United States District Court, S.D. Texas, Houston Division
MEMORANDUM ON DISMISSAL
VANESSA D. GILMORE UNITED STATES DISTRICT JUDGE
Tobias, an inmate of the Texas Department of Criminal Justice
- Correctional Institutions Division, sued in June 2017,
alleging civil rights violations resulting from a denial of
adequate medical care; denial of access to the courts; and
denial of due process. Tobias, proceeding pro se and in forma
pauperis, sues Jennifer Brown; S. Schumacher; Major R. Pena;
S. Mitchell; A. Mukolu; K. Beck; and John Doe Simmon.
threshold issue is whether Tobias's claims should be
dismissed as frivolous.
11, 2015, Tobias was transported from Bexar County Holding
Center to the South Texas Intermediate Sanction Facility
("ISF"). Tobias informed ISF personnel of his
various health conditions which required daily medications.
Tcbias states that he suffers from congestive heart failure,
complications relating to by-pass heart surgery, high blood
pressure, Type II diabetes, and back injuries. Tobias
complains that he arrived at the ISF on May 11, 2015, but he
did not receive any medications for three days.
13, 2015, Tobias informed Lieutenant Lovinggood that he had
not received any medications. Lieutenant Lovinggood escorted
Tobias to the infirmary where Tobias received some
16, 2015, Tobias requested to be placed on a special diet
because he is diabetic. Tobias explains that members of the
prison gang, Aryan Brotherhood, were responsible for
distributing the food trays. The diet trays were stored on
separate food carts. Tobias explains that he was placed on a
special diet, but his food was tainted with spit and paint
particles. He asked to be removed from the diet because
prison officials were tampering with his food tray. Tobias
asserts that despite being taken off of the special diet,
Tobias was inexplicably placed on the diabetic diet list.
states that on May 17, 2015, he was denied access to the
courts because K. Beck denied him paper, pens, and postage.
(Docket Entry No. 10, Plaintiffs More Definite Statement, p.
20). Tobias states that he had to wait until May 25, 2015,
when his living area was again allowed to make purchases from
the commissary. He alsc complains that he was denied access
to the law library, so he was unable to pursue his appeal of
his conviction, research a landlord-tenant issue, and
challenge a parole revocation hearing. He further asserts
that he was not allowed to purchase basic hygiene items.
Though Tobias requested to be taken off the diabetic diet, he
was placed on the diabetic diet on May 27, 2015.
states that he was removed from the special diet list on June
8, 2015, and placed back on the list on June 9, 2015. When
Tobias showed the tray that was tainted with paint chips,
Tobias states he was labeled as a snitch. Tobias states that
on June 9, 2015, he accused a white inmate of tampering with
his food. Tobias asserts that the white inmate assaulted him.
Following the assault, Tobias was transported to Ben Taub
Hospital where he received treatment for his broken nose and
skull fractures and prescribed pain medications. Upon his
return to ISF, John Doe Simmon failed to issue the
medications prescribed by Ben Taub Hospital. Tobias further
complains that Nurse Simmon refused to issue a change of
clothing, refused to clean off the dried blood, and forced
Tobias to wear a bloody hospital gown. Tobias complains that
S. Schumacher denied Tobias prescribed pain medications.
Tobias asserts that he tried to inform Warden Brown of the
problems he was having regarding medications.
claims that on June 10, 2015, Major R. Pena told Tobias that
he had instructed an inmate to assault Tobias. Tobias alleges
that Majo Pena subjected Tobias to racial slurs by saying,
"I'm a white boy, and you got beat down by a white
boy." (Docket Entry No. 10, Plaintiffs More Definite
Statement, p. 2). Tobias asserts that the defendants
conspired to have Tobias assaulted.
11, 2015, Tobias was scheduled for a follow-up appointment
for oral surgery at Ben Taub Hospital. Tobias states that he
was released on parole and told to report to the San Antonio
parole office, or he would be charged with a parole
violation. Tobias states that he was forced to choose between
seeking treatment at Ben Taub Hospital or receiving a parole
complains that A. Mukulu, the grievance coordinator, denied
Tobias access to the grievance system. Tobias complains that
he was unable to obtain a Step One Grievance form.
seeks compensatory damages of $800, 000.00 and punitive
damages of $200, 000.00.
Standard of Review
U.S.C. § 1915 instructs that a court "sha 1"
dismiss an in forma pauperis complaint at any time, if it
determines that the complaint is frivolous or it fails to
state a claim on which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(i)-(ii) (2018). Further, the Court may
sua sponte dismiss on these grounds, even without serving the
defendants. See Wilson v. Barrientos, 926 F.2d 480,
482 (5th Cir. 1991) ("Dismissal [under § 1915] is
'often made sua sponte prior to the issuance of process,
so as to spare prospective defendants the inconvenience and
expense of answering such complaints.'") (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). The
standard under § 1915(e)(2)(B) for dismissing a
frivolous complaint applies to both prisoner and non-prisoner
complaints. See Newsome v. EEOC, 301 F.3d 227,
231-33 (5th Cir. 2002) (per curiam) (affirming dismissal
based on § 1915(e)(2)(B) in a non-prisoner case).
complaint... is frivolous where it lacks an arguable basis
either in law or in fact." Neitzke, 490 U.S. at
325. "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." Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999) (quoting Harper v.
Showers, 174 F.3d 716, 718 (5th Cir. 1999)). A claim is
factually frivolous if the facts are "clearly baseless,
a category encompassing allegations that are
'fanciful,' 'fantastic,' and
'delusional.'" Hicks v. Garner, 69 F.3d
22, 25 (5th Cir. 1995) (quoting Denton v. Hernandez,
504 U.S. 25, 32-33 (1992)).
determine whether a complaint fails to state a claim upon
which relief may be granted, courts engage in the same
analysis as when ruling on a motion for dismissal under
Federal Rule of Civil Procedure 12(b)(6). See Hale v.
King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam). To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain "sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A
claim has facial plausibility wiien the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. (citation omitted). To meet this
pleading standard, the complaint must state more than
"an unadorned, the-defendant-unlawfully-harmed-me
accusation." Id. (citation omitted).
"Factual allegations must be enough to raise a right to
relief above the speculative level... on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact)." Bell Ail. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citations omitted).
proceeds pro se in this case. Courts construe pleadings filed
by pro se litigants under a less stringent standard of
review. Haines v. Kerner, 404 U.S. 519 (1972) (per
curiam). Under this standard, "[a] document filed pro se
is 'to be liberally construed,' Estelle [v.
Gamble, 429 U.S. 97, 106 (1976)], and 'a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.'" Erickson v. Pardus, 551 U.S. 89,
analyzing a pro se plaintiffs complaint, the Court may
consider reliable evidence such as the plaintiffs
allegations, responses to a questionnaire, and authenticated
records. See Wilson v. Barrientos, 926 F.2d 480,
483-84 (5th Cir. 1991); see also Berry v. Brady, 192
F.3d 504, 507 (5th Cir. 1999) (noting responses given to a
questionnaire are incorporated into the plaintiff s
pleadings); Banuelos v. McFarland, 1 F.3d 232');">41 F.3d 232, 234
(5th Cir. 1995) (holding that courts may dismiss
prisoners' in forma pauperis claims as frivolous based or
"medical or other prison records if they are adequately
identified and authenticated").
evaluating the sufficiency of a complaint, courts accept
well-pleaded factual allegations as true, but do not credit
conclusory allegations or assertions that merely restate the
legal elements of a claim. Chhim v. Univ. of Tex. at
Austin, 836 F.3d 467, 469 (5th Cir. 2016). And while
courts hold pro se plaintiffs to a more lenient standard than
lawyers when analyzing complaints, such plaintiffs must
nevertheless plead factual allegations that raise the right
to relief above a speculative level. Id. (citing
Taylor v. Books A Million, Inc., 296 F.3d 376, 378
(5th Cir. 2002)).