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, Cody Robert Cummings (“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. See 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 a violation of a legal interest which clearly does
not exist.” Harper v. Showers, 174 F.3d 716,
718 (5th Cir. 1999) (internal quotation marks 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 Sections
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, 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.
Deficiencies in Plaintiff's Complaint
is in the custody of the Bexar County Adult Detention Center
(“BCADC”). In his Section 1983 Complaint, he
alleges that on or about February 18, 2019, he was wrongfully
arrested and charged with two counts of unauthorized use of a
vehicle; and on or about May 24, 2019, he was wrongfully
arrested and charged with a third count of unauthorized use
of a vehicle. Plaintiff maintains the vehicles in question
either belonged to him or were being used by him with the
owner's permission. Plaintiff also complains he was not
brought before a magistrate and is currently being unlawfully
held on excessive bond. Plaintiff brings this Section 1983
suit against Defendants Bexar County Sheriff Javier Salazar,
the Bexar County Jail, and the City of San Antonio, seeking
to have his criminal charges dismissed, the officers
disciplined, and damages awarded in compensation for his loss
of “property, liberties, [and] freedoms.”
previously requested and was granted leave to proceed in
forma pauperis (“IFP”). [#2]. As addressed
above, an IFP plaintiff's complaint is considered
frivolous and subject to dismissal if it fails to state a
claim on which relief can be granted. Here, Plaintiff's
claims are deficient in the following respects:
Plaintiff's Complaint fails to allege Sheriff Salazar was
personally involved in the acts of which he
state a claim against a defendant under Section 1983, a
plaintiff must allege that the defendant was personally
involved in the actions complained of or is responsible for
the policy or custom giving rise to the constitutional
deprivation. See Murphy v. Kellar, 950 F.2d 290, 292
(5th Cir. 1992); McConney v. Hous., 863 F.2d 1180,
1184 (5th Cir. 1989); Reimer v. Smith, 663 F.2d
1316, 1323 (5th Cir. 1981); Howell v. Tanner, 650
F.2d 610, 615 (5th Cir. 1981). An employer cannot be held
liable under Section 1983 on a respondeat superior theory;
stated differently, an employer is not liable under Section
1983 solely because it employs someone who commits a tort.
See Monell v. Dep't Soc. Servs. City New York,
436 U.S. 658, 691 (1978).
does not allege that Sheriff Salazar was involved in either
of his arrests. Likewise, Plaintiff does not allege that
Sheriff Salazar was personally involved in setting
Plaintiff's bond or in ordering he be detained or that he
was responsible for a policy that resulted in a violation of
his rights. Therefore, in response to this Order, Plaintiff
should clarify whether he is alleging Sheriff Salazar was
personally involved in his arrest, the setting of his bond,
and his detention, or whether Sheriff Salazar was otherwise
involved in the violation of his constitutional rights.
Plaintiff should provide detailed allegations regarding
Sheriff Salazar's involvement, if any.
Plaintiff fails to allege facts supporting a claim against
the Bexar County Jail/Bexar County and the
City of San Antonio.
has sued the Bexar County Jail. But “a plaintiff may
not bring a civil rights claim against a servient political
agency or department unless such agency or department enjoys
a separate and distinct legal existence.” Estate of
Schroeder v. Gillespie Cty., 23 F.Supp.3d 775, 781 (W.D.
Tex. 2014) (citing Darby v. Pasadena Police
Dep't, 939 F.2d 311 (5th Cir. 1991)). Plaintiff has
failed to allege any specific facts showing final Bexar
County policymakers have ever authorized the Bexar County
Jail to enjoy a jural existence separate and apart from Bexar
County, Texas. Thus, by naming the Bexar County Jail as a
defendant in this lawsuit, Plaintiff has effectively brought
suit against Bexar County. See Darby, 939 F.2d at