IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SHAUN DEWAYNE TUCKER, #05033954, )

Plaintiff, )

)

v. ) 3:05-CV-1591-D

)

DALLAS COUNTY SHERIFF, et al., )

Defendants. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court filed

on December 5, 2005, this case has been re-referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a civil rights complaint brought by a county inmate pursuant to 42

U.S.C. § 1983. 

Parties: Plaintiff presently resides in Irving, Texas. At the time of filing this action he

was incarcerated at the Dallas County Jail in Dallas, Texas. Defendants are the Dallas County

Sheriff’s Department Detention Division. The Court did not issue process in this case, pending

preliminary screening. On October 18 and December 20, 2005, the Magistrate Judge issued two

questionnaires to Plaintiff, who filed his answers thereto on November 19, 2005, and January 10,

2006, respectively. In answer to the first questionnaire, Plaintiff names Dallas County in lieu of

the Dallas County Sheriff’s Department. 

Statement of Case: The complaint alleges civil rights violations as a result of persistent

discriminatory practices against homosexual inmates at the Dallas County Jail. Plaintiff 

 

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1 In addition to monetary damages, Plaintiff requests injunctive and declaratory

relief. Plaintiff’s release from the Dallas County Jail renders his claims for declaratory and

injunctive relief moot. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (even if

inmate was able to establish constitutional violation, his transfer to another prisoner rendered

moot his claim for declaratory and injunctive relief) (citing Cooper v. Sheriff, Lubbock County,

Tex., 929 F.2d 1078, 1084 (5th Cir. 1991)); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988)

(prisoners who were no longer in Retrieve Unit could not seek injunctive relief against

conditions of confinement there). Any suggestion of relief based on the possibility of a transfer

back to the Dallas County Jail is too speculative to warrant relief. See Herman, 238 F.3d at 665

(citing Bailey v. Southerland, 821 F.2d 277, 279 (5th Cir.1987)).

2

requests compensatory damages.1

Findings and Conclusions: The court has permitted Plaintiff to proceed in forma

pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes

a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:

The court shall review . . . as soon as practicable after docketing, a complaint in a

civil action in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity [and] [o]n review, the court shall

identify cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or (2) seeks monetary relief from a defendant

who is immune from such relief.”

28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).

Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court

finds that the complaint is “frivolous” or that it “fails to state a claim upon which relief may be

granted.” A complaint is frivolous, if it “lacks an arguable basis either in law or in fact.” 

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

The Prisoner Litigation Reform Act (PLRA) of 1996 requires prisoners filing suit to

demonstrate a physical injury to sustain a claim for damages. See 42 U.S.C. § 1997e(e); Harper

 

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2 Section 1997e(e) states: "No federal civil action may be brought by a

prisoner....for mental or emotional injury suffered while in custody without a prior showing of

physical injury." 42 U.S.C. §§ 1997e(e).

3

v. Showers, 174 F.3d 716, 719 n. 5 (5th Cir.1999).2

The only injury which Plaintiff suffered as a consequence of Defendant’s discriminatory

practices, harassment and verbal abuse was mental pain and suffering. (See Answer to Question

2). He concedes being afflicted with headaches during lock down when officers poured bleach

in the showers without rinsing the bleach with water or properly removing fumes. (Id.). This

condition, however, did not require medical attention. As a result, it does not surmount the de

minimus hurdle of the PLRA. See Alexander v. Tippah County, Miss., 351 F.3d 626, 631 (5th

Cir. 2003) (state prisoners, alleging Eighth Amendment violation arising out of their twenty-four

hour placement in unsanitary isolation cell, could not recover for mental or emotional damages

absent more than de minimis physical injury; only claimed injury, nausea suffered by one

prisoner, was not severe enough to warrant medical attention). 

In addition to headaches, Plaintiff complains of “vomiting and [being afflicted with] skin

rashes from unsanitized showers.” (Answer to Question 2). He also complains of cough and

colds because of “constant exposure to bitter cold air,” and of lower back pain caused by the

uncomfortable bunks. (Id.). These symptoms are clearly related to general conditions of

confinement, rather than to claims of discrimination, harassment and verbal abuse of gay inmates

as alleged in the complaint. They are, thus, inapplicable to this case. 

Because Plaintiff did not suffer any physical injury as a result of the alleged

discrimination, harassment and verbal abuse, § 1997e(e) bars his request for monetary damages. 

 

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3 The prohibitive feature of § 1997e(e), requiring physical injury before recovery,

does not apply in the context of requests for declaratory or injunctive relief sought to end an

allegedly unconstitutional condition of confinement. See Harper, 174 F.3d at 719. Plaintiff,

however, was released from confinement shortly after filing this action. As noted previously, his

release from confinement renders his request for prospective injunctive relief moot. See Herman

v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Cooper v. Sheriff, Lubbock County, Tex., 929

F.2d 1078, 1084 (5th Cir. 1991); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988). 

4

See Harper, 174 F.3d at 719.3

In addition to failing to meet the physical injury requirement, Plaintiff has not shown that

he has exhausted his administrative remedies. While he acknowledges filing grievances raising

the claims at issue in the complaint (see attachments to the complaint), he fails to provide any

details as to the disposition and date of disposition of each grievance by the Inmate Grievance

Board. (Answer to Question 6). He also fails to state whether he submitted a written appeal to

the Inmate Grievance Appeal Board, and the disposition and date of disposition by the Inmate

Grievance Appeal Board. (Id.). 

Administrative exhaustion under 42 U.S.C. § 1997e(a) is mandatory. Porter v. Nussle,

534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001); Days v. Johnson, 322

F.3d 863, 866 (5th Cir.2003). Section 1997e(a) specifically provides: 

No 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). The Fifth Circuit Court of Appeals has construed § 1997e(a) to require

“that administrative remedies be exhausted before the filing of a § 1983 suit.” Wendell v. Asher,

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

Plaintiff has not raised any valid excuse for failing to exhaust his available administrative

 

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5

remedies before filing the complaint in this case. In light of the statutory mandate of § 1997e(a),

the District Court should dismiss Plaintiff’s complaint for failure to exhaust administrative

remedies. 

RECOMMENDATION:

For the forgoing reasons, it is recommended that the District Court dismiss Plaintiff’s

complaint with prejudice as frivolous, see 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i). 

Alternatively, the complaint should be dismissed for failure to exhaust administrative remedies. 

See 42 U.S.C. § 1997(e)(a). 

A copy of this recommendation will be mailed to Plaintiff.

Signed this 24th day of January, 2006. 

____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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