Opinion
7:00-CV-250-R
April 29, 2002
ORDER OF DISMISSAL
Came on to be considered the papers and pleadings filed in this action and the Court finds and orders as follows:
This is an action brought pursuant to 42 U.S.C. § 1983 by an imitate confined in the Lewis Unit of the Texas Department of Criminal Justice in Woodville, Texas. Plaintiff claims that, when he was incarcerated in the Alfred Unit, Defendants failed to protect him from attack by a gang member. Complaint ¶ V. He seeks monetary damages and injunctive relief. Id. at ¶ VI.
Plaintiff claims that, on August 3, 1999, he was repeatedly stabbed by another inmate. Complaint ¶ VI. He seeks to hold Defendants liable because they were aware that his gang, the Texas Chicano Brotherhood, was engaged in a "violent conflict" with another gang, the Texas Syndicate. Id; Plaintiff's Answer to the Court's Question No. 8. Plaintiff asserts that, because of the conflict between the gangs, Defendants should not have placed him in the prison's general population. Id.
To establish a civil rights claim against a prison official for failure-to-protect, a plaintiff "must 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." Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977 (1994)). "Deliberate indifference" is a subjective standard which occurs only where a prison official knows of and disregards a substantial risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. at 1979. Deliberate indifference thus required that "the [offending] 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." Neals, 59 F.3d at 533 (quoting Farmer, 511 U.S. at 837, 114 S.Ct. at 1979).
Plaintiff was given an opportunity to expound ante factual allegations underlying his complaint. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming the use of a questionnaire as a useful and proper means forte court to develop the factual basis of a pro se plaintiffs complaint). However, he failed to state facts which would show that he personally was incarcerated under conditions posing a substantial risk of serious harm and that Defendants were aware of such facts. See Plaintiff's Answers to the Court's Questions No. 1, 10, 12, 14 16. Plaintiff claims that Defendants knew he was a gang member, that they were aware of prior conflicts between gang members and that they knew the two gangs were fighting. Id. Assuming the truth of these allegations, Vasquer has failed to state facts which demonstrate risk of harm to himself. The fact that gangs exist in the prison environment is unfortunate, as is the fact that assaults sometimes occur in maximum security facilities such as the Allied Unit However, Vasquez' after-the-fact subjective belief that he was in danger is insufficient to create liability on the part of Defendants under the Civil Rights Act. Plaintiff's personal fears, without more, are insufficient to demonstrate a substantial risk of serious harm. He has failed to show that Defendants were aware of facts demonstrating an actual to Plaintiff himself. Vasquez has not cited one incident where he was threatened by another gang member at the Alfred Unit prior to the attack and he has not cited one incident where he reported any specific treat of danger to a Defendant in this action. In short, Plaintiff's allegations regarding a risk of injury at the hands of other inmates due to a gang related conflict are conclusory in nature and, as such, fail to state a claim under the Civil Rights Act. See Fernandez-Monks v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."); Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988) (requiring specific fact and noting that conclusory allegations are insufficient to maintain a claim under § 1983).
In a cause of action under § 1983, it is necessary to specify the personal involvement of each defendant. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 464 U.S. 897, 104 S.Ct. 248 (1983). A plaintiff cannot make generalized allegations. Howard v. Fortenberry, 723 F.2d 1206, 1209 (5th Cir.), vacated in part on denial of rehearing, 728 F.2d 712 (5th Cir. 1984). There must be an affirmative link between the deprivation and some act by the defendant. Rizzo v. Goode, 423 U.S. 362, 375-77, 96 S.Ct. 598, 606-07 (1976). Additionally, to the extent that Plaintiff is asserting a claim based upon negligence, relief is unavailable under § 1983. Daniels v. Williams, 474 U.S. 327, 106 S.Ct 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986).
A district court may dismiss claims filed by a prisoner proceeding in forma pauperis if it determines that the claims are frivolous. 28 U.S.C. § 1915 (e)(2)(B)(i). Claims are frivolous if they lack an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Henson-El v. Rogers, 923 F.24 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). A claim is without an arguable basis in law if it is "based on an indisputably meritless Legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar have no arguable basis under federal law.
IT IS THEREFORE ORDERED that Plaintiff's complaint is hereby dismissed as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).
The Clerk of Court shall transmit a true copy of this order to Plaintiff