IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

MOHAMMED HAMID DEHGHANI, PRO SE, §

TDCJ-CID No. 881419, §

§

 Plaintiff, §

§

v. § 2:05-CV-0240

§

RICHARD D. VOGELGESANG, Warden, §

MICHAEL D. SAVERS, Assistant Warden, §

DENNIS MARKGRAF, Captain, §

DOUG DRETKE, TDC Director, §

§

 Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff MOHAMMED HAMID DEHGHANI, 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 and has been granted permission

to proceed in forma pauperis.

Plaintiff claims that, after his return from a free-world hospital for treatment of

injuries sustained in a fall in his cell, he was written a disciplinary charge by defendant

MARKGRAF for fighting with his cellmate. Plaintiff says MARKGRAF first accused him of

attacking his cellmate with a hotpot and, when plaintiff informed him neither he nor his cellmate

had a hotpot, MARKGRAF changed the charge to reflect he and his cellmate were fighting by

hitting and kicking.

Plaintiff sues defendants SAVERS and VOGELGESANG because each is

responsible for the operation of the unit and the welfare of the innates. Plaintiff sues defendant

DRETKE because he is responsible for the overall operation of each unit.

 

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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

Plaintiff requests an award of compensatory and punitive damages and declaratory

judgment that his Fourteenth Amendment rights have been violated.

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 defendants.

THE LAW AND ANALYSIS

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,"

and these will normally consist of deprivations which clearly impinge on the duration of

 

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The Sandin Court expressly recognized the unusual deprivations in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d

552 (1980) (transfer to a mental hospital), and Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178

(1990)(forcible administration of psychotropic drugs), also involved a liberty interest.

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confinement. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995)(quoting Sandin v. Conner, 515

U.S. 472, 115 S.Ct. 2293, 2294, 132 L.Ed.2d 418 (1995))3. Plaintiff’s eight days of solitary

confinement while his disciplinary charges were being brought and investigated is not an “atypical

and significant hardship” on which a federally-protected liberty interest may be grounded. 

Moreover, by claiming the disciplinary charge written by defendant MARKGRAF was "false,"

plaintiff is asserting a claim of malicious prosecution; however, there is no longer a freestanding

section 1983 claim for malicious prosecution in this Circuit. Castellano v. Fragozo, 352 F.3d 939

(5th Cir. 2003). Consequently, an inmate’s claim that an officer initiated disciplinary proceedings

against him without probable cause does not state a claim. Castellano v. Fragozo, 352 F.3d 939

(5th Cir. 2003).

Plaintiff’s claims against defendants VOGELGESANG, SAVERS and DRETKE

are based on a theory of respondeat superior; however, 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). Thus, plaintiff’s claims against these defendants 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, section 1915A and section 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 MOHAMMED HAMID DEHGHANI is

 

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

ON WHICH RELIEF CAN BE GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

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 28th day of April, 2006.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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