Fisher v. Smith
Filing
7
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified.
United States District Court
Southern District of Texas
ENTERED
March 21, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DARWIN FISHER,
TDCJ #616375,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
OFFICER GARY B. SMITH,
Defendant.
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0646
MEMORANDUM OPINION AND ORDER
The
Prisoner
plaintiff,
Civil
Darwin
Rights
Fisher
Complaint
(TDCJ
#616375),
under
42
has
U.S. C.
filed
§
a
1983
("Complaint") (Docket Entry No. 1) , concerning the conditions of his
confinement
in
the
Texas
Department
of
Correctional Institutions Division ( "TDCJ") .
Criminal
Justice
Because the plaintiff
is incarcerated, the court is required to scrutinize the claims and
dismiss the Complaint, in whole or in part, if it determines that
the Complaint "is frivolous, malicious, or fails to state a claim
upon which relief may be granted" or "seeks monetary relief from a
defendant who is immune from such relief."
28 U.S.C.
§
1915A(b).
After considering all of the pleadings, the court concludes that
this case must be dismissed for the reasons explained below.
I .
Fisher
is
currently
Background
incarcerated at
the
Darrington
Unit. 1
When Fisher filed the Complaint in this case he was confined at the
Connally Unit. 2
The incident that Fisher complains of occurred at
the Jester IV Unit, where the defendant, Gary B. Smith, is employed
by TDCJ as a correctional officer. 3
Fisher
alleges
Officer
Smith was
escorting
"Pill
Tech
J.
Adagun" as she was distributing medication at his cell on January
9,
2015. 4
Fisher objected that some of his medication was "not
present" and asked to speak to the "charge nurse." 5
so, Adagun stepped away from Fisher's cell.
6
When he did
While she was gone,
Fisher contends that Smith used excessive force by spraying him
through the food tray slot of his cell with a full can of chemical
agent.
7
Officer
Smith
reportedly
deployed
the
chemical
spray
because Fisher was "snorting" or abusing medication in his cell. 8
1
Change of Address, Docket Entry No. 6, p. 1.
2
Complaint, Docket Entry No. 1, pp. 1, 3.
3
Id. at 3-4.
4
Supplement to Complaint, Docket Entry No. 1-1, p. 1.
5
Complaint, Docket Entry No. 1, p. 4.
6
Id.
7
Id.
8
Supplement to Complaint, Docket Entry No. 1-1, p. 2.
-2-
Fisher claims that this is untrue,
without any cause. 10
9
and that
Smith sprayed him
Fisher did not file a grievance about the
incident because he was told by "unit grievance staff [that] the
issue was not "grieveable." 11
He seeks $5,000.00 in damages and
costs of court for the violation of his civil rights. 12
II.
Discussion
Fisher contends that Officer Smith violated his civil rights
by spraying him with a chemical agent on January 9, 2015. 13
Civil
rights claims brought under 42 U.S.C. § 1983 are governed by the
two-year
statute
of
limitations
provided
by
Texas
law.
See
Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001);
TEX. CIV. PRAC. & REM. CODE
ANN.
§
16.003 (a).
This means that Fisher
had two years from the time that his claims accrued to file a civil
rights action concerning these allegations.
157 F.3d 1016, 1020 (5th Cir. 1998)
See Gonzalez v. Wyatt,
(noting that a cause of action
accrues, so that the two-year statute of limitations begins to run,
when the plaintiff knows or has reason to know of the injury which
is the basis of the action) .
Fisher's claim against Officer Smith accrued no later than
9
Id.
1
°Complaint, Docket Entry No. 1, p. 4.
11
Id. at 3.
12
Id. at 4.
13
Supplement to Complaint, Docket Entry No. 1-1, p. 1.
-3-
January 9, 2015, when Fisher was sprayed with a chemical agent at
the Jester IV Unit.
Fisher did not execute his Complaint until
February 15, 2017. 14 Because Fisher waited more than two years to
file suit from the time his claims accrued his Complaint against
Officer Smith is untimely and subject to dismissal as frivolous.
See Gartell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
III.
Conclusion and Order
Based on the foregoing,
the court ORDERS that the Complaint
(Docket Entry No. 1) is DISMISSED with prejudice as frivolous.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff.
The Clerk will also provide a
copy by regular mail, facsimile transmission, or e-mail to:
TDCJ -
Office of the General Counsel,
P. 0.
Box 13084,
(1) the
Austin,
Texas, 78711, Fax Number (512) 936-2159; and (2) the Manager of the
Three-Strikes List for the Southern District of Texas.
SIGNED at Houston, Texas, on this 2o-f~daYJ
flfAt'(f-1
~~
SIM LAKE
UNITED STATES DISTRICT JUDGE
14
Complaint, Docket Entry No. 1, p. 5.
-4-
, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?