Jackson v. Boland et al

Filing 23

ORDER OF PARTIAL DISMISSAL: re: adopting 15 Report and Recommendation. Claims against defendant Gregory S. David are dismissed without prejudice for failure to state a claim on which relief can be granted and with prejudice as frivolous. (Ordered by Judge Mary Lou Robinson on 1/14/2013) (egb)

IN THE TINITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

REIDIE JACKSON, PRO SE,
TDCJ-CID No. 1164177,
Previous TDCJ-CID No. 795456,
Previous TDCJ-CID No. 874760,
JERMAINE LANDRUM,
TDCJ-CID No. 140331I

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Plaintiffs.

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2:12-CV-0212

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GREGORY BOLAND,
MANUEL FRESCAS, And
GREGORY S. DAVID.

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Defendants.

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ORDER OF PARTIAL DISMISSAL
The instant cause was originally filed as Case No. 100851-A in the 47'h Judicial District
Court of Potter County, Texas on August 30,2012 and was removed to the United States District
Court for the Northern District of Texas, Amarillo Division, on October 8,2012, by defendants

BOLAND and FRESCAS, where it was filed under the above-stated style and cause number.
Plaintiff REIDIE JACKSON, acting pro

se and

while a prisoner confined in the Texas

Department of Criminal Justice, Correctional Institutions Division, filed suit pursuant to Trtle 42,

United States Code, sections 1983, 1985(3), and 1986 complaining against the above-named
defendants. The filing fee was paid by the defendants upon removal.
On December 14,2012, a Report and Recommendation was issued by the United States

Magistrate Judge recommending plaintiff s claims against defendant DAVID be dismissed without
prejudice for failure to state a claim on which relief can be granted and with prejudice as frivolous.

On December 26,2012, plaintiff filed a document entitled "second Amended Complaint"

which, by his January 10,2013 Response, he has elected to have treated as his Objections to the
Report and Recommendation. By his Objections, plaintiff alleges defendant DAVID was
presumably the warden who gave directions and enforced policies on the High Security Area where

plaintiff was housed. He states defendant DAVID enforced the policy or custom that prevented
inmates from giving sick call requests directly to medical personnel.

Plaintiff goes on to allege that all the defendants had a'omutual understanding" and a
common goal of deliberately, intentionally, or recklessly endangering plaintiff s present and future

health. Plaintiff says defendant DAVID, after receiving notice of the altercation between plaintiff
and defendant FRESCAS, "refus[ed] to instruct a subordinate [to] have medical engage treatment

policy."
While plaintiff ascribes a'omutual understanding" and "common goal" to the defendants, he
does not present any allegation of material fact to support the

implicit claim of conspiracy.

Conclusory allegations lacking reference to material facts are not sufficient to state a claim of
conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884

denied,493 U.S. 1083, 110 S.Ct.

ll4l,

F.2d22l (5th Cir.

1989), cert.

107 L.Ed.2d 1046 (1990).

As to his allegation that DAVID, after receiving notice of the February 25,2012 altercation
between plaintiff and defendant FRESCAS, "refus[ed] to instruct a subordinate [to] have medical
engage treatment policy," the only notice

plaintiff s complaint indicates went to DAVID was that

contained in plaintiff s April 27,2012 Step

I

Grievance No. 2012160993, by which

plaintiff

requested a unit transfer. Although plaintiff alluded to an attempt by the other defendants to coverup the incident by denying him medical treatment, plaintiff does not actually request medical
treatment or indicate he needs any at that time. Moreover, defendant

DAVID merely investigated

and resolved the grievance. As set forth in the Magistrate Judge's Report and Recommendation, the

narrowing of prisoner due process protection announced in Sandin v. Conner,sl5 U.S. 472,
S.Ct. 2293, 132 L.Ed.2d

4IS(I

ll5

995), leaves plaintiff without a federally-protected right to have his

grievances investigated and resolved. Any right of that nature is grounded in state law or regulation
and the mere failure of an

official to follow state law or regulation, without more, does not violate

constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corcections,

gll

F.2d I 167, I 168

(5th Cir. 1990); Rqmirez v. Ahn, 843 F .2d 864, 867 (5th Cir.), cert. denied,489 U.S. 1085, 109 S.Ct.
1545, 103 L.Ed.2d 849 (1989); Bakerv. McCollan,433 U.S. 137, 146-47,99 S.Ct. 2689,2695-

2696,61L.Ed.zd 433 (1979). Moreover, plaintifPs claim in this respect is, at most, that defendant
DAVID was negligent in the investigation and resolution of plaintiff s grievance. Plaintiff
1983 claim against defendant

Neitzke

DAVID on this basis lacks

r. Witlio*t490 U.S. 319,

s section

an arguable basis in law and is frivolous,

109 S.Ct. 1827, 104L.8d.2d338 (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 the objections of the plaintiff 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 plaintiff s Civil Rights Claims filed pursuant to Title
42,United States Code, sections 1983, 1985(3) and 1986 by plaintiff REIDIE JACKSON against
dEfENdANt GREGORY S.

DAVID

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DISMISSED WITHOUT PREJUDICE FOR FAILURE TO

STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED AND WITH PREJUDICE AS

FRIVOLOUS.
LET JUDGMENT BE ENTERED ACCORDINGLY.
The Clerk shall send a copy of this order to plaintiff and to any attorney of record.

The Clerk shall also provide a copy of this order by regular mail, facsimile transmission, or
e-mail to:

(l)

the

TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, Texas, 787Il,Fax

Number (512) 9362159; (2) the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629,

fax:[phone]; and (3) the District Clerk for the Eastern District of Texas, Tyler Division, 2l I
West Ferguson, Tyler, Texas, 75702, Attention: Manager of the Three-Strikes List.

It is SO ORDERED.
Signed this the

day of January,2013.

MARY LOU R
N
United States Didtrict Judse

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