Ledesma v. Davis

          REPORT AND RECOMMENDATION

          J. SCOTT HACKER UNITED STATES MAGISTRATE JUDGE

         Pending 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).

         After 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.

         I. BACKGROUND AND SUMMARY OF THE PLEADINGS

         Plaintiff 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.^[1] 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.

         Plaintiff 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).

         II. RELEVANT LAW AND ANALYSIS

         A. Prison Litigation Reform Act

         Pursuant 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, 520 (1972).

         A 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. at 33-34.

         Dismissal 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.").

         B. Analysis

         1. Section 1983 Claim

         To 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 § ...