Barnes et al v. City of Humble et al
Filing
13
OPINION AND ORDER OF DISMISSAL granting 5 Motion for Leave to Proceed in forma pauperis; denying 8 Motion to Reinstate; denying 8 Motion to Set Aside. Pltf's motion to reinstate and set aside dismissal is DENIED; and pltf's 6 amended complaint is DISMISSED WITH PREJUDICE for failure to state a claim.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DARYL BARNES AND DEMEATRICE
GOFF,
Plaintiffs,
VS.
JACQUELINE ALEXANDER, ET AL.,
Defendants.
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CIVIL ACTION H-11-124
OPINION AND ORDER OF DISMISSAL
Pending before the Court in the above referenced action are
(1) pro se Plaintiff Demeatrice Goff’s application to proceed in
district court without prepaying fees or costs (instrument #5), (2)
Plaintiffs Demeatrice Goff and Daryl Barnes’s motion to reinstate
and set aside dismissal(#8), and United States Magistrate Judge
Frances Stacy’s memorandum and recommendation that Demeatrice
Goff’s claims be dismissed under 28 U.S.C. § 1915(e)(2)(B).
This Court previously dismissed the claims of Daryl Barnes’
claims under 28 U.S.C. § 1915(e)(2)(B)(ii)1 (#3) on the grounds
that he lacked standing to sue on behalf of his wife, Plaintiff
Demeatrice Goff, and he had failed to state a claim under 42 U.S.C.
§ 1983 for which relief could be granted.
The magistrate judge, relying on the original complaint, found
1
Section 1915(e)(2)(B)(ii) allows the Court to dismiss an
in forma pauperis complaint where it fails to state a claim for
which relief may be granted.
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that while Plaintiff Goff’s motion “may demonstrate that she is
indigent,” she has stated the same claims as her husband, which
this Court determined failed to raise a claim of entitlement to
relief.
Judge Stacy therefore recommended her claims be dismissed
and her application to proceed without prepaying fees or costs be
denied as moot.
No objections have been filed to the Magistrate
Judge’s memorandum and recommendation.
This Court observes that § 1915(e)(2)(ii) only applies to in
forma pauperis complaints and thus cannot apply to Demeatrice Goff
unless she is permitted to proceed as an indigent. Moreover, Daryl
Barnes and Demeatrice Goff have filed an amended complaint (#6),
which Judge Stacy does not appear to have addressed, and a motion
to reinstate their case (#8).
Because she shows cause, the Court
will grant Demeatrice Goff’s application to proceed in forma
pauperis and examine these last two instruments.
The
amended
complaint,
asserting
false
arrest,
false
imprisonment, conspiracy, malicious prosecution and “other claims,”
like the first, clearly fails to state an actionable claim under §
1983 and Federal Rules of Civil Procedure 8(a) and 12(b)(6).2 It
2
Federal Rule of Civil Procedure 8(a)(2) provides, “A
pleading that states a claim for relief must contain . . . a
short and plain statement of the claim showing that the pleader
is entitled to relief.” When a district court reviews a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe
the complaint in favor of the plaintiff and take all well-pleaded
facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009).
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“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .” Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1964-65 (2007)(citations omitted).
“Factual allegations must be enough to raise a right to relief
above the speculative level.” Id. at 1965, citing 5 C. Wright &
A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d
ed. 2004)(“[T]he pleading must contain something more . . . than
. . . a statement of facts that merely creates a suspicion [of]
a legally cognizable right of action”). “Twombly jettisoned the
minimum notice pleading requirement of Conley v. Gibson, 355 U.S.
41 . . . (1957)[“a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief”], and instead required that a
complaint allege enough facts to state a claim that is plausible
on its face.” St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th
Cir. 2009), citing In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007)(“To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must plead ‘enough facts to state a claim
to relief that is plausible on its face.’”), citing Twombly, 127
S. Ct. at 1974). See also Alpert v. Riley, No. H-04-CV-3774,
2008 WL 304742, *14 (S.D. Tex. Jan. 31, 2008). “‘A claim has
facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’” Montoya v. FedEx Ground
Package System, Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009). Dismissal is
appropriate when the plaintiff fails to allege “‘enough facts to
state a claim to relief that is plausible on its face’” and
therefore fails to “‘raise a right to relief above the
speculative level.’” Montoya, 614 F.3d at 148, quoting Twombly,
550 U.S. at 555, 570.
Rule 8 ”does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions,” and only a
complaint that states a plausible claim for relief survives a
motion to dismiss,” a determination involving “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 129 S. Ct. at 1940.
“[T]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice” under
Rule 12(b). Iqbal, 129 S. Ct. at 1949. The plaintiff must plead
specific facts, not merely conclusory allegations, to avoid
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provides no factual allegations in support of its conclusory, barebones statements.
Moreover the motion to reinstate offers no tenable reason for
this Court to do so.
Thus the Court
ORDERS the following:
(1) Demeatrice Goff’s application to proceed in district
court without prepaying fees or costs (instrument #5) is
GRANTED;
(2) Plaintiffs’ motion to reinstate
and set aside
dismissal(#8) is DENIED; and
(3) Plaintiffs’ amended complaint (#6) is DISMISSED WITH
PREJUDICE for failure to state a claim.
SIGNED at Houston, Texas, this
27th
day of
June , 2011.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498 (5th Cir. 2000) “Dismissal is proper if the complaint lacks
an allegation regarding a required element necessary to obtain
relief . . . .“ Rios v. City of Del Rio, Texas, 444 F.3d 417,
421 (5th Cir. 2006), cert. denied, 549 U.S. 825 (2006).
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