United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
inmate Lee Hamilton, Jr. (TDCJ #1132938) has filed a
Prisoner's Civil Rights Complaint under 42 U.S.C. §
1983 ("Complaint") (Docket Entry No. 1), concerning
the conditions of his confinement at the Estelle Unit in
Huntsville. Because Hamilton is an inmate who proceeds in.
forma pauperis, the court is reguired to scrutinize
the Complaint and dismiss the case if it determines that the
action is "frivolous or malicious;" "fails to
state a claim on which relief may be granted;" or
"seeks monetary relief from a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B);
see also 28 U.S.C. § 1915A. After reviewing all
of the pleadings as reguired, the court concludes that this
case must be dismissed for reasons explained briefly below.
is currently incarcerated by the Texas Department of Criminal
Justice-Correctional Institutions Division ("TDCJ")
at the Estelle Unit in Huntsville. He has filed
this civil rights action under 42 U.S.C. § 1983 against
the following defendants employed by TDCJ at the Estelle Unit
facility: (1) Cason McCune; (2) Officer Teresa Green; (3)
Nurse Brenda Butler; (4) Officer Sandra Major; (5) Major
Bobby Rigsby; and (6) Captain Carlson
Applewhite. In addition to his Complaint, Hamilton has
supplemented the pleadings with several grievances and some
medical records regarding his claims.
primarily takes issue with McCune, who works for TDCJ as a
maintenance technician. Hamilton has reportedly inherited all
of his grandparents' property and the proceeds of an
insurance policy. Hamilton contends that McCune has
"cut into the phone line" when Hamilton makes calls
from the prison unit and that McCune or nursing staff at the
Estelle Unit have also implanted a "device" in
Hamilton's head and lower back for the purpose of
stealing Hamilton's thoughts. Hamilton contends that
McCune in particular is stealing information regarding
Hamilton's family and money. Hamilton alleges that the
other defendants are part of the "conspiracy" to
steal his wealth because they are aware of the problem, but
have done nothing about it.
to medical records provided by Hamilton, he has complained to
health care providers about "listening devices"
that were "put in his ears" while he was at the
Estelle Unit Regional Medical Facility. He alleges that
the devices were implanted to drive him insane or cause his
appears to accuse the defendants of conspiracy to violate
federal criminal law by interrupting his phone calls and
intercepting his thoughts. Hamilton asks the court to
bring federal criminal charges against the defendants and for
the immediate arrest of Cason McCune. He also seeks
a restraining order.
Supreme Court has held that a complaint filed by a litigant
who proceeds in forma pauperis may be dismissed as
frivolous "where it lacks an arguable basis either in
law or in fact." Neitzke v. Williams, 109 S.Ct.
1827, 1831-32 (1989). A claim is factually frivolous
"when the facts alleged rise to the level of the
irrational or the wholly incredible[.]" Denton v.
Hernandez, 112 S.Ct. 1728, 1733 (1992). Included in this
class of claims are those "describing fantastic or
delusional scenarios" and allegations that are
"fanciful" and "clearly baseless."
Id. (citations omitted); see also Harris v.
Heamann, 198 F.3d 153, 156 (5th Cir. 1999) ("A
complaint is factually frivolous when the facts alleged are
fantastic or delusional scenarios or the legal theory upon
which a complaint relies is indisputably meritless.")
(citations and internal quotation marks omitted).
allegation that a device has been covertly implanted in his
head for the purpose of improper surveillance is the sort of
claim that courts routinely dismiss as factually frivolous.
See, e.g., Dodson v. Haley, No.
16-6196, 2017 WL 3224485, at *1 (6th Cir. May 17, 2017)
(dismissing as frivolous a prisoner's claim that
correctional officers installed "eye cameras" and
"thought processing devices" in his body);
Golden v. Coleman, 429 Fed.Appx. 73, 74 (3d Cir.
2011) (dismissing as frivolous a prisoner's claim that
prison employees implanted "Government Micro Eye
Cameras" in his food, which then attached to the
"visual cortex" in his brain and sent images to a
computer for broadcast on "prison television");
Manco v. Does, 363 Fed.Appx. 572, 575 (10th Cir.
2010 (dismissing as frivolous the plaintiff's claim that
prison officials implanted a tracking device in his jaw to
"monitor his thoughts and send him inaudible, profane
messages"); Johnson v. Drug Enforcement Agency,
137 Fed.Appx. 680 (5th Cir. 2005) (dismissing as frivolous
plaintiff s allegation that the DEA implanted a transmitter
in his scalp); Patterson v. UHC Hospital of
Lafayette, Civil No. 6:17-1383, 2017 WL 6811709, at *3
(W.D. La. Oct. 31, 2017) (dismissing the plaintiff's
allegation that doctors implanted a microchip device in his
body during an "illegal surgery" as "so
delusional as to warrant dismissal as frivolous")
addition, it is well established that there is no
"constitutional right to have someone criminally
prosecuted" or investigated and "no private right
of action to bring criminal charges." Back v. Texas
Pep't of Criminal Justice Correctional Institutions
Piv.. 716 Fed.Appx. 255, 259 (5th Cir. 2017) (citing
Gill v. Texas, 153 Fed.Appx. 261, 262 (5th Cir.
2005); Oliver v. Collins, 904 F.2d 278, 281 (5th
Cir. 1990)); see also Linda R.S. v. Richard P., 93
S.Ct. 1146, 1149 (1973) (holding that "a private citizen
lacks a judicially cognizable interest in the prosecution or
nonprosecution of another"); Sattler v.
Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (rejecting an
equal protection claim under § 1983 because neither a
member of the public at large nor the victim has a right to
have another criminally prosecuted). Private citizens are
thus not entitled to an order requiring the arrest or
prosecution of wrongdoers. Pel Marcelle v. Brown County
Corp., 680 F.3d 887, 901-02 (7th Cir. 2012)
(Easterbrook, C.J., concurring) (citations omitted).
Accordingly, this civil action will be dismissed pursuant to
28 U.S.C. § 1915(e) (2) (B) as frivolous.
Conclusion and Order
the court O ...