York v. Unknown Named Agents of the Federal Bureau of Investigation et al

Filing 16

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION TO DISMISS CASE re: 7 MOTION for Appointment of US Marshall Service to Serve Process and Emergency Hearing Subpoenas, 6 MOTION for Temporary Restraining Order, 11 Sealed Event, 14 MOTION to Amend, 13 MOTION for Oral Argument Hearing, 8 MOTION for Hearing, 10 Memorandum and Recommendations, 4 MOTION for Appointment of Counsel, 15 MOTION for Recommendation to Dismiss Hearing. Complaint is DISMISSED WITHOUT PREJUDICE. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DAVID YORK,

§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 2:14-CV-00033
§
UNKNOWN NAMED AGENTS OF THE §
FEDERAL BUREAU OF
§
INVESTIGATION, et al,
§
§
Defendants.
§
ORDER ADOPTING MEMORANDUM AND
RECOMMENDATION TO DISMISS CASE
Pending before the Court is Plaintiff’s “Complaint for Injunctive Relief,
Declaratory Relief, and Relief” (D.E. 1). On February 10, 2014, United States Magistrate
Judge Jason B. Libby issued his Memorandum and Recommendation to Dismiss Case
(D.E. 10), recommending that Plaintiff’s complaint be dismissed with prejudice as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and that all pending motions be denied.
Plaintiff timely filed his Objections (D.E. 12) on February 24, 2014.
Plaintiff takes issue with the Magistrate Judge’s application of the standard for
determination of whether a pleading filed in forma pauperis under 28 U.S.C. §
1915(e)(2)(B) is frivolous. He advocates application of the standard of review set out in
Denton v. Hernandez, 504 U.S. 25 (1992) and reiterates his claims. The Denton standard
pre-dates amendments to 28 U.S.C. § 1915(e)(2)(B), as observed in Walp v. Scott, 115
F.3d 308 (5th Cir. 1997).

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Plaintiff also seeks leave to amend his complaint prior to any dismissal so as to
more narrowly focus his claims. D.E. 14. The Court GRANTS D.E. 14 and evaluates the
Plaintiff’s claims as stated in his amended complaint (D.E. 14-2). The Court finds that,
while the F.B.I. may regularly use a “close tail” procedure, it is frivolous under standards
of review of both Denton and § 1915(e)(2)(B) to suggest that they are utilizing that
procedure against Plaintiff in the manner that Plaintiff alleges. Plaintiff’s objections are
OVERRULED.
The Court, however, determines that, pursuant to 28 U.S.C. § 1915(e)(2)(B) this
action should be dismissed without prejudice such that Plaintiff may re-file his claims,
should he desire to do so, upon full payment of all applicable filing fees.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s Objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge.

Accordingly, Plaintiff’s complaint (D.E. 1) is

DISMISSED WITHOUT PREJUDICE and all pending motions are DISMISSED.
ORDERED this 17th day of March, 2014.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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