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McBride v. Comal County Sheriff Mark Reynolds

United States District Court, W.D. Texas, San Antonio Division

June 29, 2017

JASON WAYNE McBRIDE, # 265267, Plaintiff
v.
COMAL COUNTY SHERIFF MARK REYNOLDS, et al., Defendants

          DISMISSAL ORDER

          XAVIER RODRIGUEZ United States District Judge

         Before the Court is Plaintiff Jason Wayne McBride's 42 U.S.C. § 1983 Civil Rights Complaint.

         I.

         McBride is a pretrial detainee in the custody of the Comal County Jail. His § 1983 Complaint alleges without further explanation: he has been denied his right to “freely associate with Ms. Carol Jewel;” he is not treated fairly and his grievances go unresolved; the food servings are not adequate and fail to meet FDA guidelines; his law library time is limited impeding this § 1983 case and his other litigation efforts; and his Sixth Amendment right to a speedy trial is being violated and his counsel “refuses to be of any assistance.” McBride sues Comal County Sheriff Mark Reynolds, Chief Brent Pallus, Major John Bell, Captain Scott Moen, Lieutenant Kelvin Marchant, and Sergeant Derrick Sassenhagen seeking injunctive relief and damages.

         Because McBride's allegations were vague and conclusory, this Court entered a show cause order directing McBride to file an amended complaint stating facts in support of his claims. McBride's response to this Court's order repeats his allegations, but offers little in the way of supporting facts. He also, for the first time and without further explanation, complains that he has been denied sunlight and his hepatitis C is not being properly treated.

         II.

         Title 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii) and 1915A(b)(1)-(2) require this Court to screen an IFP or prisoner's complaint, and dismiss the complaint if the court determines it is frivolous, malicious, fails to state a claim on which relief may be granted, or the plaintiff seeks monetary relief against an immune defendant. An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). To state a claim pursuant to Fed.R.Civ.P. 12(b)(6), “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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A conclusory complaint, one that fails to state material facts, may be dismissed as frivolous, see e.g. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992), Moody v. Baker, 857 F.2d 256, 257 (5th Cir.), cert. denied, 488 U.S. 985 (1988), or for failure to state a claim, see Rios v. City of Del Rio, 444 F.3d 417, 426 (5th Cir.), cert. denied, 549 U.S. 825 (2006).

         McBride's § 1983 Complaint fails to state a non-frivolous claim and shall be dismissed for the following reasons:

         - A -

         McBride's claim his right to “freely associate with Ms. Carol Jewel” is being denied has already been addressed and dismissed by this Court. McBride was indicted on January 6, 2016 in Comal County in Case No. CR-2016-008 for, inter alia, three counts of assault involving a family or household member. When he appeared before Magistrate Ellen Salyer on February 4, 2016, he was warned not to go near or communicate with his girlfriend Carol Jewel. In McBride v. Salyer, No. SA-17-CA-211 (W.D. Tex., dismissed as frivolous March 31, 2017), McBride attempted to sue Magistrate Salyer in this Court, seeking injunctive and declaratory relief and damages, claiming her order was beyond her authority and violated McBride's First Amendment right to freedom of association. Judge Biery dismissed McBride's Complaint as barred by absolute judicial immunity, the federal Anti-Injunction Act, 28 U.S.C. § 2283, and Younger v. Harris, 401 U.S. 37, 41, 53-54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and because this Court has no authority to review state court rulings (absent habeas corpus jurisdiction which does not apply here).

         A complaint may be dismissed as frivolous or malicious pursuant to §§ 1915(e)(2)(B)(i) and 1915A(b)(1) where it seeks to relitigate claims alleging substantially the same facts arising from a common series of events which have already been unsuccessfully litigated by the plaintiff. See Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 493 U.S. 969 (1989); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). McBride's claim that denying him access to Ms. Jewel violates due process and his First amendment rights was already addressed by this Court and thus is duplicative, and shall be dismissed as malicious and frivolous. See Id. Moreover, the issue is without merit for the same reasons discussed in Case No. SA-17-CA-211-FB, i.e. the claim is barred by the Anti-Injunction Act and Younger v. Harris which prohibit this Court from enjoining on-going state criminal proceedings, and this Court has no authority to review State court rulings. This issue and McBride's other conclusory complaints about the criminal proceedings may be presented and addressed in the State criminal proceeding.

         - B -

         To state a § 1983 claim, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and show the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The case and controversy requirement of Article III of the Constitution requires that to proceed in federal court a complaint must allege an injury. See O'Shea v. Littleton, 414 U.S. 488, 493-95, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). McBride fails to allege any facts (who, what, where, when) in support of his claim that food services are not adequate, he fails to describe the diet at the Comal County Jail or explain why it is inadequate, and he fails to allege how he has been injured or harmed by the diet at the Comal County Jail. McBride complains that the kitchen is not run by a licensed dietician, however even if this is so this is not a violation of his constitutional or federal rights.

         - ...


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