United States District Court, S.D. Texas, McAllen Division
REPORT AND RECOMMENDATION
SCOTT HACKER UNITED STATES MAGISTRATE JUDGE
before the Court are Plaintiffs motions to proceed in
forma pauperis ("IFP") (Dkt. Nos. 1, 5) and
motions seeking a preliminary legal injunction (Dkt. Nos.
1-1, 4). The undersigned interprets Plaintiffs pleadings to
be an attempt to bring suit under 42 U.S.C. § 1983. This
case was referred to the undersigned magistrate judge
pursuant to 28 U.S.C. § 636(b).
review of the record and relevant law, the undersigned
respectfully recommends that Plaintiffs § 1983 action be
DISMISSED with prejudice as frivolous, that
his preliminary injunction motions (Dkt. Nos. 1-1, 4) be
DENIED, and that his motions to proceed IFP
(Dkt. Nos. 1, 5) be DENIED as moot.
BACKGROUND AND SUMMARY OF THE PLEADINGS
is an inmate in the Texas Department of Criminal Justice,
Criminal Institutions Division ("TDCJ-CID") and is
currently serving a life sentence for aggravated sexual abuse
of a minor. Plaintiffs instant action against former
Director William Stephens was received and filed in federal
court on May 12, 2016. (Dkt. No. 1). Plaintiffs self-styled
filing is entitled "Federal Rule of Civil Procedure
65(b) and Local Rule." (Dkt. No. 1-1 at 1). Plaintiff
does not specify what local rule he attempts to invoke.
claims that since 1984 there have been twenty-two attempts on
his life by four different prison gangs and that there is a
$10, 000 bounty on his head. (Dkt. No. 1-1 at 3). Based on
these attacks, Plaintiff states that there is "actual
danger of future assaults." (Id. at 4).
Plaintiff requests an "Emergency Legal Injunction
(Permanent)" and that a copy of the injunction be placed
in his "travel card folder." (Id. at 2).
Plaintiff seeks an injunction that would require prison
officials to move him by "special transportation"
that is not the "regular chain-bus" and prohibit
prison officials from housing him at "the Darrington
Unit," because that unit does not have a segregation
tank. (Id. at 4).
RELEVANT LAW AND ANALYSIS
Prison Litigation Reform Act
to the Prison Litigation Reform Act, the Court may dismiss a
case at any time if the action is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant who is immune from
monetary relief. 42 U.S.C. § 1997e(c); 28 U.S.C.
§§ 1915(e)(2), 1915A. Plaintiffs action is subject
to screening regardless of whether he proceeds in forma
pauperis. Ruiz v. United States, 160 F.3d 273, 274 (5th
Cir. 1998); Martin v. Scott, 156 F.3d 578, 580 (5th
Cir. 1998). Plaintiff's pro se complaint must be
read indulgently. Haines v. Kerner, 404 U.S. 519,
complaint may be dismissed as frivolous if the claim lacks an
arguable basis in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992); Neitzke v.
Williams, 490 U.S. 319 .. (1989); see also Talib v.
Gilley, 138 F.3d 211, 213 (5th Cir. 1998). "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." Harper v. Showers, 174 F.3d 716,
718 (5th Cir. 1999). The plaintiffs factual allegations must
be weighted in favor of the plaintiff unless they are clearly
irrational or wholly incredible. Hernandez, 504 U.S.
at 32-33. Under the PLRA, the Court may "pierce the veil
of the complaint's factual allegations," and dismiss
the complaint as factually frivolous if the facts alleged are
"clearly baseless," "fanciful," or
"delusional." Id. A complaint is
not factually frivolous if it could simply be
remedied through more specific pleading: "A complaint
lacks an arguable basis in fact if, after providing the
plaintiff the opportunity to present additional facts when
necessary, the facts alleged are clearly baseless."
Talib, 138 F.3d at 213; Hernandez, 504 U.S.
of a complaint for failure to state a claim under the PLRA
should not be confused with the "failure to state a
claim" standard in Federal Rule of Civil Procedure
12(b)(6), although the two have "considerable common
ground." Neitzke, 490 U.S. at 325-28. If a
complaint raises an "arguable question of law"
which is ultimately resolved against the plaintiff, dismissal
would be appropriate under Rule 12(b)(6), but not on the
basis of PLRA frivolousness. Id. The failure to
state a claim rises to the level of frivolousness if the
claims raised were "so defective that they should never
have been brought at the outset." Id.; Moore v.
Mabus, 976 F.2d 268, 269 (5th Cir. 1992) ("To the
extent that an in forma pauperis complaint fails to
state a claim because it lacks even an arguable basis in law
... [§] 1915(d)... counsel[s] dismissal.").
Section 1983 Claim
state a claim under 42 U.S.C. § 1983, "a plaintiff
must allege the violation of a right secured by the
Constitution and the 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) (citations omitted); see also Biliski
v. Harborth,55 F.3d 160, 162 (5th Cir. 1995) (per
curiam). Plaintiff fails to satisfy the requirements of a