United States District Court, W.D. Texas, El Paso Division
REPORT AND RECOMMENDATION
F. CASTANEDA UNITED STATES MAGISTRATE JUDGE
Enrique Alfredo Tavares, proceeding pro se, filed
suit under Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971). After due consideration,
pursuant to 28 U.S.C. § 1915, the Court
RECOMMENDS that Tavares's
Bivens claim should be DISMISSED WITH
November 2, 2016, the United States Attorney's Office for
the Western District of Texas filed an application for writ
of habeas corpus ad prosequendum to transfer
Tavares from the El Paso County Jail Annex to the
West Texas Detention Center
(“WTDC”). (ECF. No. 62: Ex. A) Tavares was set to
appear in federal court for conspiracy to possess heroin with
intent to distribute. See United States v. Tavares,
No. 3-14-cr-01236-KC, ECF. No. 14, 114, 121 (W.D. Tex. Jan.
April 27, 2017, at WTDC, Tavares alleges that Captain
McQuade, Sergeant Pittman, and Eli Basulto assaulted him.
(ECF. No. 6) Specifically, Tavares alleges that Captain
McQuade punched him in the face numerous times, Sergeant
Pitman scratched him and squeezed his arm causing him to
trip, and Eli Basulto slammed him on the ground.
(Id.) Further, Tavares alleges that Eli Basulto lied
about these events and had false charges filed against him.
(Id.) At the time of the alleged assault, Tavares
was a federal pretrial detainee at a private facility.
Tavares filed suit against LaSalle Corrections V, LLC
(“LaSalle”), Captain McQuade, Sergeant Pitman, and
Eli Basulto (collectively “Defendants”) under 42
U.S.C. § 1983. Tavares sued Captain McQuade, Sergeant
Pitman, and Eli Basulto for excessive force and LaSalle for
allowing the assault. (Id.) After the alleged assault,
Tavares was remanded to state custody in June of 2017. (ECF.
No. 62: Ex. B, D) Tavares is currently incarcerated in the
Price Daniels Unit in Snyder, Texas. (ECF. No. 26)
U.S.C. § 1915 instructs that a court “shall”
dismiss an in forma pauperis complaint at any time,
if it determines that the complaint is frivolous or it fails
to state a claim on which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(i)-(ii) (2012). Further, the court may
sua sponte dismiss on these grounds, even without
serving the defendants. See Wilson v. Barrientos,
926 F.2d 480, 482 (5th Cir. 1991) (“Dismissal [under
§ 1915] is ‘often made sua sponte prior
to the issuance of process, so as to spare prospective
defendants the inconvenience and expense of answering such
complaints.'”) (quoting Neitzke v.
Williams, 490 U.S. 319, 324 (1989)). The standard under
§ 1915(e)(2)(B) for dismissing a frivolous complaint
applies to both prisoner and non-prisoner complaints.
Newsome v. EEOC, 301 F.3d 227, 231-33 (5th Cir.
2002) (per curiam) (affirming dismissal based on §
1915(e)(2)(B) in a non-prisoner case).
complaint . . . is frivolous where it lacks an arguable basis
either in law or in fact.” Neitzke, 490 U.S.
at 325. “A complaint lacks an 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.” Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999) (quoting Harper v.
Showers, 174 F.3d 716, 718 (5th Cir. 1999)). A claim is
factually frivolous if the facts are “clearly baseless,
a category encompassing allegations that are ‘fanciful,
' ‘fantastic, ' and
‘delusional.'” Hicks v. Garner, 69
F.3d 22, 25 (5th Cir. 1995) (quoting Denton v. Hernandez, 504
U.S. 25, 33-34 (1992)).
determine whether a complaint fails to state a claim upon
which relief may be granted, courts engage in the same
analysis as when ruling on a motion for dismissal under
Federal Rule of Civil Procedure 12(b)(6). See Hale v.
King, 642 F.3d 492, 497-99 (5th Cir. 2011) (per curiam).
To survive a Rule 12(b)(6) motion to dismiss, 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
(2009) (internal quotation marks and citation omitted).
“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.” Id. (citation omitted).
To meet this pleading standard, the complaint must state more
than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (citation omitted).
“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
pro se pleadings are reviewed under a less stringent
standard than those drafted by attorneys, and such pleadings
are entitled to a liberal construction that includes all
reasonable inferences that can be drawn from them. Haines
v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
However, even a pro se complaint may not merely set
forth conclusory allegations. The pro se litigant
must still set forth facts giving rise to a claim on which
relief may be granted. Johnson v. Atkins, 999 F.2d
99, 100 (5th Cir. 1993) (per curiam) (citation omitted).
time of his alleged assault, Tavares was being held in a
private prison under the color of federal law. Therefore,
instead of an action under § 1983, this Court will
evaluate Tavares's claim under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971). A
Bivens action is analogous to an action under §
1983 except that § 1983 applies to constitutional
violations by state, rather than federal actors. Abate v.
Southern Pac. Transp. Co., 993 F.2d 107, 110 n. 14 (5th
Cir.1993). Thus, to succeed on a Bivens cause of
action, Tavares must demonstrate a constitutional violation.
Garcia v. U.S., 666 F.2d 960, 966 (5th Cir. 1982).
Ziglar v. Abbassi, the Supreme Court recognized only
three valid Bivens cases. 137 S.Ct. 1843, 1854-55.
First, in Bivens itself, the Supreme Court
recognized an implied damage action to compensate persons
injured by federal officers in violation of the Fourth
Amendment's prohibition against unreasonable searches and
seizures. Id. at 1854 (citing Bivens v. Six
Unknown Fed. Narcotics Agents403 U.S. 388, 397 (1971)).
Second, in Davis v. Passman, the Supreme Court
recognized a Bivens remedy for a Fifth Amendment
gender-discrimination case. 442 U.S. 228 (1979). Finally, in
Carlson v. Green, the Supreme Court recognized a
Bivens remedy for an Eight Amendment Cruel and
Unusual Punishment Clause case. 446 U.S. 14 (1980). Outside
of these three unique circumstances, the Supreme Court views
new Bivens claims ...