IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

JAMES AYCOCK, PRO SE, §

TDCJ-CID #764082, §

§

 Plaintiff, §

§

v. § 2:04-CV-0261

§

NEAL UNIT OFFICERS, §

§

 Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff JAMES AYCOCK, 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.

By his original complaint, plaintiff complains of “inadequate medical indifference

to [his] treatment and care with atrocity stigmatizing multifariousness of cases,” “a deprivation

of minimal necessities of civilized life,” and “unfounded disciplinary charges.” Plaintiff also

lists ten disciplinary cases, all of which appear to have occurred in 1998.

After review of plaintiff’s complaint, the Court issued a Briefing Order

Questionnaire requiring plaintiff to list each defendant’s acts or omissions, along with the date of

each, on which he based his claims for liability. By his May 12, 2005 Questionnaire response,

plaintiff refers to events occurring on his arrival at the Neal Unit in November of 1998. Plaintiff

also alleges “use of constructive force and multifarious of [sic] disciplinary cases” but provides

no further dates and there is nothing which indicates he is complaining of cases other than the

1998 cases alleged in his original complaint.

 

 Case 2:04-cv-00261-J-BB Document 11 Filed 06/13/05 Page 1 of 3 PageID 30
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).

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.").

2

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 claim presents grounds for dismissal or should proceed to

answer by defendant.

THE LAW AND ANALYSIS

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

alleged acts or omissions and has responded only by referencing his November 26, 1998 arrival

at the Neal Unit. Further, plaintiff’s original complaint contains mo indication that any of the

complained-of events occurred after 1998.

 

 Case 2:04-cv-00261-J-BB Document 11 Filed 06/13/05 Page 2 of 3 PageID 31
3

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). In this case, the limitations period expired before plaintiff filed

his suit, and plaintiff's claims expired with it. 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 JAMES AYCOCK is DISMISSED

WITH PREJUDICE AS FRIVOLOUS.

All pending motions are DENIED.

IT IS SO ORDERED.

ENTERED THIS 13TH DAY OF JUNE, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

 Case 2:04-cv-00261-J-BB Document 11 Filed 06/13/05 Page 3 of 3 PageID 32