IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KENNETH R. JONES, JR., §

#02353848, §

PLAINTIFF, §

§

V. § CIVIL CASE NO. 3:22-CV-491-K-BK

§

CORRECTIONAL OFFICER DAVIS, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se case was referred to the 

United States magistrate judge for management, including the issuance of findings and a 

recommended disposition where appropriate. The Court granted Plaintiff Kenneth R. Jones’

motion to proceed in forma pauperis, pending judicial screening. Doc. 11. Upon review of the 

relevant pleadings and applicable law, this action should be summarily DISMISSED WITH 

PREJUDICE as frivolous and for failure to state a claim. 

I. BACKGROUND

On March 1, 2022, Jones, a state prisoner, initiated this action by filing a prisoner civil 

rights complaint against Davis, a correctional officer at the Hutchins State Jail, where he is 

confined. Jones alleges that on January 6, 2022, Davis “groped [his] foot in a sexual way” while 

he was sleeping in his bunk, making him feel uncomfortable. Doc. 3 at 4; Doc. 3 at 8. He

requests that Davis be arrested and charged for sexual assault. Doc. 3 at 5. 

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As detailed below, Jones fails to present a cognizable claim or anything that can be 

construed as such. Therefore, this action should be dismissed as frivolous and for failure to state 

a claim.

II. ANALYSIS

Because Jones is proceeding in forma pauperis, his complaint is subject to screening 

under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). These statutes provide for the sua 

sponte dismissal of a complaint if the Court finds that it (1) is frivolous or malicious, (2) fails to 

state a claim upon which relief may be granted, or (3) seeks monetary relief against a defendant 

who is immune from such relief. A complaint is frivolous when it “lacks an arguable basis either 

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint lacks an arguable 

basis in law when it is premised “on an indisputably meritless legal theory,” Id. at 327, and fails 

to state a claim upon which relief can be granted if it does not plead “enough facts to state a 

claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 

(2007).

The Court must always liberally construe pleadings filed by pro se litigants. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se pleadings “must be held to less stringent 

standards than formal pleadings drafted by lawyers”); cf. FED. R. CIV. P. 8(e) (“Pleadings must 

be construed so as to do justice.”). Even under the most liberal construction, however, Jones’ 

complaint is frivolous and fails to state a claim.

To the extent Jones alleges criminal law violations in this Court, his request lacks any 

legal basis. Criminal statutes do not create a private right of action. For a private right of action 

to exist under a criminal statute, there must be “a statutory basis for inferring that a civil cause of 

action of some sort lay in favor of someone.” Cort v. Ash, 422 U.S. 66, 79 (1975), overruled in 

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part by Touche Ross & Co. v. Redington, 442 U.S. 560 (1979); see Suter v. Artist M., 503 U.S. 

347, 363 (1992) (concluding that the party seeking to imply a private right of action bears the 

burden to show that Congress intended to create one). Here, Jones has pled nothing that would 

even come close to meeting that burden. See also Williams v. Cintas Corp., No. 3:07-CV-0561-

M, 2007 WL 1295802, *2 (N. D. Tex. Apr. 10, 2007) (collecting cases finding no private cause 

of action for perjury in federal court and no private right of action for civil perjury under Texas 

law), R. & R. accepted, 2007 WL 1300780, at *1 (N. D. Tex. May 02, 2007). Moreover, 

“decisions whether to prosecute or file criminal charges are generally within the prosecutor’s 

discretion, and, as a private citizen, [the plaintiff] has no standing to institute a federal criminal 

prosecution and no power to enforce a criminal statute.” Gill v. Texas, 153 F. App’x 261, 262-63 

(5th Cir. 2005).

Additionally, although Jones filed his complaint on the prisoner civil rights form, he does 

not appear to sue the officer for civil rights violations. As mentioned supra, he requests only that 

Davis be arrested and charged for sexual assault. Doc. 3 at 5. However, even if Jones’ intent is

to claim a civil rights violation, he alleges nothing that even comes close to an Eighth 

Amendment violation resulting from the alleged sexual assault. 

While sexual assault or abuse can certainly be sufficiently serious to constitute an Eighth 

Amendment violation, not every allegation of inappropriate touching by a prisoner meets this 

standard. An alleged sexual assault is only actionable “under § 1983 when (1) the assault is 

objectively, sufficiently serious and (2) the involved prison official acted with a sufficiently 

culpable state of mind.” Tilley v. Gonzalez, 2010 WL 1541494, at *4 (N.D.Tex. Mar. 10, 2010)

(Ramirez, J.), report and recommendation adopted, 2010 WL 1542181 (N.D.Tex., Apr. 15, 2010)

(Lindsay, J.) (citing Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997) (holding that isolated 

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episodes of verbal sexual harassment and fondling of inmate’s genitals by prison guard, though 

despicable, did not establish Eighth Amendment violation). Here, Jones alleges only a single

incident of Davis touching his foot in a manner Jones deemed sexually inappropriate. This is 

wholly insufficient to state a civil rights violation. 

III. LEAVE TO AMEND

Generally “a pro se litigant should be offered an opportunity to amend his complaint 

before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). However, the 

Court is not required to grant leave to amend “if the plaintiff has already pleaded his ‘best case.’” 

Id. Jones’ apparent claims are fatally infirm. Even based on the most deferential review of his 

complaint, for the legal reasons stated supra, it is highly improbable that Jones could allege 

cogent and viable legal claims if granted the opportunity. Under these circumstances, granting 

leave to amend would be futile and cause needless delay. 

IV. CONCLUSION

For the foregoing reasons, this action should be summarily DISMISSED WITH 

PREJUDICE as frivolous and for failure to state a claim.

SO RECOMMENDED on August 2, 2022.

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED.

R. CIV. P. 72(b). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific 

written objections will bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon 

grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time 

to file objections to 14 days). 

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