Tawe v. Roesler

          MEMORANDUM ON DISMISSAL

          VANESSA D. GILMORE UNITED STATES DISTRICT JUDGE

         Richard 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 denial of due process; retaliation; and exposure to unsanitary living conditions. Tawe, proceeding pro se and in forma pauperis, sues 45 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.

         The threshold issue is whether Tawe's claims should be dismissed as frivolous.

         I. Tawe's Allegations

         Tawe asserts that there is a slop processor that is 75 feet from the serving line, 130 feet from the diet serving line, and 50 feet from the bakery. The serving line is infested with cockroaches and rats. He alleges that there are rat droppings on the corn bread and bread. Tawe alleges that dirty towels are used to wipe the serving line area and utensils. Tawe states that inmates come to the dining area, collect roaches, and return to their cells to feed their lizards. Tawe complains that the grievance system does not work because his grievances were lost. Tawe seeks unspecified injunctive relief and compensatory damages.

         II. Standard of Review

         A 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. § 1915(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. 1997)).

         III. The Absence of Physical Injury

         The 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. § 1997e(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).

         Absent 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 law.

         IV. The Retaliation Claim

         Liberally construed, Tawe 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. (citations omitted).

         To 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. . . would not have occurred." McDonald, 132 F.3d at 231 (citing Johnson v. Rodriguez, 110 F.3d 299, 310(5thCir. 1997)).

         In reviewing claims of retaliation arising from the context of prison disciplinary charges, the Fifth Circuit has recognized that "[c]laims of retaliation must... be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions." Woods, 60 F.3d at 1166 (citing Adams v. Rice,40 ...