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Escobedo v. Onofre

United States District Court, W.D. Texas, San Antonio Division

May 15, 2019

RICKY ESCOBEDO, Plaintiff,
v.
BRIAN J. ONOFRE and KATHERINE R. GUTIERREZ, Defendants.

          SHOW CAUSE ORDER

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. Legal Standard

         According 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).

         An 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).

         In 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 555-56.

         II. Deficiencies in Plaintiff's Complaint

         The 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.

         Plaintiff's § 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 accounted for.
• 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.

         Plaintiff seeks return of his property, damages, and dismissal of the charges against him.

         a. Plaintiff has no claim pursuant to ยง 1983 against ...


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