IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

HARRY JAMES YARBROUGH, PRO SE, §

TDCJ-CID No. 1022150, §

Previous TDCJ-CID No. 621629, §

§

 Plaintiff, §

§

v. § 2:04-CV-0294

§

GARY JOHNSON, §

§

 Defendant. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff HARRY JAMES YARBROUGH, 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 complaining against the abovereferenced defendant and has been granted leave to proceed in forma pauperis.

Plaintiff claims his Eighth Amendment protection from conditions of confinement

constituting cruel and unusual punishment has been violated by the defendant’s approval of a

recent change in prison correspondence policy which now bars sexually explicit magazines or

other images. Contending it is a “life or death situation for thousands of prisoners within the

Texas prison system,” plaintiff argues he and other inmates need the pornography to facilitate

frequent masturbatory release “for the exercise of [their] prostate health.”

Plaintiff requests injunctive relief in the form of a “meaningful decision on the

merits of this case, as irreparable harm will result otherwise.”

 

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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).

 2Cf, 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 seeks redress from a governmental entity or from an 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 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

In its prohibition of "cruel and unusual punishments," the Eighth Amendment

imposes duties on prison officials to provide humane conditions of confinement; prison officials

must ensure that inmates receive adequate food, clothing, shelter and medical care, and must

"take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S.

825, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994)(quoting Hudson v. Palmer, 468 U.S. 517,

 

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526-527, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)). See, also, Newman v. Alabama, 559

F.2d 283, 286 (5th Cir. 1977)(state must furnish its prisoners with reasonably adequate food). 

Further, an Eighth Amendment challenge to conditions must contain facts showing that the

responsible officials acted with deliberate indifference to the prisoner's conditions. Harper v.

Showers, 174 F.3d 716, 720 (5th Cir. 1999)(citing Farmer v. Brennan, 511 U.S. 825, 837-43,

114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). While there is no static test to determine whether

conditions of confinement are cruel and unusual, punishment rises to the level of an Eighth

Amendment violation only if it involves an "'unnecessary and wanton infliction of pain.'" Talib

v. Gilley, 138 F.3d 211, 214 (5th Cir. 1998)(quoting Estelle v. Gamble, 429 U.S. 97, 104, 97

S.Ct. 285, 291, 50 L.Ed.2d 251 (1976)(Estelle quoting Gregg v. Georgia, 428 U.S. 153, 173, 96

S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)).

Plaintiff presents no allegation of fact showing he is prevented in any way from

engaging in the activity he feels is essential to his present and future prostate health; instead, he

challenges the failure to facilitate this activity. Plaintiff has alleged no fact showing he and other

inmates cannot maintain their health without pornography or that prison officials are aware of

facts indicating such a danger and have ignored them. Plaintiff’s allegation that it would be

easier to masturbate with the assistance of pornography does not support an inference that he and

others will be unable to do so with sufficient frequency if deprived of it.

To the extent prison conditions are merely harsh or restrictive, "they are part of

the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman,

452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). The absence of the

pornographic stimulus plaintiff seeks does not show he is deprived of the ability or opportunity

 

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to maintain his health. Plaintiff’s allegations fail to state a deprivation of the "minimal civilized

measure of life's necessities", see, Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115

L.Ed.2d 271 (1991) and do not show an "'unnecessary and wanton infliction of pain.'" Talib v.

Gilley, 138 F.3d 211, 214 (5th Cir. 1998)(quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.

285, 291, 50 L.Ed.2d 251 (1976)(Estelle quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct.

2909, 2925, 49 L.Ed.2d 859 (1976)). As now Chief Justice Rehnquist, remarked, "[i]n short,

nobody promised [inmates] a rose garden; and I know of nothing in the Eighth Amendment

which requires that they be housed in a manner most pleasing to them, or considered even by

most knowledgeable penal authorities to be likely to avoid confrontations, psychological

depression, and the like." Atiyeh v. Capps, 449 U.S. 1312, 1315-16, 101 S.Ct. 829, 831, 66

L.Ed.2d 785 (1981).

Thus, by his claim against the defendant plaintiff fails to state a claim on which

relief can be granted.

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), 

IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to

Title 42, United States Code, Section 1983, by plaintiff HARRY JAMES YARBROUGH is

DISMISSED FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE

GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

 

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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 5th day of July, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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