1

 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARVIN ABNEY §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-1645-M

§ 

SHERIFF LUPE VALDEZ, §

ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. §

636(b) and a standing order of reference from the district court. The findings and recommendation

of the magistrate judge are as follow:

I.

This is a pro se civil rights action brought by Plaintiff Marvin Abney, an inmate in the Dallas

County Jail, against Sheriff Lupe Valdez and various members of the jail medical staff. On August

16, 2005, plaintiff tendered a complaint to the district clerk and filed an application to proceed in

forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that

he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma

pauperis and allowed the complaint to be filed. Two sets of written interrogatories then were sent

to plaintiff in order to obtain additional information about his claims. Although plaintiff responded

to the interrogatories, his answers were inconclusive. On October 27, 2005, the court held a Spears1

 

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hearing to investigate the factual basis of the complaint in more detail. Plaintiff appeared at the

hearing and testified under oath regarding the claims made the basis of this suit. The court now

determines that this case should be summarily dismissed under 28 U.S.C. § 1915(e)(2). 

II.

Plaintiff generally alleges that he received inadequate medical care while incarcerated in the

Dallas County Jail. More particularly, plaintiff contends that: (1) his blood pressure medication

causes him to urinate more frequently; (2) he should have been placed on a special diet for food

allergies; (3) he has not received medication for migraine headaches and allergies; and (4) he has

not seen a doctor since August 2005. Plaintiff also believes that he has been exposed to several

infectious diseases, including HIV, tuberculosis, and Hepatitis A, B, and C. By this suit, plaintiff

seeks $2.2 million in damages and "continuing medical care for life."

III.

A district court may summarily dismiss a complaint filed in forma pauperis if it concludes

that the action:

(1) is frivolous or malicious;

(2) fails to state a claim upon which relief can be granted; or

(3) seeks money relief against a defendant who is immune from

such relief. 

28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); HensonEl v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to

state a claim "if it is clear that no relief could be granted under any set of facts that could be proved

consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232,

 

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81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164,

113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most

sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the

present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).

A.

The court initially observes that plaintiff did not properly present his claims to jail officials

before filing suit in federal court. Under the Prison Litigation Reform Act ("PLRA"), "[n]o action

shall be brought with respect to prison conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This requirement

"applies to all inmate suits about prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle,

534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002); see also Alexander v. Tippah County,

Mississippi, 351 F.3d 626, 630 (5th Cir. 2003), cert. denied, 124 S.Ct. 2071 (2004); Wendell v.

Asher, 162 F.3d 887, 890 (5th Cir. 1998). 

The Dallas County Jail currently provides a two-step procedure for presenting inmate

grievances. The first step requires the inmate to submit a grievance to any staff member. After

noting the date and time the grievance is received, the staff member delivers the grievance to the onduty shift supervisor who, in turn, forwards it to the Grievance Board for review. Upon receipt of

a written decision from the Grievance Board, the inmate has five days to submit a written appeal to

the Inmate Grievance Appeal Board. The Appeal Board reviews all documents submitted in

connection with the appeal and issues a decision, which may be reviewed by the Sheriff. An inmate

 

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must pursue his grievance at both steps in order to exhaust his administrative remedies. See

Medrano v. Dallas County Jail Medical Staff, No. 3-04-CV-1913-M, 2005 WL 106573 at *2 (N.D.

Tex. Jan. 18, 2005), rec. adopted, 2005 WL 877925 (N.D. Tex. Apr. 14, 2005), citing Burnett v.

Robertson, No. 3-01-CV-1284-P, 2001 WL 1577495 at *2 (N.D. Tex. Dec. 7, 2001). 

At the Spears hearing, plaintiff acknowledged that he did not file any grievances regarding

his diet or alleged exposure to infectious diseases. With respect to his other claims, plaintiff did not

appeal the written decision of the Grievance Board. Because plaintiff failed to present his claims

to jail officials in a Step 1 and Step 2 grievance, they must be dismissed.

B.

Even had plaintiff exhausted his administrative remedies, his claims still fail as a matter of

law. The PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined in

a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody

without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The injury required by this

statute "must be more than de minimus [sic], but need not be significant." Alexander, 351 F.3d at

630-31. Here, plaintiff alleges that his blood pressure medication causes him to urinate more

frequently, that he suffers migraine headaches on almost a daily basis, and that he experiences

itchiness and watery eyes due to food allergies. Such symptoms are insufficient to establish

"physical injury" under the PLRA. See, e.g. Alexander, 351 F.3d at 630-31 (nausea and vomiting

caused by raw sewage on floor of jail cell was de minimis); Mitchell v. Horn, No. 98-4742, 2005 WL

1060658 at * (E.D. Pa. May 5, 2005) (severe headaches and itching were temporary de minimis

injuries); Osterback v. Ingram, No. 3-96-CV-580-LAC, 2000 WL 297840 at *3 (N.D. Fla. Jan. 12,

2000) (migraine headache does not rise to level of physical injury); Morgan v. Dallas County Sheriff

Dep't, No. 3-04-CV-2172-D, 2005 WL 57282 at *2 (N.D. Tex. Jan. 11, 2005), rec. adopted, 2005

 

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 2

 The court notes that plaintiff has tested positive for Hepatitis C. (See Sec. Interrog. #3). However, his

medical records show that plaintiff was diagnosed with Hepatitis C at least year before his incarceration in the Dallas

County Jail. (See Central Intake Evaluation Form, 12/9/04). 

WL 2075796 (N.D. Tex. Aug. 26, 2005) (allegation of "undue pain . . . on a regular basis"

insufficient to establish physical injury).

C.

Nor has plaintiff shown that he has been exposed to any infectious diseases while

incarcerated in the Dallas County Jail. Although plaintiff suspects he contracted Hepatitis after a

jail nurse drained his staph infection with a needle used on other inmates, plaintiff admitted at the

Spears hearing that he did not see the nurse use the needle on anyone else. His conclusory and

speculative allegations are insufficient to state a claim for relief under 42 U.S.C. § 1983.2

RECOMMENDATION

Plaintiff's complaint should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: October 27, 2005.

 

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