Plaintiff received while confined at FCI Seagoville for being a leader-organizer of a prison strike. Plaintiff was placed in administrative segregation for seventy days as a result of the disciplinary action. The complaint alleges Defendants violated Plaintiff s civil rights in charging him with and subsequently finding him guilty of the above disciplinary sanction. In particular, Plaintiff asserts that he became involved in the inmate strike only when Case Manager Anthony asked him to interpret at a "town-hall meeting" for the Spanish-speaking inmates. (Complaint at 3). Plaintiff further asserts Defendant Mobley denied him a fair and impartial disciplinary hearing.
On April 9, 2001, the court denied Plaintiff's motion to amend without prejudice. As of the date of this recommendation Plaintiff has taken no steps to amend his complaint. Therefore, the questionnaire and this recommendation are based on Plaintiff's original complaint.
In addition to challenging the disciplinary sanction, the complaint alleges that Rodriguez was denied access to the prison law library for 58 of the 70 days he was confined in administrative segregation. Plaintiff was also refused access to his legal property while confined in administrative segregation. During this time Plaintiff had a case pending in the Eleventh Circuit Court of Appeals and needed to research the law applicable to the pending disciplinary action. Plaintiff requests monetary relief. 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:
In addition to monetary relief, Plaintiff requests declaratory and injunctive relief. However, his release from FCI Seagoville (see answer to questions 2-3 of the magistrate judge's questionnaire) renders his claim for declaratory and injunctive relief moot. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (inmate's transfer from the ECDC to the Dixon Correctional Institute, rendered his claim for declaratory and injunctive relief moot); Cooper v. Sheriff, Lubbock County. Tex., 929 F.2d 1078, 1084 (5th Cir. 1991) (inmate's transfer to another prison rendered moot his claims for equitable relief in connection with allegedly unconstitutional deprivation of food at former prison); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988) (prisoners who were no longer in Retrieve Unit could not seek injunctive relief against conditions of confinement there).
In answer to Question 7 of the questionnaire, Plaintiff states that he exhausted his administrative remedies by filing a "BP 8," a "BP 9," a "BP 10," and a "BP 11." He does not provide any further details about "Bp 8-11" and whether they are sufficient to exhaust administrative remedies under 42 U.S.C. § 1997e(a).See Booth v. Churner, ___ U.S. ___, 121 S.Ct. 1819, 1823-25, 149 L.Ed.2d 958 (2001) (section 1997(e)(a) requires exhaustion of administrative remedies even where grievance process does not permit award of money damages and prisoner seeks only money damages); Wright v. Hollingsworth, F.3d ___, 2001 WL 838861, *1-2 (5th Cir. July 24, 2001) (same).
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) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.").
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, 1831-32, 104 L.Ed.2d 338 (1989). 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 that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
The complaint expressly asserts that Plaintiff is suing Defendant Pratt, Childs, Anderson, Crowe, Price and Farley in their official capacities. (Complaint at 2-3). In answer to the magistrate judge's questionnaire Plaintiff states that he is suing Defendant Mobley, the disciplinary hearing officer, in both his individual and official capacities. (Answer to Question 4).
The doctrine of sovereign immunity "renders the United States, its departments, and its employees in their official capacities as agents of the United States immune from suit except as the United States has consented to be sued. Williamson v. United States Dep't of Agriculture, 815 F.2d 368, 373 (5th Cir. 1987). The Federal Tort Claims Act (FTCA) is one statute pursuant to which the United States has waived sovereign immunity and has consented to be sued. 28 U.S.C. § 2671 et seq. The FTCA, however, requires exhaustion of administrative remedies before a claim can be asserted in federal court. Williamson, 815 F.2d at 378. Plaintiff does not allege that he presented any of his claims to the appropriate federal agency and/or that his claims were finally denied by the agency in writing. Absent exhaustion of FTCA administrative remedies, a federal court is without jurisdiction to entertain a plaintiff's tort claims against the government. Houston v. United States Postal Serv., 823 F.2d 896, 902 (5th Cir. 1987), cert. denied, 485 U.S. 1006 (1988) (exhaustion of administrative remedies under the FTCA is a jurisdictional prerequisite, and failure to do so will deprive a federal district court of jurisdiction over the action).
Rodriguez's action against Defendant Mobley in Mobley's individual capacity fares no better. Plaintiff alleges that Mobley did not permit him to cross-examine witnesses as required in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The process due under Wolff, including the conditional right to call other witness, is required only if the inmate was deprived of a liberty interest. See Henson v. United States Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000) (when a prisoner has a liberty interest in good time credit, revocation of such credit must comply with minimal due process procedural requirements). To show the deprivation of a liberty interest, a prisoner must show that his sentence was extended or that he otherwise suffered a significant, atypical hardship. See Sandin v. Conner, 515 U.S. 472, 484, 487, 115 S.Ct. 2293, 2300, 2302, 132 L.Ed.2d 418 (1995). Plaintiff's placement in administrative segregation for seventy days does not constitute a significant, atypical hardship which constitutes a deprivation of a liberty interest. See Thomas v. Ramos, 130 F.3d 754, 760-62 (7th Cir. 1997) (inmate's 70-day confinement in disciplinary segregation did not implicate liberty concerns within meaning of due process clause); see also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 517 U.S. 1196 (1996) (interpreting Sandin as establishing that "administrative segregation, without more, does not constitute a deprivation of a constitutionally cognizable liberty interest"). Therefore, Plaintiff's claim against Defendant Mobley in his individual capacity lacks an arguable basis in law and should be dismissed as frivolous.
As noted above, 42 U.S.C. § 1983 is inapplicable to federal employees and agents. Therefore, insofar as Rodriguez is suing Mobley in his individual capacity, the court construes his claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
While Sandin addressed state-created liberty interests under the Fourteenth Amendment, its methodology applies equally to Fifth Amendment claims involving federal prison regulations.Crowder v. True, 74 F.3d 812, 814-15 (7th Cir. 1996).
To the extent that Plaintiff's complaint may be construed as a Bivens action against any of the other defendants in their individual capacities, any claims against them also lack an arguable basis in law. As noted above, Plaintiff did not loose any protected liberty interest in connection with the disciplinary sanction. Hence any claim based on the disciplinary action could not have risen to a constitutional violation. Moreover, Plaintiff's claims of denial of access to the law library and his prison materials do not rise to a constitutional violation. In Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977), the Supreme Court held that prisoners have a fundamental constitutional right to "adequate, effective, and meaningful" access to the courts. See also Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.), cert. denied, 522 U.S. 995 (1997). A prisoner's right of access is not unlimited, however. "[I]t encompasses only `a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.'"Id. at 310-311 (quoting Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606 (1996)). In Lewis, the Supreme Court explained that before an inmate may prevail on a claim that his constitutional right of access to the courts was violated, he must demonstrate that the suffered "actual injury" — i.e. that the denial of access "hindered his efforts to pursue a legal claim." 518 U.S. at 351, 116 S.Ct. at 2180. See also McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
In the instant case, in order to satisfy the standing requirement of "actual injury," Plaintiff must show that the denial of access to the law library and his prison material hindered his case pending before the Eleventh Circuit Court of Appeals. See Lewis, 518 U.S. at 351, 116 S.Ct. at 2179, 2182. Although Plaintiff makes a general allegation that the denial of access to the jail law library and his prison material denied him the opportunity to do necessary research, he does not allege any actual injury as a result of that denial. (See Answer to Question 6). On the contrary, any injury claim is foreclosed by the fact that Plaintiff was represented by Attorney John Borawock in the case pending before the Eleventh Circuit. (Answer to Question 5). Therefore, absent any cognizable injury or prejudice, Plaintiff cannot raise a claim of denial of access to the courts.
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of questionnaire.See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (same); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (same). Because he has failed to allege any cognizable claim for relief against the named Defendants, the complaint should be dismissed with prejudice as frivolous and for seeking monetary relief against defendants who are immune from such relief pursuant to §§ 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii).
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous and for seeking monetary relief against Defendants who are immune from such relief pursuant to 28 U.S.C. § 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.