United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN
CLAIMS AND TO RETAIN CASE
B. LIBBY UNITED STATES MAGISTRATE JUDGE
Alfonzo Wallace is a Texas inmate appearing pro se
and in forma pauperis. He filed this prisoner civil
rights action pursuant to 42 U.S.C. § 1983.
Plaintiff's case is subject to screening pursuant to the
Prison Litigation Reform Act. See 42 U.S.C. §
1997e(c); 28 U.S.C. §§1915(e)(2), 1915A. For
purposes of screening, Plaintiff has stated an Eighth
Amendment claim for injunctive relief against
Assistant Warden Corey Furr as the party
able to provide the injunctive relief should Plaintiff
prevail. The undersigned will order service on this
undersigned further recommends that Plaintiff's remaining
claims for injunctive relief against all other defendants be
DISMISSED for failure to state a claim
and/or as frivolous pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1) for the reasons set forth
Court has federal question jurisdiction pursuant to 28 U.S.C.
§ 1331. This case has been referred to the undersigned
magistrate judge for case management and making
recommendations on dispositive motions pursuant to 28 U.S.C.
PROCEDURAL BACKGROUND AND PLAINTIFF'S
is a prisoner in the Texas Department of Criminal Justice,
Criminal Institutions Division (TDCJ-CID). Plaintiff is
serving life sentences on each of his four aggravated robbery
convictions out of Dallas County, Texas. He was sentenced on
three convictions on December 18, 1995 and the fourth
conviction on March 1, 1996. Plaintiff's claims in this
lawsuit occurred in connection with his current assignment to
the McConnell Unit in Beeville, Texas.
January 10, 2018, Plaintiff filed his original complaint,
naming the following McConnell Unit and TDCJ officials as
defendants: (1) Corey Furr, Assistant Warden; (2) Warden
Sufuentes, Warden; (3) Fernandez, Assistant Warden; (4) P.
Chapa, TDCJ Assistant Regional Director; and (5) Lorie Davis,
TDCJ Director. Plaintiff alleges that Defendants were
deliberately indifferent to his health and safety by changing
the operating policy to require a necessities exchange at
3:30 a.m., thereby interfering in Plaintiff's ability to
sleep. Plaintiff seeks injunctive relief in the form of
implementing a new policy that allows for six to eight hours
of uninterrupted sleep.
Spears hearing was conducted on March 23, 2018.
The following representations were made either at the
Spears hearing or in Plaintiff's original
complaint (D.E. 1): Plaintiff arrived at the McConnell Unit
in April 1998 and has been housed there since that time.
Plaintiff is a 49 year old male and is 6'2” tall.
He currently weighs 198 pounds, which is down from his
typical weight of 215 pounds. Plaintiff testified that his
overall health has been declining. In addition to his weight
issues, Plaintiff suffers from headaches, chest pains, bowel
issues, and foot problems. Plaintiff, who has been diagnosed
with Hepatitis C, describes his liver as aching.
to Plaintiff, Defendants have implemented a policy that
forces him to choose between getting either sleep or clean
clothes. Under the policy, Plaintiff must awaken before 3:00
a.m. four days a week to attend the necessities exchange,
which consists of getting new clothes or sheets. Plaintiff is
then required to go to the dining facility for breakfast and
return to his cell by 5:00 a.m. for a head count. On many
days, Plaintiff must leave his cell around 7:00 a.m. for work
in which he cleans showers around the unit. Plaintiff
typically completes his morning shift by noon or 1:00 p.m.
Plaintiff sometimes is required to work the night shift,
which begins at 10:00 p.m. and ends around 3:00 a.m. Other
than work, Plaintiff spends time both in the law library and
believes that the time for the necessities exchange was
changed from the early afternoon to 3:30 a.m. to punish
prisoners and keep them sleep deprived. According to
Plaintiff, the change in policy took place over ten years
ago. Plaintiff states that he is able to sleep uninterrupted
only for about three to four hours per night. He requests at
least six or seven hours of uninterrupted sleep per night.
Plaintiff believes that Assistant Warden Furr has the
authority to make the policy change at the McConnell Unit to
allow him to sleep uninterrupted for his requested time.
has been told by his doctor that his lack of sufficient sleep
has exacerbated his liver issues and caused other health
concerns. Plaintiff testified that the combination of sleep
deprivation and his prescribed medications has caused him to
have body aches and to use the bathroom more frequently than
would otherwise be normal.
prisoner seeks to proceed in forma pauperis the
Court shall evaluate the complaint and dismiss it without
service of process if the Court finds the complaint
frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A. See 28 U.S.C. § 1915(e)(2)(B) (providing
that a court shall review an in forma pauperis
complaint as soon as practicable and dismiss it if it is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from an
immune defendant). A claim is frivolous if it has no arguable
basis in law or fact. Neitzke v. Williams, 490 U.S.
319 (1989). A claim has no 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 ...