Findings and Conclusions of the

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SHANAN O’NEAL, 896508, )

Petitioner, )

)

v. ) 3:05-CV-984-B

)

STATE OF TEXAS, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this

case has been referred to the United States Magistrate Judge. The findings, conclusions and

recommendation of the Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. Factual Background

This case was filed as a petition for writ of habeas corpus. The “petition,” however, is

simply a letter written by a male prisoner named Richard Johnson to the female Petitioner

O’Neal. Johnson states that the two can correspond by using habeas corpus forms. He instructs

O’Neal to fill out an 11.07 form with Johnson’s name and address as the petitioner. He then tells

her to file the petition in federal court. Since the habeas petition is on the wrong form, he states

the court will return the petition to his address. Johnson apparently attempted this ruse in this

case. He has filled out an 11.07 form with O’Neal’s name and address and sent it to United States

District Court. The “petition” simply states Johnson’s interest in becoming better acquainted with

O’Neal.

 

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II. Discussion

The petition is subject to preliminary screening under 28 U.S.C. § 1915A. That section

provides in pertinent part:

The court shall review . . . as soon as practicable after docketing, a complaint in a civil

action in which a prisoner seeks redress from a governmental entity or officer or employee

of a governmental entity [and] [o]n review, the court shall identify cognizable claims or

dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous,

malicious, or fails to state a claim upon which relief may be granted; or (2) seeks

monetary relief from a defendant who is immune from suit. 

28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) (“Notwithstanding any filing

fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if

the court determines that . . . (B) the action or appeal–(I) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from suit.”). 

Both § 1915A(b) and § 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds

that the petition is frivolous or fails to state a claim upon which relief may be granted. A petition

is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319,

325 (1989). A petition fails to state a claim upon which relief may be granted when it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle

him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

The petition in this case should be dismissed. Although it was filed as a habeas corpus

petition, it clearly does not attack any conviction or sentence. The petition was also not signed or

filed by the purported Plaintiff. The petition should be dismissed as frivolous.

 

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RECOMMENDATION

The Court recommends that the petition be dismissed with prejudice as frivolous pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 

Signed June 16, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions and

recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title

28, United States Code, Section 636(b)(1), any party who desires to object to these findings,

conclusions and recommendation must serve and file written objections within ten days after

being served with a copy. A party filing objections must specifically identify those findings,

conclusions or recommendation to which objections are being made. The District Court need not

consider frivolous, conclusory or general objections. A party's failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from

a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct.

466, 472 (1985). Additionally, any failure to file written objections to the proposed findings,

conclusions and recommendation within ten days after being served with a copy shall bar the

aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge

that are accepted by the District Court, except upon grounds of plain error. Douglass v. United

Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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