IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

EDWARD CALHOUN, JR., §

(TDCJ # 1108281) §

 § CIVIL ACTION NO.4:06-CV-178-Y VS. 

§

 §

PRISCELLA MILES, Warden, §

Bridgeport Unit, et al. §

 OPINION and ORDER OF PARTIAL DISMISSAL UNDER 

 28 U.S.C. § 1915A(b)(1) and UNDER 28 U.S.C. § 1915(e)(2)(b) 

 

On March 21, 2006, plaintiff Edward Calhoun Jr. was permitted

to proceed in the above-styled and numbered cause pursuant to 28

U.S.C. § 1915 by the magistrate judge, and he was ordered to pay

the full filing fee required by the Prison Litigation Reform Act

(PLRA). His form complaint under 42 U.S.C. § 1983 in this action

lists as defendants Priscella Miles, Warden, Bridgeport unit; Jerry

Beck, Maintenance Supervisor, Bridgeport unit; and Reed Smith,

Director of Operations, Global Expertise Outsourcing (G.E.O.).

(Compl. Style; § IV(B).) He has named the defendants in both an

individual and an official capacity. Calhoun complains that on

December 7, 2005, an icestorm dropped outside temperatures into the

single digits, resulting in a pipe’s bursting in the wall, and the

loss of heat to his assigned cell. Calhoun alleges that his cell

was exposed to two outside walls and thus, without heat, was very

cold. He also asserts that it remained cold in his cell and in the

“day-room” for several days as the outside temperature remained in

the teens. Calhoun complains that both Miles and Beck were

 

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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 Supp. 2006). 

2

See 28 U.S.C.A. § 1915(e)(2)(West Supp. 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 Supp. 2006).

2

personally aware of the cold temperatures and that the heating

units were inoperable in several of the pods and cells and failed

to remedy or protect him and other inmates from exposure to the

cold. (Compl. § V; attachment pages.) He alleges that G.E.O.

Director of Operations Reed Smith is responsible for the actions of

the employees at the Bridgeport facility, and knew or should have

known of the conditions of the facilities he is responsible for.

Calhoun seeks damages for his pain and suffering. (Compl. § VI.) 

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

 

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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).

6

See Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992); Jacquez v.

Procunier, 801 F.2d 789, 793 (5th Cir. 1986); Wanger v. Bonner, 621 F.2d 675,

679 (5th Cir. 1980); Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979).

7

See Alton v. Texas A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999)(“Only

the direct acts of omissions of government officials, not the acts of

subordinates, will give rise to individual liability under § 1983”);

Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.1987) (“Under section 1983,

3

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 and consideration of

Calhoun’s claims as asserted in this form complaint, the Court

concludes that some of them must be dismissed under the authority

of these provisions.

In the first instance, the Court observes that liability under

42 U.S.C. § 1983, regardless of the particular constitutional

theory, must be based upon personal responsibility.6 Although

plaintiff Calhoun has named G.E.O. official Reed Smith, he has not

made specific allegations that defendant Smith was directly

involved or participated in the alleged events. Rather, Calhoun

appears to have named Smith purely because of his role as Director

of Operations for G.E.O., the private corporation that operates the

Bridgeport facility. But § 1983 does not authorize supervisory

liability based on respondeat superior or any theory of vicarious

liability.7 Thus, the Court concludes that Plaintiff's claims

 

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supervisory officials are not liable for the actions of subordinates on any

theory of vicarious liability.”)(citations omitted).

8

See Patton v. United Parcel Service, et al. 910 F.Supp. 1250, 1269

(S.D.Tex. 1995). 

9

Monell v. New York City Dept.of Social Services, 436 U.S. 658, 691

(1978); see generally City of Canton v. Harris, 489 U.S. 378, 385

(1989)(noting that § 1983 liability attaches “only where the municipality

itself causes the constitutional violation at issue”)(emphasis in original).

10See Rosborough v. Management & Training Corp., 350 F.3d 459, 461 (5th

Cir. 2003)(“We agree with the Sixth Circuit and with those district courts

that have found that private prison-management corporations and their

employees may be sued under § 1983 by a prisoner who has suffered a

constitutional injury.”).

4

against Reed Smith must be dismissed under 28 U.S.C. § 1915A(b)(1)

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

Calhoun has also named the defendants in an official capacity.

But a suit against an individual employee of a private corporation

in an “official capacity” is essentially a suit against the

corporation.8 In Monell v. New York City Department of Social

Services, the Supreme Court emphasized that a local government

entity could not be liable under § 1983 “unless action pursuant to

official municipal policy of some nature caused a constitutional

tort.”9 Although G.E.O. is a private corporation, because the

operation of a prison is a fundamental government function, G.E.O.

may be sued under 42 U.S.C. § 1983 for alleged constitutional

injury.10 Thus, the standards applicable to determining liability

under § 1983 against a municipal corporation are applicable to

determining the liability of a private corporation, here G.E.O.,

 

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11See Eldridge v. CCA Dawson State Jail, No.3:04-CV-1312-M, 2004 WL

1873035, at *2 (N.D.Tex. Aug. 19,2004)(noting that the five circuits that have

addressed the issue have extended Monell to private corporations), findings

and recommendation adopted, 2004 WL 2075423 (N.D.Tex. Sep. 16, 2004); see

generally Brown v. District of Columbia, 2005 WL 3276267 (D.C. D.C. Aug. 2,

2005)(noting that when a private corporation is acting under contract with the

District of Columbia government to operate a correctional institution, Section

1983 liability depends on the plaintiff's ability to allege that his injury is

the result of a "custom or policy" of the private corporation).

12Monell, 436 U.S. at 691; see generally City of Canton v. Harris, 489

U.S. 378, 385 (1989)(noting that § 1983 liability attaches “only where the

municipality itself causes the constitutional violation at issue”)(emphasis in

original).

13See Piotrowski v. City of Houston, 237 F.3d 567, 578, reh’g en banc

den’d, 251 F.3d 159 (5th Cir.), cert. den’d, 534 U.S. 820 (2001). 

5

performing a government function.11

The overarching principle for municipal or corporate liability

under 42 U.S.C. § 1983 is that an entity is not responsible for

actions that might be attributed to it under principles of

respondeat superior.12 Thus, because Calhoun claims liability

against G.E.O. based only upon the actions of its employees, any

such claim fails as a matter of law.13 The official-capacity claims

must therefore be dismissed under authority of 28 U.S.C. §

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

Therefore, all claims against Reed Smith, and all claims

against the defendants in an official capacity, are DISMISSED WITH

 

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6

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

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

SIGNED August 22, 2006. 

 

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