Opinion
CIVIL ACTION NO. 4:02-CV-1040-Y.
May 22, 2003.
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(b) AND UNDER 28 U.S.C. § 1915(e)(2)(b)
On December 26, 2002, plaintiff Lorenzo Sierra, a incarcerated at the Texas Department of Criminal Justice-Institutional Division's (TDCJ-ID) Clements Unit, was permitted to proceed in the above-styled and numbered cause pursuant to 28 U.S.C. § 1915 by the magistrate judge, and he was ordered to pay the full filing fee required by the Prison Litigation Reform Act (PLRA). Sierra's complaint under 42 U.S.C. § 1983 names the following defendants: D. Branin, correctional officer, Corrections Corporation of America (CCA) Venus-Unit; A.D. (no other name listed), counsel substitute, TDCJ-ID, Lynaugh Unit; and Captain Weatherby, hearing officer, TDCJ-ID, Lynaugh Unit. (Compl. Style; § IV(B); attachment pages).
Sierra alleges that on July 6, 2002, while he was housed in the CCA-Venus Unit, he was assaulted in his own cell by fellow inmate Brandon Lee. Sierra alleges he was struck several times in the face and mouth before he grabbed a chair and swung it at Lee to force Lee back into the day room. (Compl. § V, attachment pages 4a-4b.) Sierra alleges that just before the assault, Lee was sitting in the dayroom with defendant Branin. (Compl. § V, attachment 4a.) After the fight, Branin prepared an offense report, and according to Sierra, she caused that report to be forwarded to the disciplinary office as a false disciplinary report. (Compl. § V, attachment 4b.) Sierra was then transferred to the Lynaugh Unit where he alleges that defendant A.D., purporting to act on his behalf as a counsel substitute, knowingly used the allegedly false disciplinary report against him, by reading the report at a disciplinary proceeding without informing Sierra of his rights. (Compl. § V, attachment 4b-4c.) Sierra contends that the hearing officer, Captain Weatherby, after listening to both his testimony and that of inmate Lee, improperly found him guilty, and assessed punishments including the loss of good time credit and reduction in line class status. (Compl. § V, attachment 4c.) Weatherby also purportedly failed to process Sierra's request to appeal. (Compl. § V, attachment 4d.) According to Sierra, he has suffered migraine headaches, mental anguish, and emotional distress "caused by frequent thoughts of the defendants' mistreatment of [him]," and he seeks $100,000.00 from defendant Branin and $10,000.00 each from defendants A.D. and Weatherby. (Compl. attachment 4e.)
A complaint filed in forma pauperis that lacks an arguable basis in law should be dismissed under 28 U.S.C. § 1915. Under 28 U.S.C. § 1915(e)(2)(B), a district court retains broad discretion in determining at any time whether an in-forma-pauperis claim should be dismissed. Furthermore, as a part of the PLRA, Congress enacted 28 U.S.C. § 1915A, which requires the Court to review a complaint from a prisoner seeking relief from a governmental entity or governmental officer or employee as soon as possible after docketing. Consistent with § 1915A is prior case law recognizing that a district court is not required to await a responsive pleading to conduct its § 1915 inquiry. Rather, § 1915 gives judges the power to "dismiss a claim based on an indisputably meritless legal theory." After review and consideration of Sierra's claims in this suit, the Court finds that they must be dismissed under the authority of these provisions.
Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e) requires dismissal not only when an allegation of poverty is untrue or the action is frivolous or malicious, but also when "the action . . . fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.A. § 1915(e) (2)(A) and (B) (West Supp. 2003).
See 28 U.S.C.A. § 1915(e)(2) (West Supp. 2003); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990) (discussing authority to dismiss at any time under prior § 1915(d)) .
See 28 U.S.C.A. § 1915A(a) (West Supp. 2003).
See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Sierra has named the defendants in both an individual and an official capacity as employees of the Texas Department of Criminal Justice. The Fifth Circuit has held that "the Eleventh Amendment bars recovering § 1983 money damages from TDCJ officers in their official capacity." Thus, all of Sierra's claims against the defendants in an official capacity must be dismissed under 28 U.S.C. § 1915A(b)(2) and 1915(e) (2)(B) (iii).
Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002), citing Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (extending Eleventh Amendment to TDCJ); Aguilar v. TDCJ, 160 F.3d 1052, 1054 (5th Cir. 1998) (extending immunity to TDCJ officers acting in official capacity), cert. den'd, 528 U.S. 851 (1999).
In order to assert a claim for damages for violation of federal constitutional rights under 42 U.S.C. § 1983, a plaintiff must set forth facts in support of the required elements of a § 1983 action: (1) that he has been deprived of a right secured by the Constitution or laws of the United States; and (2) that the defendant deprived him of such right while acting under color of state law. Plaintiff alleges that defendant Branin intentionally and knowingly acted with deliberate indifference in exposing him to assault by inmate Lee in violation of his rights under the Eighth Amendment. (Compl. § V.) In order to maintain an action for deprivation of the Eighth Amendment on a failure-to-protect claim, a plaintiff must allege facts that show that he is incarcerated under conditions posing a substantial risk of serious harm, and that prison officials were deliberately indifferent to his need for protection. To act with deliberate indifference, the official "`must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" An official acts with deliberate indifference only if `he knows that inmates face a substantial risk of serious harm and disregards the risk by failing to take reasonable measures to abate it."
See American Manufacturers Mutual Insurance Company v. Sullivan, 526 U.S. 40, 49-50 (1999); see also West v. Atkins, 487 U.S. 42, 48 (1988) (citing cases); Resident Council of Allen Parkway Village v. U.S. Department of Housing and Urban Development, 980 F.2d 1043, 1050 (5th Cir.), cert. denied, 510 U.S. 820 (1993).
See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995), citing Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Neals, 59 F.3d at 533, quoting Farmer, 511 U.S. 837.
Farmer, 511 U.S. at 847.
Plaintiff has failed to allege facts that defendant Branin was aware of and disregarded a substantial risk of harm to him. Although Plaintiff alleges he received physical injury from inmate Lee, he does not allege any facts that defendant Branin was aware of a threat from Lee towards Plaintiff, nor does he allege any facts that Branin assisted or allowed Lee to assault him. Also, Plaintiff has not alleged that Branin was aware of a threat by anyone else against him, and even if so, "threats alone do not rise to the level of a constitutional violation." Furthermore, to the extent Plaintiff alleges that Branin acted with "negligence" in exposing him to assault, the Fifth Circuit has expressly upheld the dismissal as frivolous under 28 U.S.C. § 1915, similar allegations by a prisoner/plaintiff that failure to protect him by removing him from threatening inmates negligently jeopardized his safety. Thus, this Court determines that Sierra has failed to allege any fact to support an inference that defendant Branin was deliberately indifferent to his need for safety, and his failure-to-protect claim against Branin must be dismissed under 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
Spicer v. Collins, 9 F. Supp.2d 673, 683 (E.D. Beaumont 1998).
See Neals, 59 F.3d at 532 (Even on claims where prisoner himself had been assaulted and relayed allegations of future threats to prison officials, district court's determination that claims amounted to negligence was affirmed by court of appeals) .
With regard to all of Sierra's remaining claims, the Court concludes that they are not cognizable under 42 U.S.C. § 1983. That is because, first, in Heck v. Humphrey, the Supreme Court held that a claim that effectively attacks the constitutionality of a conviction or imprisonment is not cognizable under § 1983 and does not accrue until that conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Then, in Edwards v. Balisok, the Supreme Court extended the Heck doctrine to bar a plaintiff's claim for a declaration that the procedures employed in a disciplinary proceeding, which resulted in a loss of good-time credit, were in violation of the Constitution. The Court discussed at great length in Edwards the distinction between a claim that seeks, without further consequence, damages for the use of invalid procedures and a claim that seeks damages for invalid procedures that would, in turn, necessarily imply the invalidity of a judgment. The Court held that because Edwards's challenges to the prison disciplinary proceedings would, if established, necessarily imply the invalidity of the deprivation of good-time credits, his claims were not cognizable under § 1983. The Court of Appeals for the Fifth Circuit has since applied the Heck and Edwards holdings to a petitioner's challenge to a disciplinary ruling that resulted in his loss of good time and transfer to another prison.
512 U.S. 477 (1994).
Heck, 512 U.S. at 486-87.
Edwards v. Balisok, 520 U.S. 641, 648 (1997).
Id. at 644-46.
Id. at 648.
Clarke v. Stadler, 154 F.3d 186, 188, 191 (5th Cir. 1998) (en banc) (holding that the prisoner's challenge to the facial validity of a disciplinary rule was barred by Heck and Balisok, and also expressly reaffirmed the panel opinion, 121 F.3d 222, 226, that prisoner plaintiff Clarke's challenge to the disciplinary proceeding itself and punishment resulting therefrom were barred by Heck and Balisok), cert. den'd, 525 U.S. 1151 (1999).
Applying these decisions to Sierra's remaining claims, any determination by this Court of the invalidity of the disciplinary charges, the hearing, or the resulting punishment, would necessarily imply the invalidity of Sierra's disciplinary ruling. Plaintiff has failed to establish that he has met the requirements set forth by the Supreme Court. He has not sought and obtained habeas-corpus relief or otherwise shown that the additional sentence he will serve as a result of the lost good-time credit has been invalidated by a court. As a result, Plaintiff's claims are not cognizable, and must be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i) and (ii) .
See Heck, 512 U.S. at 487-88; Clarke, 154 F.3d at 191.
It is therefore ORDERED that all of Plaintiff's claims against the defendants in an official capacity, be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(2) and alternatively, pursuant to 28 U.S.C. § 1915(e)(2)(B) (iii).
It is further ORDERED that Plaintiff's claims against defendant Branin for failure to protect under the Eighth Amendment be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) and alternatively, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) and (ii).
It is further ORDERED that all of Plaintiff's remaining claims be, and they are hereby, DISMISSED WITH PREJUDICE to their being asserted again until the Heck v. Humphrey conditions are met, under the authority of 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915 (e)(2)(B)(i) and (ii).
See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).