Briseno v. Thaler et al

Filing 9

ORDER OF DISMISSAL: adopting re: 7 Report and Recommendation. It is therefore ordered that Complaint is dismissed with prejudice as frivolous, as frivolous until the Heck conditions have been met, and for failure to state a claim on which relief can be granted. Let Judgment be entered accordingly. (Ordered by Judge Mary Lou Robinson on 10/31/2012) (egb)

IN THE I.INITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
ROBERTO BRISENO, PRO SE,
also known as ANTONIO SOLIS,
TDCJ-CID No.922092,

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Plaintiff,

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2:12-CY-02r1

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RICK THALER ET AL.,

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Defendants.

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ORDER OF DISMISSAL
Plaintiff ROBERTO BRISENO, while

a

prisoner confined in the Texas Department of

Criminal Justice, Correctional Institutions Division, filed suit pursuant to Title 42,IJnited States
Code, section 1983 complaining against various defendants employed by or otherwise associated

with the Texas Department of Criminal Justice and has been granted permission to proceed informa
pauperis.
On October 9,2012, a Report and Recommendation was issued by the United States

Magistrate Judge analyzingplaintiff s complaint and recommending dismissal with prejudice as

frivolous, as frivolous until the Heck conditions have been met, and for failure to state a claim on
which relief can be granted.

Plaintiff filed

a pleading entitled

"Motion for Reconsideration, on October 26,2012, which

the Court construes to be his objections. By his objections, plaintiff states another inmate filed all
the paperwork connected with this suit and all plaintiff did was sign the papers. Plaintiff is reminded
that he signed the complaint under penalty of perjury and plaintiff is responsible for reading each
statement contained in his complaint and signing it only
he wants

it. Plaintiff is also responsible for any other

if everything in it

is truthful and exactly as

document he signs which is filed in this Court.

Having another inmate prepare those documents does not relieve plaintiff of his responsibility or

allow him to shift it to the shoulders of someone else.

Plaintiff states that, if the Court's analysis of his claims against defendants BERGER and
GING are correct, he wishes to dismiss his claims against them. Plaintiff also states that he is suing
defendant THALER for injunctive relief and monetary damages and that

"[i]f

the Honorable Honor

disagrees to this then, Plaintiff wishes to dismiss defendant Rick Thaller [sic] from lawsuit."

Plaintiff goes on to say he is not suing for return of his lost goodtime or to have disciplinary case
overturned. The remaining defendants would be the FULLER, the disciplinary hearing officer, and

VICK, whom plaintiff

says

utilized unnecessary and excessive force.

The relief plaintiff requests is monetary relief and injunctive relief forbidding TDCJ from

finding inmates guilty based solely on the verbal and written testimony of the officers. An award of
monetary relief against defendant VICK would inevitably cast into doubt the validity of

plaintiff

s

disciplinary hearing and its result and falls squarely within the ambit of Edwards v. Balisock. 520

u.s. 641, I 17 S.Ct. 1584, 1589, t37 L.8d.2d906 (1997).
As to plaintiff s request for injunctive relief forbidding TDCJ from finding inmates guilty
based solely upon the verbal and written testimony of officers,

it is settled law that federal courts do

not review the sufficiency of evidence at a disciplinary hearing, and sufficient support for a finding

of guilt is provided by "some facts" or "any evidence at all." Gibbs v. King,779 F.2d 1040, 1044
(5th Cir. 1986), cert. denied,476 U.S. 1117,106 S.Ct. 1975, 90 L.Ed.2d 659 (1986); Smithv.

Rabalais,659F.2d539,545 (5th Cir. 1981), cert. denied,455 U.S.992,102 S.Ct. l619,7IL.Ed.zd
853 (1982). Plaintiff s claim in this respect lacks an arguable basis in law and is frivolous. Neitzke

v. Williams,490 U.S. 319, 109 S.Ct. 1827, 104 L,Ed.2d 338 (1989).

The Court has made an independent examination of the records in this case and has examined
the Magistrate Judge's Report and Recommendation, as well as the objections filed by the plaintiff,

The Court is of the opinion that plaintifls objections should be OVERRULED and the
Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the
United States District Court, as supplemented herein
This Court, therefore, does OVERRULE plaintiff s objections, and does hereby ADOPT the
Report and Recommendation of the United States Magistrate Judge, as supplemented herein

IT IS THEREFORE ORDERED that the Civil Rights Complaint by ROBERTO BRISENO is
DISMISSED WITH PREJUDICE AS FRIVOLOUS, AS FRIVOLOUS UNTIL TTfE HECK
CONDITIONS HAVE BEEN MET, AND FOR FAILURE TO STATE A CLAIM ON WHICH
RELIEF CAN BE GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Any pending motions are DENIED.
The Clerk shall send a copy of this order to plaintiff and to any attorney of record. The Clerk
shall also mail copies of this order to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin,

TX

787 | 1; and to the Pro Se Clerk at the U.S.

District Court for the Eastern District of Texas. Tvler

Division.

It is SO ORDERED.
Signed this the

ti/Z*r*

MARY LO

2012.

SON