United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ United States District Judge
the Court is Plaintiff Jason Wayne McBride's 42 U.S.C.
§ 1983 Civil Rights Complaint.
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
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.
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).
§ 1983 Complaint fails to state a non-frivolous claim
and shall be dismissed for the following reasons:
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).
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
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