Brown v. Operman et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations. IT IS FURTHER ORDERED that Plaintiff James A. Brown's claim for "failure to meet nutritional standards" is DISMISSED WITH PREJUDICE as frivolous; and IT IS FiNALLY ORDERED that Plaintiff's remaining claims are DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted. Signed by Judge Sam Sparks. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
JAMES A. BROWN #1893446,
Case No. A-14-CA-736-SS
SGT. OPERMAN, SGT. SIZEMORE, FOUR CTAC OFFICERS, and SGT. KLATT,
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Plaintiff James A. Brown's Complaint Under 42 U.S.C. § 1983 [#1] and the Amended
Report and Recommendation of the Magistrate Judge [#11]. Brown did not file objections to the
Report and Recommendation. Having reviewed the documents, the governing law, and the file as
a whole, the Court now enters the following opinion and orders.
All matters in this case were referred to United States Magistrate Judge Andrew W. Austin
for report and recommendation pursuant to 28 U.S.C.
636(b) and Rule 1(e) of Appendix C of the
Local Court Rules of the United States District Court for the Western District of Texas, Local Rules
for the Assignment of Duties to United States Magistrate Judges. Brown is entitled to de novo
review of the portions of the Magistrate Judge's report to which he filed specific objections. 28
636(b)(1). All other review is for plain error.
524 F.3d 612, 617 (5th
Cir. 2008). Nevertheless, this Court has reviewed the entire file de novo, and agrees with the
Magistrate Judge's recommendation.
Brown is a Texas state inmate presently incarcerated in the Texas Correctional Institutions
Division's Smith Unit in Lamesa, Texas. The events giving rise to Brown's complaint took place
while Brown was incarcerated in the Travis County Correctional Complex in Del Valle, Texas, and
are as follows. On January 25, 2014, Brown "threw [his meal] tray out of [his] food chute.
'jacked' the food chute" and "threatened to break [his] cell door window[.]" Compl. [#1-1], Ex.
(Notice Disciplinary Board, Incident 140000427), at 2. As punishment for his behavior, Brown was,
for five days, given a "sack lunch" containing a sandwich, a piece of fruit, and a bag of pretzels at
mealtimes rather than food on a tray. On January 31, 2014, Brown "refused to accept [his] meal in
a sack," threatened to punch a prison guard in the mouth, and "destroyed [his] cell door window."
Id., Ex. 1 (Notice Disciplinary Board, Incident 140000523), at 51 Officers thereafter strip-searched
Brown, forced him to lay on the ground unclothed for a period of time while pointing a Taser at him,
and placed him in a restraining chair.
In an unrelated incident which occurred on February 24, 2014, nearly a month after the sack
lunch incident, Brown "covered his cell light with a towel, obstructing staffs view of the cell at
night." Id., Ex.
(Notice Disciplinary Board, Incident 140000942), at 6. When told he could not
cover the light, Brown "became aggressive," "had to be restrained," and was moved into a different
cell while officers obtained a restraining chair. Brown states an officer was pointing a Taser at him
Brown later appealed the Disciplinary Board's finding he was guilty of destroying the window on grounds
he had been unable to present witnesses at the Disciplinary Board hearing, and the appellate officer found in his favor.
See id., Ex. 1 (Grievance), at 10. In his narrative to this Court, however, Brown admits he broke the window. See
Compi. [#1] at 6 (stating he was placed in the restraining chair "for breaking a door glass").
during this time. While officers were waiting for the restraining chair, Brown broke the cell door
Brown's complaint alleges causes of action for "failure to meet nutritional standards,"
retaliation, and excessive force under 28 U.S.C. § 1983. As Brown is proceeding informapauperis,
his complaint may be dismissed at any time if it is "frivolous or malicious" or "fails to state a claim
on which relief may be granted." 28 U.S.C.
McKaskle, 788 F.2d
1116, 1119 (5th Cir. 1986). The Court must construe Brown's pro se complaint liberally. Haines
Kerner, 404 U.S. 519, 520 (1972).
Brown's pro se status, however, does not create an
"impenetrable shield, for one acting pro se has no license to harass others, clog the judicial
machinery with meritless litigation, and abuse already overloaded court dockets." Farguson
Mbank Houston, NA., 808 F.2d 358, 359 (5th Cir. 1986).
"Failure to Meet Nutritional Standards"
As did the Magistrate Judge, the Court analyzes Brown's claim he was deprived of adequate
food under the Eighth Amendment. The deprivation of food states a cognizable claim under the
Eighth Amendment "only if it denies a prisoner the minimal civilized measure of life's necessities."
Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (internal quotation omitted). Brown's claim
he received sack lunches containing a sandwich, a piece of fruit, and a bag of pretzels three times
a day for five days fails even to approach that standard. See, e.g., Gates v. Huibregtse, 69 F. App'x
326, 326-28 (7th Cir. 2003) (prisoner placed on a diet of"nutri-loaf,' a blended and baked compost
It appears there may have been a third incident involving Brown breaking a window, as the disciplinary
records he submitted with his complaint contain several documents with a third incident number, 140000948, referencing
a broken window. See Compl. [#1-1], Ex. 1 (Findings Disciplinary Bd., Incident 140000948), at 8.
of regular prison food" for ten days, during which he repeatedly regurgitated the loaf, once vomited
blood, and lost six pounds failed to state Eighth Amendment claim). The Court agrees with the
Magistrate Judge this claim is wholly frivolous, and must be dismissed.
Brown next states prison officers retaliated against him by subjecting him to a "campaign of
harassments" following the sack lunch and first window-breaking incident. Brown identifies only
the light-covering incident as comprising the "campaign of harassments."
To prevail on a claim for retaliation under
1983, a prisoner must establish (1) a specific
constitutional right; (2) the defendant's intent to retaliate against the prisoner for his or her exercise
of that right; (3) a retaliatory adverse act; and (4) causation. Morris v. Powell, 449 F.3d 682, 684
(5th Cir. 2006). Brown fails to state a claim for retaliation, as he has articulated no specific
constitutional right he exercised leading to the alleged "campaign of harassments." His retaliation
claim will therefore be dismissed.
Finally, Brown alleges prison guards used excessive force when strip-searching and
restraining him following the sack lunch incident. "[Tb state an Eighth Amendment excessive force
claim, a prisoner.
must show that force was applied not in a good faith effort to maintain or
restore discipline, but rather that the force complained of was administered maliciously and
sadistically to cause harm." Rankin
F.3d 103, 107 (5th Cir. 1993) (internal
quotations and citation omitted). Factors which may be considered in evaluating a prisoner's claim
include the need for the application of force, the relationship between the need and the amount of
force that was used, the extent of injury inflicted, and the extent ofthe threat to the safety of staff and
inmates reasonably perceived by prison officials. Whitley
Albers, 475 U.s. 312, 321 (1986)
(internal quotation and citation omitted). "[A] plaintiff asserting an excessive force claim [is
required] to have 'suffered at least some form of injury" that is "more than.
City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). "[NJot.
de minimis." Glenn
eveiy malevolent touch byaprison
guard gives rise to a federal cause of action," Hudson v. McMillian, 503 U.S. 1, 9 (1992), and when
"the ever-present potential for violent confrontation and conflagration ripens into actual unrest and
conflict," prison officials are afforded extra deference in handling matters of internal security. Id.
at 32 1-22.
The Court agrees with the Magistrate Judge that Brown fails to state a claim for excessive
force, as he has failed to allege he suffered any injury and failed to set forth any facts suggesting the
guards acted with malicious or sadistic intent other than a bare allegation they did so. See Byers
Navarro Cnty., No. 3:09-CV-1792-D, 2012 WL 677203, at *6 (N.D. Tex. Mar. 1,2012) (prisoner's
failure to present evidence she suffered any form of injury due to her placement in restraint chair or
that guards acted maliciously in restraining entitled guards to summary judgment on qualified
immunity). Further, even had Brown adequately alleged his excessive force claim, it would still fail,
as restraining and strip-searching Brown were not unjustified responses to the actual unrest Brown
created by breaking a window. Prison officials are permitted to use force to maintain peace and
security within the prison.
See Whitley, 475 U.S. at 321-22 (deference afforded prison
administrators in executing practices and policies to maintain security extends to security measures
"taken in response to an actual confrontation with riotous inmates")
Finally, although Brown complains of the strip search in connection with his excessive force
claim, to the extent Brown is also attempting to raise a Fourth Amendment challenge to the search,
it is rejected. Prisoners retain "at best, a very minimal Fourth Amendment interest in privacy after
incarceration." McCreary v. Richardson, 738 F.3d 651,656(5th Cir. 2013) (quoting Oliver v. Scott,
276 F.3d 736, 744 (5th Cir. 2002)). Brown's Fourth Amendment challenge, if he indeed intends to
raise one, appears to be to the propriety of the strip search in general, not to the specific manner in
which it was carried out. See Compl. [#11 at 6 (complaining the search "expos[ed] his lower naked
body to an unclean floor"). But strip searches "have been repeatedly recognized as an important tool
of prison security, and are not per se unconstitutional." Id. Given Brown created a disturbance by
breaking the window, it was reasonable for the guards to strip-search him. See id. at 657-58 (citing
Turner, 968 F.2d 508, 510 (5th Cir. 1992)) ("[C]ase law has sanctioned public strip
searches of prisoners creating a disturbance.").
The Court therefore dismisses under 28 U.S.C.
§ 19 15(e)
Brown's claim for "failure to meet
nutritional standards" as frivolous and the balance of his allegations for failure to state a claim upon
which relief may be granted.
The Court advises Brown if he files more than three actions or appeals while he is in custody
which are dismissed as frivolous or malicious or for failure to state a claim on which relief may be
granted, he will be prohibited from bringing any other actions in forma pauperis unless he is in
imminent danger of serious physical injury. 28 U.S.C.
The Court further cautions Brown filing or pursuing any further frivolous lawsuits, similar
to the one dismissed here, may result in serious sanctions or penalties, specifically: (1) the imposition
of court costs pursuant to
1915(f); (2) the imposition of significant monetary sanctions pursuant
to FED. R. Civ. P. 11; (3) the imposition of an order barring him from filing any lawsuits in this
Court without first obtaining the permission from a District Judge of this Court or a Circuit Judge
of the Fifth Circuit; or (4) the imposition of an order imposing some combination ofthese sanctions.
The Court finally warns Brown for causes of action which accrue after June 8, 1995, the
Texas Department of Criminal Justiceupon receipt of a final order of a state or federal court that
dismisses as frivolous or malicious a lawsuit brought by an inmate while the inmate was in the
custody of the Department or confined in county jail awaiting transfer to the Department following
conviction of a felony or revocation of community supervision, parole, or mandatory supervisionis
authorized to forfeit (1) 60 days of an inmate's accrued good conduct time, if the Department has
previously received one final order; (2) 120 days of an inmate's accrued good conduct time, if the
Department has previously received two final orders; or (3) 180 days of an inmate's accrued good
conduct time, if the Department has previously received three or more final orders.
IT IS ORDERED that the Amended Report and Recommendation [#111
States Magistrate Judge Andrew W. Austin is ACCEPTED;
IT IS FURTHER ORDERED that Plaintiff James A. Brown's claim for "failure to
meet nutritional standards" is DISMISSED WITH PREJUDICE as frivolous; and
IT IS FiNALLY ORDERED that Plaintiff's remaining claims are DISMISSED
WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted.
SIGNED this the
day of November 2014.
UNITED STATES DWTRICT JUDGE
736 1983 ord ba.frni
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