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Wallace v. Furr

United States District Court, S.D. Texas, Corpus Christi Division

April 9, 2018

ALFONZO WALLACE, Plaintiff,
v.
COREY FURR, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN CLAIMS AND TO RETAIN CASE

          JASON B. LIBBY UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 defendant.

         The 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 below.

         I. JURISDICTION

         The 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. § 636.

         II. PROCEDURAL BACKGROUND AND PLAINTIFF'S ALLEGATIONS

         Plaintiff 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.

         On 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.

         A Spears[1] 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.

         According 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 recreation areas.

         Plaintiff 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.

         Plaintiff 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.

         III. LEGAL STANDARD

         When a 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 ...


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