United States District Court, W.D. Texas, El Paso Division
GEORGE A. BELTRAN, Reg. No. 29768-298, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE.
A. Beltran, a federal prisoner proceeding pro se and in forma
pauperis, alleges violations of his rights in a
“Complaint” (ECF No. 1) and a “First
Amended Complaint” (ECF No. 38). For the reasons
discussed below, the Court will dismiss Beltran's
time Beltran filed his complaint and first amended complaint,
he was a prisoner at the La Tuna Federal Correctional
Institution (FCI La Tuna) in Anthony, Texas. He was serving a
120-month sentence, with a five-year term of supervision to
follow, for importing cocaine. He was released on July 27,
complaint and first amended complaint, Beltran asserts four
distinct claims against multiple defendants-including federal
entities, federal employees, and federal prisoners. First,
Beltran alleges Drug Treatment Specialist Robert Hernandez
discriminated against him based on his race (White) and
religion (Santeria); tortuously interfered with his
“contract, ” which allowed him to participate in
a Residential Drug Abuse Treatment Program (RDAP); and
violated various regulations and Federal Bureau of Prison
(BOP) policies. Pl.'s Compl. 9-15, ECF No. 1. In support
of his claim, Beltran asserts that after discussing his
religion with Hernandez on one occasion, Hernandez gave him
“accountabilities” for leaving personal property
outside his locker on two consecutive days. Id., at
9-10. These “accountabilities, ” Beltran
maintains, placed him at risk of losing a transfer to a
halfway house for the second phase of RDAP and early release
from custody. Second, Beltran claims Education Technicians
Apodaca, Avila, and Estrada denied him access to the courts
when they took “typing wheels” away from the
entire inmate population and prevented all inmates from
typing their pleadings. Id., at 16-20. Third,
Beltran maintains Hernandez discriminated against him based
on his race (white) by granting preferential treatment to
prisoners listed in the Central Inmate Monitoring (CIM)
system. Id., at 21-22. Consequently, he alleges,
these inmates were permitted to stalk, harass, and defame
him. Finally, Beltran asserts Nurse Pierce, Dr. Rebauld, Dr.
Cardi, and Dr. Davila acted with deliberate indifference to
his serious medical needs when they failed to ensure he
obtained breast-reduction surgery for his enlarged breasts
caused by his treatment for an enlarged prostate with
Finasteride. Id., at 23-25. Beltran seeks injunctive
relief and “monetary compensation for damages under
each statutory claim asserted.” First Am.
Compl. 36, ECF No. 38.
prisoner's complaint seeking redress from an officer or
employee of a governmental entity is subject to preliminary
screening pursuant to 28 U.S.C. § 1915A. Martin v.
Scott, 156 F.3d 578, 579-80 (5th Cir.1998) (per curiam).
Section 1915A(b) provides for sua sponte dismissal
if the Court finds the complaint is “frivolous or
malicious, ” “fails to state a claim upon which
relief may be granted, ” or seeks monetary damages from
a defendant who is immune from such relief. Id. A
complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim lacks an
arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at
327. A complaint fails to state a claim upon which relief may
be granted when it fails to plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678
United States Magistrate Judge to whom the Court referred
this matter screened Beltran's complaint pursuant to 28
U.S.C. § 1915A, as well as 28 U.S.C. §
1915(e)(2)(B) and 42 U.S.C. § 1997e. See 28
U.S.C. § 636(b)(1)(B) (permitting a district court, on
its own motion, to refer a pending matter to a Magistrate
Judge for a report and recommendation). He also received
Beltran's testimony during a hearing pursuant to
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),
overruled on other grounds by Nietzke v. Williams,
490 U.S. 319, 324 (1989), and considered Beltran's First
Magistrate Judge recommends that the Court dismiss all of
Beltran's first claim as frivolous and for failure to
state a claim on which relief may be granted-except for the
claim of religious retaliation against Hernandez in his
individual capacity. R. & R. 1, 40-42, ECF No. 39. He
also recommends-in light of Federal Rules of Civil Procedure
18, 20, and 21-that the Court sever Beltran's remaining
claims due to the improper joinder of the parties.
Id., at 42-44.
have fourteen days from the date of service of a magistrate
judge's report and recommendation to make objections.
Id., at 44. See also 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(2). A party who files timely
written objections is entitled to a “de novo”
review of those portions of the report to which the party
objects. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).
As to other portions of the report or when a party does not
file written objections, a court applies a “clearly
erroneous, abuse of discretion and contrary to law”
standard of review. 28 U.S.C. § 636(b)(1)(A); United
States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
After completing its review, a court may accept, reject, or
modify the report, in whole or in part. 28 U.S.C. §
636(b)(1)(C); Fed.R.Civ.P. 72(b).
District Clerk sent a copy of the Magistrate Judge's
report and recommendation to Beltran at his last known
address. It was returned, marked “no longer in
custody.” PS Form 3811, ECF No. 43. Hence, Beltran
failed to keep the Court advised of his current address, and
he has not responded to the report and recommendation.
Beltran did not file objections, the Court applies a clearly
erroneous, abuse of discretion and contrary to law standard
of review to the report and recommendation of the Magistrate
Magistrate Judge recommends that the Court sever
Beltran's second, third, and fourth claims due to the
“improper joinder of ...