Opinion
3:04-CV-1019-G.
September 22, 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, 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 presently confined at the Polunsky Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Livingston, Texas.
Defendants are Governor Rick Perry, the State of Texas Democratic and Republican Parties, employees of the Texas Board of Criminal Justice (TBCJ), and "administrative employees" of the Texas Department of Criminal Justice (TDCJ). The court has not issued process in this case. However, on August 25, 2004, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on September 10, 2004. Statement of Case: The complaint seeks to challenge the new offenders correspondence/publication policy which went into effect on June 1, 2004. (See Board Policy 03.91 attached to Plaintiff's Complaint). The new policy incorporates previous TDCJ correspondence rules and makes a number of substantive changes, including the following: (1) restricting the mailing of envelopes with drawings and/or words on them, (2) restricting the receipt of sexually explicit photographs; (3) restricting the receipt of publications containing sexually-explicit images; and (4) banning the possession of sexually explicit images, whether contained in publications or photographs. (Id.). Plaintiff requests monetary and injunctive relief. Findings and Conclusions: Before screening the complaint under 28 U.S.C. § 1915A, the court must first examine the threshold question of whether it has subject matter jurisdiction. That is an issue of paramount concern, and should be addressed, sua sponte if necessary, at the inception of any federal action. System Pipe Supply, Inc. v. M/V Viktor Kurnatovsky, 242 F.3d 322, 324 (5th Cir. 2001); Moody v. Empire Life Ins. Co., 849 F.2d 902, 904 (5th Cir. 1988).
The latter two restrictions will not take effect until June 1, 2005. (Board Police 03.91, attached to Complaint).
He also requests that all defendants "resign their post." (Complaint at ¶ VI). Such a request is not cognizable in this civil rights action.
Although Plaintiff paid the $150.00 filing fee, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578 (5th Cir. 1998) (the statutory screening provision under § 1915A applies to all prisoners' actions against governmental entities, officers and employees, regardless of whether the prisoner is proceeding in forma pauperis).
Ripeness is an issue of subject matter jurisdiction as to which a plaintiff has the burden of proof. See Samaad v. City of Dallas, 940 F.2d 925, 934 and n. 16 (5th Cir. 1993) (noting that ripeness is jurisdictional matter that cannot be waived);Manguno v. Prudential Prop. Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (holding that plaintiff has burden of establishing court's subject matter jurisdiction). The "[r]ipeness doctrine reflects the determination that courts should decide only a `real, substantial controversy,' not mere hypothetical questions." 13A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 3532.2 (West 1984 Supp. 1998). "The . . . doctrine is necessary to prevent courts from becoming entangled in abstract disputes by adjudicating an issue prematurely." American Medical Association v. R. Bowen, M.D., 857 F.2d 267, 272 (5th Cir. 1988) (citingThomas v. Union Carbide Agr. Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985)).
In evaluating whether a case is ripe for judicial review, a court is required to address "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Dresser Industries, Inc., v. United States, 596 F.2d 1231, 1235 (5th Cir. 1979). Thus, the evaluation of a suit's ripeness for adjudication requires a two-step inquiry which concerns both a constitutional requirement and prudential concerns.
First, a federal court must determine whether Article III standing requirements are met. To establish standing, the party invoking federal jurisdiction bears the burden of establishing that he or she has suffered, "an (1) `injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical'; (2) causation, meaning that the injury is `fairly traceable to the challenged action of the defendant'; and (3) redressability, meaning that `it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).
Second, "once the constitutional showing has been made, a court must satisfy prudential concerns by balancing the need to expend its resources on a case it may never need to decide against the expense and hardship to the parties of having a delayed adjudication." National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996).
Here, the court need go no further than a review of the constitutional component of the ripeness analysis to conclude that Plaintiff's case is not ripe for adjudication. Specifically, the court concludes that because Plaintiff has not satisfied his burden of establishing that the threatened injury of which he complains is sufficiently "imminent," he lacks standing to invoke the court's jurisdiction. In answer to the questionnaire, Plaintiff concedes that TDCJ "has not prevented Plaintiff from mailing, or receiving any correspondence/publications because of this new board policy." (Answer to Question 2). He also concedes that portions of the new correspondence/publication policy will not be in full effect until June 2005. As such, the court finds Plaintiff's claim of threatened injury as a result of Board Policy 03.91 too remote to satisfy the requirements of Article III standing.
In this respect the court notes that Plaintiff did not exhaust his administrative remedies before filing the complaint in this case; this provides further indication that his claim is not ripe for judicial review. He explains that "the grievance procedures have no jurisdiction over the defendants" named in the complaint — i.e., individuals, which in his opinion, were responsible for promulgating regulations and policies applicable to TDCJ inmates. (See Complaint at 2 ¶ III, and Answer to Question 3 of the questionnaire). This contention is unpersuasive. The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). Even when the prisoner seeks relief not available in grievance proceedings, notably monetary damages, exhaustion is a prerequisite to suit. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
It appears that on September 10, 2004, the Polunsky Unit Mail Room returned correspondence to Petitioner because it failed to comply with Board Policy 03.91. (Supplement to Answers to Questionnaire filed on September 15, 2004). While this incident may satisfy at least in part the ripeness doctrine requirement, Plaintiff will still need to exhaust his administrative remedies before seeking relief in this court.
Notwithstanding the prematurity of this case, the court concludes that the named defendants are not proper parties in this § 1983 case. Neither Plaintiff's complaint nor the answers to the questionnaire allege any facts which this court could liberally construe to allege that Governor Perry is a policymaker for TBCJ, or that he was or will be personally involved in acts which may cause alleged deprivations of his constitutional rights. See Lozano v. Smith, 718 F.2d 756 (5th Cir. 1983) (to be liable under § 1983, an individual must be personally involved in acts causing the deprivation of a person's constitutional rights); Monell v. Dep't of Social Servs., 436 U.S. 658, 691-95 (1978) (supervisory officials cannot be held vicariously liable for their subordinates' actions under § 1983). Nor do Plaintiff's pleadings allege that either political party was involved in the promulgation or implementation of new Board Policy 03.91, or that either acted under color of state law. Scott v. Moore, 85 F.3d 230, 233 (5th Cir. 1996) (section 1983 affords redress only for conduct committed by a person acting under color of state law). Similarly none of TBCJ's or TDCJ's administrative employees has been shown to have promulgated or implemented Board Policy 03.91. RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed for want of jurisdiction.
A copy of this recommendation will be mailed to Plaintiff, #1080109, TDCJ, Polunsky Unit, 3872 FM 350 South, Livingston, Texas 77351-9669.