IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

JOSEPH BERNARD FOWLER, PRO SE, §

TDCJ-CID #623887, §

A.K.A. Eugene Bernard Fowler, §

A.K.A. Bernard Fowler, §

A.K.A. Joe Fowler §

Previous TDCJ-CID #909414, §

Previous TDCJ-CID #954506, §

Previous TDCJ-CID #997657, §

§

Plaintiff, §

§

v. § 2:05-CV-0249

§

EXECUTIVE DIRECTOR OF PARDONS §

 AND PAROLES, §

TIMOTHY SIMMONS, Warden, and §

C. STEVENS, Captain, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff JOSEPH BERNARD FOWLER, acting pro se and while incarcerated as a

prisoner in the Baten Intermediate Sanction Facility, has filed suit pursuant to Title 42, United States

Code, section 1983 complaining against the above-referenced defendants and has been allowed to

proceed in forma pauperis.

Plaintiff, a parole-violator confined in an intermediate sanction facility, claims the

defendants are forcing him to work without compensation in the form of good time credits or money.

 Plaintiff complains that a refusal to work results in disciplinary action, subjecting him to the

possibility that his parole will be revoked and he will be readmitted to serve the remainder of his

sentence.

 

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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 requests compensation in the form of good time credits or money and a

transfer to another intermediate sanction facility.

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 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

The Fifth Circuit has repeatedly held that an inmate may be required to work without

pay. The Thirteenth Amendment abolishes "slavery [and] involuntary servitude, except as

punishment for crime whereof the party shall have been duly convicted. . ." Mikeska v. Collins, 900

 

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F.2d 833, 837 (5th Cir. 1990), superseded and reinstated on this point by Mikeska v. Collins, 928

F.2d 126 (5th Cir. 1991), (quoting the Thirteenth Amendment to the United States Constitution,

section 1). “[I]nmates sentenced to incarceration cannot state a viable Thirteenth Amendment claim

if the prison system requires them to work.” Ali v. Johnson, 259 F.3d 317 (5th Cir. 2001). Whether

the requirement to work violates or comports with state law is a separate, non-constitutional issue.

Id. Consequently, plaintiff’s claim 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

IT IS HEREBY ORDERED that, pursuant to Title 28, United States Code, sections

1915A(b)(1) and 1915((e)(2)(b)(1), as well as Title 42, United States Code, section 1997e(c)(1), the

Civil Rights Claim filed pursuant to Title 42, United States Code, Section 1983, by plaintiff JOSEPH

BERNARD FOWLER is DISMISSED WITH PREJUDICE AS FRIVOLOUS.

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.

All pending motions are DENIED.

IT IS SO ORDERED.

ENTERED this 1st

 day of February, 2006.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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