IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

ASENCION GAONA, PRO SE, §

TDCJ-CID # 656950, §

Previous TDCJ-CID # 581565 §

§

Plaintiff, §

§

v. § 2:05-CV-0180

§

M.C. ERWIN, IV, §

T. HENDRICK, and §

BRUCE E. ZELLER, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff ASENCION GAONA, 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 above-referenced

defendants and has been granted permission to proceed in forma pauperis.

Plaintiff complains that he received a false disciplinary case for making an

unauthorized commodity exchange based on personal letters found in search of his cell on

December 13, 2004. Plaintiff suffered a confiscation of money, recreation and commissary

restriction and reduction of his classification status from S-4 to L-2. He was also subsequently

denied parole and suffered emotional distress and anguish. Plaintiff includes a vague and

conclusory allegation that the disciplinary case was written to ensure his denial of parole.

Plaintiff requests restoration of his classification status, compensatory damages

 

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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.").

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for the confiscated property, lost opportunity of parole, and emotional anguish, and punitive

damages.

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 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 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

Conclusory allegations lacking reference to material facts are not sufficient to

state a claim of conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th

Cir.1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990); or to support

claims of malice, Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995). Further, a district court must

 

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insist that a plaintiff suing a public official under section 1983 file a short and plain statement of

his complaint, which statement must rest on more than mere conclusions. Schultea v. Wood, 47

F.3d 1427, 1433 (5th Cir. 1995). Implicit in plaintiff’s vague allegation that the false

disciplinary case was written to cause his denial of parole is a claim of conspiracy and malicious

intent by the defendants; however, plaintiff has not alleged a single material fact to support such

a claim. Consequently, plaintiff has failed to state a claim of conspiracy and malice on which

relief can be granted.

To the extent plaintiff simply alleges the case was false, the initiation of charges

without probable cause is the core of malicious prosecution, but the Fifth Circuit does not

recognize any freestanding claim under section 1983 for malicious prosecution. Castellano v.

Fragozo, 352 F.3d 939 (5th Cir. 2003). An inmate’s claim that an officer initiated disciplinary

proceedings against him without probable cause does not state a claim unless an underlying

constitutional violation is identified. Plaintiff has presented nothing to supply the necessary

underlying constitutional violation, and his claim of malicious prosecution, therefore, lacks an

arguable basis in law and is frivolous. Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003).

Lastly, to the extent plaintiff seeks to challenge the due process afforded him in

connection with the disciplinary case, in the wake of Sandin v. Conner, 515 U.S. 472, 115 S.Ct.

2293, 132 L.Ed.2d 418 (1995), the ambit of a prisoner's potential Fourteenth Amendment due

process liberty claims has been dramatically narrowed and prisoners retain 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." Sandin v. Conner, 515 U.S. 472, 115 S.Ct.

2293, 2294, 132 L.Ed.2d 418 (1995). These will normally consist of deprivations which clearly

 

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impinge on the duration of confinement. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). 

The denial of parole, as distinguished from the revocation of parole, does not amount to a loss of

liberty in the due process context. Greenhultz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct.

2100, 60 L.Ed.2d 668 (1979); Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979)(citing, in part,

Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50

L.Ed.2d 283)). Therefore, plaintiff’s claims in this respect 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).

CONCLUSION

Plaintiff’s claims are frivolous and fail to state a claim on which relief can be

granted.

IT IS HEREBY ORDERED:

The referral of the instant cause to the United States Magistrate Judge is hereby

withdrawn.

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), this Civil Rights Complaint is DISMISSED

WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON

WHICH RELIEF CAN BE GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Any pending motions are DENIED.

The Clerk will mail a copy of this Order to the plaintiff and to any attorney of

record by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General

Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711 and to the Pro Se Clerk at the U.S.

 

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District Court for the Eastern District of Texas, Tyler Division.

IT IS SO ORDERED.

ENTERED this 26th day of January, 2006.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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