IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

SIMM CALVIN LILES, JR., PRO SE, §

TDCJ-CID #779799, §

§

 Plaintiff, §

§

V. § 2:04-CV-0322

§

CLEMENTS UNIT STAFF MEMBERS and §

MIDDLETON UNIT MEDICAL STAFF, §

§

 Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff SIMM CALVIN LILES, JR., acting pro se and while a prisoner confined

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.

Upon review of plaintiff’s original complaint, the Court issued a May 11, 2005,

Order and Notice of Deficiency requiring plaintiff, in relevant part, to submit a pleading entitled

“Submission of Court-Ordered Statement of Facts” identifying each defendant, specifying each

act or omission by that defendant providing the basis for each claim for relief, as well as the date

of each alleged act or omission. Plaintiff was also instructed to inform the Court of the date or

approximate date of his transfer from the Clements Unit and attach copies of relevant Step 2

grievances showing the responses by prison officials.

By his June 9, 2005 pleading entitled “Submission of Court-Ordered Statement of

Facts” plaintiff states he was transferred from the Clements Unit on or about December 2004.

 

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Plaintiff then goes on to complain of forced hair cuts and medical care in the form

of ear wax removal or cleaning by a Dr. Kerigan and three nurses in 1997 while he was housed

on the Middleton Unit. Plaintiff states he “personally consider ‘Haircuts forced or not to be just

another form of ‘Rape/Sodomies!’[sic et passim, emphasis in the original].” Plaintiff complains

that, in the summer of 2001 a Mr. Marlowe defaced a medical pass or “deaf pass” plaintiff had

been given.

Plaintiff complains that, in May of 1997, at the Clements Unit, he was sexually

assaulted by another inmate and, when he reported the incident to two guards, Crites and

Rubalcaba, their only response was to tell him that maybe he should go to the infirmary. 

Plaintiff says that, in 1998, when he reported a sexual assault by another inmate to a Mr. Soto,

the guard simply responded “whey didn’t you slam the door shut?, & beat the Hell out of him?”

Plaintiff further complains that, in 1999 he was sexually assaulted all summer and

a foot doctor propositioned him. Plaintiff also complains that, in 2000, a guard named Marlowe

demanded sex from plaintiff in front of inmates and guards on several occasions whenever

plaintiff worked in the kitchen and First Sergeant Shields harassed inmates about getting a

haircut every chance he got.

Plaintiff then informs the Court he was raped several times before his

incarceration and as a child, that he has served twelve years on a ten year sentence. Plaintiff

complains in vague and conclusory terms of his convictions and revocation of probation and/or

parole.

By his original complaint, plaintiff requests “Complete & un-conditional Release

& Re-instatement of all [his] clients ‘Naturalized Civil Rights & Privileges & Hearing for

‘Damages [sic et passim].’”

 

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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).

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.").

3 Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994).

3

JUDICIAL REVIEW

When a prisoner confined in any jail, prison, or other correctional facility brings

an action with respect to prison conditions under any federal law, the Court may 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 claims present grounds for dismissal or should proceed to

answer by defendants.

THE LAW AND ANALYSIS

Plaintiff’s allegations concerning his convictions and the revocation of his

probation or parole are too vague to state a claim and, further, are presently barred by plaintiff’s

inability to fulfill the Heck3

 requirement that he show favorable termination. Plaintiff’s own

 

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pleadings and request for release show his convictions and revocation have not been "reversed

on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court's issuance of a writ of habeas

corpus." Consequently, plaintiff's claims in this respect lack an arguable basis in law and are

frivolous until the Heck conditions have been met. Johnson v. McElveen, 101 F.3d 423, 424 (5th

Cir. 1996).

To the extent plaintiff is requesting immediate or speedier release, his sole federal

remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36

L.Ed.2d 439 (1973); Boyd v. Biggers, 31 F3d 279, 283 n.4 (5th Cir. 1994).

Plaintiff has been expressly informed of the Court’s need for the dates of the

alleged acts or omissions and has responded by complaining of acts which occurred beginning in

1997 and ending sometime in the year 2000.

There is no federal statute of limitations for civil rights actions; therefore, the

two-year Texas general personal injury limitations period is applied. Gartrell v. Gaylor, 981

F.2d 254, 256 (5th Cir. 1993). Plaintiff filed the instant cause on or after October 29, 2004, well

after expiration of limitations. Consequently, 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).

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), the Civil Rights Complaint filed pursuant to

Title 42, United States Code, Section 1983, by plaintiff SIMM CALVIN LILES, JR., is

DISMISSED WITH PREJUDICE AS FRIVOLOUS, FOR FAILURE TO STATE A CLAIM

 

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AND WITH PREJUDICE TO BEING ASSERTED AGAIN UNTIL THE HECK CONDITIONS

ARE MET. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).

Any claims plaintiff has presented which sound in habeas are DISMISSED

WITHOUT PREJUDICE to being asserted in a habeas corpus action.

All pending motions are DENIED.

IT IS SO ORDERED.

ENTERED THIS 15th DAY OF JUNE, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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