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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

JUAN MATA §

v. § CIVIL ACTION NO. 6:23cv484

SHERIFF MAXEY CERLIANO, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff Juan Mata, a former inmate of the Gregg County Jail, filed this civil rights 

lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. The 

lawsuit was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 

636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of 

Duties to United States Magistrate Judges.

On April 11, 2024, mail sent to the Gregg County Jail was returned with the notation that 

Plaintiff was no longerthere. The on-line records of GreggCounty show Plaintiff wasreleased from 

the jail on December 14,2023. http://beta.co.gregg.tx.us/OdysseyPA/JailingSearch.aspx?ID=400.

Plaintiff has not provided his current address nor communicated with the Court in any way since that 

date. His lawsuit may be dismissed for failure to prosecute.

However, Plaintiff’slawsuitsuffersfrom a more significant flaw. He was ordered to amend 

his complaint to set out a short and plain statement of his claims. In his amended complaint, 

Plaintiff states that he is suing Officer Gray for defamation of character. His statement of claim 

reads, in its entirety, as follows:

I Juan Mata, SO# 117626, on Sept 15-16 at 1-5 p.m. in Dorm G, was confronted by 

Officer L. Gray regarding an incident about a t-shirt left by another inmate. CO Gray 

walked into the cell yelling at me and my cellmates while we were standing there 

watching TV. He started yelling at us, “you hear me you f***ing beaner, get your 

wetback ass back.” I said “watch who you are talking to like that.” He replied “I 

don’t have to watch sh*t.”

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Defamation is a tort under Texas law. WFAA-TV Inc. v. McLemore, 978 S.W.2d 568,571 

(Tex. 1998) (setting out the elements of a defamation claim). There is no constitutional right to be 

free from defamation or slander, and so while a state may protect against injury to reputation by 

virtue of itstort law, a person’sreputation does not implicate a liberty or property interest of the sort 

protected by the Due Process Clause. See Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 47 

L.Ed.2d 405 (1976). Consequently, libel and slander are not cognizable under the Civil Rights Act. 

See Cook v. Houston Post, 616 F.2d 791, 794 (5th Cir. 1980); Mowbray v. Cameron County, Texas, 

274 F.3d 269, 277 (5th Cir. 2001).

In Castillo v. Bowles, 687 F.Supp. 277, 282 (N.D.Tex. 1988), the plaintiff, a prisoner in the 

Dallas County Jail, broughtsuit alleging, inter alia, that he was defamed when jail guardssaid “very 

bad things” about him while he was in court. The district court determined that this claim lacked 

merit even if the prisoner’s claims were true, he alleged only harm to his reputation, which is not 

protected by the Constitution, citing Paul and White v. Thomas, 660 F.2d 680, 684 (5th Cir 1981), 

cert. denied, 455 U.S. 1027 (1982). Plaintiff’s claim of defamation fails for the same reason.

The name calling and insults which Plaintiff states that Officer Gray directed at him, while 

unprofessional and inappropriate, likewise do not set out a constitutional claim. Verbal insults or 

epithets in a prison or jail context do not violate the Constitution and are not actionable under 42

U.S.C. §1983. See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir.2002); Bender v. Brumley, 1 

F.3d 271, 274 n. 1 (5th Cir.1993). Plaintiff’s claim lacks an arguable basis in law and fails to state 

a claim upon which relief may be granted.

Conclusion

28 U.S.C. §1915Arequiresthat assoon as practicable, district courtsmustreviewcomplaints 

wherein prisoners seek redress from governmental entities or their employees and identify 

cognizable claims or dismiss the complaint or any portion thereof if the complaint is frivolous, 

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a 

defendant who is immune from such relief.

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The term "frivolous" means that a complaint lacks an arguable basis in law or fact; a 

complaint is legally frivolous when it is based upon an indisputably meritless legal theory. Neitzke 

v. Williams, 490 U.S. 319, 325-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint fails to 

state a claim upon which relief may be granted where it does not allege sufficient facts that, taken 

as true, state a claim that is plausible on its face and thus does not raise a right to relief above the 

speculative level. Montoya v. FedEx Ground Packaging System Inc., 614 F.3d 145, 149 (5th Cir. 

2010), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007).

Plaintiff’s claims lack any arguable basis in law and fail to state a claim upon which relief 

may be granted. Consequently, this lawsuit may be dismissed as frivolous and for failure to state 

a claim under 28 U.S.C. §1915A(b). See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005)

RECOMMENDATION

It is accordingly recommended that the above-styled civil rights lawsuit be dismissed with 

prejudice as frivolous and for failure to state a claim upon which relief may be granted.

A copy of these findings, conclusions and recommendationsshall be served on all partiesin 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

In order to be specific, an objection must identify the specific finding or recommendation 

to which objection is made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s proposed findings, conclusions, and recommendation where the disputed determination is 

found.

An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

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Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

So ORDERED and SIGNED this 19th day of April, 2024.

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