Johnson v. Samaniego

UNITED STATES DISTRICT COURT October 08, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

ALEX BERNARD JOHNSON, §

§

Plaintiff, §

§

VS. § CIVIL ACTION NO. 2:24-CV-00060

§

PLACIDO SAMANIEGO, JR., et al., §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

TO DISMISS CASE

Plaintiff Alex Bernard Johnson (“Plaintiff”) is a Texas inmate appearing pro se. He

filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s case is subject

to screening pursuant to the Prison Litigation Reform Act (“PLRA”).1 See 42 U.S.C. §

1997e(c); 28 U.S.C. § 1915A.

For purposes of screening, the undersigned recommends that Plaintiff’s complaint

be DISMISSED with prejudice for failure to state a claim and/or as frivolous pursuant to

28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the reasons set forth below. It is further

recommended the dismissal of this case counts as a “strike” for purposes of 28 U.S.C. §

1915(g).2

1While Plaintiff paid the full filing fee, his case is still subject to screening under the PLRA.

2 The strike in this case should be assessed even though Plaintiff paid the filing fee. Byrd v. Shannon, 715 F.3d 117,

122 (3rd Cir. 2013); Coomer v. Doe # 2489, No. 5:21-CV-00213-H, 2023 WL 6370250, at *1 (N.D. Tex. Aug. 14,

2023). Plaintiff is WARNED that if he accumulates three strikes, he will not be allowed to proceed in forma pauperis

in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent

danger of serious injury. See 28 U.S.C. § 1915(g).

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I. JURISDICTION

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case

has been referred to the undersigned Magistrate Judge for case management and making

recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

II. PROCEDURAL BACKGROUND AND PLAINTIFF’S ALLEGATIONS

Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal

Institutions Division (TDCJ-CID) and is currently confined at the McConnell Unit in

Beeville, Texas. The Court received Plaintiff’s civil right complaint on March 4, 2024.

A. Original Complaint and Spears3 Hearing

In the original complaint, Plaintiff alleged “I am being shocked, burned, sexually

harassed, sent into psychogenic seizures by use of light impulses, poked in my eyes,

genitals, etc. . .” (D.E. 1, p. 5). Plaintiff also alleged he was being denied access to the

courts, was subjected to illegal searches and seizures and was subjected to cruel and

unusual punishment. (D.E. 1, p. 3). Plaintiff did not explain his claims or provide any

factual context for his allegations. A Spears hearing was conducted on July 24, 2024, where

Plaintiff was given an opportunity to explain his claims. During the Spears hearing

Plaintiff appeared to be completely sincere, however, some of Plaintiff’s claims were

clearly fantastic or delusional. For example, Plaintiff claimed his mind is being controlled

and he is being subjected to torture by some form of remote technology. (D.E. 18, p. 12,

3Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996) (stating

that testimony given at a Spears hearing is incorporated into the pleadings).

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20-21, 27). In response to a question from the Court, Plaintiff stated, “Yes, they’re using

it to decode my neurofeedback into speech.” (D.E. 18, p. 13). Plaintiff believes he is being

controlled by the use of an Electroencephalogram.4 (D.E. 18, p. 21). Plaintiff also testified

he has filed other cases, and he believes someone is replacing his legal mail with fake legal

mail that has been generated by artificial intelligence. (D.E. 18, pp. 16-18). At one point

during the Spears hearing, Plaintiff inquired how he could make sure that the undersigned

was a judicial officer, apparently fearing the proceedings were a sham. (D.E. 18, p. 33). In

addition to claims the undersigned characterizes as fantastic, Plaintiff complained about

the TDCJ mail system, having difficulty accessing money in his inmate account, being

housed in a unit where homosexual inmates sexually harassed him and having his personal

information disclosed to other persons. However, these claims were very general and were

difficult to follow. The undersigned explained to Plaintiff that many of his claims were

simply too implausible to go forward but some of his claims, such as being denied access

to funds in his inmate account or being denied access to his mail, may be able to go forward

if stated clearly with some additional explanation. Therefore, at the Spears hearing, the

undersigned directed Plaintiff to file an amended complaint to try and cure his pleading

defects. The undersigned also entered a written order for Plaintiff to file an amended

complaint. (D.E. 17). In the written order, the undersigned explained to Plaintiff his

complaint is deficient for a variety of reasons, including but not limited to:

1. Failure to state his claims clearly;

4 An Electroencephalogram is commonly known as an EEG and is used to measure electrical activity in the brain.

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2. Failure to allege sufficient facts to indicate any defendant is liable or responsible

to Plaintiff;

3. Making conclusory allegations not supported by facts;

4. Failure to allege a plausible legal theory why a defendant is liable to him or

otherwise named as a defendant; and

5. That some of his claims are simply frivolous.

With regard to his amended complaint, Plaintiff was ordered to make a short and

plain statement of each claim showing he is entitled to relief. (D.E. 18). He was further

ordered to separately list each defendant and explain what the defendant did to violate

Plaintiff’s rights and explain why the person is named as a defendant. (D.E. 18). Plaintiff

was also directed to explain his injuries and describe the specific relief he is seeking in this

civil action (i.e. money damages, injunctive relief, or both). (D.E 18). Plaintiff was given

30 days to file an amended complaint. The undersigned warned Plaintiff that failure to

comply with the Court’s order may result in the dismissal of this action for want of

prosecution under Rule 41(b) of the Federal Rules of Civil Procedure without further

notice. Plaintiff was further warned the Court is required to screen his complaint and

dismiss it without service of process if the Court finds the complaint frivolous, malicious,

fails to state a claim upon which relief can be granted or seeks monetary relief from a

defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

B. Amended Complaint

The Court received Plaintiff’s Amended Complaint on September 9, 2024. (D.E.

20). Other than titling the document Plaintiff’s Amended Complaint, including the correct

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case number, and mailing the pleading to this Court on time, Plaintiff failed to follow any

of the directives in the Order to File Amended Complaint. Plaintiff did not list any

defendant and failed to explain what any defendant did to violate his rights. Rather,

Plaintiff complained generally that he is being denied access to the courts. Plaintiff alleges

he is not in this action trying to attack his underlying conviction, but his denial of access

to the mail is preventing him from proving he is in fact innocent and was wrongly convicted

in related habeas proceedings. Plaintiff further alleges unnamed prison personnel released

his confidential personal information, such as his bank account information, to other

inmates. Plaintiff makes further general allegations his rights are being violated without

providing any contacts or explanation in fact.

III. LEGAL STANDARD

When a prisoner seeks to proceed in forma pauperis the Court shall evaluate the

complaint and dismiss it without service of process if the Court finds the complaint

frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.

See 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis

complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state

a claim upon which relief may be granted, or seeks monetary relief from an immune

defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v.

Williams, 490 U.S. 319 (1989). A claim has no 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

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interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).

A claim has no arguable basis in fact if “after providing the plaintiff the opportunity to

present additional facts when necessary, the facts alleged are clearly baseless.” Talib v.

Gilley, 138 F.3d 211, 213 (5th Cir. 1998).

“In analyzing the complaint, [the Court] will accept all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d

322, 324 (5th Cir. 1999). “The issue is not whether the plaintiff will ultimately prevail, but

whether he is entitled to offer evidence to support his claim. Thus, the Court should not

dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts

or any possible theory that he could prove consistent with the allegations in the complaint.”

Id. (citations omitted). “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Plaintiff must allege sufficient facts in support of its legal conclusions that give

rise to a reasonable inference that Defendant is liable. Id.; Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 556 (2007). The factual allegations must raise Plaintiff’s claim for relief

above the level of mere speculation. Twombly, 550 U.S. at 555. As long as the complaint,

taken as a whole, gives rise to a plausible inference of actionable conduct, Plaintiff’s claim

should not be dismissed. Id.

Section 1983 provides a vehicle for redressing the violation of federal law by those

acting under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To prevail

on a § 1983 claim, the plaintiff must prove that a person acting under the color of state law

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deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C.

§ 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A defendant acts under color of state law

if he misuses or abuses official power and if there is a nexus between the victim, the

improper conduct, and the defendant’s performance of official duties. Townsend v. Moya,

291 F.3d 859, 861 (5th Cir. 2002).

IV. DISCUSSION

Plaintiff’s allegations about his mind being controlled by unknown persons and

other similar allegations clearly fall into the “fanciful,” “fantastic,” and “delusional”

categories. Plaintiff has been given the opportunity to present additional facts and explain

these claims. These claims have no basis in fact and should be dismissed as frivolous.

Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). Although these matters are real to

Plaintiff, the allegations are so fanciful that a reasonable person would find them irrational

and completely lacking any factual basis. See e.g. Flores v. United States Attorney

General, 434 F. App’x 387, 388 (5th Cir. 2011) (affirming dismissal as frivolous where

plaintiff alleged members of the federal government were “using advanced technology with

direct signal to the satellite in outer space that has the capability of calculating a genetic

code to inflict upon the [plaintiff] …”; Kolocotronis v. Club of Rome, 109 F.3d 767 (5th

Cir. 1997) (affirming dismissal of complaint describing government plot to spread the

AIDS virus throughout the world); Patterson v. U.S. Gov’t, No.3:08-cv-1730-K, 2008 WL

5061800 (N.D. Tex. Nov. 25, 2008) (dismissing complaint where plaintiff alleged she

received messages through the television and was tracked by remote control); Daniel v.

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FBI, No. 3:03-cv-1281-N, 2003 WL 21555130 (N.D. Tex. Jun. 17, 2003) (dismissing

complaint that FBI stalked, harassed and tried to poison plaintiff). Therefore, dismissal is

clearly warranted under these circumstances.

Additionally, all Plaintiff’s remaining claims are subject to dismissal because they

are entirely conclusory and are unsupported by any clear statement of facts. The

undersigned recognizes that Plaintiff, as an inmate, has a First Amendment right to receive

mail. Prison Legal News v. Livingston, 683 F.3d 201, 214 (5th Cir. 2012). The undersigned

further recognizes Plaintiff has a protected property interest in the funds in his prison

account. Morris v. Livingston, 739 F.3d 740, 750 (5th Cir. 2014). Further, it is well

established that inmates have a First Amendment right to access the courts. See Lewis v.

Casey, 518 U.S. 343, 351 (1996) (to state a cognizable First Amendment claim, the plaintiff

must demonstrate actual injury resulting from an alleged denial of access to the courts).

However, none of Plaintiff’s allegations are supported by any facts. After the undersigned

determined Plaintiff’s original complaint was devoid of any facts, Plaintiff was given the

opportunity to explain his claims at the Spears hearing. Plaintiff did not provide a factual

basis for his claims at the Spears hearing. Thus, the undersigned ordered Plaintiff to file

an amended complaint and specifically directed Plaintiff to provide a basis in fact to

support his claims. Despite being notified of the pleading defects and being given the

opportunity to plead his best case, Plaintiff has not alleged sufficient facts to give rise to a

reasonable inference that any defendant is liable. Therefore, the undersigned respectfully

recommends all of Plaintiff’s claims be dismissed with prejudice.

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V. CLAIMS NOT SPECIFICALLY ADDRESSED IN THIS MEMORANDUM

To ensure justice and access to the courts, courts interpret pleadings of pro se

litigants liberally. See United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996) (citing

United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983)). Pro se actions will not be

dismissed based on technical pleading defects and should be construed to ensure such

claims are given fair and meaningful consideration despite the unrepresented litigant’s

unfamiliarity with the law. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); See also

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Pro se parties are normally accorded more

leniency in the construction of their pleadings).

The undersigned has attempted to articulate and analyze Plaintiff’s claims in an

impartial manner consistent with providing appropriate leniency to pro se litigants while

at the same time requiring compliance with applicable pleading and screening standards.

To the extent Plaintiff is attempting to raise a claim not specifically addressed by the

undersigned in this Memorandum and Recommendation, Plaintiff has failed to state such

claim with sufficient factual detail or clarity to allow the claim to be identified, understood,

or analyzed by the Court.

As stated previously, “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Again,

Plaintiff must allege sufficient facts in support of its legal conclusions that give rise to a

reasonable inference that Defendant is liable. Id.; Twombly, 550 U.S. at 556. Further, the

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factual allegations must raise Plaintiff’s claim for relief above the level of mere

speculation. Twombly, 550 U.S. at 555.

Plaintiff is further advised that any claim not addressed in this Memorandum and

Recommendation is not currently before this Court because Plaintiff has failed to state such

claims clearly.

The undersigned recommends Plaintiff not be allowed to amend his pleading

because he has been given the opportunity to explain his claims at the Spears hearing. See

Johnson v. Parks, 182 F. App’x 300, 301 (5th Cir. 2006) (Plaintiff’s testimony at the Spears

hearing constituted an amendment of his complaint). Additionally, Plaintiff was advised

of his pleading deficiencies at the Spears hearing and in a written order to amend. Plaintiff

filed an amended complaint which neither cured his pleading deficiencies nor followed the

Court’s instructions. Plaintiff has now “pleaded his best case” and further opportunity to

amend is unnecessary. Brewster v. Dretke, 587 F.3d 767, 768 (5th Cir. 2009) (granting

plaintiff subsequent opportunity to amend was not necessary where Plaintiff had pleaded

his best case).

VI. CONCLUSION

Because Plaintiff has failed to state a cognizable constitutional claim in this action

against Defendants, it is respectfully recommended that Plaintiff’s complaint be

DISMISSED with prejudice as frivolous and/or for failure to state a claim for relief

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). The undersigned further

recommends the dismissal of this case counts as a “strike” for purposes of 28 U.S.C. §

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1915(g) and that the Clerk of Court be INSTRUCTED to send notice of this dismissal to

the Manager of the Three Strikes List for the Southern District of Texas at

Three_Strikes @txs.uscourts.gov.

Respectfully submitted on October 8, 2024.

C Jason & Libby Z

United States Magistrate Judge

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NOTICE TO PARTIES

The Clerk will file this Memorandum and Recommendation and transmit a copy to

each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of

the Memorandum and Recommendation, a party may file with the Clerk and serve on the

United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.

P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court

for the Southern District of Texas.

A party’s failure to file written objections to the proposed findings, conclusions, and

recommendation in a magistrate judge’s report and recommendation within FOURTEEN

(14) DAYS after being served with a copy shall bar that party, except upon grounds of

plain error, from attacking on appeal the unobjected-to proposed factual findings and legal

conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d

1415 (5th Cir. 1996) (en banc).

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