Opinion
No. 3:02-CV-0810-R
April 25, 2002
MEMORANDUM AND ORDER
Plaintiff, Burnice Wilson, has brought a civil rights complaint pursuant to 42 U.S.C. § 1983 against the Dallas Police Department. No process has been issued in this case.
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to screening and sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiff's complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998), cert. denied, 527 U.S. 1041 (1999). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal, if the Court finds the complaint "frivolous" or if it "fails to state a claim upon which relief may be wanted." A claim is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be wanted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
Plaintiff brings his claim under 42 U.S.C. § 1983. That statute "provides a federal cause of action for the deprivation, under color of law, of a citizen's "rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id.
In his complaint, plaintiff alleges that a member of the Dallas Police Department violated his constitutional right to privacy by revealing that plaintiff is HIV positive. (Compl. at 3-4.) He seeks monetary damages. ( Id. at 4.) He names the Dallas Police Department as the only defendant. The claim of plaintiff against the named defendant is frivolous within the meaning of 28 U.S.C. § 1915 (e)(2) and 1915A. A plaintiff may not bring a civil rights action against a servient political agency or department, unless such agency or department enjoys a separate and distinct legal existence. Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991). In Darby, the Fifth Circuit held that "unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself." Id. at 313. Plaintiff names no jural entity that is subject to suit. See id. at 313-14 (holding that a police department is not a jural entity). Plaintiff s claim against the named entity seeks relief from an entity that is not subject to suit under § 1983. The claim is frivolous and subject to dismissal under 28 U.S.C. § 1915 (e)(2) and 1915A. The Court, nevertheless, generally accords plaintiffs who name non-jural entities as defendants an opportunity to amend before dismissal of the complaint. See Parker v. Fort Worth Police Dep't, 980 F.2d 1023, 1026 (5th Cir. 1993).
For the foregoing reasons, the Court must dismiss plaintiff's complaint pursuant to 28 U.S.C. § 1915 (e)(2)(B) and 1915A, unless plaintiff files an amended complaint that names a cognizable, legal entity or person as a defendant or defendants in this action. Accordingly, the Court grants plaintiff thirty days from the date of this Order to file such an amended complaint. If plaintiff does not timely file such an amended complaint, the undersigned Magistrate Judge will recommend that this action be dismissed as frivolous.
IT IS SO ORDERED.