Robles v. Chandler, et al
Filing
9
OPINION AND ORDER OF DISMISSAL UNDER 28 U.S.C. §1915(e)(2)(B): For the foregoing reasons, plaintiff Norberto Adolio Robles claims against Rodney W. Chandler, Joe D. Driver, the Bureau of Prisons, and the Department of Justice Civil Division are DISMISSED without prejudice as frivolous under authority of 28 U.S.C. § 1915(e)(2)(B)(i). Furthermore, all of Robles's remaining claims are DISMISSED without prejudice for failure to state a claim upon which relief may be granted under authority of 28 U.S.C. § 1915(e)(2)(B)(ii). (Ordered by Senior Judge Terry R Means on 9/20/2018) (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
NORBERTO ADOLIO ROBLES,
Plaintiff,
v.
RODNEY CHANDLER, Warden,
FMC-Fort Worth, et al.,
Defendants.
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CIVIL ACTION NO.4:17-CV-331-Y
OPINION AND ORDER OF DISMISSAL UNDER 28 U.S.C. §1915(e)(2)(B)
This case is before the Court for review of pro-se plaintiff
Norberto Adolio Robles’s complaint under the screening provision of
28 U.S.C. § 1915(e)(2)(B). This case began when Robles submitted a
complaint in a then-pending petition for writ of habeas corpus
under 28 U.S.C. § 2241 that was severed and opened as this separate
civil suit. Robles v. Wilson, No. 4:17-CV-092-Y, Order ECF No. 12.
Robles then sought to proceed in form pauperis, and that motion was
granted, subjecting the case to review under § 1915(e)(2)(B).(Doc.
8.) After review and consideration of Plaintiff’s claims, the Court
determines that the complaint must be dismissed.
I.
BACKGROUND/PLEADING
In this suit plaintiff Robles submitted a voluminous complaint
with attachments totaling 80 pages.(Complaint, (doc. 1).) Robles
names as defendants Rodney Chandler, warden, FMC-Fort Worth; and
Joe D. Driver, warden, FDC-Houston. (Complaint (doc. 1) at 3–5.) He
also claims to bring suit “against two agencies within the United
States Department of Justice (DOJ), the Federal Bureau of Prisons
and the Civil Division.”(Complaint (doc. 1) at 10.) Otherwise the
complaint and many attachment pages consist of a rambling set of
factual allegations that begin with Robles’s arrest in September
2006 and continues though February 2017. (Complaint (doc. 1) at
10–22.)
Robles
alleges
violations
of
several
constitutional
amendments, seeks to be exonerated from his criminal conviction,
and seeks to “be paid approximately $ 98 Million.” (Complaint (doc.
1) at 10.)
II.
SCREENING UNDER 28 U.S.C. § 1915(e)(2)(B)
Because Robles is proceeding in forma pauperis, his complaint
is subject to screening under § 1915(e)(2). Section 1915(e)(2)(B)
provide for sua sponte dismissal of the complaint if the Court
finds it is frivolous or malicious(i), if it fails to state a claim
upon which relief may be granted (ii), or if the complaint seeks
monetary relief against a defendant who is immune from such relief
(iii).
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
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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 (2009). To
avoid dismissal for failure to state a claim, a plaintiff must
allege facts sufficient to “raise the right to relief above the
speculative level.”Twombly, 550 U.S. at 555. Mere “labels and
conclusions” nor “a formulaic recitation of the elements of a cause
of action” suffice to state a claim upon which relief may be
granted. Id.
III.
A.
ANALYSIS
No Personal Involvement
Because
plaintiff
Robles
has
sued
federal
government
officials, the Court has construed his claims in part as seeking
relief under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics (“Bivens”).403 U.S. 388, 297 (1971). Bivens, of
course, is the counterpart to 42 U.S.C. § 1983, and extends the
protections afforded under § 1983 to parties injured by federal
actors. See Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999)
(“A Bivens action is analogous to an action under § 1983--the only
difference being that § 1983 applies to constitutional violations
by state, rather than federal officials”), overruled on other
grounds, Castellano v. Fragozo, 352 F.3d 939, 948–49 & n. 36 (5th
Cir. 2003), cert den’d, 543 U.S. (2004). Bivens provides a cause of
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action against federal agents only in their individual capacities
and requires a showing of personal involvement. Affiliated Prof’l
Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.
1999)(citations omitted). Although Robles listed both then FMC Fort
Worth Warden Rodney W. Chandler and FDC-Houston Warden Joe E.
Driver as party defendants, he has provided no specifics of any
action taken by these persons, much less any action taken against
him. Thus, Robles’s claims against Chandler and Driver must be
dismissed.
B.
No Agency Liability under Bivens
Robles also brings suit against the Bureau of Prisons and the
Department of Justice Civil Division. (Complaint (doc. 1) at 10.)
A Bivens claim, however, is not authorized against a federal
agency. Federal Deposit Insurance Corp. V. Meyer, 510 U.S. 471,
484-86
(1994).
Plaintiff
may
not
assert
relief
for
alleged
violations of his constitutional rights against the Bureau of
Prisons or the Department of Justice, and such claims must be
dismissed.
C.
No Agency Liability under the FTCA
Robles also recites that he pursues a tort claim, apparently
under the Federal Tort Claims Act (“FTCA”). (Complaint(doc. 1) 1,
3, 46.) The FTCA waives the United States’s sovereign immunity from
tort suits. McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998)
(citing 28 U.S.C. § 2674). Because the FTCA provides such a waiver,
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the limitations and conditions upon which the government consents
to be sued must be construed strictly in favor of the United
States. Atorie Air, Inc., v. Federal Aviation Administration, 942
F.2d 954, 957 (5th Cir. 1991)(citing Lehman v. Nakshian, 453 U.S.
156, 160 (1981)). To sue successfully under the FTCA, “a plaintiff
must name the United States as the sole defendant.” McGuire, 137
F.3d at 324 (citing Atorie Air, Inc., 942 F.2d at 957). The Bureau
of Prisons nor the Department of Justice are proper defendants in
a suit under the FTCA, and thus any such claims against theses
agencies must be dismissed.
D.
Failure to State a Claim
The balance of Robles’s complaint is a lengthy litany of
numerous events at all phases of his arrest, prosecution, and
conviction. The complaint and incorporated attachments otherwise
recite no facts that state a plausible claim for relief. Robles
has not alleged facts sufficient to raise the right to relief above
the speculative level. The remaining claims fail to state a claim
upon which relief may be granted and must be dismissed without
prejudice.
IV.
CONCLUSION and ORDER
For the foregoing reasons, plaintiff Norberto Adolio Robles
claims against Rodney W. Chandler, Joe D. Driver, the Bureau of
Prisons, and the Department of Justice Civil Division are DISMISSED
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without prejudice as frivolous under authority of 28 U.S.C. §
1915(e)(2)(B)(i). Furthermore, all of Robles’s remaining claims are
DISMISSED without prejudice for failure to state a claim upon which
relief
may
be
granted
under
authority
of
28
U.S.C.
§
1915(e)(2)(B)(ii).
SIGNED September 20, 2018.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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