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Thomas v. Torres

United States District Court, S.D. Texas, Corpus Christi Division

March 14, 2018

DAVID TYRONE THOMAS, Plaintiff,
v.
RICARDO TORRES, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION TO DISMISS CASE

          Jason B. Libby United States Magistrate Judge

         Plaintiff David Tyrone Thomas is a Texas inmate appearing pro se and in forma pauperis. He filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's case is subject to screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28 U.S.C. §§1915(e)(2), 1915A.

         For purposes of screening, the undersigned recommends that Plaintiff's complaint be DISMISSED with prejudice for failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the reasons set forth below. The undersigned recommends further that the dismissal of this case counts as a “strike” for purposes of 28 U.S.C. § 1915(g).[1]

         I. JURISDICTION

         The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case has been referred to the undersigned magistrate judge for case management and making recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

         II. PROCEDURAL BACKGROUND

         Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID) and is currently housed at the Clements Unit in Brazoria, Texas. A review of this Court's records reveals that Plaintiff was convicted on December 18, 2006 of possession with intent to distribute approximately 6.91 grams of cocaine and sentenced to twenty-one months in prison. (USA v. Thomas, Criminal No. C-06-259 (S.D. Tex. 2006), D.E. 19). Plaintiff is currently serving the following sentences out of Kleberg County: (1) a twenty-year sentence for evading arrest; (2) a twenty-five year sentence for tampering with evidence; and (3) a twenty-year sentence for evading arrest with a prior conviction. Plaintiff was sentenced for each conviction on January 11, 2017.

         On December 19, 2017, Plaintiff filed this civil rights action in the Galveston Division of this Court. (D.E. 1). On January 2, 2018, United States District Judge George C. Hanks transferred Plaintiff's action to the Corpus Christi Division. (D.E. 5). In this action, Plaintiff sues the following defendants: (1) Chief Ricardo Torres, Kingsville Police Department; (2) Kleberg County Sheriff Ed Mata; (3) Kleberg County Sheriff Kirk Patrick; (4) James Craig, Naval Intelligence Secret Service; and (5) Gus Ruiz, SWAT team member. Plaintiff generally alleges that the Defendants violated his constitutional rights during the course of his arrest on February 19, 2006 in Kleberg County, Texas. Plaintiff seeks “damages.” On January 3, 2018, Plaintiff was ordered to file a More Definite Statement. (D.E. 7). Plaintiff submitted his More Definite Statement on January 22, 2018. (D.E. 9). A Spears[2] hearing was conducted on February 26, 2018. The following representations were made either at the Spears hearing or in Plaintiff's original complaint (D.E. 1) and More Definite Statement (D.E. 9):

         Plaintiff testified that, pursuant to an arrest warrant, he was arrested on February 19, 2006 in Kleberg County on charges of aggravated assault with a deadly weapon on a public servant, possession of drugs with intent to distribute, and resisting arrest. Plaintiff was twenty-years old at the time of this arrest. Plaintiff's arrest occurred in conjunction with a joint task force investigation called “Operation Tsunami.” The joint task force consisted of naval intelligence, the Federal Bureau of Investigations (FBI), the U.S. Marshals, and the Kleberg County Sheriff's Department.

         Plaintiff, who was in the passenger seat of an automobile at the time of the arrest, testified that officers directed him to exit the automobile with his hands raised. Plaintiff alleges officers grabbed Plaintiff and threw him to the ground. The officers communicated to Plaintiff words suggesting that Plaintiff was resisting arrest. The officers then reportedly kicked and punched Plaintiff all over his body. As a result of these actions, Plaintiff suffered bruises to his face and was bleeding. Plaintiff also alleges certain officers took illegal pictures of Plaintiff.

         Plaintiff identified Sheriff Patrick and SWAT team member Ruiz as actively participating in the assault. Plaintiff stated that Chief Torres, Naval Intelligence Officer Craig, and Sheriff Mata watched the assault and failed to intervene. Following the assault, Plaintiff was handcuffed and placed in the back of a patrol car. According to Plaintiff, a lieutenant subordinate to Sheriff Patrick jumped in the patrol car and began choking Plaintiff while he was in handcuffs.

         Shortly after he was arrested and taken into custody, Plaintiff appeared before the magistrate judge. Plaintiff was released on bond a couple of days later. Plaintiff never received any information about the charges after he was released on bond. In 2014, Plaintiff filed a state court action in Kleberg County (Cause No. 14-583-C), in which he asserted claims arising from his arrest on February 19, 2006. Plaintiff's application to proceed in forma pauperis, however, was denied by the Kleberg County district court in 2016. Plaintiff now seeks to pursue these claims before this Court.

         III. LEGAL STANDARD

         When a prisoner seeks to proceed in forma pauperis the Court shall evaluate the complaint and dismiss it without service of process if the Court finds the complaint frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. See 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989). A claim has no 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 ...


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