IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ALLEN CALTON, §

(TDCJ # 1123880) §

 §

VS. § CIVIL ACTION NO.4:05-CV-703-Y

§

TARRANT COUNTY, TEXAS, et al. § 

 

 OPINION and ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. §§ 1915A(B)

 and UNDER 28 U.S.C. §§ 1915(e)(2)(B) 

 

This case is before the Court for review of pro-se inmate and

plaintiff Allen F. Calton’s pleadings under the screening provisions

of 28 U.S.C. §§ 1915A and 1915(e)(2)(B). After the Court initially

reviewed Calton’s form amended complaint, handwritten attachment

pages, and exhibits, it directed Calton to file a more definite

statement, to include answers to specific enumerated questions about

his claims against the numerous defendants. Calton has filed a more

definite statement with an appendix in support. 

Calton has named thirty-one defendants in this case alleging

claims arising from several different incidents. The first incidents

involve alleged denial of proper medical care for different

conditions: burning eyes and blurred vision resulting from capsium

pepper spray and an alleged back injury resulting from a trip and

fall. Associated with theses claims are defendants Tarrant County,

Dee Anderson, Tarrant County Hospital John Peter Smith Health

Network, David Cecero, a Ms. Chandler, Dr. James Waggener, Daisy May

Jackson, Debbie Fanal, Radiologist Curtis, Nurse Jacqueline, and an

emergency room Jane Doe physician. 
2

The next incident involves allegations that several officers

of Tarrant County conspired to move Calton to lockdown status

without any hearing, in violation of his right to due process of law

and access to courts. Associated with these allegations are

defendants David M. Stromile, Cedric Simon, Gayle Gray, Lieutenant

Christian, Eugene L. Garcia, Carl Garrett, Charlie Akomas, and D.

Bailey. 

The next incident involves allegations that Calton was

intentionally and deliberately sprayed with capsium pepper spray by

officer Gracia, under orders and with the knowledge and consent of

several other officers. The defendants associated with this incident

are Richard Closner, J. Evans, Don C. Taylor, Mr. Felton, Mr.

Gracia, and Mr. Collier. 

Calton, who represented himself in criminal proceedings before

the 213th Judicial District Court, next alleges that during the

trial proceedings, he was forced to wear a shock belt at the orders

of several Tarrant County officers. Associated with this claim are

defendants Mr. Cole, Dave Derusha, James Thomas, and Sam Haber. 

The last allegation is against lone defendant Corporal Harrison

for allegedly being deliberately indifferent to Calton’s serious

medical needs by ordering him to walk back to his cell even though

he knew Calton had blurred vision, whereupon Calton alleges he

tripped and injured his back and leg. 
1

Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)

requires dismissal not only when an allegation of poverty is untrue or the action

is frivolous or malicious, but also when “the action . . . fails to state a

claim on which relief may be granted; or seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(A) and

(B)(West 2006).

2

See 28 U.S.C.A. § 1915(e)(2)(West 2006); Adepegba v. Hammons, 103 F.3d

383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir.

1990)(discussing authority to dismiss at any time under prior § 1915(d)).

3

See 28 U.S.C.A. § 1915A(a)(West 2006).

4

See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

5

Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

3

 A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.1 Under 28

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

in determining at any time whether an in-forma-pauperis claim should

be dismissed.2 Furthermore, as a part of the PLRA, Congress enacted

28 U.S.C. § 1915A, which requires the Court to review a complaint

from a prisoner seeking relief from a governmental entity or

governmental officer or employee as soon as possible after

docketing.3 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await a responsive pleading

to conduct its § 1915 inquiry.4 Rather, § 1915 gives judges the

power to “dismiss a claim based on an indisputably meritless legal

theory.”5

 After review of the complaint and the more definite

statement filings under these standards, the Court concludes that

many of Calton’s claims, and many of the defendants, must be

dismissed.
6

See Brooks v. George County, Mississippi, 84 F.3d 157, 165 (5th Cir.),

cert. den’d, 519 U.S. 948 (1996), citing Hafer v. Melo, 502 U.S. 21 (1992). 

7

See West v. Atkins, 487 U.S. 42, 48 (1988)(citing cases); Resident Council

of Allen Parkway Village v. U.S. Department of Housing and Urban Development, 980

F.2d 1043, 1050 (5th Cir.), cert. denied, 510 U.S. 820 (1993).

8

Estelle v. Gamble, 429 U.S. 97, 104-106 (1976).

4

In addition to naming as defendants Tarrant County, Texas, and

the Tarrant County Hospital John Peter Smith Health Network, Calton

has named the individual defendants, each of whom is alleged to be

an employee of one of these defendants, in an official capacity. As

such official-capacity claims against the individual defendants are

redundant to the claims pending against Tarrant County, Texas, and

Tarrant County John Peter Smith Health Network, the officialcapacity claims must be dismissed.6

 To assert a claim for damages for violation of federal

constitutional rights under 42 U.S.C. § 1983, a plaintiff must set

forth facts in support of both of its elements: (1) the deprivation

of a right secured by the Constitution or laws of the United States;

and (2) the deprivation was imposed by a person acting under color

of law.7

 With regard to Calton’s claim of having received

inadequate medical care, the elements of a constitutional claim are

well known: deliberate indifference to a prisoner's serious medical

needs is cruel and unusual punishment under the Eighth Amendment.8

Also, the due-process clause of the Fourteenth Amendment prohibits

municipal officials from responding with “deliberate indifference”
9

See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir.1999);

Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir.1996), appeal after subsequent

remand, 135 F.3d 320, 327 (5th Cir. 1998).

10Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985); see also Wilson

v. Seiter, 501 U.S. 294, 297 (1991).

11Farmer, 511 U.S. at 837; see also Hare, 74 F.3d at 648.

12Domino v. , 239 F.3d 752, 756 (5th Cir.2001); see generally 29 U.S.

at 106 (“[m]edical malpractice does not become a constitutional violation merely

because the victim is a prisoner”); and Varnardo v. Lynaugh, 920 F.2d 320, 321

(5th Cir. 1991)(unsuccessful medical treatment, neglect, nor medical malpractice

give rise to a § 1983 cause of action)(citations omitted).

5

to the serious medical needs of a pretrial detainee.9 Such a finding

of deliberate indifference, though, “must rest on facts clearly

evincing 'wanton' actions on the parts of the defendants.”10 This

subjective deliberate-indifference standard is now equated with the

standard for criminal recklessness:

[A] prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane conditions

of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety;

the official must both be aware of facts from which the

inference can be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.11

The United States Court of Appeals for the Fifth Circuit has

described the high hurdle of deliberate indifference:

Deliberate indifference is an extremely high standard to

meet. It is indisputable that an incorrect diagnosis by

medical personnel does not suffice to state a claim for

deliberate indifference. Johnson v. Treen, 759 F.2d 1236,

1238 (5th Cir.1985). Rather, the plaintiff must show that

the officials “refused to treat him, ignored his

complaints, intentionally treated him incorrectly, or

engaged in any similar conduct that would clearly evince

a wanton disregard for any serious medical needs.” Id.

Furthermore the decision whether to provide additional

treatment “is a classic example of a matter for medical

judgment.” Estelle, 429 U.S. at 107. And, the “failure to

alleviate a significant risk that [the official] should

have perceived, but did not” is insufficient to show

deliberate indifference. Farmer, 511 U.S. at 838.12
6

In Calton’s allegations regarding medical care, he acknowledges

that he refused a procedure recommended for him on the first

instance complained of, which occurred on February 22, 2004. Calton

alleges that emergency-room medical personnel were allowed to

discontinue medical care and treatment altogether when he declined

a “spinal tap” procedure. Calton alleges that, consistent with this

policy, he was denied medical care by Dr. James Waggener, through

Waggener’s phone contact to nursing personnel, and by an emergencyroom physician identified as Jane Doe. With regard to Ms. Chandler,

Daisy May Jackson, Debbie Fanal, radiologist Curtis, nurse

Jacqueline, and nurse Cynthia Tucker, Calton alleges they failed to

provide treatment to him consistent with the alleged policy not to

treat him because of his refusal to agree to certain procedures.

These individual medical personnel cannot be said to deliberately

indifferent if they were following a policy set out for them by

their employer. Outside of these allegations, with regard to

Chandler, Jackson, Fanal, and radiologist Curtis, Calton alleges

that each assisted in removing him off of a backboard, in a “dumping

fashion,” onto a mattress that was on the floor in a room at the

Tarrant County jail infirmary, where “he landed and felt a pop in

his back and sharp pain shoot down his leg.” On its face, these

allegations state nothing more than possible negligence in the

movement of Calton from the backboard to the mattress. As such, the

Court concludes that Calton’s claims of deliberate indifference

against Chandler, Jackson, Fanal, radiologist Curtis, nurse

Jacqueline and Tucker must be dismissed under authority of 28 U.S.C.
13Heck, 512 U.S. at 486-87; see also Wells v. Bonner, 45 F.3d 90, 94 (5th

Cir. 1995).

7

§ 1915A and 1915(e)(2)(B). 

Furthermore, Plaintiff’s allegations do not give rise to a

claim of deliberate indifference on the part of defendant Corporal

Harrison. Calton’s allegation that Harrison should have known that

he was likely to suffer a fall if he walked back to his cell

unassisted is not enough to state deliberate indifference. Calton’s

claims again Harrison must be dismissed. 

With regard to Calton’s claim for compensatory and punitive

damages for his being placed in lockdown and required to wear a

shock belt during his criminal trial, even if a constitutional

violation (Calton infers a denial of access to courts) is alleged,

Plaintiff’s claims are not cognizable under 42 U.S.C. § 1983.

(Amend. Compl. § VI, attachment pages 72-73.) This is so because,

in Heck v. Humphrey, 512 U.S. 477, 486 (1994), the Supreme Court

held that a § 1983 claim that, in effect, attacks the

constitutionality of a conviction or imprisonment is not cognizable

under § 1983 and does not accrue until that conviction or sentence

has been “reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court's issuance

of a writ of habeas corpus.”13 

Calton acknowledges that he represented himself before the 213th

Judicial District Court on a charge of attempted murder in cause
14See generally Stauder v. Randall County, No.2:04-CV-232, 2005 WL 1214643

at *3, (N.D.Tex. May 20, 2005, report and recommendation adopted, (June 15,

2005)(finding a favorable determination on plaintiff’s claims of a violation of

his right to a speedy trial could call into question the validity of the

conviction and thus barred).

8

number 0843168, and that he was convicted and sentenced to life in

prison. (MDS at 37-39; 44-45.) In support of his claim that the

defendants’ retaliatory assignment of him to lockdown denied him

access to the courts, Calton insists that, but for Defendants’

action, he would have been able to develop and present testimony to

the 213th Judicial District Court in support of his motion to dismiss

on the basis of a violation of his right to a speedy trial. (MDS at

38-39.) In his recitation of claims against the defendants, which

he associates with denying him access to the courts, Calton recites:

“Plaintiff was a pro se defendant and was denied direct access to

the law library due to the new housing assignment and had to waive

a speedy trial hearing on 2-12-2004 and a suppression hearing on 2-

26-2004 due to unable [sic] to prepare for both pre-trial

proceedings.” As Calton alleges he was denied the right to challenge

his conviction on the basis he was denied a speedy trial, any

success on such claims effectively challenges Calton’s conviction.14

 As in Heck, Plaintiff's challenges, if successful, necessarily

would imply the invalidity of his incarceration and conviction, and

are thus not cognizable under § 1983 unless Plaintiff has satisfied

the conditions set by Heck. Plaintiff has failed to establish that

he has met one of the prerequisites to a § 1983 action set forth by

the Supreme Court. Plaintiff remains in custody and has not shown

that his conviction has been invalidated by a state or federal
15See Heck, 512 U.S. at 487-88.

9

court. As a result, Plaintiff's claim that he was denied his

constitutional rights of access to the courts and to a speedy trial

by being punitively placed in lockdown is not cognizable under §

1983, and must be dismissed pursuant to 28 U.S.C. §§ 1915A(b)(1) and

1915(e)(2)(B)(i) and (ii).15

With regard to Calton’s allegations concerning the requirement

by Tarrant County officials that he wear a “shock belt,” Calton

recites that: 

Plaintiff was prejudiced due to the distractions caused

by wearing the shock belt during the trial. Failed to

effectively examine witnesses as well as forgot to call

several subpoenaed witnesses who were available to

testify in support of his self defense claim and

automatism defense. The Life sentence Plaintiff received

due to his defense was impeded because he was forced to

wear a shock belt that occasionally malfunctioned was in

violation of Plaintiff’s right to access to court, self

representation, effective assistance of counsel, and due

process. (Amend Complaint at 67-70.) 

As success on this claims would necessarily challenge the validity

of his conviction in the 213th Judicial District Court, it is also

not cognizable under the Heck doctrine, and must be dismissed

pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B).

 Therefore, all of Plaintiff’s claims against the individual

defendants in an official capacity are DISMISSED WITH PREJUDICE

pursuant to 28 U.S.C. § 1915A(b)(1) and, alternatively, pursuant to

28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

All of Plaintiff’s claims against individual defendants Ms.

Chandler, Daisy May Jackson, Debbie Fanal, radiologist Curtis, nurse
16See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).

10

Jacqueline, Cynthia Tucker, and Mr. Harrison are DISMISSED WITH

PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) and, alternatively,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). 

All of Plaintiff’s claims against Tarrant County for denial of

access to courts and for being forced to wear a shock belt during

his criminal trial; and all claims against defendants D.M. Stromile,

Cedric Simon, Gayle Gray, Lieutenant Christian, Eugene L. Garcia,

Carl Garrett, Charlie Akomas, D. Bailey, Mr. Cole, Dave Derusha,

James Thomas, and Sam Haber, are DISMISSED WITH PREJUDICE to their

being asserted again until the Heck v. Humphrey conditions are met,

pursuant to 28 U.S.C. § 1915A(b)(1) and pursuant to 28 U.S.C. §

1915(e)(2)(B)(i) and (ii).16 

SIGNED October 22, 2007.