Hamilton v. McCune et al, No. 4:2019cv01901 - Document 8 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Hamilton v. McCune et al Doc. 8 United States District Court Southern District of Texas ENTERED July 03, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION David J. Bradley, Clerk LEE HAMILTON , JR ., TDCJ #1132938, Plaintiff, CIVIL ACTION NO . H-19-1901 CASON MCCUNE, et Defendants . MEMORAHDUM OPIMION AND ORDER State inmate Lee Hamilton, Prisoner's Civil Rights Complaint (ncomplaint'') (Docket Entry confinem ent (TDCJ #1132938) has filed under 42 5 1983 concerning the conditions the Estelle Unit Huntsville . Because Hamilton is an inmate who proceeds in forma Dauoeris, the court is required scrutinize Complaint and dismiss case determ ines that the action is nfrivolous or maliciousi'' nfails state claim on which relief may be granted i'' useeks monetary relief from a defendant who is immune from such relief .'' 28 U .S .C . 5 1915(e)(2)(B); see also 28 U.S.C . 1915A . After reviewing of the pleadings as required, the court concludes that case must be dism issed for reasons explained briefly below . Dockets.Justia.com 1 . Backcround Hamilton currently incarcerated by the Texas Department of Criminal Justice - Correctional Institutions Division ('ATDCJ/') the Estelle Unit action under employed Huntsvillex U .S .C . He has filed this 1983 against follow ing defendants TDCJ at the Estelle Unit facility : Officer Teresa Green; Sandra Major; Applewhite x rights Cason Mccune; Nurse Brenda Butler; Major Bobby Rigsby; and addition Officer Captain Carlson Complaint, Hamilton has supplemented the pleadings with several grievances and some medical records regarding his claims .3 Ham ilton primarily takes issue with Mccune, who works for TDCJ as a maintenance technician .4 Hamilton has reportedly inherited of his grandparents' property and the proceeds of an insurance policyx Hamilton contends that Mccune into line'' when Hamilton makes calls from the prison phone and that lcomplaint, Docket Entry No . 2Id . at 3supplement, Docket Entry No . 7-2 (exhibits consisting of grievance forms and m edical records, which have been docketed as a nSupplement'' to the Complaint). tcomplaint, Docket Entry No . 1, pp . 3, 4: Step 1 Offender Grievance Form, Docket Entry No . 7-2, p . 1 (referring to Mccune as a nMaintenance Tech'') . The court notes that none of the grievance form s provided by Hamilton were actually subm itted through the TDCJ administrative grievance process adjudicated . sstep 1 Offender Grievance Form , Docket Entry No . 1. Mccune nursing staff at the Estelle Unit have also implanted a ndevice'' Hamilton's head and lower back for the purpose stealing Hamilton's thoughtsx Hamilton contends that Mccune particular is stealing information regarding Ham ilton's family and moneyx Hamilton alleges that the other defendants are part of the nconspiracy'' steal wealth because they are aware problem , but have done nothing about According medical records provided Ham ilton, has complained to health care providers about 'Alistening devices'' that were nput his ears'' while he was at the Estelle Unit Regional Medical Facility .g He alleges that the devices were implanted drive him insane or cause his death xo Ham ilton appears accuse the defendants of conspiracy violate federal criminal 1aw by interrupting thoughtax ' intercepting federal criminal charges phone calls and Hamilton asks the court against the defendants bring and 6complaint, Docket Entry 7Id . 8Id . at 3; step 1 Offender Grievance Form, Docket Entry No . 1. gcorrectional Managed Health Care Clinic Notes Docket Entry No . 7-2, p . 20 . lostep Nursing, Offender Grievance Form y Docket Entry No . Hcomplaint, Docket Entry No . 1, pp . Grievance Form , Docket Entry No . 7-2, p . 1. Step Offender immediate arrest of Cason Mccunex z He also seeks a restraining Order .'3 II . The Supreme Court held litigant who proceeds frivolous nwhere Discussion that comp laint forma oauoeris may dismissed as lacks an arguable basis either fact.'' Neitzke v. Williams, 109 S. claim filed 1aw 1827, 1831-32 (1989). A factually frivolous uwhen the facts alleged rise level of the irrational Hernandez, the wholly incredible E.l'' Denton v. S. Ct. 1728, (1992) Included in this class claims are those ndescribing fantastic or delusional scenarios'' and allegations that are ufanciful'' and uclearly baseless.'' Id. (citations omitted); see also Harris v. Heamann, 198 F.3d 153, 156 1999) (uA complaint is factually frivolous when the facts alleged are fantastic upon which delusional scenarios or the legal theory complaint relies indisputably meritless./') (citations and internal quotation marks omitted). Ham ilton's implanted allegation that a device been covertly his head for the purpose of improper surveillance the sort of claim that courts routinely dismiss as factually H comp laint , Docket Entry No . 1, Grievance Form , Docket Entry No . 7-2, p . 13yd . - 4- Step Offender frivolous . See, e.g ., Dodson v . Halev, No . 16-6196, 2017 WL 3224485, at *1 (6th Cir. May 2017) (dismissing as frivolous prisoner's claim that correctional officers installed neye cameras'' and uthought processing devices'' in his body); Golden v. Coleman, 429 App'x (3d 2011) (dismissing as frivolous prisoner's claim that prison employees implanted ''Government M icro food, which then attached Eye Cameras '' the uvisual cortex'' in his brain and sent images to a computer for broadcast App'x uprison television''); Manco v. Does, 363 2010 (10th (dismissing as frivolous the plaintiff's claim that prison officials implanted a tracking device in his jaw to umonitor his thoughts and send him inaudible, profane messages''); Johnson v. Druc Enforcement Aaencvr App'x 680 2005) (dismissing as frivolous plaintiff's allegation that the DEA implanted a transmitter in his scalp); Patterson v . UHC Hospital of Lafavette, Oct . No . 6:17-1383, 2017 WL 6811709, at 2017) implanted (W .D . La. allegation that doctors microchip device surgery'' as nso delusional as his body during an nillegal warrant dismissal as frivolous'') (citations omitted) In addition , uconstitutional right well established that there no have someone criminally prosecuted'' investigated and nno private right of action to bring criminal charges .'' Back v . Texas Deo 't of Criminal Justice Correctional Institutions Divw 716 F. App'x 255, 259 (5th Cir. 2017) (citing Gill v. Texas, 153 F. App'x. 261, 262 (5th Cir. 2005); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990)); see also Linda R.S. v. Richard D., S. 1146, 1149 (1973) (holding that private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another/'); Sattler v . Johnson, F.2d 224, Cir. 1988) (rejecting an equal protection claim under 5 1983 because neither a member of the public at large nor the victim right have another criminally prosecuted). Private citizens are thus not entitled to an order requiring the arrest prosecution of wrongdoers . Del Marcelle v . Brown Countv Corp ., 901-02 2012) (Easterbrook, C.J., concurring) (citations omitted). Accordingly, this dismissed pursuant to civil action be U.S.C. 5 1915(e)(2)(B) as frivolous. 111 . Conclu sion and Order Accordingly , the court ORDERS as follows: 1. This case is DISMISSED with prejudice as frivolous pursuant to 28 U.S.C. 5 1915(e)(2)(B) The dismissal will count as STRIKE for purposes of 28 U .S.C. 5 1915 (g). The Clerk w iil provide a copy of this Memorandum Opinion and Order to the piaintiff . The Clerk wiii also send a copy of this Order to (1) the TDCJ Office of the General Counsel, Capitol Station , P .O . Box 13084 , Austin , Texas , 78711 , Fax : 512-936-2159; and (2) the Three Strikes List at Three Strikes@txs.uscourts.gov . SIGNED at Houston, Texas, on this Z< day of QDl 2019 . e A SIM LAKE UNITED STATES DISTRICT JUDGE
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