United States District Court, S.D. Texas, Houston Division
MEMORANDUM ON DISMISSAL
H. BENNETT UNITED STATES DISTRICT JUDGE.
Joe Jones, a Texas Department of Criminal Justice inmate,
sued in June 20017, alleging civil rights violations
resulting from a deprivation of property. Jones, proceeding
pro se and in forma pauperis, sues Donald
Ray Brown. Jones asserts that in 2015, Jones gave his
brother, Donald Ray Brown, power of attorney so that Brown
could close Jones's 4Ol(k) account. Jones asked Brown to
send the funds from his 4Ol(k), in the amount of $6, 000.00,
to him in prison. Jones states that to date he has not
received the funds from his brother.
seeks to recover his $6, 000.00 as well as unspecified
district court must dismiss a prisoner's § 1983
complaint if the action is malicious or frivolous, fails to
state a claim, or seeks monetary relief from a defendant who
is immune. 28 U.S.C. § 1915(e)(2)(B). Under §
l9l5(e)(2)(B)(i), the court may dismiss an in forma
pauperis complaint as frivolous when it lacks an
arguable basis in law or fact. Hutchins v.
McDaniels, 512 F.3d 193, 195 (5th Cir. 2007) (citing
Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998)).
A complaint is frivolous if it lacks an arguable basis in law
or fact. See Denton v. Hernandez, 504 U.S. 25, 31
(1992); Richardson v. Spurlock, 260 F.3d 495, 498
(5th Cir. 2001) (citing 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, such as if the complaint alleges the
violation of a legal interest which clearly does not
exist." Davis v. Scott, 157 F.3d 1003, 1005
(5th Cir. 1998) (quoting McCormickv. Stalder, 105
F.3d 1059, 1061 (5th Cir. 1997)).
of action under 42 U.S.C. § 1983 requires a showing that
Jones has been deprived of a right secured by the
Constitution or laws of the United States, and that the
deprivation was caused by someone acting under color of state
law. Baker v. McCollan, 443 U.S. 137 (1979).
nothing in the language of the Due Process Clause requires
the state to protect the life, liberty, and property of its
citizens against invasion by private actors. Piotrowski
v. City of Houston, 51 F.3d 512, 515 (5th Cir.
l995)(citing DeShaney v. Winnebago County Dep't of
Social Servs., 489 U.S. 189, 195 (1989)). The Due
Process Clause confers protection to the general public
against unwarranted governmental interference, but it does
not confer an entitlement to governmental aid as may be
necessary to realize the advantages of liberty guaranteed by
the Clause. Walton v. Alexander, 44 F.3d 1297, 1302
(5th Cir. l995)(en banc).
actions of private actors such as the named defendant do not
constitute state action under 42 U.S.C. § 1983. See
Briscoe v. LaHue, 460 U.S. 325, 329 (1983). Jones has
failed to demonstrate that he has been deprived of a right
secured by the Constitution or laws of the United States, and
that the deprivation was caused by someone acting under color
of state law. Jones's claims against the named defendant
are DISMISSED as frivolous.
motion to proceed in forma pauperis, (Docket Entry
No. 2), is GRANTED. The action filed by Larry Joe Jones
(TDCJ-CID Inmate #2005311) lacks an arguable basis in law.
His claims are DISMISSED with prejudice under 28 U.S.C.
TDCJ-CID shall continue to deduct twenty percent of each
deposit made to Jones's inmate trust account and forward
payments to the court on a regular basis, provided the
account exceeds $10.00, until the filing fee obligation of
$350.00 is paid in full.
Clerk will provide a copy of this order by regular mail,
facsimile transmission, or e-mail to:
TDCJ - Office of the General Counsel, Capitol Station, P.O.
Box 13084, ...