IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

DONALD MOODY, PRO SE, §

TDCJ-CID # 677242, §

§

Plaintiff, §

§

v. § 2:05-CV-0206

§

DOUGLAS DRETKE, Director, TDCJ-CID, §

DAVID COLE, Warden, §

JAMIE BAKER, Major, §

NFN AGUIRRE, Capt., and §

NFN MUNSELL, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

On July 22, 2005, the instant cause was received by transfer from the United

States District Court for the Eastern District of Texas, Beaumont Division, to the United States

District Court for the Northern District of Texas, Amarillo Division. Plaintiff DONALD

MOODY, 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. Plaintiff was granted

permission to proceed in accordance with Title 28, United States Code, section 1915(b) by the

district court in Beaumont before transfer.

Plaintiff complains he can’t get a job reassignment to the kitchen. He claims

defendant BAKER turned down several requests he made for a change in job assignment to work

in the kitchen. Plaintiff claims defendant COLE is “overgrading case’s and sign them by Major

Baker rulen!” Plaintiff claims defendant AGUIRRE supervises the disciplinary procedures and

 

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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).

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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.").

2

“re-fuse listen when we try explain what cause fight.” Plaintiff claims defendant MUNSELL

helps in housing assignments and reviewing grievances and agreed with defendant BAKER’s

assignments.

As his request for relief, plaintiff aks why he can’t be moved back to work in the

kitchen or for a determination of whether he has medical restrictions or will be a harm to the

public. He concludes, “[t]hen how can any assign work cause problems in TDCJ?”

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

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 to determine if his claim presents grounds for dismissal or should proceed to

answer by defendant.

THE LAW AND ANALYSIS

 

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The instant cause is remarkably similar to cause no. 2:03-CV-0290, Moody v.

Baker, Cole, TDCJ-CID, and Johnson. In that case plaintiff claimed defendant BAKER

controlled the job and housing assignment and had overlooked his I-60 requests to work in the

kitchen; defendant COLE graded cases to determine whether they are minor or major; defendant

AGUIRRE was “over disciplinary cases” and told plaintiff he would stay in the broom squad. 

Plaintiff claimed he had suffered “mental re-lasp [sic] and sleeping problems.” By his plea for

relief, plaintiff asked “. . . why can’t be move food services? Are will Investigate if have mental

pain’s in head’s or threat to public then put me sleep so- want have try prove my problems hasn’t

change; if be interview for new parole next year 2004?”

At that time, the Court noted plaintiff’s pleadings were nearly-incoherent, but he

appeared to claim he had a right to a job change to the kitchen and had also mentioned, in global

and conclusory terms, an unidentified disciplinary case, deductions from his inmate trust fund

account, and parole set-offs. Plaintiff’s claim concerning BAKER’s failure to assign him to a

kitchen job was analyzed and dismissed as frivolous. Plaintiff’s remaining claims were

dismissed for failure to state a claim and to exhaust administrative remedies.

Careful review of the file in this cause reveals that, among the multitude of

illegible or barely-legible documents submitted by plaintiff, there are only two Step 2 grievances

to show exhaustion of administrative remedies and give the Court some idea of the specifics of

plaintiff’s claims. Grievance no. 2004067997 was attached to plaintiff’s September 16, 2004

Motion to Supplement Complaint and concerns BAKER’s failure to change plaintiff’s hours at

the beef packing plant so he could start work at 11:00 a.m. instead of 8:00 a.m. Plaintiff also

 

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Because the first document in this cause was apparently filed in December of 2003, and because of plaintiff’s difficulty in

providing clear and concise facts, the Court will not consider whether limitations applies to bar claims based on these

disciplinary hearings.

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complains of a classification demotion which occurred in December of 20003 for fighting with a

broom. Only the issue of plaintiff’s work times was addressed. The only other Step 2 grievance

submitted by plaintiff is Step 2 grievance #2002065634, challenging defendant BAKER’s failure

to give plaintiff a requested job change to laundry or the kitchen.

This last incident appears to be the claim analyzed and disposed of in cause no.

2:03-CV-0290. Nevertheless, even if it is somehow not encompassed within the scope of that

suit, it and plaintiff’s claims concerning his work hours at the beef packing plant are frivolous.

Plaintiff has no due process right to have his wishes considered when job

assignments are made. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418

(1995)(a prisoner has a liberty interest only in "freedom[s] from restraint . . . impos[ing] atypical

and significant hardship on the inmate in relation to the ordinary incidents of prison life"); Luken

v. Scott, 71 F.3d 192, 193 (5th Cir. 1995)(Prison administrative decisions resulting in

confinement in a particular prison, the loss of a prison job, or the loss of the opportunity to earn

good-time credits because of custodial status, do not create constitutionally protected liberty

interests because they might have speculative, collateral consequences on parole). Plaintiff’s

claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109

S.Ct. 1827, 104 L.Ed.2d 338 (1989).

Plaintiff also mentions a disciplinary case which occurred on November 22, 2000

or December 4, 2000, depending on which grievance is examined. Nevertheless, if plaintiff is

attempting to challenge the case, he has not stated a claim on which relief can be granted. If he

lost goodtime in connection with the disciplinary case, he must first secure a favorable

 

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termination in accord with Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d

383 (1994). If he did not lose goodtime as a result of the case, he has no federally protected due

process liberty interest in connection with it and, therefore, his claims against AGUIRRE,

COLE, and MUNSELL based on this incident lack an arguable basis in law and are frivolous. 

Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

Lastly, plaintiff’s allegations contain no mention of any acts or omissions by

defendant DRETKE and it appears plaintiff’s claim against this defendant, if any, is based

entirely upon DRETKE’s supervisory status; however, a civil rights plaintiff must establish a

causal connection between the acts or omissions of the defendant and the resultant constitutional

deprivation. Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981). This may be done by

alleging either active participation by the defendant in the actions causing the deprivation of the

plaintiff's constitutional rights or affirmative adoption by the defendant of policies which were

wrongful or illegal and which caused the constitutional deprivation. Wanger v. Bonner, 621 F.2d

675, 679 (5th Cir. 1980). Theories of vicarious liability, such as respondeat superior, cannot

support a cause of action under section 1983. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.

1987). Plaintiff has not alleged any facts to establish the necessary causal connection with

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

CONCLUSION

IT IS HEREBY ORDERED:

The referral of the instant cause to the United States Magistrate Judge is hereby

withdrawn.

Pursuant to Title 28, United States Code, section 1915(e)(2), this Civil Rights

Complaint is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO

 

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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 _ 15th day of August, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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