Carr v. Director of the TDCJ et al

Filing 21

MEMORANDUM OPINION AND ORDER - The complaint is DISMISSED WITHOUT PREJUDICE for failure to raise a viable claim for relief. Plaintiff is ORDERED to file an amended complaint within thirty days of the date of this order that cures the deficiencies set out in this order. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RAYMOND CARR,
Plaintiff,
v.
DIRECTOR OF TDCJ,

ET AL.,

Defendants.

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June 19, 2018
David J. Bradley, Clerk

CIVIL ACTION H-18-0435

MEMORANDUM OPINION AND ORDER
Plaintiff, a former state inmate proceeding pro se and in forma pauperis, filed this
lawsuit against “Director of TDCJ, Director of Board of Pardons and Paroles, Director
of Ombudsman TDCJ, and Director of UTMB.” The Court has screened the complaint
as required by section 1915A, and finds that the complaint must be dismissed with leave
to amend for the reasons that follow.
Plaintiff’s complaint asserts jurisdiction under “the Texas Constitution and state
statutes.” Because plaintiff asserts no basis for federal jurisdiction, the complaint is
DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION.
Moreover, plaintiff requests monetary compensation from the named defendants in
their individual and official capacity. Because plaintiff identifies the defendants only in
their official capacity and does not identify any defendant by name, plaintiff has raised
only official capacity claims. His claims for monetary compensation against the defendants
in their official capacity are barred by Eleventh Amendment immunity. See In re Soileau,

488 F.3d 302, 305 (5th Cir. 2007); see also Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989). Plaintiff’s claims for monetary compensation against the defendants
in their official capacity are DISMISSED WITH PREJUDICE.
The record reflects that no defendant currently named in this lawsuit was properly
served with citation. Accordingly, the “Director of TDCJ, Director of Board of Pardons
and Paroles, Director of Ombudsman TDCJ, and Director of UTMB” are DISMISSED
WITHOUT PREJUDICE as defendants in this lawsuit.
Further, plaintiff states that his claims arise from the defendants’ actions
commencing in 1997 and ending in 2017. Plaintiff’s civil claims arising prior to February
13, 2016, would be barred by the applicable two-year statute of limitations. Plaintiff sets
forth no factual allegations that would hold his claims timely filed.

Consequently,

plaintiff’s claims arising prior to February 13, 2016, are DISMISSED WITHOUT
PREJUDICE.
Regardless, plaintiff sets forth no factual allegations sufficient to “raise a right to
relief above the speculative level.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007). A complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Because plaintiff sets forth no factual allegations supporting his legal claims, he raises no
viable claims for relief. The complaint is DISMISSED WITHOUT PREJUDICE for
failure to raise a viable claim for relief.

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Plaintiff is ORDERED to file an amended complaint that cures the deficiencies set
out in this order. Plaintiff may not raise claims that were raised and dismissed on the
merits in any prior lawsuit, nor may he refer the Court to facts or claims set out in a prior
lawsuit. All relevant factual allegations must be set forth in the amended complaint. The
amended complaint must be filed within THIRTY DAYS from date of this order. Any
untimely or non-compliant amended complaint will be stricken from the record without
further notice, and an order will be entered dismissing this lawsuit without leave to amend.
Any and all pending motions are DENIED AS MOOT.
Signed at Houston, Texas on June 19, 2018.

Gray H. Miller
United States District Judge

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