1

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).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION __________________________________________

JAMES BELL, PRO SE, §

TDCJ-CID # 877694, §

§

Plaintiff, §

§

v. § 2:04-CV-0318

§

JOHN JOWERS, II and §

MANUEL MENDOZA, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff JAMES BELL, acting pro se and while incarcerated in the Texas

Department of Criminal Justice, Correctional Institutions Division, filed this suit pursuant to

Title 42, United States Code, section 1983 complaining against the above-named defendants and

has been granted permission to proceed in forma pauperis.

Plaintiff alleges that, on July 24, 2004, in response to an unsolicited remark by

plaintiff, defendant JOWERS grabbed an envelope from the top of plaintiff’s door and threw it

over 2 row down the stairs onto 1 row. Plaintiff says when he asked for his mail back, defendant

MENDOZA responded with vulgarities and told him to shut up. Plaintiff says he got his mail

back from another officer.

Plaintiff requests an investigation into the matter and an award of $100,000.00.

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 frivolous1

, malicious, fails to

state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is

 

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 2

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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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)2

.

The District Judge has reviewed plaintiff's pleadings and has viewed the facts

alleged by plaintiff in his amended complaint to determine if his claim presents grounds for

dismissal or should proceed to answer by defendant.

LAW AND ANALYSIS

The Court notes it is not an investigative body, and the federal Marshal is not a

party to this litigation. The Court cannot order a non-party to conduct an investigation.

As to the request for monetary relief, plaintiff pleads no basis for such an award

of compensatory relief, and the Court is left in doubt as to the basis for plaintiff’s belief that he is

entitled to such relief.

It is established law that the abstract value of a constitutional right may not form

the basis for section 1983 damages. Brown v. Bryan County, OK, 219 F.3d 450, 467 (5th Cir.

2000)(citing Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537,

91 L.Ed.2d 249 (1986); Hay v. City of Irving, Texas, 893 F.2d 796, 800 (5th Cir. 1990). Plaintiff

has not shown that he suffered any actual harm as a result of the events alleged. To the extent

plaintiff requests compensation for any emotional distress or mental anguish he suffered as a

result of the defendants’ actions, the Prison Litigation Reform Act requires a physical injury

before a prisoner can recover for psychological damages. 42 U.S.C. § 1997e(e) ("No federal

civil action may be brought by a prisoner ... for mental or emotional injury suffered while in

custody without a prior showing of physical injury."). Relying on Eighth Amendment

 

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jurisprudence, the Fifth Circuit has determined that the "physical injury" required by section

1997e(e) "must be more than de minimus [sic], but need not be significant." Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir.1997). Plaintiff has utterly failed to allege any physical

injury of any kind to support his request of $100,000.00. Plaintiff has alleged no basis to support

the relief requested and has, therefore, failed to state a claim on which relief can be granted.

CONCLUSION

IT IS HEREBY ORDERED:

This Civil Rights Complaint is DISMISSED WITHOUT PREJUDICE FOR

FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

All pending motions are DENIED.

The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of

record by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General

Counsel, P.O. Box 13084, Capitol Station, 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 10TH day of May, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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