United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO DISMISS
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
civil rights action was filed by Plaintiff Darrell Baldwin, a
Texas state prisoner, pursuant to 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134,
110 Stat. 1321 (1996), any prisoner action brought under
federal law must be dismissed if the complaint is frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant immune
from such relief. See 42 U.S.C. § 1997e(c); 28
U.S.C. §§ 1915(e)(2), 1915A. Plaintiff's action
is subject to screening regardless whether he prepays the
entire filing fee or proceeds as a pauper. Ruiz v. United
States, 160 F.3d 273, 274 (5th Cir. 1998) (per curiam);
Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998)
(per curiam). Plaintiff's pro se complaint must
be read indulgently, Haines v. Kerner, 404 U.S. 519,
520 (1972), and his allegations must be accepted as true,
unless they are clearly irrational or wholly incredible,
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
these standards, it is respectfully recommended that: (1)
Plaintiff's due process claim for money damages against
Defendants in their official capacities be dismissed with
prejudice as barred by the Eleventh Amendment; (2)
Plaintiff's due process claim against Defendants 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); and (3) the dismissal of this case count as
a “strike” for purposes of 28 U.S.C. §
Court has federal question jurisdiction over this civil
rights action pursuant to 28 U.S.C. § 1331.
BACKGROUND FACTS AND PLAINTIFF'S ALLEGATIONS.
is a prisoner in the Texas Department of Criminal Justice,
Criminal Institutions Division (TDCJ-CID). Plaintiff's
allegations in this case arise in connection with his current
assignment to the McConnell Unit in Beeville, Texas.
civil rights action, Plaintiff sues the following McConnell
Unit officers: (1) Sergeant Russell Landry, Jr.; and (2)
Major James Thompson, III. (D.E. 1 at p. 3). Plaintiff claims
that Defendants caused the loss of certain personal property
that belonged to Plaintiff. The undersigned construes
Plaintiff's lawsuit as suing Defendants in their
individual and official capacities. Plaintiff seeks either
return of his lost property or proper compensation as well as
“$10, 000 for mental stress and strain.” (D.E. 1,
alleges the following facts in his complaint. On September
15, 2017, Plaintiff was placed in administrative segregation.
While he was in segregation, other inmates were allowed to
pack Plaintiff's personal property. According to
Plaintiff, his radio, coax cable, and hot pot were either
lost or stolen. An unidentified prison official knew that
most of Plaintiff's belongings were missing when he
brought Plaintiff's personal property to him. Plaintiff
informed Major Thompson about what had occurred but was not
compensated for his missing personal property.
September 21, 2017, Plaintiff filed a Step 1 grievance
(Grievance No. 2016003757) in which he complained about the
loss of his radio, coax cable, and hot pot. (D.E. 1-1, pp.
1-2). The reviewing officer rejected Plaintiff's Step 1
grievance, finding that the “[i]nvestigation [had]
revealed no documentary evidence to substantiate that
[Plaintiff was] in possession of the alleged missing
property.” (D.E. 1-1, p. 2). Plaintiff's Step 2
grievance was denied based on the Step 1 response. (D.E. 1,
March 21, 2018, the undersigned directed Plaintiff to file a
more definite statement and explain whether he has pursued
any available post-deprivation remedies in state court. (D.E.
6). Plaintiff filed his More Definite Statement on April 2,
2018. (D.E. 9). Therein, he indicated that he had provided
the state appellate court with notice to file a tort suit for
loss of property. (D.E. 9, p. 1). Plaintiff attached his
notice, which reflected that it was mailed to the
“Court of Appeal [sic]” at 1135 N. Shoreline
Boulevard, Corpus Christi, Texas 78401. (D.E. 9, p. 3).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988); see also Biliski v. Harborth, 55 F.3d 160,
162 (5th Cir. 1995). An action may be dismissed for failure
to state a claim when the complaint does not plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Iqbal, 556 U.S. at 678. The complaint must be
liberally construed in favor of the prisoner and the truth of
all pleaded facts must be assumed. Oliver v. Scott,
276 F.3d 736, 740 (5th Cir. 2002).
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