United States District Court, S.D. Texas, Houston Division
RICHARD N. TAWE, TDCJ-CID #1596960 Plaintiff,
MICHAEL A. ROESLER, et al, Defendants.
MEMORANDUM ON DISMISSAL
VANESSA D. GILMORE UNITED STATES DISTRICT JUDGE.
N. Tawe, an inmate of the Texas Department of Criminal
Justice - Correctional Institutions Division, sued on
November 6, 2017, alleging civil rights violations resulting
from a violation of privacy; a denial of due process;
retaliation; and exposure to unsanitary living conditions.
Tawe, proceeding pro se and in forma pauperis, sues 120
prison officials at the Ellis Unit. Court records show that
this lawsuit is one of nine federal lawsuits Tawe filed
against Ellis Unit officers in 2017, each lawsuit naming
between 10 and 120 officers.
threshold issue is whether Tawe's claims should be
dismissed as frivolous.
complains that female officers are present in the shower area
when male prisoners are showering. He explains that inmates
who work in the field place their boots that have been in
contact with animal excrement, on shelves. Tawe complains
that inmates must place their clean clothing on these same
dirty shelves in the shower area. He asserts that prison
officials fail to use a sufficient amount of detergent to
wash clothes properly.
complains that the grievance system does not work. He alleges
that laundry officers denied him a blanket in retaliation for
his filing of a grievance. Tawe seeks an injunction
preventing the defendants from implementing policies that
violate his civil rights. He further seeks unspecified
Standard of Review
federal court has the authority to dismiss an action in which
the plaintiff is proceeding in forma pauperis before service
if the court determines that the action is frivolous or
malicious. 28 U.S.C. § l9l5(e)(2)(B)(i). A complaint is
frivolous if it lacks an arguable basis in law or fact.
See Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir.
2001) (citing Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997)). "A complaint lacks an arguable basis
in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation of a
legal interest which clearly does not exist." Davis
v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.
The Absence of Physical Injury
PLRA prohibits recovery of damages by prisoners in cases that
do not involve physical injury. The PLRA expressly provides
that "[n]o Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury." 42
U.S.C. § l997e(e). To the extent that Tawe's claims
are based on mental or emotional harm, his request for
compensatory damages must be dismissed for failure to state a
claim upon which relief may be granted. See Geiger v.
Jowers, 404 F.3d 371, 375 (5th Cir. 2005) (holding that
a prisoner's failure to allege physical injury precludes
his recovery of compensatory damages for emotional or mental
injuries pursuant to 42 U.S.C. § 1997e(e)). The Fifth
Circuit has held that allegations of "mental anguish,
emotional distress, psychological harm, and insomnia"
are barred by § 1997e(e). See Geiger v. Jowers,
404 F.3d 371, 374 (5th Cir. 2005).
an allegation that Tawe suffered a physical injury in
connection with the complained-of condition of confinement,
his claim for compensatory damages lacks an arguable basis in
The Retaliation Claim
alleges that prison officials retaliated against him for
filing grievances. The Fifth Circuit has held that prison
officials are prohibited from retaliating against inmates who
exercise the right of access to the courts, or who complain
of prison conditions or about official misconduct. Woods
v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995) (citations
omitted). When a prisoner claims that officials retaliated
against him by issuing a false disciplinary report, favorable
termination of the underlying disciplinary charge is not a
prerequisite for bringing the claim. Woods, 60 F.3d
at 1164. The concern is whether there was retaliation for the
exercise of a constitutional right, separate and apart from
the apparent validity of the underlying disciplinary report.
Id. at 1164-1165. "An action motivated by
retaliation for the exercise of a constitutionally protected
right is actionable, even if the act, when taken for a
different reason, might have been legitimate."
Id. at 1165 (citations omitted). In addition,
proceedings that are not otherwise constitutionally deficient
may be invalidated by retaliatory animus. Id.
prevail on a claim of retaliation, a prisoner must establish
the following: (1) the exercise of a specific constitutional
right; (2) the defendant's intent to retaliate against
the prisoner for his or her exercise of that right; (3) a
retaliatory adverse act; and (4) causation. Jones v.
Greninger,188 F.3d 322, 324-25 (5th Cir. 1999) (citing
McDonald v. Steward,132 F.2d 225, 231 (5th Cir.
1998)). Causation requires a showing that "but for the
retaliatory motive, the complained of incident. ...