IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

HENRY CATO, Jr. #2214123 §

VS. § CIVIL ACTION NO. 6:23cv448

O. PEDRO, et al. §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff, an inmate of the Texas Department of Criminal Justice (TDCJ) proceeding pro 

se and in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 alleging 

violations of his civil rights in prison. The case was referred to the undersigned for findings of fact, 

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

I. Allegations

Plaintiff alleges in his amended complaint that Sergeant O. Pedro subjected him to an 

unwarranted and excessive use of force on an unspecified date in the Coffield Unit, inflicting 

injuries including a concussion. By separate order, the Court is requiring service and a response

from Defendant Pedro on the claims against him.

Plaintiff also sues Captain Cori Brown and Major Kelli McNeil. He alleges that Captain 

Brown saw him after the incident and told him it would be investigated and “cleared up.” (Dkt. #8 

at 3–4.) And he says Major McNeil said to him “it’s hard right now” and either did or should have 

looked at “digital evidence” about the incident. (Id.) Plaintiff also alleges that “numerous important 

people . . . ignored [his] pleas for innocence” after the use of force. (Id. at 6.)

Case 6:23-cv-00448-JDK-JDL Document 14 Filed 11/30/23 Page 1 of 5 PageID #:

44
2

II. Legal Standards and Preliminary Screening

Plaintiff’s amended complaint is subject to screening under 28 U.S.C. §§ 1915A(b) and 

1915(e)(2). Those statutes provide for sua sponte dismissal of a prisoner’s complaint, or any part 

of it, if the Court finds it frivolous or malicious, if it fails to state a claim upon which relief can be 

granted, or if it seeks monetary relief against a defendant who is immune from such relief. 

A complaint is frivolous if it lacks an arguable basis in law or fact. Samford v. Dretke, 562 

F.3d 674, 678 (5th Cir. 2009). The Fifth Circuit has held that a complaint lacks an arguable basis 

in fact when “the facts alleged are fantastic or delusional scenarios or the legal theory upon which 

a complaint relies is indisputably meritless.” Id. (quoting Harris v. Hegmann, 198 F.3d 153, 156 

(5th Cir. 1999) (internal quotation marks omitted)). In other words, during the initial screening 

under section 1915A, a court may determine that a prisoner’s complaint is frivolous if it rests upon 

delusional scenarios or baseless facts—and dismiss the complaint. See Henry v. Kerr County, 

Texas, 2016 WL 2344231 *3 (W.D. Tex. May 2, 2016) (“A court may dismiss a claim as factually 

frivolous only if the facts alleged are clearly baseless, fanciful, fantastic, delusional, or otherwise 

rise to the level of the irrational or the wholly incredible, regardless of whether there are judicially 

noticeable facts available to contradict them.”) (citing Denton v. Hernandez, 504 U.S. 25, 32-33 

(1992)). 

Moreover, a complaint fails to state a claim upon which relief may be granted where it does 

not allege sufficient facts which, taken as true, state a claim which is plausible on its face and thus 

does not raise a right to relief above the speculative level. See Montoya v. FedEx Ground 

Packaging Sys. Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded factual content allows 

the court to draw reasonable inferences that the defendant is liable for the misconduct alleged. See 

Case 6:23-cv-00448-JDK-JDL Document 14 Filed 11/30/23 Page 2 of 5 PageID #:

45
3

Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). This plausibility standard is not akin to a probability standard; rather, 

the plausibility standard requires more than the mere possibility that the defendant has acted 

unlawfully. Twombly, 550 U.S. at 556. 

All well-pleaded facts are taken as true, but the district court need not accept as true 

conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v. Coffin, 

496 F. App’x 414 (5th Cir. 2012) (unpublished) (citing Plotkin v. IP Axess Inc., 407 F.3d 690, 696 

(5th Cir. 2005)). Crucially, while the federal pleading rules do not require “detailed factual 

allegations,” the rule does “demand more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and conclusions” or a 

“formulaic recitation of the elements of a cause of action” will not suffice, nor does a complaint 

which provides only naked assertions that are devoid of further factual enhancement. Id. 

III. Discussion and Analysis 

As mentioned above, the Court is requiring Defendant Pedro to respond to Plaintiff’s 

claims against him. The claims against Defendants Brown and McNeill, however, require separate 

consideration.

Plaintiff does not allege that Brown and McNeill were involved in, present for, or in any 

way condoned or ratified Defendant Pedro’s alleged assault. To the extent Plaintiff sues Brown 

and McNeill simply because of their supervisory roles in the prison, he fails to state a claim against 

them under Section 1983. Lawsuits against supervisory personnel based on their positions of 

authority are claims of liability under the doctrine of respondeat superior, which does not generally 

apply in Section 1983 cases. Williams v. Luna, 909 F.2d 121 (5th Cir. 1990). A supervisor may be 

held liable only if he is personally involved in a constitutional deprivation, a causal connection

Case 6:23-cv-00448-JDK-JDL Document 14 Filed 11/30/23 Page 3 of 5 PageID #:

46
4

exists between the supervisor’s wrongful conduct and a constitutional deprivation, or if 

supervisory officials implement a policy so deficient that the policy itself is a repudiation of 

constitutional rights and is the moving force behind a constitutional deprivation. Thompkins v. 

Belt, 828 F.2d 298 (5th Cir. 1987). Plaintiff here does not allege any facts that would satisfy that 

standard for either Brown or McNeill. The Defendants’ awareness of an alleged misdeed after the 

fact is insufficient to make them liable for it. See Blakely v. Andrade, 360 F. Supp. 3d 453, 489 

(N.D. Tex. 2019) (receiving letters and grievances about alleged violation “does not rise to the 

required level of personal involvement for liability”).

Plaintiff’s amended complaint might be read to assert that Brown and McNeill are liable 

for failing to investigate or punish Pedro for his actions. But there is no constitutional right to have 

another individual investigated, disciplined, or prosecuted, even when the parties involved are 

inmates and correctional officers. Oliver v. Jackson Corr. Ctr., No. 3:12-CV-2660, 2013 WL 

596155, at *3 (W.D. La. Jan. 22, 2013), report and recommendation adopted, No. 3:12-CV-2660, 

2013 WL 596153 (W.D. La. Feb. 15, 2013) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 

(1973), and United States v. Batchelder, 442 U.S. 114, 124 (1979)); see also Williams v. 

Washington, No. 96 C 0704, 1997 WL 201579, at *3 (N.D. Ill. Apr. 16, 1997) (“Williams had no 

legal right to have the correctional officers punished, or to have an investigation conducted.”).

Accordingly, any claim premised on the failure to take some action necessary to facilitate such 

discipline or prosecution fails to state a claim for a constitutional violation.

IV. Conclusion

For the reasons set forth above, Plaintiff’s complaint fails to state a claim upon which relief 

can be granted against Defendants Brown and McNeill. Dismissal is appropriate where Plaintiff 

has already been given a chance to cure his deficiencies but still fails to state a viable claim. See 

Case 6:23-cv-00448-JDK-JDL Document 14 Filed 11/30/23 Page 4 of 5 PageID #:

47
5

Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986) (holding that “once given adequate 

opportunity, even a pro se complaint must contain specific facts supporting its conclusions”); 

Garcia v. City of Lubbock, Texas, 487 F. Supp. 3d 555, 566 (N.D. Tex. 2020) (dismissing where 

inmate had “already amended his complaint once” and been afforded “an opportunity to further 

flesh out his claims”).

RECOMMENDATION

Accordingly, the undersigned recommends that all claims against Defendants Brown and 

McNeill be dismissed pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2).

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report.

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a copy 

shall bar that party from de novo review by the district judge of those findings, conclusions and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

So ORDERED and SIGNED this 30th day of November, 2023.

Case 6:23-cv-00448-JDK-JDL Document 14 Filed 11/30/23 Page 5 of 5 PageID #:

48