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 February 9, 2018, pro se
Plaintiff George Lamar Darryl Foster filed an application to
proceed in forma pauperis and a Complaint. (ECF. No.
1). On March 9, 2018, after submitting the required
supplemental information, the Court granted Plaintiff's
application and his Complaint was filed. (ECF. Nos. 5-7). 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. 6). The Court has now
screened Plaintiff's Complaint and submits this Report
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.
must, the Court accepts Plaintiff's well-pleaded
allegations as true for the purposes of this Report and
Recommendation. However, because Plaintiff's criminal
case took place in this Court, the Court takes judicial
notice of the docket in United States of America v.
George Lamar Darryl Foster, 3:16-CR-01340-DB-1
(2016). See ITT Rayonier, Inc. v. United
States, 651 F.2d 343, 345 n.2. (5th Cir. 1981) (“A
court may . . . take judicial notice of its own records . . .
.”); Fed.R.Evid. 201(b)(2).
8, 2016, a criminal complaint was filed against Plaintiff for
violations of 21 U.S.C. § 841(a)(1) and 8 U.S.C. §
1324 before Senior District Judge David Briones. (CD 1). On
July 13, 2016, Magistrate Judge Miguel A. Torres set
Plaintiffs bond at $30, 000 cash or corporate surety. (CD
21). Plaintiff was ordered to reside in Fresno, California
and report to Pretrial Services as directed. (Id.).
January 17, 2017, El Paso U.S. Pretrial Services Officer
Oscar A. Lazalde filed a Petition for Action seeking
revocation of Plaintiffs bond. (CD 80; ECF. No. 7, p. 11-13).
Relevant here, Officer Lazalde reported the following
information from the Fresno United States Pretrial Services
• On October 14, 2016 a Violation Notice was submitted
informing Plaintiff that his urine samples tested positive
for marijuana on August 9, 2016, August 23, 2016, and
September 26, 2016;
• The samples were sent for confirmation to Alere
Laboratories, which determined that Plaintiff re-used
marijuana prior to the collections on August 23, 2016 and
September 26, 2016;
• Plaintiff maintained that he did not use marijuana;
• Plaintiff s bond was thereafter modified to include
location monitoring; and
• Plaintiff failed to report to U.S. Pretrial Services
in Fresno and provide urine samples on October 25, 2016;
November 1, 2016; November 16, 2016; December 6, 2016;
December 19, 2016; January 7, 2017; and January 10, 2017.
(Id.). An arrest warrant was then issued for
Plaintiff, signed by Michael Trujillo of the United States
District Clerk's Office. (CD 81, ECF. No. 7 p. 14).
Thereafter, Judge Briones revoked Plaintiff's bond and
remanded him into custody. (CD 93, ECF. No. 7 p. 16).
Plaintiff asserts that Officer Lazalde and Michael Trujillo:
(1) colluded to violate Plaintiff's Equal Protection
rights in violation of 42 U.S.C. §§ 1985, 1986,
1988 by fabricating positive urine tests; (2) violated his
Eighth Amendment rights by, inter alia, committing
perjury; and (3) “were responsible for Plaintiff's
wrongfully being violated [sic] for a false positive urine
test, in violation of U.S.C. § 4042, 42 U.S.C. 1985,
1986, 1988 and 5th, 8th, 14th Amend. U.S. Const.” (ECF.
No. 7, p. 4-5). Plaintiff seeks declaratory, compensatory,
and punitive relief. (Id. at ...