IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

NICKOLAS WOLFFORD §

VS. § CIVIL ACTION NO. 9:23-CV-48

POLUNSKY UNIT, ET AL. §

 INITIAL REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Nikolas Wolfford, a prisoner confined at the PolunskyUnit of the Texas Department

of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis,

filed this civil rights action pursuant to 42 U.S.C. § 1983 against the Polunsky Unit, Melisa Elliott,

Paul Reilley, Julie Smitherman, Kenzie Watkins, Nita Neyland, and Falicia R. Burks.

The action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for

findings of fact, conclusions of law, and recommendations for the disposition of the case.

This Report and Recommendation is limited to the allegations against Defendant Burks and

the Polunsky Unit.

Factual Background

Plaintiff alleges he received inadequate treatment for a variety of medical conditions. 

Plaintiff alleges Defendant Burks, a unit grievance investigator, failed to file his grievances for

procedural reasons and did not adequately investigate his claims.

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Standard of Review

An in forma pauperis proceeding may be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)

if it: (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or

(3) seeks monetary relief from a defendant who is immune from such relief.

A complaint, containing as it does both factual allegations and legal conclusions, is frivolous

where it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);

McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). A complaint lacks an arguable basis

in law if it is based on an indisputablymeritless legal theory. See Siglar v. Hightower, 112 F.3d 191,

193 (5th Cir. 1997). A complaint lacks an arguable basis in fact if, after providing the plaintiff the

opportunity to present additional facts when necessary, the facts alleged are clearlybaseless. Denton

v. Hernandez, 504 U.S. 25, 32 (1992).

A complaint does not need detailed factual allegations, but the plaintiff must allege sufficient

facts to show more than a speculative right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). Dismissal for failure to state a claim is appropriate if the complaint does not include

enough facts to state a claim that is plausible on its face. Id. at 570. Conclusory allegations and a

formulaic recitation of the elements of a cause of action will not suffice to prevent dismissal for

failure to state a claim. Id. at 555. The plaintiff must plead facts that allow the court to “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). 

Analysis

Title 42 U.S.C. § 1983 creates a cause of action against any person who, acting under color

of state law, causes another to be deprived of a federally protected constitutional right. Gomez v.

2

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Toledo, 446 U.S. 635, 640 (1980); Phillips v. Monroe Cnty., 311 F.3d 369, 373 (5th Cir. 2002). 

Section 1983 provides:

Everyperson who, under color of any statute, ordinance, regulation, custom or usage,

of any state . . . subjects, or causes to be subjected, any citizen of the United States

or any other person within the jurisdiction thereof to the deprivation of any rights,

privileges or immunities secured by the Constitution and laws shall be liable to the

party injured . . . . 

42 U.S.C. § 1983. 

Plaintiff contends Defendant Burks failed to file his grievances, rejected grievances for

procedural reasons, and failed to investigate his claims. However, failing to process grievances and

investigate an inmate’s complaints are not the types of action that rise to the level of a constitutional

violation. Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Therefore, the claims against

Defendant Burks are frivolous and do not state a claim upon which relief may be granted.

Plaintiff’s claims against the PolunskyUnit must be dismissed because theTexasDepartment

of Criminal Justice is immune from suit. The Eleventh Amendment provides that “[t]he judicial

power of the United States shall not be construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizens of another State . . . .” U.S. CONST.

Amend. XI. The Eleventh Amendment has been construed to prohibit a citizen of a state from

bringing an action in federal court against his own state, or against a state agency or department. 

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-99 (1984); Williams v. Dallas Area

Rapid Transit, 242 F.3d 315, 319 (5th Cir.), cert. denied, 534 U.S. 1042 (2001); Neuwirth v.

Louisiana State Bd. of Dentistry, 845 F.2d 553, 555 (5th Cir. 1988). “A plaintiff cannot avoid the

sovereign immunity bar by suing a state agency or an arm of the State rather than the State itself.” 

3

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Richardson v. S. Univ., 118 F.3d 450, 452 (5th Cir. 1997). Because the Texas Department of

Criminal Justice is a department of the State of Texas, the Polunsky Unit is immune from suit.

Recommendation

The claims against Defendant Burks and the Polunsky Unit should be dismissed pursuant to

28 U.S.C. § 1915(e) as frivolous and for failure to state a claim upon which relief may be granted.

Objections

Within fourteen days after receipt of the magistrate judge’s report, any party may serve and

file written objections to the findings of facts, conclusions of law and recommendations of the

magistrate judge. 28 U.S.C. § 636(b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from de novo review by the district court of the proposed findings, conclusions and

recommendations and from appellate review of factual findings and legal conclusions accepted by

the district court except on grounds of plain error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d

1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72. 

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_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 1st day of June, 2023.

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