Opinion
1:22-CV-1316-LY
01-09-2023
PAUL J. CONNALL, Plaintiff v. YVONNE BASEL, FNU LEWIS, FNU NEAL, LUCINA LOPEZ, Defendants.
HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL, UNITED STATES MAGISTRATE JUDGE
The Magistrate Court submits this report and recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 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 Paul J. Connall's Application to Proceed In Forma Pauperis. Dkt. 2. Because Connall is requesting permission to proceed in forma pauperis, the undersigned must review and make a recommendation on the merits of his claims pursuant to 28 U.S.C. § 1915(e).
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The Court has reviewed Connall's financial affidavit and determined Connall is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the Court hereby GRANTS Connall's request for in forma pauperis status, Dkt. 2.
The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination that the action should be dismissed if the allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Connall is further advised that, although he has been granted leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, the undersigned has made a § 1915(e) review of the claims made in this complaint and recommends Connall's claims be dismissed under 28 U.S.C. § 1915(e). Therefore, service upon Defendant should be withheld pending the District Court's review of the recommendations made in this report. If the District Court declines to adopt the recommendations, then service should be issued at that time upon Defendant.
II. REVIEW OF THE MERITS OF THE CLAIM
Because Connall has been granted leave to proceed in forma pauperis, the undersigned is required by statute to review the Complaint. Section 1915(e)(2) provides in relevant part that “the court shall dismiss the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327.
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, pro se status does not offer a plaintiff an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Connall brings a claim for violation of his civil rights on the basis that employees of the Everleigh apartment complex defamed, libeled, and slandered him in violation of the Eighth Amendment when they called him a murderer. Dkt. 1, at 23, 6. Connall states that he “has been exonerated of [his] murder charge” and is a “free world citizen.” Id. at 6. Connall seeks $50 million in damages for a range of injuries, including PTSD, headaches, and tremors. Id. at 5.
Connall filed his complaint using the U.S. Courts Pro Se Form 14 for civil rights complaints yet wrote “no” by each of the questions pertaining to whether suit is brought against federal officials under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and/or state or local officials under 42 USC §1983. Dkt. 1, at 3. He also indicates that his complaint is brought “against private citizens.” Id.
As a preliminary matter “the conduct of private parties lies beyond the Constitution's scope in most instances.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, (1991). Further, suits for violation of civil rights brought either under Bivens or 42 U.S.C. § 1983 require conduct under color of state law. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.Id.
42 U.S.C. § 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979). To prevail upon a § 1983 claim a plaintiff must establish two elements: (1) a constitutional violation; and (2) that the defendants were acting under color of state law when they committed the constitutional violation. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013).
In this case, Connall fails to identify any state actors against whom he brings his claims and fails to plead that the alleged defamation, libel, and slander qualify as constitutional violations. For private citizens, such as Basel, Lewis, Neal, and Lopez to be held liable under § 1983, Connell must allege that they conspired with or acted in concert with state actors. Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989). Connell's complaint makes no such allegations.
Likewise, a tort action for damages for violation of federal constitutional rights, known as a Bivens action, may be brought only against federal officials. 403 U.S. at 396-97. Connall has not identified any federal officials or agents against whom he brings his claims. Based on the foregoing, the undersigned finds that Connall's complaint lacks an arguable basis in law to support a claim for relief before this Court and recommends that his complaint be dismissed.
III. ORDER AND RECOMMENDATION
The Magistrate Court hereby GRANTS Connall's Application to Proceed In Forma Pauperis. Dkt. 2. The Magistrate Court RECOMMENDS the District Court DISMISS Connall's complaint, Dkt. 1, with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). Further the Magistrate Court RECOMMENDS that the pending motions at Dkt. 4 and Dkt. 6, be DISMISSED based on the dismissal of Conall's complaint, Dkt. 1. The referral of this case to the Magistrate Court should now be canceled.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).