United States District Court, W.D. Texas, El Paso Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
T. BERTON, UNITED STATES MAGISTRATE JUDGE
day, the Court considered the status of the above-styled and
numbered cause. On March 9, 2017, Plaintiff Ray Charles
Sneed, proceeding pro se, filed an application to
proceed in forma pauperis along with a financial
affidavit and a Complaint pursuant to 42 U.S.C. § 1983.
(ECF. No. 1). On March 13, 2017, this Court granted
Plaintiff's application, and his Complaint was thereafter
filed. (ECF. Nos. 2, 3). In the Order, the Court noted that
“[p]rior to ordering service of process on Defendants,
the Court [would] engage in judicial screening of
Plaintiff's Complaint pursuant to 28 U.S.C. §
1915.” (ECF. No. 2). The Court has now screened
Plaintiff's Complaint and submits this Report and
due consideration, the Court RECOMMENDS that Plaintiff's
Complaint should be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) for being frivolous and for failure to state a
January 27, 1988, Plaintiff was found guilty of aggravated
sexual assault of a child following a jury trial. State
of Texas v. Ray Charles Sneed, 00803-D (Taylor County,
was sentenced to ninety-nine years of incarceration and was
eligible for parole on November 21, 2013. Id. At
some point thereafter, Plaintiff was paroled and subsequently
had his parole revoked.
Plaintiff does not identify dates, Plaintiff alleges that his
parole officer, Jessica Ibarra, denied him his mandatory ten
hour per week law library access and access to the Department
of Veterans Affairs (“VA”) for medical care and
housing benefits. (ECF. No. 3, Plaintiff's Complaint
“Compl.” 6-7). Plaintiff also alleges that Client
Monitor Supervisor Kalia Clay and Operation Supervisor Warren
Crandall at Avalon Correctional Services, Inc., fabricated
allegations and government documents which resulted in the
revocation of his parole and discriminated against him due to
his race. (Compl. 8).
further alleges that Parole Officer Erika Facio denied him
access to the courts, denied him access to the VA for housing
benefits, fabricated charges against him, and discriminated
against him due to his race. (Id.). Moreover,
Plaintiff alleges that Carlos Fierro, a Texas Board of
Pardons and Paroles Commissioner, denied him access to the
courts, denied him due process during his parole revocation
hearing by knowingly relying on fabricated allegations, and
discriminated against him due to his race. (Id.).
Lastly, Plaintiff appears to assert a defamation claim, a due
process claim for “[implementing] more and [stricter]
sex offender conditions without due process, ” and a
retaliation claim against all Defendants. (Compl. 3, 9).
Plaintiff seeks nominal, compensatory, and punitive damages.
U.S.C. § 1915 instructs that a court “shall”
dismiss an in forma pauperis complaint at any
time, if it determines that the complaint is frivolous
or it fails to state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(i)-(ii). Further, the court
may sua sponte dismiss on these grounds, even
without serving the defendants. See Wilson v.
Barrientos, 926 F.2d 480, 482 (5th Cir. 1991); see
also Neitzke v. Williams, 490 U.S. 319, 324 (1989). The
§ 1915(e)(2)(B) standard for dismissing a frivolous
complaint applies to both prisoner and non-prisoner
complaints. Newsome v. EEOC, 301 F.3d 227, 231-33
(5th Cir. 2002) (per curiam) (affirming dismissal based on
§ 1915(e)(2)(B) in a non-prisoner case).
complaint . . . is frivolous where it lacks an arguable basis
either in law or in fact.” Neitzke, 490 U.S.
at 325. “A complaint lacks an arguable basis in law if
it is based on an indisputably meritless legal theory, such
as if the complaint alleges the violation of a legal interest
which clearly does not exist.” Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999) (quoting Harper v.
Showers, 174 F.3d 716, 718 (5th Cir. 1999)). A claim is
factually frivolous if the facts are “clearly baseless,
a category encompassing allegations that are ‘fanciful,
' ‘fantastic, ' and
‘delusional.'” Hicks v. Garner, 69
F.3d 22, 25 (5th Cir. 1995) (quoting Denton v.
Hernandez, 504 U.S. 25, 33-34 (1992)).
determine whether a complaint fails to state a claim upon
which relief may be granted, courts engage in the same
analysis as when ruling on a motion for dismissal under
Federal Rule of Civil Procedure 12(b)(6). See Hale v.
King, 642 F.3d 492, 497-99 (5th Cir. 2011) (per curiam).
To survive a Rule 12(b)(6) motion to dismiss, a complaint
must contain “sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
To meet this pleading standard, the complaint must state more
than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (citation omitted).
“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
pro se pleadings are reviewed under a less stringent
standard than those drafted by attorneys, and such pleadings
are entitled to a liberal construction that includes all
reasonable inferences that can be drawn from them. Haines
v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
However, even a pro se complaint may not merely set
forth conclusory allegations. The pro se litigant
must still set forth facts giving rise to a claim on which
relief may be granted. Johnson v. Atkins, 999 F.2d
99, 100 (5th Cir. 1993) (per curiam) (citation omitted).
Plaintiff asserts numerous distinct claims, the Court will
address each in turn.
Fabricating Allegations, Evidence, ...