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Plaintiff has been re-released on parole since filing suit.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

KENNETH ALLEN HARDING, PRO SE, §

TDCJ-CID #723126, §

§

Plaintiff, §

§

v. § 2:06-CV-0041

§

TIMOTHY SIMMONS, §

DOROTHY BRITTON, §

CHRIS ROBLES, ROBERT HENTHORN, §

JEAN McALPINE, and §

ALBERT STEVENS, §

§

Defendants §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff KENNETH ALLEN HARDING, acting pro se and while incarcerated as a prisoner

in the Baten Intermediate Sanction Facility1

, has filed suit pursuant to Title 42, United States Code,

section 1983 complaining against the above-referenced defendants and has been allowed to proceed

in forma pauperis.

Plaintiff, a parole-violator confined in an intermediate sanction facility, claims the defendants

have forced him to work without compensation in the form of good time credits or money and have

given him disciplinary cases for refusing to work.

Plaintiff requests an award of $100,000.00 from each defendant, as well as “court costs and

legal fees”, and that slavery be stopped for all offenders.

 

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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.").

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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 frivolous2

, 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)3

.

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

The Fifth Circuit has repeatedly held that an inmate may be required to work without pay.

The Thirteenth Amendment abolishes "slavery [and] involuntary servitude, except as punishment for

crime whereof the party shall have been duly convicted. . ." Mikeska v. Collins, 900 F.2d 833, 837

(5th Cir. 1990), superseded and reinstated on this point by Mikeska v. Collins, 928 F.2d 126 (5th Cir.

1991), (quoting the Thirteenth Amendment to the United States Constitution, section 1). “[I]nmates

 

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sentenced to incarceration cannot state a viable Thirteenth Amendment claim if the prison system

requires them to work.” Ali v. Johnson, 259 F.3d 317 (5th Cir. 2001). Consequently, plaintiff’s claim

lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827,

104 L.Ed.2d 338 (1989).

CONCLUSION

IT IS HEREBY ORDERED that, pursuant to Title 28, United States Code, sections

1915A(b)(1) and 1915((e)(2)(b)(1), as well as Title 42, United States Code, section 1997e(c)(1), the

Civil Rights Claim filed pursuant to Title 42, United States Code, Section 1983, by plaintiff

KENNETH ALLEN HARDING is DISMISSED WITH PREJUDICE AS FRIVOLOUS.

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.

Any pending motions are DENIED.

IT IS SO ORDERED.

ENTERED this 5th day of September, 2006.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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