1Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-40180

JOHN THOMAS BAGLEY

Plaintiff-Appellant,

VERSUS

WAYNE SCOTT, ETC., ET AL

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

(6:96-CV-460)

November 19, 1997

Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.

PER CURIAM:1

This is an appeal from a ruling by the United States District

Court for the Eastern District of Texas, Judge William M. Steger,

presiding, affirming a decision by Magistrate Judge Judith K.

Guthrie to dismiss with prejudice a civil rights suit filed by the

Appellant, John Thomas Bagley (“Bagley”). Upon review of the

pleadings, briefs, and record on file, we AFFIRM the decision of

the district court in part and REVERSE AND REMAND in part.

Background
 

1Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985)(establishing

courtroom hearing as substitute for motion for more definite

statement in pro se cases), overruled on other grounds, Neitzke v.

Williams, 490 U.S. 319, 324 (1989).

2

The Appellant, John Thomas Bagley, Texas Prisoner No. 652853,

filed a §1983 civil rights suit against the Defendants, Texas 

Department of Criminal Justice (“TDCJ”) Director Wayne Scott

(“Scott”), TDCJ Skyview Unit Senior Warden Sharon Dishongh (“Warden

Dishongh”), and TDCJ employee Dr. Laurence Taylor (“Dr. Taylor”),

regarding his treatment at the Skyview Psychiatric Unit

(“Skyview”). Bagley claims that the Defendants violated his rights

under the Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and

Fourteenth Amendments of the United States Constitution, as well as

Article I of the Texas Constitution and the Civil Rights Act of

1871. Pursuant to these allegations, Bagley filed a §1983 suit

against the Defendants. 

Magistrate Judge Judith K. Guthrie allowed Bagley to proceed

in forma pauperis, and following a Spears1 hearing, recommended

that the District Court dismiss the complaint pursuant to 28 U.S.C.

§1915A(b)(1). Bagley objected to this, but the District Court,

after a de novo review, overruled Bagley’s objections, and

dismissed the complaint with prejudice.

Bagley states that he was confined at Skyview for a mental

health evaluation from October 27, 1995, to November 3, 1995.

Bagley has been diagnosed as a paranoid schizophrenic, with
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delusions of persecution. In his brief, Bagley says that he was

confined because he walked “to the left of a [yellow line] painted

upon the floor of the Estelle Unit, without attempting to harm

myself or others...” Despite the vagueness of this statement and

the Defendants’ unexplained failure to file a brief in this appeal,

we were able to glean from the evidence in the record that Bagley

was transported to Skyview because he manifested delusional

behavior.

Bagley claims that everything in his cell at Skyview,

including the spigot from which he was supposed to get drinking

water, was covered in dried human excrement, which was not his.

Bagley states that he complained of this, and two days later, an

inmate came to clean the cell, but merely smeared the excrement

around with a mop. Bagley alleges that these conditions caused him

to develop rashes and small tumors on face, hands, and feet, and

these conditions constituted abuse and a violation of his civil

rights. Regarding this issue, the Defendants offered the affidavit

of Warden Dishongh regarding the standard operating procedure for

daily cleaning of inmate cells and the extensive sanitization of

cells in preparation for new inmates. The information in this

affidavit, though not specific to Bagley’s case, would tend to show

that if normal cleaning procedures were followed (and there is no

independent evidence to show they were not), Bagley’s cell would

have been clean when he entered it and cleaned regularly

thereafter. Also, Nurse Molly Johnson (“Nurse Johnson”) testified
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at the Spears hearing that Bagley’s medical records showed he

suffered from athlete’s foot and had a ganglion cyst removed from

his thumb, and that this cyst was unrelated to any unsanitary

conditions in Bagley’s cell.

Bagley also alleges that he was forcibly medicated with

psychotropic drugs. Bagley signed papers stating that he did not

want to take psychotropic drugs (it should be noted that the files

on this are somewhat illegible, but we will assume that his refusal

included injections of psychotropic drugs). Bagley states that he

did not resist the “use of force team” because he feared he would

be beaten if he refused to take the drugs. Bagley claims that he

has had various adverse reactions to the psychotropic drugs,

including heart palpitations, pain and ringing in his ears,

vertigo, foul breath, and other maladies. During the Spears

hearing, Nurse Johnson was asked what the procedure was for

forcibly medicating a patient with psychotropic drugs. She stated

that two doctors had to agree in writing that a patient needed to

be forcibly medicated. She further stated that Bagley’s medical

records show that Bagley “refused his oral medication and that the

doctors had ordered injectable by force if he refused the oral, he

did refuse the oral but he took the injections without any problem

at all.” When the magistrate asked further about the procedures

used, Nurse Johnson replied that she did not have all of Bagley’s
 

2Dr. Taylor was referred to, mysteriously, as “Dr. Stanley” in

the magistrate’s recommendation.

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records from Skyview. 

As stated, Bagley claims he did not want to be treated with

the psychotropic drugs and that he did not resist the injections

only because he feared for his safety. He states this in his brief

and testified to this in the Spears hearing. The other TDCJ

employees who testified at the hearing made it clear that they did

not have personal knowledge of the forcible medication procedures

at the facility.

Magistrate Judge Guthrie dismissed the claims against Scott

because Bagley did not allege any facts which would support a

theory of vicarious liability implicating Scott in the alleged

constitutional violations. Similarly, the claims against Warden

Dishongh were dismissed because Bagley alleged no unconstitutional

act or omission on Warden Dishongh’s part and she could not be

liable under §1983 based on theories of respondeat superior. 

Magistrate Judge Guthrie determined that the forcible

medication claims should be dismissed on the ground that while

Bagley refused to take the drugs orally, he subsequently agreed to

the injections and did not inform medical personnel that he refused

to do so. Bagley’s claim against Dr. Taylor2 was therefore

dismissed. As a result of the above dismissals, the magistrate
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held that Bagley’s claims lacked a basis in law and recommended

that the district court dismiss his claims as frivolous pursuant to

28 U.S.C. §1915A(b)(1). The district court adopted the

recommendation and dismissed the suit with prejudice. 

Standard of Review

The Prison Litigation Reform Act amended 28 U.S.C. §1915 to

require the district court to dismiss in forma pauperis prisoner

civil rights cases if the court determines that the action is

frivolous, malicious, or does not state a claim upon which relief

may be granted. 28 U.S.C. §1915(e)(2)(B); see also 28 U.S.C.

§1915A(b)(1). A complaint filed in forma pauperis may be dismissed

if it lacks an arguable basis in fact or law. 28 U.S.C.

§1915(e)(2)(B); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). A

complaint lacks an arguable basis in law if it is based on an

indisputably meritless legal theory, such as if the complaint

alleges the violation of a legal interest which clearly does not

exist. Neitzke v. Williams, 490 U.S. at 327. An action is

frivolous if it lacks an arguable basis in fact or in law. Graves

v. Hampton, 1 F.3d 315, 317 (5th Cir. 1993). This court reviews a

§1915 dismissal for abuse of discretion. Id.

Discussion and Analysis

Bagley testified that he filed suit against Wayne Scott, the

Director of the Texas Department of Criminal Justice,

Institutional Division, because, according to Bagley, Scott’s
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position as Director makes him responsible for what occurs in the

prison system. In order to successfully plead a cause of action

under §1983, a plaintiff must enunciate a set of facts which

illustrate a defendant’s participation in the wrong alleged. 

Jacquez v. Procunier, 801 F.2d 789 (5th Cir. 1986). Bagley has

not even alleged that Scott personally took part in the events in

question. The only other way he could be implicated is if Scott

was vicariously liable due to his supervisory capacity, under a

theory of respondeat superior. Respondeat superior does not

apply in §1983 actions. Williams v. Luna, 909 F.2d 121, 123 (5th

Cir. 1990); Bush v. Viterna, 795 F.2d 1203, 1206 (5th Cir. 1986). 

Therefore, Bagley’s argument lacks a legal basis, and dismissal

by the district court was appropriate and within its discretion. 

Eason, 14 F.3d at 9; Graves, 1 F.3d at 17. 

Similarly, Bagley files suit against Warden Dishongh because

she is warden of the Skyview Unit and is, in his view,

responsible for anything that happens there. While it is true

that horrible prison conditions that deny a prisoner “the minimal

civilized measure of life’s necessities” can constitute an Eighth

Amendment violation, a prisoner must allege that the prison

officials acted with a culpable state of mind, which includes

deliberate indifference. Wilson v. Seiter, 501 U.S. 294, 298

(1991). However, even if we assume that the conditions in the

cell are as Bagley said they were (a fact which was never
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proven), and that these alleged conditions constituted an Eighth

Amendment violation (a matter which we do not pass on at this

time), Bagley failed to allege facts linking Warden Dishongh to

the conditions in the cell. He is essentially arguing the same

respondeat superior theory which is unavailable to him in his

suit against Scott, and as such, the district court properly

dismissed his claim against Warden Dishongh. We, therefore,

affirm Judge Guthrie’s decision to dismiss the claims against

Warden Dishongh.

Bagley also claims that he was involuntarily treated with

psychotropic drugs during his incarceration, and that such

treatment violated his Constitutional rights. He filed suit

against Dr. Taylor based on this theory. The Supreme Court has

stated that, under the Due Process Clause, prison inmates have a

significant liberty interest in avoiding the unwanted

administration of psychotropic drugs. Washington v. Harper, 494

U.S. 210, 221 (1990). However, a prisoner may be treated with

such drugs against his will if he “is dangerous to himself or

others and the treatment is in the inmate’s medical interest.” 

Id. at 227. In Harper, the Court found that principles of due

process were satisfied if the following occurred before an inmate

was made to take psychotropic drugs involuntarily: a psychiatrist

analyzed him and recommended drug treatment, a hearing was held

before an independent group of doctors and administrators, and
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the inmate received prior notice of the hearing. Id. at 215-216. 

Further, the inmate should be given an explanation of the need

for medication, an opportunity to present evidence and witnesses,

an opportunity to cross-examine adverse witnesses, and the

assistance of an independent lay advisor who understands the

issues involved. Id. at 216.

Bagley claims his rights were violated because he was not

given the type of notice and hearing required under Harper. 

However, the Harper requirements are not triggered when the drug

treatment is voluntary. Magistrate Judge Guthrie cited an

unpublished case of this Circuit, Pugh v. Collins, No. 96-40306

(5th Cir. November 21, 1996)(unpublished) as the basis for her

dismissal of the claims against Dr. Taylor. In Pugh, this

Circuit held that the Due Process protections of Washington v.

Harper are not implicated if there is no refusal or objection,

duly communicated to prison officials, regarding the ingestion or

injection of psychotropic drugs. The facts in Pugh are similar:

an inmate in Skyview executed a written refusal to take

psychotropic drugs orally, did not refuse to take such drugs via

injection, and sued after the fact. In Pugh, the magistrate held

that these facts did not constitute a Due Process violation under

Harper, and we affirmed. 

However, Pugh is not completely on point because Bagley did

execute a written refusal for the injections, and more
10

importantly, the notes of the staffers are not completely clear

as to whether they knew of Bagley’s refusal to take the

psychotropic drugs. Indeed, it is possible that they did know of

the refusal, and that he communicated such a refusal on the spot. 

If so, the hurdle of voluntary consent was not overcome, and the

staffers would have been precluded under Harper from giving

Bagley the medication. As stated, the notes are unclear on this

point, and further investigation is necessary.

Bagley is a paranoid schizophrenic in need of psychiatric

assistance. Such assistance sometimes requires drug therapy. We

realize this, and we do not wish to add any procedural hurdles

over and above those set by the Supreme Court in Harper, nor do

we retreat from our decision in Pugh. The problem is, the

evidence in the record is not clear as to whether the “use of

force team” was aware of Bagley’s refusal to take the

psychotropic medication. The notes of the staffers on this issue

may in fact point to such an awareness of Bagley’s refusal,

thereby opening the door to suit. We do not pass on the

substance of the evidence or on whether or not Bagley did or did

not refuse treatment in such a way as to trigger the Harper

requirements, nor do we pass on whether the actions of the

Defendants passed Constitutional muster in this matter. We

simply believe the evidence before us is not clear enough to

affirm Judge Guthrie’s decision to dismiss Bagley’s claims on
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this issue with prejudice. Had the state or Dr. Taylor deigned

to send a brief, these matters could conceivably have been

clarified, but alas, this did not occur, so we do not have the

benefit of an explanation on this matter. Therefore, Bagley’s

involuntary medication claim against Dr. Taylor under §1983

should not have been so summarily dismissed, and we reverse and

remand for further investigation and proceedings on this issue.

Conclusion

Given the foregoing, we believe that the district court did

not abuse its discretion in regard its dismissal of the claims

against Scott and Warden Dishongh, and we AFFIRM the decision of

the district court on those issues. We do not believe that the

facts surrounding the involuntary medication claim are so clear,

however, and we REVERSE AND REMAND for further proceedings on

that issue.

AFFIRMED IN PART, REVERSED IN PART.