Jones v. Brown
MEMORANDUM ON DISMISSAL entered. Jones's motion to proceed in forma pauperis, (Docket Entry No.2), is GRANTED. The action filed by Larry Joe Jones (TDCJ-CID Inmate #2005311) lacks an arguable basis in law. His claims are DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i). Email sent to Manager of Three Strikes List. (Signed by Judge Alfred H Bennett) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LARRY JOE JONES,
DONALD RAY BROWN,
June 16, 2017
David J. Bradley, Clerk
CIVIL ACTION H-17-1791
MEMORANDUM ON DISMISSAL
Larry Joe Jones, a Texas Department of Criminal Justice inmate, sued in June 20017, alleging
civil rights violations resulting from a deprivation of property. Jones, proceeding pro se and in
forma pauperis, sues Donald Ray Brown. Jones asserts that in 2015, Jones gave his brother, Donald
Ray Brown, power of attorney so that Brown could close Jones's 401(k) account. Jones asked
Brown to send the funds from his 401(k), in the amount of$6,000.00, to him in prison. Jones states
that to date he has not received the funds from his brother.
Jones seeks to recover his $6,000.00 as well as unspecified compensatory damages.
A district court must dismiss a prisoner's § 1983 complaint if the action is malicious or
frivolous, fails to state a claim, or seeks monetary relieffrom a defendant who is immune. 28 U.S.C.
§ 1915(e)(2)(B). Under§ 1915(e)(2)(B)(i), the court may dismiss an in forma pauperis complaint
as frivolous when it lacks an arguable basis in law or fact. Hutchins v. McDaniels, 512 F.3d 193,
195 (5th Cir. 2007) (citing Black v. Warren, 134 F.3d 732,734 (5th Cir. 1998)). A complaint is
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frivolous if it lacks an arguable basis in law or fact. See Denton v. Hernandez, 504 U.S. 25, 31
(1992); Richardson v. Spurlock, 260 F.3d 495,498 (5th Cir. 2001) (citing Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997)). "A complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest
which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting
McCormickv. Stalder, 105 F.3d 1059,1061 (5thCir. 1997)).
A cause of action under 42 U.S.C. § 1983 requires a showing that Jones has been deprived
of a right secured by the Constitution or laws of the United States, and that the deprivation was
caused by someone acting under color of state law. Baker v. McCollan, 443 U.S. 137 (1979).
Generally, nothing in the language of the Due Process Clause requires the state to protect the
life, liberty, and property of its citizens against invasion by private actors. Piotrowski v. City of
Houston, 51 F.3d 512, 515 (5th Cir. 1995)(citing DeShaney v. Winnebago County Dep 't of Social
Servs., 489 U.S. 189, 195 (1989)). The Due Process Clause confers protection to the general public
against unwarranted governmental interference, but it does not confer an entitlement to governmental
aid as may be necessary to realize the advantages of liberty guaranteed by the Clause. Walton v.
Alexander, 44 F.3d 1297, 1302 (5th Cir. 1995)(en bane).
The actions of private actors such as the named defendant do not constitute state action under
42 U.S.C. § 1983. See Briscoe v. LaHue, 460 U.S. 325,329 (1983). Jones has failed to demonstrate
that he has been deprived of a right secured by the Constitution or laws of the United States, and that
the deprivation was caused by someone acting under color of state law. Jones's claims against the
named defendant are DISMISSED as frivolous.
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Jones's motion to proceed in forma pauperis, (Docket Entry No.2), is GRANTED. The
action filed by Larry Joe Jones (TDCJ-CID Inmate #2005311) lacks an arguable basis in law. His
claims are DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i).
The TDCJ-CID shall continue to deduct twenty percent of each deposit made to Jones's
inmate trust account and forward payments to the court on a regular basis, provided the account
exceeds $10.00, until the filing fee obligation of$350.00 is paid in full.
The Clerk will provide a copy of this order by regular mail, facsimile transmission, or e-mail
the TDCJ- Office ofthe General Counsel, Capitol Station, P.O. Box 13084, Austin,
Texas, 78711, Fax: 512-936-2159;
the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, Fax:
(3) the Manager of the Three-Strikes List for the Southern District of Texas at:
ALFRED H. BENNET
UNITED STATES DIS
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