United States District Court, S.D. Texas, Houston Division
RICHARD N. TAWE, (TDCJ-CID #1596960) Plaintiff,
MICHAEL A. ROESLER, et ah, 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 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.
threshold issue is whether Tawe's claims should be
dismissed as frivolous.
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.
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. § 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.
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. § 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).
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
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).
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,
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 ...