1

Plaintiff originally named JANIE COCKRELL, Director of the Texas Department of Criminal Justice, Institutional Division. 

She has since retired and, after some reorganization, was succeeded by Doug Dretke, Director of Correctional Institutions

Division. DOUG DRETKE has been substituted for defendant COCKRELL in the instant suit.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

LOUIS EDWARD SPEARMAN, PRO SE, §

TDCJ-CID #708729 §

Previous TDCJ-ID #565379, §

Previous TDCJ-ID #590524, §

§

Plaintiff, §

§

v. § 2:03-CV-0337

§

DOUG DRETKE1

, RICHARD DUFFY, §

NORVEL ARNOLD, and §

RACQUEL HASKINS, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff LOUIS EDWARD SPEARMAN, 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 abovereferenced defendants. The Court has reviewed plaintiff’s claims and has granted permission to

proceed in forma pauperis as to his claim of a failure to protect from threats from gang members.

By his original complaint, as expanded by his responses to the Court’s

Questionnaires, plaintiff complains that prison officials on the classification committee failed to

take any action on inmate threats against him because, they said, plaintiff had not provided

sufficient information. Plaintiff alleges gangmember inmates Simmons and Copeland threatened

to beat him to death on May 6, 2003. Plaintiff further alleges inmate Arthelies Humphrey, then

 

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Plaintiff’s February 2, 2004 response to question no. 2 of the Court’s Questionnaire.

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Plaintiff’s February 25, 2004 response to the sole question on the Court’s Second Questionnaire.

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See page 3 of the hand-printed pages appended to plaintiff’s Statement of Claim and interleaved in his original complaint.

 5

Plaintiff’s February 2, 2004 response to question no. 2 of the Court’s Questionnaire.

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See page 3 of the hand-printed pages appended to plaintiff’s Statement of Claim and interleaved in his original complaint.

4\03-0337.Memorandum Opinion 2

plaintiff’s cellmate, threatened to kill him on June 4, 2003; and, on July 14, 2003, inmate Brown,

plaintiff’s subsequent cellmate, said he would kill plaintiff if plaintiff wasn’t moved out of his

cell.

Plaintiff says he told Sgt. Borden of Humphrey’s threat on June 9, 20032. 

Plaintiff says Sgt. Borden investigated and Humphrey confessed3. Plaintiff says inmate

Humphrey received a disciplinary case that same day for threatening plaintiff4.

Plaintiff says he reported the threats by Brown, Simmons, and Copeland to

Lt. Danner on July 14, 2003. Plaintiff was transferred to transient housing while Lt. Danner

investigated the matter5

. Plaintiff says inmate Brown confessed to Lt. Danner and received a

disciplinary case the same day6.

After three days in transient housing, plaintiff says he was taken to a Unit

Classification Committee meeting in which the defendants “did not consider the facts which

showed the threats, nor did they provide an explanation as to why they would not consider the

evidence which showed the threats.” Plaintiff states he was sent back to the same building, but

moved to another pod in that building. Plaintiff complains there are other gang members in his

new pod and everywhere he is moved, he is called a “snitch” and that other offenders are

threatening him.

 

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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).

 8

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.").

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Further, review of plaintiff’s grievances attached to his original complaint reveals

inmate Arthelies Humphrey and inmate Willie Joe Brown were transferred to another building.

Lastly, plaintiff complains some of his property was lost or taken when he was

moved to another cell on July 14, 2003, for investigation of the threats against him. Plaintiff

claims the loss of this property has resulted in the violation of his due process rights and right of

access to courts.

Plaintiff requests a transfer and other unspecified relief.

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 frivolous7

, 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)8

.

The District 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

 

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4\03-0337.Memorandum Opinion 4

should proceed to answer by defendants.

THE LAW AND ANALYSIS

Plaintiff has not sued the defendants responsible for the loss or theft of some of

his personal property which, he says, resulted in a violation of his First Amendment right of

access to the courts.

Plaintiff has been determined to be a “three-striker” under the Prison Litigation

Reform Act (PLRA) and is barred from proceeding in forma pauperis in any civil action or

proceeding unless he is under imminent danger of serious physical injury. Title 28, United

States Code, section 1915(g). This three strikes bar “has the effect of delaying litigation of the

merits of a claim until the fee is paid in full.” Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir.

1998). Nevertheless, “[w]hen such a delay threatens ‘imminent danger of serious physical

injury,’ the litigant will be granted IFP status in spite of his past abuse and allowed to pay out his

filing fee obligations . . . . if [the] danger exists at the time the plaintiff seeks to file his complaint

or notice of appeal IFP [italics in the original].” Id.

No imminent danger of serious physical injury is threatened by a delay in the

prosecution of plaintiff’s Fourteenth and First Amendment claims; and this Court concludes

these claims are not eligible for assertion in a suit filed by inmate SPEARMAN while

proceeding in forma pauperis. To do so, would be to allow an inmate to make allegations

sufficient to clear the 1915(g) bar for the purpose of pursuing other claims which the 104th

Congress intended to be discouraged by the 1915(g) bar. The courthouse door has been left

slightly ajar to protect inmates from serious physical injury; but inmates will not be allowed to

drive a Mack truck through that crack by pursuing other claims unrelated to any potential for

 

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serious physical injury.

For the reasons set forth above, the Court concludes plaintiff’s First and

Fourteenth Amendment claims of a deprivation of property resulting in a violation of his right to

access the courts is barred until plaintiff can pay the filing fee.

Concerning his remaining Eighth Amendment claim of a failure to protect,

liability for this Eighth Amendment deprivation requires the same delinquency in denial of

protection against harm from other inmates as it does for denial of medical care, Johnston v.

Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986); thus, there must be an allegation of facts which will

support deliberate indifference on the part of prison officials, Wilson v. Seiter, 501 U.S. 294, 111

S.Ct. 2321, 115 L.Ed.2d 271 (1991). 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 plaintiff prisoner must prove: (1) he is

incarcerated under conditions "posing a substantial risk of serious harm," and (2) that the

defendant prison official's state of mind is one of "deliberate indifference" to the prisoner's health

or safety. Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995); Jones v. Greninger, 188 F.3d

322, 324-25 (5th Cir. 1999).

Plaintiff has alleged that when he reported the threats by inmates Humphrey and

Brown, Sgt. Borden and Lt. Danner investigated his claims, with the result that each of the

threatening inmates was punished via the disciplinary system and then transferred to another

building where plaintiff is not housed. These facts will not support a claim of deliberate

indifference to plaintiff’s safety and do not show he is in substantial risk of serious harm.

 As to the threats by alleged gangmember inmates Simmons and Copeland,

 

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plaintiff has alleged that his report of these threats resulted in an immediate investigation by Lt.

Danner and in plaintiff’s removal from danger by transfer to transient housing during the

investigation. When the investigation was complete, plaintiff appeared before a Classification

Committee consisting of the defendants. Plaintiff complains the defendants “did not consider the

facts which showed the threats, nor did they provide an explanation as to why they would not

consider the evidence which showed the threats.” Plaintiff has alleged no fact to show that the

defendants did not consider the results of Lt. Danner’s investigation and all other relevant facts. 

Plaintiff’s conclusory allegation that they did not consider the facts is simply a claim that they

did not reach the conclusion plaintiff wanted. Further, plaintiff has no due process rights in

connection with the Classification Committee hearing and has no right to a list of reasons for the

conclusion reached. Whatever conclusion the Classification Committee reached, plaintiff states

he was sent back to the same building, but was moved to a different pod in that building. 

Plaintiff complains this didn’t solve the problem because there are other gang members in his

new pod and everywhere he is moved, he is called a “snitch.” Plaintiff says now other offenders

are threatening him. Plaintiff does not indicate he has informed prison officials of these new

threats and states no threat has resulted in any attack.

Plaintiff makes it clear he feels he should be transferred to another unit. 

Nevertheless, the facts he has alleged show each reported threat has been taken seriously by

prison officials and investigated. Further, two threats resulted in disciplinary action against

those inmates who could be proved to have threatened plaintiff and a housing change for the

threatening inmates. Moreover, after the Classification Committee hearing on the threats by

Simmons and Copeland, plaintiff was moved away from them to a new pod.

 

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These facts will not support a claim of deliberate indifference by the defendants. 

By his allegations, plaintiff has failed to state a claim on which relief can be granted.

CONCLUSION

For the reasons set forth above and 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 HEREBY ORDERED that the Civil Rights Complaint filed pursuant to

Title 42, United States Code, section 1983, by plaintiff LOUIS EDWARD SPEARMAN is

DISMISSED FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE

GRANTED.

A copy of this Order shall be mailed to plaintiff and to any attorney of record by

first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of

the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S.

District Court for the Eastern District of Texas, Tyler Division.

IT IS SO ORDERED.

ENTERED this 24th day of October, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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