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RISLEY v. HAWK

February 15, 1996

WILLIAM ALBERT RISLEY, Plaintiff,
v.
KATHLEEN HAWK, Director, Bureau of Prisons, Department of Justice; PETER CARLSON, Assistant Director, Bureau of Prisons, Department of Justice; JOHN MEGATHLIN, Inmate Appeals Coordinator, Bureau of Prisons, Department of Justice; O. IVAN WHITE, Western Regional Director, Bureau of Prisons, Department of Justice; H. LEE CONNORS, Warden, FCI Stafford; GEORGE KILLENGER, Warden, FMC Ft. Worth, Defendants.



The opinion of the court was delivered by: RICHEY

 BACKGROUND

 The plaintiff, a federal prisoner, alleges, inter alia, that the defendants, who include the Director and Assistant Director of the Bureau of Prisons (BOP), the Inmate Appeals Coordinator of the BOP, the Western Regional Director of the BOP, the Warden of FCI-Safford and the Warden of FMC-Ft. Worth, have and are violating his First, Fourth, Fifth, Eighth, and Thirteenth Amendment rights, as well as the following statutes: 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, 1997(i)(B)(ii), and 1997d; 18 U.S.C. §§ 113, 211, 241, 1583, 4241-4247; and 5 U.S.C. §§ 552a(d)(2)(B) and (e)(5). Specifically, the plaintiff claims that he has been raped and otherwise assaulted and abused by other inmates on account of his presumed status as a homosexual, denied adequate medical care, given dangerous work assignments, transferred to other facilities unnecessarily, and improperly placed in administrative segregation. The plaintiff also alleges that the defendants have retaliated against him for filing a number of grievances with respect to such claims, denied him meaningful access to the courts, and fabricated his medical records to incorrectly reflect that he suffers from a psychiatric disorder. The plaintiff alleges that he informed all of the defendants, in writing, of his grievances during the period 1993 to 1994, and that he also orally informed the defendant wardens of such concerns. The plaintiff concedes that the prison officials to whom he wrote responded to the majority of his letters.

 The plaintiff has filed three suits alleging the same underlying facts. The plaintiff alleges that these other actions, two in Arizona and one in California, were dismissed for lack of prosecution, and he further alleges that he was unable to prosecute the cases due to the actions of prison officials.

 The plaintiff seeks to recover damages from the defendants in their individual capacities, and he seeks injunctive relief against the defendants in their official capacities. The Court will now address the sufficiency of the plaintiff's Complaint and the jurisdiction of the Court.

 I. THE PLAINTIFF FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED UNDER 18 U.S.C. §§ 113, 211, 241, 1583, 4241-44, 4246; 42 U.S.C. §§ 1981-83, 1985-86, 1997; AND THE FOURTH AND THIRTEENTH AMENDMENTS TO THE CONSTITUTION.

 Most of the statutes and some of the Constitutional Amendments relied upon by the plaintiff are clearly inapplicable to the facts which he posits. First, 18 U.S.C. §§ 113, 211, 241 and 1583 define certain acts, such as bribery and assault, as criminal offenses. Such criminal offense provisions do not create a private cause of action. See Lundt v. Hodges, 627 F. Supp. 373, 375 (N.D. Iowa 1985). Furthermore, §§ 4241-44 and § 4246 of the same title concern the determination of an individual's competency to stand trial, the determination of the existence of insanity at the time of the offense, and the hospitalization of such individuals, none of which are implicated by the defendant's Complaint.

 None of the civil rights statutes invoked by the plaintiff have any applicability to the facts alleged in the Complaint. For example, 42 U.S.C. § 1981-82 provides a cause of action only for racial discrimination, which the defendant does not allege. See Runyon v. McCrary, 427 U.S. 160, 167, 49 L. Ed. 2d 415, 96 S. Ct. 2586, 2592-93 (1976) (§ 1981); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 20 L. Ed. 2d 1189, 88 S. Ct. 2186, 2189 (1968) (§ 1982). Section 1983 expressly requires "state action," which is not alleged in the present litigation because the defendants are federal employees and the claims arise out of the treatment of plaintiff in a federal prison. An action pursuant to 42 U.S.C. §§ 1986-87 requires a conspiracy to deny equal rights to a protected class of individuals; however, the plaintiff does not allege that he is a member of such a class. See DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327, 333 (9th Cir. 1979) (holding that homosexuals are not a protected class for purposes of § 1985). Furthermore, even if the plaintiff was a member of such a class, his allegations are too generalized and conclusory to state a claim for conspiracy upon which relief can be granted. *fn1" Likewise, the plaintiff cannot state a claim under 42 U.S.C. § 1997, as this statute only authorizes suits brought by the United States Attorney General against state actors, not against the federal government. See also Price v. Brittain, 874 F.2d 252 (5th Cir. 1989) (holding no private cause of action exists under §§ 1997 or 1997d).

 With regard to the plaintiff's constitutional tort claims, the Court will dismiss the plaintiff's Fourth Amendment claim given that the plaintiff does not allege that he has been subject to an unlawful search or seizure. Finally, the Court shall also dismiss the plaintiff's Thirteenth Amendment claim, as he has not advanced any claim that the defendants have subjected him to slavery. Although the plaintiff alleges that federal officials have permitted inmates to treat the plaintiff as a slave, this grievance is sufficiently encompassed within his Eighth Amendment claim alleging cruel and unusual punishment.

 II. THE COURT SHALL DISMISS THE REMAINING CLAIMS FOR INJUNCTIVE RELIEF BROUGHT AGAINST THE DEFENDANT BOP PERSONNEL IN THEIR OFFICIAL CAPACITY BECAUSE THE PLAINTIFF HAS FILED NUMEROUS IDENTICAL COMPLAINTS IN OTHER COURTS.

 Recognizing that he cannot recover monetary damages from the federal government for his constitutional tort claims *fn2" or the remaining statutory claims, the plaintiff asks for injunctive relief pursuant to Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). The plaintiff has, however, filed two prior suits in Arizona and one in California against BOP personnel, alleging identical claims to those alleged in the present litigation. Pursuant to 28 U.S.C. § 1915(d), the Court may dismiss a prisoner's in forma pauperis action where the complaint duplicates the allegations of other pending or previously filed litigation. See Crisafi v. Holland, 211 U.S. App. D.C. 75, 655 F.2d 1305, 1309 (D.C. Cir. 1981) (citing Van Meter v. Morgan, 518 F.2d 366 (8th Cir.) (affirming dismissal based on finding by district court that a prior complaint, then pending, was based on same conduct by same defendant), cert. denied, 423 U.S. 896, 46 L. Ed. 2d 129, 96 S. Ct. 198 (1975)).

 The plaintiff does not deny that the three previous actions alleged the same facts, but instead argues that he named different individual BOP personnel as defendants in the other actions. He also argues that the prior suits were dismissed based on plaintiff's failure to prosecute, which in turn was a direct result of the alleged acts of the defendants. With respect to the plaintiff's first argument, while the identity of the defendants may make a difference regarding the dismissal of frivolous claims brought against defendants in their individual capacity, it should make no difference where claims are against official acts of BOP personnel. As for the plaintiff's belief that his previous actions were unjustly dismissed, his recourse is to ask the previous courts to relieve him from judgment or appeal the dismissals. See e.g., Redwood v. District of Columbia, 220 U.S. App. D.C. 113, 679 F.2d 931, 933 (D.C. Cir. 1982) (dismissal of prisoner's complaint, which charged prison officials and mayor with negligence in regard to prisoner's medical care and with failure to adequately train and supervise medical officers, was proper where prisoner had brought essentially the same action two years earlier and he had not appealed from order dismissing such action).

 III. THE COURT IS UNABLE TO EXERCISE JURISDICTION OVER DEFENDANTS WHITE, CONNOR, AND KILLENGER IN THEIR INDIVIDUAL CAPACITY, AND THE PLAINTIFF FAILS TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED AGAINST DEFENDANTS ...


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