David McIntyre v. Eric Castro

Fifth Circuit

David McIntyre v. Eric Castro

670 F. App'x 250

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 27, 2016

Docket16-50371 Summary Calendar

StatusUnpublished

Cited by3 cases

This text of 670 F. App'x 250 (David McIntyre v. Eric Castro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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David McIntyre v. Eric Castro, 670 F. App'x 250 (5th Cir. 2016).

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Opinion

PER CURIAM: *

Appellants appealed the Fed. R. Civ. P. 12(b)(6) dismissal of their Section 1983 *251 claim based on impermissible retaliation under the First Amendment. This court reviews “de novo motions to dismiss.” Jebaco, Inc. v. Harrah’s Operating Co., Ins., 587 F.3d 314, 318 (5th Cir. 2009). “Viewing the facts as pled in the light most favorable to the nonmovant, a motion to dismiss ... should not be granted if a complaint provides enough facts to state a claim to relief that is plausible on its face,” however, “the complaint must allege more than labels and conclusions, a formulaic recitation of the elements of a cause of action will not do, and factual allegations must be enough to raise a right to relief above the speculative level.” Id. (internal quotations omitted).

Our thorough review of the appellants’ sixth amended complaint, the briefs in this case, the other pertinent parts of the record, and the applicable law reveals no error. The district court properly held that appellants failed to state a claim and correctly determined that “[tjheir vague assertions fall short of both establishing the personal involvement required to state a claim under Section 1983 and meeting pleading standards requiring factual allegations which plausibly give rise to an entitlement to relief.” Mcintyre v. Castro, 2016 WL 1714919, at *3 (W.D. Tex. Apr. 8, 2016). The complaint lacks any specific factual allegations that appellees organized and directed state action against appellants. The only two specific allegations either do not constitute state action (signing a petition) or do not constitute retaliation (a status update regarding the state of pending litigation). We, therefore, AFFIRM the district court’s dismissal of the First Amendment retaliation claim and remand of the state law claims.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *251 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Appellants appealed the Fed. R. Civ. P. 12(b)(6) dismissal of their Section 1983 *251 claim based on impermissible retaliation under the First Amendment. This court reviews “de novo motions to dismiss.” Jebaco, Inc. v. Harrah’s Operating Co., Ins., 587 F.3d 314, 318 (5th Cir. 2009). “Viewing the facts as pled in the light most favorable to the nonmovant, a motion to dismiss ... should not be granted if a complaint provides enough facts to state a claim to relief that is plausible on its face,” however, “the complaint must allege more than labels and conclusions, a formulaic recitation of the elements of a cause of action will not do, and factual allegations must be enough to raise a right to relief above the speculative level.” Id. (internal quotations omitted).

Our thorough review of the appellants’ sixth amended complaint, the briefs in this case, the other pertinent parts of the record, and the applicable law reveals no error. The district court properly held that appellants failed to state a claim and correctly determined that “[tjheir vague assertions fall short of both establishing the personal involvement required to state a claim under Section 1983 and meeting pleading standards requiring factual allegations which plausibly give rise to an entitlement to relief.” Mcintyre v. Castro, 2016 WL 1714919, at *3 (W.D. Tex. Apr. 8, 2016). The complaint lacks any specific factual allegations that appellees organized and directed state action against appellants. The only two specific allegations either do not constitute state action (signing a petition) or do not constitute retaliation (a status update regarding the state of pending litigation). We, therefore, AFFIRM the district court’s dismissal of the First Amendment retaliation claim and remand of the state law claims.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *251 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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670 F. App'x 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-mcintyre-v-eric-castro-ca5-2016.

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