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-0239

§

RICHARD VOGELGESANG, Warden, §

MICHAEL SAVERS, Assistant Warden, §

WILLIAM CULLUM, Captain, §

JASON COOK, Lieutenant, and §

AMY LOWERY, Counsel Substitute, §

§

 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 defendant COOK wrote a case accusing plaintiff of striking another

inmate when the other inmate was actually the aggressor and receive no disciplinary case. 

Plaintiff states defendant LOWERY was his Counsel Substitute during the disciplinary hearing

but she did not get attendance by his witnesses or the medical evidence he had requested. Plaintiff

claims defendant CULLUM was the disciplinary hearing officer and violated plaintiff’s due

process rights by not getting or not allowing attendance by plaintiff’s witnesses and by not getting

plaintiff’s evidence. Plaintiff’s Step 1 grievance no. 2005107440 attached to his complaint states

that he suffered 30 days of cell restriction, 30 days of commissary and recreation restriction, and a

demotion in classification.

 

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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.").

2

Plaintiff further claims he wrote two letters to defendant Warden

VOGELGESANG complaining that the disciplinary charge was false but received no response. 

Plaintiff claims defendant SAVERS denied his step 1 grievance appealing the disciplinary case.

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

 

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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.

3

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

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 cell restriction and loss of

recreation and commissary privileges is not an “atypical and significant hardship” on which a

federally-protected liberty interest may be grounded. Moreover, the effect on the duration of his

sentence that a reduction in class has upon an inmate's ability to earn good-time credits is too

speculative and too attenuated to invoke the procedural guarantees of the Due Process Clause. 

Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995)(citing Sandin v. Conner, 515 U.S. 472, 115 S.Ct.

2293, 132 L.Ed.2d 418 (1995)). Consequently, plaintiff’s challenges to the due process received

during the disciplinary hearing and his claims against defendant CULLUM 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).

As to plaintiff’s claims against defendant Substitute Counsel LOWERY, the Court

notes a counsel substitute representing an inmate in prison disciplinary proceedings does not act

under color of state law for purposes of claims brought under Title 42, United States Code, section

1983. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). Plaintiff is unable to show one

of the two essential elements necessary to state a civil rights claim. Adickes v. Kress, 398 U.S.

144, 149, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970)(two elements are necessary for recovery in

this type of suit: (1) the plaintiff must show the defendant deprived him of a right secured by the

 

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Constitution and laws of the United States; (2) the plaintiff must show the deprivation was

committed under color of law, usually by a state official or a private individual in conspiracy with

such an official). Plaintiff's claim against defendant LOWERY 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).

Plaintiff's claim against defendant COOK appears to be that the disciplinary charge

was "false;" however, plaintiff does not allege defendant COOK knew he was not the aggressor or

acted in bad faith in writing the disciplinary case. This would appear to claim, at most, that

defendant COOK was merely wrong. Nevertheless, if plaintiff is claiming COOK knowingly

wrote a false disciplinary charge against him, this claim is one 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 SAVERS and VOGELGESANG are based on

their alleged failure to adequately investigate and satisfactorily resolve his grievance and letters of

complaint. Inasmuch as the result of plaintiff’s grievance to SAVERS and his letters to

VOGELGESANG have no bearing on the duration of his confinement, the plaintiff cannot show

the existence of a state-created liberty interest in an inmate grievance procedure, much less in an

informal complaint to VOGELGESANG. See, Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir.

1995). Plaintiff’s claim against SAVERS and VOGELGESANG 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’s claim against defendant VOGELGESANG is also based on a theory of

respondeat superior; however, theories of vicarious liability, such as respondeat superior, cannot

 

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

1987). Thus, when analyzed on this basis as well, plaintiff’s claim against defendant

VOGELGESANG 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

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

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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