Thieleman v. Thaler et al

Filing 16

MEMORANDUM AND ORDER OF DISMISSAL.(Signed by Judge Kenneth M. Hoyt) Parties notified.(ccarnew, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ROGER MERRITT THIELEMAN,
Plaintiff,
VS.
RICK THALER, et al,
Defendants.

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CIVIL ACTION NO. G-11-439

MEMORANDUM AND ORDER OF DISMISSAL
Roger Thieleman (TDCJ # 1153979), an inmate at the French Robertson Unit, has filed a
complaint under 42 U.S.C. § 1983, alleging a failure to protect by Defendants Rick Thaler,
Director of the Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID),
and Joni White, Director of Inmate Classification in Huntsville, Texas. The plaintiff has filed a
more definite statement of facts. Based on the pleadings, the Court will dismiss this case for
reasons that follow.
When a plaintiff seeks to proceed in forma pauperis, pursuant to 28 U.S.C. §1915(a), the
court may dismiss the pauper's case if satisfied that it is frivolous or malicious. 28 U.S.C.
§1915(e)(2). A case may be dismissed for being frivolous if the claim has no realistic chance of
ultimate success, or has no arguable basis in law and fact. See Pugh v. Parish of St. Tammany,
875 F.2d 436, 438 (5th Cir. 1989); Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). The
determination whether an action is frivolous or malicious may be made prior to service of
process; therefore, such claims are dismissible sua sponte prior to service under 28 U.S.C. §
1915 (e)(2). Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990).

A plaintiff proceeding pursuant to

section 1983 must show that he has been deprived of a right secured by the Constitution and laws
of the United States, and that the deprivation was caused by a person acting under color of state

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law. See e.g., Thorne v. Jones, 765 F.2d 1270 (5th Cir. 1985), cert. denied, 475 U.S. 1016
(1986).

In this case, the plaintiff alleges that his civil rights were violated during his

incarceration at the Ramsey I unit in June 2011. In his protracted, barely legible complaint and
more definite statement, the plaintiff, who is a known gang member, alleges that prison officials
at the Ramsey I unit ignored his pleas for protective custody and he feared for his life.
Specifically, he states that an O.P.I. investigation regarding his requests for protection was never
opened; he was tricked into meeting with law enforcement in front of other inmates; he was
denied his right to refuse an interview by “law enforcement”; he was placed in transit status
despite his objections; and, he was “exposed” to his enemies, specifically, inmate Ortiz, when he
was escorted to transit in handcuffs.
The plaintiff did not include a copy of his Step 1 grievance. The response to his Step 2
grievance regarding his life endangerment concern states: “Administration was made aware of
your complaint. The State Classification Committee has approved placement of offender Ortiz,
J., on your enemy list. Additionally, upon completion of the Gang Renouncement Dissociation
Process (GRAD), you will be housed separately to ensure the safety and security of the
institution. No further action warranted.” (Doc. No. 10).
The Eighth Amendment proscription against cruel and unusual punishment requires
prison officials to protect inmates from violent attacks by other inmates. Farmer v. Brennan,
511 U.S. 825, 833 (1994).

In order for prison officials to be held liable under the Eighth

Amendment for deliberate indifference to an inmate’s health or safety, including protecting him
from harm by another inmate, a plaintiff must prove that (1) the official knew of and disregarded
an excessive risk to inmate health or safety; (2) was aware of facts from which the inference
could be drawn that a substantial risk of serious harm existed and also drew the inference; and

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(3) failed to take reasonable remedial action. Id. at 842-45. Liability for an Eighth Amendment
deprivation requires the same delinquency in denial of protection against harm from other
inmates as it does for denial of medical care, Johnson v. Lucas, 786 F.2d 1254, 1259 (5th Cir.
1986); thus, there must be an allegation of facts which will support deliberate indifference on the
part of officials. Wilson v. Seiter, 510 U.S. 294 (1991). “[A]n official’s failure to alleviate a
significant risk that he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as infliction of punishment.” Farmer, 511 U.S. at 826.
Furthermore, the mere negligent failure to protect a prisoner from assault does not comprise a
constitutional violation unless it becomes pervasive. See Davidson v. Cannon, 474 U.S. 344,
347-48 (1986); Oliver v. Colins, 914 F.2d 56, 60 (5th Cir. 1990).
The plaintiff’s allegations do not support a claim that any prison official was deliberately
indifferent to his health or safety. His life endangerment concerns were appropriately addressed.
Although he feared for his life, the plaintiff states that his fears span a 20-year time period in
numerous prison units; moreover, he suffered no harm during his “brief time” at the Ramsey I
unit between February 2011 and October 2011.
Under the Prison Litigation Reform Act (PLRA), prisoners filing suit must demonstrate a
physical injury to sustain a claim for damages. 42 U.S.C. § 1997e(e); Harper v. Showers, 174
F.3d 716, 719 n. 5 (5th Cir. 1999). Section 1997e(e) states: “No federal civil action may be
brought by a prisoner ... for mental or emotional injury suffered while in custody without a prior
showing of physical injury.” 42 U.S.C. § 1997e(e). Courts have strictly construed the physical
injury requirement, precluding claims by prisoners who demonstrate only mental or emotional
injury and barring physical injury claims where the injury alleged is de minimis. See e.g. Siglar
v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). The plaintiff’s grievances were appropriately

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addressed by prison officials. He was afforded the relief he sought and suffered no harm. His
claim of failure to protect is without merit.
For the foregoing reasons, it is ORDERED that this case is DISMISSED with prejudice
as frivolous and for failure to state a claim.
All pending motions, if any, are DENIED as moot.
The Clerk shall provide a copy of this order by regular mail, facsimile transmission, or email to: (1) the TDCJ - Office of the General Counsel, P.O. Box 13084, Austin, Texas, 78711,
Fax Number [phone]; (2) the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 773420629, fax: [phone]; and (3) the District Clerk for the Eastern District of Texas, Tyler
Division, 211 West Ferguson, Tyler, Texas, 75702, Attention: Manager of the Three-Strikes List.
SIGNED at Houston, Texas this 7th day of December, 2011.

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Kenneth M. Hoyt
United States District Judge

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