IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21060
Summary Calendar
FELIX LYLE COWAN,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Director, Texas Department
of Criminal Justice; UNIVERSITY OF TEXAS
MEDICAL BRANCH, TREATMENT TEAM PSYCHIATRIC STAFF,
Defendants-Appellees,
CONSOLIDATED WITH
__________________
No. 00-21074
__________________
FELIX L. COWAN,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Director, Texas Department of Criminal
Justice,
Defendant-Appellee.
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Appeals from the United States District Court
for the Southern District of Texas
(H-99-CV-2788 & H-98-CV-2010)
--------------------
January 4, 2002
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
This appeal involves two cases instituted by Texas prisoner
Felix Cowan (#765738), pursuant to 42 U.S.C. § 1983. The district
court dismissed Cowan’s suits as frivolous and for failure to state
a claim. After the appeals were consolidated, we requested
briefing from the Texas Attorney General’s Office, and received a
letter brief containing information about the dates of Cowan’s
incarceration and transfers, as we had requested, together with
exhibits that apparently came from the district court and
presumably were available to that court at the hearing conducted
pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
We perceive that the district court did not adequately flesh
out Cowan’s claims of (1) forced psychiatric commitment on several
occasions without a hearing that complied with Vitek v. Jones, 445
U.S. 480, 493-95 (1980), (2) forced medication, and (3)
unconstitutional living conditions; and we recognize that questions
of the timeliness of Cowan’s claims and the sufficiency of Cowan’s
appellate brief are implicated as well. For the reasons set forth
below, we vacate and remand.
I.
FACTS AND PROCEEDINGS
Cowan’s first complaint was filed in June 1998 against TDCJ
Director Wayne Scott. Cowan alleged that he was forced to receive
psychiatric treatment and medication. In a more definite statement
filed in May 2000, Cowan asserted that he had been transferred to
the psychiatric unit (Jester IV) in March 1997 without a proper
hearing, contending that he was not allowed to call witnesses and
2
that there was no judge or trial. He further alleged that, while
in the Jester Unit, he had been beaten and forced to lie in feces
and urine for four to five days without the availability of a
shower or toiletries, and that the medication he was forced to take
caused tremors, blurred vision, high blood pressure, and other
problems. Cowan stated that, “from 1997 until now,” he had been
forcibly administered medication by a “riot squad.”
Grievances filed by Cowan indicated that he received forced
psychiatric medication in July 1999 because of “acute psychosis.”
Cowan’s other grievances suggested that psychiatric treatment and
medication were at least administered, if not forced, on other
occasions in December 1997 and several times in 1999.
The district court ordered that defendant Scott be served with
the complaint, but not be made to answer, and that there be a
Spears hearing in November 2000. The court ordered Scott and TDCJ
representatives to be present at the hearing with records relevant
to Cowan’s claims.
Cowan’s second § 1983 suit was filed in August 1999, against
Scott and the “treatment team Jester IV psychiatric unit.” Cowan
alleged that Scott was aware of the deplorable conditions in the
Jester IV unit and that he (Cowan) was forced to accept psychiatric
treatment. In a “Statement of Facts” letter, Cowan alleged that,
“on several occasions since 1996,” he was transferred by threat of
force to the psychiatric unit and that he was forcibly administered
drugs. He stated that he had been found competent to stand trial,
that he was not suicidal, that there was no justification for the
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forced psychiatric commitment and medication, and that he suffered
injuries to his back, shoulder, and knees.
Essentially the same order that had issued in Cowan’s first
suit —— for the complaint to be served on the defendants and for
the defendants to be present at a Spears hearing —— was issued in
his second suit.
A consolidated Spears hearing was held at which Cowan, Dr.
Charles Adams, and a prison warden testified. The district court
summarized Cowan’s claims in both suits as follows: (1) He was
denied due process because of forced psychiatric treatment and
medication in March 1997; (2) barbaric prison conditions existed in
the psychiatric unit (he was forced to lie in feces for days
without access to a shower); (3) he was beaten for refusing to take
medication; (4) his medication caused seizures, convulsions,
blurred vision, and high blood pressure; (5) Defendants Johnson and
Scott knew about the conditions because Cowan had notified the
prison directors and the Internal Affairs offices by letter; and
(6) Cowan alleged additional claims of forced psychiatric treatment
and forced medication in his August 1999 suit. Responding to the
court’s questions, Cowan stated that he was no longer at the Jester
IV Unit but was at the Terrell Unit, was taking high blood pressure
medication, and was “feel[ing] pretty good.”
Dr. Adams testified that Cowan’s diagnosis was between
atypical paranoid schizophrenia verses a bipolar disorder. Dr.
Adams further stated that “two physicians can force medication” on
a prisoner if he is a danger to himself or others, but indicated
4
that the records he reviewed did not indicate that Cowan had been
forced to take medication between January and May 1997. Dr. Adams
said that he came to the Terrell Unit either in December 1999 or
January 2000 and that, “reviewing [the record] in a general
fashion,” he had not seen a history of Cowan’s “accepting or
rejecting medication.” The prison warden testified that there had
been several incidences of “staff assault by threat and . . . by
physical assault” in 1997.
At the end of the Spears hearing, the district court concluded
that: (1) Cowan had not made any showing of deliberate indifference
to a medical need; (2) Cowan’s pleadings and testimony were
insufficient to “show that he was subject[ed] to any prison
condition so base[,] inhuman[,] and barbaric” to support an Eighth
Amendment claim; (3) the state’s interest and policy in “treating
inmates who refu[s]e medication . . . [met] the demands of due
process, especially [based] upon the testimony that we received
today;” and (4) the procedures afforded by the state with respect
to forced treatment and medication met the requirements of due
process. The district court dismissed Cowan’s suits as frivolous
and for failure to state a claim, and Cowan timely appealed.
II
ANALYSIS
In the appeal of his first suit, Cowan asserts that, since
1997, he has been committed to the psychiatric unit against his
will and without a hearing or trial; that he received forced
medication by a riot squad at least three times; that the forced-
5
medication incidences were videotaped; and that, during such
incidences, he was beaten, had his face rubbed in feces, had “seven
men on his back,” and was left unconscious for refusing to take his
medication.
In the appeal of Cowan’s second suit, he asserts that a
“psyche tech” dislocated his (Cowan’s) shoulder when he refused to
give a blood sample while at a state hospital. He asserts further
that he was then dragged to a “steel seclusion room,” that a blood
sample was forcibly taken, and that he was then sedated against his
will. Cowan also contends that medical records from the county
hospital would show that there are two doctors who witnessed these
events. Finally, he states that former Texas governors Ann
Richards and George Bush have pardoned him based on the treatment
he received, and that he was falsely accused of being mentally
unstable.
In both briefs, Cowan cites to Vitek’s holding that a prisoner
has a due process right to particular procedures before being
involuntarily committed to a psychiatric facility. Cowan also
cites Spears in both briefs.
Because Cowan’s second § 1983 suit was filed in August 1999
and asserts claims of forced psychiatric treatment beginning in
1996, there is a question whether some or all of those claims are
time-barred. There is also a question, given the lack of
discussion in the pleadings and at the Spears hearing, whether
Cowan received forced psychiatric treatment and what procedures
were followed in such situations.
6
For § 1983 claims, federal courts apply the general personal
injury statute of limitations of the forum state, Owens v. Okure,
488 U.S. 235, 249-50 (1989), which is two years in Texas. See
Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001),
cert. denied, __ S. Ct. __ (Oct. 1, 2001); Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(a) (West 1999).
With respect to the first suit, filed in June of 1998, the
defendants contend that Cowan did not properly allege his claim of
forced psychiatric treatment until his more definite statement of
2000; that, even though the claim refers to a forced transfer to
the psychiatric unit in March 1997, the claim actually concerns
Cowan’s first transfer to the Jester IV Unit in December 1996; and
that Cowan’s May 2000 claims about the lack of Vitek procedures
with the December 1996 transfer are time-barred. The defendants
then make a simple statement that the second suit was filed in
August 1999 and that all claims of the denial of Vitek hearings and
forced medication would have to relate to incidences starting from
August 23, 1997.
The defendants characterize Cowan’s 1998 suit as alleging only
one incident of a forced transfer to the psychiatric unit, in March
1997. The record indicates, however, that Cowan alleged more
instances of forced commitment and forced medication and that such
claims were timely.
In his June 1998 complaint, Cowan did not specify any
particular dates when he was “forced to [ac]cept [] psychiatric
therapy[ and] medication.” In his more definite statement, filed
7
in May 2000, two weeks after the district court requested it, Cowan
discussed a forced-medication incident alleged to have occurred in
March 1997, and also stated that there were other incidences “from
1996 until now” but that he did not have enough paper to address
them. Copies of grievances that Cowan filed with his more definite
statement show that he complained of forced medication in December
1997, August 1998, and July and August 1999. In his August 1999
suit, Cowan alleged that, “on several occasions since 1996,” he was
transferred to the psychiatric unit against his will and forced to
take medication by threat of force.
Records attached to the defendants’ letter brief as exhibits
A and C indicate that Cowan was housed in the Jester IV Unit from
December 3, 1996 to January 2, 1997; from May 21 to December 7,
1998; from April 23 to August 2, 1999; from August 4 to October 4,
1999; from November 29, 1999 to January 14, 2000; and from November
27, 2000 to February 26, 2001. The defendants advise that there
are no records of the December 1996 transfer and that the 1998 and
1999 transfers to the psychiatric unit were involuntary commitments
that complied with Vitek.
Cowan’s pleadings are vague, yet both suits have raised
challenges to a number of instances of involuntary commitment and
forced medication, as well as unconstitutional prison conditions,
beginning in December 1996. Given that one of his suits was filed
in June 1998, his claims should be considered timely.
We could attempt to determine, as the defendants have
attempted in their letter brief, which suit challenges which
8
instances. The record is not sufficiently developed, however, to
justify such an exercise. At the Spears hearing, the district
court, which did not indicate that any of Cowan’s claims were time-
barred, did not develop the dates of the instances forming the
basis of Cowan’s two suits. The defendants have not shown whether
any of Cowan’s claims were time-barred, and it cannot be determined
based upon the record before the us.
Regarding Cowan’s Vitek, forced-medication, and living-
conditions claims, the defendants state that there are no entries
in Cowan’s medical records before January 1997, making it
impossible to determine what procedures were followed with his
December 1996 transfer to the psychiatric unit. The defendants do
contend that the record indicates that Vitek procedures were
followed with Cowan’s May 1998 and April 1999 involuntary transfers
to the psychiatric unit.
With respect to involuntary commitment to a psychiatric unit,
“a convicted felon [] is entitled to the benefit of procedures
appropriate in the circumstances before he is found to have a
mental disease and transferred to a mental hospital.” Vitek, 445
U.S. at 493. “[I]nvoluntary commitment to a mental hospital is not
within the range of conditions of confinement to which a prison
sentence subjects an individual.” Id. Similarly, the Due Process
Clause affords prison inmates a “significant liberty interest in
avoiding the unwanted administration of antipsychotic drugs.”
Washington v. Harper, 494 U.S. 210, 221-22 (1990). An inmate may
be treated with antipsychotic drugs against his will if the
9
treatment “is in the prisoner’s medical interests, given the
legitimate needs of his institutional confinement” and he is
dangerous to himself or others. Id. at 222.
In Vitek, the Supreme Court approved the district court’s
formulation of the following procedural safeguards for prisoners
facing involuntary commitment:
“A. Written notice to the prisoner that a transfer to a
mental hospital is being considered;
“B. A hearing, sufficiently after the notice to permit
the prisoner to prepare, at which disclosure to the prisoner
is made of the evidence being relied upon for the transfer and
at which an opportunity to be heard in person and to present
documentary evidence is given;
“C. An opportunity at the hearing to present testimony
of witnesses by the defense and to confront and cross-examine
witnesses called by the state, except upon a finding, not
arbitrarily made, of good cause for not permitting such
presentation, confrontation, or cross-examination;
“D. An independent decisionmaker;
“E. A written statement by the factfinder as to the
evidence relied on and the reasons for transferring the
inmate;
. . . and
“G. Effective and timely notice of all the foregoing
rights.”
445 U.S. at 494-95. Although legal counsel was not required, the
Court held that the inmate must be provided with “qualified and
independent assistance.” Id. at 497-500 (Powell, J., concurring
opinion adopted by majority). In Harper, the Court approved a
policy that allowed antipsychotic drugs to be involuntarily
administered when first prescribed by a psychiatrist and then
approved by a reviewing psychiatrist. Harper, 484 U.S. at 222-23.
The exhibits forwarded to us include the following documents:
(1) a discharge release summary from October 1998 stating that
10
Cowan “was involuntarily Vitek, admitted on 5/26/98,” (2) Clinic
Notes stating that Cowan received notification on May 22, 1998, of
a Vitek hearing scheduled for May 26, that he was explained his
Vitek rights, and that he was to be represented by a social worker;
and (3) Clinic Notes stating that there was a Vitek hearing held on
May 26, 1998, that Cowan was “uncooperative and threatening,” that
the “[h]earing [was] held cellside due to pt’s. hostility and
aggressiveness,” that a doctor assessed Cowan as “grossly
psychotic,” and that Cowan was ordered to be involuntarily
committed. The record also contains Clinic Notes from April 26,
1999, stating that Cowan was notified of a Vitek hearing; a Vitek
hearing was conducted on April 29, 1999; and Cowan was diagnosed as
bipolar and schizophrenic and was involuntarily transferred to the
psychiatric unit.
Until its repeal in September 1999 because of Vitek, Tex.
Crim. P. art. 46.01 allowed for an involuntary transfer of a
prisoner to a mental facility “if a prison physician is of the
opinion that the prisoner is mentally ill and would benefit from
treatment in a mental hospital.” Tex. Crim. P. art. 46.01(2)(a)
(Vernon 1999). The pertinent records indicate that at the minimum,
Cowan received notice, representation by either a social worker or
a psychologist, and some type of hearing in connection with his
1998 and 1999 involuntary transfers, which purportedly followed the
guidelines set out in Vitek as opposed to the less stringent Texas
law then in effect. We have not been furnished, however, any
minutes or documents outlining which procedures were followed at
11
the hearings conducted in 1998 and 1999. Furthermore, the
defendants, in their letter brief to us, admit that the records do
not contain any documents pertaining to the involuntary transfer in
December 1996.
Moreover, the defendants neither address nor cite —— and it is
virtually impossible to locate amid Cowan’s numerous medical
records —— documentation pertaining to Cowan’s allegations of
forced medication by a riot squad or his allegations of
unconstitutional prison conditions in the psychiatric unit. It is
thus not clear from the record that, in fact, (1) Vitek procedures
were followed with Cowan’s involuntary transfers from 1996 to the
time he filed his § 1983 suits, (2) the incidences of forced
medication complied with the requirements of Harper, or (3) Cowan
did not suffer incidences of unconstitutional prison conditions.
Cowan’s two suits, although poorly expressed, allege at least
three plausible constitutional violations: (1) involuntary transfer
and confinement in the psychiatric unit without adequate
procedures, (2) forced medication without proper procedures, and
(3) inhumane prison conditions in violation of the Eighth
Amendment.
A district court may dismiss an IFP complaint as frivolous or
for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B). A
complaint is frivolous if it lacks an arguable basis either in law
or in fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). A complaint lacks an arguable basis in law if it is based
on an "indisputably meritless legal theory." Id. (citing Neitzke
12
v. Williams, 490 U.S. 319, 325 (1989)). A complaint lacks an
arguable basis in fact when the allegations are fanciful,
fantastic, and delusional or when they “rise to the level of the
irrational or the wholly incredible.” Denton v. Hernandez, 504
U.S. 25, 32-33 (1992).
A case may be dismissed for failure to state a claim “only if
it appears that no relief could be granted under any set of facts
that could be proven consistent with the allegations.” Bulger v.
United States Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995).
A dismissal as frivolous is reviewed for an abuse of discretion.
A dismissal for failure to state a claim is reviewed de novo.
Black v. Warren, 134 F.3d 732, 733 (5th Cir. 1998).
A pro se prisoner is entitled to develop his complaint
factually before a proper frivolousness determination can be made.
See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). The purpose
of a Spears hearing is to “bring into focus the factual and legal
bases of prisoners’ claims.” Id. at 9 (quoting Spears, 766 F.2d at
181). Claims should not be dismissed without further factual
development unless they are “pure fantasy or based upon a legally
inarguable position.” Eason 14 F.3d at 10.
Here, the district court did not inquire of Cowan, Dr. Adams,
or the warden whether Cowan’s transfers to the psychiatric unit in
December 1996, May 1998, and April 1999 complied with the
procedures set out in Vitek. Although the prison records state
conclusionally that the 1998 and 1999 transfers followed Vitek
hearings, there are no minutes or documentation reflecting whether
13
all the procedural safeguards of Vitek were in fact followed.
Furthermore, there are no records whatsoever pertaining to the
December 1996 transfer.
With respect to Cowan’s forced-medication claims, Dr. Adams
stated that he did not see any history of forced medication, yet
the copy of one of the grievances that Cowan filed with his more
definite statement indicated that he received “enforced [sic]
medication [] on 7/29/99 due to acute psychosis.” Dr. Adams stated
that prison policy allowed involuntary medication when two
physicians determined that a prisoner was a danger to either
himself or others, but he did not state whether such a procedure
was followed with respect to Cowan’s forced medication.
With respect to Cowan’s claims of inhumane prison conditions,
the record is completely undeveloped, and the district court did
not inquire about such alleged conditions at the Spears hearing.
In summary, Cowan’s answers to interrogatories forwarded by
the district court and the Spears hearing transcript are not
sufficient to establish that his claims were frivolous or that he
failed to state a claim upon which relief could be granted.
Although we appreciate the district court’s substantial efforts
thus far in trying to untangle this case, we are nevertheless
constrained to vacate the court’s § 1915 dismissal of Cowan’s two
§ 1983 suits as frivolous and for failure to state a claim, and to
remand these cases for further development of the record in each,
and for further proceedings consistent with this opinion. See
Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). In doing so we
14
do not intimate how the district court should rule; neither should
our opinion be read as an indication that Cowan’s claims might
ultimately be found meritorious.
VACATED AND REMANDED.
15