# Hamer v. Central Office Administrative Remedy

> District Court, N.D. Texas · February 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10449986

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** February 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10449986

## How later opinions describe it (automated extraction)

- holding that an inmate’s transfer from an offending institution normally “render[s] . . . his claim for declaratory and injunctive relief moot”
- noting that “it is difficult to see that any other deprivations in the prison context, short of those that clearly impinge on the duration of confinement, will hence- forth qualify for constitutional ‘liberty’ status”
- noting that the Fifth Amendment applies to prisoner claims against federal officials while the Fourteenth Amendment applies to prisoner claims against state officials

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

HERBERT HAMER, §
§
Plaintiff, §
§
VS. § Civil Action No. 4:19-cv-115-O
§
CENTRAL OFFICE §
ADMINISTRATIVE REMEDY, et al., §
§
Defendants. §

OPINION AND ORDER OF DISMISSAL
UNDER 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B)

This case is before the Court for review of pro-se inmate/Plaintiff Herbert Hamer’s
(“Hamer”) claims to determine if they are frivolous, malicious, or fail to state a claim upon which
relief may be granted under the screening provisions of 28 U.S.C. §§ 1915A(b)(1) and
1915(e)(2)(B). Having reviewed and screened the claims in the second amended complaint, the
Court concludes that Hamer’s claims in this case must be dismissed under authority of these
provisions.
I. BACKGROUND
Hamer filed an original complaint in the United States District Court for the Middle
District of Florida as case number 5:18-cv-138-OC. Complaint ECF No. 1. After that Court twice
ordered Hamer to file amended pleadings, he completed and filed a second amended complaint
asserting claims arising at FMC-Fort Worth in Fort Worth, Texas. Orders, ECF No. 10, 12; Sec.
Am. Complaint 1-13, ECF No. 14. As such, the Florida district court then transferred the case to
this the Fort Worth division of the United States District Court for the Northern District of Texas.
1
Order, ECF No. 15. Hamer’s live pleading subject to screening is the second amended complaint,
as he was informed that an “amended complaint supersedes the filing of the initial complaint and
becomes the operative pleading.” Ord. Directing Sec. Am. Complaint 4, ECF No. 12 (citing Krinks
v. SunTrust Banks, Inc., 654 F.3d 1194, 1201 (11th Cir. 2011)).
Hamer names as defendants the Central Office Administrative Remedy, and he also names

corrections officers Gilbreth and Harris and Bureau of Prisons (“BOP”) Regional Counsel Jason
A. Sickler, in both their individual and official capacities. Sec. Am. Complaint 2-3, ECF No. 14.
Other than listing Central Office Administrative Remedy and Jason Sickler by name, Hamer
asserts nothing else against either of these defendants. As to Officer Gilbreth, Hamer alleges that
Gilbreth escorted him to a Lieutenant’s office with an incident report that resulted in Hamer being
placed in 15 days of Special Housing Unit (“SHU”) detention, which caused him to be under stress
for risk of a stroke. Id. at 4. Concerning Officer Harris, Hamer contends that on a separate occasion,
Harris issued a false incident report of Hamer making a “threat of harm against Officer Harris.”
Id. at 4, 12. Hamer alleges that as a result of the incident report written by Harris, he was placed

in the SHU for 27 days with loss of prison privileges and a reduction in his classification. Id. at
12. Hamer seeks a transfer to a different facility, compensatory monetary damages, and punitive
damages. Id. at 13.
II. LEGAL STANDARD OF REVIEW UNDER §§ 1915A and 1915(e)(2)(B)
At the time of filing suit, Hamer was an inmate who was permitted to proceed in forma
pauperis.1 As a part of the Prison Litigation Reform Act (“PLRA”), Congress enacted 28 U.S.C. §

1Review of the BOP website indicates that Hamer was released from confinement on June 1, 2020.
See www.bop.gov (Inmate number 27818-138) last visited February 3, 2021. Hamer also informed the
Court of his release. Notice of Change of Address 1, ECF No. 22.
2
1915A, which requires a district court to review a complaint from a prisoner seeking relief from a
governmental entity, officer, or employee as soon as possible after docketing. See 28 U.S.C.A. §
1915A(a) (West 2019). Because Hamer is proceeding in-forma-pauperis, his complaint is also
subject to screening under 28 U.S.C. § 1915(e)(2). Both § 1915A and § 1915(e)(2) provide for sua
sponte dismissal of the complaint or any portion thereof, if it is frivolous, malicious, fails to state

claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. See 28 U.S.C.A. §§ 1915A(b) and 1915(e)(2)(B) (West 2019).
A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on
an indisputably meritless legal theory.” Id. at 327. A claim lacks an arguable basis in fact when it
describes “fantastic or delusional scenarios.” Id. at 327-28. A complaint fails to state a claim upon
which relief may be granted when it fails to plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To avoid dismissal for failure to state a claim, plaintiffs must

allege facts sufficient to “raise the right to relief above the speculative level.” Twombly, 550 U.S.
at 555. Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of
action” are insufficient to state a claim upon which relief may be granted. Id.
III. ANALYSIS
A. No Claims Against Bureau of Prisons (Central Office Administrative Remedy)
and Individual Defendants in an Official Capacity

The Supreme Court, in Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics (“Bivens”), recognized an individual’s right to seek recovery for violation of
constitutional rights by a person acting under color of federal law. 403 U.S. 388, 297 (1971). The
Bivens decision is the counterpart to 42 U.S.C. § 1983, and extends the protections afforded under
§ 1983 to parties injured by federal actors. See Evans v. Ball, 168 F.3d 856, 863 n.10 (5th Cir.
1999) (“A Bivens action is analogous to an action under § 1983--the only difference being that §
1983 applies to constitutional violations by state, rather than federal officials”), overruled on other
grounds, Castellano v. Fragozo, 352 F.3d 939, 948-49 & n. 36 (5th Cir. 2003). Thus, as Hamer

was incarcerated in federal prison, the Court construes his claims as seeking relief under Bivens.
A Bivens claim, however, is not authorized against a federal agency. Federal Deposit
Insurance Corp. v. Meyer, 510 U.S.471, 484-86 (1994). Thus, Hamer may not assert relief for
alleged violations of his constitutional rights against a federal agency such as the Bureau of
Prisons, and his claim against a sub-part of that agency, the Central Office Administrative Remedy,
must be dismissed.
Furthermore, although Hamer may bring a Bivens action against individual officers for
alleged violations of his rights, he “may not bring an action against the United States, the BOP, or
BOP officers in their official capacities as such claims are barred by the doctrine of sovereign

immunity.” Gibson v. Fed. Bureau of Prisons, 121 F. App’x 549, 551 (5th Cir. 2004) (per curiam)
(citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001); and Hafer v. Melo, 502 U.S. 21,
25 (1991) (claims against employees in official capacities are considered a suit against the
government entity)). Accordingly, Hamer may not assert relief for alleged violations of his
constitutional rights against the individual defendants (Jason Sickler, Officer Gilbreth, and Officer
Harris) in their official capacities, and such claims must be dismissed.
B. No Personal Involvement (Jason Sickler)
In order to state a Bivens claim, the claimant must allege personal involvement of a
defendant. Guerrero-Aguilar v. Ruano, 118 F. App’x 832, 833 (5th Cir.2004). Federal officials

cannot be held vicariously liable for the acts of subordinates under the doctrine of respondeat
superior. Cronn v. Buffington, 150 F.3d 538, 544 (1998) (citing Abate v. Southern Pac. Transp.
Co., 993 F.2d 107, 110 (5th Cir. 1993)). Without personal involvement or participation in an
alleged constitutional violation, the individual should be dismissed as a defendant. Cronn, 150
F.3d at 544 (citing Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)).
Here, although Hamer has named BOP Regional Counsel Jason Sickler as an individual
defendant, he has recited no facts to relate any personal actions of Sickler to the allegations made

the basis of his pleading. Sec. Am. Complaint 3, ECF No. 14. In directing Hamer to file a second
amended complaint, the Court warned Hamer that he was required to state how “each named
defendant is involved in the alleged constitutional violation(s) in the body of the complaint.” Ord.
Directing Sec. Am. Complaint 3, ECF No. 12. Other than listing Sickler’s name, however, Hamer
has provided no additional facts or allegations against him. Hamer’s claim against Sickler,
therefore, must be dismissed.
C. Claim Seeking Transfer to Another Prison
Hamer seeks declaratory or injunctive type relief in the form of an order to transfer him to
another BOP facility. Sec. Am. Complaint 13, ECF No. 14. It is well settled that a prisoner does
not have a constitutional right to serve a sentence in any particular prison, or to be transferred or

not transferred from one facility to another. See Olim v. Wakinekona, 461 U.S. 238, 249-50 (1983);
Tighe v. Wall, 100 F.3d 41, 42 (5th Cir.1996). The Bureau of Prisons has “sole discretion” to
determine where a federal inmate will be housed. United States v. Williams, 65 F.3d 301, 307 (2d
Cir. 1995). Because the transfer of a federal inmate to another correctional institution does not
implicate a constitutional interest, Hamer is not entitled to the requested relief. See generally Davis
v. Carlson, 837 F.2d 1318, 1319 (5th Cir. 1988) (determining that a federal inmate has no right to
be transferred to a facility closer to family).
Moreover, as noted above, since filing the second amended complaint, Hamer has been
released from confinement. Notice of Change of Address 1, ECF No. 22. An inmate’s transfer or
release from prison moots the inmate’s claim for injunctive or declaratory relief, and any claim
based on a possible future confinement in the offending institution is “too speculative to warrant
relief.” Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (holding that an inmate’s transfer
from an offending institution normally “render[s] . . . his claim for declaratory and injunctive relief
moot”) (citing Cooper v. Sheriff, Lubbock Cnty., 929 F.2d 1078, 1084 (5th Cir. 1991)).

Thus, Hamer’s claim that he should be transferred to another facility must be dismissed.
D. No Due Process of Law Violation for Time in Administrative Segregation
(SHU) and Reduction in Classification

Hamer’s primary claims in the second amended complaint are that both Gilbreth and Harris
issued incident reports that caused him to be subject to administrative segregation in the SHU.
Hamer recites that he was subject to 15 days confinement in the SHU as a result of an incident
report filed by Gilbreth, and to 27 days confinement in the SHU and a reduction-in-classification
status as the result of an incident report filed by Harris. Sec. Am. Complaint 4, 12, ECF No. 14.
Although Hamer writes in his second amended complaint that he was subjected to “cruel and
unusual punishment,” the Court construes Hamer’s claims against Gilbreth and Harris as claims
of a denial of due process2 under the Fifth Amendment.3
The mere failure of prison authorities to follow the prison’s own policies, procedures, or

2See Crane v. Cockrell, No. 3:02-cv-1522-P, 2002 WL 31086066, at * 1 (N.D. Tex. Sep. 12, 2002)
(construing § 2254 petition challenging disciplinary punishments including 45 days of cell restriction and
reduction-in-classification status as violating due process as well as cruel and unusual punishment).

3As Hamer is a federal prisoner, his due process claims are considered only under the Fifth
Amendment. See Doe v. Robertson, 751 F.3d 383, 387 (5th Cir. 2014) (noting that the Fifth Amendment
applies to prisoner claims against federal officials while the Fourteenth Amendment applies to prisoner
claims against state officials). See Crane v. Cockrell, No. 3:02-cv-1522-P, 2002 WL 31086066, at * 1 (N.D.
Tex. Sep. 12, 2002) (construing § 2254 petition challenging disciplinary punishments including 45 days of
cell restriction and reduction-in-classification status as violating due process as well as cruel and unusual
punishment).
Regulations, does not, without more, give rise to a constitutional violation. Myers v. Klevenhagen,
97 F.3d 91, 94 (5th Cir. 1996). The Fifth Amendment to the Constitution provides that “No person
shall . . . be deprived of life, liberty, or property, without due process of law. . . .” U.S. CONST.
amend. V. A prisoner’s liberty interest, however, is “generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected manner as to give rise to protection
by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
483 (1995) (citations omitted). In Sandin v. Connor, the Court held that a prisoner’s “discipline in
segregated confinement did not present the type of atypical, significant deprivation in which a state
might conceivably create a liberty interest.” Id. In light of Sandin, the Court of Appeals for the
Fifth Circuit held that, “administrative segregation, without more, simply does not constitute a
deprivation of a constitutionally cognizable liberty interest.” Luken v. Scott, 71 F.3d 192, 193 (5th
Cir. 1995) (per curiam); see also Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1995) (affirming
district court’s dismissal as frivolous a prisoner’s claim that administrative segregation resulting
from his classification as a gang member violated a cognizable liberty interest); Orellana v. Kyle,
65 F.3d 29, 31-32 (5th Cir. 1995) (noting that “it is difficult to see that any other deprivations in

the prison context, short of those that clearly impinge on the duration of confinement, will hence-
forth qualify for constitutional ‘liberty’ status”) (internal citations and footnote omitted).
Furthermore, the United States Court of Appeals for the Fifth Circuit has also recognized
that “there is no liberty interest in a prisoner custodial classification . . .” Jennings v. Bureau of
Prisons, 354 F. App’x 60, 61 (5th Cir. 2009) (citing Wilson v. Budney, 976 F.2d 957, 958 (5th Cir.
1992)); see also Sanchez v. Allen, 611 F. App’x 792, 794 (5th Cir. 2015) (“This claim of
‘punishment’ without notice and a hearing fails, however, as Sanchez’s change in classification
status, the denial of commissary and visitation privileges, and cell restrictions do not implicate a
liberty interest protected by the Due Process Clause.”) (citations omitted).
Thus, under these holdings applying Sandin v. Conner to the same or similar punishments,
and precedent finding no liberty interest in a particular custodial classification, the Court finds that
Hamer has not stated a constitutional due process violation as to Gilbreth’s and Harris’s alleged
actions resulting in the administrative punishments. Such claims must be dismissed.
E. 42 U.S.C. § 1997e(e) Limitation on Monetary Damages if no Physical Injury

Hamer’s claims against the individual defendants seek compensatory monetary damages
for violations of constitutional rights. As a part of the PLRA, Congress placed a restriction on a
prisoner’s ability to recover compensatory damages without a showing of physical injury: “[n]o
Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody without a prior showing of
physical injury . . . .” 42 U.S.C. § 1997e(e) (West Supp. 2020). As noted, Hamer arguably alleges
violations of his rights under the Fifth and Eighth Amendments to the Constitution.
This physical injury requirement has long been recognized as applying to claims under the
Eighth Amendment. See Herman v. Holiday, 238 F.3d 660, 665-66 (5th Cir. 2001); Harper v.
Showers, 174 F.3d 716, 719 (5th Cir. 1999); Siglar v. Hightower, 112 F. 3d 191, 193-94 (5th Cir.

1997). The United States Court of Appeals for the Fifth Circuit subsequently held that § 1997e(e)
applied to claims under the First Amendment as well, noting “it is the nature of the relief sought,
and not the underlying substantive violation, that controls: Section 1997e(e) applies to all federal
civil actions in which a prisoner alleges a constitutional violation, making compensatory damages
for mental or emotional injuries non-recoverable, absent physical injury.” Geiger v. Jowers, 404
F.3d 371, 375 (5th Cir. 2005). More recently, the Fifth Circuit rejected an inmate’s claim that §
1997e(e) does not apply to a Fourth Amendment claim arising from a strip search, emphasizing
that, in Geiger, the court noted that “1997e(e) applies to all federal civil actions,” and noting that
“[r]egardless of [Plaintiff’s] invocation of the Fourth Amendment, his failure to allege any physical
injury preclude[s] his recovery of any compensatory damages for emotional or mental injuries
suffered.” Hutchins v. McDaniels, 512 F.3d 193, 196 (5th Cir. 2007) (emphasis in original).
Other courts have held that an inmate’s claims for compensatory damages for violations of
the Fourteenth Amendment and the Fifth Amendment, without showing physical injury, are barred
by § 1997e(e). See Stauffer v. Gearhart, 741 F.3d 574, 583 (5th Cir. 2014) (Fourteenth

Amendment); Allen v. Holden, No. 10-0753-JJB-DLD, 2012 WL 3902401, at *5 (M.D. La. Aug.
15, 2012), rep. and rec. adopted, 2012 WL 3901954 (Sep. 7, 2012) (Fourteenth Amendment);
Rogers v. Newman, No. 5:04-cv-193 DCB-JCS, 2006 WL 1520298, at * 1 (S.D. Miss. Apr. 7,
2006) (Fourteenth Amendment); see also Schaller v. United States, No. 3:10-cv-444-WS-EMT,
2011 WL 7052267, at *4 (N.D. Fla. Dec. 29, 2011), rep. and rec. adopted, 2012 WL 136007 (Jan.
17, 2012) (Fifth Amendment).
Courts in this circuit have recognized that § 1997e(e) bars a Plaintiff from seeking
monetary damages to compensate for emotional or mental injury, absent a showing of physical
injury in other contexts. See generally Logan v. Honeycutt, No. 12-156-JJB-SCR, 2012 WL
3903501, at *3 (M.D. La. July 24, 2012) (holding that Plaintiff’s failure to allege that he sustained

a physical injury as a result of alleged retaliation prohibits him from recovering compensatory
damages pursuant to 42 U.S.C. § 1997e(e)), rep. and rec. adopted, 2012 WL 3903452 (Sept. 7,
2012); Hodge v. Stadler, No. 04-0965, 2006 WL 1560754, at *3 (E.D. La. May 24, 2006)
(“Arguably, it may seem counterintuitive that a prisoner’s damage claim for a purely nonphysical
form of retaliation would be barred unless he can show a physical injury suffered in connection
with the claim. Nevertheless, this Court finds that is in fact the result mandated by the decision of
the United States Fifth Circuit Court of Appeals in Geiger v. Jowers, 404 F.3d 371 (2005)”).
Nowhere in his second amended complaint does Hamer write of sustaining any “physical
injury,” yet he seeks “actual” monetary damages for the “actions and assignments caused by the
supposed threat of bodily harm . . .” Sec. Am. Complaint 13, ECF No. 14. Applying the above-
referenced holdings to the instant case, no matter the substantive constitutional violations asserted
by Hamer on any remaining claims against the individual defendants, the failure to allege physical
injury bars his claims for recovery of compensatory monetary damages. Thus, Hamer’s claims for
compensatory monetary damages are barred under 42 U.S.C. § 1997e(e).

F. No Basis for Punitive Damages
The physical injury provision § 1997e(e) does not preclude claims for nominal or punitive
damages. Hutchins, 512 F.3d at 198. Hamer recites a claim for “punitive” monetary damages in
the amount of $108,000,000.00. Sec. Am. Complaint 13, ECF No. 14. Because the Court has
otherwise found that Hamer has failed to state plausible claims against any defendant in this suit,
his claims for punitive monetary damages must also be dismissed for failing to state a claim upon
which relief may be granted. See Oby v. Sander, 778 F. App’x 326, 327 (5th Cir. 2019) (noting
that even if district court’s conclusion that defendant officer used excessive force “equates to a
threshold finding of evil intent or callous indifference . . . the court did not abuse its discretion by
ultimately concluding that punitive damages were unwarranted in this case.”); see generally

Heaney v. Roberts, 846 F.3d 795, 803 (5th Cir. 2017) (“Punitive damages may be awarded in §
1983 cases ‘when the defendant’s conduct is shown to be motivated by evil malice or intent, or
when it involves reckless or callous indifference to the federally protected rights of others.’”)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
IV. CONCLUSION and ORDER
It is therefore ORDERED that all of Plaintiff’s claims in this suit are DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) and alternatively, pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) and (ii).
SO ORDERED this 4th day of February, 2021.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10449986. Public record. Not legal advice.