1

Wilson has now updated his address of record to a street address in

Dallas, Texas. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

TROY LEE WILSON, §

(TDCJ # 539709) §

 § 

 § CIVIL ACTION NO.4:05-CV-023-Y VS. 

§

 §

TEXAS DEPARTMENT § 

OF CRIMINAL JUSTICE § 

 OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(b)(2),

 and UNDER 28 U.S.C. §§ 1915(e)(2)(B)(iii) 

Plaintiff Troy Lee Wilson, at the time he filed suit a

prisoner housed at the Texas Department of Criminal Justice-Lindsay

State Jail Unit,1 was permitted by the magistrate judge to proceed

herein pursuant to 28 U.S.C. § 1915, with the filing fee to be

collected as required by the Prison Litigation Reform Act (PLRA).

In Wilson’s form civil-rights complaint seeking relief under 42

U.S.C. § 1983, he names as the only defendant the Texas Department

of Criminal Justice. (Compl. Style; ¶ IV(B).) Wilson alleges that

he has not been afforded credit towards a ten-year sentence imposed

in 1989 for several periods he was incarcerated on different

violations. (Compl.; attachment page.) He claims that TDCJ had not

properly recorded and credited the relevant time periods until

intervention on his behalf by the Office of the State Counsel for

Offenders. (Compl. § v. attachment page.) Wilson seeks to have

the “mistake corrected . . . [to] be off parole and any damages

[he] may have.” (Compl. § VI.) 

 

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2

Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. §

1915(e) requires dismissal not only when an allegation of poverty is untrue or

the action is frivolous or malicious, but also when “the action . . . fails

to state a claim on which relief may be granted; or seeks monetary relief

against a defendant who is immune from such relief.” 28 U.S.C.A. §

1915(e)(2)(A) and (B)(West Supp. 2004). 

3

See 28 U.S.C.A. § 1915(e)(2)(West Supp. 2004); Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281

(5th Cir. 1990)(discussing authority to dismiss at any time under prior §

1915(d)).

4

See 28 U.S.C.A. § 1915A(a)(West Supp. 2004).

5

See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

6

Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

2

 A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.2 Under 28

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

in determining at any time whether an in-forma-pauperis claim

should be dismissed.3 Furthermore, as a part of the PLRA, Congress

enacted 28 U.S.C. § 1915A, which requires the Court to review a

complaint from a prisoner seeking relief from a governmental entity

or governmental officer or employee as soon as possible after

docketing.4 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await a responsive

pleading to conduct its § 1915 inquiry.5 Rather, § 1915 gives

judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”6 After review and consideration of Wilson’s

claims as filed in this suit, the Court finds that they must be

dismissed under the authority of these provisions.

 

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7

See Alabama v. Pugh, 438 U.S. 781, 782 (1978); see also Okpalobi, et

al. v. Foster, 244 F.3d 405, 411 (5th Cir. 2001).

8

Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998)citing Harris v.

Angelina County, Texas, 31 F.3d 331, 37-38 n.7 (5th Cir. 1984).

9

See Talib, 138 F.3d at 213.

3

Wilson has named as the only defendant the Texas Department of

Criminal Justice. In the absence of consent, the Eleventh Amendment

bars federal lawsuits against a state or an instrumentality of the

state.7

 The Court of Appeals for the Fifth Circuit has expressly

recognized that the Eleventh Amendment bars suit against the Texas

Department of Criminal Justice.8 Therefore, Wilson’s claims against

the Texas Department of Criminal Justice are barred by Eleventh

Amendment immunity, and must be dismissed.9

It is therefore ORDERED that plaintiff Troy Lee Wilson’s claims

be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28

U.S.C. § 1915A(b)(2) and, alternatively, pursuant to 28 U.S.C. §

1915(e)(2)(B)(iii).

 SIGNED April 29, 2005.

 

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