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Black v. Graham

United States District Court, N.D. Texas, Amarillo Division

March 4, 2019

WARREN EDWARD BLACK, Plaintiff,
v.
MARLIN GRAHAM, Defendant.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS CIVIL RIGHTS COMPLAINT

          LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff WARREN EDWARD BLACK, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice (“TDCJ”), Correctional Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis. Although plaintiff has now been released from state custody, his claims concern the conditions of confinement during his incarceration. For the following reasons, plaintiff's civil rights complaint should be DISMISSED.

         I.

         JUDICIAL REVIEW

         When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous[1], 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; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991).[2] A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

         This matter has been referred to the undersigned for review, report and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court. The undersigned magistrate judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.

         II.

         PLAINTIFF'S CLAIMS

         Plaintiff sues a TDCJ guard, Marlin Graham, for threatening plaintiff with disciplinary cases and for his use of racial slurs. In one specific incident on April 18, 2016, plaintiff indicates Graham clenched his hands into fists and leaned over him to growl in his ear. [ECF 3, at p. 6]. Plaintiff claims he filed grievances against Graham following this incident. The Step 1 grievance on this issue was received by TDCJ on April 22, 2016. [ECF 3, at p. 7]. The Step 2 grievance was received by TDCJ on May 12, 2016. [ECF 3, at p. 9]. Plaintiff alleges he was removed from his prison employment position on May 12, 2016 and was then transferred off the Neal Unit to another unit on May 13, 2016. Plaintiff alleges this was done in retaliation for filing a grievance against Graham. Plaintiff does not allege Graham was in charge of his housing or unit assignment while incarcerated.

         Plaintiff seeks $250, 000 in compensatory damages and $250, 000 in punitive damages.

         Plaintiff additionally seeks declaratory relief.

         III.

         THE LAW AND ANALYSIS

         Plaintiff alleges that he experiences retaliation, disrespectful treatment, harassment, and discrimination while housed at the Neal Unit of TDCJ at the hand of TDCJ guard Graham. To state a claim ...


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