United States District Court, N.D. Texas, Abilene Division
PEJAE A. OWENS, (TDCJ No. 017160344) Plaintiff,
FNU WEBB, Warden, TDCJ French Robertson Unit, et ah, Defendants
OPINION AND ORDER OF DISMISSAL UNDER 28 U.S.C.
S§ 1915A & 1915(E)(2)(B) 
SCOTT FROST UNITED STATES MAGISTRATE JUDGE.
case is before the Court for review of
pro-se-inmate/plaintiff PeJae A. Owens's pleadings under
the screening provisions of 28 U.S.C. §§ 1915A and
1915(e)(2)(B). After review of the pleadings, the Court finds
and concludes that all claims must be dismissed.
initially filed a form civil rights complaint with attachment
pages, naming three defendants allegedly then located at the
TDCJ-French Robertson Unit; Warden Webb, Major McQuade, and
Captain Wyatt. (Complaint, (doc. 1) at Style, at 3.) After
review of this pleading, the Court issued an Order directing
Plaintiff to file completed answers to the Court's
questionnaire, which Plaintiff did by filing a Response to
the Questionnaire. (Docs. 5, 7.) Thus, the complaint and
Response to the Court's Questionnaire ("Court
Response") are the pleadings subject to the Court's
complaint, Plaintiff alleges that in April 2015, a fire was
started in Cell 61, resulting in Officers Ortega and Gonzalez
(not defendants) spraying water into Cell 61, and also
"purposely into Cells 59 and 57, resulting in a
"bumrush" of three rows of inmates to the day-room.
(Compl. (doc. 1), at 4.) He recounts that all of the inmates
associated with those cells were locked up and in the
aftermath, he was charged with attempting to set fires and to
assault staff. (Doc. 1, at 4.) He complains that Captain
Wyatt wrote up the disciplinary case against him, and served
as a hearing officer along with Defendant McQuade, where he
was found guilty. (Doc. 1, at 4.) He alleges that Warden Webb
agreed with and supported the finding of guilt in response to
his administrative grievances. Plaintiff seeks to have the
disciplinary case overturned, seeks to have his custody level
reinstated and he seeks monetary damages in the form of
"reimbursement" for costs of this suit and the
"money lost in the attempt to rectify this
situation." (Doc. 1, at 4; Court Response (doc. 7), at
REVIEW UNDER § 1915A and § 1915(e)(2)(B)
noted, as Plaintiff is a prisoner seeking redress from an
officer or employee of a governmental entity, his complaint
is subject to preliminary screening pursuant to 28 U.S.C.
§ 1915 A. See Martin v. Scott, 156 F.3d 578,
579-80 (5th Cir. 1998) (per curiam). Because he is proceeding
in forma pauperis, his complaint is also subject to
screening under § 1915(e)(2). Both § 1915(e)(2)(B)
and § 1915 A(b) provide for sua sponte
dismissal of the complaint, or any portion thereof, if the
Court finds it is frivolous or malicious, if it fails to
state a claim upon which relief may be granted, or if it
seeks monetary relief against a defendant who is immune from
such relief. A complaint is frivolous when it "lacks an
arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim lacks an
arguable basis in law when it is "based on an
indisputably meritless legal theory." Id. at
327. A claim that falls under the rule announced in Heck
v. Humphrey, 512 U.S. 477 (1994), "is legally
frivolous unless the conviction or sentence at issue has been
reversed, expunged, invalidated, or otherwise called into
question." Hamilton v. Lyons, 74 F.3d 99, 102
(5th Cir. 1996). A claim lacks an arguable basis in fact when
it describes "fantastic or delusional scenarios."
Id. at 327-28. A complaint fails to state a claim
upon which relief may be granted when it fails to plead
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). To avoid dismissal
for failure to state a claim, plaintiffs must allege facts
sufficient to "raise the right to relief above the
speculative level." Twombly, 550 U.S. at 555.
Mere "labels and conclusions" nor "a formulaic
recitation of the elements of a cause of action" suffice
to state a claim upon which relief may be granted.
Failure to State a Claim Upon Which Relief May be Granted
Claim under the Eighth Amendment for Cruel and Unusual
order to assert a claim for damages for violation of federal
constitutional rights under 42 U.S.C. § 1983, a
plaintiff must set forth facts in support of the required
elements of a § 1983 action: (1) that he has been
deprived of a right secured by the Constitution or laws of
the United States; and (2) that the defendants deprived him
of such right while acting under color of law. See West
v. Atkins, 487 U.S. 42, 48 (1988)(citing cases);
Resident Council of Allen Parkway Village v. U.S.
Department of Housing and Urban Development, 980 F.2d
1043, 1050 (5th Cir. 1993). Plaintiff alleges that he was
subjected to "cruel and unusual punishment", and
although he does not cite to the Eighth Amendment, the Court
construes this claim as an assertion of a violation of the
Court construes Owens's pleadings as stating two separate
theories of recovery on the allegation of cruel and unusual
punishment under the Eighth Amendment. First, he alleges that
he had to "endure the chemical agents that were used
during the whole fiasco."(Doc. 7, at 4.) Apparently
Owens is referring to his exposure to the chemicals used to
put out the fire on the cell block. Second, Plaintiff asserts
that he had to "endure the punishment of cell, property,
commissary, and recreation restrictions all for something I
didn't do" and as a result he also had his custody
level status reduced.
the first claim of exposure to chemical agents used to put
out the cell fire, the Eighth Amendment to the Constitution
prohibits the infliction of cruel and unusual punishment.
Although the Constitution does not mandate comfortable
prisons, neither does it permit inhumane ones. Farmer v.
Brennan, 511 U.S. 825, 832 (1994)(citing Rhodes v.
Chapman, 452 U.S. 337, 349 (1981)). If conditions for
prisoners are "restrictive and even harsh, they are part
of the penalty that criminal offenders pay for their offenses
against society." Rhodes, 452 U.S. at 347. The
Eighth Amendment imposes a duty on prison officials to
provide humane conditions of confinement. "[P]rison
officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and 'must take
reasonable measures to ensure the safety of
inmates.'" Farmer, 511 U.S. at 832 (quoting
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)(other
citations omitted)). But, "extreme deprivations are
required to make out a conditions-of-confinement claim."
Hudson v. McMillan, 503 U.S. 1, 9 (1992).
"Minor deprivations suffered for short periods of time
will not rise to the level of an Eighth Amendment violation
... ."Jacobs v. Quinonies, No.
1:10-CV-02349-AWI-JLT (PC), 2013 WL 144234, at *7 (E.D. Cal.
Jan. 11, 2003) (citations omitted).
as to the chemical exposure claim, Plaintiff recites exposure
to chemical agents that could have only lasted a brief period
of time. But "a brief, one time exposure to a
disinfectant or other chemical does not amount to an Eighth
Amendment violation where there is no allegation that the
exposure caused harm or pain and no evidence to suggest that
Defendants intended to cause pain." Garland v.
Stanley, et al, No. 1:12-CV-01755-AWI-MJS (PC), 2015 WL
1513635, at *4 (E.D. Cal. March 30, 2015) (citations
omitted), rep. and rec. adopted, (E.D. Cal. July 17,
2015) As Plaintiff recites no more than a brief exposure to
fire retardant chemicals, alleges no physical injury, and
alleges no conduct on the part of any defendant relative to
the use of such chemicals, he has failed to state a claim
under the Eighth Amendment based on the brief exposure to
when asked to detail his claim that he suffered "cruel
and unusual punishment, Plaintiff asserts that he had to
"endure the punishment of cell, property, commissary and
recreation restrictions all for something I didn't
do" and as a result have his custody level status
reduced. (Doc. 7, at 4.) The Eighth Amendment's
prohibition against cruel and unusual punishment requires
prison officials to provide "humane conditions of
confinement, " ensuring that "inmates receive
adequate food, clothing, shelter, and medical care .
..." Farmer v. Brennan,511 U.S. 825, 832
(1994). The Supreme Court has held, however, that "to
the extent prison conditions are restrictive and even harsh,
they are part of the penalty that criminal offenders pay for
their offenses against society." Rhodes v.
Chapman,452 U.S. 337, 346-7 (1981). Owens's claims
challenging his cell, property, commissary, and recreation
privileges, and reduction in class status, do not rise to the
level of "unnecessary and wanton" infliction of
pain. See Althouse v. Cockrell, No.3:01-CV-2291-D,
2002 WL 32170945, at * 3-4 (N.D. Tex. Dec. 17, 2002) (finding
that ten-day cell and commissary restrictions imposed as
disciplinary punishment for failure to report for inmate work
are "limited restrictions" that do "not rise
to the level of 'unnecessary and wanton' inflictions
of pain") (citations omitted); see also Neals v.
Norwood,59 F.3d 530, 533 (5th Cir. 1995) (holding
inmate does not have a constitutional right to receive a
certain custodial classification); Parker v. Currie,
359 F.App'x 488, 490 (5th Cir. 2010) (holding an
inmate's "mere disagreement with a [custodial]