Opinion
2:04-CV-0315.
May 10, 2005
REPORT AND RECOMMENDATION
Plaintiff DONALD W. TIPPENS, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff complains that he was transferred out of the PAMIO program in retaliation for having filed grievances against defendant TURNER and other staff members and that such transfer constituted a violation of his First, Eighth, and Fourteenth Amendment rights. Plaintiff also claims defendants RIDGE and BYRD conspired to conceal the black eye plaintiff received in an assault.
Plaintiff requests declaratory, injunctive, and monetary relief, along with costs of suit.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff's pleadings show he had been a patient in the PAMIO program for about eight months at the time of the events forming the basis of this lawsuit. Plaintiff alleges that, on an unspecified date, he was moved from C Pod to D Pod in response to a grievance he filed asking for protection from gang members. Nevertheless, by May of 2004, plaintiff had decided defendant TURNER was discriminating against him, and plaintiff requested discharge from the PAMIO program. Plaintiff's dissatisfaction appears to have stemmed from a level demotion in the PAMIO program which he received as a result of a disciplinary case. The Court notes that level demotions and disciplinary cases handled within the confines of the PAMIO program are not part of and do not enter an inmate's disciplinary file and do not affect his release date. Instead, they are handled by the inmate's psychiatric treatment team therapeutically and may affect his ability to progress through the various levels of increasing privileges as the patient shows himself able to refrain from inappropriate behavior. In any event, plaintiff requested to be discharged from the PAMIO program, forwarding several requests to defendant TURNER, as well as one request to defendant KARNEY.
PAMIO is the acronym for the Program for the Aggressive Mentally Ill Offender. This is a treatment program designed to be an alternative to administrative segregation for the aggressive mentally ill offender who does not benefit from traditional programs for the mentally ill offender. Its goals are to provide mental health treatment and control the inmate's behavior while he is incarcerated and to provide therapeutic experiences to reduce the likelihood that he will behave aggressively after release. The PAMIO program utilizes behavior therapy techniques, including increasing privileges at various levels designated by treatment staff, to reduce hostile aggression through positive reinforcement, extinction or response competition.
Plaintiff says he was persuaded to withdraw his request for discharge by another staff member who recommended that plaintiff's level 4 status be reinstated. Plaintiff's level was reinstated on May 13, 2004 by his treatment team. Nevertheless, defendant TURNER informed plaintiff she was moving him to A Pod because he needed counseling that she felt she could no longer provide. Plaintiff stated he didn't need counseling and felt that, because of his statement, he would be left on D Pod.
On May 19, 2004, plaintiff filed a grievance against defendant TURNER about his level demotion, which he blamed on her. The grievance response noted that level decisions were made by the entire treatment team and were clinical decisions. It also noted plaintiff had been discharged from PAMIO and had later been assigned to the Hughes Facility on July 6, 2004.
On May 20th, plaintiff filed another grievance against TURNER because another inmate had told plaintiff that TURNER said she was going to have plaintiff moved. Plaintiff's grievance was not processed because it's submission did not comply with prison regulations.
Plaintiff continued to complain about his treatment by TURNER and YORK and they told him he could move to another pod or request a discharge from the PAMIO program. On May 26th, plaintiff wrote twice to defendant TURNER requesting an interview and, on June 1st and 2nd, he wrote a complaint and a grievance against her, complaining that she had seen another inmate for counseling more often than plaintiff and that she had told that inmate some confidential information about plaintiff. Plaintiff alleges he was threatened by an inmate Daggett on June 7th because of things plaintiff had told TURNER. Plaintiff alleges that he then filed another grievance.
On June 10, plaintiff was seen by his treatment team for level review and both defendants TURNER and YORK voted against his promotion. Nevertheless, plaintiff was promoted to level 5, on the condition that he stop writing I-60s to defendant TURNER and stop filing grievances against her.
Since plaintiff's level promotion, in combination with his D Pod housing assignment, would result in his placement in counseling classes conducted by TURNER and YORK, they requested that plaintiff be moved off D Pod. Plaintiff was moved to C Pod on June 10, 2004. He says he immediately wrote Major Gray, PA Weiland, SUTTERFIELD, and TURNER stating the move placed his life in danger. Defendant TURNER responded that his I-60 would be treated as a life-endangerment claim. Plaintiff claims he was assaulted on June 12, 2004 in the recreation yard by two gang members and that he immediately wrote PA Weiland, and defendants SUTTERFIELD and TURNER informing them of the assault and a resulting black eye. Plaintiff also sent an I-60 to the infirmary requesting an appointment for his black eye.
On June 15, 2004, plaintiff sent an emergency grievance and an I-60 asking the grievance officer, defendant BYRD, to verify that plaintiff's right eye was black and swollen. When plaintiff received his grievance response, the I-60 he sent to BYRD was not attached.
Plaintiff saw defendant Dr. RIDGE on June 15, 2004. Plaintiff alleges his right eye was still black and swollen and that he told RIDGE the injury occurred during an assault by another inmate. Plaintiff says RIDGE nearly fell into his lap examining plaintiff's eye but only told a nurse to give plaintiff an eye test, and told plaintiff he needed glasses. Plaintiff claims RIDGE said he would get plaintiff some glasses and order eye drops but conspired with defendants to falsify the medical file to conceal plaintiff's injury.
Plaintiff alleges he missed his treatment team session on June 17, 2004 because he didn't know it was scheduled and he was asleep. When the treatment team arrived cellside and woke him up, plaintiff began brushing his teeth and did not take his toothbrush out of his mouth to respond to the treatment team members. They left and he was discharged from PAMIO.
Plaintiff alleges the next day, a Mr. Grant told plaintiff he had been discharged by people "up high" "because Plaintiff had pissed them off." Plaintiff made several efforts to be reinstated in the PAMIO program and was told he would not be re-admitted immediately but could request re-admittance six months following his discharge.
The response by prison officials to plaintiff's Step 1 grievance no. 20041892269 indicates plaintiff was seen by the Unit Classification Committee on June 23, 2004 and was denied a transfer. He was, however, subsequently transferred to the Hughes Unit in July of 2004.
To the extent plaintiff is claiming a violation of his Due Process rights in connection with his discharge from PAMIO, his discharge from psychiatric treatment has no direct bearing on the duration of his confinement. Therefore, plaintiff cannot show the existence of a liberty interest in any procedure connected to such discharge. See, Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). Aside from emotional distress, plaintiff does not allege any harm which resulted from his actual discharge which could support an Eighth Amendment claim.
Assuming plaintiff is attempting to assert an Equal Protection claim concerning the decisions by defendants TURNER and YORK about the frequency of plaintiff's private counseling sessions or whether plaintiff should be in their classes, plaintiff does not enjoy a constitutional right to receive treatment from a particular individual. Further, plaintiff has not alleged membership in a protected class or an irrational or arbitrary state classification unrelated to a legitimate state objective. Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051-52, 48 L.Ed.2d 597 (1976); Stern v. Tarrant County Hospital District, 778 F.2d 1052 (5th Cir. 1985), cert. denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986). A classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity and does not violate the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993). Plaintiff's allegations plainly show his criticism of and dissatisfaction with TURNER and her conclusion, echoed by defendant YORK with respect to her own classes, that she should not counsel him or have him included in her classes. Plaintiff does not allege that other inmates were equally dissatisfied with the services offered or that this dissatisfaction would not have reduced his ability to benefit from the therapy being offered. Thus, any Equal Protection claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff claims that defendants TURNER and YORK conspired to retaliate against him for writing complaints against defendant TURNER. Plaintiff does not claim he was denied needed medical care, only that he suffered emotional distress because TURNER and YORK conspired to move him in retaliation for his complaints against YORK. To claim retaliation, a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation. McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Review of plaintiff's grievances against defendant YORK reveals they would not provide a basis for a non-frivolous civil rights claim and, therefore, the submission of such grievances was not a constitutionally protected activity. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Consequently, plaintiff's retaliation claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Review of the complaint and attached grievances concerning defendant RIDGE reveals plaintiff claims and grieved only an alleged failure to make an entry in plaintiff's medical chart that plaintiff had a black eye as a result of an assault by another inmate. Plaintiff does not claim and did not grieve any failure to provide needed medical care. The Court notes plaintiff's medical records are made by medical personnel to facilitate medical treatment. Plaintiff has no constitutionally protected right to dictate what will be contained in his medical records. Plaintiff's claim against RIDGE based on the content of his medical record lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Further, plaintiff has alleged no material fact to support his claim of conspiracy by RIDGE and BYRD and has failed to state a claim of conspiracy by RIDGE and BYRD on which relief can be granted. McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990) (conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983).
Plaintiff claims his Eighth Amendment right to be free from cruel and unusual punishment was violated by his transfer from D Pod to C Pod and the subsequent inmate attack. Plaintiff appears to assert this claim against all the defendants except RIDGE and BYRD, based upon his transfer to C Pod despite his repeated assertions that he had been moved to D Pod for his protection from gang members. To assert an Eighth Amendment failure to protect claim, plaintiff must establish one or more defendants was deliberately indifferent to his incarceration under conditions "posing a substantial risk of serious harm." Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995); Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). Plaintiff's own allegations show that defendant TURNER was not deliberately indifferent. As page 2 of plaintiff's Exhibit 8 attached to his original complaint reveals, she informed him that his I-60 to her "[was] being run as a life endangerment." Plaintiff has not alleged TURNER did not submit the I-60 for investigation as a life endangerment investigation, he simply alleges that, two days after he wrote it, he was injured by two gang members while on the rec yard. These facts will not support a claim of deliberate indifference against defendant TURNER. Moreover, plaintiff does not allege what facts were known to the remaining defendants, other than his repeated assertions that he had originally been moved to D Pod for protection, which he feels indicated a substantial risk of serious harm. Plaintiff has not shown any of the defendants actually knew of any prior determination that he had been in substantial risk of serious harm or that such a determination was the underlying cause of his assignment to D Pod. Moreover, plaintiff does not state what action any defendant could have taken, aside from the action that was taken, referring his I-60's for handling as a life endangerment claim. For these reasons, plaintiff has failed to state a claim for failure to protect against any of the named defendants.
In addition, the Court notes that not every injury suffered by a prisoner at the hands of another rises to the level of a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811, 823 (1994). The absence of serious injury is relevant to the inquiry concerning force, id. 503 U.S. at 7, 112 S.Ct. at 999, because the Eighth Amendment's prohibition of cruel and unusual punishment excludes from constitutional recognition a de minimis uses of physical force not otherwise "repugnant to the conscience of mankind. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (citing Hudson v. McMillian, 503 U.S. at 10, 112 S.Ct. at 1000.
In this instance, plaintiff's injury was a bruised or black eye which plaintiff does not claim resulted in any lasting harm and which plaintiff does not claim required more treatment than the examination for glasses which he received three days later. This claim is very similar to the bruised ear discussed in Siglar v. Hightower and does not evince anything more than de minimis force resulting in de minimis injury which cannot support a claim under section 1983. See, e.g., Ruiz v. Price, No. 03-10536, 2003 WL 22975507 (5th Cir. Tex. December 16, 2003) (failure to protect claim not cognizable when no injury alleged to have occurred because plaintiff was able to defend himself); Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002) (physical injuries not described by plaintiff which were suffered in fight with another prisoner found to be de minimis); Edison v. Hudson, No. 96-6220, 1996 WL 426860 (4th Cir. N.C. July 31, 1996) ( de minimis injuries do not provide basis for section 1983 claim of failure to protect); Ellis v. Bass, No. 91-2423, 1992 WL 369484 (8th Cir. Ark. December 16, 1992) ( de minimis injuries found inadequate to satisfy threshold injury requirement for constitutional violation in failure to protect claim) (citing Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991)). For these reasons, plaintiff's allegations fail to state a claim on which relief can be granted.
CONCLUSION
Pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed by plaintiff DONALD W. TIPPENS pursuant to Title 42, United States Code, section 1983 be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
IT IS SO RECOMMENDED.