Jennings v. Texas State Power Authority

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BERT PATRICK JENNINGS 	CIVIL ACTION
VERSUS 	NO. 25-1829
TEXAS STATE POWER AUTHORITY 	SECTION “G” (4)
REPORT AND RECOMMENDATION
Plaintiff Bert Patrick Jennings (“Jennings”) filed a complaint pursuant to 42 U.S.C. § 1983,
which was referred to a United States Magistrate Judge to conduct a hearing, including an
evidentiary hearing, if necessary, and to submit proposed findings and recommendations for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), § 1915e(2), and § 1915A, and as
applicable, 42 U.S.C. § 1997e(c)(1) and(2). Having considered the record and the applicable law,
the Court has determined that this matter can be disposed of without an evidentiary hearing.
I. 	Background
A. 	Complaint (ECF No. 1)
Jennings, a pretrial detainee, filed this pro se and in forma pauperis complaint pursuant 42
U.S.C. § 1983 against defendant Texas State Power Authority. ECF No. 1 at 1. Jennings alleges
that in 2019 his family was against the smart meter grid. Id., ¶IV, at 5. Jennings claims that him
and his family were warned to stop opposing the grid. He states his family was presented with a
packet from Texas State Power Authority. As a result, Jennings claims this has destroyed his and
his family’s life in every way. Id., ¶V, at 6. He states they have lost their health, home, and lives.
As relief, Jennings seeks monetary compensation.
II. 	Standards of Review for Frivolousness
Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A and 42 U.S.C. § 1997e(c), the Court is
required to sua sponte dismiss cases filed by prisoners proceeding in forma pauperis upon a
determination that they are frivolous. The Court has broad discretion in determining the frivolous
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nature of the complaint. See Cay v. Estelle, 789 F.2d 318, 325 (5th Cir. 1986), modified on other
grounds, Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). However, the Court may not sua sponte
dismiss an action merely because of questionable legal theories or unlikely factual allegations in
the complaint.
Under this statute, a claim is frivolous when it lacks an arguable basis either in law or fact.
Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.
1998). “A [claim] lacks an arguable basis in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation of a legal interest which clearly does not
exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (quoting Davis v. Scott, 157 F.3d
882, 889 (5th Cir. 1998)). It lacks an arguable factual basis only if the facts alleged are “clearly
baseless,” a category encompassing fanciful, fantastic, and delusional allegations. 	Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S. at 327-28). Thus, the Court must
determine whether plaintiff’s claims are based on an indisputably meritless legal theory or clearly
baseless factual allegations. 	Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); Jackson v.
Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992).
III. 	Analysis
A. 	Improper Defendant
Jennings named Texas State Power Authority as the sole defendant. As outlined below,
Texas State Power Authority is not a proper defendant and the claims against it must be dismissed
as frivolous and otherwise for failure to state a claim for which relief can be granted.
A plaintiff bringing a § 1983 complaint is required to identify both a constitutional
violation and the responsible person acting under color of state law. Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 156 (1978). Generally, a suit under § 1983 cannot be brought against a private entity
acting in its private capacity. See Wheat v. Mass, 994 F.2d 273, 275-76 (5th Cir. 1993) (a hospital
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does not become a state actor simply due to receipt of public funds and being subject to state
regulation); Lott v. Lopinto, No. 19-14010, 2021 WL 11550132, at *2 (E.D. La. Jan. 29, 2021)
(citations omitted) (“neither Walmart nor its employees are not 	“considered to be acting under
color of state law for purposes of § 1983 liability.”). A non-state or private actor can, however, be
held liable under a § 1983 cause of action if the actor engaged in “a conspiracy with state actors to
violate [the plaintiff’s] constitutional rights.” Tebo v. Tebo, 550 F.3d 492, 496 (5th Cir. 2008); see
Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir. 2004) (private company not liable under
§ 1983 unless plaintiff alleges and proves an agreement between private and public defendants to
commit an illegal act resulting in a deprivation of the plaintiff’s constitutional rights). Although
the Court must “treat pro se pleadings more liberally, some facts must be alleged that convince
[the court] that the plaintiff has a colorable claim.” Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677,
678 (5th Cir. 1988).
Broadly construing his complaint, Jennings appears to contend that Texas State Power
Authority is a private entity.1 Jennings has not alleged that this private defendant was acting under
color of state law and his factual allegations do not provide any basis to conclude that it acted
outside of its private capacity nor in conspiracy with any state actor to violate his constitutional
rights. Further, should Texas State Power Authority not exist as an entity, judgment cannot be
rendered against it because this entity does not exist nor have the capacity to be sued as
contemplated by Federal Rule of Civil Procedure 17(b).
For these reasons, any claims against Texas State Power Authority are frivolous and
otherwise fail to state a claim for which relief can be granted and should be dismissed pursuant to
28 U.S.C. § 1915, § 1915A and 42 U.S.C. § 1997e.
1 The Court notes that it cannot verify the existence of any entity referred to as the Texas State Power Authority.
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B. 	Timeliness
Even if Jennings could allege a proper defendant or violation of his constitutional rights
based on the incident that took place in 2019, any claim would be considered prescribed and
therefore untimely under § 1983.
“[T]he statute of limitations for a Section 1983 action is a state’s general or residual
personal injury statute of limitations.” Brown v. Pouncy, 93 F.4th 331, 334 (5th Cir.) (citation
omitted), cert. denied, 145 S. Ct. 170 (2024). 	In this instance, Louisiana’s one-year statute of
limitations, or prescriptive period, for tort claims would apply.2 Jennings alleges the incident in
this suit occurred in 2019, but did not file his original complaint until September 4, 2025. ECF No.
1. In addition to applying the forum state’s statute of limitations, federal courts should give effect
to any applicable tolling provisions provided by state law. Lopez-Vences v. Payne, 74 F. App’x
398, 398 (5th Cir. 2003); Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 2002). The running of
prescription under Louisiana law may be suspended or tolled for equitable reasons, which have
been expressed in the civilian legal principle of contra non valentem. Crane v. Childers, 655 F.
App’x 203, 204 (5th Cir. 2016) (citing Corsey v. State, 375 So. 2d 1319, 1321 (La. 1979)). Contra
non valentem excepts a plaintiff from an applicable prescriptive period “where the cause of action
is not known or reasonably knowable by the plaintiff.” Kling Realty Co. v. Chevron USA, Inc., 575
F.3d 510, 517 (5th Cir. 2009) (quoting Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La. 1993)).
Jennings does not assert that he was unable to file his action within the one-year period.
Further, nothing suggests that the doctrine of contra non valentem, or any other doctrine that may
2 In 2024, Louisiana’s prescriptive period for torts was extended to two years. La. Civ. Code art. 3493.1. However,
this change has “prospective application only,” and thus the two-year prescriptive period applies “to delictual actions
arising after the [July 1, 2024] effective date of [Act 423].” 2024 La. Sess. Law Serv. Act 423 (H.B. 315). Since the
alleged incidents underlying Jennings’s claims occurred before July 1, 2024, the former one-year prescriptive period
under La. Civ. Code art. 3492 applies. See Allied World Nat’l Assurance Co. v. Nisus Corp., 134 F.4th 821, 826 n.3
(5th Cir. 2025) (applying the former Article 3492’s one-year prescriptive period to tort claim arising from facts
occurring before July 1, 2024).
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toll the prescriptive period, applies to except Jennings from the time-bar. Louisiana’s one-year
prescriptive period on Jennings’s claims ran before he filed his complaint on September 4, 2025.
Any claims pertaining to events occurring in 2019 are prescribed and untimely and, as such,
properly dismissed as frivolous. See, e.g., Brown v. Pool, 79 F. App’x 15, 17 (5th Cir. 2003);
Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998).
Thus, it would be unnecessary to afford Jennings an inherently futile opportunity to file an
amended complaint to name a proper defendant. See, e.g., Smith v. Terrebonne Par. Crim. Just.
Complex, No. 14-2207, 2014 WL 5780696, at *3 (E.D. La. Nov. 4, 2014) (“[T]he Court need not
give plaintiff an opportunity to amend his complaint to name a proper defendant, because it is clear
that his underlying claim is frivolous and/or fails to state a claim on which relief may be granted .
. .”); see also Martzen v. McLane, 764 F. App’x 402, 403 (5th Cir. 2019) (noting that a plaintiff
need not be given an opportunity to amend if he has “already alleged his best case and . . . any
further amendment would not have stated a valid § 1983 claim”).
RECOMMENDATION
It is therefore RECOMMENDED that plaintiff Bert Jennings’s 42 U.S.C. § 1983 claims
against defendant Texas State Power Authority be DISMISSED WITH PREJUDICE as
frivolous and otherwise fail to state a claim for which relief can be granted pursuant to 28 U.S.C.
§ 1915, § 1915A and 42 U.S.C. § 1997e.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within fourteen (14) days
after being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by
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the district court, provided that the party has been served with notice that such consequences will
result from a failure to object.3
New Orleans, Louisiana, this 	day of February, 2026.
_____________________________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
3 Douglass v. United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir. 1996). Douglass referenced the previously
applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended
to extend the period to fourteen days.
26th
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