United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO DISMISS
B. Libby United States Magistrate Judge
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.
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).
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.
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.
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 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):
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
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.
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.
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.
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 ...