IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

JUAN ANTONIO MARTINEZ §

VS. § CIVIL ACTION NO. 9:23cv27

MARTIN PEREZ, ET AL. §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Juan Antonio Martinez, an inmate confined at the Gib Lewis Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma

pauperis, brings the above-styled action. 

The above-styled action was referred to the undersigned magistrate judge pursuant to 28

U.S.C. § 636 and the LocalRules for the Assignment of Dutiesto the United States Magistrate Judge

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Discussion

Plaintiff filed this action seeking an advisory opinion to assist him in his determination of

whether to proceed with filing a civil rights action pursuant to 42 U.S.C. § 1983. See Plaintiff’s

Motion (ECF No. 1 at *3). In his prayer for relief, Plaintiff states this advisory opinion would 

save time, minimize litigations costs, and ensure a speedy trial “of any prisoner’s civil rights 

action subsequently brought by Petitioner.” Id. at *4.

Standard of Review

An in forma pauperis proceeding may be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)

if it: (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or (3)

seeks monetary relief from a defendant who is immune from such relief. 

A complaint, containing asit does both factual allegations and legal conclusions, is frivolous

where it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);

Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); McCormick v. Stalder, 105 F.3d 1059, 1061

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(5th Cir. 1997). A complaint lacks an arguable basis in law if it is based on an indisputably

meritless legal theory. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). 

In addition to the legal basis of the complaint, Section 1915 empowers the court to pierce the

veil of the complainant’s factual allegations if they are clearly baseless. Denton v. Hernandez, 504

U.S. 25, 32 (1992); Ancar v. Sara Plasma, Inc., 964 F.2d 465 (5th Cir. 1992). A complaint lacks

an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts

when necessary, the facts alleged are clearly baseless. Denton, 504 U.S. at 32. 

In Denton v. Hernandez, the Supreme Court “declined the invitation to reduce the clearly

baseless inquiry to a monolithic standard.” Denton, 504 U.S. at 33. Examples of complaints within

the clearly baseless inquiry are those which describe fanciful, fantastic, or delusional scenarios. A

complaint is factually frivolous if the facts alleged rise to the level of the irrational or wholly

incredible. Pleaded facts which are merely improbable or strange, however, are not clearly baseless

for Section 1915(d) purposes. Id.

A complaint fails to state a claim upon which relief may be granted if the factual allegations

are not sufficient to raise a right to relief above the speculative level. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Dismissal for failure

to state a claim is appropriate when the plaintiff has failed to plead “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 

662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. 544, 570). Plaintiffs must state

enough facts to “nudge[] their claims across the line from conceivable to plausible.” Twombly, 550

U.S. 544, 570. 

In considering whether to dismiss a complaint for failing to state a claim upon which relief

may be granted, all factual allegations in the complaint must be taken as true and construed favorably

to the plaintiff. Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). 

However, conclusory allegations will not suffice to prevent dismissal for failure to state a claim. Id.

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Analysis

Standing

Article III, § 2 of the Constitution limits federal court jurisdiction to actual cases and

controversies. Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998). As a

result, the exercise of federal court jurisdiction “depends on the existence of a case or controversy,

and a federal court lacks the power to render advisory opinions.” United States National Bank v.

Independent Insurance Agents of America, Inc., 508 U.S. 439, 446 (1993). District courts do not sit

to decide hypothetical issues or to give advisory opinions. United States v. Cook, 795 F.2d 987, 994

(5th Cir. 1986). 

Plaintiff’s request for an advisory opinion does not present a case or controversy. See Juidice

v. Vail, 430 U.S. 327, 331 (1977) (presenting a justiciable case or controversy is a jurisdictional

requirement which the court has an obligation to examine sua sponte); see also U.S. v. One 18th

Century Colombian Monstrance, 797 F.2d 1370, 1374 (5th Cir. 1986). Federal courts do not “ ‘sit

to decide hypothetical issues or to give advisory opinions about issues as to which there are not

adverse parties before [them].’ ” Cook, 795 F.2d at 994 (quoting Princeton University v. Schmid, 455

U.S. 100, 102 (1982)). Accordingly, plaintiff’s request for an advisory opinion should be denied.

As a result, this action dismissed as improvidently filed.

Recommendation

Plaintiff’s complaint should be dismissed without prejudice.

Objections

Within fourteen days after being served with a copy of the magistrate judge’s report, any

party may serve and file written objections to the findings of facts, conclusions of law and

recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

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conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C.

§ 636(b)(1); FED. R. CIV. P. 72.

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_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 31st day of March, 2023.

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