Dailey v. Phillips et al
Filing
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MEMORANDUM OPINION ADOPTING THE REPORT OF THE U. S. MAGISTRATE JUDGE. It is ordered that Plaintiff's civil rights complaint is dismissed with prejudice as frivolous. Signed by District Judge Ron Clark on 11/14/18. (mrp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ANTHONY RAY DAILEY, #60533-080
§
VS.
§
K. PHILLIPS, ET. AL.
§
CIVIL ACTION NO. 6:15cv1151
MEMORANDUM OPINION ADOPTING THE
REPORT OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Anthony Ray Dailey, a federal inmate confined at the Federal Correctional
Institute in Beaumont, Texas, pro se, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983
alleging purported violations of his constitutional rights. He names several members of the Clerk’s
Office as Defendants. The case was referred to the United States Magistrate Judge, the Honorable
Judge John D. Love.
In his complaint, Dailey asserted that he filed a motion to dismiss his federal indictment in
June 2015— case number 6:04-cr-0067. A few weeks later, he contacted the Clerk’s Office to
check on the status of the motion to dismiss. A member of the Clerk’s Office stated that “the
motion never made it or it could not be located.” Dailey then refiled it, subsequently speaking to
another member of the Clerk’s Office who allegedly lied by stating that “the motion could not be
located.” Based on these access-to-courts violations, Dailey sought monetary compensation.
On April 19, 2018, the United States Magistrate Judge issued a Report, (Dkt. #10),
recommending that Dailey’s complaint be dismissed, with prejudice for purposes of proceeding in
forma pauperis—determining that his complaint was frivolous, malicious, and failed to state a
claim upon which relief can be granted. Specifically, the United States Magistrate Judge found
that the docket in Dailey’s underlying federal criminal case, 6:04-cr-0067, shows that the Clerk’s
Office docketed his June 2015 motion to dismiss his indictment. See 6:04-cr-0067, Dkt. #268 (pro
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se motion to dismiss indictment). His motion to dismiss was filed on June 23, 2015, and denied
on December 16, 2016. See 6:04-cr-0067, Dkt. #278. Because the record conclusively refuted
Dailey’s contentions, the United States Magistrate Judge recommended a dismissal.
Dailey has filed timely objections, (Dkt. #12). He maintains that his claim states a claim
upon which relief can be granted because the Clerk’s Office lied, which can be proven through
phone records and mail receipts.
However, the United States Magistrate Judge correctly recommended a dismissal with
prejudice. A complaint is frivolous if it lacks an arguable basis in law or fact. Samford v. Dretke,
562 F.3d 674, 678 (5th Cir. 2009). The Fifth Circuit has held that a complaint lacks an arguable
basis in fact when “the facts alleged are fantastic or delusional scenarios or the legal theory upon
which a complaint relies is indisputably meritless.” Id. (quoting Harris v. Hegmann, 198 F.3d
153, 156 (5th Cir. 1999) (internal quotation marks omitted)). In other words, during the initial
screening under section 1915A, a court may determine that a prisoner’s complaint is frivolous if it
rests upon delusional scenarios or baseless facts—and dismiss the complaint. See Henry v. Kerr
County, Texas, 2016 WL 2344231 *3 (W.D. Tex.—San Antonio, May 2, 2016) (“A court may
dismiss a claim as factually frivolous only if the facts alleged are clearly baseless, fanciful,
fantastic, delusional, or otherwise rise to the level of the irrational or the wholly incredible,
regardless of whether there are judicially noticeable facts available to contradict them.”) (citing
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)).
Moreover, a complaint fails to state a claim upon which relief may be granted where it does
not allege sufficient facts which, taken as true, state a claim which is plausible on its face and thus
does not raise a right to relief above the speculative level. See Montoya v, FedEx Ground
Packaging System Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded factual content
allows the court to draw reasonable inferences that the defendant is liable for the misconduct
alleged. See Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not akin to a probability
standard; rather, the plausibility standard requires more than the mere possibility that the defendant
has acted unlawfully. Bell, 550 U.S. at 556 (emphasis supplied).
Although all well-pleaded facts are taken as true, the district court need not accept true
conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v.
Coffin, 496 Fed.App’x 414, 2012 WL 5419531 (5th Cir. Nov. 7, 2012) (citing Plotkin v. IP Axess
Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Crucially, while the federal pleading rules do not require
“detailed factual allegations,” the rule does “demand more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and
conclusions” or a “formulaic recitation of the elements of a cause of action” will not suffice, nor
does a complaint which provides only naked assertions that are devoid of further factual
enhancement. Id.
Here, as the Magistrate Judge found, Dailey’s pro se motion to dismiss his indictment in
his criminal case was filed, reviewed, and denied. The Magistrate Judge correctly determined that
his claim is conclusively refuted by the record, which renders his claim baseless in fact and is
therefore frivolous. Dailey’s complaint should be dismissed, with prejudice, as frivolous under 28
U.S.C. § 1915A.
The Court has conducted a careful de novo review of record and the Magistrate Judge’s
proposed findings and recommendations. See 28 U.S.C. §636(b)(1) (District Judge shall “make a
de novo determination of those portions of the report or specified proposed findings or
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recommendations to which objection is made.”). Upon such de novo review, the Court has
determined that the Report of the United States Magistrate Judge is correct and Dailey’s objections
are without merit.
Finally, Dailey is hereby warned that the decision dismissing his civil rights claims as
frivolous counts as a strike for purposes of § 1915(g). He is a cautioned that once he accumulates
three strikes, he may not proceed IFP either in any civil action or in any appeal of a civil action
which is filed while he is incarcerated or detained in any facility—unless he is under imminent
danger of serious physical injury. Accordingly, it is
ORDERED that the Report of the Magistrate Judge, (Dkt. #10), is ADOPTED as the
opinion of the Court. Plaintiff’s objections, (Dkt. #12), are overruled. Moreover, it is
ORDERED that Plaintiff’s civil rights complains is hereby DISMISSED with prejudice
as frivolous under 28 U.S.C. § 1915A. Finally, it is
ORDERED that any and all motions which may be pending in this cause of action are
hereby DENIED.
So ORDERED and SIGNED November 14, 2018.
____________________________
Ron Clark, Senior District Judge
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