IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION MARK ANTHONY DINN § Nueces No. 10126380 § § V. § A-21-CV-1065-LY § TRAVIS BURRER, JR. and § LISA ADAIR § REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to

(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Plaintiff Mark Anthony Dinn’s complaint. Dinn, proceeding pro se, has been granted leave to proceed in forma pauperis. I. STATEMENT OF THE CASE At the time he filed his complaint, Dinn was confined in the Nueces County Jail. He complains of his previous confinement in the Gillespie County Jail in 2020. According to Dinn, he witnessed Nurse Adair fail to test another offender for tuberculosis. When he notified Sgt. Travis Burrer, Dinn was allegedly told the jail was not required to take such action. Dinn states this “scared the life out of [him],” because Dinn previously was exposed to tuberculosis in 2013 for which he received medication while he was confined in the Texas Department of Criminal Justice. Dinn sues Sgt. Burrer and Nurse Adair. He seeks $4.5 million for “mental stress, deprived of sleep, also stressing [his] wife and 4 kids out.” II. DISCUSSION

According to 28 U.S.C. § 1915A(b)(1), the court is required to screen any civil complaint in which a prisoner seeks relief against a government entity, officer, or employee and dismiss the complaint if the court determines it is frivolous, malicious, or fails to state a claim on which relief may be granted. See also

(e)(2)(B) (directing court to dismiss case filed in forma pauperis at any time if it is determined that action is (i) frivolous or malicious, or (ii) fails to state claim on which relief may be granted). An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke

v. Williams,

(1989). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges a violation of a legal interest which clearly does not exist.” Harper v. Showers,

(5th Cir. 1999) (internal quotation and citation omitted). A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional scenarios’ or the legal theory upon which a complaint relies is ‘indisputably meritless.’” Eason v. Thaler,

(5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327–28). In evaluating whether

a complaint states a claim under sections 1915A(b)(1) and 1915(e)(2)(B), the court applies the same standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain,

(5th Cir. 2011); see also FED. R. CIV. P. 12(b)(6). To avoid dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is 2 plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

, 555–56, 570 (2007)); see FED. R. CIV. P. 12(b)(6). These factual allegations need not be detailed but “must be enough to raise a right to relief above the speculative level.” Twombly,

. A conclusory complaint—one that fails to state material facts or merely

recites the elements of a cause of action—may be dismissed for failure to state a claim. See

at 555–56. Dinn’s claims seeking compensation for mental and emotional stress are barred by the physical injury requirement of 42 U.S.C. § 1997e(e). See Geiger v. Jowers,

(5th Cir. 2005) (holding plaintiff’s claim that he suffered mental anguish, emotional distress, psychological harm, and insomnia as a result of dispute with prison officials was barred by physical injury requirement in 42 U.S.C. § 1997e(e)).

III. CONCLUSION Dinn’s complaint is frivolous and barred by the physical injury requirement of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). IV. RECOMMENDATION It is therefore recommended that Dinn’s complaint be DISMISSED WITH PREJUDICE as frivolous pursuant to

(e). It is further recommended that Dinn be warned, if he files more than three actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure to state a claim on

which relief may be granted, then he will be prohibited from bringing any other actions in forma pauperis unless he is in imminent danger of serious physical injury. See

(g).

3 In the event this report and recommendation is accepted, adopted or approved, it is recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the keeper of the three-strikes list. V. OBJECTIONS Within 14 days after receipt of the report and recommendation, any party may serve and file written objections to the findings and recommendations of the magistrate judge.

(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained within this report within 14 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Douglass v. United Servs. Auto. Assoc.,

(Sth Cir. 1996)(en banc); Thomas v. Arn,

(1985); Rodriguez v. Bowen,

(Sth Cir. 1988). SIGNED on January 6, 2022.

MARK LANE UNITED STATES MAGISTRATE JUDGE