United States District Court, W.D. Texas, San Antonio Division
SHOW CAUSE ORDER
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
the Court is the Civil Rights Complaint [#1] filed by the
plaintiff, Ricky Escobedo (“Plaintiff”), pursuant
to 42 U.S.C. § 1983. Plaintiff is ordered to file an
amended complaint clarifying his allegations and, to the
extent possible, curing the Complaint's legal
deficiencies, which are described below.
to 28 U.S.C. § 1915A(b)(1), this Court is required to
screen any civil complaint in which a prisoner seeks relief
against a government entity, officer, or employee and dismiss
the complaint if the court determines it is frivolous,
malicious, or fails to state a claim on which relief may be
granted. See also 28 U.S.C. § 1915(e)(2)(B)
(directing court to dismiss case filed in forma
pauperis at any time if it is determined that the action
is (i) frivolous or malicious or (ii) fails to state a claim
on which relief may be granted).
action is frivolous where there is no arguable legal or
factual basis for the claim. Neitzke v. Williams,
490 U.S. 319, 325 (1989). “A complaint lacks an
arguable basis in law if it is based on an indisputably
meritless legal theory, such as if the complaint alleges
violation of a legal interest which clearly does not
exist.” Harper v. Showers, 174 F.3d 716, 718
(5th Cir. 1999) (internal quotation and citation omitted). A
complaint is factually frivolous when “the facts
alleged are ‘fantastic or delusional scenarios' or
the legal theory upon which a complaint relies is
‘indisputably meritless.'” Eason v.
Thaler, 14 F.3d 8, n.5 (5th Cir. 1994) (quoting
Neitzke, 490 U.S. at 327-28).
evaluating whether a complaint states a claim under §
1915A(b)(1) and § 1915(e)(2)(B), this Court applies the
same standards governing dismissals pursuant to Rule
12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152
(5th Cir. 2011). To avoid dismissal under Rule 12(b)(6),
“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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007)).
These factual allegations need not be detailed but
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
A conclusory complaint-one that fails to state material facts
or merely recites the elements of a cause of action-may be
dismissed for failure to state a claim. See Id. at
Deficiencies in Plaintiff's Complaint
public record shows Plaintiff was indicted in this Court in
No. SA-17-CR-391-XR for multiple counts of interference with
commerce by threats or violence, conspiracy to engage in
drug-trafficking, drug-trafficking, possession of firearms in
relation to drug-trafficking offenses, and unlawful transport
of firearms. The case is pending and Plaintiff is represented
by appointed counsel John J. Ritenour, Jr.
§ 1983 Complaint purports to sue FBI Special Agents
Brian Onofre and Katherine R. Gutierrez alleging:
• They ordered San Antonio police to search and seize
Plaintiff's vehicle without probable cause on October 6,
2016 and April 28, 2017, resulting in the seizure of
Plaintiff's wallet containing $400 cash that has not been
• They ordered the search of Plaintiff's residence
on May 19, 2017, pursuant to a warrant signed by U.S.
Magistrate Judge Henry J. Bemporad that was invalid because
the affidavit in support contains misrepresentations and
facts that fail to support probable cause.
• On December 13, 2017, they illegally searched and
seized attorney-client information from Plaintiff while he
was in federal custody.
seeks return of his property, damages, and dismissal of the
charges against him.
Plaintiff has no claim pursuant to § 1983 against ...