Bailey v. Rowe

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

TRENITY BAILEY, §

Institutional ID No. 111031, §

§

Plaintiff, §

§

v. § 5:24-CV-186-BR

§

KELLY S. ROWE, et al., §

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Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Proceeding pro se and in forma pauperis, Plaintiff Trenity Bailey (“Bailey”) has filed this

action under 42 U.S.C. § 1983, claiming violations of his constitutional rights arising during his

July 30, 2024, arrest. (ECF 1). Bailey filed his Complaint on August 14, 2024, and the United

States District Judge transferred this case to the undersigned United States Magistrate Judge for

further proceedings. (ECF 1, 8). Bailey has consented to proceed before the undersigned

Magistrate Judge. (ECF 10). After considering the allegations in Bailey’s Complaint, his responses

to the Court’s questionnaire, authenticated records provided by Lubbock County, and applicable

law, the Court concludes that Bailey’s claims must be DISMISSED pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A(b), for the reasons stated below.

I. STANDARD OF REVIEW

A court must dismiss a complaint filed in forma pauperis by a prisoner against a

government entity or employee if the court determines that the complaint is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant

who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (2017); see also Section 1915A(b)

(applying section to any suit by a prisoner against certain governmental entities, regardless of

whether the prisoner is proceeding in forma pauperis). A frivolous complaint lacks any arguable

basis, either in fact or in law, for the wrong alleged. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A complaint has no arguable basis in fact if it rests upon clearly fanciful or baseless factual

contentions, and similarly lacks an arguable basis in law if it embraces indisputably meritless legal

theories. See id. at 327; Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). When analyzing a

prisoner’s complaint, the court may consider reliable evidence such as the plaintiff’s allegations,

responses to a questionnaire, and authenticated prison records. Wilson v. Barrientos, 926 F.2d 480,

483–84 (5th Cir. 1991); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (explaining

that responses to a questionnaire or testimony given during an evidentiary hearing are incorporated

into the plaintiff’s pleadings).

In evaluating the sufficiency of a complaint, the court accepts well-pleaded factual

allegations as true, but does not credit conclusory allegations or assertions that merely restate the

legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016).

While courts hold pro se plaintiffs to a more lenient standard than attorneys when analyzing

complaints, such plaintiffs still must plead factual allegations that raise the right to relief above a

speculative level. Id. (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).

II. LEGAL ANALYSIS

A. Factual Background.1

Bailey alleges that, on July 30, 2024, he was in the bedroom of his home when Defendant

Lubbock County Task Force arrived to serve a warrant for his arrest. (ECF 1, 14). The task force

members neither knocked nor announced themselves. (Id.). They broke windows and a chain-link

1These background facts are taken from Plaintiff’s Complaint (ECF 1) and questionnaire responses (ECF

14), and are assumed to be true for the purpose of evaluating the merits of Plaintiff’s causes of action.

fence, and shot him with a rubber bullet when he went out to his porch. (ECF 14 at 3, 5-6). They

called him derogatory names and made him fear for his life. (ECF 1 at 4). He claims that force was

unnecessary because he would have answered the door if they had knocked, and he would have

gone with them peacefully. (Id.). Bailey filed this lawsuit on August 14, 2024, alleging that the

task force used excessive force, and that Lubbock County Sheriff Kelly Rowe failed to properly

train the task force members. (ECF 1).

B. Claim Against the Lubbock County Task Force.

Bailey sues the Lubbock County Task Force for excessive force. However, he is unable to

provide the names of the individual members of the task force. (ECF 1; ECF 14 at 3). A plaintiff

may not sue a governmental entity or department unless such entity enjoys a separate and distinct

legal existence. Darby v. Pasadena Police Dep’t, 939 F. 2d 311, 313-14 (5th Cir. 1991). State

agencies that may sue and be sued are known as jural entities; non-jural entities are not subject to

suit. Id. The capacity to sue or be sued is determined by the law of the state where the district court

is located. Fed. R. Civ. P. 17(b)(2), (3); Darby, 939 F.2d at 313-14.

In Texas, county sheriff’s departments and police departments are not legal entities capable

of being sued in the absence of express action by the superior corporation (the county, in the case

of a sheriff’s department, and the city, in the case of a police department) “to grant the servient

agency with jural authority.” Darby, 930 F. 2d at 313; see also Plemons v. Amos, No. 2:03-CV-

421-J, 2006 WL 1710415, at *7 (N.D. Tex. June 22, 2006) (“[T]he general rule [is] that law

enforcement agencies are not separate governmental entities that can be sued.”) (collecting cases).

In Plemons, the court expressly considered the issue of whether a task force can be sued:

The Court must next address whether an inter-governmental law enforcement unit

such as the Task Force [identified earlier in the opinion as an intergovernmental,

manpower sharing arrangement between the City of Amarillo and multiple

panhandle counties, funded by federal grants and funds from the participating

counties] can be sued under [then] Rule 17(b)(1). This court concludes that it

cannot. Brown v. Fifth Judicial Dist. Drug Task Force, 255 F.3d 475, 476-77 (8th

Cir. 2001) (multi-city, multi-county, unincorporated, intergovernmental, multi-

jurisdictional drug task force could not be sued because it has no separate legal

existence and has not been granted statutory authority to sue or be sued; “authorities

more directly on point appear to be uniform in holding that drug task forces similar

to the defendant in this case are not separate legal entities subject to suit.”); Hervey

v. Estes, 65 F.3d 74, 791-92 (9th Cir. 1995) (intergovernmental drug task force was

not “person” or entity subject to suit under § 1983).

Plemons, 2006 WL 1710415 at *7. Other courts in this district agree. See, e.g., McGrew v. City of

Wichita Falls, No. 3:14-CV-679-B, 2015 WL 3528236, at * 7 (N.D. Tex. June 4, 2015) (a “Wichita

Gang Task Force,” to the extent that entity existed ... is a non-jural entity.” (citing Dillon v.

Jefferson Cnty. Sheriff’s Dep’t, 973 F. Supp. 626, 627 (E.D. Tex. 1997)); Welch v. Jefferson Cnty.

Court, No. 1:12-CV-330, 2015 WL 66495, at *4 (E.D. Tex. Jan. 5, 2015) (“Federal courts have

consistently dismissed § 1983 [claims] against non-legal entities.”) (citations omitted). Because

the Lubbock County Task Force is not a jural entity, the Court dismisses all claims against it as

frivolous under 28 U.S.C. § 1915A (b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii).

C. Claims Against Kelly Rowe.

Bailey next sues Lubbock County Sheriff Kelly Rowe (“Rowe”) for failing to properly

train the members of the Lubbock County Task Force. (ECF 1). It is well established that

supervisory officials are not liable for the acts of their subordinates unless they: (1) affirmatively

participated in an act that caused a constitutional deprivation, or (2) implemented an

unconstitutional policy or custom that resulted in injury to the plaintiff. Mouille v. City of Live

Oak, 977 F.2d 924, 929 (5th Cir. 1992) (citing Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.

1987)). Supervisory liability exists without overt personal participation in an offensive act only if

the supervisory official implements a policy “so deficient that the policy” itself is a repudiation of

constitutional rights and is “the moving force of the constitutional violation.” Thompkins, 828 F.2d

at 304 (quotations omitted). To the extent that Bailey is attempting to hold Rowe liable for the acts

of his subordinates, this is insufficient to state a claim against Rowe. In fact, Bailey admits that he

has had no personal interaction with Rowe. (ECF 14 at 2).

To allege a claim against Rowe for failure to train or supervise, Bailey must allege facts

showing that (1) Rowe either failed to supervise or train the subordinate official; (2) a causal link

exists between the failure to train or supervise and the violation of Bailey’s rights; and (3) the

failure to train or supervise amounts to deliberate indifference. Mesa v. Prejean, 543 F.3d 264, 274

(5th Cir. 2008). Deliberate indifference in such a situation requires “a conscious choice to endanger

constitutional rights” and the proof of deliberate indifference generally requires more than a single

instance of the lack of training or supervision causing a violation of constitutional rights. Id. Bailey

does not allege any defects in training, other than his personal belief that the task force members

should have knocked on his door. (ECF 14 at 2-3). He further alleges no facts showing a causal

link between Rowe’s alleged failure to train and the alleged violation of his civil rights, nor does

he allege facts indicating that Rowe was deliberately indifferent. Accordingly, the Court dismisses

the claims against Rowe for failure to state a claim upon which relief may be granted.

D. Leave to Amend Would be Futile.

Ordinarily, a pro se plaintiff should be granted leave to amend his complaint prior to

dismissal. Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). The Court is not required to

allow such an opportunity, though, if the prisoner’s claims are clearly frivolous, Eason v. Thaler,

14 F.3d 8, 9 (5th Cir. 1994), or if the prisoner has pled his best case in the current complaint.

Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020). Bailey has fully responded to the

Court’s questionnaire and set out his claims in adequate detail in his Complaint and questionnaire

responses.

Allowing further opportunities to identify task force members would be futile because he

cannot overcome the lack of compensable injury resulting from Lubbock County Task Force’s

alleged actions. He fails to allege that he suffered more than de minimis injuries by the use of force.

Although a showing of “significant injury” is not required in the context of an excessive force

claim, “we do require a plaintiff asserting an excessive force claim to have suffered at least some

form of injury.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (citing Williams v.

Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). The injury must be more than a de minimis injury and

must be evaluated in the context in which the force was deployed. Glenn, 242 F.3d at 314.

One way to distinguish if an injury is “de minimis” is to consider whether medical care and

treatment was needed to treat the injury. See Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.

1999). In Gomez, the court determined that the plaintiff “did not seek or receive medical treatment”

for his alleged injury, and thus his injury was considered de minimis:

In Siglar, we described the complained of conduct and injury as follows: “[the

corrections officer] twisted Siglar’s arm behind his back and twisted Siglar’s ear.

Siglar’s ear was bruised and sore for three days but he did not seek or receive

medical treatment for any physical injury resulting from the incident. There is no

allegation that he sustained long term damage to his ear.” [Siglar v. Hightower, 112

F.3d 191 (5th Cir. 1997)]. We stated that these allegations presented the question

“whether Siglar’s bruised ear amounts to a ‘physical injury’ that can serve as the

basis for his excessive force” claim, and concluded that because “Siglar’s alleged

injury—a sore, bruised ear lasting for three days—was de minimis” he had therefore

“not raised a valid Eighth Amendment claim for excessive force.” Id.

Gomez, 163 F.3d at 924. Bailey alleges that he was shot with a rubber bullet and, as a result,

suffered torn skin on his torso just above his appendix. He further states that he “couldn’t walk

right for 3 days, had a big bruise for 2 weeks and now a scar.” (ECF 14 at 5). Taking Bailey’s

allegations as true, he has alleged, at most, de minimis injuries that do not rise to the level of a

constitutional violation. See Westfall v. Luna, 903 F.3d 534, 549-50 (5th Cir. 2018) (recognizing

that abrasions, bruises, bloody urine, and high blood pressure and heart rate are de minimis injuries

insufficient to support an excessive force claim); Brooks v. City of W. Point, Miss., 639 F. App’x

986, 990 (5th Cir. 2016) (finding that abrasions to hands and knees, some neck and back pain, and

unspecified problems with asthma are de minimis injuries). Because Bailey alleges that he suffered

only de minimis injuries, he cannot state a claim of excessive force regardless of whether he could

identify the members of the Lubbock County Task Force.

Further, to the extent that Bailey seeks damages for his damaged property, he cannot state

a constitutional violation. An official’s actions—whether negligent or intentional—that result in a

loss of property give rise to a state tort action rather than a federal civil rights claim. A state actor’s

negligence that results in an unintentional loss of property does not violate the Constitution. See

Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir. 1988) (per curiam); see also Marsh v. Jones,

53 F.3d 707, 712 (5th Cir. 1995) (concluding negligence is not actionable under Section 1983);

Finley v. Garcia, No. 5:17-CV-00198-C, 2017 WL 11519122, at *1 (N.D. Tex. Sept. 15, 2017)

(citation omitted) (“Section 1983 is not a general tort statute and a claim of negligence will not

support a federal civil rights action.”).

Similarly, an intentional deprivation of personal property does not state a viable

constitutional claim if the prisoner has access to an adequate post-deprivation state remedy. See

Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Stauffer v. Gearhart, 741 F.3d 574, 583

(5th Cir. 2014) (per curiam) (citations omitted) (“An inmate’s allegation that his personal property

was lost, confiscated, or damaged does not state a claim under 42 U.S.C. § 1983, even when prison

officials acted intentionally.”). Here, the State of Texas provides an adequate post-deprivation

remedy for persons asserting claims such as those raised herein by Bailey—the filing of a lawsuit

for conversion in state court. See, e.g., Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994).

Assuming the truth of Bailey’s allegations that members of the Lubbock Task Force wrongfully

destroyed his property as alleged, he may have a cause of action in state court; however, he cannot

pursue a federal constitutional claim. See, e.g., Perez v. Tanner, No. 3:17-cv-2846-N-BN, 2017

WL 7000283, at *4 (N.D. Tex. Dec. 22, 2017) (dismissing due process claim alleging the

destruction of inmate’s property because he had a state remedy), R. & R. adopted by 2018 WL

501601 (N.D. Tex. Jan. 19, 2018); Parker v. Carter, No. H–13–0365, 2013 WL 3157913, at *2

(S.D. Tex. June 20, 2013) (“There is no legal basis to a prison inmate’s claim that his due process

rights were violated when [defendants] lost or destroyed his photographs.”); Hall v. St. Tammany

Par., No. 10–1872, 2010 WL 5558910, at *6-8 (E.D. La. Dec. 21, 2010) (finding that detainee

could not state a constitutional claim based on the deprivation of personal property because the

state provided an adequate remedy), R. & R. adopted by 2011 WL 63662 (E.D. La. Jan. 6, 2011).

Bailey has pleaded his best case; therefore, leave to amend is unwarranted.

III. CONCLUSION

For the foregoing reasons it is, therefore, ORDERED that Bailey’s Complaint and all

claims therein are DISMISSED with prejudice as frivolous and for failure to state a claim in

accordance with 28 U.S.C. §§ 1915 and 1915A.

This is a consent case assigned to the undersigned United States Magistrate Judge under

28 U.S.C. § 636(c) with authority to enter judgment. This dismissal shall count as a qualifying

dismissal or “strike” under 28 U.S.C. § 1915 and Adepegba v. Hammons, 103 F.3d 383 (5th Cir.

1996). See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020). Any appeal shall be to the

Court of Appeals for the Fifth Circuit under 28 U.S.C. § 636(c)(3).

Judgment shall be entered accordingly.

IT IS SO ORDERED.

ENTERED on April 25, 2025.

LEE Lo RENO

UNITED STATES MAGISTRATE JUDGE