December 7, 2001.
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 inmate confined in the James V. Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Plaintiff claims that Defendants failed to protect him from an attack by his cell mate and that his life is constantly in danger at the Allred Unit. Complaint ¶ V. He seeks monetary damages and injunctive relief Complaint ¶ VI.
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 requires 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 on the factual allegations underlying his complaint. See e.g., 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 (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 for the court to develop the factual basis of a pro se plaintiff's complaint). However, he failed to state facts which would show that he is incarcerated under conditions posing a substantial risk of serious harm. See Plaintiff's Answer to the Court's Question No. 4. While it is unfortunate that Plaintiff and his cell mate fought, Plaintiff has failed to set forth any facts which would demonstrate that Defendants knew of any such risk prior to housing the two inmates together. See id. Moreover, Plaintiff has failed to articulate facts which would demonstrate that Defendants have been deliberately indifferent to his health or safety. See Plaintiff's Answers to the Court's Questions No. 6, 8, 10, 12 14. In his answers to the Court's questions regarding the alleged deliberate indifference of Defendants, Plaintiff simply refers the Court to his complaint and attached exhibits. Id. Careful review of the complaint and the exhibits reveals no facts which would show that Defendants knew of and disregarded a substantial risk to Thomas' health or safety. The claims set forth by Plaintiff are conclusory in nature and, as such, fail to state a claim under the Civil Rights Act. See Fernandez-Montes 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 facts 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). 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 informa 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.2d 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).